mfr nara- t3- dod- miller judith- 1-29-04- 00726

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Event: Interview of MillerType of Event: InterviewDate: January 29, 2004Prepared by: Bonnie D. JenkinsClassification: UnclassifiedTeam Number: 3 (Counterterrorism Policy)Location: 2100 K StreetParticipants - Non-Commission: Judith MillerParticipants - Commission: Bonnie Jenkins, Michael Hurley(U) Judith Miller was the General Counsel (GC) of the Department of Defense fromSeptember 1.994to November 1999.

and Policy Decision Making(U) Miller noted that the 1996 Khobar Towers bombing heightened the awareness of theDepartment of Defense (DOD) regarding terrorist issues. Force protection mattered agreat deal and had more policy visibility and emphasis as a result. The Oklahoma Citybombing was also a wake up call for the entire Executive Branch and it was impossiblenot to notice that there were many terrorist organizations targeting the U.S. governmentand U.S. interests.(U) Miller wanted the lawyers to sit in policy meetings and interact with policy makers toget a sense of where things were going on issues of significance, and to give advice earlyon if the policy issues had legal implications. Regarding the Under Secretary for Policy,Miller would have her Deputy GC for International Affairs routinely attend weeklymeetings of the Under Secretary.Miller would also get personally involved by being proactive. She would sit in on dailymeetings of the secretary. She also met daily with the Chairman's legal counsel.Regarding counterterrorism, that was not treated differently. The CounterterorismSecurity Group (CSG) was more ad-hoc, atleast at the beginning. Because it was new, ittook a while to get its institutional underpinnings going. On some issues, it was notpossible to track everything the CSG was doing. The group was designed by RichardClarke to move quickly. She had to rely on the lawyers group to see what they had heardand what they were working on at the time.(U) CSG actions had to go up the legal and operational chain of command. Many of theirideas, when bounced against policy experts or the Joint Staff who know the operationalissues, 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 CSGwas working very efficiently.

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(U) DoD/OGC involvement in operational decisions varied. For example,when thepresident authorized Desert Fox in late 1998, there had already been policy and legalreviews for many months. was viewed by some as a distraction from the ongoingimpeachment, but the Desert Fox decision was after months of interagency discussionsand prepared policy papers. The substantive legal analysis had already been largelyworked 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 UNsecurity counsel resolutions, there did not have to be much additional legal work. Ofcourse, the GC would review new legal issues. Sometimes there would be real-time legalanalysis if targets were being chosen daily.(U) Regarding UBL, Miller recalls that people were trying to figure out what UBL wasgoing to do and where he was.Response and not retaliation(U) Miller noted that when referencing the U.S. military response to the August 1998attacks 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 inthe pursuit of a country's interest in an appropriate way under international andapplicable domestic laws. In international law particularly, one of the first things learnedin Judge Advocate General's School is that it is not lawful and legitimate to use militarypower 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 instanceswhere Europeans were skeptical whether the doctrine.Collateral DamageOn 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 significantmilitary facility. There is also a question of proportionality. Sometimes innocent peoplemay be killed when going after a lawful target, and that has to be taken intoconsideration.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 isthe commander-in-chief of that country and is a strong player in the military commandstructure 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 'embassyattacks, and there is a debate regarding what CIA was authorized to do regarding BinLadin. Miller said she was on vacation at the time the decision was made to undertakeInfinite 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 fairlyspecific thoughts on an issue. Regarding MONs, the DoD lawyers would be involved


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(U) Miller did not recall much debate about DoD taking the lead in homeland defensebecause DOJ wanted to take the lead. However, it was obvious that there could be anemergency in the U.S. that would quickly overwhelm state and local governmentresources. DoD is often looked on in an emergency situation. So, DoD would have tobegin planning for consequence management. Secretary Cohen suggested, and thepresident agreed, that the way DoD had handled homeland emergencies in the past, whilejoint, needed to be more joint in nature. So Cohen established a task force (civil supportin 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 ajoint orientation for joint planning, exercising, experimentation, etc.

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u.S. Strategy against terrorismMiller noted that Cohen talked about the possibility of an anthrax attack early on in histenure. He was out and about speaking to his peers in other parts of the world arguing thatsuch an attack was possible and should be addressed. NATO had to take this seriouslyand the executive branch had to be more organized. By the time Miller left the GC, therewere regular interagency meetings focused on consequence management and proactivemeasures. There was a counterterrorism strategy, though she is not sure howcomprehensive it was.Lessons learned(U) Miller noted that the U.S. should bring many different types of expertise to bear oncounterterrorism efforts and get inside the minds of the terrorists, to try to determine whatthey will do next. Short term and long term solutions must be found.

mfr nara- t3- dod- miller judith- 1-29-04- 00726

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