9/11 Commission Monograph Highlights Legal Education At Its Best

Tuesday, October 4, 2011 - 00:00

The Editor interviews John J. Farmer, Jr ., Dean, Rutgers Law School and Andrew Gimigliano , Editor-in-Chief, Rutgers Law Review.

Editor: What was your role on the 9/11 Commission? Please describe the responsibilities of Team 8.

Farmer: I was senior counsel of the Commission and the leader of Team 8. Our responsibility was to reconstruct the events of the day, describing who knew what information, when they learned it and what they did about it. This process involved every level of the crisis, from President Bush and Vice President Cheney down to responders on the streets of New York.

Editor: How and when did you decide to create an audio monograph in fulfillment of Team 8's responsibilities?

Farmer: In the course of our investigation, it became clear that the best way to convey the reality of that morning was through the real-time voices of people who were charged with responding to the attacks as they occurred. Our goal was to set forth the facts objectively and with a minimum of value-laden language. We wanted to let people speak for themselves, as it were, while the attacks were actually happening. Memories are tricky, and recollections can be faulty; thus, real-time reactions are the best objective evidence.

Editor: Tell us about the monograph itself. We understand it contradicted some original accounts by senior officials.

Farmer: Yes. There were several accounts given to Congress and the media prior to the Commission's existence that simply didn't make sense as we began to develop the record, which complicated our work. When we obtained the actual records and then started analyzing and mapping out a timeline, we discovered that the true occurrences on 9/11 differed materially and substantially from official accounts.

The most significant difference: official accounts reflected that after the second plane hit the World Trade Center, the national command structure - from the White House and Pentagon and on down - recovered from the shock of the first two planes and then proceeded in an orderly fashion. These accounts stated that the military knew about United 93 and had located the flight on radar - that they were tracking it and were prepared to shoot it down if necessary because the authorization had been passed down from the President. Virtually none of these accounts turned out to be true.

In truth, the military didn't learn about United 93 until after it went down. It never was located on their radar scopes, and the shoot-down authorization came through substantially after the plane crashed. In real time, the military puzzled over the authorization because it came down from the Vice President, not the President, and because there were no known hijackings in the sky at that point. Thus, initially, the authorization was not issued.

Editor: It seemed that much of the taped material involved only lower level people. Is it true that the highest ranking military officer who speaks on the tapes was a major?[Note:the commander at NEADS was a Colonel; the Major who was making the decisions was speaking to him constantly, but the tapes record only the Major's voice.]

Farmer: That's right. The other truth of the day was that critical military and Federal Aviation Administration decisions were made at far lower levels than called for in organizational charts. The lesson here is that when events are unfolding in a compressed timeframe, there is no time to go up and down the chain of command. People have to be trained to handle these emergencies as they actually are lived.

Hurricane Katrina drove this point home, and the paradigm for emergency response has changed significantly to accommodate the fact that critical decisions may be required before top officials even learn of situations. The role for senior officials becomes one of ratifying or changing those decisions. In some respect, we have learned this lesson.

Editor: What were the barriers to finalizing the complete audio monograph?

Farmer: Because our time was short, the task of getting records cleared for release by the Executive Branch became increasingly frustrating. As we faced the deadline for the final report, we were told simply that there would not be time to get the audio clips and the monograph itself cleared for release with our report. So we shelved the audio monograph and completed a regular monograph that ultimately was cleared four or five months after the Commission finalized the report before going out of business. It was a cumbersome process, and it's taken seven years for this information to be released into the public domain.

Editor: I understand some pieces are still missing, do you expect that those additional materials will become available at some time?

Farmer: In my mind, it will take years to clear many critical documents, for example, the air threat conference call among top officials that was managed by the Pentagon, which provides a real sense of their situational awareness. Another example is the cockpit voice recorder for United 93, which I believe has not been released because of sensitivities about the nature and extent of the violence. Eventually, both should be cleared and will provide even sharper focus on the critical decisions made at lower levels.

Editor: We understand that Rutgers Law School (RLS) students participated in the process. Can you describe their contributions?

Farmer: One of my team members and a retired military intelligence officer, Miles Kara, had focused on the audio monograph and was working with the National Archives over the years to get materials released. Earlier this year, he informed me that the document and the audio clips were released and that he needed technical help with transcribing the audio clips, figuring out how to embed them technically into the monograph itself and then finding a home for the final product.

When I agreed to help him, I frankly didn't think there would be much interest, particularly after I spoke with publishers who expressed the same suspicion. Rutgers Law Review (http://www.rutgerslawreview.com/) sponsored a symposium last February entitled "Unsettled Foundations, Uncertain Results: 9/11 and the Law, Ten Years After," focusing on 9/11 and the status of the law ten years later. It struck me that the monograph provided the perfect introduction because it centered quite literally on the moment when legal and regulatory foundations of our national security edifice were shaken and when the rules of engagement and national security laws really were tested.

I brought my idea to Andrew Gimigliano, who was the incoming editor-in-chief for the Rutgers Law Review. Andy was enthusiastic about it from the start; thus, our students agreed to do the grunt work and provide the technical expertise to deliver the monologue in publishable format.

Gimigliano: When Dean Farmer approached the Rutgers Law Review about this project, we were immediately eager to get involved. The senior leadership considered the audio monograph in the context of what law reviews generally cover and recognized that it fell outside the scope of what we normally publish.

Ultimately, we decided that this information was so important and also central to furthering our own academic dialogue, particularly in light of the symposium, that Rutgers Law Review was the perfect place to publish it.

Over the summer two of our editors worked with Dean Farmer and Miles Kara on listening to all of the audio, verifying the audio clips against the transcripts and consolidating and organizing the results. Another editor already had been working on a general redesign of our website and figured out how to integrate the audio into the monograph for viewing online. She determined the ultimate layout and worked out the technical aspects of presenting the material. Once the website went live, we experienced far more traffic than anticipated - almost seven million hits within five days - which required another day's work to migrate to a more robust server. At the same time, we were handling media inquiries: 100 from major national media outlets plus international outlets and radio interviews. For students, it was overwhelming in the good sense of knowing just how many people were reaching out for this information. We've received very positive feedback on the website's compelling presentation and ease of navigation.

Editor: What were takeaways from the project in terms of legal education?

Farmer: From the standpoint of studying the law and legal structures, it amounts to a case study on what happens when there is a mismatch between doctrine and reality. In this case, the mismatch played out in the most pressurized situation imaginable; however, that same dynamic has occurred in virtually every aspect of national security law since then. Thus, the project was a perfect introduction to our symposium addressing this enduring disconnect between doctrine and reality; it's an unmatched study of what happens when law does not keep up with reality.

Gimigliano: For students, this project was more than an academic exercise; it has real-world impact well beyond the walls of our classrooms, and our symposium continued the dialogue about changes in national security law. We hope that readers will not view the monograph through the lens of the last ten years. We want them to travel back to that day and remember their own experience and how we felt as a nation - and then think forward from that point about how we've arrived where we currently stand, what we've done right or wrong and how to move forward.

For students on the Rutgers Law Review, this dialogue has continued since February as we prepare to publish articles generated from the symposium that touch on topics such as extrajudicial killings and habeas corpus issues related to detainees in Guantanamo Bay.

Our work on the 9/11 project has inspired emails from people around the world, including former commercial airline pilots, military personnel and a grandmother who has one child in Afghanistan and another in Iraq. This experience opened our eyes to issues beyond academics and, as graduation approaches, has better prepared us to take our part as attorneys in the world.

Editor: What makes RLS graduates impressive candidates for jobs? The students with whom we've worked have had no difficulty finding jobs.

Farmer: Without question, the job market is difficult. One of our strengths has always been our commitment to student immersion in the real world, which ranges from internships at The Metropolitan Corporate Counsel to experiences with the Rutgers Law Review. Right now, I am advising on congressional redistricting, and Constitutional Litigation Clinic students from Newark and Camden will assist with this process. Prospective employers appreciate that RLS students graduate with working knowledge of real issues and the fundamentals of practicing law.

Editor: Have projects of this nature and magnitude worked their way into the RLS curriculum as a whole?

Farmer: It's not something you can predict. The monograph project evolved from my work on the 9/11 Commission and from Miles Kara's commitment to finish the project. With congressional redistricting, I saw the opportunity to teach the realities of election law - again immersing students in current, real-world activities. Rutgers Law School's record matches all others in terms of offering extraordinary and creative experiences.

Editor: Please tell us about other project-oriented initiatives at RLS. We understand you run a Law Clinic, for example.

Farmer: We were a pioneer in developing law clinics in the country, and they remain one of our strengths. While there are a few outstanding projects that make headlines, our clinics also provide needed resources for ordinary people to access legal services and find justice. RLS has seven clinics that handle issues ranging from juvenile justice criminal cases and intellectual property to incorporations and real estate closings. RLS students also get involved in the community, for example, in training young people about their legal rights. These outreach projects educate students, further the cause of justice and serve the community, which I frankly believe are RLS's obligations as a school and as a public institution. For more information about RLS, please visit http://www.law.newark.rutgers.edu/files/u/Clinic%20News%20Fall%202011-Final.pdf.

Editor: What benefits can corporate legal departments and law firms reap from these initiatives as they hire RLS graduates?

Farmer: Rutgers Law School graduates receive excellent training in both the theory and the practice of law. First year students study the rudiments in core courses, and, from there, students set their own direction in pursuing their careers. They're a tremendously well rounded group of students, with solid grounding in legal theory and meaningful roots in the real world. Employers appreciate that RLS students arrive for their first day of work ready to run with the ball.