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J O N E S DAY

51 LOUISIANA AVENUE, N.W. WASHINGTON, D.C. 20001-2113

STEPHEN J. BROGAN
MANAGING PARTNER

TELEPHONE: 202-879-3939
FACSIMILE: 202-626-1 7OO WRITER'S DIRECT NUMBER:

May 13, 2004

202-879-3926

Thomas H. Kean, Chairman National Commission on Terrorist Attacks Upon the United States 301 7th Street, SW Room 5125 Washington, DC 20407 Re: The El-Shifa Attack and the Paralysis of the U.S. Anti-Bin Laden Campaign Dear Mr. Chairman: We represent Salah Idris, the owner of the El-Shifa pharmaceutical plant in Khartoum which was destroyed on August 20,1998 by a volley of cruise missiles launched in response to the U.S. Embassy bombings of August 6, 1998 in Kenya and Tanzania. The plant was destroyed in the mistaken belief that it was a chemical weapons facility associated with Osama bin Laden. In fact, the El-Shifa facility was a technically unsophisticated pharmaceutical processing plant that packaged Pharmaceuticals imported in bulk from Europe into pills and syrups, supplying at that time over half of the antibiotics used in the impoverished country of Sudan. As the Commission knows, this event was followed by a blizzard of press reports criticizing the government's shifting justifications for the attack and the faulty intelligence on which it was based.1 Since the United States refused to acknowledge its mistake, this criticism continued through the end of the Clinton Administration. We write to supply additional information to the Commission about the government's reaction to that intelligence failure, including its inexplicable refusal to consider opportunities to learn the facts offered by Mr. Idris, and to note the contribution of these events to the 9/11 tragedy. ^ We believe that it is very important to consider the manner in whiln the United States reacted to this mistake, because the handling of the event left decision-makers, who had other opportunities to kill Osama bin Ladin prior to 9/11, in a defensive, risk-averse mode. The significance of the mistaken El-Shifa attack to the 9/11 tragedy is indicated in Staff Statement No. 6 on the Military, which concludes that: [t]he impact of the criticism lingered . . . as policy makers looked at proposals for new strikes. The controversy over the Sudan attacks, in particular, shadowed future discussions about the

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A selection of such reports appears at Tab 1.

ATLANTA IRVINE PARIS • •

BEIJING LONDON

• •

BRUSSELS

CHICAGO •

CLEVELAND •

COLUMBUS • MILAN

DALLAS • •

FRANKFURT • • MUNICH TAIPEI

• ••

HONG

KONG •

HOUSTON NEW Y O R K

LOS ANGELES •

MADRID •

MENLO PARK •

MUMBAI SYDNEY

NEW DELHI TOKYO •

PITTSBURGH

SAN FRANCISCO

SHANGHAI

SINGAPORE

WASHINGTON

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quality of the intelligence that would be needed about other targets.2 ' I I I I In response to Commissioner Fielding's inquiry on the impact of the El-Shifa criticism on the planning and use of military force, Secretary Cohen confirmed that this criticism contributed to a "poisonous atmosphere" hi which every subsequent exercise of military force — even a four-day bombing of Saddam Hussein's weapons facilities—was cynically construed as an attempt to serve the Administration's domestic political purposes.3 Secretary Cohen deplored the '"Wag the Dog' cynicism that was so virulent" at the end of the Clinton Administration.4 But this virulent criticism was not the inevitable result of President Clinton's political travails but of the shocking destruction of an apparently innocent pharmaceutical factory. Thus, while the attack on an al Qaeda camp in Afghanistan on August 20,1998 was generally applauded (despite its ineffectiveness), the destruction of El-Shifa unleashed a torrent of international and domestic criticism. The Commission has, of course, spent much of its effort exploring the failure of the United States to act on several other opportunities to target Osama bin Laden in the period after August 20,1998 and prior to September 11,2001. Staff Statement No. 6 ("The Military") focuses on three different occasions in 1998 and 1999 in which decision-makers failed to act on apparently reliable intelligence locating bin Laden. The various explanations for these failures offered by the Commission's witnesses reflect concern that this intelligence could again prove faulty and that a military strike might produce collateral damage and another embarrassing failure, hi light of the overwhelming and continuing criticism of the El-Shifa attack, the responsible decision-makers could ill-afford another mistaken use of the military. The "poisonous atmosphere" in which U.S. policy-makers found themselves after the ElShifa attack was, however, largely the result of their own persistent refusal to acknowledge that the decision to destroy this facility was a mistake. Though perhaps obvious in hindsight, the adverse impact of this event on U.S. policy and decision-making would plainly have been mitigated if the United States had simply acknowledged its error in a forthright manner and provided an appropriate remedy for the damage caused. International political damage could have been limited if the United States had just explained that it could tak|yio chances on chemical weapons and had acted in good faith, but it had made a mistak6*1aict would bear the costs of its actions, consistent with principles of international law. Such candor and fairness would also have silenced the' Vag the dog" critics complaining that the military had been used for political theater. A willingness to bear the political and financial consequences of admitting a
National Commission on Terrorist Attacks Upon the United States, Staff Statement No. 6: The Military 3 (2004). Panel III of the Eighth Public Hearing of the National Commission on Terrorist Attacks upon the United States, Subject: Formulation and Conduct of U.S. Counterterrorism Policy (Mar. 23, 2004) at 107-08 (testimony of former Secretary of Defense William Cohen).
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mistake might have put the issue to rest and restored the damaged credibility of the United States. This could in turn have enabled our decision-makers to exploit more aggressively subsequent opportunities to eliminate Bin Laden as a threat. The approach taken by the United States was not, however, to acknowledge a factual error and move forward but, rather, to sustain a debilitating and futile effort to justify the attack throughout the Clinton Administration. When the attack was first launched, Administration officials declared that the plant was producing a chemical used to produce nerve gas, that it was not a real pharmaceutical plant, and that it was owned by a Sudanese government entity and financed by Osama bin Ladin.5 All of these claims were ultimately abandoned by Administration officials.6 When the United States learned after the attack that El-Shifa was
5 Address to the Nation By President William J. Clinton (Aug. 20, 1998) ("Our forces also attacked a factory in Sudan associated with the Bin Laden network. The factory was involved in the production of materials for chemical weapons."); Statement by President William J. Clinton (Aug, 20, 1998) ("We also struck a chemical weapons-related facility in Sudan. Our target was the terrorists' base of operation and infrastructure."); Press Briefing by Secretary of Defense William S. Cohen (Aug. 20, 1998) ("What we do know is the facility that was targeted in Khartoum produced the precursor chemicals that would allow the production of a type of VX nerve agent . . . . * * * * We do know that [Bin Ladin] had some financial interests in contributing to this particular facility."); Department of Defense Background Briefing by Senior Intelligence Officials (Aug. 20, 1998) ("[W]e know that Bin Ladin has made financial contributions to the Sudanese military industrial complex. That's a distinct entity of which we believe the Shifa pharmaceutical facility is part. We know with high confidence that Shifa produces a precursor that is unique to the production of VX. * * * * We have . . . seen no commercial products that are sold out of this facility. The facility also has a secured perimeter and it's patrolled by the Sudanese military. It's an unusual pharmaceutical facility."); Coordinator for Counterterrorism, U.S. Department of State, "Fact Sheet: U.S. Strike on Facilities in Afghanistan and Sudan," United States Information Agency (Aug. 21,1998), available at http://usembassy-australia.state.gov/hyper/ WF980824/epfl 1 l.htm ("The U.S. is confident this Sudanese Government-controlled facility is involved in the production of chemical weapons agents."); Interview of National Security Advisor Sandy Berger, CNN Late Edition with Wolf Blitzer (Aug. 23,1998) ("There is no question hi our mind that [the El-Shifa] facility, that factory, was used to produce a chemical that is used in the manufacture of VX nerve gas and has no other commercial distribution as far as we understand."); Press Briefing by National Security Advisor Sandy Berger, (Sept. 18, 1998) ("[W]e know that [Bin Ladin] was a major financier of what is called the Military Industrial Corporation in Sudan, of which this plant is a part."). These statements appear at Tab 2.

For example, an "administration official" told the Washington Post that statejK6nts made the night of the attack claiming knowledge that the plant produced EMPTA were "inaccurate": "We n&jfcrj&d any evidence of that," the official said, "The correct statement, and it has been corrected, was that EMPTA was present at the plant." Vernon Loeb, U.S. Wasn 't Sure Plant Had Nerve Gas Role; Before Sudan Strike, CIA Urged More Tests, The Washington Post, Aug. 21,1999, at Al. Similarly, on September 2, 1998, Secretary of Defense Cohen admitted that when "the United States launched cruise missiles against [El-Shifa], it was unaware that the plant made medicines." Tim Weiner and Steven Lee Myers, U.S. Notes Gaps in Data About Drug Plant But Defends Attack; Sudan Envoy Is Angry, The New York Times, Sept. 3, 1998, at A6. Likewise, various U.S. government officials would later state that Bin Laden had no direct financial relationship to the El-Shifa plant. Id.; see also Barbara Crossette, Judith Miller, Steven Lee Myers and Tim Weiner, After the Attacks: The Overview; U.S. Says Iraq Aided Production Of Chemical Weapons in Sudan, The New York Times, Aug. 25, 1998, at Al; John Diamond, U.S. Intelligence Cites Iraqi Tie to Sudan Plant, The Associated Press, Aug. 25, 1998. The U.S. government also subsequently admitted that they did not know who owned the plant at the time of the attack. See, e.g., U.S. State Department Deputy Spokesman James B. Foley, State Department Noon Briefing (Aug. 23, 1999) ("[O]ur actions against the Al Shifa plant were not in any way predicated on that person's ownership of the plant. We only learned of his ownership of the plant after the strike."). The text of Mr. Foley's briefing appears at Tab 2.

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privately-owned by Salah Idris, the United States froze a bank account owned by Mr. Idris, while unidentified U.S. officials claimed to the press that Mr. Idris was a "front man or agent for bin Laden."7 After Mr. Idris filed a legal action to recover his funds, however, the United States unfroze his assets and has never listed him as a supporter of terrorism. Related claims that ElShifa was a secret, closely guarded military facility were also abandoned after they were refuted in the press by American and European citizens who were personally familiar with or had recently visited this modest plant.9 Nevertheless, those involved in the decision doggedly maintained ~ and still maintain with this Commission — that it was a correct decision, relying principally on evidence of a chemical contained in a soil sample reportedly provided by an Egyptian agent.10 This evidence — which apparently had been obtained several months before the attack11 -- was not, however, convincing to the CIA12 or (as the Commission's staff notes) to the NSC staff: "on August 11, the NSC staffs senior director for intelligence advised National Security Advisor Berger that the 'bottom line' was that 'we will need much better intelligence on this facility before we seriously consider any options'."13 After the attack, rather than taking steps to demonstrate its good faith, the United States added to the atmosphere of cynicism by blocking or ignoring external and internal efforts to investigate the event. Thus, the United States blocked an effort by the United Nations instigated by Sudan to investigate the incident.14 A subsequent effort by the Bureau of Intelligence and
Paul Richter, What U.S. Didn 't Know May Hurt Its Credibility; Intelligence on 'Terror Target' Not Quite Adding Up, The Toronto Star, Sept. 2, 1998, at A10. Department of Defense Background Briefing by Senior Intelligence Officials (Aug. 20, 1998) ("The facility also has a secured perimeter and it's patrolled by the Sudanese military.") (attached at Tab 2).
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Among these was a friend of President Clinton's, Bobby May, who had visited the plant with another American, Bishop H.H. Brookins, a few days before the attack, where they "walked around with no evident restrictions on their movement, as the employees packaged and bottled medicines, persuading him "that the President and his national-security adviser had somehow got it terribly wrong." Seymour M. Hersh, Annals of National Security: The Missiles of August, The New Yorker, Oct. 12, 1998. ^ Vernon Loeb, U.S. Wasn't Sure Plant Had Nerve Gas Role; Before Sudan Strike-; CIA Urged More Tests, The Washington Post, Aug. 21, 1999, at Al;see also Vernon Loeb, A Dirty Business; Because of a Cupful of Soil, the U.S. Flattened This Sudanese Factory, The Washington Post, July 25, 1999, at F01. Vernon Loeb, U.S. Wasn't Sure Plant Had Nerve Gas Role; Before Sudan Strike, CIA Urged More Tests, The Washington Post, Aug. 21, 1999, at Al.
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National Commission on Terrorist Attacks Upon the United States, Staff Statement No. 6: The Military 2-3 (2004). 14 E.g., Daniel Pearl, After the Bombings: The Difficult Search for 'Truth,' The Wall Street Journal, Oct. 28, 1998, at Al; Daniel Pearl, Sudan to Allow U.N. to Investigate Any Alleged Chemical-Arms Site, The Wall Street Journal, Oct. 16, 1998, at A13.

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Research in the State Department to prepare an after-action analysis of the event was terminated by Deputy Secretary Thomas Pickering.15 El-Shifa's owner, Mr. Idris, tried himself to make available to the United States the evidence needed to establish the innocence of this facility. To show that the chemical on which the government relied was never present at El-Shifa, Mr. Idris, through his U.S. lawyers, commissioned an extensive chemical analysis of the soil, debris and waste residue in and around the plant, supervised by a prominent Boston University professor (Prof. Thomas Tullius) with the help of internationally-recognized environmental engineers (Dames & Moore) and three leading laboratories recognized for their chemical weapons expertise (the TNO Prins Maurits Laboratory and SGS Laboratory Services in the Netherlands and Severn Trent Laboratories in the UK). Mr. Idris also hired the Kroll Associates, an investigative firm, to examine the alleged financial ties of the plant to bin Laden. The resulting evidence ~ which clearly refuted the allegations on which the United States had relied — was presented to the Department of Justice in May 1999.16 On September 13, 2001, two days after the 9/11 attacks, we gave the Justice Department another chance to investigate what happened at El-Shifa by offering to make Mr. Idris and personnel involved in the management and operation of the El-Shifa facility available for sworn depositions.17 We pointed out that particularly after the 9/11 attacks, the government should have a strong interest in learning the truth about the facility the government believed to be a chemical weapons factory associated with Osama Bin Laden. The government was not interested, however, in speaking to Mr. Idris or otherwise investigating the El-Shifa facility. The government's disinterest in El-Shifa even after 9-11 demonstrated that it understood, like the rest of the world, that El-Shifa was not involved with chemical weapons production or Al Qaeda. Because the United States was unable to acknowledge this, however, when the facts first become clear, criticism of the political motivation of the Clinton Administration's use of the military, which must have had a chilling effect on decision-making, remained intense during period when decision-makers should have been aggressively pursuing Osama bin Laden.
James Risen, Question of Evidence: A Special Report; To Bomb Sudan Plant,,,0r N.&t: A Year Later, Debates Rankle, The New York Times, Oct. 27, 1999, at Al. A copy of the submission to the Department of Justice appears at Tab 3. The testing supervised by Prof. Tullius found no evidence of either EMPTA (ethyl methylphosphonothioic acid), which the government claims to have found, or its hydrolysis breakdown product EMPA (ethyl methylphosphonic acid). Though EMPTA in the environment breaks down quickly (within days) into EMPA, EMPA is a stable compound that would have been found had EMPTA been present. Because EMPTA is so unstable in the environment, a senior inspector for the Organization for the Prohibition of Chemical Weapons did not find it credible that EMPTA could be isolated from an undoctored soil sample, even if El-Shifa had been manufacturing the chemical. See Seymour M. Hersh, Annals of National Security: The Missiles of August, The New Yorker, Oct. 12, 1998. The government's findings might be explained by the presence of certain organo-phosphorous pesticides that are chemically similar to EMPTA, which Prof. Tullius found to be present in soil near the El-Shifa plant. A copy of this letter appears at Tab 3.

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The Commission has recognized the need for self-evaluation of failures within the intelligence community. Thus, in Statement No. 11 on Intelligence, the staff finds that: [t]he [Intelligence] Community had no institutionalized process for learning from its successes and failures . . . We did not find an institution or culture that provided a safe outlet for admitting errors and improving procedures, (italics supplied)18 The El-Shifa incident demonstrates, however, not just the need for self-evaluation within the intelligence community, but the importance of honesty at the policy level concerning mistakes in intelligence collection and advice. The "poisonous atmosphere" which inhibited our government's ability to take action against Osama Bin Ladin after the El-Shifa attack could only have been remedied by a display of the courage that it takes to admit a mistake, move on and be effective thereafter. Instead, the government's officers have clung to unconvincing denials and rationalizations that could only make them hesitant, undercut their resolve and undo their effectiveness in performing such important responsibilities. We thank you for your consideration of this letter. We are prepared to provide you any additional information concerning the attack on the El-Shifa plant that could be helpful to fulfilling your important responsibilities and we request that you include this letter and its attachments as part of your official record. Sincerely yours,

Stephen J. Brogan Attachments cc: Philip Zelikow (w/ Attachments)

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National Commission on Terrorist Attacks Upon the United States, Staff Statement No. 11: The Performance of the Intelligence Community 12 (2004).