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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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(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. Self-
defense 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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(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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