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Context of '(Between 8:55 a.m. and 9:36 a.m.) September 11, 2001: Flight 77 Passenger Possibly Leaves Voicemail Messages at Her Husband’s Old Law Firm'

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Flight 77 departs Dulles International Airport near Washington, ten minutes after its 8:10 scheduled departure time. (Washington Post 9/12/2001; CNN 9/17/2001; Ellison 10/17/2001; Associated Press 8/21/2002; 9/11 Commission 6/17/2004)

Charles Burlingame.Charles Burlingame. [Source: Family photo / Associated Press]The 9/11 Commission says the hijacking of Flight 77 takes place between 8:51 a.m., when the plane transmits its last routine radio communication (see 8:51 a.m. September 11, 2001), and 8:54 a.m., when it deviates from its assigned course (see (8:54 a.m.) September 11, 2001). Based on phone calls made from the plane by flight attendant Renee May (see (9:12 a.m.) September 11, 2001) and passenger Barbara Olson (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001), the commission concludes that the hijackers “initiated and sustained their command of the aircraft using knives and box cutters… and moved all of the passengers (and possibly crew) to the rear of the aircraft.” It adds, “Neither of the firsthand accounts to come from Flight 77… mentioned any actual use of violence (e.g., stabbings) or the threat or use of either a bomb or Mace.” (9/11 Commission 7/24/2004, pp. 8-9; 9/11 Commission 8/26/2004, pp. 29) People who knew Charles Burlingame, the pilot of Flight 77, will later contend that it would have required a difficult struggle for the hijackers to gain control of the plane from him. (Washington Post 9/11/2002) Burlingame was a military man who’d flown Navy jets for eight years, served several tours at the Navy’s elite Top Gun school, and been in the Naval Reserve for 17 years. (Associated Press 12/6/2001) His sister, Debra Burlingame, says, “This was a guy that’s been through SERE [Survival Evasion Resistance Escape] school in the Navy and had very tough psychological and physical preparation.” (Cohen 12/30/2003) Admiral Timothy Keating, who was a classmate of Burlingame’s from the Navy and a flight school friend, says, “I was in a plebe summer boxing match with Chick, and he pounded me.… Chick was really tough, and the terrorists had to perform some inhumane act to get him out of that cockpit, I guarantee you.” (CNN 5/16/2006) Yet the five alleged hijackers do not appear to have been the kinds of people that would be a particularly dangerous opponent. Pilot Hani Hanjour was skinny and barely over 5 feet tall. (Goldstein, Sun, and Lardner 10/15/2001) And according to the 9/11 Commission, the “so-called muscle hijackers actually were not physically imposing,” with the majority of them being between 5 feet 5 and 5 feet 7 in height, “and slender in build.” (9/11 Commission 6/16/2004) Senator John Warner (R-VA) later says “the examination of his remains… indicated Captain Burlingame was in a struggle and died before the crash, doing his best to save lives on the aircraft and on the ground.” (White 12/8/2001)

Barbara Olson, a passenger on Flight 77, possibly calls the law firm her husband, Solicitor General Ted Olson, used to work for and leaves messages on his voicemail there. (Federal Bureau of Investigation 9/13/2001) Barbara Olson calls Ted Olson at his office at the Department of Justice in Washington, DC, two times this morning and, in the calls, says her plane has been hijacked and gives details of the hijacking (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001 and (Between 9:20 a.m. and 9:30 a.m.) September 11, 2001). (CNN 9/14/2001; 9/11 Commission 7/24/2004, pp. 9) It is possible that she also tries leaving information about the hijacking for her husband by calling his number at the firm he worked for before becoming solicitor general. An FBI document will later state that on September 13, two days after he was interviewed by the FBI about his wife’s calls from Flight 77, Ted Olson talked over the phone with the FBI and “advised he had new messages on his voicemail at his old law firm.” During the conversation, the document will state, he said that “his old secretary would provide access to these calls to the FBI.” The document will make no mention of the contents of the voicemail messages or state the times at which they were recorded. (Federal Bureau of Investigation 9/13/2001) Olson’s old law firm is Gibson, Dunn & Crutcher. Before taking over as solicitor general in June this year, Olson worked in the firm’s Washington office. (US Department of Justice 6/24/2004) There will be no mention of any calls to Ted Olson’s old law firm in a list supposedly showing all of the calls made from Flight 77 today that the Department of Justice will provide to the 9/11 Commission. The list will include four “connected calls to unknown numbers,” which, according to the 9/11 Commission Report, include the two calls Barbara Olson made to Ted Olson at his office at the Department of Justice. The FBI and the Department of Justice will in fact determine that all four calls were communications between Barbara Olson and her husband’s office. The 9/11 Commission will note, though, that there is no “direct evidence” showing this. (9/11 Commission 5/20/2004; 9/11 Commission 7/24/2004, pp. 455)

Lori Keyton, a secretary in the office of Solicitor General Ted Olson at the Department of Justice, receives a number of unsuccessful calls, which presumably are made by Barbara Olson, the wife of the solicitor general, who is a passenger on Flight 77. (Federal Bureau of Investigation 9/11/2001; 9/11 Commission 8/26/2004, pp. 94) Flight 77 was hijacked between around 8:51 a.m. and 8:54 a.m., according to the 9/11 Commission Report (see 8:51 a.m.-8:54 a.m. September 11, 2001). (9/11 Commission 7/24/2004, pp. 8) At about 9:00 a.m., Keyton receives a series of around six to eight collect calls. Her phone has no caller identification feature, so the caller is unknown. All of the calls are automated and, in them, a recorded voice advises of the collect call and requests that Keyton hold for an operator. A short time later, another recording states that all operators are busy and so the person should please hang up and try their call later. After the last of these automated calls occurs, Keyton will answer a call from a live operator, connecting Barbara Olson to her husband’s office (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001). She will answer a second call from Barbara Olson that is made directly to the office a few minutes later (see (Between 9:20 a.m. and 9:30 a.m.) September 11, 2001). Keyton will immediately put Barbara Olson through to her husband after answering both of these calls. (Federal Bureau of Investigation 9/11/2001; 9/11 Commission 8/26/2004, pp. 94) A list compiled by the Department of Justice supposedly showing all of the calls made today from Flight 77 will apparently make no mention of the failed calls that Keyton answers. It will mention four calls from an unknown number, which are believed to include the two successful calls made by Barbara Olson. It will also include one call—not six to eight—that is described as being made by Barbara Olson to Ted Olson’s office, which failed to connect, but this is made just before 9:19 a.m. rather than around 9:00 a.m., when the failed calls received by Keyton reportedly occur (see 9:15 a.m.-9:30 a.m. September 11, 2001). (9/11 Commission 5/20/2004; 9/11 Commission 7/24/2004, pp. 455)

In a phone call from Flight 77, flight attendant Renee May describes six hijackers on her plane, yet official accounts will state there are only five. May is able to call her parents from Flight 77 to report that her plane has been hijacked (see (9:12 a.m.) September 11, 2001). She says six individuals have carried out the hijacking. (9/11 Commission 7/24/2004, pp. 9; 9/11 Commission 8/26/2004, pp. 31) Yet, despite this, the official claim put forward by the FBI and later the 9/11 Commission will be that there are five hijackers—not six—on this flight. (Federal Bureau of Investigation 9/27/2001; 9/11 Commission 8/26/2004, pp. 27) Apparently, the only other person to make a phone call from Flight 77 is passenger Barbara Olson, who reaches her husband (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001). (CNN 9/12/2001; 9/11 Commission 1/27/2004 pdf file) But Olson does not appear to make any reference to the number of hijackers on the plane. (Federal Bureau of Investigation 9/11/2001; CNN 9/14/2001; 9/11 Commission 7/24/2004, pp. 9)

Barbara Olson.Barbara Olson. [Source: Richard Eillis / Getty Images]Barbara Olson, a passenger on Flight 77, talks over the phone with her husband, Ted Olson, the solicitor general of the United States, and gives details of the hijacking of her plane, but the call is cut off after about a minute. (9/11 Commission 5/20/2004; 9/11 Commission 8/26/2004, pp. 32) Flight 77 was hijacked between around 8:51 a.m. and 8:54 a.m., according to the 9/11 Commission Report (see 8:51 a.m.-8:54 a.m. September 11, 2001). (9/11 Commission 7/24/2004, pp. 8) Sometime later, Barbara Olson tries calling her husband from the plane. The call initially reaches Mercy Lorenzo, an operator for AT&T, and after a short conversation, Lorenzo connects her to Ted Olson’s office at the Department of Justice in Washington, DC (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001). (Federal Bureau of Investigation 9/11/2001; Federal Bureau of Investigation 9/11/2001)
Secretary Answers the Call - There, the call is answered by Lori Keyton, a secretary. Lorenzo says there is an emergency collect call from Barbara Olson for Ted Olson. Keyton says she will accept it. Barbara Olson is then put through. She starts asking, “Can you tell Ted…” but Keyton cuts her off and says, “I’ll put him on the line.” (Federal Bureau of Investigation 9/11/2001) Keyton then notifies Helen Voss, Ted Olson’s special assistant, about the call. She says Barbara Olson is on the line and in a panic. The call is then passed on to Ted Olson. (Federal Bureau of Investigation 9/11/2001) Voss rushes up to him and says, “Barbara is on the phone.” Ted Olson has been watching the coverage of the crashes at the World Trade Center on television and was concerned that his wife might have been on one of the planes involved. He is therefore initially relieved at this news. However, when he gets on the phone with her, he learns about the crisis on Flight 77. (CNN 9/14/2001; Isikoff 9/28/2001; Olson and Boies 6/18/2014)
Barbara Olson Provides Details of the Hijacking - Barbara Olson tells her husband that her plane has been hijacked. She gives no information describing the hijackers. She says they were armed with knives and box cutters, but makes no mention of any of the crew members or passengers being stabbed or slashed by them. She says they moved all the passengers to the back of the plane and are unaware that she is making a phone call. After the couple have been talking for about a minute, the call is cut off. Ted Olson will then try to call Attorney General John Ashcroft on a direct line he has to Ashcroft but receive no answer. After that, he will call the Department of Justice command center and ask for someone there to come to his office (see (Between 9:17 a.m. and 9:29 a.m.) September 11, 2001). Barbara Olson will reach her husband again and provide more details about the hijacking a short time later (see (Between 9:20 a.m. and 9:30 a.m.) September 11, 2001). (Federal Bureau of Investigation 9/11/2001; Isikoff 9/28/2001; 9/11 Commission 7/24/2004, pp. 9; 9/11 Commission 8/26/2004, pp. 32)
Barbara Olson Is 'Incredibly Calm' - Accounts will later conflict over how composed Barbara Olson sounds during the call. She “did not seem panicked,” according to Ted Olson. (Federal Bureau of Investigation 9/11/2001) “She sounded very, very calm… in retrospect, enormously, remarkably, incredibly calm,” he will say. (CNN 9/14/2001) But Keyton will say that when she answered the call, Barbara Olson “sounded hysterical.” (Federal Bureau of Investigation 9/11/2001) Ted Olson will add that he did not hear any noises on the plane other than his wife’s voice. (CNN 9/14/2001)
Accounts Will Conflict over What Kind of Phone Is Used - Accounts will also be contradictory over whether Barbara Olson’s call is made using a cell phone or an Airfone. Keyton will say there is no caller identification feature on her phone and so she was unable to determine what kind of phone Barbara Olson used. (Federal Bureau of Investigation 9/11/2001) Ted Olson will tell the FBI that he “doesn’t know if the calls [from his wife] were made from her cell phone or [an Airfone].” He will mention, though, that she “always has her cell phone with her.” (Federal Bureau of Investigation 9/11/2001) He will similarly tell Fox News that he is unsure whether his wife used her cell phone or an Airfone. He will say he initially assumed the call must have been made on an Airfone and she called collect because “she somehow didn’t have access to her credit cards.” (Fox News 9/14/2001) But he will tell CNN that she “called him twice on a cell phone.” (CNN 9/12/2001) And in a public appearance in 2014, he will imply that she called him on her cell phone, saying, “I don’t know how Barbara managed to make her cell phone work” while she was in the air. (Olson and Boies 6/18/2014) Furthermore, a spokesman for Ted Olson will say that during the call, Barbara Olson said she was locked in the toilet. If correct, this would mean she must be using her cell phone. (Gardham 9/12/2001; Arkell and France 9/12/2001) But in 2002, Ted Olson will tell the London Telegraph that his wife called him on an Airfone and add, “I guess she didn’t have her purse, because she was calling collect.” (Harnden 3/5/2002) And based on a study of all Airfone records, an examination of the cell phone records of all of the passengers who owned cell phones, and interviews with the people who received calls from the plane, the Department of Justice will determine that all of the calls from Flight 77 were made using Airfones.
Call Will Be Listed as Being Made to an 'Unknown' Number - A list compiled by the Department of Justice supposedly showing all of the calls made today from Flight 77 will include four “connected calls to unknown numbers” (see 9:15 a.m.-9:30 a.m. September 11, 2001). The 9/11 Commission Report will determine that these include the two calls made by Barbara Olson to her husband. According to the information in the list, her first call must occur at 9:15 a.m., 9:20 a.m., or 9:25 a.m. However, the FBI and the Department of Justice will conclude that all four “connected calls to unknown numbers” were communications between Barbara Olson and her husband’s office. (9/11 Commission 5/20/2004; 9/11 Commission 7/24/2004, pp. 455)
Barbara Olson Originally Planned to Fly Out a Day Earlier - Barbara Olson is a former federal prosecutor who is now a well-known political commentator on television. (McCarthy 9/13/2001; Lewis 9/13/2001) She was flying to Los Angeles to attend a major media business conference and to appear on Bill Maher’s television show, Politically Incorrect, this evening. (CNN 9/14/2001; Olson and Boies 6/18/2014) She was originally scheduled to be on Flight 77 on September 10, but delayed her departure because today is Ted Olson’s birthday, and she wanted to be with him on the night before and have breakfast with him this morning. (CNN 9/12/2001; Scotsman 9/13/2001; Olson and Boies 6/18/2014) At around 9:00 a.m., Keyton received a series of about six to eight collect calls from an unknown caller that failed to go through (see (9:00 a.m.) September 11, 2001). Presumably these were made by Barbara Olson. (Federal Bureau of Investigation 9/11/2001; 9/11 Commission 8/26/2004, pp. 94) In an interview with the FBI on September 13, Ted Olson will mention some messages on his voicemail at his old law firm. Presumably, he will be suggesting that these were also from Barbara Olson (see (Between 8:55 a.m. and 9:36 a.m.) September 11, 2001). (Federal Bureau of Investigation 9/13/2001)

Ted Olson.
Ted Olson. [Source: US Department of Justice]Ted Olson, the solicitor general of the United States, calls the Department of Justice command center to pass on information he has received in a call from his wife, who is a passenger on Flight 77, and ask for someone there to come to his office. (9/11 Commission 8/26/2004, pp. 32, 95) His wife, Barbara Olson, has just called him, and was able to say her plane had been hijacked and give him details of the hijacking before the call got cut off (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001).
Olson Is Unable to Reach Attorney General Ashcroft - After the call from his wife has ended, Ted Olson tries to call Attorney General John Ashcroft on a direct line he has to Ashcroft, but receives no answer. He then calls the Department of Justice command center to pass on the details of his wife’s call. He contacts the command center, he will later say, because he wants to give Barbara Olson’s information “to someone who could possibly do something.” (Federal Bureau of Investigation 9/11/2001; Isikoff 9/28/2001) “I mainly wanted them know there was another hijacked plane out there,” he will comment. (Fox News 9/14/2001)
Olson Is Told Command Center Personnel Are Unaware of the Hijacking - He tells the person who answers the call that his wife’s plane has been hijacked and gives them the number of the flight. (Federal Bureau of Investigation 9/11/2001; 9/11 Commission 8/26/2004, pp. 32) “I want you to know there’s another plane that’s been hijacked; my wife is on it,” he says. (Isikoff 9/28/2001) He adds that his wife is able to communicate from the plane, even though her call to him got cut off. (CNN 9/14/2001) “They just absorbed the information,” he will recall, adding, “I expected them to pass the information on to the appropriate people.” (Fox News 9/14/2001) He is told that officials in the command center know nothing about the hijacking of Flight 77. (Fisher and Phillips 9/12/2001)
Olson Wants a Security Officer to Come to His Office - Ted Olson also requests that a security officer from the command center come to his office. According to Helen Voss, his special assistant, he does this because he thinks the security officer will be able to talk to Barbara Olson if she calls him again. (Federal Bureau of Investigation 9/11/2001; 9/11 Commission 8/26/2004, pp. 32) But Ted Olson will comment that at this time, “I didn’t know that I was going to get another call [from Barbara Olson].” He is told someone will be sent to his office right away. (Fox News 9/14/2001) Shortly after he contacts the command center, Barbara Olson will call him a second time and provide more details about the hijacking of Flight 77 (see (Between 9:20 a.m. and 9:30 a.m.) September 11, 2001). (Federal Bureau of Investigation 9/11/2001; 9/11 Commission 7/24/2004, pp. 9; 9/11 Commission 8/26/2004, pp. 32)
Security Officer Goes to Olson's Office - Meanwhile, Allen Ferber, a security officer in the command center, is told to go to Ted Olson’s office. He is told by the watch officer that the solicitor general’s wife is on a plane that has been hijacked, the hijackers were armed with knives, and the passengers have been moved to the back of the plane. He will arrive at Ted Olson’s office after Barbara Olson’s second call from Flight 77 has ended. He will stay there, watching the television coverage of the crashes at the World Trade Center with Ted Olson, for about 10 minutes. He will leave the office before the attack on the Pentagon is reported on television (see 9:39 a.m.-9:44 a.m. September 11, 2001) but return to it after the attack starts being reported (see (Shortly After 9:37 a.m.) September 11, 2001). (Federal Bureau of Investigation 9/11/2001)

The telephone Ted Olson used when he spoke to his wife, who called him from Flight 77.The telephone Ted Olson used when he spoke to his wife, who called him from Flight 77. [Source: US Department of Justice]Barbara Olson, a passenger on Flight 77, talks over the phone with her husband, Ted Olson, the solicitor general of the United States, for a second time and is able to give him additional details of the hijacking of her plane before the call gets cut off. She has just called him at his office at the Department of Justice in Washington, DC, and was able to say her plane had been hijacked and give him details of the hijacking before the call got disconnected (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001). (CNN 9/14/2001; 9/11 Commission 7/24/2004, pp. 9) Since then, Ted Olson has called the Department of Justice command center and passed on the information she provided (see (Between 9:17 a.m. and 9:29 a.m.) September 11, 2001). (Federal Bureau of Investigation 9/11/2001; 9/11 Commission 8/26/2004, pp. 32)
Secretary Answers the Call - Shortly after making her first call to him, Barbara Olson calls Ted Olson again. (9/11 Commission 7/24/2004, pp. 9) The call is initially answered by Lori Keyton, a secretary in Ted Olson’s office. When Keyton picks up the phone, Barbara Olson says, “It’s Barbara.” Keyton says she will put her through to her husband. (Federal Bureau of Investigation 9/11/2001) Ted Olson is told his wife is on the phone again and the call is put through to him.
Barbara Olson Says Her Plane Has Been Circling Around - Barbara Olson then gives her husband additional information about the hijacking of Flight 77. She says the pilot announced that the plane had been hijacked. Ted Olson asks if she has any idea of her plane’s location. (Federal Bureau of Investigation 9/11/2001; CNN 9/14/2001; 9/11 Commission 7/24/2004, pp. 9; 9/11 Commission 8/26/2004, pp. 32) She says the plane was hijacked shortly after takeoff and has been circling around for a while. (CNN 9/14/2001; Fox News 9/14/2001) (However, according to the 9/11 Commission Report, Flight 77 was hijacked between around 8:51 a.m. and 8:54 a.m. (see 8:51 a.m.-8:54 a.m. September 11, 2001), more than 30 minutes after it took off (see (8:20 a.m.) September 11, 2001). (9/11 Commission 7/24/2004, pp. 8) ) She says it is currently flying over some houses. After consulting another person on the plane, she says she thinks they are heading northeast.
Barbara Olson Asks What She Should Tell the Pilot - Ted Olson says two aircraft, besides Flight 77, were hijacked this morning and these planes subsequently crashed into the World Trade Center. Barbara Olson “absorbed the information,” the solicitor general will later recall. The couple then try to reassure each other. Ted Olson says, “It’s going to come out okay” and Barbara Olson tells him the same thing. She then says, “I love you.” Before the call ends, the couple “segued back and forth between expressions of feeling for one another and this effort to exchange information,” Ted Olson will recall. (Federal Bureau of Investigation 9/11/2001; CNN 9/14/2001; 9/11 Commission 7/24/2004, pp. 9; 9/11 Commission 8/26/2004, pp. 32) “We exchanged the feelings that a husband and wife who are extraordinarily close—as we are—those kind of sentiments,” he will say. (Fox News 9/14/2001) The last thing Barbara Olson says is: “What shall I tell the pilot? What can I tell the pilot to do?” This implies that either the plane’s pilot or the co-pilot is at the back of the plane, where the hijackers moved the passengers, Ted Olson will note. (Fisher and Phillips 9/12/2001; CNN 9/14/2001)
Call Is Abruptly Cut Off - The call then ends abruptly, with the line suddenly going dead. It has lasted “two or three or four minutes,” Ted Olson will estimate. (Federal Bureau of Investigation 9/11/2001; CNN 9/14/2001; 9/11 Commission 8/26/2004, pp. 32) Ted Olson will then return to watching the coverage of the attacks at the WTC on television. When he sees the reports about an attack at the Pentagon, he will immediately think his wife’s plane crashed there (see (Shortly After 9:37 a.m.) September 11, 2001). (Federal Bureau of Investigation 9/11/2001; Federal Bureau of Investigation 9/11/2001; Fox News 9/14/2001)
Call Is Made Sometime between 9:20 a.m. and 9:30 a.m. - The exact time of Barbara Olson’s second call to her husband is unclear. A list compiled by the Department of Justice supposedly showing all of the calls made today from Flight 77 will include four “connected calls to unknown numbers” (see 9:15 a.m.-9:30 a.m. September 11, 2001) and the 9/11 Commission Report will determine that these include the two calls made by Barbara Olson. According to the information in the list, her second call must occur at 9:20 a.m., 9:25 a.m., or 9:30 a.m. and last for 4 minutes 34 seconds, 2 minutes 39 seconds, or 4 minutes 20 seconds. (9/11 Commission 5/20/2004; 9/11 Commission 7/24/2004, pp. 455; 9/11 Commission 8/26/2004, pp. 94)
Call Is Made Directly to Ted Olson's Office - It is also unclear whether Barbara Olson makes this call using a cell phone or an Airfone. Keyton’s phone has no caller identification feature and so she is unable to determine what kind of phone Barbara Olson uses. (Federal Bureau of Investigation 9/11/2001) But the Department of Justice will determine that all of the calls from Flight 77 were made using Airfones. (9/11 Commission 5/20/2004) Barbara Olson makes the call by dialing “0,” apparently in an attempt to reach an operator, according to an FBI report. (Federal Bureau of Investigation 9/20/2001) But Keyton will say that, unlike the first call, Barbara Olson’s second call to her husband is made directly to his office, rather than reaching it via an operator. (Federal Bureau of Investigation 9/11/2001) And Mercy Lorenzo, the operator who connected Barbara Olson’s first call to Ted Olson’s office (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001), will apparently mention dealing with only one call, not two, from Barbara Olson when she is interviewed by the FBI. (Federal Bureau of Investigation 9/11/2001)

Ted Olson, the solicitor general of the United States, immediately thinks Flight 77, which his wife was a passenger on, has crashed when he sees reports on television about an explosion at the Pentagon. (Federal Bureau of Investigation 9/11/2001; Fox News 9/14/2001; Harnden 3/5/2002) Ted Olson was called by his wife, Barbara Olson, at his office at the Department of Justice in Washington, DC, sometime after the second hijacked plane crashed into the World Trade Center. She told him her plane had been hijacked and gave him details of the hijacking before the call got disconnected (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001). She called again a short time later and gave him additional details of the hijacking, but that call also got cut off (see (Between 9:20 a.m. and 9:30 a.m.) September 11, 2001). He then returned to watching the coverage of the crashes at the WTC on television and, after a short time, sees the reports indicating some kind of explosion has occurred at the Pentagon (see 9:39 a.m.-9:44 a.m. September 11, 2001). Ted Olson will later recall that, even though it is some time before reports suggest that the incident involved a plane crashing at the Pentagon (see 9:43 a.m.-9:53 a.m. September 11, 2001), he immediately knows Flight 77, his wife’s plane, has crashed. (CNN 9/14/2001; 9/11 Commission 7/24/2004, pp. 9) “I knew it was her,” he will comment. (Harnden 3/5/2002) “I did and I didn’t want to, but I knew.” (CNN 9/14/2001) “I knew in my heart that was that aircraft and I also knew in my heart that [Barbara Olson] could not possibly have survived that kind of an explosion with a full load of fuel on a recently taken-off airplane,” he will say. (Fox News 9/14/2001) Ted Olson shares his thoughts with some of his colleagues. Helen Voss, his special assistant, watched television with him after the second call from his wife ended. She will recall that when the incident at the Pentagon starts being reported, he says, “That’s Barbara’s plane.” (Federal Bureau of Investigation 9/11/2001) And Allen Ferber, a security officer from the Department of Justice command center, sat and watched television with the solicitor general for about 10 minutes after he received the second call from his wife (see (Between 9:17 a.m. and 9:29 a.m.) September 11, 2001). Ferber then left Ted Olson’s office but he returns to it after the incident at the Pentagon is reported. He will recall that, apparently referring to Flight 77, Ted Olson says to him, “The plane is down.” Ferber says he is very sorry and then leaves the office again. (Federal Bureau of Investigation 9/11/2001) Ted Olson will stay in his office for the next few hours, phoning friends and family members to let them know his wife is dead. (CNN 9/14/2001; Harnden 3/5/2002)

Ann Coulter.Ann Coulter. [Source: Universal Press Syndicate]Conservative columnist Ann Coulter writes an enraged op-ed for the National Review. Reflecting on the 9/11 attacks and the loss of her friend Barbara Olson in the attacks (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001), Coulter says America’s retribution should be immediate and generalized: “This is no time to be precious about locating the exact individuals directly involved in this particular terrorist attack. Those responsible include anyone anywhere in the world who smiled in response to the annihilation of patriots like Barbara Olson. We don’t need long investigations of the forensic evidence to determine with scientific accuracy the person or persons who ordered this specific attack. We don’t need an ‘international coalition.’ We don’t need a study on ‘terrorism.’ We certainly didn’t need a congressional resolution condemning the attack this week.” Coulter says a “fanatical, murderous cult”—Islam—has “invaded” the nation, welcomed by Americans and protected by misguided laws that prohibit discrimination and “‘religious’ profiling.” She blasts airport security measures that insist on checking every passenger—“[a]irports scrupulously apply the same laughably ineffective airport harassment to Suzy Chapstick as to Muslim hijackers. It is preposterous to assume every passenger is a potential crazed homicidal maniac. We know who the homicidal maniacs are. They are the ones cheering and dancing right now.” She concludes by calling for all-out vengeance: “We should invade their countries, kill their leaders and convert them to Christianity. We weren’t punctilious about locating and punishing only Hitler and his top officers. We carpet-bombed German cities; we killed civilians. That’s war. And this is war.” (Coulter 9/13/2001) In October 2002, Reason magazine’s Sara Rimensnyder will call Coulter’s screed “the single most infamous foreign policy suggestion inspired by 9/11.” (Rimensnyder 10/2002)

National Review editor Jonah Goldberg announces that the magazine has dropped conservative pundit Ann Coulter’s column over her incendiary column that advocated the US indiscriminately bombing Muslim countries, slaughtering their leaders, and forcibly converting their populations to Christianity (see September 13, 2001). According to Goldberg, it was Coulter, not the National Review, who chose to sever the relationship through her unprofessional behavior. Goldberg calls Coulter a “smart and funny” writer who lost control of her emotions in the wake of the 9/11 attacks and the loss of her friend Barbara Olson (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001) in the attacks. In retrospect, Goldberg says, it was a “mistake” to have run the column in the first place. Her response to the outpouring of criticism towards her column was what Goldberg calls “a long, rambling rant… that was barely coherent.” What Coulter needed was a good editor, Goldberg says, and National Review refused to run the response. Coulter responded angrily, denying that she hates Muslims and advocated forcible conversion. But, Goldberg says, the dispute was never over her content, but over her writing style. “Ann didn’t fail as a person—as all her critics on the Left say—she failed as WRITER [sic], which for us is almost as bad.” According to Goldberg, Coulter refused to continue the discussion with the National Review editors; instead she “proceeded to run around town bad-mouthing [the magazine] and its employees” and claimed to be the victim of censorship. At that point, Goldberg writes, it became incumbent to fire Coulter. “What’s Ann’s take on all this?” Goldberg continues. “Well, she told the Washington Post yesterday that she loves it, because she’s gotten lots of great publicity. That pretty much sums Ann up.” (Goldberg 10/2/2001)

The US Supreme Court hears the case of Citizens United v. Federal Election Commission, in which the Federal Election Commission (FEC) refused to let the conservative lobbying organization Citizens United (CU) air a film entitled Hillary: The Movie during the 2008 presidential primary season (see January 10-16, 2008). The FEC ruled that H:TM, as some have shortened the name, was not a film, but a 90-minute campaign ad with no other purpose than to smear and attack Senator Hillary Clinton (D-NY) as being unfit to hold office. A panel of appeals judges agreed with the FEC’s ruling, which found the film was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” As a campaign ad, the film’s airing on national network television came under campaign finance laws, particularly since the film was financed by corporate political donations. CU was allowed to air the film in theaters and sell it in DVD and other formats, but CU wanted to pay $1.2 million to have the movie aired on broadcast cable channels and video-on-demand (pay per view) services, and to advertise its broadcast. CU president David Bossie (see May 1998) hired former Bush Solicitor General Theodore Olson after the Supreme Court agreed to hear the case. Bossie denies that he chose Olson because of their shared loathing of the Clintons—they worked together to foment the “Arkansas Project,” a Clinton smear effort that resulted in Congress unsuccessfully impeaching President Clinton—but because Olson gave “us the best chance to win.” Bossie dedicated the Clinton film to Barbara Olson, Olson’s late wife, who died in the 9/11 attacks (see (Between 9:15 a.m. and 9:25 a.m.) September 11, 2001). (Barnes 3/15/2009; Richey 3/23/2009) “I just don’t see how the Federal Election Commission has the authority to use campaign-finance rules to regulate advertising that is not related to campaigns,” Bossie told reporters last year. (Richey 2/1/2008)
Uphold or Cut Back McCain-Feingold? - Observers, unaware of the behind-the-scenes machinations, believe the case gives the Court the opportunity to either uphold or cut back the body of law stemming from the Bipartisan Campaign Reform Act (BCRA, or McCain-Feingold) campaign finance law (see March 27, 2002), which limits the ability of corporations and labor unions to spend unlimited amounts of money on political advertising before elections. CU is arguing that the BCRA is unconstitutional, having argued before a previous court that the the BCRA law was unconstitutional in the way it was being enforced by the FEC against its film. In its brief to the Court, CU denies the film is any sort of “electioneering,” claiming: “Citizens United’s documentary engages in precisely the political debate the First Amendment was written to protect… The government’s position is so far-reaching that it would logically extend to corporate or union use of a microphone, printing press, or the Internet to express opinions—or articulate facts—pertinent to a presidential candidate’s fitness for office.” The Justice Department, siding with the FEC, calls the film an “unmistakable” political appeal, stating, “Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the integrity and the qualifications to be president of the United States.” The film is closer to a political “infomercial” than a legitimate documentary, the Justice Department argues. The film’s “unmistakable message is that Senator Clinton’s character, beliefs, qualifications, and personal history make her unsuited to the office of the President of the United States,” according to a Justice Department lawyer, Edwin Kneedler, who filed a brief on behalf of the FEC. The Justice Department wants the Court to uphold FEC disclosure requirements triggered by promotional ads, while Olson and CU want the Court to strike down the requirements. Olson says financial backers of films such as H:TM may be reluctant to back a film if their support becomes publicly known. Kneedler, however, writes that such disclosure is in the public interest. The Reporters Committee for Freedom of the Press (RCFP) is joining CU in its court fight, stating in a brief, “By criminalizing the distribution of a long-form documentary film as if it were nothing more than a very long advertisement, the district court has created uncertainty about where the line between traditional news commentary and felonious advocacy lies.” Scott Nelson of the Public Citizen Litigation Group, which supports the BCRA, disagrees with RCFP’s stance, saying, “The idea that [the law] threatens legitimate journalism and people who are out creating documentaries, I think, is a stretch.” (Barnes 3/15/2009; Richey 3/23/2009) The RCFP has said that the movie “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.” And a lawyer with the RCFP, Gregg P. Leslie, asked, “Who is the FEC to decide what is news and what kind of format news is properly presented in?” (Liptak 3/5/2009)
Filled with False Information - The movie was relentlessly panned by critics, who found much of its “information” either misrepresentative of Clinton or outright false. CU made several other films along with the Clinton documentary, which included attacks on filmmaker Michael Moore, the American Civil Liberties Union, illegal immigrants, and Clinton’s fellow presidential contender Barack Obama (D-IL—see October 28-30, 2008). (Barnes 3/15/2009; Richey 3/23/2009)
Arguments Presented - Olson and his opponent, Deputy Solicitor General Malcolm Stewart, present arguments in the case to the assembled Court. Traditionally, lawyers with the Solicitor General (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. New Yorker reporter Jeffrey Toobin later writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who clerked for former Justice Harry Blackmun and is a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. Justice Samuel Alito, a conservative justice with a penchant for asking tough questions that often hide their true intentions behind carefully neutral wording, is interested in seeing how far he can push Stewart’s argument. Does the BCRA apply only to television commercials, he asks, or might it regulate other means of communication during a federal campaign? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?” Stewart says that the BCRA indeed imposes such restrictions, stating, “Those could have been applied to additional media as well.” Could the government regulate the content of a book? Alito asks. “That’s pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Stewart, who tardily realizes where Alito was going, attempts to recover. “I’m not saying it could be banned,” he responds. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” Justice Anthony Kennedy, considered a “swing” justice in some areas but a reliable conservative vote in campaign-spending cases, interrupts Stewart. “Well, suppose it were an advocacy organization that had a book,” Kennedy says. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60- and 30-day periods?” Stewart gives what Toobin later calls “a reluctant, qualified yes.” At this point, Roberts speaks up. According to Toobin, Roberts intends to paint Stewart into something of a corner. “If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asks. Stewart responds, “That’s correct.” Roberts then asks, “If it’s a 500-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Stewart responds, “Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preexisting Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980) provisions.” Toobin later writes that with their “artful questioning, Alito, Kennedy, and Roberts ha[ve] turned a fairly obscure case about campaign-finance reform into a battle over government censorship.” Unwittingly, Stewart has argued that the government has the right to censor books because of a single line. Toobin later writes that Stewart is incorrect, that the government could not ban or censor books because of McCain-Feingold. The law applies to television advertisements, and stems from, as Toobin will write, “the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.” Legal scholars and pundits will later argue about Stewart’s answers to the three justices’ questions, but, as Toobin will later write, “the damage to the government’s case had been profound.” (Toobin 5/21/2012)
Behind the Scenes - Unbeknownst to the lawyers and the media, the Court initially renders a 5-4 verdict in favor of CU, and strikes down decades of campaign finance law, before withdrawing its verdict and agreeing to hear rearguments in the fall (see June 29, 2009). Toobin will write that the entire case is orchestrated behind the scenes, by Roberts and his fellow majority conservatives. Toobin will write of “a lengthy and bitter behind-the-scenes struggle among the justices that produced both secret unpublished opinions and a rare reargument of a case” that “reflects the aggressive conservative judicial activism of the Roberts Court.” Toobin will write that although the five conservatives are involved in broadening the scope of the case, and Kennedy actually writes the majority decision, “the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.” The initial vote on the case is 5-4, with the five conservative justices—Alito, Kennedy, Roberts, Scalia, and Clarence Thomas—taking the majority.
Expansive Concurrence Becomes the Majority Opinion - At the outset, the case is decided on the basis of Olson’s narrow arguments, regarding the issue of a documentary being made available on demand by a nonprofit organization (CU). Roberts takes the majority opinion onto himself. The four liberals in the minority are confident Roberts’s opinion would be as narrow as Olson’s arguments. Roberts’s draft opinion is indeed that narrow. Kennedy writes a concurrence opining that the Court should go further and overturn McCain-Feingold, the 1990 Austin decision (see March 27, 1990), and end the ban on corporate donations to campaigns (see 1907). When the draft opinions circulates, the other three conservatives begin rallying towards Kennedy’s more expansive concurrence. Roberts then withdraws his draft and lets Kennedy write the majority opinion in line with his concurrence. Toobin later writes: “The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term.” During arguments in a different case, Roberts had “berated at length” a lawyer “for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.”
Dissent - The senior Justice in the minority, John Paul Stevens, initially assigns the main dissent to Justice David Souter. Souter, who is in the process of retiring from the Court, writes a stinging dissent that documents some of the behind-the-scenes machinations in the case, including an accusation that Roberts violated the Court’s procedures to get the outcome he wanted. Toobin will call Souter’s planned dissent “an extraordinary, bridge-burning farewell to the Court” that Roberts feels “could damage the Court’s credibility.” Roberts offers a compromise: Souter will withdraw his dissent if the Court schedules a reargument of the case in the fall of 2009 (see June 29, 2009). The second argument would feature different “Questions Presented,” and the stakes of the case would be far clearer. The four minority justices find themselves in something of a conundrum. They feel that to offer the Kennedy opinion as it stands would be to “sandbag” them and the entire case, while a reargument would at least present the issues that the opinion was written to reflect. And there is already a 5-4 majority in favor of Kennedy’s expansive opinion. The liberals, with little hope of actually winning the case, agree to the reargument. The June 29, 2009 announcement will inform the parties that the Court is considering overturning two key decisions regarding campaign finance restrictions, including a decision rendered by the Roberts court (see March 27, 1990 and December 10, 2003) and allow essentially unlimited corporate spending in federal elections. Court observers will understand that the Court is not in the habit of publicly asking whether a previous Court decision should be overruled unless a majority is already prepared to do just that. Toobin will call Roberts and his four colleagues “impatient” to make the decision, in part because an early decision would allow the ruling to impact the 2010 midterm elections. (Toobin 5/21/2012)
Created to Give Courts Shot at McCain-Feingold - Critics, as yet unaware of the behind-the-scenes maneuvering, will later say that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign will say: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” Bossie himself will later confirm that contention, saying: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” (Rucker 1/22/2010) CU’s original lawyer on the case, James Bopp, will later verify that the case was brought specifically to give the Court a chance to cut back or overturn campaign finance law (see January 25, 2010). The Court will indeed overturn McCain-Feingold in the CU decision (see January 21, 2010).


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