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Regarding President Bush’s decision not to return to Washington immediately after the 9/11 attacks, historian Robert Dallek tells a USA Today reporter: “Frankly, President Bush made an initial mistake. The president’s place is back in Washington” (see (9:45 a.m.) September 11, 2001, (9:45 a.m.-9:56 a.m.) September 11, 2001, and 10:02 a.m. September 11, 2001). Presidential historian Douglas Brinkley adds, “If I were Bush, I’d be in the White House right now, saying, ‘We took a hit at the Pentagon and had a disaster in New York, but the government of the United States is unscathed by this and we’re going to march forward.’” When Dallek’s words appear in print, White House political adviser Karl Rove calls Dallek to inform him that Bush did not return to Washington right away because of security threats to the White House (see (9:45 a.m.) September 11, 2001) and Air Force One (see (10:32 a.m.) September 11, 2001 and (4:00 p.m.) September 11, 2001). Rove provides no substantiation for his claims, and media critic Eric Alterman later asks, “If you think Air Force One is to be attacked (see (11:29 a.m.) September 11, 2001), why go up in Air Force One?” Looking back on Dallek’s assessment, New York Times columnist Frank Rich later writes, “September 11 was the first time since the British set fire to the White House in 1814 that a president abandoned the capital for security reasons.” [USA Today, 9/12/2001; Rich, 2006, pp. 24-25]
The Bundeskriminalamt (BKA), Germany’s federal anticrime agency, obtains a DNA sample for one of the 9/11 hijackers, alleged Flight 93 pilot Ziad Jarrah, after a search of the home of his girlfriend, Aysel Senguen. After the BKA sends the sample to the FBI, the bureau matches it with the DNA profile of one of four sets of unknown human remains recovered from the site in Shanksville, Pennsylvania, where Flight 93 crashed. According to an FBI report provided to the 9/11 Commission, presumably sometime between 2003 and 2004, no relatives of the alleged 9/11 hijackers provide the bureau with DNA samples for comparison. [Federal Bureau of Investigation, 2003]
FAA personnel are too busy after 9/11 to complete an after-action report on the agency’s response to the terrorist attacks. Mike Morse, an FAA national security coordination staffer, will later tell the 9/11 Commission: “No comprehensive after-action report was ever completed by the FAA. Everyone was working day and night on emergency measures. The potential for other attacks was real.” The official initially tasked with writing the report is Larry Bruno, the FAA’s security regulatory manager. But, according to Morse, Bruno finds it “impossible because people could not make time to cooperate.” Willie Gripper, the deputy director of civil aviation security operations at FAA headquarters, then tasks Morse with the assignment, but Morse says that accomplishing the task will require that higher level officials make it a priority. An attempt is made to complete a report around March or April 2002, but the creation of the Transportation Security Administration is underway at the time, and so it is “increasingly difficult to get all of the [FAA] principals in one place to discuss what happened and generate ‘lessons learned,’” according to Morse. [9/11 Commission, 9/15/2003, pp. 10 ; 9/11 Commission, 5/5/2004, pp. 5-6 ]
Michael Scheuer, former head of Alec Station, the CIA’s bin Laden unit (see February 1996), returns to the unit to serve as an adviser, but is not allowed to debrief detainees. Scheuer, who was fired from the unit in 1999 (see June 1999), remains with Alec Station until 2004, when he resigns from the CIA and authors Imperial Hubris, a book critical of the CIA and the US government’s fight against terrorism in general. He had finished his first book, Through Our Enemies’ Eyes, before 9/11, and it is released in 2002. He will later complain that he is given a job title but no official duties. Other CIA officers seek out his services, but these requests are blocked, apparently by James Pavitt, the Deputy Director of Operations. Scheuer comments: “The CIA knew that Through Our Enemies’ Eyes was respected by Islamists and that, as the author, I would be an effective debriefer. Mr. Pavitt, however, put burying my career above using me to elicit information to defend America.” [Scheuer, 2005, pp. 264; Scheuer, 2006, pp. xvii]
After the 9/11 attacks, the Bush administration seizes the new opportunities to expand the power of the presidency that present themselves as part of the government’s response to the attacks (see (After 10:00 a.m.) September 11, 2001). The Bush-Cheney legal team, largely driven by Vice President Dick Cheney and his staff (see January 21, 2001), aggressively pushes for new opportunities to expand executive branch authorities.
'Bravado,' 'Close-Minded Group of Like-Minded People' - A senior White House official later tells author and reporter Charlie Savage of the “pervasive post-9/11 sense of masculine bravado and one-upmanship when it came to executive power.” In Savage’s words, and quoting the official, “a ‘closed group of like-minded people’ were almost in competition with one another, he said, to see who could offer the farthest-reaching claims of what a president could do. In contrast, those government lawyers who were perceived as less passionate about presidential power were derided as ‘soft’ and were often simply cut out of the process” (see also September 25, 2001).
Suspicion of Oversight - “The lawyers for the administration felt a tremendous amount of time pressure, and there was a lot of secrecy,” the official will say. “These things were being done in small groups. There was a great deal of suspicion of the people who normally act as a check inside the executive branch, such as the State Department, which had the reputation of being less aggressive on executive power. This process of faster, smaller groups fed on itself and built a dynamic of trying to show who was tougher on executive power.”
Addington and Yoo: Outsized Influence - While nominally the leaders of the White House legal team are Attorney General John Ashcroft and White House counsel Alberto Gonzales, neither has as much influence as lawyers and staffers ostensibly of lower rank than themselves. Ashcroft is a vociferous supporter of the administration’s anti-terrorism policies, but is not a member of Bush’s inner circle and sometimes disagrees with the White House’s legal moves. Neither Ashcroft nor Gonzales have prior experience dealing with the legal issues surrounding executive power and national security. Two of the driving forces behind the White House’s push for more presidential power are Cheney’s chief counsel, David Addington, and an obscure deputy in the Office of Legal Counsel (OLC), John Yoo. Because of a dispute between Ashcroft and the Bush inner circle over who should lead the OLC, there is no official chief of the OLC until November 2002, leaving Yoo and his fellows free to be as aggressive as they like on expanding presidential power and handling the war on terrorism. When the OLC chief, law professor Jay Bybee, finally arrives, he, like Ashcroft and Gonzales, finds himself hampered by his lack of knowledge of the law as it pertains to national security. Savage will later write, “When he finally started work, Bybee let deputies continue to spearhead the review of matters related to the war on terrorism.” Yoo is only a deputy assistant attorney general, but he has “signing power”—the ability to make his opinion legally binding—and is rarely reviewed by his peers because much of his work is classified. [Savage, 2007, pp. 76-78] As for Addington, Lawrence Wilkerson, the chief of staff for Secretary of State Colin Powell, will later say that he was the leader of the small but highly influential group of lawyers “who had these incredible theories and would stand behind their principles [Cheney, Bush, and others], whispering in their ears about these theories, telling them they have these powers, that the Constitution backs these powers, that these powers are ‘inherent’ and blessed by God and if they are not exercised, the nation will fall. He’d never crack a smile. His intensity and emotions and passion for these theories are extraordinary.” [Savage, 2007, pp. 84]
Immediately after 9/11, the Taliban’s ambassador to Pakistan, Abdul Salam Zaeef, issues a statement to the media about the attacks. “We strongly condemn the events that happened in the United States at the World Trade Center and the Pentagon,” it reads. “We share the grief of all those who have lost their nearest and dearest in these incidents. All those responsible must be brought to justice. We want them to be brought to justice, and we want America to be patient and careful in their actions.” [Zaeef, 1/20/2010, pp. 144]
Congress explicitly refuses to grant the Bush administration the authority to conduct warrantless wiretaps and surveillance operations against US citizens in its resolution authorizing the use of military force (AUMF) against terrorists (see September 14-18, 2001). Tom Daschle (D-SD), the Senate Majority Leader, will write in December 2005 (after his ouster from Congress in November 2004) that the White House and the Justice Department will claim, falsely, that the AUMF grants the right for the NSA to conduct such a program (see Early 2002 and December 15, 2005). Instead, Daschle will write, the NSA merely usurps the authority, with the president’s approval, to conduct such an extralegal surveillance program (see December 21-22, 2005). [Washington Post, 12/22/2005]
Administration Efforts to Rewrite AUMF - In an op-ed for the Washington Post, Daschle will observe that the AUMF authorizes Bush “to use all necessary and appropriate force against those nations, organizations or persons” who “planned, authorized, committed or aided” the 9/11 attacks. But, Daschle will write, “Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.”
No Vote for Domestic Surveillance - Daschle will also write that the White House attempted to add draft language to the AUMF resolution that would give the administration new and sweeping authority to use force to “deter and pre-empt any future acts of terrorism or aggression against the United States,” even against nations and organizations not responsible for the 9/11 attacks. Bush officials such as Vice President Dick Cheney will claim that the AUMF “granted authority by the Congress to use all means necessary to take on the terrorists, and that’s what we’ve done.” But Daschle will write that Cheney is mistaken. “As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance.” On September 12, six days before the September 18 AUMF vote, Bush officials demand that Congress authorize the use of military force to, in their words, “deter and pre-empt any future acts of terrorism or aggression against the United States.” But Congress refuses, feeling that the request is “too broad and ill defined.” Instead, on September 14, Congress choses to use language that authorizes Bush to use “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the 9/11 attacks. Daschle later writes, “With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al-Qaeda.… The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration’s request for an unprecedented grant of authority.” Instead, Daschle will write, the administration simply takes the authority anyway, and will argue in hindsight that the AUMF actually gives the administration the right to wiretap US citizens. However, Daschle will write, “at the time, the administration clearly felt they [didn’t have the authority] or it wouldn’t have tried to insert the additional language.”
Breeding 'Fear and Suspicion' - He concludes, “[T]here are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans’ freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion. If the stories in the media over the past week are accurate [detailing the breadth and apparent illegality of the NSA program], the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president’s justification for them, and the administration should cooperate fully with that investigation. In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day. That is how a great democracy operates. And that is how this great democracy will defeat terrorism.” [Washington Post, 12/23/2005]
Shortly after the 9/11 attacks, the NSA expands surveillance operations, relying on its own authorities; some sources indicate this includes a massive domestic data mining and call tracking program, and some contend that it is illegal. In a 2006 public briefing, NSA Director Michael Hayden will say, “In the days after 9/11, NSA was using its authorities and its judgment to appropriately respond to the most catastrophic attack on the homeland in the history of the nation.” Following an October 1 briefing by Hayden to the House Intelligence Committee, Representative Nancy Pelosi (D-CA) will write to Hayden on October 11, saying, “[Y]ou indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance” (see October 11, 2001). Some evidence indicates NSA domestic surveillance began even before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [Nancy Pelosi, 1/6/2006; Michael Hayden, 1/23/2006]
No Connection to Bush-Authorized Warrantless Domestic Call Monitoring - In his 2006 remarks, Hayden will clearly distinguish between the expansion he initiates under his own authorities, and the warrantless monitoring of calls with one end outside the US authorized later by President Bush (see October 4, 2001), saying, “[E]xcept that they involved NSA, these [Hayden-authorized] programs were not related… to the authorization that the president has recently spoken about.” [Michael Hayden, 1/23/2006]
'Stellar Wind' Is Name of Hayden-Authorized Program - In 2012 interviews, former NSA official William Binney will indicate that “Stellar Wind” is the name of the surveillance program initiated by Hayden. [Wired News, 2/15/2012; Democracy Now!, 4/20/2012] Some sources will refer to the Bush-authorized eavesdropping as being part of the Stellar Wind program. [Newsweek, 12/22/2008]
Differing Views on Authority for Surveillance - In his 2006 briefing, Hayden will say the Fourth Amendment only protects Americans against “unreasonable search and seizure,” and that 9/11 changed what was to be considered “reasonable.” Specifically, if communications are believed to have “[i]nherent foreign intelligence value,” interception of these communications is reasonable. In addition to referring to Hayden’s “view of [his] authorities” as “expansive,” Pelosi’s letter will give another indication that the NSA’s new standard is significantly broader than it was previously, stating, “You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest.” Hayden will publicly clarify in 2006 that the authority for the NSA’s operational expansion exists under an Executive Order issued by President Reagan, saying, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” And, he will say, “I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities” (see October 1, 2001). In her October 11 letter, Pelosi will also write of having concerns about the program that haven’t been resolved due to restrictions on information-sharing with Congress imposed by Bush (see October 11, 2001). Binney, who pioneered the development of certain NSA data mining and surveillance technologies, will come to believe that what the NSA is doing is unconstitutional; he will first take his concerns to Congress (see Before October 31, 2001) and then resign on October 31 (see October 31, 2001). [Nancy Pelosi, 1/6/2006; Michael Hayden, 1/23/2006]
Surveillance Involves Domestic Communications - In his 2006 remarks, Hayden will not say the NSA is only targeting foreign communications under his post-9/11 authorization. Rather, the context of his remarks will indicate he is referring to domestic communications. More specifically, Hayden will state: “If the US person information isn’t relevant, the data is suppressed. It’s a technical term we use; we call it ‘minimized.’ The individual is not even mentioned. Or if he or she is, he or she is referred to as ‘US Person Number One’ or ‘US Person Number Two.’ Now, inherent intelligence value. If the US person is actually the named terrorist, well, that could be a different matter.” Hayden will also reveal that information is being passed to the FBI, an investigative agency with a primarily domestic jurisdiction, saying, “[A]s another part of our adjustment, we also turned on the spigot of NSA reporting to FBI in, frankly, an unprecedented way.” [Michael Hayden, 1/23/2006] One of Pelosi’s statements in her letter to Hayden may indicate an aspect of the domestic component: “You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest,” she will write. [Nancy Pelosi, 1/6/2006] In a 2011 interview with Jane Mayer published in the New Yorker, Binney will say the NSA was obtaining “billing records on US citizens” and “putting pen registers [call logs] on everyone in the country.” [New Yorker, 5/23/2011] And in a 2012 Wired article, NSA expert James Bamford will write that Binney “explains that the agency could have installed its tapping gear at the nation’s cable landing stations—the more than two dozen sites on the periphery of the US where fiber-optic cables come ashore. If it had taken that route, the NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US.” Binney’s account is supported by other sources (see October 2001). [Wired News, 2/15/2012]
Surveillance Program Is Massive - Bamford, citing Binney, will write: “Stellar Wind… included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts.” It is unclear exactly when this level of surveillance began. According to whistleblower AT&T employee Mark Klein, construction of secret rooms splitting communications traffic does not begin until Fall 2002 (see Fall 2002). Bamford will write that Binney says, “[T]he taps in the secret rooms dotting the country are actually powered by highly sophisticated software programs that conduct ‘deep packet inspection,’ examining Internet traffic as it passes through the 10-gigabit-per-second cables at the speed of light.” [Wired News, 2/15/2012] Also, Binney’s remark to Jane Mayer that the NSA was “putting pen registers on everyone in the country” indicates the broad scope of the program. [New Yorker, 5/23/2011]
Nizar Trabelsi. [Source: Daily Telegraph]Nizar Trabelsi, an al-Qaeda operative involved in numerous plots, is arrested in Brussels, Belgium. Police find machine pistols, chemical formulas for making bombs, detailed maps of the US embassy in Paris, and a business suit—it appears Trabelsi intended to walk into the embassy with the suit covering a suicide bomb vest and then detonate the explosives. The arrest is apparently due to information gleaned from Djamel Begham, a top al-Qaeda operative arrested in July (see July 24 or 28, 2001). Two of the plots Trabelsi is said to be involved in, an attack on a NATO base in Belgium and the attack on the US embassy in Paris, are thwarted. Trabelsi will later be found guilty in Belgium of planning the attack on the base (see September 30, 2003). [CNN, 10/3/2001] However, a third plot in which Trabelsi is involved—a plot to blow up two transatlantic airliners—is not thwarted. The plot is to be carried out by two al-Qaeda operatives who are in contact with Trabelsi around this time, Saajid Badat and Richard Reid. Reid returned to Europe from Asia in July or August (see July 2001), after which he stayed in Belgium with Trabelsi, who also found him work in hotel kitchens. Badat is also in contact with Trabelsi using phone cards, and analysis of them will help lead to his arrest some time later. The plot will fail when Badat backs out (see (December 14, 2001)) and Reid is unable to detonate the explosives before he is overpowered by fellow passengers and crew (see December 22, 2001). It is unclear why this third plot is not stopped as well after Trabelsi’s arrest. [O'Neill and McGrory, 2006, pp. 229-231] However, his arrest does lead to more arrests in Spain 13 days later (see September 26, 2001).
Mohamed el-Atriss produced fake ID cards for the 9/11 hijackers. [Source: Associated Press]Mohamed el-Atriss, who supplied some of the hijackers with fake IDs (see (July-August 2001)), is visited by FBI agents and begins to help them with their inquiries. [Washington Post, 2/5/2003; Newark Star-Ledger, 10/20/2003] El-Atriss turns over his files to the FBI and, according to his lawyer, promises to “keep his eyes and ears open” for other Islamic militants. He tells the FBI he did not know the hijackers’ intentions when he sold them the ID cards. [Bergen Record, 9/11/2006] He is interviewed extensively by federal authorities over the next few months and successfully passes a lie detector test confirming he did not know they intended to hijack a plane. [Newark Star-Ledger, 10/20/2003] However, authorities plant an electronic surveillance device inside a printer he orders, to monitor who he is making documents for. [Bergen Record, 9/11/2006] El-Atriss’ usefulness suffers a setback when a local sheriff raids his business and arrests him in 2002 (see July 31, 2002), apparently without the FBI’s approval (see July 31, 2002 and After).
A business card of Assem Jarrah, Ziad’s cousin. [Source: FBI]Several effects apparently belonging to Flight 93 hijackers are recovered from the crash site in Somerset County. They are:
A Saudi Arabian ID card of Ahmed Alnami; [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
A Saudi Arabian Youth Hostel Association card of Ahmed Alnami; [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
Two passport sized photographs of Ahmed Alnami; [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006; US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
A charred section of Ziad Jarrah’s passport; [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
Saeed Alghamdi’s Saudi Arabian passport; [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
A business card of Assem Jarrah, Ziad Jarrah’s second cousin (who allegedly has been a spy for three governments (see September 16, 2002)). It has Ramzi bin al-Shibh’s Hamburg address written on the back (see September 24, 2002); [US District Court for the Eastern District of Virginia, Alexandria Division, 3/7/2006; US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
Part of Ahmed Alnami’s Florida driving license; [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
A red bandana (a passenger on Flight 93 described the hijackers as using red bandanas, though this could have been someone else’s bandana (see (9:37 a.m.) September 11, 2001). [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006]
The American Society of Civil Engineers (ASCE) studies the crash of Flight 77 into the Pentagon and the building’s architectural response to the impact, blast, and subsequent fires. [American Society of Civil Engineers, 1/17/2003] The six-member Pentagon Building Performance Study team is headed by Lead Technical Director Paul F. Mlakar, and also includes Mete A. Sozen. Mlakar and Sozen had previously worked together on the Federal Emergency Management Agency (FEMA) investigation into the Oklahoma City bombing under W. Gene Corley, who is now assigned as FEMA/ASCE’s team leader for the World Trade Center investigation (see September 12, 2001). [Corley et al., 10/1997; Mlakar et al., 1/2003, pp. i ] Some aspects of the Oklahoma City investigation were controversial. [Guardian, 5/5/2001] Sozen is also tasked with “project conception” for Purdue University’s computer simulation of the Pentagon attack, images from which are also used in the Performance Report, when it is issued later (see January 23, 2003). [Purdue University Department of Computer Science, 9/11/2002] The Building Performance Study team only inspects the Pentagon on two occasions. Team leader Mlakar is granted “limited access” to the site for a week from September 14-21, and on October 4, “controlled access” is granted to the full team, which meets with Corley and inspects the site “for approximately four hours.” All airplane debris has been removed by this time, as well as most of the loose debris from the impact and collapse. Along with interviews and technical information provided by the Pentagon Renovation Project, the photos and data gleaned on these visits are the basis of the team’s analysis of the building’s response to the impact of Flight 77. The study is completed in April 2002, though the report will not be released for another nine months. [Mlakar et al., 1/2003, pp. 1, 18 ]
The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]
Entity Tags: US Department of Defense, Taliban, Scott Horton, Joint Chiefs of Staff, Richard (“Dick”) Cheney, David S. Addington, George W. Bush, John C. Yoo, Al-Qaeda, Authorization to Use Military Force (AUMF)
Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties
An employee of a company running an Internet-based airline reservation system alerts the FBI to unusual reservations made on American Airlines Flight 11. Seven individuals reserved seats in the early hours of September 11 through a Pakistani travel agency, but did not show up for the flight. The reservation records are anomalous in many respects. The reservations included four individuals with the last name of “Cooper” and three with the last name of “Norris,” but without a full first name, which is against company policy. The records contain no credit card information or telephone numbers, which is also against standard practice. In addition, the same passengers were also booked on another flight, going from Los Angeles to St. Louis, with a schedule incompatible with Flight 11’s. FBI investigators wonder if these “no show” reservations were part of the 9/11 plot. One theory is that the suspected hijackers and/or unknown associates purchased multiple tickets on the targeted flights in an attempt to ensure the number of passengers aboard each flight remained tactically manageable. A second theory is that the suspected hijackers specifically chose Flights 11 and 77 because they knew their passenger loads were typically low. But after inquiring with American Airlines, investigators establish that the average passenger loads for Flights 11 and 77 on Tuesdays were 38 percent and 26 percent respectively, whereas the passenger loads for Flights 11 and 77 on 9/11 were higher than normal, at 53 percent and 38 percent respectively. It is unclear whether the seven “no shows” are ever identified or if they and the travel agency are subsequently cleared of any terrorist connection. [Federal Bureau of Investigation, 2002] The FBI will also investigate no shows on the two United Airlines flights targeted on 9/11, without uncovering anything suspicious. [Federal Bureau of Investigation, 2002; Federal Bureau of Investigation, 2002]
A self-styled White House “war council” begins meeting shortly after the 9/11 attacks, to discuss the administration’s response to the attacks and the methods it will use (see (After 10:00 a.m.) September 11, 2001). The ad hoc group is composed of White House counsel Alberto Gonzales, Justice Department lawyer John Yoo, Pentagon chief counsel William J. Haynes, and the chief aide to Vice President Dick Cheney, David Addington. According to Jack Goldsmith, who will become head of the Justice Department’s Office of Legal Counsel (OLC) in 2003 (see October 6, 2003), the four believe that the administration’s biggest obstacle to responding properly to the 9/11 attacks is the body of domestic and international law that arose in the 1970s to constrain the president’s powers after the criminal excesses of Richard Nixon’s White House. Chief among these restraints is the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978). Though Addington tends to dominate the meetings with his imposing physical presence and aggressive personality, Yoo is particularly useful to the group; the head of the OLC, Jay Bybee (whom Goldsmith will replace) has little experience with national security issues, and delegates much of the responsibility for that subject to Yoo, even giving him the authority to draft opinions that are binding on the entire executive branch. Yoo agrees wholeheartedly with Addington, Gonzales, and Cheney about the need for vastly broadened presidential powers. According to Goldsmith, Yoo is seen as a “godsend” for the White House because he is eager to draft legal opinions that would protect Bush and his senior officials from any possible war crimes charges. However, Yoo’s direct access to Gonzales angers Attorney General John Ashcroft, who feels that the “war council” is usurping legal and policy decision-making powers that are legally his own. [New York Times Magazine, 9/9/2007] In 2009, Goldsmith will say, “[I]it was almost as if they [Cheney and Addington] were interested in expanding executive power for its own sake.” [Vanity Fair, 2/2009]
Entity Tags: Richard (“Dick”) Cheney, William J. Haynes, Richard M. Nixon, Office of Legal Counsel (DOJ), Jay S. Bybee, Jack Goldsmith, John C. Yoo, Bush administration (43), Foreign Intelligence Surveillance Act, Alberto R. Gonzales, David S. Addington
Timeline Tags: Civil Liberties
The “exit hole” in an inner wall of the Pentagon. [Source: Public domain]Various explanations are offered for the “exit hole” that appeared in an internal wall in the Pentagon following the attack on 9/11 (see May 3, 2002):
As the hole is near the end of the plane’s trajectory through the building, it is suggested it was made by a piece of the plane. Pentagon Renovation Program spokesman Lee Evey explains on September 15, “the nose of the plane just barely broke through the inside of the C Ring, so it was extending into A-E Drive a little bit.” [US Department of Defense, 9/15/2001]
Eleven days later, another military source claims that an engine of the plane was responsible for creating the hole. [MDW News Service, 9/26/2001]
Photos, video, and some eyewitness accounts agree on landing gear elements at or near the hole, indicating one of the three sets of landing gear may have been responsible. Sergeant First Class Reginald Powell recalls seeing “a big 8 by 10… hole in the wall. You could see the tire, the landing gear, were just forward of it.” [Office of Medical History, 9/2004, pp. 118] The book Debunking 9/11 Myths by Popular Mechanics magazine will say in 2006 that the density of the landing gear means it was “responsible for puncturing the wall in Ring C.” The book cites Air Force Surgeon General Paul Carlton Jr. and Paul Mlakar, lead author of the American Society of Civil Engineers’ (ASCE) Pentagon Building Performance Report, who says “he saw the landing gear with his own eyes.” [Dunbar and Reagan, 2006, pp. 70] A wheel hub is found outside the hole in the A-E Drive service roadway and photographed there. [Jeff Scott and Joe Yoon, 1/21/2007]
Another theory put forth in a 2004 National Geographic program is that reverberating shockwaves from the plane’s impact were responsible for the hole. [National Geographic Channel, 2004]
Shortly after the attack, rescue workers reportedly “punched a hole” somewhere in the Pentagon “to clean it out,” although there are no sources that say that this was the reason for the hole to the A-E Drive. [US Department of Defense, 9/15/2001] Some accounts refer to the hole as a ‘punch out’ hole, due to the words “punch out” spray painted near it after 9/11. [Mlakar et al., 1/2003, pp. 30 ] However, punch out appears to be a construction term referring to a list of problems to be corrected. In this case it may be a call for assessment of the damage inside. [Home Building Manual, 8/25/2007]
French author Thierry Meyssan claims that the unusual nature and shape of the hole indicates it was made by a missile, not an airliner (see Early March 2002). [Meyssan, 2002, pp. 55-63]
The 2008 book Firefight: Inside the Battle to Save the Pentagon on 9/11, by Patrick Creed and Rick Newman, will offer a description of the hole and how it was created that is strikingly similar to Meyssan’s earlier observations but without questioning the official account that Flight 77 crashed into the building. In its photo-insert, the book shows a photograph of the exit hole and comments: “The ‘punch-out’ hole blown into a wall where Flight 77 finally came to rest. The hole was created by explosive energy; the plane’s soft aluminum nose and fuselage crumpled the instant it struck the building.” The book also says in its description of the crash, “The 182,000-pound aircraft was morphing into an enormous mass of energy and matter, plowing forward like a horizontal volcanic eruption.” It continues, “As the mass traveled through the building, it began to resemble a shaped charge, a form of explosive that funnels its force into a small, directed area—like a beam of energy—in order to punch holes through armor or other strong material.” [Creed and Newman, 2008, pp. 27]
In addition, the ASCE team’s photo of the hole, and its assessment of the damaged support columns nearest to it, are provided by the FBI, suggesting the bureau has special jurisdiction at the exit hole. [Mlakar et al., 1/2003, pp. 30 ]
Lidar map of Ground Zero. [Source: EarthData/Library of Congress]EarthData, a geospatial imaging company, is tasked by New York authorities with producing maps of Ground Zero using “light detection and ranging” or “lidar” technology. Lidar is similar to radar but uses a laser light instead of radio waves to measure elevation. This information is then merged with GPS data to produce a color-coded map. EarthData will make daily flights over the area for several months starting mid-September to provide rescuers and removal workers with up-to-date representations of Ground Zero. [New York Times, 9/23/2001; New York Times, 10/2/2001] The Library of Congress will later present some of the maps in an online exhibit which also includes aerial photography and video fly-through simulations of the World Trade Center, both before and after the attacks. [www.loc.gov, 2004]
Vice President Dick Cheney is asked on NBC’s Meet the Press if the US has evidence that Saddam Hussein is harboring terrorists. Cheney responds: “There is—in the past, there have been some activities related to terrorism by Saddam Hussein. But at this stage, you know, the focus is over here on al-Qaeda and the most recent events in New York. Saddam Hussein’s bottled up, at this point, but clearly, we continue to have a fairly tough policy where the Iraqis are concerned.” [Meet the Press, 9/16/2001] When asked if the US has any evidence linking Hussein or any Iraqis to the attacks, Cheney replies, “No.” [NBC, 9/16/2001]
Mohamed al-Amir Awad al-Sayed Atta.
[Source: Family photo]Mohamed Atta’s father Mohamed al-Amir Awad al-Sayed Atta holds a press conference in Cairo and makes a number of surprising claims. He believes that the Mossad, Israel’s spy agency, did the 9/11 attacks, and stole his son’s identity. Al-Amir claims that his son Atta was a mama’s boy prone to airsickness, a dedicated architecture student who rarely mentioned politics, and a victim of an intricate framing. He says that Atta spoke to him on the phone on September 12 about “normal things,” one day after he was supposed to be dead; but a previous article reports that “he had not heard from his son since the attack, but was confident he had nothing to do with the carnage.” Atta called his family about once a month, yet never told them he was in the US, continuing to say he was studying in Germany. Atta’s family never saw him after 1999, and Atta canceled a trip to visit them in late 2000. His father even shows a picture of his son, claiming he looks similar but not the same as the terrorist Atta. [New York Times, 9/19/2001; Arab News, 9/19/2001; Chicago Tribune, 9/20/2001; Newsweek, 9/24/2001] Atta’s father claims that “he has recently received a very loving letter from his son, in which the young man wrote that he would come to Egypt to get married.” [BBC, 9/18/2001] Concerning the flying skills of this son, he asks, “Did he ever learn to fly? Never. He never even had a kite.” Moreover, “He was afraid of flying.” [New York Times, 9/19/2001; Newsweek, 9/24/2001] He also says that the man pictured in published photos from an airport surveillance camera had a heavier build than his son (see (Between 5:45 a.m. and 5:53 a.m.) September 11, 2001). [Cairo Times, 9/20/2001] A year later, he still believes his son is alive. He again reiterates this statement at the third anniversary of the 9/11 attacks. [Guardian, 9/2/2002; Associated Press, 9/11/2004] But, fours years later, he makes a statement (see July 19, 2005) which can be viewed as a tacit acceptance that his son was involved. [CNN, 7/20/2005]
A private plane picks up Saudis who have gathered in Boston and flies them to Paris, then ultimately to Jeddah, Saudi Arabia. Because most of the passengers on board are relatives of Osama bin Laden, the 9/11 Commission calls this the “so-called bin Laden flight.” The commission claims there are 26 passengers on board, three of them security personnel. They further report that “22 of the 26… were interviewed by the FBI. Many were asked detailed questions.” However, the commission does not answer how many were not asked detailed questions, or were not questioned at all. [9/11 Commission, 7/24/2004, pp. 557] However, Craig Unger, author of the book House of Bush, House of Saud, publishes the flight manifest during the same week as the 9/11 Commission’s final report is released, and this list contains 29 names (including the three security personnel), not 26. [Craig Unger website, 7/22/2004] The 2005 book Al-Qaeda Will Conquer by Guillaume Dasquié also makes note of this three-person discrepancy. [Financial Times, 4/27/2005]
In a memo, responding to a request from Deputy White House Counsel Timothy E. Flanigan, Justice Department lawyer John C. Yoo provides legal advice on “the legality of the use of military force to prevent or deter terrorist activity inside the United States.” He addresses the question of how the Fourth Amendment to the US Constitution applies to the use of “deadly force” by the military “in a manner that endangered the lives of United States citizens.” The Fourth Amendment requires the government to have some objective suspicion of criminal activity before it can infringe on an individual’s liberties, such as the right to privacy or the freedom of movement. Yoo writes that in light of highly destructive terrorist attacks, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” If the president determines the threat of terrorism high enough to deploy the military inside US territory, then, Yoo writes, “we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.” [New York Times, 10/24/2004] A month later, the Justice Department will issue a similar memo (see October 23, 2001).
Ali Ahmeti, the leader of the National Liberation Army (NLA), announces that the NLA has been dissolved. Despite this, there will be continued fighting around Tetova throughout 2002 and half way through 2003. It is widely believed that the 9/11 attacks dealt a serious blow to Albanian militancy, because the USA and NATO are preoccupied elsewhere and are more concerned about terrorism. The Bush administration is also considered less pro-Albanian than the Clinton administration was. [Kola, 2003, pp. 381; Phillips, 2004, pp. 177]
In an op-ed column for the neoconservative Weekly Standard, writers Thomas Donnelly and Gary Schmitt state that the US’s enemies “want to push the United States out of the Middle East. Our response must be to prevent that.” Donnelly and Schmitt, members of the Project for the New American Century think tank (PNAC—see January 26, 1998 and September 2000), say that such an effort “will require more than a vague, unfocused ‘war on terrorism.‘… Last week’s strikes represent a new and more complex phase of this war. But this is not a new war. This is a ‘theater war’ in the classic sense. Neither [O]sama bin Laden nor Saddam [Hussein] cares much about America’s role in Europe or East Asia. They want us out of their region.”
Reasserting Dominance in Middle East - The US can win this “struggle for power in the Persian Gulf” by “reasserting our role as the region’s dominant power; as the guarantor of regional security; and as the protector of Israel, moderate Arab regimes, and the economic interests of the industrialized world.” Donnelly and Schmitt trace the US’s problems in the region back to the decision not to overthrow Hussein in 1991 (see January 16, 1991 and After). “As Saddam has crawled back from defeat,” they write, “bin Laden has grown increasingly bold. Meanwhile, our regional allies have begun to hedge their bets, not only with the terrorists and Iraq, but with Iran as well.” The US should focus on routing both bin Laden and Hussein from the region, they say. It is unclear if Hussein was involved in the 9/11 attacks, they say, though they assert that Hussein was “implicated in the 1993 World Trade Center bombing (see February 26, 1993 and October 2000).… But as with bin Laden, we have long known that Saddam is our enemy, and that he would strike us as hard as he could. And if we have learned anything at all from [the] past week, it is that adopting a defensive posture risks attacks with unacceptable consequences. The only reasonable course when faced with such foes is to preempt and to strike first.” Overthrowing Hussein “is the key to restoring our regional dominance and preventing our enemies from achieving their war aims.… When Bush administration officials speak of ‘ending’ regimes that participate in the war against America, they must mean Saddam Hussein’s Iraq” (see Before January 20, 2001).
Cowing Other Nations, Restoring 'Global Credibility' - Overthrowing the Iraqi government will also cow Iran, Syria, and other regional threats, the authors say, and “will restore the global credibility tarnished in the Clinton years. Both our friends and our enemies will be watching to see if we pass this test.” Although attacking Afghanistan is not necessary, toppling the Saddam regime will not be difficult in a military sense, and “the larger challenge will be occupying Iraq after the fighting is over.”
Surpluses Will Pay for Effort - The so-called “lockboxes”—Social Security funds and others—previously kept from being spent on other government programs are, the authors write, “yesterday’s news,” but the sharp increases in defense spending that this war effort will require will not be difficult to fund: “given the surpluses that exist, there is no impediment to such increases.” [Weekly Standard, 9/24/2001]
New York City Mayor Rudolph Giuliani bans any photography or video recording at the Ground Zero wreckage zone of the WTC collapses unless authorized by the police commissioner, claiming this is because it is a crime scene. Signs warn the public of a class-B misdemeanor and police keep the press away from the site. [Associated Press, 9/26/2001] It is unclear how long the ban lasts, but it seems to continue into 2002 (see From September 25, 2001 to Summer 2002).
After unauthorized photography at Ground Zero is banned by New York City authorities on September 25, 2001 (see September 25, 2001), independent or press-affiliated photographers find it difficult to enter the secured perimeter. Only one professional photographer, Gary M. Suson, obtains official permission to work at the site. He will publish his work in the book Requiem: Images of Ground Zero. [Suson, 2002; New York Times, 5/28/2002] Photographs taken by New York Police officers will be gathered in the book Above Hallowed Ground: A Photographic Record of September 11, 2001. [Department, 2002] Joel Meyerowitz, a renowned independent photographer, is unable to obtain permission but manages to insert himself into “the forbidden city”. Wily and persistent, Meyerowitz makes friends among some police officers, acquires a hard hat and some gloves to look inconspicuous, and even forges a work permit on his home computer, and succeeds in photographing Ground Zero over a period of nine months. He will later publish this invaluable record in the 2006 book Aftermath: World Trade Center Archive. [Meyerowitz, 2006; Observer, 8/27/2006; New York Times, 9/3/2006]
John Yoo, a deputy assistant attorney general in the Department of Justice (DOJ) Office of Legal Counsel (OLC), issues a legal opinion that says the US can conduct electronic surveillance against its citizens without probable cause or warrants. According to the memo, the opinion was drafted in response to questions about whether it would be constitutional to amend the Foreign Intelligence Surveillance Act (FISA) to state that searches may be approved when foreign intelligence collection is “a purpose” of the search, rather than “the purpose.” Yoo finds this would be constitutional, but goes further. He asserts that FISA is potentially in conflict with the Constitution, stating, “FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards.” Citing Vernonia School Dist. 47J v. Acton, in which the Supreme Court found that warrantless searches of students were permissible, Yoo argues that “reasonableness” and “special needs” are also the standards according to which warrantless monitoring of the private communications of US persons is permissible. According to Yoo, the Fourth Amendment requirement for probable cause and warrants prior to conducting a search pertain primarily to criminal investigations, and in any case cannot be construed to restrict presidential responsibility and authority concerning national security. Yoo further argues that in the context of the post-9/11 world, with the threat posed by terrorism and the military nature of the fight against terrorism, warrantless monitoring of communications is reasonable. Some information indicates the NSA began a broad program involving domestic surveillance prior to the 9/11 attacks, which contradicts the claim that the program began after, and in response to, the attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [US Department of Justice, 9/25/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009; Inspectors General, 7/10/2009]
Yoo Memo Used to Support Legality of Warrantless Surveillance - Yoo’s memo will be cited to justify the legality of the warrantless domestic surveillance program authorized by President Bush in October 2001 (see October 4, 2001). NSA Director General Michael Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.” The various post-9/11 NSA surveillance activities authorized by Bush will come to be referred to as the President’s Surveillance Program (PSP), and the first memo directly supporting the program’s legality will be issued by Yoo on November 2, 2001, after the program has been initiated (see November 2, 2001). Many constitutional authorities will reject Yoo’s legal rationale. [Michael Hayden, 1/23/2006]
Yoo Memo Kept Secret from Bush Officials Who Might Object - According to a report by Barton Gellman and Jo Becker in the Washington Post, the memo’s “authors kept it secret from officials who were likely to object,” including ranking White House national security counsel John Bellinger, who reports to National Security Adviser Condoleezza Rice. Bellinger’s deputy, Bryan Cunningham, will tell the Post that Bellinger would have recommended having the program vetted by the Foreign Intelligence Surveillance Court, which oversees surveillance under FISA. Gellman and Becker quote a “senior government lawyer” as saying that Vice President Dick Cheney’s attorney, David Addington, had “open contempt” for Bellinger, and write that “more than once he accused Bellinger, to his face, of selling out presidential authority for good ‘public relations’ or bureaucratic consensus.” [Washington Post, 6/24/2007]
Entity Tags: US Department of Justice, John Bellinger, National Security Agency, Bryan Cunningham, Condoleezza Rice, David S. Addington, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Office of Legal Counsel (DOJ), John C. Yoo, George W. Bush, Richard (“Dick”) Cheney
Timeline Tags: Civil Liberties
Six radical Algerians are arrested in Spain based on evidence uncovered in a Belgian investigation. The men are Mohamed Boualem Khnouni, who is identified as the cell leader, Hakim Zezour, Hocine Khouni, Yasin Seddiki, Madjid Sahouane, and Mohamed Belaziz. The Belgian investigation included the arrest of al-Qaeda operative Nizar Trabelsi (see September 13, 2001), said to be involved in several terrorist plots. Spanish Interior Minister Mariano Rajoy says that Trabelsi’s detention is “directly related” to the arrest of the six Algerians, said to be members of Salafist Group for Preaching and Combat (GSPC). The six have been under police surveillance for some time. The Spanish say that the cell sent optical, communications, computer, and electronic equipment to GSPC members in Algeria as well as making shipments to Chechnya. It also forged official documents and credit cards. In addition, the police seize false papers from several countries, as well as computer equipment used to forge airline tickets between Spain, France, and Algeria. [New York Times, 9/27/2001; Washington Post, 9/28/2001]
Mohamed Abdi, a 44-year-old Somali immigrant whose phone number was found in a car belonging to one the 9/11 hijackers, is detained without bail in Alexandria, Va. On September 12, 2001, FBI investigators discovered a car registered to 9/11 hijacker Nawaf Alhazmi at Dulles Airport (see September 11-13, 2001). In the car, they found a Washington-area map with the name “Mohumad” and a Virginia phone number belonging to Mohamed Abdi. At the court hearing, an FBI investigator says that Abdi has not explained the finding and is suspected of being linked to the hijackers. FBI Special Agent Kevin W. Ashby also testifies that an article on Ahmed Ressam was found in Abdi’s clothing. Ressam was convicted of trying to bomb Los Angeles Airport in 2000 (see December 14, 1999). According to press reports, Abdi is not cooperating with police. He came to the United States in 1993 as a refugee. He later brought his wife and four children to the US and obtained US citizenship. Shortly after his arrival, Abdi worked for Caterair, a food service company at Reagan National Airport. At the time of his arrest, Abdi had been working as a low-paid security guard for Burns Security for seven years. Burns does not provide airport security services, however, a Burns subsidiary called Globe Aviation Services provides screening services at several US airports, including the American Airlines concourse at Boston’s Logan Airport, from which one of the hijacked flights took off (see October 10, 2001). Abdi, who has had financial difficulties for some time, is charged with check forgery. He is accused of forging his landlord’s signature to obtain a government housing subsidy. No terrorism charges are filed. [US District Court Eastern District of Virginia, 9/23/2001 ; Washington Post, 9/27/2001 ; Human Events, 10/15/2001; Human Events, 10/15/2001] In January 2002, Abdi will receive a four-month sentence for forgery. Any link he may have had with the hijackers will remain unclear. [Washington Post, 1/12/2002]
Security is extremely poor at USAMRIID, the Fort Detrick, Maryland, laboratory linked to the 2001 anthrax attacks, as well as other bio-weapons facilities, in the years prior to the anthrax attacks. The security flaws are documented in two reports that will be completed in 2002. One report will be produced by Sandia National Laboratories, which focused on USAMRIID, and the other by the US Army Inspector General’s office, which examined security at Fort Detrick, as well as other locations, including Battelle Memorial Institute. The existence of these reports will first be disclosed in a joint news report by McClatchy Newspapers, ProPublica, and PBS’s Frontline. According to the McClatchy/ProPublica/PBS article, the reports “describe a haphazard system in which personnel lists included dozens of former employees, where new hires were allowed to work with deadly germs before background checks were done, and where stocks of anthrax and other pathogens weren’t adequately controlled.” Additionally, “The existing security procedures… were so lax they would have allowed any researcher, aide, or temporary worker to walk out of the Army bio-weapons lab at Fort Detrick, Md., with a few drops of anthrax.” The FBI will later claim to have identified, and eliminated as suspects, 419 people at Fort Detrick and other locations who either had access to the lab where Bruce Ivins worked, or who had received samples from anthrax flask RMR-1029. The FBI and Justice Department will claim that RMR-1029 was the source of the anthrax used in the attacks, and that Ivins was the sole perpetrator of the attacks (see August 6, 2008). Both of these claims will be called into question (see August 1-10, 2008, August 3-18, 2008, August 5, 2008, August 9, 2008, April 22, 2010, and February 15, 2011). [Propublica, 10/24/2011]
Former AT&T employee Mark Klein. [Source: PBS]The National Security Agency, as part of its huge, covert, and possibly illegal wiretapping program directed at US citizens (see Spring 2001 and After September 11, 2001), begins collecting telephone records of tens of millions of Americans, using data provided by telecommunications firms such as AT&T, Verizon, and BellSouth (see February 5, 2006). The media will not report on this database until May 2006 (see May 11, 2006). The program collects information on US citizens not suspected of any crime or any terrorist connections. Although informed sources say the NSA is not listening to or recording actual conversations, the agency is using the data to analyze calling patterns in an effort to detect terrorist activity. “It’s the largest database ever assembled in the world,” says one anonymous source. The NSA intends “to create a database of every call ever made.” As a result, the NSA has detailed records of the phone activities of tens of millions of US citizens, from local calls to family and friends to international calls. The three telecommunications companies are working with the NSA in part under the Communications Assistance Act for Law Enforcement (CALEA) (see January 1, 1995 and June 13, 2006) and in part under contract to the agency.
Surveillance Much More Extensive Than Acknowledged - The wiretapping program, which features electronic surveillance of US citizens without court warrants or judicial oversight, is far more extensive than anything the White House or the NSA has ever publicly acknowledged. President Bush will repeatedly insist that the NSA focuses exclusively on monitoring international calls where one of the call participants is a known terrorist suspect or has a connection to terrorist groups (see December 17, 2005 and May 11, 2006), and he and other officials always insist that domestic calls are not monitored. This will be proven false. The NSA has become expert at “data mining,” sifting through reams of information in search of patterns. The warrantless wiretapping database is one source of information for the NSA’s data mining. As long as the NSA does not collect “personal identifiers”—names, Social Security numbers, street addresses, and the like—such data mining is legal. But the actual efficacy of the wiretapping program in learning about terrorists and possibly preventing terrorist attacks is unclear at best. And many wonder if the NSA is not repeating its activities from the 1950s and 1960s, when it conducted “Operation Shamrock” (see 1945-1975), a 20-year program of warrantless wiretaps of international phone calls at the behest of the CIA and other intelligence agencies. Operation Shamrock, among other things, led to the 1978 passage of the Foreign Intelligence Surveillance Act (see 1978). [USA Today, 5/11/2006] In May 2006, former NSA director Bobby Ray Inman will say, “[T]his activity is not authorized” (see May 12, 2006). [Democracy Now!, 5/12/2006]
Secret Data Mining Center - In May 2006, retired AT&T technician Mark Klein, a 22-year veteran of the firm, will file a court affidavit saying that he saw the firm construct a secret data-mining center in its San Francisco switching center that would let the NSA monitor domestic and international communications (see January 2003). And former AT&T workers say that, as early as 2002, AT&T has maintained a secret area in its Bridgeton, Missouri, facility that is likely being used for NSA surveillance (see Late 2002-Early 2003).
Domestic Surveillance Possibly Began Before 9/11 - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).
Entity Tags: Terrorist Surveillance Program, Verizon Communications, Mark Klein, George W. Bush, AT&T, BellSouth, Central Intelligence Agency, Communications Assistance for Law Enforcement Act (CALEA), Foreign Intelligence Surveillance Act, Qwest, National Security Agency
Timeline Tags: Civil Liberties
Ayaad Assaad. [Source: Salon]Three days before the anthrax attacks are first made public, a letter is received by the FBI in Quantico, Virginia, warning that Dr. Ayaad Assaad, employed until 1997 (see May 9, 1997) as an anthrax researcher at USAMRIID, the US Army’s top bioweapons laboratory at Fort Detrick, Maryland, is a “‘a potential terrorist,’ with a grudge against the United States and the knowledge to wage biological warfare against his adopted country.” This is the latest in a series of verbal attacks against Assaad since the early 1990s, which includes anonymous, long hateful and derogatory poems about him (see 1991-1992). The author of the letter says he is a former colleague of Assaad. The letter seems like a not-very-subtle attempt to frame Assaad for the anthrax attacks about to come. The letter strongly suggests the attacks could have been by someone at USAMRIID with a long time grudge against Assaad. [Hartford Courant, 12/9/2001; Salon, 1/26/2002] The FBI questions Assaad about the letter one day later (see October 3, 2001).
The “anti-terrorism” Patriot Act is introduced in Congress on October 2, 2001 (see October 2, 2001), but it is not well received by all. [US Congress, 10/2/2001] One day later, Senate Majority Leader and future anthrax target Tom Daschle (D-SD) says he doubts the Senate will take up this bill in the one week timetable the administration wants. As head of the Senate, Daschle has great power to block or slow passage of the bill. Attorney General John Ashcroft accuses Senate Democrats of dragging their feet. [Washington Post, 10/3/2001] On October 4, Senate Judiciary Committee Chairman and future anthrax target Patrick Leahy (D-VT) accuses the Bush administration of reneging on an agreement on the bill. Leahy is in a key position to block or slow the bill. Some warn that “lawmakers are overlooking constitutional flaws in their rush to meet the administration’s timetable.” Two days later, Ashcroft complains about “the rather slow pace…over his request for law enforcement powers… Hard feelings remain.” [Washington Post, 10/4/2001] The anthrax letters to Daschle and Leahy are sent out between October 6-9 as difficulties in passing the Patriot Act continue (see October 6-9, 2001).
Robert Stevens. [Source: Associated Press]The first case of anthrax infection, of Robert Stevens in Florida, is reported in the media (see October 3, 2001). Letters containing anthrax will continue to be received until October 19. After many false alarms, it turns out that only a relatively small number of letters contain real anthrax (see October 5-November 21, 2001). [South Florida Sun-Sentinel, 12/8/2001] In 2004, Washington Post columnist Richard Cohen will recall how a widespread sense of panic spread across the US over the next few weeks, as millions felt the anthrax could target them next. He will write, “People made anthrax-safe rooms, and one woman I know of had a mask made for her small dog. I still don’t know if that was a touching gesture or just plain madness.” He says, “The [9/11] terrorist attacks coupled with the anthrax scare unhinged us a bit—or maybe more than a bit.” But he will also mention that the panic quickly passed and was largely forgotten by most people. [Washington Post, 7/22/2004] Columnist Glenn Greenwald will later comment in Salon, “After 9/11 itself, the anthrax attacks were probably the most consequential event of the Bush presidency. One could make a persuasive case that they were actually more consequential. The 9/11 attacks were obviously traumatic for the country, but in the absence of the anthrax attacks, 9/11 could easily have been perceived as a single, isolated event. It was really the anthrax letters—with the first one sent on September 18, just one week after 9/11—that severely ratcheted up the fear levels and created the climate that would dominate in this country for the next several years after. It was anthrax… that created the impression that social order itself was genuinely threatened by Islamic radicalism.” [Salon, 8/1/2008]
The Justice Department’s John Yoo, an official in the Office of Legal Counsel (OLC), issues a secret opinion regarding legal statutes governing the use of certain interrogation techniques. The opinion will not be made public; its existence will not be revealed until October 18, 2007, when future OLC head Steven Bradbury will note its existence as part of an American Civil Liberties Union (ACLU) lawsuit. [American Civil Liberties Union [PDF], 1/28/2009 ]
President Bush issues a directive authorizing the National Security Agency (NSA) to operate a warrantless domestic surveillance program. Author/journalist Jane Mayer will report in 2011, “[O]n October 4, 2001, Bush authorized the policy, and it became operational by October 6th,” and, “[t]he new policy, which lawyers in the Justice Department justified by citing President Bush’s executive authority as commander in chief, contravened a century of constitutional case law.” Mayer will interview NSA whistleblower Thomas Drake for her article and quote him as saying that, following the October 4 directive, “strange things were happening. Equipment was being moved. People were coming to me and saying, ‘We’re now targeting our own country!’” Bush’s directive is based on a legal opinion drafted by Department of Justice Office of Legal Counsel Deputy Attorney General John Yoo (see September 25, 2001). [New Yorker, 5/23/2011]
Conflicting Information regarding Date of First Authorization - The existence of the NSA’s domestic surveillance program will first be made public in December 2005, following reporting by the New York Times that will cite “[n]early a dozen current and former officials” (see December 15, 2005). The Times article will state that in 2002, “[m]onths after the Sept. 11 attacks,” Bush signed an executive order authorizing the NSA to monitor domestic phone calls, including those of US citizens and permanent residents, if one end of the call was outside the country. The Times article also mentions an NSA “‘special collection program’ [that] began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism.” The difference between the October 4, 2001 directive and the 2002 executive order referred to by the Times is unclear. [New York Times, 12/16/2005]
Other Sources for October Directive - Other sources, including Bush, NSA Director General Michael Hayden, and the inspectors general of five separate agencies, will later refer to a presidential order having been given in “October,” or “weeks” after the 9/11 attacks, and say that, subsequent to this order, international calls of US persons are targeted for content-monitoring. Following the publication of the Times article, Bush will say in a December 17, 2005 radio address: “In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with US law and the Constitution, to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks” (see December 17, 2005). This presidential authorization was based on a legal opinion drafted by Department of Justice Office of Legal Counsel attorney John Yoo (see October 18, 2001). [WhiteHouse(.gov), 12/17/2005] Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001,” which is when he “gathered key members of the NSA workforce… [and] introduced [the NSA’s] new operational authority to them.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general,” and that “the three most senior and experienced lawyers in NSA… supported the lawfulness of this program.” [Michael Hayden, 1/23/2006] In a July 10, 2009 jointly-issued report, the inspectors general of the Department of Defense, Department of Justice, CIA, NSA, and Office of the Director of National Intelligence will refer to the “President’s Surveillance Program” (PSP) and “the program’s inception in October 2001.” The report will say: “One of the activities authorized as part of the PSP was the interception of the content of communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qaeda or related terrorist organizations.… The attorney general subsequently publicly acknowledged the fact that other intelligence activities were also authorized under the same presidential authorization, but the details of those activities remain classified.” [Inspectors General, 7/10/2009] Citing “a senior administration official,” the Washington Post will report on January 4, 2006: “The secret NSA program… was authorized in October 2001.… The president and senior aides have publicly discussed various aspects of the program, but neither the White House, the NSA, nor the office of the director of national intelligence would say what day the president authorized it.” [Washington Post, 1/4/2006]
Entity Tags: US Department of Justice, Thomas Drake, US Department of Defense, Office of Legal Counsel (DOJ), Office of the Director of National Intelligence, Michael Hayden, National Security Agency, George W. Bush, Central Intelligence Agency, John C. Yoo, Jane Mayer
Timeline Tags: Civil Liberties
On October 9, 2001, Senator Russ Feingold (D-WI) blocks an attempt to rush the Patriot Act to a vote with little debate and no opportunity for amendments. He criticizes the bill as a threat to civil liberties. [Associated Press, 10/10/2001] One day earlier, in the story “Cracks in Bipartisanship Start to Show,” the Washington Post reported, “Congress has lost some of the shock-induced unity with which it first responded to the [9/11] attacks.” [Washington Post, 10/8/2001] Also on October 9, identical anthrax letters are postmarked in Trenton, New Jersey, with lethal doses to Senators Tom Daschle and Patrick Leahy. Inside both letters are the words, “Death to America, Death to Israel, Allah is Great” (see October 15, 2001). [Associated Press, 8/7/2008]
White House press secretary Ari Fleischer tells reporters that they should only print expurgated transcripts of the statements made by Osama bin Laden and other terror leaders, for fear that they might incite anti-American violence or worse, contain coded messages to other terrorists. “At best,” the messages are nothing more than “propaganda inciting people to kill Americans,” Fleischer says of bin Laden’s statements. “At worst, he could be issuing orders to his followers to initiate such attacks.” [BBC, 10/11/2001] The statements, and their presumed coded messages, might wind up “in the hands of people who can read it and see something in it,” Fleischer says. [Rich, 2006, pp. 31] Fleischer’s demand dovetails with a request from National Security Adviser Condoleezza Rice that the five major television networks not broadcast complete versions of videotaped statements from bin Laden and others (see October 11, 2001). Most American newspapers follow the lead of the New York Times in refusing to comply with Fleischer’s demand. The Times will write in response: “The White House effort is ill advised. … Even if full statements [from bin Laden] were withheld from networks and newspapers, any bin Laden associate… could easily pick them up from foreign broadcast outlets or webcasts. More important, the American people should have unfettered access to information about the terrorist leader and his views.” [Current Events, 11/9/2001]
The FBI releases a list of its 22 most wanted terrorists. The US government offers up to $5 million for information leading to the capture of anyone of the list. The men are:
Al-Qaeda leaders Osama bin Laden, who was indicted by a grand jury in 1998 (see June 8, 1998), Ayman al-Zawahiri, linked to a 1995 bombing in Pakistan (see November 19, 1995), and Mohammed Atef, who provided training to Somali fighters before the Black Hawk Down incident (see Late 1992-October 1993);
Khalid Shaikh Mohammed (KSM), for his role in the 1995 Bojinka plot (see January 6, 1995). KSM is actually the mastermind of 9/11, although the US intelligence community has allegedly not yet pieced this information together (see (November 7, 2001));
Several other operatives suspected of involvement in the 1998 US embassy bombings in Africa (see 10:35-10:39 a.m., August 7, 1998): Fazul Abdullah Mohammed (see August 2, 2008), Mustafa Fadhil, Usama al-Kini (a.k.a. Fahid Muhammad Ally Msalam (see August 6-7, 1998)), Ahmed Khalfan Ghailani (see July 25-29, 2004), Sheikh Ahmed Salim Swedan (see July 11, 2002), Abdullah Ahmed Abdullah (see September 10, 2002), Anas al-Liby (see January 20, 2002- March 20, 2002), Saif al-Adel (see Spring 2002), Ahmed Mohammed Hamed Ali, and Mushin Musa Matwalli Atwah (see April 12, 2006);
Abdul Rahman Yasin, a US-Iraqi involved in the 1993 World Trade Center bombing (see March 4-5,1993);
Ahmed Ibrahim Al-Mughassil, Ali Saed Bin Ali El-Houri, Ibrahim Salih Mohammed Al-Yacoub, and Abdelkarim Hussein Mohamed Al-Nasser, for their alleged part in the 1996 Khobar Towers bombing in Saudi Arabia (see June 25, 1996);
Imad Mugniyah, Hassan Izz-Al-Din, and Ali Atwa for the hijacking of TWA Flight 847 in June 1985. [CNN, 10/10/2001]
Entity Tags: Mohammed Atef, Mushin Musa Matwalli Atwah, Mustafa Fadhil, Osama bin Laden, Saif al-Adel, Khalid Shaikh Mohammed, Usama al-Kini, Sheikh Ahmed Salim Swedan, Imad Mugniyah, Mohammed Hamed Ali, Hassan Izz-Al-Din, Abdullah Ahmed Abdullah, Abdul Rahman Yasin, Abdelkarim Hussein Mohamed Al-Nasser, Ahmed Ibrahim Al-Mughassil, Ahmed Khalfan Ghailani, Ibrahim Salih Mohammed Al-Yacoub, Ali Saed Bin Ali El-Houri, Fazul Abdullah Mohammed, Federal Bureau of Investigation, Ali Atwa, Ayman al-Zawahiri, Anas al-Liby
Timeline Tags: Complete 911 Timeline
The FBI allows the original batch of the Ames strain of anthrax to be destroyed, making tracing the type of anthrax used in the recent anthrax attacks (see October 5-November 21, 2001) more difficult. The Ames strain actually originates from a dead cow in Texas, but Iowa State University in Ames has kept many vials of Ames and other anthrax strains collected over more than seven decades. This entire collection is destroyed. It is unclear who wanted the collection destroyed or why. The FBI learned the anthrax used in the attack letters was the Ames strain on October 5 (see October 5, 2001), but this will not be publicly confirmed until October 25. The FBI denies it approved the destruction and say they only did not oppose it, but university officials say the FBI gave explicit approval. [New York Times, 11/9/2001; South Florida Sun-Sentinel, 12/8/2001] The Ames strain is one of 89 known varieties of anthrax and is commonly used in US military research. The Washington Post will later report that “The [Ames strain identification], as compelling as a human fingerprint, shifted suspicion away from al-Qaeda and suggested another disturbing possibility: that the anthrax attacks were the work of an American bioweapons insider.” The identification of the Ames strain focuses much attention on two top US Army bioweapons laboratories in particular that have heavily used Ames: USAMRIID in Maryland and Dugway Proving Ground in Utah (see Late 2001). [Washington Post, 9/14/2003]
Despite the fact that two US senators, Tom Daschle (D-SD) and Patrick Leahy (D-VT), had letters laced with anthrax mailed to their offices (see October 6-9, 2001), the Bush administration’s response is, as later characterized by author Frank Rich, lackadaisical. “Bush said little about it,” Rich will write in 2006, instead “delegating the problem to ineffectual Cabinet members like [Health and Human Services Secretary Tommy] Thompson and the attorney general, John Ashcroft. The rank incompetence of these two Cabinet secretaries, at most thinly disguised by a veneer of supercilious officiousness, was farcical. They were Keystone Kops, in the costumes of bureaucrats, ready at any time to slip on a banana peel.” [Rich, 2006, pp. 34-35]
Nancy Pelosi. [Source: US Congress]House Minority Leader Nancy Pelosi (D-CA) writes to NSA Director Michael Hayden questioning the nature and extent of the apparently illegal warrantless wiretapping of US citizens by the agency. Pelosi and other members of the House Intelligence Committee were briefed on October 1, 2001, by Hayden, whose agency began conducting surveillance against US citizens after the 9/11 attacks (see After September 11, 2001). Pelosi will release the letter on January 6, 2006, three weeks after the New York Times revealed that the NSA had been conducting electronic surveillance of US citizens without warrants since at least 2002 (see December 15, 2005.) Pelosi’s office will also release Hayden’s response, but almost the entire letter from Hayden is redacted.
Letter to Hayden - Pelosi writes in part, “[Y]ou indicated [in the briefing] that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance under the Foreign Intelligence Surveillance Act and related statutes, orders, regulations, and guidelines.… For several reasons, including what I consider to be an overly broad interpretation of President Bush’s directive of October 5 on sharing with Congress ‘classified or sensitive law enforcement information’ it has not been possible to get answers to my questions. Without those answers, the concerns I have about what you said on the First can not be resolved, and I wanted to bring them to your attention directly. You indicated that you were treating as a matter of first impression, [redacted ] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted ] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted ] I believe you have a much more difficult case to make [redacted ] Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.” The only portion of Hayden’s October 18 reply regarding Pelosi’s concerns that has not been redacted reads, “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” In January 2006, an NSA official will say that Pelosi’s concerns were adequately addressed in Hayden’s reply, and in a private briefing shortly thereafter. [Washington Post, 1/4/2006; Nancy Pelosi, 1/6/2006]
Pelosi Unaware of Pre-9/11 Surveillance - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). Pelosi is apparently unaware of any of this.
Five major US television networks agree to self-censor their news broadcasts of statements by Osama bin Laden and his associates. The agreement, made by ABC, CBS, NBC, CNN, and Fox News, comes after a conference call between National Security Adviser Condoleezza Rice and the heads of the networks; Rice’s call comes after White House press secretary Ari Fleischer warns reporters that statements from suspected terrorists could contain anything from incitement to coded messages, and asks them not to print full transcripts of bin Laden’s messages (see October 10, 2001). [BBC, 10/11/2001; Rich, 2006, pp. 31] Rice asks that, instead of automatically airing bin Laden videotapes, news executives should carefully review the tapes and remove any “inflammatory language” before broadcasting. [Current Events, 11/9/2001] The networks say they will now review them first, and edit or censor them as needed. While the American news networks are willing to comply with Rice’s recommendation, the Arab news network Al Jazeera disagrees: chief editor Ibrahim Halil says, “I don’t think the United States, which taught the world about freedom of expression, should now begin to limit it.” Al Jazeera has been the first to broadcast many of the statements in question, broadcasts which were often picked up by American news networks and shown in their entirety. [BBC, 10/11/2001]
'A Silky Form of Censorship' - According to the New York Times, the five networks have never before consulted one another as a group and made such a collective policy decision about news coverage. The executives deny that they were threatened or pressured by Rice or any other White House officials: “Ms. Rice made no specific request of news organizations, other than that we consider the possible existence of such messages in deciding whether and how to air portions of al-Qaeda statements,” says an ABC spokesman. They also deny that the decision amounts to censorship. CBS says it is committed to “responsible journalism that informs the public without jeopardizing American lives.” CBS president Andrew Heyward says: “The issue… was raised by the transmission of unedited, extended propaganda messages from a terrorist group… with the will to kill thousands of people. No network wants to serve as the platform for that propaganda.” And Fox News chairman Roger Ailes notes that “[Rice] was very, very careful to talk about freedom of the press and not to suggest how we do our job.” Matthew Felling of the Center for Media and Public Affairs, a media watchdog group, has a different view. He calls the decision “a silky form of censorship.” Network executives say that the likelihood of bin Laden using his statements to send coded messages to “sleeper” agents in the US is unlikely, and if he is, the agents could get the statements from printed transcripts or Internet video. “What sense would it make to keep the tapes off the air if the message could be found transcripted in newspapers or on the Web?” one executive asks. “The videos could also appear on the Internet. They’d get the message anyway.” [BBC, 10/11/2001; Current Events, 11/9/2001]
Notion that Censorship Could Disrupt Al-Qaeda Communications Fantastical, Says Media Critic - Author and media critic Frank Rich is fascinated by the assumptions behind Rice’s assertions: in 2006, he will write that the Bush administration “entertain[s] at least a passing fantasy that al-Qaeda, despite its access both to the Internet and to the Arabic superstation Al Jazeera… could be disrupted by having its videos kept off the likes of Fox.” The administration’s “ambitions to manage the news [knows] no bounds.” [Rich, 2006, pp. 31]
British Broadcasters Refuse Similar Request - A similar request by the British government is flatly refused; the BBC issues a short statement reading, “Government interference will be resisted.” The Canadian government does not issue such a request, leaving the decision of whether to air unedited broadcasts of the terrorists’ statements up to news executives and editors. [Toronto Star, 9/8/2002]
Entity Tags: Bush administration (43), Al Jazeera, Center for Media and Public Affairs, CNN, Andrew Heyward, Ari Fleischer, Al-Qaeda, CBS News, ABC News, New York Times, Roger Ailes, Fox News, Condoleezza Rice, Ibrahim Halil, Frank Rich, Matthew Felling, NBC News, British Broadcasting Corporation
Timeline Tags: Domestic Propaganda
According to Graham Allison, a Harvard professor and expert on national security issues, the Nuclear Emergency Search Team (NEST), the agency that investigates nuclear threats (see (September 10-15, 2001)), is sent to New York City following an intelligence report that al-Qaeda may have smuggled a nuclear device into that city. The CIA has received a report from a source code-named Dragonfire that the terrorist organization has obtained a 10-kiloton nuclear weapon from the former Soviet Union. During the search for the weapon, Vice President Dick Cheney and several hundred federal employees are relocated to a secure underground bunker. No weapon is found. [Los Angeles Times, 9/19/2004; Blueprint Magazine, 10/7/2004]
Dr. Eileen Preisser testifies before a congressional briefing. Dr. Preisser was one of four analysts in the US Army’s Land Information Warfare Activity (LIWA) supporting Able Danger in late 1999 and 2000 (see Fall 1999). While her testimony remains classified, the next day, Representative Christopher Shays (R-CT) gives a brief summary: “In a briefing we had yesterday, we had Eileen [Preisser], who argues that we don’t have the data we need because we don’t take all the public data that is available and mix it with the security data. And just taking public data, using, you know, computer systems that are high-speed and able to digest, you know, literally floors’ worth of material, she can take relationships that are seven times removed, seven units removed, and when she does that, she ends up with relationships to the bin Laden group where she sees the purchase of chemicals, the sending of students to universities. You wouldn’t see it if you isolated it there, but if that unit is connected to that unit, which is connected to that unit, which is connected to that unit, you then see the relationship. So we don’t know ultimately the authenticity of how she does it, but when she does it, she comes up with the kind of answer that you have just asked, which is a little unsettling.” [US Congress. House. Committee on Government Reform. Subcommittee on National Security, Veterans Affairs and International Relations, 10/12/2001] Note that according to some media accounts, the CIA monitored Mohamed Atta purchasing large quantities of chemicals in Germany in the spring of 2000 (see January-May 2000). Atta also sends a series of e-mails to the US in the spring of 2000, inquiring about flight school opportunities for himself and a “small group” of his associates (see January-March 2000). Dr. Preisser is apparently willing to testify about her role in how Able Danger uncovered Atta’s name, but in September 2005 she is prohibited from publicly testifying before Congress (see September 21, 2005).
On October 11, 2001, President Bush uses his first prime-time news conference to give an update on the early stages of the war on terrorism. He confirms that the Justice Department just issued a blanket alert “in recognition of a general threat.” [CNN News, 10/11/2001] This general threat never materializes. On October 29, the administration warns again of plans to strike the United States “in the next week.” In a quickly called news conference, US Attorney General John Ashcroft says intelligence sources have found “credible” information the nation could be the focus for some sort of terrorist attack within the week. No specific information is provided to the public now or later to explain what information may have caused this alert. [CNN News, 10/29/2001] Bush tells Americans “to go about their lives, to fly on airplanes, to travel, to work.” [Rich, 2006, pp. 36]
The Observer reports that investigators of the anthrax attacks (see October 5-November 21, 2001) believe Iraq is the prime suspect. One CIA source says, “They aren’t making this stuff in caves in Afghanistan. ‘This is prima facie evidence of the involvement of a state intelligence agency. Maybe Iran has the capability. But it doesn’t look likely politically. That leaves Iraq.” [Observer, 10/14/2001] However, this theory only remains the predominant one for a few days. On October 19, the New York Times is dismissive of the Iraq theory and suggests al-Qaeda or a disgruntled American loner could be behind the attacks instead (see October 19, 2001). In November, the American loner theory will become predominant (see November 10, 2001). But in late 2002, with war against Iraq growing increasingly likely, the Iraq theory appears to make a comeback (see October 28, 2002).
The envelope to the Tom Daschle letter. [Source: FBI]Two Democratic senators are targets of the 2001 anthrax attacks (see October 5-November 21, 2001). On this day, Senator Tom Daschle’s office opens a letter mailed October 9, containing a lethal dose of anthrax (see October 6-9, 2001). A similar letter to Senator Patrick Leahy mailed the same day and from the same location is misrouted to Virginia on October 12, and is not discovered until November 17. Neither Leahy nor Daschle come into contact with the anthrax, but some of Daschle’s staffers do. [South Florida Sun-Sentinel, 12/8/2001]
Days after National Security Adviser Condoleezza Rice persuaded the five major American news broadcasters to self-censor their coverage of statements issued by Osama bin Laden and other terror suspects (see October 11, 2001), Rice is publicly asked if the government believes, as she then asserted, that bin Laden and others might be using those statements as ways to convey coded messages to “sleeper” agents inside the US. Rice acknowledges that the government is busily analyzing those statements for any such coded messages. Of her request that the networks censor their coverage of bin Laden, Rice says: “The point to the networks—and let me just say that I think the networks have been very responsible in the way that they have dealt with this—my message to them was that it’s not to me to judge news value of something like this, but it is to say that there’s a national security concern about an unedited, 15 or 20-minute spew of anti-American hatred that ends in a call to go out and kill Americans. And I think that that was fully understood.” She cannot verify that any coded messages have yet been discovered, saying, “We are still concerned about whether there might be some signaling in here, but I don’t have anything more for you on that yet.” [White House, 10/15/2001]
The Canadian government overrides Bayer’s patent for the anthrax antibiotic Cipro and orders a million tablets of a generic version from another company. The US government says it is not considering a similar move. Patent lawyers and politicians state that adjusting Bayer’s patent to allow other companies to produce Cipro is perfectly legal and necessary. [New York Times, 10/19/2001] The New York Times notes that the White House seems “so avidly to be siding with the rights of drug companies to make profits rather than with consumers worried about their access to the antibiotic Cipro,” and points out huge recent contributions by Bayer to Republicans. [New York Times, 10/21/2001]
NSA Director Michael Hayden responds to an October 11 letter from Representative Nancy Pelosi (see October 11, 2001), expressing concerns about the NSA’s post-9/11 surveillance expansion (see After September 11, 2001) that Hayden outlined for the House Intelligence Committee on October 1 (see October 1, 2001), and asking whether the president authorized it. The substance of Hayden’s October 18 reply will be redacted, except for this statement: “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” [Nancy Pelosi, 1/6/2006] A January 4, 2006 report in the Washington Post will cite “intelligence official close to Hayden” as saying that “[Hayden’s] appearance on Oct. 1, 2001, before the House committee had been to discuss Executive Order 12333, and not the new NSA program,” and that “Pelosi’s concerns had been answered in writing and again several weeks later during a private briefing.” [Washington Post, 1/4/2006] In a January 23, 2006 public briefing, Hayden will say, “September 2001, I asked to update the Congress on what NSA had been doing, and I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities,” and, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” [Michael Hayden, 1/23/2006]
Nature of Hayden's EO 12333 Surveillance Program - The full scope of Hayden’s surveillance program is unclear, but some sources indicate it includes the wholesale collection and data-mining of phone records provided by telecom companies and placement of pen registers (call trackers) on domestic phone numbers (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, October 2001), and October 31, 2001). Some sources indicate the NSA began large-scale domestic surveillance activities prior to the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).
The Bayer Corporation, holders of the US patent on the anthrax antibiotic Cipro, agrees with the US to reduce the price of Cipro in the US from $1.83 to 95 cents. Analysts say the price reduction will reduce Bayer’s profit margin from 95% to 65%. This reduction applies only to sales to the US government, not sales to the public. [New York Times, 11/4/2001] Bayer has allowed no other companies to produce or import Cipro into the US. Other countries with less stringent patent laws sell Cipro for 1/30th the US price, and have offered to import large quantities into the US. [New York Times, 10/21/2001] Nevertheless, a class action suit by over one million Americans has been filed against Bayer and two other companies, alleging that Bayer has paid $200 million to two competitors to not make generic versions of Cipro. [Lieff Cabraser Heimann & Bernstein, 10/25/2001] The profits from Cipro are considered a “lifesaver” for Bayer, which had been considering pulling out of pharmaceuticals altogether. [Guardian, 10/31/2001]
The New York Times reports that health officials and experts believe numerous other drugs are as effective as the antibiotic Cipro in combating anthrax. “Several generic antibiotics, including doxycycline, a kind of tetracycline, and various penicillins, are also effective against the disease,” and they all are in plentiful supply. [New York Times, 10/23/2001] A 1997 Pentagon study of anthrax in rhesus monkeys showed the other drugs to be equally effective. But Cipro remains the only drug officially recommended by the FDA (see July 27, 2000). [New York Times, 10/21/2001]
The Justice Department’s John Yoo and Robert Delahunty issue a memo to White House counsel Alberto Gonzales claiming President Bush has sweeping powers in wartime that essentially void large portions of the Constitution. The memo, which says that Bush can order military operations inside the US (see October 23, 2001), also says that Bush can suspend First Amendment freedoms: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It adds that “the current campaign against terrorism may require even broader exercises of federal power domestically.” [American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009]
John Yoo, a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, and OLC special counsel Robert Delahunty issue a joint memo to White House counsel Alberto Gonzales. The memo claims that President Bush has sweeping extraconstitutional powers to order military strikes inside the US if he says the strikes are against suspected terrorist targets. In the days following the 9/11 attacks, Gonzales asked if Bush could legally order the military to combat potential terrorist activity within the US. The memo is first revealed to exist seven years later (see April 2, 2008) after future OLC head Steven Bradbury acknowledges its existence to the American Civil Liberties Union; it will be released two months after the Bush administration leaves the White House (see March 2, 2009). [US Department of Justice, 10/23/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009]
Granting Extraordinary, Extraconstitutional Authority to Order Military Actions inside US - Yoo and Delahunty’s memo goes far past the stationing of troops to keep watch at airports and around sensitive locations. Instead, the memo says that Bush can order the military to conduct “raids on terrorist cells” inside the US, and even to seize property. “The law has recognized that force (including deadly force) may be legitimately used in self-defense,” they write. In 2009, Reuters will write, “The US military could have kicked in doors to raid a suspected terrorist cell in the United States without a warrant” under the findings of the OLC memo. “We do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant,” Yoo and Delahunty write. [US Department of Justice, 10/23/2001 ; New York Times, 3/2/2009; Reuters, 3/2/2009] The memo reasons that since 9/11, US soil can be legally construed as being a battlefield, and Congress has no power to restrict the president’s authority to confront enemy tactics on a battlefield. [Savage, 2007, pp. 131]
No Constitutional or Other Legal Protections - “[H]owever well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy. [Rather,] the Fourth Amendment does not apply to domestic military operations designed to deter and prevent foreign terrorist attacks.” Any objections based on the Fourth Amendment’s ban on unreasonable search and seizures would be invalid since whatever possible infringement on privacy would be trumped by the need to protect the nation from injury by deadly force. The president is “free from the constraints of the Fourth Amendment.” The Posse Comitatus Act, which bars the military from operating inside the US for law enforcement purposes, is also moot, the memo says, because the troops would be acting in a national security function, not as law enforcement. [US Department of Justice, 10/23/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009; Reuters, 3/2/2009; Ars Technica, 3/2/2009] There are virtually no restrictions on the president’s ability to use the military because, Yoo and Delahunty write, the nation is in a “state of armed conflict.” The scale of violence, they argue, is unprecedented and “legal and constitutional rules” governing law enforcement, even Constitutional restrictions, no longer apply. The US military can be used for “targeting and destroying” hijacked airplanes, they write, or “attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be.” The memo says, “Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, or searching for suspects.” [Newsweek, 3/2/2009] Yoo writes that the Justice Department’s criminal division “concurs in our conclusion” that federal criminal laws do not apply to the military during wartime. The criminal division is headed by Michael Chertoff, who will become head of the Department of Homeland Security. [Washington Post, 4/4/2008]
Sweeping Away Constitutional Rights - Civil litigator Glenn Greenwald will later note that the memo gives legal authorization for President Bush to deploy the US military within US borders, to turn it against foreign nationals and US citizens alike, and to render the Constitution’s limits on power irrelevant and non-functional. Greenwald will write, “It was nothing less than an explicit decree that, when it comes to presidential power, the Bill of Rights was suspended, even on US soil and as applied to US citizens.”
Justifying Military Surveillance - Greenwald will note that the memo also justifies the administration’s program of military surveillance against US citizens: “[I]t wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls ‘domestic military operations’ was, among other things, the basis on which Bush ordered the NSA, an arm of the US military, to turn inwards and begin spying—in secret and with no oversight—on the electronic communications (telephone calls and emails) of US citizens on US soil” (see December 15, 2005 and Spring 2004). “If this isn’t the unadorned face of warped authoritarian extremism,” Greenwald will ask, “what is?” [Salon, 3/3/2009] If the president decides to use the military’s spy agency to collect “battlefield intelligence” on US soil, no law enacted by Congress can regulate how he goes about collecting that information, including requiring him to get judicial warrants under the Foreign Intelligence Surveillance Act (FISA). In 2007, Yoo will say in an interview: “I think there’s a law greater than FISA, which is the Constitution, and part of the Constitution is the president’s commander in chief power. Congress can’t take away the president’s powers in running war.” [Savage, 2007, pp. 131; PBS Frontline, 5/15/2007] Cheney and Addington will push the NSA to monitor all calls and e-mails, including those beginning and ending on US soil, but the NSA will balk. Domestic eavesdropping without warrants “could be done and should be done,” Cheney and Addington argue, but the NSA’s lawyers are fearful of the legal repercussions that might follow once their illegal eavesdropping is exposed, with or without the Justice Department’s authorization. The NSA and the White House eventually reach a compromise where the agency will monitor communications going in and out of the US, but will continue to seek warrants for purely domestic communications (see Spring 2001, After September 11, 2001, and October 2001). [Savage, 2007, pp. 131]
Military Use Considered - In 2009, a former Bush administration lawyer will tell a reporter that the memo “gave rise to the Justice Department discussing with the Defense Department whether the military could be used to arrest people and detain people inside the United States. That was considered but rejected on at least one occasion.” The lawyer will not give any indication of when this will happen, or to whom. Under the proposal, the suspects would be held by the military as “enemy combatants.” The proposal will be opposed by the Justice Department’s criminal division and other government lawyers and will ultimately be rejected; instead, the suspects will be arrested under criminal statutes. [Los Angeles Times, 3/3/2009]
Entity Tags: Steven Bradbury, US Department of Homeland Security, US Department of Defense, Robert J. Delahunty, Office of Legal Counsel (DOJ), Bush administration (43), Michael Chertoff, Alberto R. Gonzales, National Security Agency, American Civil Liberties Union, Glenn Greenwald, George W. Bush, US Department of Justice, John C. Yoo
Timeline Tags: Civil Liberties
The House of Representatives passes the final version of the Patriot Act and other previously unpopular Bush administration projects: Alaska oil drilling, $25 billion in tax cuts for corporations, taps into Social Security funds, and cuts in education. [CNN, 10/25/2001] Republican Congressman Ron Paul states: “It’s my understanding the bill wasn’t printed before the vote—at least I couldn’t get it. They played all kinds of games, kept the House in session all night, and it was a very complicated bill. Maybe a handful of staffers actually read it, but the bill definitely was not available to members before the vote.” It is later found that only two copies of the bill were made available in the hours before its passage, and most House members admit they voted for the act without actually reading it first. [Insight, 11/9/2001] Two days later, the Senate will pass the final version of the Patriot Act. Anthrax targets Senators Tom Daschle and Patrick Leahy (see October 15, 2001) now support the bill. President Bush signs it into law the same day (see October 26, 2001). [Fox News, 10/26/2001]
President Bush signs the Patriot Act into law. [Source: White House]President Bush signs the USA Patriot Act (see October 2, 2001) into law. The act’s provisions include:
1) Non-citizens can be detained and deported if they provide “assistance” for lawful activities of any group the government chooses to call a terrorist organization. Under this provision the secretary of state can designate any group that has ever engaged in violent activity as a terrorist organization. Representative Patsy Mink (D-HI) notes that in theory supporters of Greenpeace could now be convicted for supporting terrorism. [San Francisco Chronicle, 11/12/2001]
2) Immigrants can be detained indefinitely, even if they are found not to have any links to terrorism. They can be detained indefinitely for immigration violations or if the attorney general decides their activities pose a danger to national security. They need never be given a trial or even a hearing on their status. [San Francisco Chronicle, 9/8/2002]
3) Internet service providers can be ordered to reveal the websites and e-mail addresses that a suspect has communicated to or visited. The FBI need only inform a judge that the information is relevant to an investigation. [Village Voice, 11/26/2001; San Francisco Chronicle, 9/8/2002]
4) The act “lays the foundation for a domestic intelligence-gathering system of unprecedented scale and technological prowess.” [Washington Post, 11/4/2001] It allows the government to access confidential credit reports, school records, and other records, without consent or notification. [San Francisco Chronicle, 9/8/2002] All of this information can now be given to the CIA, in violation of the CIA’s mandate prohibiting it from spying within the US. [Village Voice, 11/26/2001]
5) Financial institutions are encouraged to disclose possible violations of law or “suspicious activities” by any client. The institution is prohibited from notifying the person involved that it made such a report. The term “suspicious” is not defined, so it is up to the financial institutions to determine when to send such a report.
6) Federal agents can easily obtain warrants to review a library patron’s reading and computer habits (see January 2002). [Village Voice, 2/22/2002] Section 215 allows the FBI to ask the Foreign Intelligence Surveillance Court (FISC) for an order to obtain documents relating to counterterrorism investigations without meeting the usual standard of legal “probable cause” that a crime may have been committed. Senator Russ Feingold (D-WI—see October 9, 2001) says that Section 215 can allow the FBI to “go on a fishing expedition and collect information on virtually anyone.” Librarians will make Section 215 the centerpiece of their objections to the Patriot Act, arguing that the government can now “sweep up vast amounts of information about people who are not suspected of a crime.” In 2005, one librarian will say, “It reminds me of the Red Scare of the 1950s.” However, some FBI officials find it easier to use provisions of Section 505, which expands the usage of so-called “national security letters” (see November 28, 2001). [Roberts, 2008, pp. 39-40]
7) The government can refuse to reveal how evidence is collected against a suspected terrorist defendant. [Tampa Tribune, 4/6/2003]
Passes with No Public Debate - The law passes without public debate. [Village Voice, 11/9/2001; Village Voice, 11/26/2001] Even though it ultimately took six weeks to pass the law, there were no hearings or congressional debates. [Salon, 3/24/2003] Congressman Barney Frank (D-MA) says: “This was the least democratic process for debating questions fundamental to democracy I have ever seen. A bill drafted by a handful of people in secret, subject to no committee process, comes before us immune from amendment” (see October 2-4, 2001 and October 24, 2001). [Village Voice, 11/9/2001] Only 66 congresspeople, and one senator, Feingold, vote against it. Few in Congress are able to read summaries, let alone the fine print, before voting on it. [Los Angeles Times, 10/30/2001] Feingold says, “The new law goes into a lot of areas that have nothing to do with terrorism and have a lot to do with the government and the FBI having a wish list of things they want to do.” [Village Voice, 11/9/2001] Supporters of the act point out that some of its provisions will expire in four years, but in fact most provisions will not expire. [Chicago Tribune, 11/1/2001]
Mounting Opposition - One year later, criticism of the law will grow. [San Francisco Chronicle, 9/8/2002] Dozens of cities will later pass resolutions criticizing the Patriot Act (see January 12, 2003).
The US government no longer thinks al-Qaeda is behind the anthrax attacks (see October 5-November 21, 2001). The Washington Post reports in a front-page story: “Top FBI and CIA officials believe that the anthrax attacks… are likely the work of one or more extremists in the United States who are probably not connected to Osama bin Laden’s al-Qaeda terrorist organization, government officials said yesterday.” An unnamed senior official adds, “Everything seems to lean toward a domestic source… Nothing seems to fit with an overseas terrorist type operation.” The Post suggests neo-Nazi and/or right-wing hate groups could be behind it. [Washington Post, 10/27/2001] Not long after, the FBI releases a profile of the perpetrator of the anthrax attacks. He is suspected of being a lone, male domestic terrorist, with a scientific background and laboratory experience who could handle hazardous materials. [St. Petersburg Times, 11/10/2001]
The press reports that the US has put together a multi-billion dollar aid package for Pakistan that includes “sweeping debt rescheduling, grants stretching over many years and trade benefits as a reward for its support against terrorism.” Critics such as Representative Jim McDermott (D-WA) complain the aid is a “blank check” that could go towards supporting the Pakistani military and Islamic militants fighting in India. [New York Times, 10/27/2001]
Neoconservative writers Robert Kagan and William Kristol predict “a wide-ranging war in locales from Central Asia to the Middle East and, unfortunately, back again to the United States,” of which the Afghanistan conflict is merely “an opening battle.” The “unequivocal destruction of the Taliban, al-Qaeda, and Osama bin Laden” are the first steps in a larger conflict that must “spread and engulf a number of countries in conflicts of varying intensity,” requiring US forces to invade “multiple” countries. “It is going to resemble the clash of civilizations that everyone has hoped to avoid. And it is going to put enormous and perhaps unbearable strain on parts of an international coalition that today basks in contented consensus.” Kagan and Kristol say that both the 9/11 attacks and the recent anthrax mailings are likely the work of Iraq, and thus President Bush “ha[s] no choice” but to destroy the Iraqi government of Saddam Hussein. The continued security of Israel is of paramount importance, they write; the US must join with Israel in battling Islamist terrorism in the region by any means necessary. There is virtually no difference between the Taliban and the Palestinian Authority, they write; both must be shut down. Putative US allies such as Egypt, Jordan, and Saudi Arabia might object, and may even declare war against Israel. If so, they must be given the same treatment as the Taliban, the Palestinians, and Iraq: overthrow and domination. “With or without a new Arab-Israeli war, it is possible that the demise of some ‘moderate’ Arab regimes may be just around the corner.” [Weekly Standard, 10/29/2001]
Attorney General John Ashcroft issues a second terror alert for the month (see October 11-29, 2001). The intelligence received by the FBI does not, he says, “contain specific information as to the type of attack or specific targets.” [Rich, 2006, pp. 36]
A senior NSA official, having learned of the NSA’s post-9/11 domestic surveillance program and believing it to be illegal, takes his concerns to a staff member of the House Intelligence Committee. In a 2012 interview for Democracy Now!, William Binney, a former NSA technical director who served in the NSA for 36 years, will say that some of his staff had been recruited to work on the new program and told him of some of the things that were being done, which he believed were illegal. Binney will tell co-host Juan Gonzalez: “I immediately went to the Intelligence Committee, because… the intelligence committees were formed to have oversight over the intelligence community to make sure they didn’t monitor US citizens.… And the member of the staff that I went to went to Porter Goss, who was chairman of that committee at the time, and he referred her to General Hayden for any further. When it was the job of that committee to do the oversight on all this domestic spying, they weren’t doing it.” Soon after this, Binney retires from the NSA, due to his belief the NSA is violating the Constitution (see October 31, 2001). [Democracy Now!, 4/20/2012]
Deputy White House counsel Timothy Flanigan presents his subordinate, associate counsel Bradford Berenson, with a draft presidential order he has written establishing military tribunals for suspected terrorists. The draft order declares that President Bush is invoking his wartime powers as commander in chief to establish a system of military tribunals, sometimes called military commissions.
Commissions More 'Flexible' - In the White House’s view, military tribunals offer several advantages over either civilian court trials or military courts-martial, as is being discussed in the interagency working group on prosecuting terrorists at the State Department (see Shortly Before September 23, 2001). Civilian trials would be subject to public scrutiny and media spectacle, and would pose a problem of security risks. Military courts-martial are quite rigid in their procedures and rules of evidence. Military commissions, as envisioned by Flanigan and the two other White House lawyers who put together the scheme—Berenson and David Addington, the chief counsel for Vice President Cheney—would offer more “flexibility” for the use of evidence gathered either under battlefield conditions or in interrogations, evidence that might not meet the standards of either a court-martial or a civilian trial. And, as author Charlie Savage will later note, “commissions enhanced presidential power by concentrating the process in the executive branch alone.”
A 'Relic' - Savage will explain: “Under normal trials, Congress defines a crime and sets the sentence for it; the executive branch investigates and prosecutes people who are accused of committing the crime; and the judicial branch runs the trial, decides whether to admit evidence, determines whether the defendant is guilty or innocent, and hears any appeal. With a military commission, all these powers were collapsed into the hands of the armed forces and, ultimately, their commander in chief. Although fairly common in nineteenth-century conflicts, military commissions were a relic: They had not been used by the United States since World War II.”
Support from Justice Department Lawyer - Their work will be bolstered when Justice Department lawyer Patrick Philbin issues a secret memo declaring that the president has the inherent authority to order military commissions (see November 6, 2001). Flanigan, Berenson, and Addington never inform the interagency working group of their own work, although they made use of the working group’s research. Flanigan, Berenson, and Addington cite Philbin’s memo as the definitive word on the president’s authority. When President Bush announces the order establishing the commissions (see November 13, 2001), the order abruptly short-circuits the interagency working group and renders its work irrelevant. [Savage, 2007, pp. 134-135]
Concerned that NSA post-9/11 surveillance operations violated the US Constitution, a senior NSA official reports on the program to House Intelligence Committee staff (see Before October 31, 2001), then retires. William Binney, a crypto-mathematician, had served in the NSA for 36 years. In 1997 he was made technical director of the World Geopolitical and Military Analysis Reporting Group, a 6000-employee unit that focused on signals intelligence (SIGINT) reporting and analysis. In the last part of his NSA career, Binney focused on dealing with the NSA’s problem of information overload, co-founding the Signals Intelligence Automation Research Center (SARC) and leading a 20-member team to develop a data-mining and analysis program called ThinThread. This program made it possible to “correlate data from financial transactions, travel records, Web searches, GPS equipment, and any other ‘attributes’ that an analyst might find useful,” and “could chart relationships among people in real time.” Unlike the NSA’s existing centralized data processing systems, ThinThread was able to identify useful or useless data as it was collected, reducing the overload problem. However, though it targeted foreign communications, ThinThread also intercepted those of Americans, and “continued documenting signals when a trail crossed into the US.” Binney incorporated measures to protect privacy, but NSA lawyers still considered the program too invasive, according to a 2011 article by Jane Mayer based on interviews with Binney and another NSA whistleblower, Thomas Drake. In 1999, NSA Director General Michael Hayden decided to fund a rival program, Trailblazer, which would be developed by defense contractors (see Late 1999). Trailblazer will be abandoned in 2006 as unworkable, after costing $1.2 billion (see January 2006). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012] In 2002, three NSA whistleblowers—Edward Loomis, J. Kirk Wiebe, and Binney—will ask the Pentagon to investigate the NSA for wasting “millions and millions of dollars” on Trailblazer. [Nation, 3/26/2013]
Post-9/11 NSA Surveillance Expansion - Binney will tell Mayer that, after the 9/11 attacks, his people began coming to him, saying things like: “They’re getting billing records on US citizens! They’re putting pen registers [call logs] on everyone in the country!” James Bamford will interview Binney in 2012 and write, “At the outset the program recorded 320 million calls a day, [Binney] says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts.” Binney has not been personally “read in” to this domestic surveillance program, but some members of his SARC team have, as their knowledge of ThinThread code was needed to set it up. Binney became convinced elements of ThinThread were being used, but without privacy protections, meaning US persons could be targeted. Soon after learning these things, Binney takes his concerns to the House Intelligence Committee (see Before October 31, 2001), and retires on October 31. He will tell Mayer, “I couldn’t be an accessory to subverting the Constitution.” Other sources support Binney’s account of this NSA data-mining and monitoring program (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, and October 2001). However, the claim that NSA domestic surveillance was initiated only after, and in response to, 9/11 is contradicted by information indicating that domestic monitoring programs and activities were established and conducted prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012]
ThinThread 'Would Likely Have Prevented 9/11' - Despite ThinThread’s capacity to collect actionable intelligence, Hayden vetoed the idea of deploying the system three weeks before 9/11, in August 2001. According to the Loomis, Wiebe, and Binney, this decision “left the NSA without a system to analyze the trillions of bits of foreign SIGINT flowing over the Internet at warp speed, as ThinThread could do.” During the summer of 2001, when “the system was blinking red,” according to CIA Director George Tenet, the NSA “failed to detect critical phone and e-mail communications that could have tipped US intelligence to al-Qaeda’s plans to attack.” [Nation, 3/26/2013]
Entity Tags: Edward Loomis, World Geopolitical and Military Analysis Reporting Group, J. Kirk Wiebe, William Binney, Thomas Drake, House Intelligence Committee, James Bamford, Trailblazer, Jane Mayer, National Security Agency, Signals Intelligence Automation Research Center, Michael Hayden, Thinthread
Timeline Tags: Civil Liberties
Al-Qaeda documents found in Kabul by CNN reporters [Source: CNN]As US forces invade Afghanistan, they and the journalists following them, uncover a quantity of al-Qaeda documents in training camps and houses used by the organization. The documents reveal a chilling array of terrorist plots. Some documents are apparently related to the planning of the 9/11 attacks. [Observer, 11/18/2001] A New York Times reporter finds two houses in Kabul’s diplomatic district containing, among other papers, a map showing the locations of power plants in Europe, Africa and Asia; training notebooks in military tactics and bomb-making; a list of Florida flight schools and a form that comes with “Microsoft Flight Simulator 98”; a document entitled “Before and After Precautions For Using Chemical, Biological, and Nuclear Warfare”; and a notebook on how to make nitroglycerine, dynamite, and fertilizer bombs, with a note next to one of the formulas saying “the type used in Oklahoma.” [New York Times, 11/17/2001] CNN reporters are led by Afghan police to a house in an upscale district of Kabul, which is apparently the same as the one visited by the New York Times reporter. In it they find a quantity of documents revealing al-Qaeda’s interest in acquiring nuclear weapons (see Mid-August 2001) and conventional explosives. According to David Albright, a nuclear weapons expert who is asked by CNN to analyze the documents, “These are people who are thinking through problems in how to cause destruction, for a well-thought-through political strategy.” [CNN, 12/4/2001; CNN, 1/24/2002; CNN, 1/25/2002; Albright, 11/6/2002] However, an extensive review of the documents later concludes that al-Qaeda’s main activity was to support the Taliban. “Reporters for The New York Times collected over 5,000 pages of documents from abandoned safe houses and training camps destroyed by bombs.… The documents show that the training camps, which the Bush administration has described as factories churning out terrorists, were instead focused largely on creating an army to support the Taliban, which was waging a long ground war against the Northern Alliance.… They show no specific plans for terror operations abroad, and while hinting at an ambition to use nuclear, chemical or biological weapons, they contain no evidence that the groups possess them.” [New York Times, 3/17/2002]
White House deputy press secretary Scott McClellan will, in 2008, write: “As soon as [President] Bush decided to confront Iraq, the groundwork for a public campaign began to be laid. The new doctrine on preemption (see Fall 2002) was part of the elaborate effort. So was the gradual ratcheting up of the rhetoric from late 2001 into 2002. Before 9/11, our rhetoric about Iraq had focused on warning Saddam Hussein not to develop weapons of mass destruction, while the policy centered on containing him with enhanced sanctions (see February 2001).… But by late November, the president was not ruling out military action against Iraq and he was saying that Iraq would be held accountable if it was found to be developing WMD.” [McClellan, 2008, pp. 135-136]
The FBI alerts InfraGard members (see 1996-2008) of a potential terrorist threat to bridges in California. Officials of Enron are also notified. However, the FBI does not immediately notify California governor Gray Davis, who learns of the threat from his brother, Barry Davis, an employee of the financial firm Morgan Stanley. Davis’s press secretary, Steve Maviglio, later recalls: “[Governor Davis] said his brother talked to him before the FBI. And the governor got a lot of grief for releasing the information. In his defense, he said, ‘I was on the phone with my brother, who is an investment banker. And if he knows, why shouldn’t the public know?‘… You’d think an elected official would be the first to know, not the last.” [Progressive, 2/7/2008]
John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 ] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 ] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]
Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice
Timeline Tags: Civil Liberties
Subash Gurung. [Source: CNN/Courtesy WLS-TV]A young Nepalese man named Subash Gurung is arrested at Chicago’s O’Hare airport trying to board a United Airlines flight to Omaha with numerous knives, a can of mace, and a stun gun. He is in the US on an expired student visa. He is unemployed at the time of his arrest. Gurung claims that he was in a hurry and was unaware of the knives and other items in his luggage. But CNN reports that Gurung gave as his address an apartment building in Chicago that was also used by one of two terror suspects arrested on September 12, 2001 (see September 19, 2001 and After and October 20, 2001). This individual, Ayub Ali Khan (whose real name is apparently Syed Gul Mohammad Shah), lived in New Jersey but also used a Chicago address. A CNN government source says “many phone calls were made to and from that apartment, and credit card bills were paid from that address.” After being released by local police on bond, Gurung will be re-arrested the following day by the FBI for a weapons violation. Despite the apparent link to Ayub Ali Khan, the FBI denies any terror connection: “There is no allegation that this incident involves any suspected terrorist activity.” [CNN, 11/5/2001; CNN, 11/6/2001] Gurung will be convicted of a weapons charge in October 2002, and then deported. [New York Times, 10/9/2002]
In the months following 9/11, Vice President Dick Cheney is frequently moved away to undisclosed locations, supposedly for security reasons (see September 12, 2001-2002). He will tell CBS News, “[W]e feel it’s important, especially when the threat level goes up, to keep the president or myself separated.” He suggests there is a risk that terrorists could “take out the entire leadership of our government.” [CBS News, 11/14/2001] Yet, in spite of this supposed threat, Cheney goes ahead with a pheasant-hunting trip at the Paul Nelson Farm in South Dakota. He goes to this private retreat each year with friends, and on this occasion is joined by his daughter Mary. The trip had been planned before January this year, and the party has the entire facility to itself. [Associated Press, 11/5/2001; Washington Post, 11/19/2001; Hayes, 2007, pp. 363] CBS News’s Gloria Borger later questions Cheney about this trip, saying, “The American people are on a terror alert. You’re at an undisclosed location. Then the other week we learned that you went on a hunting trip. So did the Secret Service give you the all clear and say it’s fine to do that?” Cheney replies, “Well, the key thing here was I was away from the president. I wasn’t in the same location he was. We could not have both been eliminated at the same time by a terrorist attack.” [CBS News, 11/14/2001]
In conjunction with the Federalist Society, the Heritage Foundation publishes a legal paper that appears to reflect much of the thinking at this time of prominent White House and Justice Department lawyers. The paper espouses the use of military commissions, arguing that this will offer the government several advantages. “In particular,” the paper’s authors argue, “trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly sensitive intelligence material, which would have to be made public in an ordinary criminal trial.” The disadvantage of a normal trial would be that they would be limited by constitutional rules with regard to “what can be done to protect classified information.” In addition, in “federal district courts, the government has an obligation under Article III and the Sixth Amendment to conduct a ‘public trial’ and present to the jury, in open court, the facts on which it is relying to establish a defendant’s guilt.” But the authors do acknowledge that “[t]he use of military commissions with respect to individuals not regularly enrolled in a military force, represents a clear departure from normal legal processes and some of America’s most fundamental judicial traditions.” Surprisingly, the Geneva Conventions of 1949 are not mentioned even once. Almost in passing, the authors suggest an option that is to become reality. “[I]t is likely,” they write, “that the Supreme Court would allow the trial overseas by military commission of al-Qaeda members captured in Afghanistan, regardless of how it would treat defendants in this country.” [Rivkin, Casey, and Bartram, 11/5/2001; Rivkin, Casey, and Bartram, 11/5/2001] It is an indication that by this time the government contemplates using the US Naval Station at Guantanamo Bay, which is formally on Cuban soil, to accommodate suspected al-Qaeda and Taliban detainees.
Patrick Philbin, an attorney with the Justice Department’s Office of Legal Counsel, writes a lengthy and detailed memo arguing that the president may establish so-called “military commissions” for the trial and disposition of terror suspects without involvement in the US criminal justice system. Furthermore, Philbin opines, the president may do so without the approval or even the knowledge of Congress. [US Department of Justice, 11/6/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ] Philbin’s central argument is that 9/11 was an act of war, not a crime, and therefore the attacks triggered the president’s full array of war powers, including the inherent authority to create military commissions. Philbin cites a 1942 case where then-President Roosevelt created a military commission to try eight Nazi saboteurs captured inside the US during the first year of America’s involvement in World War II (see 1942); even though the Supreme Court backed Roosevelt, he felt unsure of the legality of such commissions, and did not use them in later trials of captured saboteurs. Since World War II, the laws of war have undergone drastic revisions, with Congress enacting the Uniform Code of Military Justice (UCMJ), which said that if military commissions were ever to be used again, they should use, as much as is practical, the same procedures and defendant rights as are found in military courts-martial. The Senate had also ratified the 1949 Geneva Conventions, which granted all wartime prisoners the right to a fair trial. Philbin’s memo ignores everything except the 1942 military commissions, and argues that if the president has the inherent and exclusive right to set up military commissions, as the Supreme Court had found, then Congress has no authority to restrict that right. [Savage, 2007, pp. 136-137]
John Yoo, a lawyer for the Justice Department’s Office of Legal Counsel and a member of Vice President Cheney’s ad hoc legal team tasked to radically expand the power of the presidency, writes a legal brief declaring that President Bush does not need approval from Congress or the federal courts for denying suspected terrorists access to US courts, and instead can be tried in military commissions (see (After 10:00 a.m.) September 11, 2001). Two other team members, Cheney’s chief of staff David Addington and White House deputy counsel Timothy Flanigan, have decided that the government bureaucrats need to see that Bush can and will act, in the words of author Craig Unger, “without their blessing—and without the interminable process that goes along with getting that blessing.” Yoo’s opinion is a powerful object lesson. Yoo later says that he saw no need to seek the opinion of the State Department’s lawyers; that department hosts the archives of the Geneva Conventions and its lawyers are among the government’s top experts on the laws of war. “The issue we dealt with was: Can the president do it constitutionally?” Yoo will say. “State—they wouldn’t have views on that.” Neither does Yoo see a need to consult with his own superiors at the Justice Department. Attorney General John Ashcroft is livid upon learning that the draft gives the Justice Department no say in which alleged terrorists will be tried in military commissions. According to witnesses, Ashcroft confronts Cheney and David Addington over the brief, reminding Cheney that he is the president’s senior law enforcement officer; he supervises the FBI and oversees terrorism prosecutions throughout the nation. The Justice Department must have a voice in the tribunal process. He is enraged, participants in the meeting recall, that Yoo had recommended otherwise as part of the White House’s strategy to deny jurisdiction to the courts. Ashcroft talks over Addington and brushes aside interjections from Cheney: “The thing I remember about it is how rude, there’s no other word for it, the attorney general was to the vice president,” one participant recalls. But Cheney refuses to acquiesce to Ashcroft’s objections. Worse for Ashcroft, Bush refuses to discuss the matter with him, leaving Cheney as the final arbiter of the matter. In the following days, Cheney, a master of bureaucratic manipulation, will steer the new policy towards Bush’s desk for approval while avoiding the usual, and legal, oversight from the State Department, the Justice Department, Congress, and potentially troublesome White House lawyers and presidential advisers. Cheney will bring the order to Bush for his signature, brushing aside any involvement by Ashcroft, Secretary of State Colin Powell, or National Security Adviser Condoleezza Rice (see November 11-13, 2001). [Unger, 2007, pp. 222-223; Washington Post, 6/24/2007]
Entity Tags: John C. Yoo, Craig Unger, Condoleezza Rice, Colin Powell, David S. Addington, George W. Bush, John Ashcroft, US Department of State, Timothy E. Flanigan, US Department of Justice, Richard (“Dick”) Cheney, Office of Legal Counsel (DOJ)
President Bush follows up Attorney General John Ashcroft’s declaration of victory over terrorism (see November 8, 2001) with a prime-time speech calling for the formation of a volunteer civil-defense service and a larger National Guard presence at airports, both to keep Americans safe from future terror attacks. Bush gives the speech in front of a backdrop emblazoned with the words, “United We Stand.” Bush ends his speech with the exhortation, “Let’s roll!” thought to be the final words of Flight 93 passenger Todd Beamer before he and his fellow passengers attacked their plane’s hijackers (see Shortly Before 9:58 a.m. September 11, 2001). Of the four major news networks, only ABC airs Bush’s speech live. [Rich, 2006, pp. 36-37]
Nine Republican senators, led by conservatives Jesse Helms (R-NC), Trent Lott (R-MS), and Jon Kyl (R-AZ), send a letter to President Bush urging him to withdraw from the 1972 Anti-Ballistic Missile Treaty (see May 26, 1972, May 1, 2001, and June 2001). They explain their position by arguing that the ABM Treaty has become “the most significant obstacle to improved relations between the United States and Russia.” This argument is a complete reversal of conservatives’ earlier positions: that arms control agreements such as the ABM Treaty did nothing to stabilize relations between the US and its nuclear-armed opponents. The argument also flies in the face of public and private statements by Russian leaders, who consider the treaty one of the key elements of stable US-Russian relations. Russian President Vladimir Putin has repeatedly stressed the importance of the treaty in maintaining nuclear parity between the two nations (see July 2001), even as Russia seeks to reduce its nuclear arsenal from 6,000 to 1,500 deployed missiles. In 2008, author J. Peter Scoblic will speculate as to why conservatives wish to withdraw from the treaty: “For isolationists, missile defense renewed the dream of Fortress America, allowing us to retreat even further from crises abroad. For nationalists and moralists, missile defense was a shield against engagement and detente in the event that, say, North Korea was to develop a nuclear-armed ICBM (see August 31, 1998). For neoconservatives, missile defense was a necessary adjunct to their proactive vision of changing regimes and democratizing the world” (see March 12, 2001). [Scoblic, 2008, pp. 174-176]
The Army’s Judge Advocate General, Major General Thomas J. Romig, hastily meets with JAG lawyers Colonel Lawrence Morris and Brigadier General Scott Black to prepare suggestions for improving a draft presidential order establishing military commissions (see Late October 2001 and November 9, 2001), with an eye on bringing the order closer to existing military legal standards. The order is modeled on a single World War II military commission (see 1942), and ignores the body of relevant law that came after that commission, including the Uniform Code of Military Justice and the Geneva Conventions (see November 6, 2001). In their view, the Bush administration seems determined to ignore 60 years of law and go back to a rough system of justice that, Romig will later say, “was going to be perceived as unfair because it was unnecessarily archaic.” The three work through the Veterans’ Day weekend on a number of suggestions that would bring the order closer to existing military legal standards. The final order, however, will include none of the lawyer’s recommendations. “They hadn’t changed a thing,” a military official will later recall. [New York Times, 10/24/2004; Savage, 2007, pp. 137-138]
Spanish Judge Baltasar Garzon issues an indictment of militants based in Spain who are said to be tied to the 9/11 attacks. Some of them are arrested soon after (see November 13, 2001), although some are not and go on to be involved in the Madrid train bombings (see November 13, 2001). In the indictment, Garzon highlights the links between the Spain-based operatives and militants in Britain. Leading London imam Abu Qatada is described as “the spiritual head of the mujaheddin in Europe,” a view shared by many intelligence agencies in Europe, and accused of moving money to finance al-Qaeda operations. The indictment also says that Barakat Yarkas, head of an al-Qaeda cell in Spain, visited Britain 20 times (see 1995-February 2001) and repeatedly met with Abu Qatada and three other al-Qaeda leaders in Britain, Abu Walid, Abu al-Hareth, and Abu Bashir. Abu Qatada has been working with the British security services for some time and continues to do so (see June 1996-February 1997, Early December 2001, and October 23, 2002). [Independent, 11/21/2001; The Independent, 11/21/2001; O'Neill and McGrory, 2006, pp. 107] Authors Sean O’Neill and Daniel McGrory will write, “Judge Garzon in Spain claims that if you take every major al-Qaeda attack, including 9/11 and the Bali bombings, then list all those who played a part in their planning, funding and execution, you will find a line that always draws you back to Britain.” [O'Neill and McGrory, 2006, pp. 112]
President Bush’s order to establish military tribunals, or commissions, to try suspected terrorists (see November 13, 2001) is defended by Vice President Cheney, who tells reporters that the suspects subjected to such tribunals “don’t deserve to be treated as prisoners of war. They don’t deserve the same guarantees and safeguards we use for an American citizen.” Law professor Douglas Kmiec agrees. “This is the answer for what we’re dealing with: unlawful belligerents who do not come within our constitutional structure,” he says. “The president’s order is not extraordinary when one places it in the context of historic military campaigns.” Civil libertarians and administration critics disagree. Representative John Conyers (D-MI) says military commissions are based on the “thinnest legal precedents” and would “antagonize our allies and alienate the many legal immigrants in this country.” Law professor Anne-Marie Slaughter notes: “President Bush has said this is a war to bring terrorists to justice. So the real question is, what’s justice? That requires a fair trial and proof beyond a reasonable doubt, and that is not the aim of a military tribunal.” A better option, she says, would be convening an international war crimes tribunal. And law professor Joshua Rosenkranz says: “There is a natural temptation to hunker down whenever we are in crisis. But there is a danger that this hysteria-driven effort to protect to ourselves is weakening the foundations of our democracy.” [USA Today, 11/15/2001]
A still from the casing video shows a US warship docked in Singapore. [Source: CBC]After killing al-Qaeda military commander Mohammed Atef and other operatives with a Predator drone (see November 15, 2001), US forces search the building where he was killed and find lots of evidence about al-Qaeda members and various plots. One of the pieces of evidence found is a casing video for an attack on US personnel in Singapore, which al-Qaeda and Jemaah Islamiyah (JI) have been plotting for some time (see June 2001). [Suskind, 2006, pp. 56-57] Shortly before dying, Atef instructed JI leader Hambali to conduct the operation fast, because of the US invasion of Afghanistan. [US District Court for the Eastern District of Virginia, Alexandria Division, 3/8/2006; US District Court for the Eastern District of Virginia, Alexandria Division, 3/8/2006] In addition, JI is also plotting a wave of embassy attacks. A senior Western diplomat will later comment: “There was an imminent danger. Their plans could have been operational in a week.” However, many militants are arrested in Southeast Asia in mid-December and the attacks never happen. US officials initially claim that the passage of the video to Singapore helps with the arrests. But Singapore authorities later point out that they did not receive the tape until the end of December and they had already arrested everybody by then based on information they had acquired on their own. They had also found a copy of the video in a suspect’s house in Singapore. [Washington Post, 2/3/2002; Washington Post, 2/3/2002; Dallas Morning News, 3/16/2002]
Justice Department lawyer John Yoo, an official with the Office of Legal Counsel (OLC), issues a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but its existence will be revealed in a June 2007 deposition filed in the course of an American Civil Liberties Union (ACLU) lawsuit. The memo is known to cover the War Crimes Act, the Hague Convention, the Geneva Conventions, the federal criminal code, and detainee treatment. [American Civil Liberties Union [PDF], 1/28/2009 ] It is co-authored by OLC special counsel Robert Delahunty. [ProPublica, 4/16/2009]
The newly adopted USA Patriot Act (see October 26, 2001) allows FBI field offices to issue, without court orders, so-called “national security letters,” or NSLs, that require recipients—telecommunications firms, employers, libraries, anyone—to provide detailed information on their clients, employees, and patrons. The FBI’s Office of General Counsel warns each field office of the potential for abuse inherent in such powerful and relatively unrestricted instruments, writing in part: “NSLs are powerful investigative tools in that they can compel the production of substantial amounts of relevant information. However, they must be used judiciously.… In deciding whether or not to re-authorize the broadened authority, Congress certainly will examine the manner in which the FBI exercised it. Executive Order 12333 and the FCIG [Attorney General Guidelines for FBI Foreign Intelligence Collection and Counterintelligence Investigations] require that the FB[I] accomplish its investigations through the ‘least intrusive’ means. Supervisors should keep this in mind when deciding whether or not a particular use of NSL authority is appropriate. The greater availability of NSLs does not mean that they should be used in every case.” This warning not to overuse NSLs is not always heeded (see February 2005 and Before Mid-March, 2007). [Wired News, 7/10/2007]
Former FBI director William Webster and eight former FBI officials publicly criticize Attorney General John Ashcroft’s post-9/11 policies (see Spring 2001, September 12, 2001, October 9, 2001, October 11, 2001, and November 9, 2001). The criticisms come less over Ashcroft’s civil liberties abrogations and more because Ashcroft’s policies violate law-enforcement common sense. By capturing suspected low-level terrorists in public sweeps, the Justice Department and the FBI lose the ability to track those suspects to their superiors in their organizations and groups. (None of the 900 or so suspects rounded up in the Ashcroft sweeps will be charged with any 9/11-related crimes—see October 20, 2001 and November 5, 2001.) [Rich, 2006, pp. 35-36] Webster says that long-term surveillance and undercover operations are much more effective than mass arrests. [Harper's, 12/4/2001] The former FBI officials also ridicule Ashcroft’s idea of interviewing 5,000 Middle Eastern men (none of whom will ever be convicted of a terrorism-related crime). Kenneth Walton, who founded the FBI’s first Joint Terrorism Task Force, says: “It’s the Perry Mason school of law enforcement, where you put them in there and they confess. Well, it just doesn’t work that way. You say, ‘Tell me everything you know,’ and they give you the recipe to Mom’s chicken soup.… It is ridiculous.” Most of those “invited” to interview never showed up, the officials note, and those who did merely answered “yes” or “no” to rote questions. [Time, 11/29/2001; Rich, 2006, pp. 35-36] Many local police officers are reluctant to participate in Ashcroft’s public sweeps. Eugene, Oregon police spokeswoman Pam Alejandere tells reporters, “Give us some legitimate reason to talk to the people—other than that they’re from the Middle East—and we’ll be glad to.” [Time, 11/29/2001]
A USAMRIID technician opening one of the anthrax letters in December 2001. [Source: Agence France-Presse / Getty Images]A front-page Washington Post story suggests that the Ames strain of anthrax used in the recent anthrax attacks (see October 5-November 21, 2001) likely originated from USAMRIID, the US Army’s top biological laboratory at Fort Detrick, Maryland, and was shared with only a small number of other labs. USAMRIID gave it to the Battelle Memorial Institute, in Columbus, Ohio; the University of New Mexico Health Sciences Center, in Albuquerque, New Mexico; the Defense Research Establishment Suffield, in Canada; the US Army Dugway Proving Ground, in Utah; and the Chemical Defense Establishment at Porton Down, Britain. These in turn sent it to seven more labs, for a total of a dozen. But only five labs received the virulent form, and some of these may have received strains that were too old to have been the Anthrax used in the mailings, since it is known the anthrax used was two years old or less. [Washington Post, 11/30/2001; New York Times, 6/23/2002]
A dog exposed to chemical poison. [Source: CNN]An al-Qaeda video shows how the organization tested a chemical weapon by gassing several dogs. The video is undated but is believed to have been made before the US invasion of Afghanistan. It was found among a trove of al-Qaeda videos by a CNN reporter (see August 2002). The video shows a dog exposed to the vapors of an unknown chemical. The dog is seen going into convulsions and finally collapsing. The chemical may be cyanide or a nerve agent such as sarin. [New York Times, 8/19/2002; CNN, 8/19/2002]
According to a 2009 Senate Armed Services Committee report (see April 21, 2009), US counterterrorism officials are growing frustrated at the lack of “useful leads” coming from interrogations of suspected terrorists. The officials are particularly concerned with what one Army major will later recall as “establishing a link between al-Qaeda and Iraq.” The lack of actionable intelligence will result in military interrogators resorting to much harsher interrogation methods. [Washington Post, 4/22/2009]
Abdur Rauf, a Pakistani microbiologist whose letters to Ayman al-Zawahiri were uncovered by coalition forces in Kandahar (see (1999-2001)), is arrested and interrogated by Pakistani police. US officials are initially satisfied by the cooperation they are receiving from Pakistan. Rauf consents to questioning and provides useful information. However, Pakistan resists US efforts to bring criminal charges, including indictment and prosecution in the United States. In 2003, Pakistani authorities will cut off FBI access to Rauf, claiming that there is not enough evidence to charge him. A 2006 report by the Washington Post will find that the scientist has been allowed to return to a normal life and that the FBI investigation is on “inactive status.” [Washington Post, 10/31/2006]
Alan Cullison, a Wall Street Journal reporter in Afghanistan, obtains two computers looted from an al-Qaeda house in Kabul. One computer apparently belonged to al-Qaeda military commander Mohammed Atef but contained few files. The other had been used mostly by al-Qaeda second-in-command Ayman Al-Zawahiri and had about 1,000 files dating back to 1997. The reporter later gives the computers to the CIA which confirms the authenticity of the files. The computer files reveal how al-Qaeda operates on a day-to-day basis. The files include correspondence, budgets, attack plans, and training manuals. Messages between various al-Qaeda’s offices reveal a fractious, contentious community of terror plotters. There are disputes about theology, strategy, and even expense reports. A montage of 9/11 television reports set to rousing victory reports shows that the computer was used after the attacks. While some of the new information is surprising, for the most part it confirms the claims made about al-Qaeda by Western governments. A letter drafted on the computer in May 2001 confirms that al-Qaeda was behind the assassination of Ahmed Shah Massoud (see September 9, 2001). Other messages shows that the organization orchestrated the 1998 embassy bombings (see 10:35-10:39 a.m., August 7, 1998). However, there is no material relating specifically to the plotting of the 9/11 attacks. [Wall Street Journal, 12/31/2001; Atlantic Monthly, 9/2004]
According to a 2009 Senate Armed Services Committee report (see April 21, 2009), the Pentagon begins asking the Joint Personnel Recovery Agency (JPRA) for assistance in developing a set of procedures for “harsh interrogations”—torture—to be used against suspected terrorists captured by US soldiers and intelligence operatives. JPRA has “reverse-engineered” a training program, Survival, Evasion, Resistance, and Escape (SERE), which trains US soldiers to resist torture techniques if captured by an enemy, to produce harsh techniques to be used in interrogating suspected terrorists. [Washington Post, 4/22/2009]
Methods Already in Use - Military interrogators have already begun using the methods inflicted on them during SERE training on their prisoners, and SERE instructors—often having no training in interrogation procedures and no experience with other cultures—have been reassigned as interrogators. [Savage, 2007, pp. 216] The JPRA program will result in the personal approval of 15 “harsh” techniques by Defense Secretary Donald Rumsfeld. The policies will be adopted by US interrogators in Afghanistan, at Abu Ghraib prison in Baghdad, and at Guantanamo. [New York Times, 4/21/2009] In a June 2004 press conference, General James T. Hill, the commander of the US Southern Command (SOCOM), which oversees the Guantanamo detention facility, will say that US officials tapped the “SERE School and developed a list of techniques.” Hill will say that he was reassured by Pentagon officials that the techniques were “legally consistent with our laws.”
Methods Devised to Produce Propaganda, Not Reliable Information - Trained interrogators are, in the words of reporter Charlie Savage, “aghast at this policy.” Savage will write that unlike many Pentagon officials, Special Forces troops, and even SERE instructors, they know full well where SERE techniques originated: from the techniques used by Chinese and North Korean interrogators to torture and brutalize US soldiers during the Korean War. The Koreans and Chinese were experts at coercing American captives to “confess” to “war crimes” and other offenses; those confessions were used for propaganda purposes. “After the war,” Savage will write, the captured soldiers “all told the same story: Chinese interrogators, working with the North Koreans, had put them through a series of sustained torments” identical to those used in SERE training “until their minds had bent and they had made the false confessions.” The stories led to the concept of Chinese “brainwashing” techniques made famous by such books and films as The Manchurian Candidate. In 1963, the CIA concluded that the techniques were virtually useless at producing reliable intelligence, but worked very well in coercing victims to say whatever interrogators wanted them to say. “[U]nder sufficient pressure subjects usually yield but their ability to recall and communicate information accurately is as impaired as the will to resist.” Savage will write, “Neither SERE trainers, who run scenarios by following the instructions in basic military manuals, nor their Special Forces trainees understood that the coercive techniques used in the program were designed to make prisoners lose touch with reality so that they will falsely confess to what their captors want to hear, not for extracting accurate and reliable information.” Colonel Steve Kleinman, the former head of the Air Force’s strategic interrogation program, will later comment: “People who defend this say ‘we can make them talk.’ Yes, but what are they saying? The key is that most of the training is to try to resist the attempts to make you comply and do things such as create propaganda, to make these statements in either written or videotaped form. But to get people to comply, to do what you want them to do, even though it’s not the truth—that is a whole different dynamic than getting people to produce accurate, useful intelligence.” [Savage, 2007, pp. 216-217]
Wisam Ahmed, a young Jordanian who runs a clothes shop, traveled to Pakistan with his wife and newborn child for an annual religious pilgrimage in August 2001. As they are leaving for home, his bus is stopped at a checkpoint in Iran. Ahmed is forcibly removed because, as he later says, “they associated [my] headdress with al-Qaeda and must have overlooked the fact that it was also my national dress.” Through a process that will remain unexplained, the Iranian government turns Ahmed over to the US. In March 2002, Ahmed is immured in an Afghan prison he will call the “Dark Prison.” He will describe “unimaginable conditions that cannot be tolerated in a civilized society,” and spends 77 days there in a room that “was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time.” He is then moved to “Prison Number Three,” where the food is so bad he loses a significant amount of weight, and then transferred to Bagram Air Force Base for a 40-day stint, where the torture truly begins. According to his later statements, Ahmed is threatened by attack dogs, forced to watch torture videos, and intimidated in other ways. He later recalls: “[T]hey used to start up an electric saw and while they were sawing we would hear cries of agony. I thought they would cut me into pieces sooner or later.” He is later transferred to Guantanamo, where he will remain. [Future of Freedom Foundation, 4/27/2009]
The House International Relations Committee drafts House Joint Resolution 75, which states that if Iraq refuses to allow UN inspectors to investigate freely in Iraq, the refusal will constitute an “act of aggression against the United States.” The bill is sponsored by Representatives Lindsey Graham (R-SC), Porter Goss (R-FL), and Henry Hyde (R-IL). A different version of this resolution is passed by the House on December 20 (see December 20, 2001). [WorldNetDaily, 12/11/2001; Library of Congress, 1/15/2006]
Around the third day at the school (see December 2-5, 2001), probably on December 5, accused terrorist John Walker Lindh, unaware of the fact that a lawyer has been hired for him, is interrogated by two military officers. The questioning goes on for two or three days in sessions lasting several hours at a time. Again no Miranda warnings are given (see December 2, 2001). [United States of America v. John Walker Lindh, 6/13/2002 ] There is some discussion, however, among military personnel about whether Lindh should be advised of his right against self-incrimination. An Army intelligence officer is advised that instructions have come from “higher headquarters” for interrogators to coordinate Lindh’s interrogation with military lawyers. The intelligence officer asks to be faxed a Miranda form, but, according to the documents, “he never [gets] it.” The officer, however, adds that he is “in the business of collecting [intelligence] information, not in the business of Mirandizing.” After the first hour of interrogation, according to the documents, the interrogator provides the admiral in charge of Mazar-i-Sharif with a summary of what the interrogators have so far collected. The admiral tells him that the secretary of Defense’s counsel has authorized him to “take the gloves off” and ask whatever he wants. The unnamed counsel in question may well have been Defense Department chief counsel William J. Haynes. The initial responses Lindh gives to his interrogators are, according to the documents, cabled to Washington every hour. [Los Angeles Times, 6/9/2004] After the interrogations are ended, Lindh is told his conditions will improve. From then on, he is given a third meal a day and no longer held at gunpoint 24 hours a day. [United States of America v. John Walker Lindh, 6/13/2002 ]
Tom Ridge, Director of Homeland Security, warns that terrorist strikes “could happen within the next few weeks.” Ridge states that “the quantity and level of threats… have reached a threshold where we should once again place the public on general alert.” He describes the terrorists as “shadow soldiers… a shadow enemy.” [MotherJones, 12/3/2001] Richard Reid does attempt to blow up an airplane with a shoe-bomb later in the month (see December 22, 2001).
Qatari citizen Ali Saleh Kahlah al-Marri, a computer science graduate student at Illinois’s Bradley University, is arrested as a material witness to the 9/11 attacks. [Peoria Journal Star, 12/19/2001; CNN, 12/13/2005] Al-Marri was interviewed twice by the FBI, once on October 2 and again on December 11. Both times, according to the FBI, he lied in response to their questions. Al-Marri claimed to have entered the US on September 10, 2001, his first visit to the country since 1991, when he earned his undergraduate degree at Bradley. [CBS News, 6/23/2003; CNN, 12/13/2005]
Connections to 9/11 Terrorists Alleged - The FBI says al-Marri has been in the US since 2000. Al-Marri denied calling the United Arab Emirates phone number of Mustafa Ahmed al-Hawsawi, an unindicted co-conspirator in the trial of suspected “20th hijacker” Zacarias Moussaoui. Prosecutors say al-Hawsawi provided financial backing to Moussaoui and the 9/11 hijackers, and allegedly helped some of the hijackers travel from Pakistan to the United Arab Emirates and then to the US in preparation for the attacks. [CBS News, 6/23/2003; Progressive, 3/2007] (Al-Hawsawi will be captured in Pakistan in March 2003, and detained in an undisclosed location somewhere outside the US. See Early-Late June, 2001) [CNN, 12/13/2005] The government also alleges that the phone number was a contact number for Ramzi Bin al-Shibh, another unindicted co-conspirator in the Moussaoui indictment. The government says that two calling cards were used to call the number, which was also listed as a contact number on a package it believes was sent by 9/11 hijacker Mohamed Atta to the UAE on September 8, 2001. The cards were allegedly used to place phone calls from al-Marri’s residence, from his cellphone, and from the Marriott hotel room he was staying in on September 11. However, none of the three calls to the UAE number were made from phones registered to Al-Marri, though, nor is there proof he placed them. Some of the calls made from the card to the UAE were placed to relatives of al-Marri. [Bradley Scout, 3/29/2002] In March 2002, Justice Department official Alice Fisher will say that an unnamed al-Qaeda detainee “in a position to know… positively identified al-Marri as an al-Qaeda sleeper operative who was tasked to help new al-Qaeda operatives get settled in the United States for follow-on attacks after 9/11.” That unidentified tipster brought al-Marri to the attention of federal law enforcement shortly after the attacks. FBI officials have said that al-Marri is not considered to have played any part in the attacks, but is still considered a danger to the US. [Knight Ridder, 6/23/2003] In 2003, the FBI adds that it found “an almanac with bookmarks in pages that provided information about major US dams, reservoirs, waterways and railroads.” [Knight Ridder, 6/24/2003] He is believed to be a relative of Saudi national and future Guantanamo detainee Mohamed al-Khatani, who is said to be an intended 9/11 hijacker (see July 2002). [New York Times, 6/21/2004]
Bank and Credit Card Fraud - According to the FBI, al-Marri obtained a bank account under a false name, rented a motel room under a false name to create a mailing address, and formed a fake company, AAA Carpet, using the motel’s address. The FBI also says al-Marri used a fake Social Security number to open three other bank accounts. Al-Marri was carrying well over 15 fake credit card numbers on him when he was interviewed yesterday, says the US Attorney’s office in Illinois. [CBS News, 6/23/2003; Progressive, 3/2007] There are also allegedly over 1,000 more in his personal computer files. He has missed so many classes, the FBI says, that he is on the verge of flunking out. The FBI says al-Marri’s computer also contains Arabic lectures by Osama bin Laden, photographs of the 9/11 attacks, and a cartoon of planes crashing into the World Trade Center. The computer has a folder labeled “jihad arena,” and another labeled “chem,” which, government officials say, contains industrial chemical distributor websites used by al-Marri to obtain information about hydrogen cyanide, a poisonous gas used in chemical weapons. [CNN, 12/13/2005] Al-Marri consents to the search and the seizure of his computer and other possessions. [Bradley Scout, 3/29/2002] Al-Marri will be charged with financial crimes in 2002 (see February 8, 2002), charges that later will be dropped (see June 23, 2003). [CBS News, 6/23/2003]
Entity Tags: US Department of Justice, Mustafa Ahmed al-Hawsawi, Zacarias Moussaoui, Mohamed al-Khatani, Alice Fisher, Federal Bureau of Investigation, Mohamed Atta, Al-Qaeda, Bradley University, Osama bin Laden, Ali Saleh Kahlah al-Marri
Timeline Tags: Torture of US Captives, Complete 911 Timeline
Dugway Proving Ground. [Source: Public domain]The US Army responds to a journalistic investigation and confirms that it has been making weapons-grade anthrax in recent years, in violation of an international treaty. The US offensive biological weapons program was supposedly closed in 1969 when the US signed an international biological weapons treaty. In 1998, scientists at the US Army’s Dugway Proving Ground in Utah turned small quantities of wet anthrax into powder (see Spring 1998 and After). This weaponized anthrax appears to be very similar or identical to the anthrax used in the recent attacks. Molecular biologist Barbara Hatch Rosenberg says: “This is very significant.… There’s never been an acknowledgment that any U.S. facility had weaponized anthrax.… The question is, could someone have gotten hold of a very small amount and used it in the letters?” Some argue that this production of anthrax is in violation of an international biological weapons treaty that the US signed while others argue it is not. It is believed about six scientists at Dugway have the expertise to make powdered anthrax. The FBI has intensively questioned those at Dugway who have worked with anthrax. [Baltimore Sun, 12/13/2001; New York Times, 12/13/2001]
The Bush administration solves the dilemma surrounding a request by Congressman Dan Burton (R-IN) for documents from the Clinton administration (see Early September, 2001) by placing secrecy and executive privilege above a chance to potentially attack Clinton. Burton has tucked the request for the Clinton documents in with another request on a far more serious matter, possible malfeasance by an FBI office. President Bush instructs Attorney General John Ashcroft not to turn over the documents on either case, explaining that turning over the documents would violate the “national interest” by giving Congress documents related to “prosecutorial decision making.” Burton, the Republican and Democratic members of the House Government Reform Committee, and editorial writers and commentators around the country criticize the administration over the refusal to turn over the documents, particularly the FBI information. The White House adds fuel to the controversy by claiming, both on this day and in a January 2002 letter from White House counsel Alberto Gonzales, that the refusal is consistent with long-standing Justice Department policy (see January 10, 2002). The committee will secure an opinion from eminent Constitutional scholar Professor Charles Tiefer, who will show that the White House’s argument is flatly wrong. [Dean, 2004, pp. 85-88]
'Your Guy's Acting Like a King' - An infuriated Burton confronts a lower-level Justice Department official sent to testify about the government’s position: “We’ve got a dictatorial president and a Justice Department that does not want Congress involved. Your guy’s acting like he’s king.” In his official comments, Burton accuses the Bush administration of setting a “terrible, terrible precedent” in the name of executive power. “This is not a monarchy,” Burton says. “The legislative branch has oversight responsibilities to make sure there is no corruption in the executive branch.” In the Senate, Charles Grassley (R-IA) agrees with Burton. “Anything that limits legitimate Congressional oversight is worrisome,” he says. “This move needs to be carefully scrutinized, particularly in an atmosphere where Congress is giving the Justice Department additional powers and authority.”
Politics over Principles - But the storm of Congressional criticism will have little lasting effect. In 2007, author Charlie Savage will write: “[P]olitics defeated… principles. Most Republicans were unwilling to challenge Bush, and many Democrats opposed Burton’s probes of the Clinton campaign fund-raising, so few members of either party were interested in fighting the White House about it. And because Bush’s first invocation of [executive privilege] was done in part to protect Clinton and the Democrats, the gesture seemed principled rather than self-serving. It was tactically brilliant.” [Savage, 2007, pp. 98]
Administration Later Turns Over Documents - After the media controversy, the administration quietly, and without public acknowledgment, will provide the FBI material to the committee. The committee’s final report on the FBI investigation will conclude with six pages of withering criticism of the administration’s fallacious claim to executive privilege. However, as former Nixon White House counsel John Dean will note in 2004, the criticism from the committee is essentially meaningless to the White House, because it will garner no attention from the media and thereby cost the administration no political capital. And while some observers cannot understand why the administration would take such a hardline stand on an issue that lacks any implications for national security, the public interest, or the protection of ongoing criminal investigations, Dean will write that “it makes absolute sense if the administration’s aim is total information control.” He adds: “Accordingly, its policy remains to employ executive privilege aggressively, as long as the political price is not too high. If this administration is given a second term, there will be no price too high to expand this presidential privilege, enabling the executive branch to remain completely unaccountable.” [Dean, 2004, pp. 85-88]
Court Upholds Bush Actions - In 2003, a district court will uphold the Bush administration’s refusal to turn over the documents to Burton’s committee (see March 28, 2003).
Abdallah Higazy. [Source: Washington Post]FBI agents arrest Egyptian national Abdallah Higazy in a New York hotel room, and interrogate him over his supposed ownership of an air-band transceiver capable of air-to-air and air-to-ground communications. The FBI suspects Higazy, a student at Brooklyn’s Polytechnic University, of facilitating the 9/11 hijackings. Higazy arrived in New York from Cairo to study engineering under US Agency for International Development (USAID) and Institute for International Education programs, in August 2001. The Institute arranged for Higazy to stay at the Millennium Hilton Hotel, just across the street from the World Trade Center. On September 11, Higazy, along with other hotel residents, was evacuated after the second plane hit the Twin Towers. He was carrying about $100 in cash and his wallet. Higazy does not return to the hotel until December 17, when three FBI agents are waiting for him. Hotel employees had found a transceiver capable of air-to-air and air-to-ground transmissions in his room safe, along with a Koran and his passport. The FBI believes that Higazy may have used the radio as a beacon to guide the hijackers. Higazy denies owning any such transceiver. A federal judge warns the FBI and federal prosecutors that merely finding a radio in a room safe occupied by Higazy does not constitute enough evidence to continue holding the suspect, and absent further evidence he will release Higazy on December 28. Instead, the FBI will browbeat a false confession from Higazy (see December 27, 2001). [Washington Post, 10/25/2007]
In an interview with the Washington Post, President Bush says that, in contrast to the period before 9/11, “there was a significant difference in my attitude after September 11” about al-Qaeda and the threat it posed to the United States. Before the attacks: “I was not on point, but I knew [Osama bin Laden] was a menace and I knew he was a problem. I knew he was responsible, or we felt he was responsible, for the previous bombings that killed Americans. I was prepared to look at a plan that would be a thoughtful plan that would bring him to justice, and would have given the order to do that. I have no hesitancy about going after him. But I didn’t feel that sense of urgency, and my blood was not nearly as boiling.” Author Philip Shenon will comment that this interview is something Bush “almost certainly regretted later.” Shenon will also comment on who should have imparted such a sense of urgency, “If anyone on the White House staff had responsibility for making Bush’s blood ‘boil’ that summer about Osama bin Laden, it was [National Security Adviser] Condoleezza Rice.” [Washington Post, 5/17/2002; Shenon, 2008, pp. 154-155]
House Joint Resolution 75 is passed by the House and sent to the Senate where it is referred to the Committee on Foreign Relations. It is not as strongly worded as the initial draft (see December 4, 2001), which included a provision stating that the refusal to admit inspectors would constitute an “act of aggression against the United States.” The final version instead reads: “Iraq’s refusal to allow United Nations weapons inspectors immediate, unconditional, and unrestricted access to facilities and documents covered by United Nations Security Council Resolution 687 and other relevant resolutions presents a mounting threat to the United States, its friends and allies, and international peace and security.” The bill is sponsored by Representatives Lindsey Graham (R-SC), Porter Goss (R-FL) and Henry Hyde (R-IL). [Library of Congress, 1/15/2006] This bill will die in the Senate. The congressional bill that conditionally authorizes Bush to take military action against Iraq is not passed until October 11, 2002 (see October 8 and 11, 2002).
The FBI is now investigating “whether potential profit from the sale of anthrax medications or cleanup efforts may have motivated” the anthrax attacks (see October 5-November 21, 2001). Battelle, a company doing anthrax work for the CIA, mostly at the Battelle Memorial Institute in Ohio, is the company most discussed in a Washington Post story about this. Dozens of scientists at Battelle have been interviewed by the FBI already because it is one of only a few places where weaponized anthrax has been made. [Washington Post, 12/21/2001] The story comes one day after ABC News reported a Battelle scientist is under investigation for the anthrax attacks, but that story is quickly denied (see September 18-28, 2001).
The Justice Department’s John Yoo sends a classified memo to the Defense Department’s general counsel, William Haynes. The contents will not be made public, but the American Civil Liberties Union (ACLU) will eventually learn that the memo concerns possible criminal charges to be brought against an American citizen who is suspected of being a member of either al-Qaeda or the Taliban. The ACLU believes the memo discusses the laws mandating that US military personnel must adhere to the Uniform Code of Military Justice, and how those laws may not apply to military personnel during a so-called “undeclared war.” [American Civil Liberties Union [PDF], 1/28/2009 ]
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