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: Spanish Intelligence Correctly Names Leaders of Next Attack in Spain, but No Action Is Taken Against Them
The Spanish intelligence agency Centro Nacional de Inteligencia (CNI) warns in a report that Barakat Yarkas’s al-Qaeda cell has reconstituted itself (see November 13, 2001) and is planning a new attack in Spain. It specifically warns that Allekema Lamari and Serhane Abdelmajid Fakhet are leading the new effort and are planning an attack on an unknown but significant target. This warning is based on comments Lamari made to his close associates. [Irujo, 2005, pp. 243] The warning is accurate; Lamari and Fakhet will be two of the leaders of the Madrid bombings in March 2004 (see 7:37-7:42 a.m., March 11, 2004). In retrospect, it is not surprising that Spanish intelligence is aware of such a warning, because at least two of the bomb plotters are actually government informants, and one of them is close to Lamari and another is close to Fakhet (see 7:37-7:42 a.m., March 11, 2004). But surprisingly, no action appears to be taken. Neither Fakhet, Lamari, nor any other members of their group are arrested before the bombings. A government informant will later claim under oath as a protected witness that Fakhet also was a government informant (see Shortly After October 2003). Mariano Rayon, head of the CNI, will later say, “We concluded that there was a certain and immediate threat against Spain or Spanish interests abroad.” The threat level was already high, but it was raised to “very high.” [ABC (Spain), 5/3/2007]
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]
November 8, 2003: Suicide Bombing Kills 17 in Saudi Arabia
A suicide bombing at a housing compound in Riyadh, Saudi Arabia, kills 17. Most of the victims are Muslims working in Saudi Arabia. US and Saudi officials believe the bombing was masterminded by Abdulaziz al-Muqrin, believed to be al-Qaeda’s top figure in Saudi Arabia. [BBC, 12/6/2004]
November 12, 2003: 9/11 Commission and White House Agree to Terms of Access for President Bush’s Daily Briefings
Senators of both parties have been accusing the White House of stonewalling the 9/11 Commission by blocking its demands for documents despite threats of a subpoena. [Associated Press, 10/27/2003] On this day, the White House and the 9/11 Commission strike a deal. The main issue is access to the presidential daily briefings given to President Bush. Under the deal, only some of the ten commissioners will be allowed to examine classified intelligence documents, and their notes will be subject to White House review. Some 9/11 victims’ relatives complain that the agreement gives the White House too much power. The Family Steering Committee complains, “All ten commissioners should have full, unfettered, and unrestricted access to all evidence.” It urges the public release of “the full, official, and final written agreement.” [Associated Press, 11/13/2003] Commissioner Max Cleland is unsatisfied with the deal and resigns a short time later (see December 9, 2003).
November 14, 2003: Neoconservative Magazine’s Attempt to Revive Iraq-Al-Qaeda Link Is Immediately Discredited
On November 14, 2003, the neoconservative magazine the Weekly Standard prints a cover story by Stephen Hayes entitled “Case Closed” that attempts to revive allegations that there was a link between the Iraqi government and al-Qaeda. It claims to have new evidence of the link, based on a “top secret US government memorandum obtained by The Weekly Standard.” It quotes extensively from a classified October 27, 2003, 16-page memo written by Undersecretary of Defense for Policy Douglas Feith. [Weekly Standard, 11/14/2003] But the story is immediately discredited. The next day, the Defense Department issues a press release stating, “news reports that the Defense Department recently confirmed new information with respect to contacts between al-Qaeda and Iraq… are inaccurate.” But several conservative media outlets, including the New York Post, the Washington Times, and Fox News, run with the story anyway. Conservative New York Times columnist William Safire also endorses the story. Most of the outlets that report on the story are owned by Rupert Murdoch, who also owns the Weekly Standard. However, most other outlets either ignore the story or write articles completely dismissing it. [Slate, 11/18/2003; Editor & Publisher, 11/18/2003] For instance, on November 19, Newsweek posts an article called “Case Decidedly Not Closed.” It notes that the Feith memo “is mostly based on unverified claims that were first advanced by some top Bush administration officials more than a year ago—and were largely discounted at the time by the US intelligence community (see August 2002), according to current and former US intelligence officials.” [Newsweek, 11/19/2003] The New York Times and Washington Post also print stories largely discrediting the Weekly Standard piece. [Slate, 11/18/2003] But nonetheless, in January 2004, Vice President Cheney will cite the article and call it the “best source of information” about the supposed pre-war Iraq-al-Qaeda link (see January 9, 2004).
November 14, 2003-September 28, 2005: Some Defendants Are Dismissed in Saudi 9/11 Lawsuit
In a series of rulings, a number of defendants are removed from a 9/11 lawsuit filed in August 2002 (see August 15, 2002). The lawsuit, filed on behalf of 9/11 victims’ relatives, accuses a number of individuals and organizations of funding and supporting al-Qaeda and thus helping the 9/11 attacks to occur. A number of Saudi princes are dropped because they work for the Saudi government. One judge writes in a ruling, “Whatever their actions, they were performed in their official (government) capacities.” According to the court ruling, only the US president, not the courts, has the authority to label a foreign nation as a terrorist supporter. Judges rule that the plaintiffs failed to provide sufficient facts to overcome the kingdom of Saudi Arabia’s immunity. Saudi defense minister Prince Sultan bin Abdul Aziz, Saudi ambassador to Britain Prince Turki al-Faisal, and Prince Mohammed Al-Faisal Al-Saud, among others, are dismissed from the lawsuit, but the lawsuit is allowed to proceed against many more defendants, including the Saudi Binladin Group, the multibillion dollar bin Laden family company. [Associated Press, 11/16/2003; Charleston Post and Courier, 11/18/2003; Associated Press, 1/19/2005; New York Law Journal, 9/28/2005] A judge writes in a ruling that “the Saudi Binladin Group maintained close relationships with Osama bin Laden at certain times” and that it remains “unclear” whether these ties continued since bin Laden became involved in terrorism. [Der Spiegel (Hamburg), 6/6/2005] The International Islamic Relief Organization (IIRO) is allowed to remain as a defendant, even though this charity has considerable ties to the Saudi government. [New York Law Journal, 9/28/2005] Some of the Saudi princes, such as Prince Sultan and Prince Salman, are represented in the case by the prestigious Dallas-based law firm of Baker Botts. James Baker, former Secretary of State and close associate of the Bush family, is one of the senior partners of the law firm. [Newsweek, 4/16/2003; New York Law Journal, 9/28/2005]
