2012-042 larson release document 24

8/11/2019 2012-042 Larson Release Document 24

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MEMORANDUM FOR THE RECORD

1. (U)Event . On August 26,2003, Commissioner Ben-Veniste asked where it was documentedthat shootdo wn authority on September 11 , 2001 resided wi th the President . Follow ing is aprel iminary paper that docum ents initial research conducted to answer that question .

2 ;g Executive Summar y. The President 's authority is probably no t statutory and would becontained in NSC documents, according to persons so far consulted. By 1046 EDT GeneralEberhart had clear shootdown authority by virtue of JCS declaration ofDEFCON 3 which , bypol icy, put Transitional ROE in place. I I

_ I I By 1012 EDT JCS , and by extension NORAD, had verbal authorit y from the VP~ to take out aircra ft threatening Washington DC . Prior to that, at least one CONR Sector,... ; (Western) asked for ROE clar ification . CJCS and NORAD standing rules-of-enga gement were.~ wri tten with an external threat in mind. Internal language , however , appears to gi ve CINC~ NORAD latitude apart from the National Command Author ity (NCA ). CJCS defines the NCA . c to be the PresIdent and the SECDEF .

~ I (Logs and transcripts re flect tha t~ he took positiv e action not to do so at 0913 (based on WTC events ), 0940 (based on report of~ hij ack out of JFK headed for DC ) and 0948 (based on explosion at Penta gon) EDT , but did do so~ at 0959 EDT (after White House interest). i

I E.O. 13526 , section 1.4(a) I

3. (U) Methodolo gy. Three avenues were pursued. First, calls were made or received . fromselected individuals. Second , Rules-of-Engagement documents rece ived from DoD /JCS werereviewed. Third , rele vant information concerning September 11was extracted from documents

received to date. Staffhas not yet seen the Air Threat Conference Call transcript .

4. (FOUO) Calls made and received.

• Stewart Aly, DoD OGC , opined that there was nothing in Title 10 USC that spoke tosuch Presidental author ity. lfthe authority was in writing it would likel y be in NSCdocuments.

• Dan Marcus , Commission General Counsel , based on calls he m ade, also obser ved tha tthe President ial authorit y was likely not contained in statutes and that NSC documentswould be the most l ikely source. :

• Sam Br inkley and Dana H yde, Commission S taff, bo th assesse d that such author ityresid ed in the Presid ent' s role as Commander-in-Chief and the oath he too k to prote ctand de fend the nation.

5. (U) Rules of Engagement. (Emphasis Added)

(U) Chairman of the Joint Chie fs of Staff Instruction 3121 .01A, 15 January 2000 , StandingRules of Enga gement for US Forces was in effect on September 11 , 2001. (DoD document

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SECRETdelivery number NCTOOI0924) The instruction established SecDef-approved standing rules ofengagement (SROE) that implement the inherent right of self-defense and provide guidance forthe app lication of force formission accomplishment .

0 The instructions apply to US forces during military attacks against the United Statesand during all military operations, contingencies, and terrorist attacks occurring

outside the territorial jurisdiction of the United States.(U) Peacetime operations conducted by the US military within the territorial jurisdictionof the United States are governed by use-of-force rules... determined on a case-by-casebasis.

(U) For purposes ofthe instruction Commander, US Element NORAD, is referred to as aCINCo

(U) The NCA approve ROE for US Forces. NCA is later defined in an attached. glossary as: The President and the Secretary of Defense or their duly deputized

alternates or successors. Also called NCA.

(U) It is policy that these rules do not limit a commander s inherent authority and

obligation to use all necessary means available and to take all appropriate actions inself-defense of his unit and other US forces in the vicinity.

je The authority to exercise national self-defense resides with the NCA and CINCs who within their designated areas ofresponsibility, have the authority to declare forceshostile. [Note: this begs a question since the instruction considers the NORADCommander to be a CINC .J

~ As noted above, the instruction does not pertain to peacetime operations. Yet, theinstruction also provides the following guidance to a commander havin air-defenseresponsibilities. He may direct engagement

I E.O. 13526, section 1.4(a)

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6. (U) That poses the question of whether or not the nation was at war on the morning ofSeptember 11,which leads to the distinction between Peacetime, Transition and Wartime ROEas contained in APPENDIX 13 to ANNEX C to CINCNORAD CONPLAN 3310-96 (U), RULES OF ENGAGEMENT (ROE) 0 [as amended on 24 September 1999J

J e Peacetime ROE apply during NORAD DEFCON 5 and 4.

k 8 5 CINCNORAD retains the authority to declare forces hostile and order engagementswhen Peacetime ROE apply. Hostile Force is defined by CJCS to be any civilian,paramilitary, or military force or terrorist(s), with or without national designation, thathas committed a hostile act, exhibited hostile intent, or has been declared hostile byappropriate US authority.

I E.O. 13526, section 1 .4(a)

E eTransition ROE apply during NORAD DEFCONs 3, 2, or 1 .

~I . I E.O. 13526, section 1 .4(a) airborne objectswhich are participating in or indicate clear intent to participate in an attack against the U S

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SECRETor Canada. 0 E.O. 13526, section 1.4(a) 0 ave emergency authority to de clareforces hostile and , if necessary, to order engagements if in their judgment an actualattack is under way against the US or Canada. Airborne objects is later defined toinclude aircraft, missiles, and UAV.

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. e CINCNO~D may direct wartime ROE at DEFCON 1

f € J 1 I E.O. 13526, section 1.4(a) I Imay ,if necessary to mount a defense against a surprise attack, implement Wartime ROE beforebinational command author ities have declared war. Wartime ROE ar e automaticallyimplemented for NORAD upon CINCNORAD's declaration of Air Defense Emergency(ADE) or for individual sectors or regions by a sector or region commander's declarationof Air Defense Warning (ADW) RED. These declarations may be made anytime thesituation re uires based on the 'ud£ment of the commander concerned,.re ardless of theDEFCON. I E.O. 13526, section 1.4(a) I

7. ~ A reading of the NORAD document gives the sense that it was written for an attackexpected from off shore. However, there appears to be no precl uding language concern ing an

attack from within. A reading of the NORAD and JCS documents, combined, give the sense that shootdown authority may have existed at a level below the NCA, depending on how thedeveloping situation was interpreted . That leads to an examination of information gleaned fromdocuments received to date. Following is a chronological listing of events as captured in logsand transcripts reviewed to date. [a1lentries are considered to be SECRET until context for alower classification can be established. All entries are EDT]

0913: The NORAD Missile Warning Center notes that two large passenger planescrashed into theWTC. CINCNORAD assessment was not necessary

0915: The NMCC chronology establishes that CIA convened a NOIWON

0920: The NMCC chronology reflects that the Assistant Deputy Director for Operations

directed a Significant Event Conference (SIEC) with the CINCs and the Services0925: The Secret Service timeline reflects that an open line with FAA PresidentialOperations was established

UNK: The NORAD Command Director log has an in sequence but untimed notation that VP directs that any threat aircraft over DC may be engaged. [Note : this is an anomaly]

0933: The NMCC chronology establishes that NORAD requested an Air Threat- Conference and the DDO concurred

0934: The NMCC chronology reflects that the SIEC was dropped

0939: The NMCC chronology notes that the DDO entered the ATC, possible threat toCONUS

0940: The NMCC chronology contains a NORAD-related entry : conf licting FAAreports on hijacks, one out of JFK enroute DC, no assessment. CINCNORAD notdeclaring Air Defense Event, recommends reconvene when more info available

0943: The NMCC chronology contains an entry: I Iasks PEOC forinstructions, is told to prepare to evacuate VP I

E.O. 13526, section 1.4(g)

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SECRET0943: The NM CC chrono logy shows that the Nat ional Air Operations Center (NAOC )secondary aircraft is airborne out of Andrews [Note : this ma y be WORD O NE orSWORD O NE, as reflected in Andrews flight strips of that da y]

0944: The NMCC chronology shows that the PEOC instructedl ------- ,Ito remain

on alert I E.O. 13526, section 1.4 g

0948: The NORAD Missi le Warnin g Center Lo g records a Penta gon explosio n,Cheyenne MT is in forc e protect ion bra vo, worldwid e forc e protection alpha.CINCNORAD assessmen t was no t necess ary.

0949: Th e NM CC chrono logy shows that CINCNORAD d irected all air so verei gntyaircra ft to battle stations - fully armed

0950: The NORAD Command Director Log notes that Exercise Glob al Guardian wascancelled per NORAD J3

0955: The NMCC ch ronology not es that AF OPS reported that the White House reques tedfighte r coverage, NORAD will process and pro vide ETA

0955: T he Join t Surveillance S ystem radar files s how that Air Force One is airborne

0958: The NM CC c hronolo gy notes that WHCA bro ke into confe rence a nd told DDO tostand b y-COL ? from PEOC rela ys request from Hadle y:/ Ifighter escort for Presiden t, fighter CAP over DC I E.O. 13526, section 1.4 g I0959: The NMCC chronology and the NORAD Command Director Log both not e thatCINCNOR AD assesses concern

0959: The NM CC chronolo gy conta ins a cryptic entry, without explanation : EA goes tobox , ADDO confirms, then holds . Box is not opened. .

1000: Th e CO NR ch at transcr ipt records that Whit e House ha s directed fighter coverageover the White Hous e

1010: Th e Join t Sur veillance S ystem rad ar files s how that AF One d iverted to the w est

1011: The CONR chat t ranscript reflec ts that WADS [Western Air Defense Sector }asked What ROE are we working under

1012: The NMCC chronology notes that the PEOC directs N AOC airborne

1012: The NM CC chrono logy records tha t PEOC COL ? stat es VP has d irected tha tfighters can confirm alc is hi jacked the y are cleared to take i t out

1014: The CO NR cha t transcript ref lects that WADS requested an ATO (Air Ta skingOrder ) chang e rea l world request ing to load slammers

1014: The CO NR chat transcript re flects that the CO NR DCO told WADS /SEADS(Southeast A ir Defense Sector ) to bring up with li ve missiles, cleared to load slammers

1016: The NMCC chronology records that PEOC confirms th at VP has cleared alc toengage an y alc inbound to DC wi thout authori zation

1016: T he CO NR cha t transcript r ecords that CO NR DCO e stablished Peace time RO Estill

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SECRET1018: The NM CC chrono logy records DDO te lling PEOC UA93 is repor ted crashed inPA . PEOC asks that VP wants to know if it is a result of fighter engagement DDO askedNORAD to con firm how a lc went down. NORAD has no info on engagement F AA hasno info

1024: The CONR chat t ranscript records the WADS Director o f Operations telling

CO NR he got the word on armament , more than guns. Can you please he lp us with ROE1025: The Secre t Service timeline shows that th e VP protection detail not ified that VPhas d irected m ilitar y to shoot do wn the alc if it ge ts too close to the WH

1026: The NOR AD Air Warning Center Log re flects that CO NR said present set of a/chas guns , next set wi ll have missiles . The CONR chat transcr ipt records that CONR DCOtold WADS, still peacetime RO E, NCA working modificat ions

1030: The Secret Service timeline reflects a collective decision to not return POT US toWH until conditions in WDC stabilize

1030: The NMCC chronolog y reflects that Ste ve Hadle y wants to get word to VCJCSthat there is an a ircra ft 5 m iles out an d that the VP's gu idance is to take it out.

1031: The CO NR cha t transcrip t records that VP has cleared us to interc ept track s ofinteres t and shoo t them do wn if the do no t respond, per CONR

1032: The NMCC chronology reflects that Hadley added that any informat ion about th ealc that can be gathered before you ha ve to take it out would be useful

1034: A JCS chronolog y reflects that MG Ward discussed authority and dec isionmade b y wi th an u /I person . General Arno ld, CO NR, was mentioned

1034: The NMCC c hronolo gy reflec ts that VP ' old SECDEF he h ad talked to thePresiden t VP asked if forces were o n a heightened s tate o f aler t SECD EF co nfirmed

1035: The NM CC c hronolog y reflec ts that VP reiterated instruct ions to SECDE F to takethem ou t. SECDEF asked who the instruct ions were gi ven to VP said instru ctions wererelayed from PEOC to operations center and to the Air Force

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1038: The CONR chat transcript records that VP has cleared us to intercept trac ks ofinterest and to shoot them down i f they do not respond , per CC [Commander , probablyArnold ]

1041: The NMCC chronolo gy reflec ts that SECDEF to ld VP his is recommen dingDEFCO N 3. V P to ld SECDEF he should conf er with POT US and let him ma ke dec ision,but he agr ees.

1042 : The CO NR ch at chrono logy clarifies that clear ance to shoo t from VP is to savelives on the ground i f alc do not respond

1043: The NMCC chronology reflects that DDO directed conferees to wait onimplementing DEFCO N 3

1046: The NMCC c hronolog y reflects that DEFCO N 3 is decl ared b y VCJCS a t 1046EDT

1057: The NORAD Air Warnin g Cen ter log re flects tha t CJCS d irected w orld-wid eDEFCO N 3, CINC NOR AD re viewing for appropr iate actions

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2012-042 larson release document 24

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