White House counsel Alberto Gonzales and Timothy Flanigan, the deputy White House counsel, meet at the White House, joined by phone by John Yoo, a deputy assistant attorney general in the Office of Legal Counsel, and discuss how the US government can respond to today’s terrorist attacks. [Eichenwald, 2012, pp. 47-48] Gonzales was in Norfolk, Virginia, giving a speech around the time the attacks on the World Trade Center took place. He wanted to return to Washington, DC, as quickly as possible but was delayed due to the FAA grounding all aircraft (see (9:45 a.m.) September 11, 2001). Fortunately, he ran into a naval officer who drove him to Norfolk Naval Station, where senior officers arranged for a helicopter to fly him to the capital. The helicopter took off sometime after midday and, once back in Washington, he joined Vice President Dick Cheney and other senior administration officials in the Presidential Emergency Operations Center below the White House. [National Public Radio, 9/8/2011; Gonzales, 2016, pp. 1-9]
Lawyers Set Out the ‘Legal Framework’ for the War on Terror – With little for him to do there and feeling there are legal matters that need to be addressed, Gonzales calls Flanigan, who is in the White House Situation Room, and the two men arrange to go to Gonzales’s office on the second floor of the West Wing. Once there, they start discussing two key legal issues: Was the current situation a war and how could America respond to it? They decide they need the input of someone with more expertise and therefore call Yoo, who is at the Strategic Information and Operations Center at FBI headquarters, and ask for his assistance. Yoo then participates in the discussion over the phone. Over the next 45 minutes, the three lawyers lay out “the legal framework for policies that would govern the coming war on terror,” journalist and author Kurt Eichenwald will later describe.
Lawyer Says the President Can Take ‘Any Action He Wished’ – They begin by discussing the need for President Bush to declare a state of emergency and Gonzales instructs Flanigan to arrange this. They subsequently consider the issue of how much power the president has in the current circumstances. According to Eichenwald, Yoo tells his two colleagues: “In a time of military conflict, the president’s authority [is] sweeping. In fact, Bush could take just about any action he wished. A war was certain and legal.” The men agree that, unlike in a typical confrontation, the enemy combatants in the new conflict are “renegades” who do not belong to any particular country and “not soldiers whose rights [are] dictated by the rules of war under the Geneva Conventions.” The combatants’ rights, Yoo says, will be “far more limited than those of a soldier fighting on behalf of an established government.”
Suggestion Is Made to Send Terrorists to Guantanamo Bay – The men consider whether the president can block captured terrorists from the courts, thereby suspending habeas corpus. Yoo says that “if the United States declared the terrorist operation an act of war, the president should have that authority.” The men determine, however, that captured terrorists cannot be put in American prisons under the authority of the courts and then told they have no rights. They agree that these terrorists will need to be held somewhere beyond the reach of the judicial system. After they consider several locations, one of them suggests that the terrorists could be taken to Guantanamo Bay, the US naval base in Cuba. [Eichenwald, 2012, pp. 47-48]
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