Jack Goldsmith

The Terror Presidency

In response to al Qaeda's August 1998 bombing of American embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, President Clinton issued several secret authorizations for the CIA to work with Afghan tribal elements to capture and if necessary kill Osama Bin Laden. The CIA had Bin Laden in its sights. But everyone in the CIA knew about Executive Order 12333, the 1970s-era ban on assassinations. Everyone also knew the fate of Robert Baer, a CIA case officer who, in the midst of organizing opposition to Saddam Hussein in 1995, was called home to Langley to face a career-ending FBI investigation for conspiring to murder Hussein. This is one reason why George Tenet and other senior CIA managers insisted that the White House be unambiguously clear about what the CIA was authorized to do to Bin Laden. 'CIA managers had been conditioned by history to read their written [authorizations] literally,' notes Steve Coll in Ghost Wars, the most comprehensive history of CIA activity in Afghanistan before the 9/l1 attacks. 'Where the wonks were not clear, they recommended caution to their officers in the field.'

The clear authorization that the CIA sought never came. Clinton's OLC agreed that the assassination ban did not apply to a military target, like Osama Bin Laden, who posed an imminent threat to the United Srates. So far so good. But then the ambiguities appeared. White House and Justice Department lawyers opposed an unrestricted lethal operation against Bin Laden, and would authorize his killing only if it were necessary for self-defense in the course of legitimately arresting him. This distinction was bad enough from the CIA's perspective, but the operation was further muddied by the lawyers' refusal to be clear about what constituted self-defense, or about how imminent a threat Bin Laden must pose before the CIA operation could commence. 'Wiggle room' in the authorization led the CIA to worry, in Coll's account, 'that if an operation in Afghanistan went bad, they would be accused of having acted outside the memo's scope.' Fear of retroactive discipline, induced by cautious legal authorizations, led the CIA to forego the covert operation.

In this and many other episodes prior to 9/11, intelligence officers spooked by cautious lawyers failed to take actions that might have prevented the 9/11 attacks. The CIA was, in the words of the 9/11 Commission Report, 'institutionally averse to risk,' and law and lawyers were a big part of the problem. It didn't help that CIA leaders encouraged their officers to buy professional liability insurance for legal expenses to be incurred in the expected criminal and related investigations. 'I think it's deeply disturbing that we have a system of government that asks young men and women to go overseas and take enormous risks for them and then say, 'Oh, by the way, you might want to get insurance to provide counsel because we might subsequently decide to prosecute you tomorrow for what we're asking you to do today,' says Jeffrey Smith, a former CIA General Counsel. Robert Baer, who was in a position to know, says the signal the insurance sends is clear. 'Don't take risky assignments. Don't get involved in any contravention or possible contravention of American law. Just don't do it. It's not worth it. You can't afford the lawyers.The organization's not going to back you up. Take a nice safe assignment. Take no risks.'

After 9/11, of course, the threat from terrorism seemed much different, and pressure on the CIA to take risks increased. But all of the institutional factors contributing to risk aversion remained in place, and stood as an obstacle to the White House's aggressive go-it-alone strategy. This is where the OLC became crucial. More than any agency in the government, OLC could provide the legal cover needed to overcome law-induced bureaucratic risk-aversion. 'It is practically impossible to prosecute someone who relied in good faith on an OLC opinion, even if the opinion turns out to be wrong,' a senior Justice Department prosecutor once told me. OLC speaks for the Justice Department, and it is the Justice Department that prosecutes violations of criminal law. If OLC interprets a law to allow a proposed action, then the Justice Department won't prosecute those who rely on the OLC ruling. Even independent
counsels would have trouble going after someone who reasonably relied on one. This is true even if OLC turns out to be wrong according to a court. One consequence of OLC's authority to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal laws. This is the flip side of OLC's power to say 'no,' and to put a brake on governmental operations. It is one of the most momentous and dangerous powers in the government: the power to dispense get-out-of-jail-free cards.