4. No Legal Authority
August 1998 was a watershed for the White House. The embassy bombings led to the reexamination of preemptive military options. President Clinton proposed using elite SOF counterterrorism units to attack bin Laden, his lieutenants, and al Qaeda's infrastructure.
Also considered was unconventional warfare, a core SOF mission very different from counterterrorism. The Special Operations Command's "Special Operations in Peace and War" defines unconventional warfare as "military and paramilitary operations conducted by indigenous or surrogate forces who are organized, trained, equipped, and directed by an external source." For the White House, this meant assisting movements like the Northern Alliance in Afghanistan.
Both the Special Operations Command's counterterrorism units and Special Forces training for and executing unconventional warfare operate clandestinely. That is what their doctrine specifies. But because such operations are secret, the question arose in the 1990s whether the department had the legal authority to execute them.
This may seem baffling. If these missions are specified in the military doctrine of the Special Operations Command, and actual units train for them, isn't it obvious that the Department of Defense must have the authority to execute them? Perhaps, yet many in government emphatically deny it.
A gap exists, they believe, between DOD's capability for clandestine operations and its authority under the United States Code. In the 1990s, some Pentagon lawyers and some in the intelligence community argued that Title 10 of the U.S. Code, which covers the armed forces, did not give Defense the legal authority for such missions, Title 50, which spells out the legal strictures for covert operations, gave this power exclusively to the CIA.
Title 50 defines covert action as "an activity of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly." Covert action and deniability go hand in hand. If a story about a covert action hits the newspapers, the president must be able to avow that the United States is not mixed up in it.
But is it the case that only the CIA has this authority? Title 50, Chapter 15, Section 413b of the U.S. Code stipulates: "The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions." The key condition is: "Each finding shall specify each department, agency, or entity of the United States Government authorized to fund or otherwise participate in any significant way in such action." Title 50 leaves the choice of agency to the president and does not exclude the Pentagon.
At the heart of this debate, said a former senior Defense official, was "institutional culture and affiliation." The department took after all, their very purpose, laid out in the official document "Special Operations in Peace and War" (1996). To find the answer, I interviewed civilian and military officials, serving and retired, at the center of U.S. counterterrorism policy and operational planning in the late 1980s and 1990s. the position that it lacked the authority because it did not want the authority--or the mission. He told me, "All of its instincts push it in that direction."
One senior member of the National Security Council's counterterrorism group recalled encountering this attitude during deliberations over counterterrorism operations and clandestine support for the Northern Alliance. To the Joint Staff, neither was "in their minds a military mission. It was a covert action. The uniformed military was adamant that they would not do covert action." And, he added, if you presented them with "a legal opinion that says 'You're wrong,' then they would say, 'Well, we're not going to do it anyway. It's a matter of policy that we don't.'"
The authority argument was a "cop-out," said a retired officer who served in the Pentagon from 1994 to 2000. Sure enough, the Defense Department could have bypassed Title 50 by employing SOF on a clandestine basis. While both clandestine and covert missions are secret, only the latter require that the U.S. role not be "acknowledged publicly," which is Title 50's key requirement. Using SOF to preempt terrorists or support resistance movements clandestinely in peacetime is within the scope of Title 10, as long as the U.S. government does not deny involvement when the mission is over.
But this interpretation of Title 10 was considered beyond the pale in the 1990s. The Pentagon did not want the authority to strike terrorists secretly or to employ Special Forces against states that aided and sheltered them.
5. Risk Aversion
The mainstream military often dismisses special operations as too risky. To employ SOF requires open-minded political and military leadership willing to balance risks against potential gains. Supple judgment was in short supply in the Pentagon in the 1990s.
Walter Slocombe served as Clinton's undersecretary of defense for policy, and took part in all counterterrorism policy discussions in the Department of Defense. "We certainly looked at lots of options which involved the possible use of SOF," he stressed. But in the end they were never selected because they seemed too hard to pull off, he acknowledged. Options that put people on the ground to go after bin Laden were "much too hard." It was much easier and much less risky to fire off cruise missiles.
During Clinton's first term, someone would always find something wrong with a proposed operation, lamented General Downing. The attitude was: "Don't let these SOF guys go through the door because they're dangerous. . . . They are going to do something to embarrass the country." Downing recalls that during his years in command, he "sat through the preparation of maybe 20 operations where we had targeted people who had killed Americans. Terrorists who had done bad things to this country, and needed either to be killed or apprehended and brought back here, and we couldn't pull the trigger." It was too risky for the Pentagon's taste.
The other side of the risk-aversion coin is policymakers' demand for fail-safe options. A general who served in the Special Operations Command in the 1990s encountered "tremendous pressure to do something," he said, but at the same time, the requirement was for "perfect operations, no casualties, no failure." There were some "great opportunities" to strike at al Qaeda, "but you couldn't take any risk in doing so. You couldn't have a POW, you couldn't lose a man. You couldn't have anybody hurt." It was Catch-22. There were frequent "spin-ups" for SOF missions, but "in the end, the senior political and military leadership wouldn't let you go do it."
In the mid-1990s, and again at the end of the decade, the Clinton administration flirted with supporting the Iraqi resistance and then the Northern Alliance. An officer who served on the Joint Staff recounted how the senior military leadership put the kibosh on these potentially bold moves.
The CIA ran the Iraqi operation. But its unconventional warfare capabilities were paltry, and it turned to the military for help, requesting that SOF personnel be seconded to bolster the effort. The Joint Staff and its chairman wanted nothing to do with it, he said. "The guidance I got from the chairman's director of operations was that we weren't going to support this, and do everything you can to stall or keep it in the planning mode, don't let it get to the point where we're briefing this at the National Security Council or on the Hill."
Later, the National Security Council's counterterrorism group proposed supporting the Northern Alliance. They pushed the proposal up to the "principals" level. But attached to it was a "non-concurrence" by the Joint Staff, opposing it as too complex and risky. That was the kiss of death.
None of this was new to the Joint Staff officer, who had been in special operations for a long time. "Risk aversion emerges as senior officers move into higher positions," he explained. "It's a very common thing for these guys to become non-risk takers. They get caught up in interagency politics and the bureaucratic process, and get risk-averse."
A member of the counterterrorism group in the late 1990s noted that General Hugh Shelton, a former commander of the Special Operations Command, considered the use of SOF for counterterrorism less than anyone when he was chairman of the Joint Chiefs. The official said Shelton directed the Joint Staff "not to plan certain operations, I'm sure you've heard this from others." In fact, I had. "It got to the point," he said, where "the uniforms had become the suits, they were more the bureaucrats than the civilians."
6. Pariah Cowboys
When events finally impelled the Clinton administration to take a hard look at offensive operations, the push to pursue them came from the civilians of the National Security Council's Counterterrorism and Security Group.
One of the hardest of the hard-liners was the group's chief, Dick Clarke. For nearly a decade, this career civil servant began and ended his work day with the burgeoning terrorist threat to America. He knew in detail the danger the bin Ladens of the world posed, and it worried him greatly. Defensive measures were just not enough. "Clarke's philosophy was to go get the terrorists," one former senior Pentagon special operations official told me, "Go get them anywhere you can."
Asked if that meant using SOF, he replied: "Oh yeah. In fact, many of the options were with special mission units." But "Dick Clarke was attempting to take on a Pentagon hierarchy that wasn't of the same philosophical mindset."
Clarke was not alone. Mike Sheehan also pushed for assisting the Northern Alliance and striking al Qaeda with SOF. Such measures worried the senior brass, who proceeded to weaken those officials by treating them as pariahs. That meant portraying them as cowboys, who proposed reckless military operations that would get American soldiers killed.
Sheehan explained: Suppose one civilian starts beating the drum for special operations. The establishment "systematically starts to undermine you. They would say, 'He's a rogue, he's uncooperative, he's out of control, he's stupid, he makes bad choices.' It's very damaging. . . . You get to the point where you don't even raise issues like that. If someone did, like me or Clarke, we were labeled cowboys, way outside our area of competence."
Several officials who served on the Joint Staff and in the Pentagon's special operations office remembered the senior brass characterizing Clarke in such terms. "Anything Dick Clarke suggested, the Joint Staff was going to be negative about," said one. Some generals had been vitriolic, calling Clarke "a madman, out of control, power hungry, wanted to be a hero, all that kind of stuff." In fact, one of these former officials emphasized, "when we would carry back from the counterterrorism group one of those SOF counterterrorism proposals, our job was to figure out not how to execute it, but how we were going to say no."
By turning Clarke into a pariah, the Pentagon brass discredited precisely the options that might have spared us the tragedy of September 11, 2001. And when Clarke fought back at being branded "wild" and "irresponsible," they added "abrasive" and "intolerant" to the counts against him.
7. Intimidation of Civilians
Another way the brass stymied hard-line proposals from civilian policymakers was by highlighting their own military credentials and others' lack of them. One former defense official recounted a briefing on counterterrorism options given the secretary of defense by senior civilians and military officers. "The civilian, a political appointee with no military experience, says, 'As your policy adviser, let me tell you what you need to do militarily in this situation.' The chairman sits there, calmly listening. Then it's his turn. He begins by framing his sophisticated PowerPoint briefing in terms of the 'experience factor,' his own judgment, and those of four-star associates. The 'experience factor' infuses the presentation. Implicitly, it raises a question intended to discredit the civilian: 'What makes you qualified? What makes you think that your opinion is more important than mine when you don't have the experience I have?' 'Mr. Secretary,' concludes the chairman, 'this is my best military advice.'" In such situations, the official said, civilians were often dissuaded from taking on the generals.
Wayne Downing, the former special operations commander, had plenty of experience providing such briefings. "Occasionally you would get a civilian champion," he said, who would speak up enthusiastically in favor of the mission being presented. "And then the chairman or the vice chairman would say, 'I don't think this is a good idea. Our best military judgment is that you not do this.' That champion is not going any further."
During the 1990s, the "best military advice," when it came to counterterrorism, was always wary of the use of force. Both risk-aversion and a deep-seated distrust of SOF traceable all the way back to World War II informed the military counsel offered to top decision makers. Almost all those I consulted confirmed this, and many, including General Stiner, have described it in print.
When President Clinton began asking about special operations, one former senior official recounted, "those options were discussed, but never got anywhere. The Joint Staff would say, 'That's cowboy Hollywood stuff.' The president was intimidated because these guys come in with all those medals, [and] the White House took the 'stay away from SOF options' advice of the generals."
Another former official during both Clinton terms described several instances where "best military advice" blocked SOF options under White House review. "The Pentagon resisted using Special Forces. Clinton raised it several times with [Joint Chiefs chairmen] Shalikashvili and Shelton. They recommended against it, and never really came up with a do-able plan."
Occasionally, policymakers kept pushing. When support for the Northern Alliance was on the table after the embassy bombings in Africa, the senior military leadership "refused to consider it," a former counterterrorism group member told me. "They said it was an intelligence operation, not a military mission."
The counterterrorism group at the National Security Council pushed the proposal anyway, but the Joint Staff strongly demurred and would not support it. They argued that supporting the Northern Alliance would entangle the United States in a quagmire. That was the end of the line. Let's suppose, said the former counterterrorism group member, that the president had ordered a covert strike "despite the chairman going on record as opposing it. Now, if the president orders such an operation against the best military advice of his chief military adviser, and it gets screwed up, they will blame the president who has no military experience, who was allegedly a draft dodger." The Northern Alliance was left to wither on the vine.
8. Big Footprints
The original concept for SOF counterterrorism units was that they would be unconventional, small, flexible, adaptive, and stealthy, suited to discreet and discriminate use, say those "present at the creation" following the Desert One disaster. Force packages were to be streamlined for surgical operations. The "footprint" of any operation was to be small, even invisible.
By the 1990s, this had dropped by the wayside. One former official recalled that when strikes against al Qaeda cells were proposed, "the Joint Staff and the chairman would come back and say, 'We highly recommend against doing it. But if ordered to do it, this is how we would do it.' And usually it involved the 82nd and 101st Airborne Divisions. The footprint was ridiculous." In each instance the civilian policymakers backed off.
To some extent, SOF planners themselves have been guilty of this. "Mission-creep," one official called it. Since you can't "totally suppress an environment with 15 guys and three helicopters," force packages became "five or six hundred guys, AC-130 gunships, a 900-man quick-reaction force ready to assist if you get in trouble, and F-14s circling over the Persian Gulf." The policymakers were thinking small, surgical, and stealthy, so they'd take one "look at it and say that's too big."
One original Delta Force member traced this problem back to Desert One. "We took some bad lessons from that," he said. ". . . One was that we needed more. That maybe it would have been successful if we'd had more helicopters. That more is better. And now we add too many bells and whistles. We make our footprint too large. We price ourselves out of the market."
It's a way of dealing with the military's aversion to risk. "One way we tend to think we mitigate risk," he said, "is by adding more capabilities for this contingency and that contingency." Asked if this thinking had found its way into the Special Operations Command, he replied, "Yes. Absolutely."
9. No Actionable Intelligence
A top official in the Office of the Under Secretary of Defense for Policy in the 1990s described the intelligence deficit with respect to targeting Osama bin Laden: "If you get intelligence, it's by definition very perishable. He moves all the time and he undoubtedly puts out false stories about where he's moving," making it extremely difficult "to get somebody from anyplace outside of Afghanistan into Afghanistan in time. The biggest problem was always intelligence."
But if the target had been broadened to al Qaeda's infrastructure, the intelligence requirements would have been less demanding, noted Dick Clarke. "There was plenty of intelligence. We had incredibly good intelligence about where bin Laden's facilities were. While we might never have been able to say at any given moment where he was, we knew half a dozen places that he moved among. So there was ample opportunity to use Special Forces."
In effect, to turn the need for "actionable intelligence" into a showstopper, all you have to do is define the target narrowly. That makes the intelligence requirements nearly impossible to satisfy. Broaden the picture, and the challenge of actionable intelligence became more manageable.
Special Operators are actually the first to seek good intelligence. But according to an officer on the Joint Staff at the time, "no actions [were] taken to pre-position or deploy the kinds of people that could have addressed those intelligence shortfalls"--people who could have provided the operational-level intelligence needed for SOF to deploy rapidly against fleeting targets in the safe havens where terrorists nest.
What was essential for counterterrorism operations was to establish intelligence networks in places harboring targets. This "operational preparation of the battlespace" is accomplished by infiltrating special operators who pass for locals. Their job includes recruiting indigenous elements who can help SOF units enter an area of interest, and organize, train, and equip local resistance and surrogate forces to assist them.
But no such preparation took place in the 1990s in terrorist havens like Afghanistan, Yemen, Lebanon, and Sudan. Operating in those lands "would have taken official approval that prior to 9/11 would have never been given to us," one knowledgeable individual explained. "Prior to 9/11 there was no willingness to put Department of Defense personnel in such places. No such request would have been authorized."
Why? Because it's dicey, was the bottom line for a former senior Clinton appointee at the Pentagon. Asked if there were proposals at his level for it, he said: "Not that I remember," adding, "I can understand why. It raises a lot of questions. Without saying you shouldn't do it, it is one of those things that is going to cause concern. . . . You're talking not just about recruiting individuals to be sent, but recruiting whole organizations, and you think about it in the context of Somalia. I'm sure that would have raised a lot of questions. I can see why people would have been reluctant."
DURING CLINTON'S SECOND TERM, then, the possibility of hunting down the terrorists did receive ample attention at the top echelons of government. But somewhere between inception and execution, the SOF options were always scuttled as too problematic.
War and tragedy have a way of breaking old attitudes. September 11, 2001, should have caused a sea change in SOF's role in fighting terrorism. To some extent, it has. Consider the stellar contribution of Special Operations Forces to the campaign in Afghanistan in 2001-02. In the early planning stages, SOF was only ancillary to the war plan; but by the end of October 2001, it had moved to center stage. It played a decisive role in toppling the Taliban and routing al Qaeda.
Since then, SOF have deployed to places like Yemen and the Philippines to train local militaries to fight al Qaeda and its affiliates. And last year, Secretary Rumsfeld ordered the Special Operations Command to track down and destroy al Qaeda around the globe. In effect, he ordered a global manhunt to prevent future 9/11s, including attacks with weapons of mass destruction.
In the war against terrorism, a global SOF campaign against al Qaeda is indispensable. Happily, our special counterterrorism units are tailor-made for this. And now that the United States is at war, it should be possible to overcome the showstoppers that blocked the "peacetime" use of those forces through the 1990s.
It should be--but will it? The answer is mixed. Some showstoppers have been neutralized. While law enforcement still has a role to play, we are clearly fighting a war, in which the Department of Defense and the armed forces take the lead. Thus, there should be far less latitude for turning advocates of tough counterterrorism missions into pariahs. September 11 and the president's response to it changed the terms of the policy discussion.
Yet the other showstoppers have not ceased to matter. Competing power centers continue to jockey for influence over counterterrorism policy. In a war in which the CIA may feel it has both a role to play and lost ground to regain, the Title 10/Title 50 debate and arguments over actionable intelligence are likely to persist. In our democratic society, fear of another Somalia remains. And the conventional military's mistrust of SOF has not evaporated.
Once again, a civilian is pushing for greater use of Special Operations Forces. Secretary of Defense Rumsfeld wants the Special Operations Command, for the first time in its history, to play the role of a "supported command," instead of supporting the geographic commands, as it has in the past. Neither those commands nor their friends on the Joint Staff are likely to welcome a reversal of the relationship in order to facilitate SOF missions. "Who's in command here?" could become a new wartime showstopper. Some in SOF believe it already has.
Once again, the problem involves institutions, organizational cultures, and entrenched ways of thinking. "Rumsfeld might think we're at war with terrorism," observed one former general, "but I'll bet he also thinks he is at war within the Pentagon....The real war's happening right there in his building. It's a war of the culture. He can't go to war because he can't get his organization up for it."
Donald Rumsfeld may believe that Special Operations Forces should be in the forefront of the global war on terrorism. But for that to happen, he will have to breach what remains of the phalanx of resistance that blocked the offensive use of special mission units for over a decade--and he'll have to overcome the new showstoppers as well.
For now, it appears that the most powerful defense secretary ever has failed in his attempt to do this. In a disquieting October 16, 2003, memo to the Pentagon elite in the war on terror--General Dick Meyers, Joint Chiefs chairman; Deputy Defense Secretary Paul Wolfowitz; General Pete Pace, vice chairman of the Joint Chiefs; and Doug Feith, undersecretary of defense for policy--Rumsfeld laments that progress has been slow and the Defense Department has not "yet made truly bold moves" in fighting al Qaeda. And he wonders whether his department "is changing fast enough to deal with the new 21st century security environment."
It's a good question. As al Qaeda regroups and deploys to new battlefields in Iraq and elsewhere, our special mission units--the Delta boys, the SEALs, and the rest--remain on the shelf. It's time to take them off.
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