J O N E S DAY

51 LOUISIANA AVENUE, N.W.

WASHINGTON, D.C. 20001-2113

STEPHEN J. BROGAN TELEPHONE: 202-879-3939

MANAGING PARTNER 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.
^the United States
We believe that it is very important to consider the manner in whiln
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

1 A selection of such reports appears at Tab 1.

ATLANTA • BEIJING • BRUSSELS • CHICAGO • CLEVELAND • COLUMBUS • DALLAS • FRANKFURT • HONG KONG • HOUSTON
IRVINE • LONDON • LOS ANGELES • MADRID • MENLO PARK • MILAN • MUMBAI • MUNICH •- NEW DELHI • NEW Y O R K
PARIS • PITTSBURGH • SAN FRANCISCO • SHANGHAI • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHINGTON
 Chairman Thomas H. Kean J O N E S D AY
May 13, 2004
Page 2

quality of the intelligence that would be needed about other

targets.2
' 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
I "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
I 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
I destruction of an apparently innocent pharmaceutical factory. Thus, while the attack on an
I 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.
I •^i
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 El-
Shifa 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).
4 M a t 108.
Chairman Thomas H. Kean J O N E S DAY
May 13,2004
Page 3

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.
 Chairman Thomas H. Kean J O N E S DAY
May 13,2004
Page 4
•

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
I 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 El-
Shifa was a secret, closely guarded military facility were also abandoned after they were refuted
I in the press by American and European citizens who were personally familiar with or had
recently visited this modest plant.9

I 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
I 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
I Berger that the 'bottom line' was that 'we will need much better intelligence on this facility
before we seriously consider any options'."13

I 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
I 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
I Adding Up, The Toronto Star, Sept. 2, 1998, at A10.
Department of Defense Background Briefing by Senior Intelligence Officials (Aug. 20, 1998) ("The

I facility also has a secured perimeter and it's patrolled by the Sudanese military.") (attached at Tab 2).
Q
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
I 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. ^

1 10 **&
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.
I 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.
• UId.

National Commission on Terrorist Attacks Upon the United States, Staff Statement No. 6: The Military
2-3 (2004).
II 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.
I

I
Chairman Thomas H. Kean J O N E S D AY
May 13, 2004
Page 5

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.
 Chairman Thomas H. Kean J O N E S D AY
May 13, 2004
Page 6
I
I 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:
1 [t]he [Intelligence] Community had no institutionalized process
for learning from its successes and failures . . . We did not find an
I institution or culture that provided a safe outlet for admitting
errors and improving procedures, (italics supplied)18

I 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
I 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
I rationalizations that could only make them hesitant, undercut their resolve and undo their
effectiveness in performing such important responsibilities.

I 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
I attachments as part of your official record.

Sincerely yours,

Stephen J. Brogan
•

Attachments

cc: Philip Zelikow

(w/ Attachments)

1O

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