Senior officials in the Executive Support Center (ESC) at the Pentagon decide against evacuating the Pentagon, despite being aware of the attacks on the World Trade Center. [Historical Office, Office of the Secretary of Defense, 7/2/2002 
; Eichenwald, 2012, pp. 22] The ESC, on the third floor of the Pentagon, is “the place where the building’s top leadership goes to coordinate military operations during national emergencies,” according to Victoria Clarke, assistant secretary of defense for public affairs. [Clarke, 2006, pp. 219] Those currently in it include Clarke; Larry Di Rita, Defense Secretary Donald Rumsfeld’s special assistant; Stephen Cambone, principal deputy undersecretary of defense for policy; and William Haynes, the general counsel of the Department of Defense.
Officials Discuss How to Respond to the Attacks – These officials know about the two crashes in New York and realize America is under attack. They are “talking about setting up a crisis action team and how we needed to respond to this apparent terrorist attack in New York City,” Haynes will later recall. They discuss things like, “Should we think about the force conditions [and] threat conditions?” according to Di Rita. [Historical Office, Office of the Secretary of Defense, 6/27/2002 ; Historical Office, Office of the Secretary of Defense, 7/2/2002 ; Historical Office, Office of the Secretary of Defense, 7/8/2002 ; Historical Office, Office of the Secretary of Defense, 4/8/2003 ] However, they reportedly dismiss the possibility of evacuating their building. “The idea of evacuating the Pentagon was batted about, then rejected,” journalist and author Kurt Eichenwald will write. [Eichenwald, 2012, pp. 22]
Two of the Officials Thought the Pentagon Might Be a Target – This is despite the fact that at least two of them have considered the possibility of the Pentagon being attacked. Haynes has spoken to David O. “Doc” Cooke, the Pentagon’s director of administration and management, and, he will recall, told him “that we ought to be thinking about the possibility of attacks here [at the Pentagon].” [Historical Office, Office of the Secretary of Defense, 4/8/2003 ] And Cambone has talked to Vice Admiral Edmund Giambastiani Jr., Rumsfeld’s senior military assistant, about the possibility of the Pentagon being a target and what they would do if it was attacked (see Between 9:03 a.m. and 9:35 a.m. September 11, 2001). [Historical Office, Office of the Secretary of Defense, 7/8/2002 ; American Forces Press Service, 9/8/2006] Clarke and Di Rita, however, will subsequently be unclear about whether they thought the Pentagon might be attacked. When asked, “Was there any anticipation at that time that the Pentagon also might be at risk?” Clarke will only say, “There was anticipation that lots of things might be at risk.” [Historical Office, Office of the Secretary of Defense, 7/2/2002 ] And when he is asked, “At that point was there a reason to expect a larger threat specific to the Pentagon?” Di Rita will reply, “I don’t know that I thought about that.” [Historical Office, Office of the Secretary of Defense, 6/27/2002 ]
Official Will Order an Evacuation after the Pentagon Is Hit – No steps are taken to evacuate the Pentagon before it is attacked (see Before 9:37 a.m. September 11, 2001). [Newsday, 9/23/2001; Vogel, 2007, pp. 429] Cambone will finally give the order for the building to be evacuated shortly after 9:37 a.m., when the attack occurs (see 9:37 a.m. September 11, 2001). Those in the ESC will feel and hear the impact (see 9:37 a.m. September 11, 2001). Someone will then come in and report to them that the building has been hit by an airplane. “At that moment, I asked for the building to be evacuated and also locked down,” Cambone will recall. [Historical Office, Office of the Secretary of Defense, 7/8/2002 ; Clarke, 2006, pp. 220]
After 10:20 a.m. September 11, 2001: White House and Pentagon Lawyers Consider the Legality of Shooting Down a Commercial Aircraft
Timothy Flanigan, the deputy White House counsel, and John Bellinger, senior associate counsel to the president and legal adviser to the National Security Council, discuss whether the president has the legal authority to order the shooting down of a civilian aircraft and Flanigan then consults a Pentagon lawyer to get his opinion on the issue. [C-SPAN, 2/28/2009; Eichenwald, 2012, pp. 35-36] President Bush authorized the US military to shoot down hostile aircraft in a phone call with Vice President Dick Cheney at 10:18 a.m., according to the 9/11 Commission Report (see 10:18 a.m.-10:20 a.m. September 11, 2001). [9/11 Commission, 7/24/2004, pp. 41] Flanigan, who is in the White House Situation Room, has heard about this and understands the reasons for Bush’s directive, but is concerned about its legality. He approaches Bellinger, mentions the shootdown order, and asks, “Do we have the legal authority nailed down for this?” Bellinger hands him an instant transcript of the conversation between Bush and Cheney. “Here’s the authority,” he says.
White House Lawyer Wants to Know the Opinion of the Military – Flanigan will later recall that he is currently certain of two things regarding the shootdown authorization. Firstly, since it has already been given, “any legal analysis was going to be woefully behind the event.” And secondly, he knows it “was completely justified as a matter of the president’s exercise of commander-in-chief authority to repel an immediate attack.” All the same, he feels uncomfortable. He realizes this is an issue for the military to consider. He therefore instructs an officer in the Situation Room to track down Defense Department General Counsel William Haynes. He is soon on the phone with the lawyer, who is at the Pentagon this morning, and tells him what he read in the transcript of Bush and Cheney’s conversation. Haynes says he already knows about the shootdown authorization. “We need the best possible rational legal basis for this,” Flanigan explains. “We’ve got commander-in-chief authority,” he continues, but adds, “Is there any other authority we can rely on?” Haynes says he will look into this.
Pentagon Lawyer Determines that Only the President Can Issue a Shootdown Order – Haynes thinks the most obvious issue with the shootdown authorization is constitutional, according to journalist and author Kurt Eichenwald. “Under the 14th Amendment, the passengers on those planes could not be deprived of their rights to life, liberty, and property without due process of law,” and “shooting them out of the sky didn’t meet that standard,” Eichenwald will write. Furthermore, Haynes thinks, the Fourth Amendment prohibits “unreasonable search and seizure,” and shooting down a commercial aircraft “would be quite a dramatic seizure” of the citizens on board. All the same, he knows that “the preamble of the Constitution spoke of providing for a common defense and promoting the general welfare,” and, “Under Article 2, the president was the commander in chief of the military.” He therefore determines that the issue of possibly shooting down a commercial aircraft is “a matter of self-defense, of protecting the citizenry, balanced against the rights of the passengers.” With this in mind, he concludes that a shootdown order “could be lawfully issued… but only by the president.” He soon returns to the phone and gives Flanigan his opinion.
Lawyer Says a NORAD Statute Authorizes Shooting Down Hostile Aircraft – However, according to Flanigan’s later recollection, Haynes gives a very different explanation why the president’s shootdown authorization was legal than the reasoning Eichenwald will describe. Flanigan will recall that Haynes tells him someone has already looked into the matter. “There is authority under…” he says, and then cites a “NORAD statute that gives the national command structure authority to deal with imminent threats in US airspace.” [C-SPAN, 2/28/2009; Eichenwald, 2012, pp. 35-36]
11:00 a.m. September 11, 2001: Pentagon Officials Participate in a Teleconference with Other Government Agencies and Discuss Rules of Engagement for Fighters
Secretary of Defense Donald Rumsfeld, General Richard Myers, vice chairman of the Joint Chiefs of Staff, and several more senior officials at the Pentagon participate in a secure video teleconference with other government agencies in which the rules of engagement for fighter jets responding to the terrorist attacks are discussed. [Myers and McConnell, 2009, pp. 155; George C. Marshall European Center for Security Studies, 8/3/2012] Myers has been in the office of the deputy director for operations (DDO) within the National Military Command Center (NMCC) at the Pentagon since around 9:58 a.m. (see (9:58 a.m.) September 11, 2001) and Rumsfeld has been with him there since around 10:30 a.m. (see (10:30 a.m.) September 11, 2001). [US Department of Defense, 9/11/2001 ; 9/11 Commission, 7/24/2004, pp. 43-44; George C. Marshall European Center for Security Studies, 8/3/2012] Vice Admiral Edmund Giambastiani Jr., Rumsfeld’s senior military assistant, announced earlier on that a secure video teleconference with the White House was going to take place at 11:00 a.m. [Historical Office, Office of the Secretary of Defense, 4/9/2003 ] Rumsfeld, Myers, and Colonel Matthew Klimow, Myers’s executive assistant, now leave the DDO’s office to participate in this. [George C. Marshall European Center for Security Studies, 8/3/2012] The teleconference takes place in the Joint Chiefs of Staff conference room, which is more commonly known as “the tank.” [Historical Office, Office of the Secretary of Defense, 4/9/2003 ] This is the “NMCC facility for secure teleconferences” and is “a tiny room with a thick, airtight door” that is “severely cramped,” according to Myers. Klimow will later describe it as “a small soundproof room just big enough for six or seven people.” Along with Myers, Rumsfeld, and Klimow, other officials in the room for the teleconference include Giambastiani; Stephen Cambone, Rumsfeld’s closest aide; William Haynes, the general counsel of the Department of Defense; and Victoria Clarke, the assistant secretary of defense for public affairs. Deputy Secretary of Defense Paul Wolfowitz participates in the teleconference after arriving at the alternate military command center inside Raven Rock Mountain on the Pennsylvania-Maryland border (see (11:00 a.m.) September 11, 2001) and can be seen by his colleagues at the Pentagon in a small box in the top right corner of their screen. The identities of the other participants will be unstated. The purpose of the teleconference is to link the Department of Defense’s civilian and military leadership with the rest of the government, and the main issue discussed is the rules of engagement for NORAD to follow should more hijackings occur, according to Myers. Further details of what the participants talk about will be unstated. [Myers and McConnell, 2009, pp. 155; George C. Marshall European Center for Security Studies, 8/3/2012] It is unclear how long the teleconference lasts. Joseph Wassel, assistant to the secretary of defense for communications, who waits outside the room while it is taking place, will recall only that it “went on for quite a while.” [Historical Office, Office of the Secretary of Defense, 4/9/2003 ] As the teleconference progresses, its participants in the Joint Chiefs of Staff conference room will start feeling sick due to the deteriorating air quality. [Myers and McConnell, 2009, pp. 155; George C. Marshall European Center for Security Studies, 8/3/2012]
January 9, 2002: Yoo Memo Says US Not Bound by International Laws in War on Terror
John Yoo, a neoconservative lawyer in the Justice Department’s Office of Legal Counsel serving as deputy assistant attorney general, writes a classified memo to senior Pentagon counsel William J. Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” [New York Times, 5/21/2004]
Yoo: Geneva Conventions Do Not Apply in War on Terror – Yoo’s memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, echoes arguments by another Justice Department lawyer, Patrick Philbin, two months earlier (see November 6, 2001). Yoo states that, in his view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners.
Geneva Superseded by Presidential Authority – Yoo’s memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. “As a result,” Yoo and Delahunty write, “any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban.” In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty. However, the memo says that while the US need not follow the rules of war, it can and should prosecute al-Qaeda and Taliban detainees for violating those same laws—a legal double standard that provokes sharp criticism when the memo comes to light in May 2004 (see May 21, 2004). Yoo and Delahunty write that while this double standard may seem “at first glance, counter-intuitive,” such expansive legal powers are a product of the president’s constitutional authority “to prosecute the war effectively.” The memo continues, “Restricting the president’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious.” [Mother Jones, 1/9/2002; US Department of Justice, 6/9/2002 ; Newsweek, 5/21/2004; New York Times, 5/21/2004]
Overriding International Legal Concerns – Yoo warns in the memo that international law experts may not accept his reasoning, as there is no legal precedent giving any country the right to unilaterally ignore its commitment to Geneva or any other such treaty, but Yoo writes that Bush, by invoking “the president’s commander in chief and chief executive powers to prosecute the war effectively,” can simply override any objections. “Importing customary international law notions concerning armed conflict would represent a direct infringement on the president’s discretion as commander in chief and chief executive to determine how best to conduct the nation’s military affairs.” [Savage, 2007, pp. 146] The essence of Yoo’s argument, a Bush official later says, is that the law “applies to them, but it doesn’t apply to us.” [Newsweek, 5/21/2004] Navy general counsel Alberto Mora later says of the memo that it “espoused an extreme and virtually unlimited theory of the extent of the president’s commander-in-chief authority.” [Savage, 2007, pp. 181]
White House Approval – White House counsel and future Attorney General Alberto Gonzales agrees (see January 25, 2002), saying, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Mother Jones, 1/9/2002]
Spark for Prisoner Abuses – Many observers believe that Yoo’s memo is the spark for the torture and prisoner abuses later reported from Iraq’s Abu Ghraib prison (see Evening November 7, 2003), Guantanamo Bay (see December 28, 2001), and other clandestine prisoner detention centers (see March 2, 2007). The rationale is that since Afghanistan is what Yoo considers a “failed state,” with no recognizable sovereignity, its militias do not have any status under any international treaties. [Newsweek, 5/21/2004; Newsweek, 5/24/2004]
Resistance from Inside, Outside Government – Within days, the State Department will vehemently protest the memo, but to no practical effect (see January 25, 2002).
April 2002 and After: President Bush Deliberately Shielded from Knowledge of Harsh Interrogation Techniques
After the capture of al-Qaeda leader Abu Zubaida (see March 28, 2002), the US government is forced to review procedures on how Zubaida and future detainees should be treated. One CIA source will later say, “Abu Zubaida’s capture triggered everything.” The legal basis for harsh interrogations is murky at best, and the Justice Department will not give any legal guidelines to the CIA until August 2002, after Zubaida has already been tortured (see March 28-August 1, 2002 and August 1, 2002).
Bush Kept out of Discussions – New York Times reporter James Risen will later claim in a 2006 book that after showing some initial interest in Zubaida’s treatment (see Late March 2002), President Bush is mysteriously absent from any internal debates about the treatment of detainees. The CIA’s Office of Inspector General later investigates evidence of the CIA’s involvement in detainee abuse, and concludes in a secret report that Bush is never officially briefed on the interrogation tactics used. Earlier meetings are chaired by White House counsel Alberto Gonzales and attended by, among others, Vice President Cheney’s chief lawyer David Addington, Justice Department lawyer John Yoo, White House lawyer Timothy Flanigan, and Pentagon chief counsel William J. Haynes. Later, CIA Director George Tenet gives briefings on the tactics to a small group of top officials, including Vice President Cheney, National Security Adviser Rice, Attorney General John Ashcroft, and future Attorney General Gonzales, but not Bush.
CIA: ‘No Presidential Approval’ Needed for Torture – Risen will note that “Normally, such high-stakes—and very secret—CIA activities would be carefully vetted by the White House and legally authorized in writing by the president under what are known as presidential findings. Such directives are required by Congress when the CIA engages in covert action.” But through a legal sleight-of-hand, the CIA determines the interrogations should be considered a normal part of “intelligence collection” and not a covert action, so no specific presidential approval is needed. Risen concludes: “Certainly, Cheney and senior White House officials knew that Bush was purposely not being briefed and that the CIA was not being given written presidential authorization for its tactics. It appears that there was a secret agreement among very senior administration officials to insulate Bush and to give him deniability, even as his vice president and senior lieutenants were meeting to discuss the harsh new interrogation methods. President Bush was following a ‘don’t ask, don’t tell’ policy on the treatment of prisoners.” Later, Flanigan will say of the meetings, “My overwheming impression is that everyone was focused on trying to avoid torture, staying within the line, while doing everything possible to save American lives.” [Risen, 2006, pp. 23-27; Savage, 2007, pp. 154]
October 4, 2007: Torture Advocate Promoted; Lead Guantanamo Prosecutor Resigns in Protest
Defense Department General Counsel William J. Haynes assumes command of the military prosecutions at Guantanamo, a decision that infuriates lead prosecutor Colonel Morris Davis. Haynes is promoted by Deputy Secretary of Defense Gordon England; Haynes, a civilian lawyer, was blocked in his bid for a seat on an appellate court because of his connection to the now-infamous torture memos (see November 27, 2002). Davis, who opposes the use of such techniques as waterboarding and other “extreme interrogation techniques,” resigns within hours of Haynes’s promotion. Davis will later say that Haynes’ expanded powers were a key reason for his decision (see October 4, 2007).
“[T]he decision to give him command over the chief prosecutor’s office, in my view, cast a shadow over the integrity of military commissions,” he will write in a December 2007 op-ed explaining his decision (see December 10, 2007). Davis will also write that he has no confidence that military commissions can be used for fair trials if “political appointees like Haynes and [convening authority Susan] Crawford” are in charge: “The president first authorized military commissions in November 2001, more than six years ago, and the lack of progress is obvious. Only one war-crime case has been completed. It is time for the political appointees who created this quagmire to let go. Sen[ators] John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it’s time to take the politics out of military commissions, give the military control over the process and make the proceedings open and transparent.” [Los Angeles Times, 12/10/2007] In 2009, one of Davis’s subordinates, prosecutor Lieutenant Colonel Darrel Vandeveld, will confirm Davis’s story (see January 18, 2009). He will recall Davis complaining of “being bullied by political appointees in the Bush administration.” Vandeveld will write that Davis resigned rather than bring prosecutions before they were ready to proceed, especially since, as Davis believed, the prosecutions were for political purposes. [Washington Post, 1/18/2009]
