The Commission

by Philip Shenon

  Mineta seemed wary of saying it directly—and proving how far out of the intelligence loop he had been in the Bush administration—but it was clear from his answers that he and the Transportation Department had no sense at all of how dire the terrorist warnings were in 2001. Nobody had told him.

  John Lehman, the former navy secretary, reviewed the long timeline of terrorist warnings that summer and then asked Mineta: “Wouldn’t you view it as a failure of our intelligence community not to tell the secretary of transportation that there was such a conceivable threat?”

  “We had no information of that nature at all,” Mineta replied.

  ON SEPTEMBER 11, two federal agencies had the duty of making sure the skies above the United States were free of threats: the Federal Aviation Administration and the Department of Defense. In the event of hijackings, they were supposed to work together. The FAA was supposed to alert the Pentagon—specifically the North American Aerospace Defense Command, or NORAD—at the first sign that a passenger plane had been commandeered.

  Understanding what happened in the skies on September 11 was the job given to a team of investigators on the commission led by John Farmer, a former attorney general of New Jersey. He had been recruited by Tom Kean, who would later say that Farmer was one of the commission’s best hires.

  Farmer was known as a dogged investigator, and he had been at the center of the New Jersey government’s response on 9/11. His loyal staff at the attorney general’s office had organized the search that turned up key evidence discarded before the attacks by the United Flight 93 hijackers. The evidence was found in garbage bins at Newark International Airport, where the Boeing 757 had begun its last flight, and at nearby hotels. It included a large poster of the computerized flight controls of a 757; the terrorists had used the poster as part of their training. Farmer has also overseen the state’s end of the investigation of five deaths caused by anthrax-laden letters mailed in the days after September 11 from a post office in Hamilton Township, New Jersey.

  Farmer would also prove invaluable to the commission because he knew how to write. His father had been a popular columnist at the Newark Star Ledger, and Farmer had considered following his father into a writing career. While in college, Farmer had won a summer fellowship to the University of Iowa’s famed writing school. Ultimately, though, he opted for a law degree at Georgetown and went to work as a prosecutor. Friends thought he still harbored dreams of a second career as a novelist or poet.

  On the commission, Farmer was named to lead the team that would investigate what happened in the skies on September 11 and detail— hour by hour, minute by minute—what had happened aboard the four planes and how the government had responded to the attacks. Farmer knew that it would be the best, if most difficult, writing assignment on the commission.

  When he joined the commission in early 2003, Farmer was eager to get back into the middle of the investigation of September 11. Only four months after the attacks, his term as the state’s attorney general expired, and he had returned to private legal practice. When Kean offered him a job on the commission, Farmer quickly accepted, as long as he could work out of the panel’s New York office. He did not want to move to Washington. Kean, who was just as eager not to relocate to Washington, agreed.

  Farmer began to educate himself about the workings of the FAA, responsible mostly for the safety of commercial and private aircraft, and NORAD. And it did not take long for him to realize that he had taken on the role of the commission’s chief debunker of conspiracy theories. Because the FAA and NORAD had found it difficult, if not impossible, to offer a coordinated story about their actions on September 11, they had given the conspiracy theorists plenty to work with.

  THE CONSPIRACY theories about 9/11 began to circulate long before the ashes had stopped smoldering at ground zero. That was no surprise. After an event as horrifying and—to the public—unexpected as 9/11, the darkest theories about its cause did not seem beyond belief.

  But by the time the 9/11 commission opened its doors in 2003, many of the most outrageous, if well circulated, of the theories—that the attacks were an inside job by the Bush administration, that the Twin Towers were brought down by preplaced explosives, that the Pentagon was hit by a missile and not a plane—had been well debunked.

  The evidence was incontrovertible that al-Qaeda was behind the September 11 attacks; Osama bin Laden had been videotaped bragging to his colleagues about his role in the preparations. There was clear-cut documentation to show that bin Laden had dispatched nineteen young Arab men to the United States to carry out the hijackings—he had chosen them personally for the mission—and that those same men were aboard the four planes. There was a well-documented money trail for the plot. Independent scientists and engineers had plausible explanations for the physical collapse of the Twin Towers and other buildings nearby.

  But there was one important set of conspiracy theories that would not be dismissed so easily, and they involved how government agencies—specifically the FAA and NORAD—had reacted to first reports of the hijackings. Officials at the FAA and the Pentagon had no one to blame but themselves for the confusion. Over the course of two years, they released a series of timelines that fueled the skeptics by suggesting that the government should have had time to shoot down at least one of the planes before they hit their targets.

  The first of the planes was reported hijacked to the FAA at 8:24 a.m.; the last of them would not crash until 10:03, which meant that the supersonic military jet fighters stationed up and down the East Coast to defend American borders had at least one hour and thirty-six minutes to try to reach some of the planes. That should have been plenty of time to apprehend and shoot down at least one or two of the hijacked airliners.

  Even from his earliest review of the evidence, Farmer could see that the FAA and NORAD had never presented the public—or the White House, for that matter—with a consistent timeline for the events of the morning of September 11. And they seemed bizarrely uninterested in trying to correct the record.

  It was remarkable, he thought, how often the inaccurate statements were made by senior government officials in public testimony—and under oath.

  On September 13, 2001, two days after the attacks, U.S. Air Force general Richard Myers appeared before the Senate Armed Services Committee for his confirmation hearing as chairman of the Joint Chiefs of Staff. Myers, then the number two officer on the Joint Chiefs, was a veteran air force fighter pilot. He had flown more than six hundred hours of combat in the Vietnam War and was twice awarded the Distinguished Flying Cross.

  It seemed obvious that Myers, of all people at the Pentagon, would want to know—would demand to know—how jet fighters under NORAD’s control had responded on the morning of September 11 to the threat in the skies.

  But in his testimony, Myers offered the first of what would be several contradictory—and flatly inaccurate—statements from the Pentagon about the military response on September 11. He asserted that military fighters were not scrambled to respond to the hijackings until after the Pentagon had been hit at 9:37 a.m. That was wrong; it would later be demonstrated that the first fighters had been scrambled almost an hour earlier than Myers suggested.

  Farmer could not understand why it was so difficult to establish an accurate timeline—surely the military and FAA had logs and computer records that documented what had gone on. It seemed all the more remarkable to him that the Pentagon could not establish a clear chronology of how it responded to an attack on the Pentagon building itself. Wouldn’t the generals and admirals want to know why their own offices—their own lives—had been put at risk that morning?

  He was pleased that the commission scheduled its second set of hearings, in May 2003, to take testimony from NORAD commanders. Surely by then, a year and eight months after the attacks, the Pentagon would have figured out what happened on September 11.

  The key witness was retired air force major general Larry K. Arnold, who had overseen NORAD’s efforts on Septembe
r 11 to respond to the attacks. Given his retirement, Arnold testified before the hearing in civilian coat and tie. But the fact that he was no longer in uniform did not mean that Arnold’s information was out of date. He had been briefed in detail by his former air force colleagues before the hearing about the questions to expect.

  As Farmer later reflected on Arnold’s testimony, he was startled to realize that NORAD still had its facts wrong in the spring of 2003—and either it did not care or was misstating the record intentionally.

  Arnold was questioned by Richard Ben-Veniste about the timeline on the morning of September 11, specifically about when the FAA notified NORAD of each of the hijackings and how long it had taken to scramble jet fighters to respond.

  Ben-Veniste was especially interested in what had happened with American Airlines Flight 77, the plane that crashed into the Pentagon, and United Airlines 93, which plunged into the field in Pennsylvania. They took off and crashed later than the pair of planes that hit the World Trade Center. Presumably there was more time for fighter jets to intercept them.

  Ben-Veniste asked Arnold when NORAD had been notified that American 77 might have been hijacked.

  “I believe that to be a fact: that 9:24 was the first time that we had been advised of American 77 as a possible hijacked airplane,” Arnold replied. He said that if NORAD was distracted in responding to Flight 77, which crashed into the Pentagon at 9:37, it was because “our focus—you have got to remember that there’s a lot of other things going on simultaneously here—was on United 93.”

  Arnold testified that the FAA had urged NORAD to pay special attention to tracking down United 93, which he believed might be headed toward Washington. “It was our intent to intercept United Flight 93. And in fact, my own staff, we were orbiting now over Washington, D.C., by this time, and I was personally anxious to see what 93 was going to do, and our intent was to intercept it.”

  The retired two-star general was suggesting that there had been time to shoot down United 93 and that the shoot-down was made unnecessary because of the sacrifice of passengers who had stormed the cockpit and provoked the hijackers to crash the plane. “The brave men and women who took over that aircraft prevented us from making the awful decision,” Arnold testified somberly.

  When Farmer and his team of investigators looked back at Arnold’s testimony later, they were astonished; Farmer believed the testimony from Arnold and other NORAD generals should have been referred to the Justice Department for possible prosecution. It would later be determined that almost every one of those assertions by General Arnold in May 2003 was flat wrong, most startlingly his claim that the military had close-tracked United 93 and was prepared to intercept it. In fact, it was later shown, NORAD knew nothing about the hijacking of the United plane until after it had crashed into that lonely rural field in western Pennsylvania. Luckily for Arnold, the commission had not put him under oath on the first day he testified. Farmer would make sure that did not happen again.

  19

  OFFICE OF THE COUNSEL TO THE PRESIDENT

  The White House

  JUNE 2003

  With each meeting, Tom Kean grew more exasperated with Alberto Gonzales.

  “This is not a viable position for the White House, Judge,” Kean told Gonzales, trying not to raise his voice, not to show anger. “You’ve got to move off this.”

  Kean and Lee Hamilton sat in Gonzales’s second-floor corner office in the West Wing hour after hour, meeting after meeting, in 2003, haggling over the White House’s refusal—Gonzales’s refusal—to turn over classified documents to the investigation and to help the commission arrange interviews.

  Kean kept asking himself the same questions: Did Gonzales understand the political damage he was doing to President Bush? Did the president understand what was being done by Gonzales in his name?

  Kean found Gonzales, an original member of the “Texas mafia” who had moved to Washington with Bush, to be polite and formal to the point of theatricality: “He was one of the politest men I’ve ever worked with, always very even in tone, always very polite. ‘Governor this,’ ‘Governor that.’ ”

  Kean could not help but be impressed by Gonzales’s life story. In a sense, the fact that a man like Gonzales had found his way into the Republican Party was the fulfillment of one of Kean’s lifelong political goals: to broaden the GOP beyond its staunchly Caucasian, Protestant, moneyed roots. Gonzales was one of eight children of a Mexican-American couple who had met as migrant workers, picking cotton in the fields of South Texas in the early 1950s. His father, who never finished grade school, built the two-room, wood-sided house near Houston in which Alberto and his brothers and sisters were raised; the home had no running water or telephone. From this, Alberto Gonzales made his way to the air force and then to Harvard Law School, the governor’s office in Austin, and finally the White House. Despite all of his accomplishments, Gonzales did not display an ounce of arrogance or self-importance.

  But Gonzales’s good manners did not mask the fact to Kean that the White House counsel was stonewalling the 9/11 commission.

  The White House, through Gonzales, was refusing to provide the commission with essential documents, including the president’s daily briefs that went to Bush in the months before 9/11.

  Gonzales also made clear that “my client”—the way he always referred to President Bush—would also not be made available for a formal interview with the full commission. Nor would Vice President Dick Cheney. Nor would National Security Adviser Condoleezza Rice be allowed to testify in public to the commission or under oath. “No, no, no,” Kean kept hearing.

  Gonzales’s argument never varied. It was an absolutist view of executive privilege—the concept that advice given to a president by his staff needed to remain secret if it was to have value.

  “My client believes that the material and interviews being sought by the commission are protected by executive privilege,” Gonzales told Kean and Hamilton more than once. If the White House made compromises with the commission, he said, it would soon be forced to compromise with hostile lawmakers in Congress.

  Kean took pride in his lack of a law degree. “Don’t like lawyers,” he would often taunt the many lawyers on the commission’s staff, almost always with a wink and a playful smile. But although he did not claim to know the law, he knew politics. He really knew politics. And he knew from his first dealings with Gonzales that the White House was going to have to compromise.

  Kean could not tell if Gonzales was speaking for the president—if the president really knew and believed in what Gonzales was saying—or if Gonzales was being directed by someone else. “We never knew,” Kean said. Either way, he thought, George Bush’s lawyer was doing his “client” no favors.

  It was often thought among the commissioners that Gonzales was taking his direction not from the president but from Vice President Cheney and his powerful counsel, David S. Addington. Gonzales had no experience at all in national security law or issues of executive privilege before arriving at the White House in 2001. Cheney and Addington knew those subjects as well as anyone in Washington, even if their views were considered extreme. No one was more of an executive privilege absolutist than Addington. Other White House lawyers believed him to have ghostwritten a January 2002 document signed by Gonzales that became known as the Bush administration’s original “torture memo.” It argued that Bush had authority under the Constitution to ignore the Geneva Conventions when it came to the detention of al-Qaeda followers and other prisoners captured in a “war on terror.” The opinion opened the door to harsh interrogation techniques that the United States had previously outlawed as torture, including waterboarding. In waterboarding, American interrogators pour water over the face of a prisoner whose head is covered with cloth or cellophane, simulating drowning. It was widely reported that the CIA “waterboarded” at least three senior al-Qaeda leaders apprehended after September 11.

  Kean knew that if all else failed, he could issue subpoenas to the Whi
te House, potentially setting off a constitutional fight that would do even more damage to Bush. He never used the word subpoena in his conversations with Gonzales. He thought Gonzales was well aware that the threat of a subpoena was always on the table.

  The script for these meetings was almost always the same. Gonzales would greet Kean and Hamilton cordially and invite them into his West Wing office. Coffee, tea, a glass of spring water? He was usually in shirtsleeves and invited his visitors to take a seat around his coffee table. Then he would spend thirty minutes saying no to all of Kean and Hamilton’s requests. And Kean and Hamilton—Kean, mostly—would insist that Gonzales reconsider for the sake of his “client.”

  Gonzales would often fall back on the argument that because the commission was created under a law approved by Congress, the investigation fell under the purview of the legislative branch. A decision to hand over the PDBs would therefore set an unacceptable precedent requiring future presidents to provide them to congressional investigations. He said Rice could not testify in public, or under oath, to the commission because of the long, well-established tradition that White House national security advisers do not appear before Congress.

  Gonzales argued, and Kean knew it was true, that presidents and vice presidents traditionally did not give testimony—or even private interviews—to outside investigations. Lyndon Johnson had refused to be interviewed by the Warren Commission, even though the subject was his predecessor’s assassination.

  “But we believe there are no precedents for our investigation,” Kean argued back. He reminded Gonzales, over and over again, that 9/11 was unlike anything in modern American history—an attack within American borders in which thousands of civilians were murdered, the deadliest attack on the continental United States by a foreign aggressor since the War of 1812.

  “We’ve never had an attack like this in American history. You can’t say we’re setting a precedent by letting us see the PDBs or talk to Condoleezza Rice or anything else,” he told Gonzales.