While everyone else has been hunting Iraq-Al Queda snipes, I've been trying to figure out one aspect of the newly published 9-11 Commission report that discusses the chaos at the FAA and NORAD on the morning of September 11th. What I find odd is this factoid:
Cheney, who had been moved to an emergency bunker under the White House, approved the shoot-down order after reports surfaced about 10 a.m. that Flight 93 was headed toward Washington. Cheney said he had received approval during an earlier call with Bush to issue the order.But even after a top NORAD official, Gen. Larry Arnold, broadcast Cheney's message at 10:31 a.m., lower-level commanders did not pass on the order to the pilots.
I freely admit that the tangled weeds of bureacracy are a mystery to me, but I'm fairly sure that the Vice-President has no command authority, unless the President is incapacitated and he fills the slot per the Constitution. I'm also certain that a simple, "Well, the President told me" rationale doesn't fly, either.
During the Cold War, the National Command Authority established clear and direct authority, lines of communication, and ensured that the President's will was not only followed, but validated. As far as I know, the Vice-President, having no military authority granted by the Constitution, was not part of the NCA. Granted, this set-up dealt with launching nuclear missiles, but I would imagine that shooting down commercial airliners filled with civilians would qualify as an extraordinary circumstance requiring the order of a civilian member of the Chain-of-Command, of which the Vice-President is not a member (I could be wrong on that, but by the Constitution, he wouldn't be. Besides, he's never been listed in any of my various CoC's).
So why was he giving orders and why were they not being verified by military commanders? You can't just go by someone's word, you need a validated message by someone within the Chain.
According to the Chronicle story, the President had trouble establishing secure communications with Washington so he could monitor the situation and issue orders. Even in this case, the Vice-President can't assume Command Authority, especially when he states that the President told him that shooting down civilian airliners was a go. If the President could communicate with the VP, then he could communicate with the appropriate military authority. If he couldn't establish a secure channel to the appropriate military officials to give orders, then any non-secure communications the VP said he had with the President would also be suspect and considered void or awaiting validation.
In any event, it seems highly inappropriate for the Vice-President to assume powers not granted by the Constitution, as well as violating an established system of validation and accountability that served us well during the Cold War.
The only way I can see this scenario being valid is if this clause in the Constitution were in effect:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the VicePresident
If the President were unable to Communicate with the appropriate agencies, then this clause could be used as justification for Vice-Presidential usurption of authority, yet there are two immediate problems:
1. Despite several reassurances to the contrary on September 11th and the days immediately following, the President was unable to discharge the Powers and Duties of his Office during the critical period our nation was under attack, making Dick Cheney the President. Though he wasn't incapacitated, you could say that his inability to communicate would temporarily render him unable to discharge his Duties. If that was the case, then it would be a politically embarassing admission for the Administration.
2. Even though the President may have not had secure communications, he did have communications with his Vice-President (by the VP's own admission). That being the case, the President could not be assumed to have been unable to discharge his duties, rendering the clause irrelevant and making the Vice-President's assumption of authority vested solely in the Office of the President unconstitutional.
All in all, this act by the Vice-President sets a bad precedent for future Administrations, as the mere word of a Vice-President could be considered sufficient for communicating the will of the President to the military, over which he has no Constitutional authority.