Lee Hamilton, vice chairman of the 9/11 Commission, makes an 11th-hour visit to the Pentagon in an attempt to avert a subpoena some on the Commission want to file on the Defense Department over documents NORAD is withholding from the Commission (see Late October 2003).
Meeting with Defense Officials – At the Pentagon, Hamilton meets Defense Secretary Donald Rumsfeld, his deputy Paul Wolfowitz, and Undersecretary for Intelligence Stephen Cambone. Hamilton takes with him Slade Gorton, a Republican member of the Commission who is inclined towards issuing the subpoena.
Arranged by Zelikow? – It is unclear who initiated and arranged the meeting; some staffers who want the subpoena issued will accuse Philip Zelikow, the Commission’s executive director, of setting it up as a part of a wider effort to thwart the subpoena (see (Late October-Early November 2003)). However, Zelikow will later say he does not recall having anything to do with the meeting.
Rumsfeld Promises to Settle Issue – At the meeting, Rumsfeld is, according to author Philip Shenon, “charming and agreeable” and insists he is unaware of the problems between the Commission and NORAD. He vows to resolve the issues and promises that any evidence that has been withheld until now will be turned over immediately. Therefore, he says, there is no need for a subpoena.
Differences between Hamilton and Gorton – Hamilton, who was initially rejected for the vice chairmanship of the Commission because of his links to Rumsfeld and other Republicans (see Before November 27, 2002) and who sometimes takes the current administration’s side in internal Commission debates (see March 2003-July 2004 and Early July 2004), thinks this is the end of the matter. “I’ve known Don Rumsfeld for 20, 30 years,” he tells the other commissioners. “When he said, ‘I’m going to get that information for you,’ I took him at his word.” Gorton’s attitude is different. “I was outraged with NORAD and the way they had operated.” Thinking false statements NORAD officials provided to the Commission may have been made knowingly, he will add, “Even if it wasn’t intentional, it was just so grossly negligent and incompetent.” [Shenon, 2008, pp. 207] The Commission will vote to issue the subpoena the next day, with Hamilton against and Gorton for (see November 6, 2003).
November 5, 2003-January 2004: 9/11 Commission’s Attempt to Get Access to Detainees Fails
After the 9/11 Commission becomes unhappy with the information it is getting from detainees in US custody who may know something about the 9/11 plot (see Summer 2003), it asks CIA Director George Tenet to let it either talk to the detainees itself, or at least view interrogations through a one-way mirror. [Kean and Hamilton, 2006, pp. 119-126]
Reasoning – Dieter Snell, the head of the Commission’s plot team and a former prosecutor, is extremely keen that the detainees, such as Khalid Shaikh Mohammed and Ramzi bin al-Shibh, be interviewed. According to author Philip Shenon, he is aware that “testimony from key witnesses like the al-Qaeda detainees would have value only if they were questioned in person, with investigators given the chance to test their credibility with follow-up questions. The face-to-face interrogations would be especially important in situations in which the al-Qaeda members were giving conflicting testimony.” [Shenon, 2008, pp. 182]
Request Denied – However, Tenet denies the request because he does not want the Commission to know where the detainees are, and he claims questioning by a Commission staffer could apparently damage the “relationship” between interrogator and detainee and “upset the flow of questioning.” In addition, Tenet is worried that if the Commission has access to the detainees, Zacarias Moussaoui might also be able to compel them to testify in court, so he rejects compromise proposals.
Pushback – The Commission decides “to push the issue” and drafts a letter outlining why they should have direct access. Although the draft is seen by Tenet and Defense Secretary Donald Rumsfeld, it is never officially sent. At a White House meeting attended by Rumsfeld and commissioners Lee Hamilton and Fred Fielding, Tenet and Attorney General Alberto Gonzales repeat the arguments Tenet made previously, but Tenet says the Commission can submit written questions, and a CIA “project manager” will try to get them answered. After the administration “plead[s]” with the Commission not to use public pressure to get access to detainees, the Commission decides to drop the matter.
Relatives and Media Blamed – Hamilton and Commission Chairman Thomas Kean will later partially blame the victims’ relatives and media for this failure: “Interestingly, there was no pressure from some of the usual sources for us to push for access. For instance, the 9/11 families never pressed us to seek access to detainees, and the media was never engaged on this issue.” Kean and Hamilton will later say that the “project manager” arrangement works “to a degree.”
Report Includes Disclaimer – However, a disclaimer will be inserted into the 9/11 Commission Report in the first of two chapters that draw heavily on detainees’ alleged statements (see After January 2004). It will say that the Commission could not fully judge the credibility of detainee information, so, according to Kean and Hamilton, “it [is] left to the reader to consider the credibility of the source—we had no opportunity to do so.” [Kean and Hamilton, 2006, pp. 119-126]
Criticism from Staffer – Commission staffer Ernest May will later criticize the Commission’s “reluctance ever to challenge the CIA’s walling off al-Qaeda detainees.” May will also say: “We never had full confidence in the interrogation reports as historical sources. Often we found more reliable the testimony that had been given in open court by those prosecuted for the East African embassy bombings and other crimes.” [New Republic, 5/23/2005] CIA videotapes and transcripts of interrogations are not provided to the Commission (see Summer 2003-January 2004).
November 6, 2003: 9/11 Commission Issues Subpoena to Pentagon
The 9/11 Commission votes to issue a subpoena on the Defense Department for documents withheld from it regarding the fighter response on the day of the attacks. The vote follows a demand from the Commission’s team investigating the air defense that it be issued, as the military has been withholding documents and making false statements (see Late October 2003), as well as the failure of last-ditch attempts to stop the subpoena’s issue (see (Late October-Early November 2003) and November 5, 2003).
Chairman Kean Has Decisive Vote – The four ordinary Democratic commissioners vote for the subpoena’s issue, but Democratic Vice Chairman Lee Hamilton votes against, together with three ordinary Republican commissioners. The fourth Republican commissioner, Slade Gorton, votes for the subpoena. This means that Tom Kean, the Commission’s Republican chairman, has the deciding vote, and he votes for the subpoena. He dislikes voting against Hamilton, but thinks NORAD is trying to hide something. [Shenon, 2008, pp. 207-208]
‘Especially Dismayed’ – In a statement issued after the vote, the Commission says it is “especially dismayed” by incomplete document production on the part of NORAD. The Commission explains, “In several cases we were assured that all requested records had been produced, but we then discovered, through investigation, that these assurances were mistaken.” [Associated Press, 11/7/2003]
Documents Expose Apparent False Statements by NORAD – When the documents arrive, according to author Philip Shenon, they show that “NORAD’s public statements about its actions on 9/11 had been wrong, almost certainly intentionally.” Based on interviews of 9/11 Commission staffers, Shenon will add: “This was not the fog of war. This was the military trying to come up with a story that made its performance during 9/11 look reasonably competent, when in fact the military had effectively left the nation’s skies undefended that morning.” In particular, tape recordings of communications at NORAD’s Northeast Air Defense Sector (NEADS) indicate that the military did not know of the hijacking of Flight 93 until it had crashed. 9/11 Commission team leader John Farmer will even say that it is “99 percent” certain that Pentagon officers knew they were lying when they made statements to the Commission, sometimes under oath. [Shenon, 2008, pp. 208]
November 6, 2003: Despite White House Obstruction, 9/11 Commission Votes Not to Subpoena Presidential Daily Briefs
The 9/11 Commission votes 6-4 not to subpoena Presidential Daily Briefs (PDBs). Four of the five Democratic commissioners vote in favor. The five Republicans vote against, as does Democratic Vice Chairman Lee Hamilton, who sometimes sides with the Republicans (see March 2003-July 2004 and January 27, 2003). The vote came up because the White House has been stonewalling the Commission on access to the PDBs for nearly a year (see Late January 2003, June 2003, Late Summer 2003, October 16, 2003, and Shortly Before October 26, 2003). The White House has just offered the Commission a deal in which Commission Chairman Thomas Kean and Hamilton, as well as two staff members, could read a group of 20 significant PDBs, and one of these four could then read all the other PDBs. If he found anything significant, he could insist the other three read it as well. The Commission rejects this, but only obtains a slightly better deal in the end (see November 7, 2003). [Shenon, 2008, pp. 217-219]
November 7, 2003: 9/11 Commission, White House Strike Deal on Access to Presidential Daily Briefs: Only One Commissioner and One Staffer Will See All of Them
The 9/11 Commission and the White House come to a deal on the Commission’s access to Presidential Daily Briefs (PDBs) relevant to its work. The Commission and White House had been in dispute about the issue for nearly a year (see Late January 2003, June 2003, Late Summer 2003, October 16, 2003, Shortly Before October 26, 2003, and November 6, 2003).
Arrangement – The deal gives Commission Chairman Thomas Kean and Vice Chairman Lee Hamilton, plus two others on the Commission to be designated, access to a group of 20 “core” PDBs clearly relevant to the Commission’s work. In addition, two of these four can read all possibly relevant PDBs and insist on the other two being allowed to see anything they think is important. The deal is struck by Kean and Hamilton for the Commission, White House counsel Alberto Gonzales, and White House chief of staff Andy Card. The Commission designates commissioner Jamie Gorelick and its executive director, Philip Zelikow, as the two who will help Kean and Hamilton and also review all the other PDBs. The other seven commissioners and the rest of the staff cannot see the PDBs.
Criticism – Two of the commissioners, Democrats Tim Roemer and Max Cleland, are extremely angry with the deal and complain the Commission cannot function properly without all the commissioners seeing all the relevant documents. The victims’ relatives are also extremely unhappy, and the Family Steering Committee releases a statement saying, “A limited number of commissioners will have restricted access to a limited number of PDB documents,” adding, “The Commission has seriously compromised its ability to conduct an independent, full, and unfettered investigation.” They are also unhappy that Zelikow is one of the two handling the main review, because they are concerned about his ties to National Security Adviser Condoleezza Rice, among other issues (see March 21, 2004). One of the victim’s relatives, Kristen Breitweiser, says, “How much more of Zelikow do we have to take?” The Commission’s counsel, Daniel Marcus will agree with the families, saying, “If we were going to have a staff person do this, Philip was not the right person.” [Shenon, 2008, pp. 218-219]
Early December 2003: 9/11 Commission Chair Kean Shocked to Discover Lack of Information in Presidential Daily Briefings
Thomas Kean, the chairman of the 9/11 commission, finally gains access to Bill Clinton’s and George W. Bush’s Presidential Daily Briefings (PDBs). Co-chairman Lee Hamilton calls the PDBs the “holy of holies.” They are documents that the Bush administration has worked relentlessly to keep out of the commission’s hands. Kean assumes that the documents are chock full of critical information. “I thought this would be the definitive secrets about al-Qaeda, about terrorist networks, and all the other things that the president should act on,” Kean will later recall. “I was going to find out the most important things that a president had learned.” Kean believes the PDBs should contain “incredibly secretive, precise, and accurate information about anything under the sun.” When he begins reading through the PDBs, he finds that the documents are not what he expected. He finds that they contain almost nothing of use. The realization terrifies him—these digests of the most important, sensitive secrets garnered by the US intelligence community, at a cost of tens of billions of dollars per year, used by the president to base his actions and decisions upon, are, in Kean’s words, “garbage.” He continues, “There really was nothing there—nothing, nothing.” Had his students at Drew University turned in terms papers this poorly researched, he says, “I would have given them an F.” There are a few snippets of solid information among the dross, tidbits about al-Qaeda and other terrorist groups. Occasionally, something intriguing catches Kean’s attention, for instance a report of a sighting of Osama bin Laden or a tip from a foreign intelligence service about possible future actions by a terrorist group. But most of the PDB contents could have been gleaned from reading the newspaper. Author Philip Shenon will write: “Perhaps the reason why the White House had fought so hard to block the commission’s access to the PDBs was that they revealed how ignorant the government was of the threats it faced before 9/11. Kean could understand their fear. Imagine the consequences if al-Qaeda and its terrorist allies knew how little the United States really knew about them.” [Shenon, 2008, pp. 220-221] 9/11 Commissioner Jamie Gorelick also sees the same PDBs around the same time, and while she also is surprised by the lack of detail, she is more surprised at how alarming the warnings about an al-Qaeda attack are (see Early December 2003).
Mid-December 2003-Mid-January 2004: Political Considerations Determine Length of Extension Requested by 9/11 Commission
The 9/11 Commission realizes that it will not meet its reporting deadline of May 2004 and decides it will have to ask for an extension. Any extension would have to be approved by Congressional leaders and the White House. In order to determine how much extra time the commission will need, Chairman Tom Kean and Vice Chairman Lee Hamilton poll the other commissioners and staff members to gauge their opinions. Commissioners Slade Gorton and Tim Roemer suggest six months, but this would push the reporting date back after the presidential election in November. Kean and Hamilton are aware that this will probably not be permitted by Republicans, as they will be worried that parts of the report critical of Bush will be leaked to the press. In addition, Kean wants the report out during the presidential campaign, in the hopes that the two candidates will have a “bidding war” over who will implement more of the commission’s recommendations. In the end, the commission decides to ask for a two-month extension, meaning the report will be issued in July. [Shenon, 2008, pp. 226-227] The extension is initially opposed by the White House (see January 19, 2004), but the administration changes its mind (see February 5, 2004), and the extension is finally granted (see March 2, 2004).
Spring 2004: FBI Director Conducts Charm Offensive against 9/11 Commission to Save Bureau
FBI Director Robert Mueller launches a charm offensive to win over the 9/11 Commission and ensure that its recommendations are favorable to the bureau.
Commission Initially Favored Break-Up – The attempt is greatly needed, as the Commission initially has an unfavorable view of the FBI due to its very public failings before 9/11: the Phoenix memo (see July 10, 2001), the fact that two of the hijackers lived with an FBI counterterrorism informer (see May 10-Mid-December 2000), and the failure to search Zacarias Moussaoui’s belongings (see August 16, 2001). Commissioner John Lehman will say that at the start of the investigation he thought “it was a no-brainer that we should go to an MI5,” the British domestic intelligence service, which would entail taking counterterrorism away from the bureau.
Lobbying Campaign – Author Philip Shenon will say that the campaign against the commissioners “could not have been more aggressive,” because Mueller was “in their faces, literally.” Mueller says he will open his schedule to them at a moment’s notice and returns their calls within minutes. He pays so much attention to the commissioners that some of them begin to regard it as harassment and chairman Tom Kean tells his secretaries to turn away Mueller’s repeated invitations for a meal. Mueller even opens the FBI’s investigatory files to the Commission, giving its investigators unrestricted access to a special FBI building housing the files. He also gets Dame Eliza Manningham-Buller, head of MI5, to meet the commissioners and intercede for the bureau.
Contrast with CIA – The campaign succeeds and the Commission is convinced to leave the FBI intact. This is partially due to the perceived difference between Mueller and CIA Director George Tenet, who the Commission suspects of telling it a string of lies (see July 2, 2004). Commissioner Slade Gorton will say, “Mueller was a guy who came in new and was trying to do something different, as opposed to Tenet.” Commission Vice Chairman Lee Hamilton will also say that the Commission recommended changing the CIA by establishing the position of director of national intelligence. It is therefore better to leave the FBI alone because “the system can only stand so much change.”
Change Partially Motivated by Fear – This change of mind is also partially motivated by the commissioners’ fear of the bureau. Shenon will comment: “Mueller… was also aware of how much fear the FBI continued to inspire among Washington’s powerful and how, even after 9/11, that fear dampened public criticism. Members of congress… shrank at the thought of attacking the FBI.… For many on Capitol Hill, there was always the assumption that there was an embarrassing FBI file somewhere with your name on it, ready to be leaked at just the right moment. More than one member of the 9/11 Commission admitted privately that they had joked—and worried—among themselves about the danger of being a little too publicly critical of the bureau.” [Shenon, 2008, pp. 364-368]
March 2, 2004: House Republican Leaders Finally Approve Extension for 9/11 Commission, Some Commissioners Think Cheney Is Behind Delay
9/11 Commission Chairman Tom Kean and Vice Chairman Lee Hamilton meet with Republican leaders in the House of Representatives, including Speaker Dennis Hastert and Majority Leader Tom Delay, to discuss an extension of the commission’s reporting deadline (see Mid-December 2003-Mid-January 2004). The extension is opposed by the House leadership, which has had bad relations with the commission for some time and has been very critical of the commission. For example, a month before the meeting Hastert had accused Democrats on the commission of “leaking things,” trying to “make it a political issue,” and inflict “death by a thousand cuts” on the Bush administration. It is unclear why the House leadership is so against the extension, even though it has been approved by Senate Republicans and the White House. One theory advanced by Democratic commissioners is that, although the White House has publicly dropped its opposition to the extension (see January 19, 2004 and February 5, 2004), it does not really want it and is simply getting Hastert to act as a proxy. Author Philip Shenon will comment: “If Hastert’s contempt for the commission was being stage-managed by anyone at the White House, it was assumed on the commission to be Dick Cheney. The vice president was a frequent, if rarely announced, visitor to the Speaker’s office.” However, Kean persuades Hastert and the other House leaders to accept the extension, removing the last hurdle. [Shenon, 2008, pp. 227-229]
March 21, 2004: Victims’ Relatives Demand that 9/11 Commission Executive Director Zelikow Resign
The 9/11 Family Steering Committee and 9/11 Citizens Watch demand the resignation of Philip Zelikow, executive director of the 9/11 Commission. The demand comes shortly after former counterterrorism “tsar” Richard Clarke told the New York Times that Zelikow was present when he gave briefings on the threat posed by al-Qaeda to National Security Adviser Condoleezza Rice from December 2000 to January 2001. The Family Steering Committee, a group of 9/11 victims’ relatives, writes: “It is clear that [Zelikow] should never have been permitted to be a member of the Commission, since it is the mandate of the Commission to identify the source of failures. It is now apparent why there has been so little effort to assign individual culpability. We now can see that trail would lead directly to the staff director himself.” Zelikow has been interviewed by his own Commission because of his role during the transition period. But a spokesman for the Commission claims that having Zelikow recluse himself from certain topics is enough to avoid any conflicts of interest. [New York Times, 3/20/2004; United Press International, 3/23/2004] 9/11 Commission Chairman Thomas Kean defends Zelikow on NBC’s Meet the Press, calling him “one of the best experts on terrorism in the whole area of intelligence in the entire country” and “the best possible person we could have found for the job.” [NBC, 4/4/2004] Commission Vice Chairman Lee Hamilton adds, “I found no evidence of a conflict of interest of any kind.” Author Philip Shenon will comment: “If there had been any lingering doubt that Zelikow would survive as executive director until the end of the investigation, Kean and Hamilton had put it to rest with their statements of support… on national television. Zelikow would remain in charge.” [Shenon, 2008, pp. 263] However, Salon points out that the “long list” of Zelikow’s writings “includes only one article focused on terrorism,” and he appears to have written nothing about al-Qaeda. [Salon, 4/6/2004]
