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Context of '(Shortly After 9:56 a.m.) September 11, 2001: Bush and Cheney Confer; Bush Supposedly Gives Shootdown Authorization'

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Robert De La Cruz, a Justice Department lawyer, writes a detailed analysis that considers the legal issues that would be involved in shooting down an aircraft that was under the control of terrorists who intended to use it as a weapon. De La Cruz, a trial attorney with the Department of Justice Criminal Division’s Terrorism and Violent Crime Section (TVCS), apparently writes the analysis on his own initiative. He sends it to Cathleen Corken, the TVCS’s deputy chief for domestic terrorism. The 34-page document is titled “Aerial Intercepts and Shoot-Downs: Ambiguities of Law and Practical Considerations.” In it, among other things, De La Cruz discusses Article 3 bis of the Chicago Convention, a set of rules created after a Soviet fighter jet shot down Korean Airlines Flight 007, in 1983 (see September 1, 1983), which is “now considered to be international law.” He states that the “Federal Aviation Administration believes, or at least operates as if, Article 3 bis is binding upon the United States.”
Article States that Using Weapons against Civil Aircraft Should Be Avoided - De La Cruz notes that, according to the article, “The contracting states recognize that every state must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of the aircraft must not be endangered.” He also notes that “contracting states recognize that every state, in the exercise of its sovereignty, is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority [or] if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of this convention.” De La Cruz then describes what he considers three failures of Article 3 bis.
Action Is Only Permitted Once an Aircraft Has Entered a State's Airspace - The first problem is that the article “only permits a state to avail itself of the article’s provisions once the offending aircraft has entered the territorial airspace of the state.” If the aircraft was carrying a weapon of mass destruction, he explains, “awaiting territorial arrival of the aircraft may be too late.” In this scenario, if the aircraft was allowed to enter the “territorial airspace” of the state, “prevailing winds could theoretically spread an airborne-detonated biological weapon or chemical weapon onto the targeted state.”
Analysis Considers the Effects of a Plane Being Crashed into a Building - De La Cruz then states that this failure of the article could still apply if the offending aircraft was carrying no weapons. Significantly, in light of what will happen on September 11, 2001, he points out that this is because “the aircraft itself can be a potent weapon.” He considers the destruction that could result from a commercial airliner being crashed into a building, writing: “An airborne Boeing 747 can weigh in excess of 2 million pounds, retain structural integrity at flight speeds exceeding 500 miles per hour, and can carry many thousands of gallons of kerosene-based jet fuel. If used as a weapon, such an aircraft must be considered capable of destroying virtually any building located anywhere in the world.”
Article Fails to Authorize 'Deadly Force' against a Hostile Aircraft - The second problem with Article 3 bis, according to De La Cruz, is that it fails to specify what actions are permitted when an aircraft refuses to comply with instructions. While the article “requires states to make noncompliance punishable by ‘severe penalties,’” he writes, “it does not explicitly authorize the use of deadly force.”
Article Is Not Designed to Deal with Planes under the Control of Terrorists - The third failure De La Cruz describes regards “what actions are permissible when dealing with a terrorist-controlled, hijacked, or surreptitiously armed plane that is carrying a weapon of mass destruction to an intended target.” He notes, “Notwithstanding various works of fiction (see August 17, 1994), to date there are no reported actual incidents of a hijacked civil aircraft being deliberately and successfully used as a flying bomb.” All the same, he continues, “Article 3 bis was designed to protect otherwise legitimate civil aircraft that have wandered off course; it is not designed to deal with the issue of… a passenger airliner that has been deliberately converted for use as a kamikaze.” He concludes that the US should be prepared to shoot down a hostile aircraft, irrespective of what the article states. “It is certainly neither the policy nor intention of the United States to shoot down civil aircraft,” he comments, “but if necessity demands it we shall do it regardless of our formal or informal ratification of Article 3 bis.”
Document Will Be Called a 'Prescient Pre-9/11 Analysis' - It is unclear whether any action will be taken in response to De La Cruz’s analysis after the lawyer sends it to Corken. But the 9/11 Commission Report will call the document a “prescient pre-9/11 analysis of an aircraft plot.” [US Department of Justice, 3/30/2000; 9/11 Commission, 7/24/2004, pp. 346, 561] On September 11, senior government officials including the president and vice president will discuss the possibility of shooting down a hijacked commercial aircraft (see (Shortly After 9:56 a.m.) September 11, 2001, (Between 10:00 a.m. and 10:15 a.m.) September 11, 2001, (Between 10:00 a.m. and 10:20 a.m.) September 11, 2001, and 10:18 a.m.-10:20 a.m. September 11, 2001). [Washington Post, 1/27/2002; 9/11 Commission, 7/24/2004, pp. 40-41]

Entity Tags: Cathleen Corken, Robert De La Cruz

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Bush in a holding room before giving his speech. Communications director Dan Bartlett points to the TV, and the clock reads 9:25. 
Bush in a holding room before giving his speech. Communications director Dan Bartlett points to the TV, and the clock reads 9:25. [Source: White House]After leaving the Booker Elementary School classroom, President Bush returns to an adjacent holding room where he is briefed by his staff, and gets his first look at the footage of the burning World Trade Center on a television that has been set up there. He instructs his press secretary, Ari Fleischer, to take notes to create an accurate accounting of events. According to some accounts, he speaks on the phone with Vice President Dick Cheney who is at the White House, and they both agree that terrorists are probably behind the attacks. [Sammon, 2002, pp. 92-93; Daily Mail, 9/8/2002; 9/11 Commission, 7/24/2004, pp. 39] But White House adviser Karl Rove, who is also in the holding room, will later tell NBC News that Bush is unable to reach Cheney because the vice president is being moved from his office to the White House bunker at this time. [MSNBC, 9/11/2002] The president speaks with New York Governor George Pataki and FBI Director Robert Mueller. Bush learns from Mueller that the planes that hit the WTC were commercial American aircraft, and at least one of them had apparently been hijacked after leaving Boston. According to some accounts, Bush also speaks with National Security Adviser Condoleezza Rice around this time. However, Rice herself will later suggest otherwise (see (9:45 a.m.) September 11, 2001). [Sammon, 2002, pp. 93-94; Daily Mail, 9/8/2002; St. Petersburg Times, 9/8/2002; 9/11 Commission, 7/24/2004, pp. 39] Fleischer and White House communications director Dan Bartlett quickly draft a statement for the president to deliver in the school’s library, which Bush rewords, scribbling three sheets of notes. Bush will deliver this at 9:30 a.m. (see 9:30 a.m. September 11, 2001). While he works on the statement, Bush briefly glances at the unfolding horror on the television. Turning to his aides in the room, he declares, “We’re at war.” [Sammon, 2002, pp. 94; Albuquerque Tribune, 9/10/2002] According to the 9/11 Commission, the focus at the present time is on the president’s statement to the nation, and the only decision made by Bush’s traveling party is to return to Washington. [9/11 Commission, 7/24/2004, pp. 39] Bush will later claim that he makes no major decisions in response to the crisis until after Air Force One takes off at around 9:55 a.m. (see (Shortly After 9:56 a.m.) September 11, 2001). [Washington Post, 1/27/2002]

Entity Tags: George E. Pataki, Dan Bartlett, Condoleezza Rice, Richard (“Dick”) Cheney, George W. Bush, Ari Fleischer, Robert S. Mueller III, Karl C. Rove

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Counterterrorism “tsar” Richard Clarke, who is in the White House Situation Room, requests a fighter escort for Air Force One and authorization for the Air Force to shoot down threatening aircraft. According to Clarke’s own account, when they see President Bush starting his short speech from the Booker Elementary School library on television (at about 9:30), he and others in the Situation Room briefly discuss getting the president away from the school to somewhere safer. Clarke then telephones the Presidential Emergency Operations Center (PEOC) below the White House, which contains Vice President Dick Cheney and others. He speaks with Army Major Mike Fenzel and instructs him: “Mike, somebody has to tell the president he can’t come right back here [to Washington]. Cheney, Condi, somebody. Secret Service concurs. We do not want them saying where they are going when they take off. Second, when they take off, they should have fighter escort. Three, we need to authorize the Air Force to shoot down any aircraft—including a hijacked passenger flight—that looks like it is threatening to attack and cause large-scale death on the ground. Got it?” Fenzel replies, “Roger that, Dick, get right back to you.” This conversation appears to take place shortly before the Pentagon attack occurs, so roughly around 9:35 or 9:36, as soon afterwards Secret Service Director Brian Stafford slips Clarke a note stating that radar shows an aircraft heading their way (see (9:37 a.m.) September 11, 2001), and then Ralph Seigler, the Situation Room deputy director, reports an explosion having occurred at the Pentagon. [Clarke, 2004, pp. 6-7] However, it is unclear how long it takes for Clarke’s requests to be implemented. According to some accounts, fighters do not arrive to accompany Air Force One until an hour or more after it takes off (see (11:29 a.m.) September 11, 2001). Reports are also contradictory as to when shootdown authorization is given for the Air Force. According to Clarke’s own recollections, it is given between around 9:38 and 9:56 (see (9:38 a.m.) September 11, 2001 and (Between 9:45 a.m. and 9:56 a.m.) September 11, 2001). Other accounts, including that of the 9/11 Commission, state that it is not given until after 9:56, possibly as late as 10:20 (see (Shortly After 9:56 a.m.) September 11, 2001 and 10:18 a.m.-10:20 a.m. September 11, 2001).

Entity Tags: Richard A. Clarke, Mike Fenzel

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

According to one account, counterterrorism “tsar” Richard Clarke is given the go-ahead to authorize Air Force jets to shoot down threatening aircraft around this time. In late 2003, Clarke will recall to ABC News that, minutes earlier, he’d picked up the phone in the White House Situation Room and called Vice President Dick Cheney, who is in the Presidential Emergency Operations Center (PEOC) below the White House. He’d told him: “We have fighters aloft now. We need authority to shoot down hostile aircraft.” [ABC News, 11/29/2003] This call appears to be one Clarke also describes in his 2004 book Against all Enemies, though in that account he will describe having made his request to Army Major Mike Fenzel, who is also in the PEOC, rather than directly to Cheney. According to that account, the call occurred shortly before Clarke learns of the Pentagon attack, so roughly around 9:36 (see (Between 9:30 a.m. and 9:37 a.m.) September 11, 2001). [Clarke, 2004, pp. 6-7] Clarke describes to ABC News, “I thought that would take forever to get that [shootdown] authority.” But, “The vice president got on the phone to the president, got back to me, I would say within two minutes, and said, ‘Do it.’” [ABC News, 11/29/2003] If correct, this would mean the president authorizes military fighters to shoot down threatening aircraft at around 9:37-9:38. However, around this time, the president and vice president are reportedly having difficulty communicating with each other, while Bush heads from the Booker Elementary School to the Sarasota airport (see (9:34 a.m.-9:43 a.m.) September 11, 2001). [New York Times, 6/18/2004; Canadian Broadcasting Corporation, 9/10/2006] Furthermore, this account contradicts several others. In his 2004 book, Clarke will describe being told to inform the Pentagon it has shootdown authorization slightly later, some time between 9:45 and 9:56 (see (Between 9:45 a.m. and 9:56 a.m.) September 11, 2001). [Clarke, 2004, pp. 8] According to journalists Bob Woodward and Bill Sammon, Bush gives the shootdown authorization in a phone call with Cheney shortly after 9:56 (see (Shortly After 9:56 a.m.) September 11, 2001). [Sammon, 2002, pp. 102; Woodward, 2002, pp. 17-18; Washington Post, 1/27/2002] The 9/11 Commission will say he gives it in a call at 10:18 (see 10:18 a.m.-10:20 a.m. September 11, 2001). [9/11 Commission, 7/24/2004, pp. 41]

Entity Tags: Richard A. Clarke, Richard (“Dick”) Cheney

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Shortly after boarding Air Force One, President Bush speaks by phone with Vice President Dick Cheney for approximately 10 minutes. [Hayes, 2007, pp. 335-336] According to the 9/11 Commission, Cheney had reached the underground tunnel leading to the Presidential Emergency Operations Center (PEOC) below the White House at 9:37 a.m. (see (9:37 a.m.) September 11, 2001). He and the Secret Service agents escorting him had paused in an area of the tunnel with a secure phone and a television. He’d then asked to speak to the president, but it had taken a while for his call to be connected. However, elsewhere in its final report, the Commission will indicate that Bush, not Cheney, makes this phone call, saying that after he’d boarded Air Force One, the president “called the vice president.” [9/11 Commission, 7/24/2004, pp. 39-40] Cheney will later recall making “one phone call [to the president] from the tunnel. And basically I called to let him know that we [at the White House] were a target and I strongly urged him not to return to Washington right away, that he delay his return until we could find out what the hell was going on.” [Newsweek, 12/30/2001; 9/11 Commission, 7/24/2004, pp. 464] He will recall, “What I was immediately thinking about was sort of continuity of government.” [Hayes, 2007, pp. 335-336] According to notes made by White House press secretary Ari Fleischer, who is with the president on Air Force One, at about 9:45 a.m. Bush tells Cheney: “Sounds like we have a minor war going on here, I heard about the Pentagon. We’re at war… somebody’s going to pay.” [9/11 Commission, 7/24/2004, pp. 39 and 463; Fleischer, 2005, pp. 141] Bush instructs Cheney to call the congressional leadership and give them a briefing. [New Yorker, 9/25/2001] (However, around this time, Capitol Hill is being evacuated (see 9:48 a.m. September 11, 2001).) The 9/11 Commission will state that, according to “contemporaneous notes,” at 9:55 a.m. “the vice president [is] still on the phone with the president advising that three planes [are] missing and one had hit the Pentagon.” [9/11 Commission, 7/24/2004, pp. 40] In his book Against All Enemies, counterterrorism “tsar” Richard Clarke will indicate that it is around the time this call occurs that he is informed that the president has authorized the military to shoot down hostile aircraft (see (Between 9:45 a.m. and 9:56 a.m.) September 11, 2001). [Clarke, 2004, pp. 8] Yet various accounts of Bush and Cheney’s call will make no mention of the president and vice president discussing any orders or making any decisions. [Sammon, 2002, pp. 101; Woodward, 2002, pp. 16; 9/11 Commission, 7/24/2004, pp. 39-40; Hayes, 2007, pp. 335-336] Their call apparently ends around 9:56 a.m.-9:57 a.m., as, according to the 9/11 Commission, Cheney enters the PEOC “shortly before 10:00, perhaps at 9:58.” [9/11 Commission, 7/24/2004, pp. 40] (However, some accounts will indicate that he enters the PEOC significantly earlier than this (see (Shortly After 9:03 a.m.) September 11, 2001).) After hanging up, Bush turns to the men who are with him at his desk: his chief of staff Andrew Card, his senior adviser Karl Rove, military aide Lieutenant Colonel Tom Gould, and Fleischer. He tells them: “That’s what we’re paid for, boys. We’re gonna take care of this. When we find out who did this, they’re not gonna like me as president. Somebody’s going to pay.” [Sammon, 2002, pp. 101; Woodward, 2002, pp. 17] According to some accounts, shortly after finishing this call, the president and vice president will be back on the phone with each other (see (Shortly After 9:56 a.m.) September 11, 2001 and (Between 10:00 a.m. and 10:15 a.m.) September 11, 2001).

Entity Tags: George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

President Bush talks on the phone to Vice President Dick Cheney. Cheney recommends that Bush authorize the military to shoot down any plane that might be under the control of hijackers. “I said, ‘You bet,’” Bush later recalls. “We had a little discussion, but not much.” [USA Today, 9/16/2001; Newsday, 9/23/2001; Washington Post, 1/27/2002; CBS News, 9/2/2003] Bush recalls that this isn’t a difficult decision for him to make, “once I realized there was a protocol… because again, I now realized we’re under attack. This is a war.” According to journalists Bob Woodward and Bill Sammon, this call between Bush and Cheney takes place shortly after 9:56, when Air Force One took off from the Sarasota airport. [Sammon, 2002, pp. 102; Woodward, 2002, pp. 17-18; Washington Post, 1/27/2002] Consistent with this, Bush and Cheney will tell the 9/11 Commission that Bush gives the shootdown authorization during a call estimated to occur between about 10:00 and 10:15 (see (Between 10:00 a.m. and 10:15 a.m.) September 11, 2001). But the 9/11 Commission will say the authorization is given in a later call, at 10:18 (see 10:18 a.m.-10:20 a.m. September 11, 2001). [9/11 Commission, 7/24/2004, pp. 40-41] Bush later indicates that he doesn’t make any major decisions about how to respond to the attacks until after boarding Air Force One, which fits with these accounts of him approving shootdown authorization after take off. [White House, 12/4/2001; Wall Street Journal, 3/22/2004 pdf file] But according to counterterrorism “tsar” Richard Clarke, the authorization is given earlier, at some point between about 9:38 and 9:56 (see (9:38 a.m.) September 11, 2001 and (Between 9:45 a.m. and 9:56 a.m.) September 11, 2001). [ABC News, 11/29/2003; Clarke, 2004, pp. 8]

Entity Tags: George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Dick Cheney talking to Condoleezza Rice.Dick Cheney talking to Condoleezza Rice. [Source: David Bohrer / White House] (click image to enlarge)According to the 9/11 Commission, Vice President Dick Cheney is told that the Air Force is trying to establish a combat air patrol (CAP) over Washington. Cheney, who is in the Presidential Emergency Operations Center (PEOC) below the White House, then calls President Bush on Air Force One to discuss the rules of engagement for this CAP. Cheney later tells the 9/11 Commission that he’d felt “it did no good to establish the CAP unless the pilots had instructions on whether they were authorized to shoot if the plane would not divert.” He recalls that “the president signed off on that concept.” Bush will recall this phone call and emphasize to the 9/11 Commission that, during it, he had authorized the shootdown of hijacked aircraft. National Security Adviser Condoleezza Rice, who is in the PEOC with Cheney, will tell the Commission she recalls hearing Cheney inform the president: “Sir, the CAPs are up. Sir, they’re going to want to know what to do.” Then she hears Cheney say, “Yes sir.” However, as the Commission will later note, “Among the sources that reflect other important events that morning there is no documentary evidence for this call, although the relevant sources are incomplete” (see (Mid 2004)). [9/11 Commission, 7/24/2004, pp. 40-41] Reportedly, some members of the Commission’s staff will not believe this call between Bush and Cheney ever took place. [Newsweek, 6/20/2004] Cheney phones Bush at 10:18 (see 10:18 a.m.-10:20 a.m. September 11, 2001). According to the 9/11 Commission, it is in fact during that call that Bush authorizes the military to shoot down threatening aircraft. [9/11 Commission, 7/24/2004, pp. 41]

Entity Tags: 9/11 Commission, Richard (“Dick”) Cheney, Condoleezza Rice, George W. Bush

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

In a phone call with Vice President Dick Cheney, President Bush authorizes the military to shoot down hostile aircraft. Minutes earlier, in the Presidential Emergency Operations Center (PEOC) below the White House, a military aide had asked Cheney for the authority to engage what appeared to be an inbound aircraft, and Cheney had promptly given it (see (Between 10:10 a.m. and 10:15 a.m.) September 11, 2001). During a subsequent quiet moment, deputy White House chief of staff Josh Bolten, who is also in the PEOC, suggested to Cheney that he contact the president to confirm the engage order. Therefore at 10:18 a.m., according to White House logs, Cheney calls Bush, who is on board Air Force One, and speaks with him for two minutes. White House press secretary Ari Fleischer notes that at 10:20 a.m., Bush informs him that he has authorized the shootdown of aircraft, if necessary. According to the 9/11 Commission, “Fleischer’s 10:20 note is the first mention of shootdown authority.” [9/11 Commission, 7/24/2004, pp. 41 and 465] Bush’s senior adviser Karl Rove, who is also on Air Force One, gives a similar account, later telling NBC News that “at about 10:20,” Bush goes from his office into the private cabin in front of it, “and took a phone call, and came back in and said that he had talked to the vice president and to the secretary of defense and gave the authorization that [the] military could shoot down any planes not under control of their crews that were gearing critical targets.” [MSNBC, 9/11/2002] But other accounts indicate the president gives the shootdown authorization earlier than this. Bush and Cheney will claim that Bush gives the authorization during a call estimated to occur between about 10:00 and 10:15 (see (Between 10:00 a.m. and 10:15 a.m.) September 11, 2001). [9/11 Commission, 7/24/2004, pp. 40] Similarly, according to journalists Bob Woodward and Bill Sammon, Bush gives it in a call with Cheney soon after 9:56, when Air Force One takes off (see (Shortly After 9:56 a.m.) September 11, 2001). [Sammon, 2002, pp. 102; Woodward, 2002, pp. 17-18; Washington Post, 1/27/2002] Counterterrorism “tsar” Richard Clarke says it is given even earlier. He states that, at some point between about 9:38 and 9:56, he is instructed to tell the Pentagon it has authorization from the president to shoot down hostile aircraft (see (9:38 a.m.) September 11, 2001 and (Between 9:45 a.m. and 9:56 a.m.) September 11, 2001). [ABC News, 11/29/2003; Clarke, 2004, pp. 8]

Entity Tags: George W. Bush, Karl C. Rove, Richard (“Dick”) Cheney, Ari Fleischer

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

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