9/11 Commission Executive Director Philip Zelikow is recused from some parts of the Commission’s investigation, specifically its examination of the Bush transition, on which he worked (see January 3, 2001), and interviews of senior Bush aides, including his associate, National Security Adviser Condoleezza Rice (see September 2003). This follows a complaint by victims’ relatives about Zelikow’s conflicts of interest (see October 3, 2003) and his interview by one of his own subordinates under oath (see October 8, 2003).
Only Recused from Some Aspects – The subordinate, the Commission’s counsel Daniel Marcus, recommended that, due to the conflicts, Zelikow should be recused from the Commission’s work on the transition and anything to do with the National Security Council (NSC). This is what the families wanted and, in the words of author Philip Shenon, “would have effectively ended Zelikow’s involvement in the parts of the investigation that were most important to him.” Zelikow will later say this recusal proposal “would have had the prompt and foreseeable effect of forcing my resignation.” However, Commission Chairman Tom Kean and Vice Chairman Lee Hamilton water the proposal down, allowing Zelikow to continue to work on most aspects of the NSC investigation.
Decision to Keep Zelikow Already Taken – According to Shenon, the decision to stick with Zelikow had been taken before Marcus interviewed him: “Kean and Hamilton made it clear to Marcus that they wanted to keep Zelikow on, regardless of what Marcus found. It was too late to find a new executive director. Besides, Zelikow had made himself indispensible, if only because he had so tightly controlled the flow of the information within the Commission that only he really knew all that was going on among the teams of investigators.” Marcus will say: “I think [Kean and Hamilton] basically made the decision that they were going to stick with this guy, that it was too late in the game to make a change.… [I]t was pretty clear that my instructions were to do what we needed to do on the recusal front and to make it work.”
Lack of Appreciation of Zelikow’s Importance – One reason behind the decision to keep Zelikow may be that Kean and, in particular, Hamilton do not fully appreciate how important Zelikow’s role is in shaping the Commission’s final output. Marcus will comment, “Lee had this view, which was somewhat unrealistic, that the staff was not important.” Shenon will add, “In Hamilton’s view, Marcus thought, Zelikow might be the most important person on the staff, but he was still a ‘staffer’ and was not capable of ‘sneaking something’ by the commissioners.” [Shenon, 2008, pp. 168-171]
October 12, 2003: Escaped Al-Qaeda Leader Killed in Philippines
Fathur Rohman al-Ghozi, said to be an important operative for both al-Qaeda and Jemaah Islamiyah, al-Qaeda’s Southeast Asian affiliate, is shot and killed by government forces in the Philippines. Al-Ghozi had escaped from a high-security prison in July 2003, along with two Abu Sayyaf militants. There are many questions about the escape, including suggestions that both of his fellow escapees, Omar Opik Lasal and Abdulmukim Edris, were long-time government informants (see July 14, 2003). Edris was killed in early August 2003. Supposedly he was arrested and then volunteered to show soldiers where al-Ghozi was hiding out. Along the way, he attempted to grab a weapon from a soldier and was shot. [BBC, 8/7/2003] His death came about two weeks after it was reported that he was a government informant. [Philippine Daily Inquirer, 7/23/2003] Lasal was rearrested on October 8, 2003. He will later admit that he was an informant and helped the government keep tabs on where al-Ghozi was hiding. [Philippine Daily Inquirer, 10/15/2003] Al-Ghozi is said to be shot while attempting to evade soldiers on a highway near a town in the southern Philippines, a heavily Muslim area. However, police officers and residents in the area say there is no sign of a firefight. The Sydney Morning Herald will later says this “fuel[s] rumors that al-Ghozi had already been captured and then killed at the best time to boost [the Philippines]‘s anti-terrorism image.” The governor of the area, said residents say they didn’t hear any shootout. “There were only two shots heard. There was no firefight.” Al-Ghozi’s death comes just six days before President Bush is scheduled to visit the Philippines, causing some to claim that the killing was timed for maximum political effect. [Sydney Morning Herald, 10/14/2003] Aquilino Pimentel, president of the Philippines Senate, will suggest that both Edris and al-Ghozi were summarily executed after being arrested in order to silence them from potentially revealing their confederates in their prison escape. [Manila Bulletin, 10/18/2003]
October 14, 2003: 9/11 Commission Issues First Subpoena, to FAA
The 9/11 Commission issues it first subpoena, to the Federal Aviation Administration (FAA). The Commission had initially decided not to issue subpoenas (see January 27, 2003), but found that the FAA had withheld documentation from it (see August 2003 and September 2003), prompting it to take this step.
Request from Team Leader – The subpoena’s issue is the result of a request from John Farmer, leader of the Commission’s team investigating the day of the attacks. After receiving permission from the Commission’s chairman and lawyer, Tom Kean and Daniel Marcus, to address the full Commission, Farmer tells them: “My team and I have lost confidence in the FAA. We do not believe we have time to take any more chances on the possibility that they will act on good faith.” This leaves them with “no choice other than a subpoena.”
Debate inside Commission – Some of the Democratic commissioners, such as Jamie Gorelick, then claim that this is a reason to subpoena all documents the Commission wants. However Kean and Vice Chairman Lee Hamilton are against this. Republican Slade Gorton proposes a compromise where the Commission subpoenas the FAA, but only issues a warning to other agencies that are not producing the documents the Commission wants. [Shenon, 2008, pp. 202-203] The Commission approves the subpoena unanimously. The Commission comments publicly, saying, “This disturbing development at one agency has led the Commission to reexamine its general policy of relying on document requests rather than subpoenas.” [Associated Press, 10/15/2003] It also warns other agencies that “document requests must be taken as seriously as a subpoena.” [Shenon, 2008, pp. 203]
October 16, 2003: White House Provides ‘Ridiculous’ Briefing about Presidential Daily Briefs to 9/11 Commission
Following nine months of haggling over access to Presidential Daily Brief (PDB) items related to the 9/11 Commission’s work (see Late January 2003, June 2003, and Late Summer 2003), White House Counsel Alberto Gonzales agrees to provide the Commission with a briefing about them.
No Details Provided – Gonzales says the briefing will be about the “contents” of the PDBs, although the Commission is unsure what this means and thinks it may include verbal information about what is written in items relevant to its investigation. However, at the briefing, lawyers simply tell the Commission about how the documents are prepared. They also say that there are approximately 300 PDB items relevant to the Commission’s work, but they will not provide any details of what the items actually say.
Briefing Is ‘Ridiculous’ – The commissioners are very frustrated, and Republican Commissioner Jim Thompson, for example, complains, “This is ridiculous.” Author Philip Shenon will comment: “The commissioners were seething. If the briefing was meant to placate them, it had done the opposite; it was one more bit of proof of Gonzales’s ham-handed strategy in dealing with the investigation. If anything, the commissioners were now more anxious to see the actual PDBs.” Thompson will add, “We were not going to take no for an answer.” [Shenon, 2008, pp. 215-216]
October 16, 2003: Defense Secretary Rumsfeld Wonders If More Terrorists Are Being Created than Eliminated
Defense Secretary Donald Rumsfeld writes a memo to his aides about US efforts to combat terrorism. In it, he asks: “Today we lack metrics to know if we are winning or losing the global war on terror. Are we capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us?” He does not attempt to give an answer. He will be asked a similar question on television in 2005 and answer that he does not know (see June 26, 2005). But a US National Intelligence Estimate in 2006 will comment, “Although we cannot measure the extent of the spread with precision, a large body of all-source reporting indicates that activists identifying themselves as jihadists… are increasing in both number and geographic distribution” (see April 2006). [Salon, 3/27/2008]
October 19, 2003: New Alleged Bin Laden Audiotape Appears, Says US Is Bogged Down in Iraq; This Allegedly Inspires Bombing in Spain
A new audiotape thought to contain a message from Osama bin Laden is broadcast by Al Jazeera. On the 31-minute tape the speaker says that the US occupation of Iraq, a “new Crusader campaign against the Islamic world,” is bogged down in the “quagmires of the Tigris and Euphrates” and suffering mounting casualties from guerrillas. He also compares supporters in Iraq to great Muslim warriors of the past and forbids them from working with the Ba’ath party. After describing democracy as “the religion of ignorance,” he addresses the question of Palestine, and attacks the “road map” for peace between Israel and Palestine as well as Palestinian leader Mahmoud Abbas, saying he is similar to Afghani President Hamid Karzai. He highlights US financial losses and budget deficits after 9/11, and would also apparently like to fight in Iraq: “God knows, if I could find a way to get to your battlefields, I would not hesitate.” [Associated Press, 10/19/2003; Laden, 2005, pp. 207-211] He also says, “We reserve the right to respond at the opportune moment and place against all of the countries participating in this unjust war, in particular: Great Britain, Spain, Australia, Poland, Japan, and Italy.” [Irujo, 2005, pp. 257] Bin Laden had not specially threatened Spain in any previous speeches. According to a Spanish investigator, the Madrid al-Qaeda cell hears the speech, notices this, and begins planning an attack in Spain the next day. This will result in the Madrid train bombings only five months later (see 7:37-7:42 a.m., March 11, 2004). [Benjamin and Simon, 2005, pp. 10] However, some evidence suggests the cell was already planning a bombing from about late 2002. [Associated Press, 4/10/2004]
Late October 2003: 9/11 Commission’s Tour of NEADS Facility Suspended over Discrepancies
Several months into its investigation, the 9/11 Commission is already dissatisfied with the Department of Defense (see July 7, 2003).
Recorded Conversations Not Provided to Commission – When its staff take a tour of a Northeast Air Defense Sector (NEADS) facility in Rome, New York, which helped coordinate the air defense on the day of 9/11, the staff enter the operations room, which has “more than 20 banks of operators: some weapons controllers and some flight controllers.” The staff find that the operators’ conversations are always tape-recorded, but the tapes for 9/11 have not yet been sent to the Commission. In addition, according to Commission Chairman Tom Kean and Vice Chairman Lee Hamilton, “there were also discrepancies between things NORAD was telling [the Commission] about their performance on the morning of September 11—things that the agency had stated publicly after 9/11—and the story told by the limited tapes and documents the Commission had received.”
‘Egregious’ Failure – Upon learning of the existence of the tapes, team leader John Farmer immediately suspends the tour and the interviews and flies to meet Kean in New Jersey. [Kean and Hamilton, 2006, pp. 85-88] Farmer will say that the failure to produce the tapes was “egregious,” as, “Those tapes told the story of the air defense better than anything else that anyone could have given us.”
Subpoena Demanded – Farmer demands that a subpoena be issued to the Pentagon for the tapes. He tells Kean: “Listen, we have to subpoena this stuff. We may not get it, but if we don’t try to get it, how can you explain to the public that we have done our job?” Farmer is aware that it will be difficult to get a subpoena on the Pentagon—“When you’re talking about subpoenaing the DOD, the room goes quiet”—but he decides privately: “I would have quit if we didn’t. I felt we were becoming a laughingstock.” [Shenon, 2008, pp. 204]
Lost Time – Despite opposition from its Vice Chairman Lee Hamilton (see (Late October-Early November 2003)) and, allegedly, its Executive Director Philip Zelikow (see November 5, 2003), the Commission will subpoena NORAD for the tapes (see November 6, 2003). However, according to Kean and Hamilton, this means that “the staff had lost so much time that our hearing on the 9/11 story in the skies was postponed for months. Indeed, the delays from NORAD and the FAA made it highly unlikely that the team could complete its work as scheduled.” [Kean and Hamilton, 2006, pp. 85-88] Chapter 1 of the Commission’s final report will draw heavily on the tapes. [9/11 Commission, 7/24/2004, pp. 1-46]
Contrast with Other Aspects of Investigation – However, the Commission does not make the same effort with all day of 9/11 recordings. For example, it does not even find out which person(s) from the Department of Defense participated in a White House video conference chaired by counterterrorism “tsar” Richard Clarke during the attacks (see (9:10 a.m.) September 11, 2001). [9/11 Commission, 7/24/2004, pp. 36]
October 21, 2003: 9/11 Commission Staff Meet Member of Able Danger Unit
Philip Zelikow, the executive director of the 9/11 Commission, along with two members of the commission’s staff and an unnamed “representative of the executive branch,” meets at Bagram Air Base in Afghanistan with three individuals doing intelligence work for the US Defense Department. [CNN, 8/17/2005; Sacramento Bee, 11/24/2005] Among these is Lt. Col. Anthony Shaffer, an Army intelligence officer who worked closely with a military intelligence unit called Able Danger, which between fall 1999 and spring 2001 was tasked with assembling information about al-Qaeda networks around the world (see Fall 1999 and January-March 2001). According to Shaffer’s own later account, he gives the commission staff a detailed account of what Able Danger was, and tells them, “We found two of the three cells which conducted 9/11, to include [Mohamed] Atta.” At the end of the meeting, Philip Zelikow approaches him and says, “This is important. We need to continue this dialogue when we get back to the states.” [Government Security News, 9/2005] Following the meeting, Zelikow calls back to the 9/11 Commission’s headquarters in Washington to request that staff draft a document request, seeking information on Able Danger from the Department of Defense. [Thomas H. Kean and Lee H. Hamilton, 8/12/2005 
] According to Anthony Shaffer, “My understanding from talking to another member of the press is that [Zelikow’s] call came into America at four o clock in the morning. He got people out of bed over this.” [Government Security News, 9/2005] Shaffer subsequently tries contacting Philip Zelikow in January 2004 (see Early January 2004). After it is revealed in the press that the commission, which includes no mention of Able Danger in its final report, had been briefed on the unit, spokesmen for commission members will insist that while they were informed of Able Danger at this time, they were not informed that it had identified Mohamed Atta or any other hijackers as threats. [New York Times, 8/10/2005] Head commissioners Thomas H. Kean and Lee H. Hamilton will later say in an official statement that a memorandum prepared by the commission staff after the meeting “does not record any mention of Mohamed Atta or any of the other future hijackers, or any suggestion that their identities were known to anyone at [Defense Department] before 9/11. Nor do any of the three Commission staffers who participated in the interview, or the executive branch lawyer, recall hearing any such allegation.” [Thomas H. Kean and Lee H. Hamilton, 8/12/2005 ]
Late October-Early November 2003: 9/11 Commission Staff Discusses Pentagon Subpoena, Major Argument in Some Accounts
Following the discovery that NORAD is withholding extremely important evidence from the 9/11 Commission (see Late October 2003), John Farmer, the leader of the Commission team investigating the day of 9/11, and the Commission’s Executive Director Philip Zelikow discuss subpoenaing the Pentagon. In the first meeting, Zelikow seems to support Farmer’s demand that a subpoena be issued, but is “hard to read” according to Farmer.
Charges that Zelikow is ‘Undoing’ Subpoena – Farmer then returns to New York, where he is based for his work on the Commission. According to Farmer, he receives an urgent phone call from Daniel Marcus, the Commission’s counsel, telling him Zelikow is trying to derail the subpoena and that Defense Secretary Donald Rumsfeld is to meet with the commissioners to dissuade them. Such a meeting will actually be held one day before the Commission votes on the subpoena (see November 5, 2003). In Farmer’s account, Marcus says: “You’d better get down here. It’s all unraveling. Philip is undoing this.” Marcus will later say he does not recall this call, but will say that Zelikow, who was close to members of Rumsfeld’s staff, would even “flaunt” his good relations with Undersecretary of Defense for Intelligence Stephen Cambone. Zelikow will later make a successful last-ditch bid to prevent a subpoena being issued on the White House (see February 2004).
Disagreement between Zelikow, Farmer – According to Farmer, he returns to Washington and together with Dana Hyde, one of his staffers, confronts Zelikow. Hyde complains, “We can’t do our job if you frustrate us.” Farmer adds: “I thought you were supporting this subpoena. Now I hear otherwise. What’s going on?” He demands he be allowed to address the commissioners on the subpoena, but Zelikow replies: “I represent the staff. I will represent your views.” According to author Philip Shenon, Zelikow’s face “turn[s] the crimson color that the staff in Washington ha[ve] seen before in moments of his most extreme rage.” Zelikow then says, “It’s beyond our pay grade at this point.” Farmer disagrees and storms out of Zelikow’s office.
Zelikow’s Version – Zelikow will confirm that there was a difference of opinion with Farmer on the matter: “We did have concerns about timing and tactics. Tension was building to a breaking point.” However, Zelikow will say he did not necessarily oppose a subpoena, as he shared Farmer’s concerns about the Pentagon’s truthfulness. Marcus will back Zelikow, saying that he thinks Zelikow did not try to derail the subpoena because of his friendship with Cambone or for any other reason. [Shenon, 2008, pp. 205-207]
October 21, 2003: Patrick Fitzgerald Blames ‘Wall’ for Intelligence Problems
Prosecutor Patrick Fitzgerald testifies before the Senate Committee on the Judiciary about post-9/11 legislative changes, and says that the removal of the “wall” was a significant step forward for US counterintelligence. The wall was a set of procedures which regulated the passage of intelligence information within the FBI and from the FBI to prosecutors (see July 19, 1995). Fitzgerald says the removal of the wall represented “the single greatest change that could be made to protect our country.” He cites four cases that he says are examples of how the wall and other such obstacles have hampered counterterrorism efforts: 
The arrest of Ali Mohamed. Fitzgerald claims it would have been “far less difficult” to arrest al-Qaeda operative Ali Mohamed for his involvement in the attacks on US embassies in East Africa (see September 10, 1998) had it not been for the wall. [US Congress, 10/21/2003] However, author Peter Lance will point out, “But Fitzgerald neglected to tell the senators that… prosecutors and FBI agents had been monitoring the bombing cell members for two years or that they’d had multiple face-to-face meetings with Mohamed himself.” Mohamed, who was called a “key figure” in the Day of Terror plot in the US press in early 1995 (see February 3, 1995), had actually met Fitzgerald a year before the arrest and told him that he had trained bin Laden’s bodyguards, lived in bin Laden’s house, loved and believed in bin Laden, and that he didn’t need a fatwa to attack the US, as it was obvious the US was the enemy (see After October 1997). [Lance, 2006, pp. 274-6, 299-300] The Day of Terror conspiracy. After the partial success of the World Trade Center bombing (see February 26, 1993), the conspirators planned to attack other targets in New York, but were arrested by the FBI, which had penetrated their cell. All of the arrested plotters were successfully convicted. However, Fitzgerald tells the committee, “Prosecutors were in the dark about the details of the plot until very late in the day.” [US Congress, 10/21/2003; Lance, 2006, pp. 118-9] The Millennium Alert. Fitzgerald says that in 1999, investigations into suspected millennium plots were hampered because “criminal prosecutors received information only in part and with lag time so as not to breach the wall.” All attacks planned for the millennium failed, including one plot to bomb the Los Angeles airport (see December 31, 1999-January 1, 2000). Sharing Wadih El-Hage’s grand jury interview. In 1997, Al-Qaeda operative El-Hage provided information about bin Laden and his associates to a grand jury. Fitzgerald wanted to pass some of this information along to intelligence investigators (see September 24, 1997) but was unable to because grand jury information cannot be shared with intelligence investigators. To get around this restriction, an FBI agent had to get El-Hage to repeat the information outside the grand jury room. (Note: this example is not directly related to the “wall” under the Foreign Intelligence Surveillance Act, but rather to a similar obstacle governing the passage of information in the opposite direction—from criminal agents to intelligence agents). [US Congress, 10/21/2003]
