The Commission

by Philip Shenon

  Gonzales would reply with almost the same words each time, always in the same quiet, infuriatingly calm voice. “I don’t think we can do that,” he said. “My client can’t do that.”

  DAN MARCUS, the new general counsel, was left to conduct legal negotiations with the White House by an odd triangulation. Gonzales refused to see Marcus. After announcing in the first weeks of the investigation that he would not meet with Zelikow again, Gonzales insisted on dealing only with Kean and Hamilton.

  When Kean and Hamilton returned from meeting with Gonzales at the White House, Marcus would try to sit them down and debrief them. And then Marcus, based on what he thought had gone on at the White House, would need to plot counterproposals for Kean and Hamilton to take back to Gonzales. “It was very messy,” Marcus recalled.

  It was a crazy way to do business, he knew, but there was so much that was crazy about the way the White House and its lawyers were dealing with the commission. Like virtually every other lawyer on the commission and its staff, Marcus questioned whether Gonzales understood what he was doing and how badly—as a lawyer—he was serving the president.

  “Gonzales didn’t have good political judgment and staked out positions that got the White House in trouble—these kinds of wooden separation-of-power arguments,” Marcus remembered.

  Some of the commissioners framed the questions about Gonzales more directly: Was the president’s counsel competent?

  If anyone on the commission understood the issues before Gonzales, it was Fred Fielding, the Republican commissioner who had been Ronald Reagan’s White House counsel; Fielding had also been deputy White House counsel during the worst of the Watergate scandal in the Nixon administration, when questions of executive privilege were tested almost daily in the federal courts.

  Fielding could see how this was going to turn out: The Bush White House would have to back away from its absolutist arguments—its refusal to turn over the PDBs and other documents, its refusal to make Rice and others available—if only because the political pressures would simply be too great.

  A good White House counsel would have understood that—the counsel’s ultimate responsibility was to defend the president in every way, including protecting the president’s hopes for a smooth route to reelection.

  To Fielding, it was only a question of when the White House would compromise; the longer Gonzales and others waited, the more damage would be done to the president from the barrage of headlines about White House “obstruction” and “stonewalling.”

  If Fielding was back at the White House, this would have been a reasonably simple, if time-consuming, give-and-take with the commission. Fielding would have started by offering the commission 25 percent of what it wanted and then, as a “generous” compromise, would have eventually agreed to turn over 50 percent. Maybe some of the less damning PDBs. Maybe a limited chat for several of the commissioners with Bush and Cheney. The grateful commissioners could argue that they were “victorious” because they had pressured the White House to meet them halfway.

  Fielding could see that Gonzales, by offering the commission nothing and antagonizing its members, including the Republicans, might eventually be forced to turn over everything, compromising the prerogatives of the White House in ways that might damage the presidency for generations.

  20

  K STREET OFFICES OF THE 9/11 COMMISSION

  Washington, D.C.

  MAY 2003

  To the alarm of some of the more publicity-hungry commissioners, the investigation fell out of the headlines for several months in the spring and summer of 2003. It was mostly ignored by the Washington press corps, which had a much bigger story to cover at the time. In March, only four months after the creation of the commission, President Bush ordered the invasion of Iraq. The overthrow of Saddam Hussein was described by the White House as the next logical chapter in the “war on terror” that began on September 11.

  The White House had originally justified the invasion as necessary because of intelligence that Baghdad was hiding stockpiles of chemical and biological weapons—maybe even nuclear material—from United Nations inspectors.

  After the invasion, when it became clear that the intelligence was disastrously wrong and there were no such deadly weapons, the administration shifted its argument. Now it justified the war by focusing almost exclusively on the purported collaboration between Iraq and al-Qaeda. The White House played endless semantic games on the issue. When pressed, Bush was careful not to allege that Iraq had any role in the 9/11 attacks, at least no direct role. But he insisted that if Saddam Hussein had remained in power, he would have continued his hunt for weapons of mass destruction and would have been tempted to hand them over to his supposed ally Osama bin Laden.

  Vice President Cheney went further, subtly contradicting the president and suggesting repeatedly, almost obsessively, that Iraq may in fact have been involved in the September 11 plot.

  In speeches and interviews throughout 2002 and 2003, Cheney kept citing a Czech intelligence report that Mohammed Atta, the Egyptian-born ringleader of the 9/11 hijackers, met in April 2001 with a senior Iraqi spy in Prague, the Czech capital. Cheney kept promoting the report as credible even though his White House staff knew it had been knocked down by both the CIA and the FBI; the bureau had found cell phone and banking records to show that Atta had been in Florida in April. The Iraqi spy who supposedly met with Atta in Prague was captured after the Iraq invasion and denied there had been any such meeting.

  MOST OF the commissioners and the staff did not know it until much later, but Philip Zelikow had an important role at the White House in developing the scholarly underpinnings for the Iraq war.

  His thirty-one-page “preemptive war” doctrine, written anonymously and at Condoleezza Rice’s request, was released by the White House in September 2002 under George W. Bush’s signature. It had the simple, magisterial title “The National Security Strategy of the United States.”

  “In an age where the enemies of civilization openly and actively seek the world’s most destructive technologies, the United States cannot remain idle,” it declared. “The United States will, if necessary, act preemptively.” It was a remarkable document, a reversal of generations of American military doctrine, which had previously held that the United States would launch a military strike against an enemy only after it had been struck or if American lives were in immediate jeopardy.

  When commission staffers learned that Zelikow was the principal author, many were astounded. It was arguably his most serious conflict of interest in running the investigation. It was in his interest, they could see, to use the commission to try to bolster the administration’s arguments for war—a war that he had helped make possible.

  Zelikow’s participation in preparing the White House strategy paper was mentioned in passing in a few news accounts in 2003. But the extent of his involvement was not revealed until publication of a book in March 2004 about Bush’s war cabinet by journalist Jim Mann. Zelikow’s support for the concept of preemptive war had not been a secret in the run-up to the Iraq war, however. In June 2002, nine months before the invasion, Zelikow was quoted by the Associated Press as saying that “we’re now beginning to understand that we can’t wait for these folks to deliver the weapons of mass destruction and see what they do with them before we act.” He referred specifically to Iraq: “We’re beginning to understand that we might not want to give people like Saddam Hussein advance warning that we’re going to strike.”

  In the commission’s early private meetings, Max Cleland felt passionately that the commission needed to investigate the Bush administration’s reasons for going to war in Iraq—specifically, whether the president had used the 9/11 attack as an excuse to launch an invasion that he had planned to carry out from his earliest days in the White House.

  Cleland felt that the White House’s early “obsession” with Iraq resulted from Bush’s belief that his father had made a mistake by not finishing off Saddam Hussein in the 1991 Gu
lf War. Iraq was part of the reason the White House had paid so little attention to al-Qaeda terrorist threats in the spring and summer 2001, Cleland believed. Bush was targeting a different enemy, the one in Baghdad that his father had failed to overthrow. “They were focused on Iraq, they were planning a war on Iraq, they were not paying attention to the business at hand,” he told the other commissioners.

  But he could see that Kean, Hamilton, and Zelikow had no interest in pursuing any line of inquiry involving the Iraq war. The war had overwhelming public support at the time, largely because most Americans saw it as a response to 9/11.

  Cleland found the opinion polls on the subject of Iraq astounding—the public had “drunk Cheney’s Kool-Aid” and believed, despite all evidence to the contrary, that Iraq was somehow involved in September 11. He was astonished by a Washington Post poll that summer showing that seven in ten people believed Saddam Hussein had helped direct the attacks on the World Trade Center and the Pentagon. A Time/CNN poll found that 80 percent of Americans suspected Iraq’s involvement in 9/11.

  Cleland could tell that his harping on Iraq and the war was making him even more unpopular among the other commissioners, especially the Republicans. Several of the GOP members had already made it clear they were offended by his insulting comments behind closed doors about Bush, Karl Rove, and the other “nutsos” in the White House. Even some of the Democrats were distancing themselves from him. Cleland knew he was quickly becoming a pariah.

  “It was painfully obvious to me that there was this blanket over the commission,” he said. “Anybody who spoke out or dissented, whether against George Bush, the White House, or the war against Iraq, was going to be marginalized.” The investigation was only a few months old, but Cleland was already wondering if he had to find a way off the 9/11 commission.

  THE COMMISSION scheduled a third set of public hearings in July 2003. The subject this time was al-Qaeda, its history and its relationship with other terrorist groups and governments. And to the surprise of some of the commission’s staff who knew something about Laurie Mylroie of the American Enterprise Institute, Zelikow made sure that she had a prominent place at the witness table.

  Mylroie was considered the intellectual godmother of the Iraq invasion. She and her theories about Iraq and al-Qaeda had been embraced by the Bush administration. Mylroie argued that Iraq had played a role in every major terrorist attack against the United States since the early 1990s, including September 11 and the 1993 bombing of the World Trade Center. She even saw a link between Iraq and the 1995 Oklahoma City bombing. She was certain, she believed, that Baghdad was working with al-Qaeda to plan new terrorist strikes on the United States.

  What more could the White House want? A politial scientist at a respected conservative think tank who had all the right credentials, including a Harvard PhD, and who was eager to promote the idea that Iraq and al-Qaeda were effectively one and the same. If Mylroie was right, it almost did not matter that no weapons of mass destruction were found in Iraq; Saddam Hussein deserved to be brought down, she argued, because of his role in 9/11.

  Zelikow would later say that he had never met Mylroie prior to her testimony and was skeptical of her views. But he said that at least one of the commissioners “felt those views should be heard,” and he agreed. Zelikow surely knew that many in the Bush administration wanted her theories promoted as widely as possible; he knew that she had extraordinary access to the White House and the Pentagon.

  Her biggest booster in the government was Deputy Defense Secretary Paul Wolfowitz, a key architect of the Iraqi invasion. In November 2001, Wolfowitz’s Pentagon office issued an unusual statement of praise for Mylroie’s newly published book, Study of Revenge: The First World Trade Center Attack and Saddam Hussein’s War Against America, describing the book as “provocative and disturbing” and saying Mylroie “argues powerfully that the shadowy mastermind of the 1993 World Trade Center bombing was in fact an agent of Iraqi intelligence.” Mylroie thanked Wolfowitz in the prologue and said his wife, Clare, had “fundamentally shaped this book.” She also thanked Vice President Cheney’s chief of staff, Lewis “Scooter” Libby, for his “timely and generous assistance.”

  At the time, few members of the commission’s staff understood the full significance of Zelikow’s invitation to Mylroie to testify before the commission; the investigation was barely under way, and they had little say in the makeup of the witness lists. Zelikow made those decisions.

  But they would later realize how troubling it was that the 9/11 commission had suggested—early in its investigation, at one of its first substantive public hearings—that the most credible academic in the United States on possible ties between Iraq and al-Qaeda was one who believed firmly that there were such ties.

  By giving Mylroie such a prominent public platform before the 9/11 commission, Zelikow may not have gotten what he bargained for, however. Several of the commissioners thought that Mylroie came off as batty, if not actually disconnected from reality.

  JUDITH YAPHE of the National Defense University took one look at the witness list for the July 2003 hearing, and she could see this was a “setup” by the staff of the 9/11 commission.

  She had spent twenty years at the CIA and was considered one of its most experienced analysts on Iraq. She retired in the 1990s and joined the National Defense University, the Pentagon’s prestigious military studies college in Washington. Given her credentials, it was no surprise that she was called as a witness before the 9/11 commission to discuss Iraq. Yaphe was widely admired in and out of the intelligence community for her sober analysis of events in the Persian Gulf.

  Like most researchers on the subject, she was convinced there had never been a close relationship between Saddam Hussein and Osama bin Laden, certainly nothing like the relationship the Bush administration kept suggesting had existed.

  Yes, she agreed, there had been plenty of contact between Iraq and al-Qaeda over the years. In the 1990s, Iraq had probably given weapons training to some of bin Laden’s followers in Sudan. But Saddam Hussein would have known he was writing his death warrant if he coordinated terrorist attacks with bin Laden, whose ultimate goal was a bloody end to secular Arab governments—just like his. “Saddam Hussein knew he would be next on their hit list,” she said.

  So Yaphe was taken aback when she saw the rest of the witness list for the commission’s hearing and realized who else would be at the witness table. Seated right next to her, in fact. Laurie Mylroie.

  To Yaphe’s thinking, Mylroie’s crazed theories about Iraq and al-Qaeda had been discredited by other intelligence analysts and scholars years earlier. Had the commission not done enough research to understand that? Did they really want to give an audience to someone who wanted to blame Saddam Hussein for 9/11?

  Yaphe decided to go ahead with her testimony despite Mylroie’s presence; at least the commissioners could hear for themselves just how bizarre Mylroie sounded when someone tried to pin her down on the details of her eccentric conspiracy theories about Iraq and al-Qaeda. “I thought this might be interesting,” Yaphe recalled thinking. Still, she wondered why the 9/11 commission would want to risk its credibility by giving this sort of publicity to Mylroie.

  MYLROIE’S TESTIMONY before the 9/11 commission was a bizarre bit of political theater. Here was the woman who was, arguably, one of the most influential academics of her generation, whose research was cited by the United States government to justify a war. And she was spouting what would later be shown to be—and what many other experts in the field already knew to be—nonsense.

  “A major policy and intelligence failure occurred in the 1990s, namely the emergence of a serious misunderstanding about the nature of major terrorist attacks on the United States,” Mylroie began.

  “Prior to the 1993 bombing of the World Trade Center, it was assumed that all major attacks against the United States were state sponsored. The Trade Center bombing is said to mark the start of a new kind of terrorism that does not involve states
, and that is simply not true.”

  According to Mylroie, both the 1993 bombing and September 11 were the work of Iraqi intelligence agents. She insisted the men known as Ramzi Youssef, the 1993 World Trade Center bomber, and Khalid Sheikh Mohammed, the mastermind of the 9/11 plot and supposedly Youssef’s uncle, were Iraqi spies. Her byzantine theories centered on her belief that Iraq had planted phony identification papers—“legends,” she called them—in Kuwaiti government offices for the two men during the Iraqi occupation of Kuwait in 1990.

  “The odds are high that these people are not whom they claim to be, and demonstrating that would constitute a clear link between Iraq and the 9/11 attack, as reasonably only Iraq could have created these legends while it occupied Kuwait,” she said.

  “Al-Qaeda was a front for Iraqi intelligence in much the same way that Hezbollah is a front for the Iranians and the Syrians,” she testified. “We went to war because senior administration officials believe Iraq was involved in 9/11.”

  Yaphe looked appalled by what she was hearing.

  “Dr. Mylroie’s answer leaves me kind of breathless,” she said in her testimony. “I think she’s doing exactly what troubles me the most about leaping to great conclusions that al-Qaeda was a front for Iraqi intelligence. I’m sorry. I need evidence.”

  Richard Ben-Veniste knew something about Mylroie’s background, and he could see how the Bush administration had cynically tried to seize on her theories to justify the Iraq war. He could not understand why the commission’s staff had called her to testify. What is she doing here? he asked himself.

  Like the talented prosecutor he had been, Ben-Veniste bored in on Mylroie, getting her to acknowledge that “95 percent” of Middle Eastern scholars did not accept her theories about a link between Iraq and al-Qaeda.