The Commission

by Philip Shenon

  To Farmer’s mind, this was far more serious than the situation with the FAA.

  “What NORAD had done was egregious,” he said. By withholding the tapes, NORAD had effectively denied the commission the true story of the military’s response on September 11—of how a group of young Arab men with minimal pilot training had managed to foil every element of national security and kill thousands of Americans within the country’s borders. “Those tapes told the story of the air defense better than anything else that anyone could have given us,” he said.

  Farmer cut the tour short and announced angrily that he was leaving immediately to fly to New Jersey to see Tom Kean, who agreed to rearrange his schedule to meet with Farmer in the president’s offices at Drew as soon as he landed.

  “Listen, we have to subpoena this stuff,” he told Kean. “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 knew it was going to be much harder to convince the full commission to issue a subpoena to the Defense Department than to the FAA. The FAA had no obvious constituency on the commission or with the public. Farmer knew the commissioners would be much warier of plunging into a fight with the Defense Department and Secretary Donald Rumsfeld, one of Washington’s best bureaucratic infighters.

  “When you’re talking about subpoenaing the DOD, the room goes quiet,” Farmer recalled. Kean did not give his immediate support to a subpoena; the decision of issuing a subpoena to the Pentagon would have to be left to the full commission.

  Farmer did not tell Kean at the time, but he had decided that if the commission did not back up his request for the NORAD subpoena, he would resign. “I would have quit if we didn’t,” he said. “I felt we were becoming a laughingstock.”

  Farmer and his team felt there was another stumbling block: Philip Zelikow. During the debate over the FAA subpoena, Zelikow was overseas, leading a commission delegation to the Middle East and Afghanistan, so he was not actively involved in the discussion. But he was back in Washington by late October, and Farmer and his team had reason to fear that Zelikow would try to block their efforts to issue a subpoena to the Pentagon.

  It was yet another issue of Zelikow’s conflicts of interest. Zelikow made no secret that he had good friends on Rumsfeld’s staff, most importantly Steven Cambone, the undersecretary of defense for intelligence, who was Rumsfeld’s most trusted aide. Dan Marcus, the general counsel, had found it distasteful the way Zelikow would “flaunt” his closeness to Cambone.

  Although there had been no direct confrontations between Farmer and Zelikow before this, many on the staff felt a clash between them was inevitable.

  Because he worked out of the New York office, Farmer was mostly spared face-to-face encounters with Zelikow. But he had heard all of the stories from Washington about Zelikow’s efforts to shield his friends in the White House and elsewhere in the government from the commission’s scrutiny. He had heard the stories about Zelikow’s unauthorized telephone calls with Karl Rove and his contacts with Condoleezza Rice, and he was shocked by them, too.

  But unlike so many others in the commission, the strong-willed Farmer seemed ready to do battle with Zelikow. Other people on the staff were clearly terrified of Zelikow and his tirades, especially after the abrupt firing of Dana Lesemann, the last person to really stand up to him. But Farmer liked to remind his team’s investigators that he came from an Irish family and he knew how to brawl. “It doesn’t really bother me,” he said.

  Farmer went down to Washington to get an initial reading of Zelikow’s intentions on the NORAD subpoena. Zelikow seemed to suggest he would support the subpoena, although the support was obviously lukewarm. “He was hard to read,” Farmer said.

  He recalled that almost as soon as he returned to New York, there was an urgent call from Dan Marcus in Washington, warning him that Zelikow was maneuvering to derail the NORAD subpoena and that Rumsfeld’s office had hurriedly tried to arrange a meeting for the defense secretary with the commissioners to dissuade them.

  “You’d better get down here,” Farmer remembered being told by Marcus. “It’s all unraveling. Philip is undoing this.”

  Farmer rushed back to Washington to meet with Zelikow again—this time to confront him. He was joined in Zelikow’s office on K Street by Dana Hyde, a former congressional staffer who was a Washington-based member of Farmer’s team. She was even more outraged by what appeared to be Zelikow’s effort to protect his friends in the Defense Department.

  “We can’t do our job if you frustrate us,” Hyde said, clearly furious with Zelikow.

  Farmer joined in. “What’s going on?” he asked Zelikow angrily. “I thought you were supporting this subpoena. Now I hear otherwise. What’s going on?” He insisted to Zelikow that he be allowed to make a presentation to the commissioners before they voted, just as he had before the vote on the FAA subpoena.

  Zelikow refused. “I represent the staff,” he said. “I will represent your views.” His face had turned the crimson color that the staff in Washington had seen before in moments of his most extreme rage. Zelikow was furious to be challenged like this by Farmer and others who supposedly worked for him.

  “It’s beyond our pay grade at this point,” he told Farmer and Hyde, explaining that there was nothing more to talk about. “It’s been taken to a higher level.”

  Farmer was getting angrier. “I don’t see this as something that can be past our pay grade. We need this subpoena. We’re not getting cooperation.”

  Farmer stormed out of Zelikow’s office. Would he follow through on his promise to himself to resign?

  Memories of this confrontation differed sharply between Zelikow and members of Farmer’s team, another reflection of just how poisonous the relationship had become between Zelikow and many of the commission’s best investigators—how much distrust there was of Zelikow’s motives. Zelikow insisted later that he had never stood in the way of a subpoena and shared Farmer’s suspicions about the truthfulness of NORAD’s leaders. He did not deny there had been a confrontation with Farmer, however. “We did have concerns about timing and tactics.” he said later, without elaboration. “Tension was building to a breaking point.” Although Farmer’s team suspected that Zelikow had arranged the last-minute Pentagon meeting with Rumsfeld in an effort to sabotage the subpoena, Zelikow said he did not recall having anything to do with organizing the meeting; it remains unclear who did. In this case Marcus, who was often so suspicious of Zelikow, stood by Zelikow’s account. Marcus said he did not recall the telephone call to Farmer urging him to return to Washington. Nor, he said, did he believe Zelikow tried to derail the NORAD subpoena because of his friendship with Cambone, or for any other reason.

  On November 5, 2003, the day before the commission’s scheduled vote on the subpoena, Hamilton and Gorton went to the Defense Department for the meeting with Rumsfeld. Deputy Defense Secretary Paul Wolfowitz and Cambone sat in. Rumsfeld, as charming and agreeable as anyone in Washington when he wanted or needed to be, insisted he was unaware of the problems between the commission and NORAD. He vowed to get them resolved. If NORAD had held back any evidence from the commission, it would be turned over immediately, he promised. Surely there was no need for a subpoena, he said. Hamilton left the meeting convinced that he could rely on the word of his old friend. He would defy the other Democrats and vote against a subpoena.

  “I’ve known Don Rumsfeld for twenty, thirty years,” Hamilton explained to the other commissioners. “When he said, ‘I’m going to get that information for you,’ I took him at his word.”

  But Gorton thought that NORAD, like the FAA, deserved no more of the commission’s patience. “I was outraged with NORAD and the way they had operated,” he said. He suspected that NORAD officials had knowingly made false statements to the commission. “Even if it wasn’t intentional, it was just so grossly negligent and incompetent,” he said.

  When the commission met the next day, Gorton announced that he wou
ld join with the Democrats, apart from Hamilton, to subpoena NORAD.

  Since Hamilton intended to vote against the subpoena, the decision came down to Kean, who knew that this might be seen as a turning point for the commission—the first time he and Hamilton had disagreed on any substantive issue. It pained him a little to think of any crack in the perception of his partnership with Hamilton. There was a danger in that, he thought. But he voted for the subpoena. He, too, was convinced that NORAD was trying to hide something. The subpoena on NORAD, approved by a commission vote of six to four, was announced later the next day. Hamilton called his friend Rumsfeld to break the bad news.

  THE TAPES from NORAD showed up about a month later, and the commission needed several more weeks to prepare comprehensive transcripts; NORAD had not prepared transcripts itself.

  The tapes showed what Farmer had expected and feared—that NORAD’s public statements about its actions on 9/11 had been wrong, almost certainly intentionally.

  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.

  A central element of the NORAD cover story, repeated over and over after 9/11, was that air force jet fighters had heroically chased United 93. Had it not crashed in Pennsylvania because of the struggle between the hijackers and passengers, the United plane would have been blown out of the sky before it reached its target in Washington, NORAD had wanted the public to believe.

  But the tapes made it clear that every element of the story was wrong. NORAD knew nothing about United 93 until after it had already plunged to the ground. The tapes showed that NORAD was not notified until 10:07 a.m. that United 93 had been hijacked; the plane crashed at 10:03. Farmer believed that it was “99 percent” certain that Defense Department officers knew they were lying when they made the statements to the commission, sometimes under oath.

  If it was not perjury, it was arrogance, Gorton suspected when the staff’s results were presented to him. He thought that the generals, with all of those stars and ribbons on their chests, felt that they had no special responsibility to go back and be certain that their public state-ments about 9/11 were true. “I just don’t think they cared,” he said. “They didn’t regard this as very important. And they are responsible for a lot of the conspiracy theories that we have to deal with to this day.”

  IT WAS an endless discussion on Farmer’s team: Were the generals and colonels at NORAD and the Pentagon intentionally misleading the commission? Was this perjury? Miles Kara was a retired Army intelligence officer who had worked as an investigator in the Pentagon’s inspector general office before joining Farmer’s team on the 9/11 commission. Kara respected his new colleagues on the commission but thought they were too quick to assume the worst about the military. He understood the gargantuan bureaucracy that is the Defense Department, how much stress the men and women at the top of it felt constantly. He thought the uniformed officers he dealt with in the investigation were, by and large, telling the truth about September 11 as best they understood it—phenomenally muddled as it was.

  John A. Azzarello, a former federal prosecutor from New Jersey and another member of Farmer’s team, reflected the more widely held, and more cynical, view among the team’s investigators. Azzarello believed that the false statements from military officers and FAA officials might easily rise to the level of perjury, and that they needed to be reviewed outside the commission, preferably by the Justice Department. “I certainly felt we had been misled and lied to,” he said. “This was potential criminal activity.” And he too became convinced that Zelikow was doing what he could to shield the Defense Department from the investigation. That became apparent to Azzarello, he said, when Zelikow failed for weeks that spring to act on a memo sent to him by Farmer’s team, urging the full commission to consider a criminal referral. “He just buried that memo,” Azzarello said. A version of the memo was finally presented to the ten commissioners at their very last meeting that summer, too late to have an impact on the writing of the commission’s final report. And when the commissioners finally did agree on a last-minute referral of the allegations, it was not to prosecutors at the Justice Department. It was to the offices of the inspectors general at the Pentagon and the FAA, which do not themselves have the ability to bring criminal charges.

  For his part, Zelikow later insisted that Azzarello misunderstood what happened that spring, and that others in the commission’s Washington office—not Zelikow—had been responsible for any delay in acting on the team’s memo. “I was then, and remain to this day, deeply disturbed about the apparent conduct of certain officials, especially some particular USAF officers assigned to NORAD,” Zelikow said. He described Azzarello as an “excellent, hard-working staffer” but said he was “party to relatively few of the conversations or e-mail exchanges on this. So on this issue, and perhaps some others, he may have misunderstood or not been directly aware of my actual role.”

  Again, it was almost impossible to sort out the truth. Farmer supported Azzarello’s account of what had happened; he and Azzarello later became named partners in the same law firm in Chatham, New Jersey. Dan Marcus, the commission’s general counsel, largely supported Zelikow. On these issues involving the military, Marcus said, Zelikow did not “pull his punches.”

  Azzarello admitted that he had more reason than others on the Farmer team to feel strongly about all of this—to take this personally. His brothers-in-law, John and Tim Grazioso, both employees of the financial services firm Cantor Fitzgerald, had worked and died together in the North Tower of the World Trade Center on September 11. Their survivors included their widows and a total of five children, ranging in age from ten months to twelve years old. Azzarello’s wife, Carolee, had agreed to allow him to take a job on the 9/11 commission, so long as she never, ever, had to hear about his work. “I think you should do this,” he remembered being told by Carolee. “But frankly, if the government failed, I don’t want to hear about it from you.”

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  CIA HEADQUARTERS

  Langley, Va.

  If a newspaper is judged by its readership, the president’s daily brief is the most exclusive in the world. It almost certainly has the smallest circulation. Copies of the PDB are distributed by the CIA every day except Sunday to the president, the vice president, and the secretaries of state and defense. It contains what is supposed to be the most important and sensitive information gathered overnight by the nation’s spy agencies. The information is so classified that the president and other “subscribers,” as they are sometimes known, generally do not keep copies of the PDB for themselves. As soon as they have finished reading, they are expected to hand the PDB back to the CIA briefer so it can be returned to Langley the same morning.

  President Bush was never known to be much of a reader—he preferred to receive intelligence reports through face-to-face meetings—so the length of the PDBs was cut back in the Bush administration to no more than ten pages. President Clinton, by contrast, was a voracious reader. He would read as many pages as were put in front of him, and his copy of the PDB would often be returned to the CIA covered with his scrawled notes; passages that interested him would be circled, with questions scribbled in black or blue ink in the margins. The CIA would try to get the questions answered for a subsequent briefing. Bush would usually hand back his copy of the PDB with no markings at all.

  In the Bush White House, the PDB was usually made up of a few one- or two-page articles, each focusing on a different national security issue; the articles were printed on heavy paper and taken into the Oval Office in a leather binder that was known as “the Book.” Every morning at about 8:15, Monday through Saturday, Bush was presented with the PDB by the CIA’s “presidential briefer”—an invariably sleep-deprived intelligence analyst whose sole job at the agency was to prepare the PDB and organize the president’s briefing each morning. The brie
fer offered a short verbal summary of each article as it was handed to Bush.

  George Tenet, the director of central intelligence, had not attended the briefings during the Clinton administration. But Bush had wanted Tenet to be there, and Tenet was pleased to have daily access to the president and the chance to bond with him. Tenet liked to say that he provided “color commentary” to the president as the briefing went along. When Bush was traveling, the CIA briefer went with him, and Tenet sometimes participated in the briefing by a video hookup.

  It was clear to Tom Kean and the other commissioners early in the investigation that the panel would need to see the PDBs—maybe all of them from the Bush and Clinton administrations. Certainly the commission would need to see the PDBs that referred to al-Qaeda and terrorist threats. It was the best way to gauge exactly what Bush and Clinton knew before 9/11 about Osama bin Laden and his terrorist network, whether the two presidents had been well served by the CIA, and whether they reacted responsibly to the intelligence they were given. Kean knew better than to make any sort of public analogy to the Watergate investigations, but he was reminded of the famous question posed by Senator Howard Baker about Richard Nixon: “What did the president know, and when did he know it?”

  If Bush and his aides refused to turn over the PDBs and this became a fight, Kean thought, the White House had no one to blame but itself.

  Before 9/11, it was well-known in Washington that the president received a daily intelligence briefing. But the existence of the actual document known as the PDB was less well-known. Kean was told that before 9/11, the name itself—“president’s daily brief ”—was considered classified.

  The White House had helped create a furor over the PDBs, especially among the 9/11 families, when it refused to give a detailed response to news reports in May 2002 that suggested that Bush and others in the administration had received—and ignored—specific warnings before 9/11 about al-Qaeda’s plans to carry out hijackings, possibly within American borders. The most damaging leak was to CBS News, which reported on May 15, 2002, that a daily briefing presented to Bush a few weeks before the attacks warned him specifically about the threats of a domestic hijacking by al-Qaeda.