The Commission

by Philip Shenon

  15

  K STREET OFFICES OF THE 9/11 COMMISSION

  Washington, D.C.

  APRIL 2003

  Philip Zelikow could not have been more deferential to Tom Kean and Lee Hamilton, returning their telephone calls instantly and praising them to the commission’s staff at every opportunity. He was not about to offend them. But Kean could tell that Zelikow was not going to be so diplomatic with the staff; he heard early reports about Zelikow’s harsh treatment of some of the commission’s newly hired investigators. Zelikow was clearly off to a terrible start with two of the Democratic commissioners, Richard Ben-Veniste and Tim Roemer, who were most openly suspicious of his ties to the Bush White House.

  Roemer was furious with Zelikow when he went to Capitol Hill in April to read classified interview transcripts and other documents from the joint congressional committee on 9/11—and was turned away. Zelikow had neglected to tell Roemer, who was a member of the joint committee in his final year in Congress, that he had reached a private agreement with the Justice Department to block access to the files of the congressional inquiry until the White House had a chance to review them first.

  “Why is our executive director making secret deals with the Justice Department and the White House?” Roemer asked. “He is supposed to be working for us.” Roemer believed, correctly, that it was a sign of much larger struggles to come with Zelikow.

  Still, Kean and Hamilton were grateful for Zelikow’s energy and obvious enthusiasm for the investigation. The commission had otherwise gotten off to a disastrously slow start. The withdrawal of Henry Kissinger and George Mitchell had eaten up almost a month of the commission’s time, and the investigation’s early logistical problems seemed endless.

  Kean and most of the other commissioners did not have security clearances, nor did most of the new staff. That meant that even if the White House cooperated and began turning over classified files to the commission, there would be almost nobody to read them until the FBI completed the background checks needed for security clearances. That process could take several months, even if the FBI hurried.

  The law creating the commission called for its work to be finished by May 2004, only sixteen months after the commissioners had met one another for the first time. The White House and the Republicans who controlled both the House and Senate made it clear from the start that they were opposed to any extension of the deadline; Bush and much of Congress would be up for reelection in November 2004, and GOP campaign strategists were worried enough about the impact of the commission’s final report on a campaign that would be centered almost entirely on terrorism. The idea of a report issued on the eve of the November election was unimaginable.

  The 9/11 commission faced overt hostility from House Republican leaders, who had been far more aggressive than their Senate counterparts in trying to block the panel’s creation in the first place.

  House Speaker Dennis Hastert of Illinois seemed almost irrationally antagonistic toward the investigation. It was a sign, in part, of just how much more poisonous the partisan divide had always been in the House. But with Hastert, it seemed to be more than that. Aides said Hastert saw the commission as a tool of congressional Democrats acting through—and manipulating—the families of the 9/11 dead. Kean would later describe his failure to open an early line of communication to Hastert and his formidable deputy in the Republican hierarchy, Majority Leader Tom DeLay of Texas, as his most serious mistake on the commission. It had long been assumed by Democrats on Capitol Hill that Hastert functioned as DeLay’s puppet in the House; Hastert had gotten the Speaker’s job in 1999 only when it became clear to DeLay, then in line for the job, that he would be too polarizing a figure as Speaker.

  But when it came to his hostility to the 9/11 commission, Hastert seemed to be taking direction from no one.

  Relations with Senate Republicans were easier since one of their own, former senator Slade Gorton, was on the panel. During the life of the commission, Gorton made a point of visiting Capitol Hill whenever he was in town from Seattle; he was a regular at the Senate Republicans’ weekly strategy lunch.

  The job of soothing Hastert was supposed to have been left to another of the Republican commissioners, former Illinois governor Jim Thompson. Hastert had personally selected Thompson for the commission; they were close friends. But to Kean’s dismay, Thompson all but disappeared from the commission during the first year of the investigation.

  Thompson was too busy trying to dig himself out of involvement in the scandals centered on media baron Conrad Black, former owner of the Chicago Sun-Times and the Daily Telegraph in London. Black had been accused by shareholders—and later by the Justice Department—of bilking his publishing company of tens of millions of dollars, some of it diverted to lavish parties, private jets, and upkeep of his palatial homes around the world. Thompson, a member of the board of directors of the company, Hollinger International, had been chairman of Black’s auditing committee. That put Thompson at the center of many of the transactions that were the focus of the criminal prosecutors.

  The commission’s early logistical problems were more than a little humiliating to men like Kean and Hamilton, who had commanded vast staffs and virtually unlimited office space during their years in power in government. Now they were at the mercy of others if they wanted secondhand office furniture for the commission’s cramped offices in Washington. It had taken several weeks to find the office space on K Street. Before that, the commission and the staff had no phones. No fax machine. No stationery. One of Zelikow’s earliest hires was Stephanie Kaplan, a twenty-four-year-old political scientist who, Zelikow knew, was tough and seasoned beyond her years. Her cell phone functioned as the commission’s initial operations center.

  Kean’s early worries went beyond office space. He was alarmed, too, to see signs of the partisanship that he had tried so hard to avoid on the commission in the first weeks of the investigation.

  The Democrats were insistent that if Zelikow was going to remain as staff director, his Republican ties had to be balanced out by a Democratic general counsel, the title that would be given to the commission’s chief lawyer. The Democrats wanted a counsel who had a prosecutorial bent and had overseen large, complicated investigations. Some of the Republican commissioners bristled at the Democratic demands and quietly warned the White House what the Democrats were up to.

  Kean heard within days from Andy Card and others at the White House. They were worried that the commission was going out of its way to find a partisan Democrat as counsel, someone who would be itching for a legal fight with the White House. “They were very, very alarmed when they heard some of the names being considered” for the counsel, Kean said.

  Kean agreed in principle with the Democrats that the general counsel would be a Democrat. But he and Hamilton were determined not to choose someone with a clearly partisan background; they also did not want a candidate who seemed eager to confront the Bush administration. The Democrats offered up several candidates, including James Hamilton, who had been a lawyer on the Senate Watergate committee (he was no relation to Lee Hamilton).

  Kean went to a computer to do his own Google search and discovered that Hamilton had participated in the Al Gore campaign’s legal team in the 2000 Florida recount; to Kean, that made Hamilton too partisan to be considered for such an important job on the commission.

  Weeks later, Jamie Gorelick thought she had the perfect candidate for the job: Carol Elder Bruce, a respected Washington lawyer who had worked for years in the Justice Department as a career prosecutor. Bruce was a veteran investigator. She was familiar with national security and intelligence issues; in the 1980s she led the high-profile prosecution of Edwin Wilson, a former CIA officer convicted of selling weapons to Libya; Wilson was later taped in prison trying to arrange Bruce’s murder. She had been a special federal prosecutor in both the Reagan and Clinton administrations. She was a registered Democrat but was not active in party politics.

  She was invited in for a
n interview with Kean and Hamilton in Hamilton’s offices at the Wilson Center. She was surprised to see Zelikow in the room, if only because she knew that the commission was looking for a tough-minded general counsel to “balance out” Zelikow.

  Kean asked what her priorities would be if she was chosen as general counsel. She was direct: She said that the commission would be making a terrible mistake if it did not quickly issue subpoenas to the Bush administration, including to the White House, for documents and interviews.

  “I’ve been in this town for a long time, and there is nothing extraordinary about issuing subpoenas,” she explained. “That’s the way it’s done in Washington. There would be no offense taken. It would not be considered too aggressive. It would be expected.”

  Bruce explained that for a veteran criminal investigator, this was a “no-brainer.” In an investigation of this significance, she said, the subpoena would establish the commission’s seriousness about its mission—and avoid court delays later on if the White House or federal agencies refused to cooperate.

  Bruce could sense that she was going over with Kean, Hamilton, and Zelikow—especially Zelikow—like a particularly odiferous skunk at their garden party. Her instincts were right.

  As far as Kean as concerned, the interview was over at her first mention of subpoenas. “She was a very able woman, but it was the dead opposite of what Lee and I wanted to do,” he said. Bruce was just repeating what Gorelick and the other Democrats had suggested—and Kean and Hamilton had rejected—at the commission’s first meetings. Kean and Hamilton were sticking by their decision to use subpoenas only when all other options had failed. They did not want unnecessary battles with the White House.

  The search for a general counsel went on for weeks, and Kean found himself dispirited that it had become a subject of such partisan rancor.

  Gorelick found another candidate: Daniel Marcus, a partner in her law firm and a Democrat. He had worked in the White House Counsel’s Office and at the Justice Department during the Clinton administration, but he had no ties to Democratic political operations. He had not worked as a criminal prosecutor; his specialties were constitutional and regulatory law. He was known by colleagues in the Clinton administration for his intelligence, level head, and good humor. Kean called around to Republican friends in Washington legal circles.

  “He’s obviously a Democrat, served in the Clinton administration, but everyone said this is a very fine lawyer,” Kean said. “This is a very fine man.”

  The Democrats would still have preferred a prosecutor, certainly someone with more experience in the corridors and back rooms of the CIA and the Pentagon. But after weeks of battling it out with the Republicans, they agreed on Marcus. It was time to move on.

  “Dan was just the sort of general counsel they wanted,” Gorelick said of Kean and Hamilton. “They wanted to assure themselves they got all the information, but they did not want to engage in fisticuffs.” Marcus, she said, “was a general counsel in the Kean-Hamilton mold”—willing to fight for information if that was what it came to, but willing to wait to strike the first punch.

  16

  CITY HALL

  New York, N.Y.

  MARCH 2003

  It was never clear if Michael Bloomberg was genuinely furious or if his anger was a well-choreographed show by the billionaire mayor to intimidate the 9/11 commission. But Bloomberg’s staff made it instantly clear that the commission was not welcome in the city.

  “What the fuck are you doing here?” one of Bloomberg’s senior aides barked to Philip Zelikow in City Hall.

  Zelikow was startled. He and a group of the commission’s staff had traveled to New York in preparation for the commission’s first public hearing; it was scheduled for late March at the Customs House in lower Manhattan, only a few blocks from ground zero. The rest of Bloomberg’s staff was just as rude to Zelikow’s delegation on that first day of meetings in City Hall, just without the profanity. They wanted Zelikow and these other out-of-towners to turn around and go back to Washington or wherever else they had come from; the commission had no business in New York.

  “Their position was this: New York City didn’t cause the 9/11 attack,” Zelikow said of Bloomberg’s aides. They believed “the 9/11 commission had nothing to do with them and we should leave them alone.”

  That was not going to happen. The mayor’s staff did not understand what they were up against in Zelikow. He coolly explained to Bloomberg’s aides that they were wrong about the commission’s mandate and that the mayor had better get used to the scrutiny. The commission was not going away. The law establishing the panel gave it the authority to investigate what had happened in New York on September 11, especially the city’s emergency response at the World Trade Center. The commission expected the city’s cooperation in the investigation. If Bloomberg did not cooperate, the commission always had the option of a politically damaging subpoena.

  Tom Kean, in particular, had felt strongly that the commission needed an early public hearing, if only to prove to the increasingly anxious 9/11 families that the investigation really was up and running. And he felt that the first hearing should be in New York City, where most of the lives had been lost.

  Kean probably should have known better. He had lived much of his life less than an hour’s drive from Manhattan and the theaters of Broadway. As much as anyone on the commission, he should have understood that it was better to open a production out of town than to debut in New York. The logistics are difficult. New York audiences are as tough as they come when the curtain goes up. The commission’s first public hearing came close to being a disaster.

  UNTIL HE arrived in New York for the hearing, Lee Hamilton had not seen ground zero for himself. The commissioners were staying at the Millenium Hilton Hotel in lower Manhattan, directly across Church Street from where the Twin Towers had stood. The fifty-five-story hotel had been badly damaged during the 9/11 attacks and had undergone a complete structural renovation, essentially stripped to its Sheetrock frame, before reopening a year later. Hamilton arrived in his hotel room, pulled back the curtains, and looked out the window to see the vast gray emptiness—sixteen acres—that was now called ground zero. He wrote later that he had to sit down to collect himself.

  The commissioners had decided to hold off on testimony from former mayor Rudolph Giuliani until later in the investigation, when they would have a better sense if Giuliani’s hero status from his performance as mayor on 9/11 was as well deserved as his growing army of political consultants wanted the public to believe. By early 2003, Giuliani was already laying the groundwork to succeed George Bush in the White House.

  The commission did schedule testimony at the first hearing from other New York politicians: Bloomberg, Governor George Pataki, and the state’s two senators, Hillary Clinton and Charles Schumer. But the witness list was thrown into chaos four days before the hearing, when former senator Patrick Moynihan of New York, arguably the state’s most beloved politician, died suddenly. His burial service at Arlington National Cemetery, across the Potomac from Washington, was scheduled for the same day as the hearing. So Clinton and Schumer canceled. It was not immediately clear that Pataki or Bloomberg would show up for the hearing, either.

  Kean had hoped the hearing would offer the commission the chance to show the public and the families that the investigation was making progress, that the commission was really moving forward. But the truth was that the investigation was barely under way; the commission was only just settling into its offices in Washington; it was still searching for space for a satellite office in New York. Almost four months after the commission’s creation, many staff members did not have security clearances to begin the hard work of digging in classified government files. Negotiations with the White House over access to the most important and most secret intelligence documents were still weeks, if not months, away.

  For many of the younger staffers who traveled up to Manhattan to prepare for the hearings, New York was unknown, unfri
endly territory, and it showed in the amateurish preparations for the hearing.

  Kean arrived at the Customs House to discover that no one had thought to bring a gavel for him to use to open the hearing. One of the staffers ran to a nearby courthouse and asked to borrow a gavel for the day. The Customs House, the stately Beaux Arts federal building that had once served as the New York offices of the U.S. Customs Service, had no spare water pitchers to share with the commission, so they had to be hurriedly rented.

  The commission had expected a huge turnout for the hearing on March 31 and warned the 9/11 victims’ families to show up early or they might not find a seat. But as Kean arrived in the Customs House auditorium that morning, almost two-thirds of the 350 seats in the auditorium were empty. The audience was made up mostly of the 9/11 family members, many clutching poster-size photographs of their dead loved ones, and they were furious. They could see that the commission had so botched publicity for the hearing that few people—other than a group of reporters and cameramen and them—had shown up.

  Kean was about to make many of the families even angrier with his opening statement. He was going to tell them exactly what they did not want to hear.

  “I am honored and humbled to convene this first public hearing,” he began. “The American people want the answers to so many questions around 9/11. They want to know who were these people and how could they have done this terrible thing to so many innocent people. What kind of fanaticism drove them to do this? They also want to know how such a dastardly attack could occur and succeed in a nation as strong as ours.” He vowed to get the answers to those questions.

  But there was a rumble in the audience, even a few groans, as Kean revealed what the commission would not do: It did not intend to make a priority of blaming individual government officials for 9/11.