COMMISSION SENSITIVE

SEC-RE'~

• Event: Commissioner

Type: Preliminary Paper

MEMORANDUM FOR THE RECORD

Ben- Veniste requested information on Sept 11th shoot down authority

Date: August 27, 2003

Prepared By: Miles Kara

Team: 8

Special Access Issues: Secret

1. (U) Event. On August 26, 2003, Commissioner Ben- Veniste asked where it was documented
that shootdown authority on September 11, 2001 resided with the President. Following is a
preliminary paper that documents initial research conducted to answer that question.

• 9/11 Classified Information

3. (U) Methodology. Three avenues were pursued. First, cans were made or received from
selected individuals. Second, Rules-of-Engagement documents received from DoD/JCS were
reviewed. Third, relevant information concerning September II was extracted from documents
received to date. Staff has not yet seen the Air Threat Conference Call transcript.

4. (rn.QO) Calls made and received .

•
...........

COMMISSION SENSITIVE
~8ECltET-
 .. ,...r· ~\,. :

COMMISSION SENSITIVE
SECnET

•
• Stewart Aly, DoD OGC, opined that there was nothing in Title 10 USC that spoke to
such Presidental authority. If the authority was in writing it would likely be in NSC
documents.
• Dan Marcus, Commission General Counsel, based on calls he made, also observed that
the Presidential authority was likely not contained in statutes and that NSC documents
would be the most likely source.
• Sam Brinkley and Dana Hyde, Commission Staff, both assessed that such authority
resided in the President's role as Commander-in-Chief and the oath he took to protect
and defend the nation.
S. (U) Rules of Engagement. (Emphasis Added)
(U) Chairman of the Joint Chiefs of Staff Instruction 3121.01A, 15 January 2000, "Standing
Rules of Engagement for US Forces" was in effect on September 11,2001. (DoD document
delivery number NCTOOI 0924) The instruction established "SeeDef-approved standing rules of
engagement (SROE) that implement the inherent right of self-defense and provide guidance for
the application of force for mission accomplishment."
(U) The instructions apply to US forces during military attacks against the United States
and 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 jurisdiction

•
of the United States are governed by use-of-force rules ... determined on a case-by-case
basis •
(U) For purposes of the instruction Commander, US Element NORAD, is referred to as a
CINCo
(U) The NCA approve ROE for US Forces. NCA is later defined in an attached
glossary as: "The President andthe 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 in
self-defense of his unit and other US forces in the vicinity.

9/11 Classified Information

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

-g"ECItET-- 2
COMMISSION SENSITIVE
 COMMISSION SENSITIVE

•
9/11 Classified Information

• -sE€RE'~-
COMMISSION SENSITNE
3
 COMMISSION SENSITIVE

•
I""tt ...... ---._- -

• 9/11 Classified Information

• ~E€'RE~·-
COMMISSION SENSITIVE
4
 COMMISSION SENSITIVE

• 9/11 Classified Information

• -SECRET-
COMMISSION SENSITIVE
5
 COMMISSION SENSITIVE

• 9/11 Classified Information

• -SECRE'~""
COMMISSION SENSITIVE
6