Reading the report of the National Commission on Terrorist Attacks Upon the United States, we couldn't help thinking of Justice Scalia's great dissent in Morrison v. Olson. It's the case in which the Supreme Court upheld the idea of an independent prosecutor. Justice Scalia warned of the danger that unleashing an uncontrollable prosecutor against a president could shake his courage. "Perhaps the boldness of the President himself will not be affected — though I am not so sure," he warned.
Well, look now to what the 9/11 report has to say about the man to whom President Clinton, under attack by an independent counsel, delegated so much in respect of national security, Samuel "Sandy" Berger. The report cites a 1998 meeting between Mr. Berger and the director of central intelligence, George Tenet, at which Mr. Tenet presented a plan to capture Osama bin Laden.
"In his meeting with Tenet, Berger focused most, however, on the question of what was to be done with Bin Ladin if he were actually captured. He worried that the hard evidence against Bin Ladin was still skimpy and that there was a danger of snatching him and bringing him to the United States only to see him acquitted," the report says, citing a May 1, 1998, Central Intelligence Agency memo summarizing the weekly meeting between Messrs. Berger and Tenet.
In June of 1999, another plan for action against Mr. bin Laden was on the table. The potential target was a Qaeda terrorist camp in Afghanistan known as Tarnak Farms. The commission report released yesterday cites Mr. Berger's "handwritten notes on the meeting paper" referring to "the presence of 7 to 11 families in the Tarnak Farms facility, which could mean 60-65 casualties."According to the Berger notes, "if he responds, we're blamed."
On December 4, 1999, the National Security Council's counterterrorism coordinator, Richard Clarke, sent Mr. Berger a memo suggesting a strike in the last week of 1999 against Al Qaeda camps in Afghanistan. Reports the commission: "In the margin next to Clarke's suggestion to attack Al Qaeda facilities in the week before January 1, 2000, Berger wrote, 'no.' "
In August of 2000, Mr. Berger was presented with another possible plan for attacking Mr. bin Laden. This time, the plan would be based on aerial surveillance from a "Predator" drone. Reports the commission: "In the memo's margin, Berger wrote that before considering action, 'I will want more than verified location: we will need, at least, data on pattern of movements to provide some assurance he will remain in place.' "
In other words, according to the commission report, Mr. Berger was presented with plans to take action against the threat of Al Qaeda four separate times — Spring 1998, June 1999, December 1999, and August 2000. Each time, Mr. Berger was an obstacle to action. Had he been a little less reluctant to act, a little more open to taking pre-emptive action, maybe the 2,973 killed in the September 11, 2001, attacks would be alive today.
It really doesn't matter now what was in the documents from the National Archives that Mr. Berger says he inadvertently misplaced. The evidence in the commission's report yesterday is more than enough to embarrass him thoroughly. He is a hardworking, warm man with a wonderful family, but his background as a trade lawyer and his dovish, legalistic and political instincts made him, in retro spect, the tragically wrong man to be making national security decisions for America in wartime. That Senator Kerry had Mr. Berger as a campaign foreign policy adviser even before the archives scandal is enough to raise doubts about the senator's judgment.
Neither Mr. Berger nor any other American is to blame for the deaths of Americans on September 11, 2001. The moral fault lies only with the terrorists, not with the victims. With the war still on, one can't help but to ponder who might best defend the country going forward, and how.
The commission's report contains plenty of other valuable information. Many of the recommendations — to move operations functions to the Department of Defense from the CIA, to speed the transition between administrations so that key defense positions are not left vacant, to stress "widespread political participation"in the Arab and Muslim world, to declassify the intelligence budget, to provide a written national security transition handover memo when administrations change — make sense.
Other aspects of the report, including the absence of serious recommendations for dealing with the terrorist threats from Syria or Iran, are harder to understand. The report is being taken seriously for its political ramifications for the Bush administration and for its policy recommendations. But perhaps its greatest value is as a history — more, a sad epitaph — of the Clinton-Berger administration.
Why was it Mr. Berger rather than President Clinton himself making all these judgment calls? As the report puts it, these decisions "were made by the Clinton administration under extremely difficult domestic political circumstances. Opponents were seeking the president's impeachment."
One can blame the special prosecutor law or Mr. Clinton for agreeing to name a special prosecutor, or one can blame the underlying reckless behavior by Mr. Clinton that got him into the "difficult domestic political circumstances." Or one can blame the Republican Congress. No matter what one's view of the underlying merits, it is hard to deny that one of the costs to the country was a preoccupied president. There's no guarantee that, in the absence of the scandal and the prosecutor, Mr. Clinton would have acted against Mr. bin Laden. But the chances would have been at least somewhat increased, and it would have been Mr. Clinton rather than Mr. Berger making the call.
The boldness of the president, in Justice Scalia's phrase, had been lost, and the man left in charge, Mr. Berger, was not up to it. When we think of the repairs that need to be made in the coming months, it is of this: The need to carry on our national politics with an eye to protecting the boldness of our leaders and particularly in a time of war. It is something to think about amid one of the bitterest, most adhominem political seasons in the history of the Republic.