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The idea that the military would have been on top of things pre-9/11 only to be stopped by feckless Clinton Administration officials is a satisfying myth for American Hawks, but it does not stand up to scrutiny. No one fully appreciated the Al Qaeda threat, and, for a variety of institutional reasons, the military avoided domestic homeland defense up to the day of the 9/11 attacks, when NORAD tragicomically scrambled unarmed F-15 fighters to intercept a hijacked plane. I cited this report a long time ago on my blog but I’ll link to it again now because it is an excellent discussion of the various factors that led the military not to respond sufficiently to Al Qaeda in the 1990s. Of particular relevance to the recent allegation that we let Atta slip through the cracks is the following, a discussion of the culture of the Department of Defense during the years before 9/11:

Criminalization had a profound impact on the Pentagon, said General Schoomaker. It came to see terrorism as “not up to the standard of our definition of war, and therefore not worthy of our attention.” In other words, militaries fight other militaries. “And because it’s not war,” he added, “and we don’t act like we’re at war, many of the Defense Department’s tools are off the table.” The Pentagon’s senior leadership made little if any effort to argue against designating terrorism as a crime, Schoomaker added derisively.

“If you declare terrorism a criminal activity, you take from Defense any statutory authority to be the leader in responding,” a long-serving department official agreed. Whenever the White House proposed using SOF against terrorists, it found itself facing “a band of lawyers at Justice defending their turf.” They would assert, said
this old hand at special operations, that the Pentagon lacked authority to use force–and “lawyers in the Defense Department would
concur. They argued that we have no statutory authority because this is essentially a criminal matter.”. . . .

The department took the position that it lacked the authority [to use special forces] 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.

The feel-good 9/11 Commission that pointed few fingers at anyone, particularly in the DoD, decided to omit the little tidbit about Able Danger finding Atta but not telling the FBI a year before 9/11. It’s a glaring omissions to say the least. As for the heart of the story, though, I have to revise my initial condemnation of DoD lawyers. Could it be the “lawyers didn’t let us” line is a cop-out from an organization (and its leadership) that reflexively steered as clear from counterterorism operations as possible owing to a variety of institutional biases. This story and the covery story definitely call for a serious investigation.