June 17, 2004: 9/11 Commissioner Gorelick and General Myers Spar over NORAD Failure

During the 9/11 Commission’s twelfth public hearing, Commissioner Jamie Gorelick is sharply critical of NORAD’s failure to protect the US on 9/11. NORAD failed because it “defined out of the job,” she says. “[W]here was our military when it should have been defending us?” she asks General Richard Myers, who was the acting Joint Chiefs of Staff chairman on 9/11. “And the response… is that NORAD was not postured to defend us domestically unless someone was coming at us from abroad.… That’s why I come back to this word posture, we were postured against an external threat.” But, says Gorelick, the military’s own directives clearly state that NORAD has an “air sovereignty” mission that is not limited to watching the borders. “[T]he foundation documents for NORAD, they do not say defend us only against a threat coming in from across the ocean, or across our borders. It has two missions, and one of them is control of the airspace above the domestic United States, and aerospace control is defined as providing surveillance and control of the airspace of Canada and the United States. To me that air sovereignty concept means that you have a role which, if you were postured only externally you defined out of the job.”
Posse Comitatus – Gorelick also dismisses the Posse Comitatus Act of 1876, which prohibits the military from acting in a law enforcement capacity, as one of the reasons for the military’s failure. When Myers invokes the act, she quickly interrupts him. Myers says, “What we try to do is follow the law, and the law is pretty clear on Posse Comitatus and that is whether or not the military should be involved in domestic law enforcement.” Gorelick replies: “Let me just interrupt, when I was general counsel of the Defense Department, I repeatedly advised, and I believe others have advised that the Posse Comitatus says, you can’t arrest people. It doesn’t mean that the military has no authority, obligation, or ability to defend the United Sates from attacks that happen to happen in the domestic United States.”
Unanswered Questions – Gorelick then pointedly asks Myers, a former NORAD commander, how the military came to neglect its air sovereignty mission: “[B]y what process was it decided to only posture us against a foreign threat?… [I]s it your job, and if not whose job is it, to make current assessments of a threat, and decide whether you are positioned correctly to carry out a mission, which at least on paper NORAD had?” She adds that on several occasions, such as the 1996 Olympics (see January 20, 1997) and the G8 summit in Genoa (see July 20-22, 2001), the government had prepared for air attacks. While Myers offers a general assurance that the US military is now better prepared for “non-traditional” attacks, he does not provide specific answers to Gorelick’s questions. [9/11 Commission, 6/17/2004]