500 Days (8 page)

Keeping Rumsfeld informed was tiring business. Myers had to run up the stairs to the defense secretary every few minutes with the latest details from the military command center, then head back down to gather additional information. Rumsfeld threw out more questions to Myers each time—what’s happening in other parts of the world, what’s the posture of the Russians, what are different combatant commanders doing?

At close to 10:30, Myers walked out of the secure videoconference room toward the stairs. Rumsfeld followed the general with his eyes, a look of distaste on his face. He didn’t like the military mind-set in the Pentagon; during the Clinton administration, he believed, the generals had taken control from the civilian leadership, and Rumsfeld had dedicated himself to reversing that. Now, he realized, at a time of national crisis, he was being forced to depend on the officers who made him so wary.

He glanced down the conference table. “I don’t trust those guys,” he said with a shake of his head. “I’m going down there.”

Rumsfeld barreled out the door, followed by the other officials in the meeting. They raced downstairs, crossing the C-ring of the building, then through a secure door into the command center, the inner sanctum of the Pentagon. Large screens showing television news programs and details of military deployments loomed over a crush of officers in the room.

Rumsfeld and his team swept into the center’s secure videoconference room, normally used by the Joint Chiefs of Staff. The place was packed, with officials seated at a large table and lined up against the wall.

Then, a problem. Despite being a central communications system at the heart of the military operations center, the equipment in the SVTS didn’t work. Two officers tried to fix it, with no success.

Frustrated, Rumsfeld stormed away, crossing the NMCC toward a white telephone—known for historical reasons as the “red switch”—which would allow him to reach Cheney.

The call went through instantly.

“There’s been at least three instances here where we’ve had reports of aircraft approaching Washington, a couple were confirmed hijacks,” Cheney said. “Pursuant to the president’s instructions, I gave authorization for them to be taken out.”

Rumsfeld didn’t respond. “Hello?” Cheney said.

“Yes, I understand,” Rumsfeld replied. “Who did you give that direction to?”

“It was passed from here to the center at the White House, from the PEOC.”

Apparently, orders were going out to military fighters without Rumsfeld’s knowledge. “Okay, let me ask a question here,” he said. “Has the directive been transmitted to the aircraft?”

“Yes, it has,” Cheney answered.

“So we have a couple of aircraft up there that have those instructions at this present time?”

“That is correct. And it’s my understanding that they’ve already taken a couple of aircraft out.”

A couple?
“We can’t confirm that,” Rumsfeld said. “We’re told that one aircraft is down, but we do not have a pilot report that we did it.”

•  •  •  

While Bush had ordered the military to shoot down a passenger plane that posed a threat, no one had yet asked the question: Was it legal, whatever the reason, for a president to authorize the killing of innocent citizens?

Tim Flanigan, the deputy White House counsel, had heard about Bush’s decision while still in the Situation Room. The reasons for the directive were clear, but no one had determined what law gave a president such power.

Flanigan approached John Bellinger III, the legal advisor to the National Security Council, who was standing near some television monitors. He mentioned the shoot-down order.

“Do we have the legal authority nailed down for this?”

Bellinger was holding a copy of a transcription from a short conversation between Bush and Cheney, and tossed it to Flanigan. “Here’s the authority,” he said.

The president had given the order. He was commander in chief. It was a time of national emergency. That was that.

As Flanigan read the half-page transcript, he grew increasingly uncomfortable.
What if we shoot down a Lufthansa airliner? Could the German government construe that as an act of war? Was there a domestic and international legal basis for that?

This was a military question, and Flanigan knew the right person to ask about it. He walked over to a young officer manning the communications equipment and told him to track down Jim Haynes, the Pentagon general counsel. In no time, Haynes was on the phone.

Flanigan explained what he had just read in the transcript; Haynes already knew about the shoot-down order.

“Jim, we need the best possible rational legal basis for this,” Flanigan said. “We’ve got commander-in-chief authority. But what else have we got?”

“I’ll look into it,” Haynes replied.

•  •  •  

There wasn’t much time to think; events were unfolding too fast. Rumsfeld and Haynes had already discussed the legal issues surrounding an order to fire on a commercial airliner. They had checked the standing rules of engagement—the standards on self-defense would probably apply.

Haynes knew that whatever legal conclusion he came up with would be tantamount to a rationalization: The president had given the order; someone had to say why he had the authority.

The most obvious issue was constitutional. Under the Fourteenth Amendment, the passengers on those planes could not be deprived of their rights to life, liberty, and property without due process of law. Certainly shooting them out of the sky didn’t meet that standard. Then there was the Fourth Amendment prohibition against unreasonable search and seizure; this would be quite a dramatic seizure of those citizens.

Still, the preamble of the Constitution spoke of providing for a common defense and promoting the general welfare. Under Article 2, the president was the commander in chief of the military.

This was a matter of self-defense, of protecting the citizenry, balanced against the rights of the passengers. An order could be lawfully issued, Haynes concluded, but only by the president.

•  •  •  

Word came into the Situation Room confirming that another plane was headed toward Washington. This time, it was a Northwest Airlines flight from Portugal to Philadelphia. It was squawking a hijack code and not responding to radio calls. Clarke barked some orders for someone to come up with more information. Where was the plane? What was its fuel capacity? What assets did the military have available to intercept it at the coast?

No one had a clue, but the assembled group was doing its best to find out. Officials scrambled to reach Northwest as the FAA riffled through its own data in search of information about the flight.

Standing by a wall, Flanigan watched as the participants in the
videoconference grew ever more anxious. No orders about the mysterious Northwest flight could be issued until
someone
dug up some details.

A brainstorm. Without a word, Flanigan walked out of the conference room and found an unsecure computer. Calling up travel sites, he scanned the records for details of the Portugal flight. Perplexed, he searched again on the Northwest Airlines Web site.

Nothing.

Flanigan grabbed a piece of paper from the desk and scribbled down whatever he could learn about every Northwest flight from Europe. Then he headed back to the conference room, where Clarke was still struggling to find out more about the plane, and took a seat at the conference table.

“Dick,” Flanigan said. “I’ve checked, and there’s no such flight.”

Clarke turned away from the microphone in front of him, muting it as he stared at Flanigan with a stunned expression.

“How did you check?” he asked.

“I looked on their Web site.”

A pause. Clarke clicked the audio back on.

“I have information that there is no such flight,” he said calmly. “Check that again.”

•  •  •  

Computers.
The analysts at the CIA were being impeded in their work by a shortage of computers.

The frequent budgetary shortfalls at the Counterterrorist Center had left the unit without all of the technology it needed to deal with the attacks that morning. Congress and the White House had consistently financed the CTC with an on-again, off-again approach—after a terrorist strike, the money came flooding in. Then, when the strike faded from memory, cash dried up. Managers at the center had been forced to cut back on equipment and operations in order to stay afloat. On this horrific morning, no one in the unit doubted that a new and huge injection of funds would soon be on the way. But that prospect was no help in navigating the crisis now.

Then a supervisor had an idea. Almost all of CIA headquarters had been evacuated; the CTC was the only unit that remained fully staffed, despite concerns that those who stayed might be killed in a subsequent attack. There were computers everywhere in the building—some packed for delivery, others on people’s desks. There was a way to close the equipment gap after all.

The CTC could start stealing.

Staffers were sent out to track down whatever equipment they could find at other CIA divisions. Over the next twenty minutes, they returned carrying tens of thousands of dollars’ worth of computers.

•  •  •  

At the Justice Department command center, a young lawyer named John Yoo sat at a tacky wood-laminated table, fielding questions from officials all over Washington.

Two months before, Yoo had joined the Office of Legal Counsel, a little-known unit of the department that provides legal advice to the executive branch, a responsibility that earned it the nickname “the president’s law firm.” To take the post, Yoo had gone on leave from his job as a professor at the University of California’s Berkeley School of Law, where he had gained a reputation as an expert on international law, American foreign policy, and separation of powers under the Constitution. For years, he had written articles for law reviews about the scope of presidential authority, arguing that in a time of war, the executive had a sweeping claim to act independently from the other branches of government.

His first months at Justice had been quiet and his assignments pedestrian, like analyzing a treaty about polar bears. But now, in the aftermath of the terrorist attacks, Yoo’s legal expertise was suddenly a gold mine.

The questions were momentous.
Are we at war? Had the terrorists just fired the first shot? Can we use force in response? What level of force? If we know that the terrorist group behind this is in Afghanistan, can we attack there?

Calmly, Yoo recited the same answers over and over. “We’ve been attacked,” he said. “We’re in a state of war and can use force in response.”

But, he added, there were conventions governing the tactics. Any action would have to be proportionate, and anyone targeted must be a combatant.

There were also rules, he said, that applied to how to treat captured enemies. “You can’t use force just to interrogate.”

•  •  •  

Air Force One
leveled off at forty-five thousand feet, far higher than most commercial jets could fly. Inside, television monitors were turned to a local Fox news broadcast; the signal stayed strong because the aircraft was circling over the Sarasota area, its pilots unsure where to go and fearful that the president’s plane might be attacked.

That concern was sparked by an anonymous phone call that morning to the Secret Service claiming that
Air Force One
was the terrorists’ next target. Officials who heard about the threat considered it credible because, they were told, the caller had used the code word for the president’s plane—Angel. But that proved to be false; the reporting agent, in relaying the message about the call to his superiors, had spoken the code word. The caller hadn’t.

In response, a group of F-16 fighters were scrambled, under orders to escort
Air Force One.
The first of the military jets reached the 757 just before 11:30. Air traffic control radioed the president’s pilot, Colonel Mark Tillman, to let him know.

“You’ve got two F-16s at about your—say, your ten o’clock position,” the controller said.

Tillman looked to his left and saw one of the jets. Back in the cabins, passengers gathered at the windows, watching in amazement as the F-16s appeared, flying so close off
Air Force One
’s wings that they could see the pilots’ heads. Bush walked out of his private office and peered through the window. He caught the eyes of one pilot and snapped a salute.

Bush told his staff that he wanted to land so that he could make a public statement and speak with his top lieutenants in Washington. The security team chose Barksdale Air Force Base near Shreveport as the first stop.

At 11:45,
Air Force One
was seconds from touching down when a report from CBS appeared on one of the televisions in the main cabin—the number of casualties in New York was in the thousands. The reporters and White House staff members fell silent.

On the tarmac, air force personnel in full combat gear and carrying drawn M-16 rifles surrounded the plane. In the flurry of activity, one airman ran to the wrong spot, angering a nearby officer.

“Hey, hey!” the officer barked. “Get to that wingtip! Move to that wingtip
now
!”

Instantly, the younger man dashed under the right wing, holding a rifle across his chest.

The internal stairs on the lower portion of the plane opened, and White House staffers and reporters piled out. The sky was cloudless, the temperature roasting. A dark blue Dodge Caravan drove across the tarmac, coming to a stop beside the stairs. Seconds later, it pulled back to be inspected by dogs.

When the Dodge returned, Bush bounded off the plane, saluting an air force
officer before climbing into the van. A small motorcade drove to the General Dougherty Conference Center; Bush got out and headed inside to call his national security team.

•  •  •  

Shortly after 12:30, Bush strode into the Center’s main conference room, where the White House press corps waited. His eyes were red-rimmed and his face was grim as he stepped behind a podium. Sketches of sixteen Medal of Honor winners from the Eighth Air Force were on the wall behind him. The red light on a television camera blinked on.