Environmental Law 101: Osama bin Laden, Eisenhower and Environmental Decision-making.

I have followed with interest the decision-making process related to the operation that led to the death of Osama bin Laden (OBL) in May 2011. The CIA did not know with certainty that OBL was in the strange-looking three story compound (with no phone or Internet service) in Abbottabad, Pakistan. It knew that three families lived there, that a tall man lived in the top story and that the third story patio was shielded so that a clear view could not be obtained of the inhabitant who used the patio. The CIA posted agents at a nearby location to observe the house; and satellites constantly watched. Yet the CIA concluded that there was only a 70%+ chance that OBL was there.

So decision-makers decided to bring in a “red team” for a further review. A “red team” is made up of experienced people with no knowledge of the matter which they are going to review—thus assuring an unbiased review. My experience with “red teams” is that they will, invariably, come in with more a cautious and more conservative evaluation because their duty is to avoid a mistake from being made, not to facilitate making a decision. They are perfectly happy if no decision is made because then they can’t be proven wrong. Whereas their role is valuable, their use raises interesting questions about how, and when, difficult decisions are made. In the case of OBL, the red team concluded that there was less than a 50% chance that OBL was in Abbottabad. That conclusion didn’t surprise me. The fact that OBL was in Abbottabad didn’t prove the red team was wrong because red teams are not charged with making decisions, just second-guessing tentative decisions made by others.

The fact is that, typically, a decision-maker is faced with a variety of imperfect choices. The task is to find the least-bad choice. I’ve practiced with fine attorneys who could never “pull the trigger” and make a decision because they relentlessly sought a perfect choice. The lack of a perfect choice meant that no choice should be made and that more searching for the Holy Grail should be done. Whereas I appreciate the analytical capability and importance of “issue spotters,” the reality is that there is rarely ever “enough” information at the time a decision is made to assure with certainty that the decision will be correct.

D-Day is an excellent example of having to make a major decision with imperfect information—based, in that case, on Mother Nature. General Eisenhower ordered the invasion to begin on June 4, 1944 with the landing scheduled for dawn the next day; but, after the initial troop ships were launched, they were recalled when bad weather arose. His aides and military colleagues argued around him throughout the night of June 4 and into the early morning of June 5 at which time Eisenhower decided Operation Overlord would be launched again that day with the invasion fleet reaching Normandy at dawn on June 6—twenty-four hours after the original target. The official announcement on the BBC the next morning was: “Under the command of General Eisenhower, Allied naval forces supported by strong air forces began landing Allied armies this morning on the northern coast of France.” To the troops, Eisenhower wrote: “You are about to embark upon the Great Crusade toward which we have striven these many months. The eyes of the world are upon you.” Independently, Eisenhower prepared a hand written note which read: “Our landings in the Cherbourg-Le Havre area have failed to gain a satisfactory foothold and I have had to withdraw our troops. My decision to attack at this point and at this moment were based on the most reliable evidence at my disposal. The army, the navy and the air force did all that bravery and devotion to duty could do. If any blame is attached to the event, it is mine alone.” Fortunately, that statement never had to be released, but what does that tell us about difficult decision-making based on the lack of perfect information, imperfect options and uncertainty? Was there ever any clearer demonstration that no decision is risk-free?

Takeaways: Environmental decision-making is no different than any other situation where difficult choices have to be made based on imperfect information and imperfect choices. Experienced leadership and counseling becomes critical at those points. Issue-spotting is important, but needs to include an understandable explanation of the advantages and disadvantages of each option. Discount the voices of those who benefit from not making an early decision; and ignore those whose only contribution is to point out that every option has drawbacks. Use a red team if you must, but know ahead of time that the biggest contribution it can make is to add something new to the discussion. Realize that no decision is risk free; and that waiting to make a decision until absolute certainty is determined is just as bad as making a decision based on insufficient information. The realistic goal is risk minimization and not risk elimination.