WASHINGTON, Feb. 27 (UPI) -- Despite the broad new authorities to use lethal force it was granted after the Sept. 11, 2001, terror attacks, critics say the CIA continues to be too cautious in employing the ultimate sanction against the terrorist enemies of the United States.
One former intelligence official told United Press International that even the agency's most touted new weapon -- the Hellfire missile, which can be launched from the remotely piloted Predator aerial platform -- is hamstrung by the excessively legalistic attitude of the agency's senior management.
"From personal experience, I can tell you, you have to build a brief of almost court-level evidence before you can even contemplate shooting a hellfire missile at one of these guys," said former CIA bin Laden hunter Michael Scheuer.
"I can't give you the exact figures," Scheuer went on, explaining that they are classified, "but since May of 2002 the Predator has shot far less than ten missiles. Not because there were no targets, but because the legal requirements necessary before you pull the trigger are so onerous."
Scheuer, who left the CIA in November last year, made his comments in a recent interview with UPI. Several subsequent interviews with serving and former officials -- most of who declined to be named or quoted directly -- bear out the facts as he describes, though not everyone agrees with his conclusions.
Roger Cressey, who was deputy counter-terrorism director at the White House in 2001, says he is concerned that the CIA has "begun to look over its shoulder."
"There needs to be a compact between Congress, the agencies and the White House," he told UPI. "We are going to make mistakes. We are even going to kill the wrong people sometimes. That's the inherent risk of an aggressive counter-terrorism program."
Cressey added there was growing concern amongst frontline agents that they would be made to carry the can for such errors. "What we need is everyone to understand that it is being done with the best of intentions and not go running to the press whenever it becomes politically expedient to do so."
At the heart of the issue is a remarkable legal document, known as a Memorandum of Notification, which was signed by President Bush less than a week after the Sept. 11 attacks.
In the effort to justify the broad legal authority it granted the United States to kill its terrorist enemies, some administration lawyers drew on a legal theory of anticipatory self-defense, first developed as a strategy for battered women who had killed their abusers.
Administration lawyers "used that theory to say that they had the legal right to kill Osama bin Laden and his lieutenants under international law," a former U.S. intelligence official told UPI.
Anticipatory self-defense is employed in so-called burning-bed cases, where abused women kill their abusers while they sleep, or in other circumstances where an attack is not under way or imminent and the conventional concept of self-defense therefore does not apply.
"They borrowed the legal theory of anticipatory self-defense from these abused women's defenses," said the former official of the debates in fall 2001, "and tried to analogize it to international law, arguing that killing bin Laden was legal because it was self-defense under Article 5 (of the United Nations' charter) because the United States, like a battered woman, needed to be able to kill in advance of the actual assault."
The former official said the anticipatory self-defense theory enabled the administration to get around the long-standing ban on U.S. personnel taking part in or procuring assassinations stipulated in Executive Order 12333. Self-defense is not a defense for the crime of homicide. If a killing is self-defense, no crime has been committed.
"They wanted to keep the ban in place; to say 'Yes, it still applies, but just not in these cases,'" the former official said. "Part of it was public relations -- they needed a rationale in case their efforts (to kill bin Laden) became public."
The Bush memo is described by people with knowledge of it as one of the most highly classified documents produced by the United States government. It gives the CIA broad powers to use lethal force against suspected al-Qaida terrorists, superseding a series of such documents signed by President Clinton that had provided much more limited authorities for individual operations.
The Clinton-era documents generally took weeks, even months, to prepare, in part because they were scrutinized with enormous care by administration lawyers, according to officials familiar with the process.
"A lawyer would sit down with the (CIA) operations guys and write drafts (of the memorandum) based on what they would say about what they could do, about what authorities they needed for the operation they were planning," the former official said.
"Those drafts would go up the chain (of command) to the White House, where they would be edited, and then -- if they were signed (by the president) -- sent back down the chain."
In recently declassified testimony to the Joint Congressional Inquiry into the Sept. 11 attacks, Richard Clarke, who led the White House's counter-terrorism efforts under President Clinton and in the early part of President Bush's first term, said that this process resulted in "a very Talmudic and somewhat bizarre series of documents" that gave extremely specific authorities for particular operations.
According to Clarke's testimony there were policy reasons -- over and above any legal considerations -- for limiting the authorities that the Clinton memos gave the CIA.
"The administration, and particularly the Justice Department, did not want to throw out the ban on assassination," he told the inquiry.
"There was concern ... that we not create an American hit list that would become an ongoing institution that we could just keep adding names to and have hit teams go out and assassinate people."
But according to Scheuer the concern meant that operations ended up being micro-managed by administration lawyers.
"It got so ridiculous," he told UPI. "When we were training for an operation to capture bin Laden, the lawyers made us build an ergonomic chair in which he would be comfortable. ... At one point we took three rolls of tape to the lawyers (at the National Security Council) -- duct tape ... masking tape and white adhesive tape -- so they could decide which we could use to put over his mouth that would be least uncomfortable."
He angrily contrasted the lawyers' attitude to the risks they were prepared to order CIA operatives to undertake.
"They were more than willing to send my officers out into the Western part of the United States to practice landing a C-130 without lights at night and risk their lives doing that," he said, "but they were worried about this damn Saudi's beard being irritated by tape."
Scheuer ridiculed the situation U.S. officials were placed in by the assassination ban.
"When we first went after bin Laden I had very senior members of several Arab (intelligence) services say, 'Mr. Mike, why don't you just let us kill him for you?' And I would have to say, 'No, no. Executive Order 12333 says we can't kill anybody.'"
Despite the very different atmosphere post-Sept. 11, it is clear that there was a continuing reluctance to scrap the ban on assassination -- originally imposed in response to concerns raised by the Church Committee during the 1970s about possible U.S. involvement in plots to kill foreign officials.
"They could have repealed or amended the ban," said the former intelligence official. "They could even have issued a secret waiver. But they didn't want to do that. ... The assassination ban puts the United States on the moral high ground -- and protects our leaders from the possibility of reciprocal attacks -- and they didn't want to give that away."
Nonetheless, the Bush memorandum was prepared much more swiftly than any of the Clinton documents.
The process of preparing it was "incredibly fast," according to Cressey. The first drafts were reviewed the weekend after the attacks, and the finalized memorandum was signed by President Bush on Sept. 17.
"Did the group of people who were supposed to review these documents go through them? Yes? Did they go through the usual wordsmithing exercise? No.
"The president wanted to do something, and he made it known that he wanted to do something fast," Cressey said.
Cressey denied the memo -- which he called "one of the most remarkable documents ever signed by a president" -- was "ram-rodded through" the process, but he acknowledged that "there was no real consultation with Congress."
Initially, according to the former intelligence official, the White House determined that only the so-called Gang of Eight -- the minority and majority leaders of both chambers of Congress and the chairmen and ranking members of the two intelligence committees -- should be informed of the CIA's sweeping new powers.
The members were summoned to special secure offices to receive a brief phone call informing them of the memo.
"Even if Congress had been consulted," said Cressey, "do you think there was a single member who would have said, 'Whoa, hold up, wait a minute, these powers are too broad'? ... The consensus was that another round of attacks was pending and Congress would support any action to stop it."
National Security Council Spokesman Fred Jones told UPI he could not comment on the specifics of discussions about a classified document. But he pointed out that President Bush had repeatedly promised to hunt down terrorists and "bring them to justice, or bring justice to them."
According to others familiar with its contents, the memo also gave the CIA -- for the first time -- the power to detain suspected terrorists.
Prior to its signing, the CIA had no authority to keep suspected terrorists in custody. Indeed, one of the Clinton memorandums -- empowering the CIA to carry out a planned capture operation against Osama bin Laden -- had to specifically authorize holding the al-Qaida leader while awaiting his exfiltration from Afghanistan.
According to Scheuer, frustration with the agency's inability to hold suspected terrorists and the difficulty of building legal cases against terrorist leaders led the CIA to develop its program of extraordinary rendition, in which suspects would be seized and then shipped to friendly countries.
"We would have to get a pledge in writing from the ... destination (country) not to abuse their human rights," he said, adding that this provision was still in force.
Despite such assurances, there have been numerous well-documented accounts of people rendered to third countries being tortured -- something about which Scheuer appears to have few qualms.
"I think it is a gutless policy to force the (CIA) to rely on that sort of process to defend America," Scheuer said. "It's very useful for the policymakers, because if something goes wrong, if we discover some kind of human-rights abuse or an execution, it leaves the agency holding the bag, which is very conducive to policymakers."
Cressey argues that these new powers of detention, combined with what he calls "the unintended consequences" of the Iraq war, have created a serious problem.
He said that the abuse of detainees in Iraq -- many of whom were detained on the basis of tips from neighbors or colleagues who might have held a grudge -- has resulted in a political atmosphere that threatens to hamstring the war on terror.
"Where the administration, principally the Pentagon, failed was in applying to the multitudes of Iraqis rounded up in the campaign against the insurgency the approach (designed for use) against hardcore al-Qaida operatives," Cressey said.
As a result, he argues, the abuses in Iraq could have a serious impact on the campaign against al-Qaida.
"The concern is that with the investigations into Abu Ghraib and what has happened at Guantanamo Bay, there could be a dampening effect" on the attitude of CIA operatives.
Nonetheless, Cressey denies that the agency has become "gun shy."
"The CIA would say, 'If we're gun-shy, it's because we don't want to make the mistakes the Pentagon has made,'" he said.
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