Mfr Nara- T3- Dod- Miller Judith- 1-29-04- 00726

UNCLASSIFIED

MEMORANDUM

FOR THE RECORD

Event: Interview of Judith Miller Type of Event: Interview Date: January 29, 2004 Prepared by: Bonnie D. Jenkins Classification: Unclassified Team Number: 3 (Counterterrorism Policy) Location: 2100 K Street Participants - Non-Commission: Judith Miller Participants - Commission: Bonnie Jenkins, Michael Hurley (U) Judith Miller was the General Counsel (GC) of the Department of Defense from September 1.994 to November 1999. DOD/GC and Policy Decision Making (U) Miller noted that the 1996 Khobar Towers bombing heightened the awareness of the Department of Defense (DOD) regarding terrorist issues. Force protection mattered a great deal and had more policy visibility and emphasis as a result. The Oklahoma City bombing was also a wake up call for the entire Executive Branch and it was impossible not to notice that there were many terrorist organizations targeting the U.S. government and U.S. interests. (U) Miller wanted the lawyers to sit in policy meetings and interact with policy makers to get a sense of where things were going on issues of significance, and to give advice early on if the policy issues had legal implications. Regarding the Under Secretary for Policy, Miller would have her Deputy GC for International Affairs routinely attend weekly meetings of the Under Secretary. Miller would also get personally involved by being proactive. She would sit in on daily meetings of the secretary. She also met daily with the Chairman's legal counsel. Regarding counterterrorism, that was not treated differently. The Counterterorism Security Group (CSG) was more ad-hoc, atleast at the beginning. Because it was new, it took a while to get its institutional underpinnings going. On some issues, it was not possible to track everything the CSG was doing. The group was designed by Richard Clarke to move quickly. She had to rely on the lawyers group to see what they had heard and what they were working on at the time. (U) CSG actions had to go up the legal and operational chain of command. Many of their ideas, when bounced against policy experts or the Joint Staff who know the operational issues, ran up against realities that derailed things before they even got to the lawyers. Miller noticed this more at the beginning of the process. By the time she left, the CSG was working very efficiently.

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. UNCLASSFIED (U) DoD/OGC involvement in operational decisions varied. For example,when the president authorized Desert Fox in late 1998, there had already been policy and legal reviews for many months. It was viewed by some as a distraction from the ongoing impeachment, but the Desert Fox decision was after months of interagency discussions and prepared policy papers. The substantive legal analysis had already been largely worked and reworked based on US actions in Iraq in 1991. (U) Since it was the interagency legal view that Desert Fox was authorized by prior UN security counsel resolutions, there did not have to be much additional legal work. Of course, the GC would review new legal issues. Sometimes there would be real-time legal analysis if targets were being chosen daily. (U) Regarding UBL, Miller recalls that people were trying to figure out what UBL was going to do and where he was. Response and not retaliation (U) Miller noted that when referencing the U.S. military response to the August 1998 attacks on the two African embassies, the proper term to use is not "retaliation" but "response." The notion is that acting in retaliation suggests punishment and not acting in the pursuit of a country's interest in an appropriate way under international and applicable domestic laws. In international law particularly, one of the first things learned in Judge Advocate General's School is that it is not lawful and legitimate to use military power for retaliation. That is the black-line rule. A legitimate use is self-defense. Selfdefense is a doctrine the U.S. has invoked with vigor and probably done so in instances where Europeans were skeptical whether the doctrine. Collateral Damage On the issue of collateral damage, the law of armed conflict is invoked. For example, innocent civilians are not lawful targets unless they are being used to protect a significant military facility. There is also a question of proportionality. Sometimes innocent people may be killed when going after a lawful target, and that has to be taken into consideration. EO 12333 and Memorandum of Notification (U) The general view is that if the U.S. is in a war with a country, an individual who is the commander-in-chief of that country and is a strong player in the military command structure is a fair target in the right circumstances if other requirements are met (e.g., proportionality). (U) Hurley referred to a Memorandum of Notification (MON) authorized on August 20, 1998, the same day as the U.S. missile response to the August 7, 1998 African 'embassy attacks, and there is a debate regarding what CIA was authorized to do regarding Bin Ladin. Miller said she was on vacation at the time the decision was made to undertake Infinite Reach (she noted it was not a retaliation but a response under intemationallaw) ." As a general rule, the lawyers group would often convene after policy makers had fairly specific thoughts on an issue. Regarding MONs, the DoD lawyers would be involved

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when DoD was going to taking action associated with the MON or when DoD had an equitable interest in what was covered in the MON. So, often DoD layers were included, but not always. (U) The agency had the ability to do many covert operations but in the president makes the final decision, not others lower down. It is also important to notify parts of the congress. DoD was not expressly rolled into that notification reauirement.l 9/11 Agency Internal Matters

Global War on Terrorism CGWOT) (U) Miller noted that the term "GWTO" was too broad. Regarding Iraq, the U.S. did not need to invoke preemption because there were UNSC resolutions that would have sufficed. In some other situations, preemption may make sense, Miller prefers to think in terms of self-defense as it is an analytical framework the lawyers and policy makers are used to. "To fly over airspace, you need permission. You cannot just do that", she said. It is easier if there is a UNSC resolution. If there is international backing for action, things are much easier for all involved. By doing it alone, there are many more analytical hurdles to go through. The support and other help that may be needed from the international community to carry out the policy will not exist.

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Predator (U) The UAV was a high-demand, low density drone and was still in its experimental stage in Kosovo in 1999 The UAVs were being fought over within DoD among regional commanders because they were useful as sensors and provided much more information in a tactical environment than could be obtained otherwise. She recalled a briefing after she left DoD when she was on a task force where U A V issues came up. DoD had been thinking more about the use ofUAVs. They had advanced from thinking of them as just good intelligence gatherers to using them as combat vehicles. Homeland Defense (U) After the Oklahoma City bombing, there was an extension of authorities for the president to call on DoD and the military in instances that may normally violate the law of posse comitatus. In addition, the 1996 Olympics was an action enforcer for the administration regarding possible attacks on the United States. The focus of planning for the Olympics was what would DoD dojf.a.smaILnuclear,.chemicaLor_biologicaLdevice was used. There was great interest in Congress to give the Executive Branch more authority to deal with these types of incidents. One of the things was to give the same set of authority to DoD to address biological and chemical weapons, as it had regarding nuclear weapons. DO] and DoD began to work together on this issue. They dusted off the authorities for nuclear weapons and extended them to biological and chemical weapons. There was a lot of interagency planning and work. An MOU was drafted and signed before the two agencies to help ensure each agency knew what it was to do and could not do .

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UNCLASSFIED (U) Miller did not recall much debate about DoD taking the lead in homeland defense because DOJ wanted to take the lead. However, it was obvious that there could be an emergency in the U.S. that would quickly overwhelm state and local government resources. DoD is often looked on in an emergency situation. So, DoD would have to begin planning for consequence management. Secretary Cohen suggested, and the president agreed, that the way DoD had handled homeland emergencies in the past, while joint, needed to be more joint in nature. So Cohen established a task force (civil support in Norfolk) to begin building the infrastructure to address this requirement. Atlantic . Command in Norfolk changed its name to Joint Forces Command, and it was to have a joint orientation for joint planning, exercising, experimentation, etc. u.S. Strategy against terrorism Miller noted that Cohen talked about the possibility of an anthrax attack early on in his tenure. He was out and about speaking to his peers in other parts of the world arguing that such an attack was possible and should be addressed. NA TO had to take this seriously and the executive branch had to be more organized. By the time Miller left the GC, there were regular interagency meetings focused on consequence management and proactive measures. There was a counterterrorism strategy, though she is not sure how comprehensive it was. Lessons learned (U) Miller noted that the U.S. should bring many different types of expertise to bear on counterterrorism efforts and get inside the minds of the terrorists, to try to determine what they will do next. Short term and long term solutions must be found.

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