The Commission

by Philip Shenon

  JAMIE GORELICK, who along with Philip Zelikow was given access to the larger universe of PDBs, was more impressed by the documents than Kean had been. Or at least she was less unimpressed. She knew the Bush administration was right to complain that much of the intelligence in the PDBs in the months before 9/11 was maddeningly nonspecific about a possible date or place of an attack. Some of the intelligence in the PDBs was “paltry”; sometimes the information contradicted itself from one day to the next, Gorelick said.

  But she was astonished by the sheer volume of the warnings. Flood, cascade, tsunami, take your pick of metaphors. She could see that in the spring and summer of 2001, there was a consistent drumbeat of warnings, day after day, that al-Qaeda was about to attack the United States or its allies. It was clear to Gorelick that the CIA had gone to President Bush virtually every morning for months in 2001 to give him the message that the United States needed to be ready for a catastrophic terrorist strike. And from what she was reading, no one ruled out the possibility of a domestic attack.

  “Something is being planned, something spectacular,” she said, summarizing what the president had been told by George Tenet and what Bush should have read in the PDBs. “We don’t know what it is, we don’t know where it is, but something is happening.”

  She said CIA analysts were trying to tell Bush, as bluntly as they could, that the threat in those months was “the worst thing they’ve ever seen—an unprecedented threat,” worse than the threats before the millennium.

  Gorelick read the August 6 PDB for the first time and could see that the concluding two paragraphs in the twelve-paragraph document referred specifically to current threats to Americans—within American borders. In New York City, no less.

  After noting unconfirmed 1998 reports that Osama bin Laden had intended to hijack an American passenger plane, it read:

  “FBI information since that time indicates patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks, including recent surveillance of federal buildings in New York.

  “The FBI is conducting approximately 70 full-field investigations throughout the U.S. that it considers bin Laden-related. CIA and the FBI are investigating a call to our embassy in the UAE in May saying that a group of bin Laden supporters was in the U.S. planning attacks with explosives.”

  She read those passages again and was struck by the use of verbs. They were almost all in the present tense—“indicates,” “is conducting,” “are investigating.” How could those warnings be considered “historical”?

  To her surprise, Gorelick had found that she and Zelikow worked well together. After he was hired as executive director, Gorelick was told by friends who knew Zelikow that she would need to “wield a two-by-four to hit him over the head so that he does what you want rather than what he wants.” Like the other Democrats, she had worried about all of his friendships at the Bush White House, especially with Rice.

  But on this sensitive assignment, Zelikow did not seem to be pulling any punches, she said. And Zelikow treated Gorelick with deference. He clearly respected her intelligence. For sheer brainpower, she might have been Zelikow’s equal among the commissioners. And he saw her as even-tempered and collegial—certainly easier to deal with than Richard Ben-Veniste or Tim Roemer, who could be openly confrontational with Zelikow. Gorelick found that Zelikow’s encyclopedic knowledge of national security issues—not just about al-Qaeda—was invaluable in the search through the PDBs.

  “He had been through all the CIA documents, and so he had terrific context,” she recalled. “I would say, ‘Where does this come from?’ And he would give me the background on it.” They sat together in the reading room in the New Executive Office Building for days, passing the PDBs between them.

  Gorelick and Zelikow agreed that about fifty of the more than three hundred PDBs were directly relevant to the investigation and should be added to the twenty or so in the White House’s “core” pile, which would allow Kean and Hamilton to read them as well. They provided the list of the additional fifty to the White House.

  But Alberto Gonzales’s office said that was impossible; under the agreement with the commission, the White House had expected that no more than one or two of the larger universe of PDBs would be transferred to the “core” pile. Fifty? There was no chance of that, Gonzales told the commission.

  He also balked at the detail in the ten-page report written by Gorelick and Zelikow for the full commission that summarized what they had found in the PDBs; the report included headlines from many of the briefings, as well as virtually all of the language from the August 6 PDB. The White House said it had expected the report would be no more than a page or two—certainly not ten pages, certainly not with the damning detail from the August 6 PDB. Gonzales refused to allow the document to circulate to the other commissioners.

  The commission was fed up with Alberto Gonzales. Kean had begun referring to Gonzales and a few others at the White House who were involved in negotiations with the commission as “control freaks.” By now, it was impossible to mention Gonzales’s name among the commissioners without hearing a growl of anger or exasperation. It was January; the commission was scheduled to begin its high-profile, televised public hearings within weeks, at which cabinet officers from the Bush and Clinton administrations would be called to testify. The deadline for the final report was only four months away. And the commissioners still had not had full access to the most important documents they needed to see.

  Once again, Republicans appeared even angrier with Gonzales than the Democrats. It was time to threaten a subpoena again, and this time the commission was serious enough that it authorized Dan Marcus to hire an outside constitutional expert to draw up a subpoena and prepare for what would likely be a historic courtroom showdown with the White House.

  Marcus himself wanted to avoid a subpoena. He thought the commissioners were kidding themselves, that whatever the political pressures, the White House would stand up to the subpoena threat and continue to withhold the PDBs. If the commission went to court to enforce a subpoena, the clock would run out on the investigation before the court case was anywhere near a resolution.

  “It would have been Armageddon,” he said. “Even though we had a good legal argument, the subpoena would have been a disaster for us because we could not have won the litigation in time to get the PDBs.”

  Still, he had to be ready for Armageddon, so he retained Robert Weiner, a noted Washington appellate lawyer and former colleague from the White House Counsel’s Office in the Clinton administration, to help prepare for the court fight.

  The decision was made not to subpoena the PDBs themselves, but instead to demand access to the voluminous notes taken by Gorelick and Zelikow. Their careful notes referred to all of the most important information from the PDBs, and Marcus and Weiner assumed a federal judge would be far more likely to uphold a subpoena for the commission’s own notes than one for the PDBs themselves. The commission was prepared to issue the subpoena in early February.

  Zelikow had a last-ditch plan to preempt the subpoena. Working virtually nonstop over two days, he prepared a seventeen-page, seven-thousand-word document that broadened the original report on the PDBs he had written with Gorelick. Zelikow knew that much of the material the White House found most alarming in their original report was actually available in other, much less classified documents—especially the SEIBs, the intelligence summaries that were more widely circulated within the government.

  By cleverly cross-indexing his report with the SEIBs and other documents, Zelikow argued that the ten commissioners would see all the information they needed to see, and they could avoid a potentially disastrous court battle with the White House.

  Whatever his interest in protecting friends in the Bush administration, Zelikow was as furious as the commissioners about the way the White House had handled this. He said later that Gonzales’s “trench warfare” in dealing with the commission was shockingly sel
f-defeating, if only because it made the PDBs seem more important than they were. “The PDBs had become superimportant politically because of the mystique they had acquired in the public eye,” in part because the White House had strug- gled so long to keep them under wraps, he told a Harvard researcher.

  Feeling beaten down by the long negotiations with the White House, Gorelick read through Zelikow’s report and agreed that it could serve as the basis for a compromise with the White House. Under pressure from Andy Card and others at the White House to preempt a subpoena, Gonzales agreed as well.

  Kean and Hamilton released a public statement on February 10 announcing the compromise and said that “we are confident that the commission has obtained an account of all the PDBs that relate to the al-Qaeda threat and the events of September 11.”

  Many of the 9/11 family groups were outraged by this new compromise; it was even clearer now that only Gorelick and their nemesis Zelikow would ever see the full library of PDBs; the other commissioners would see only an edited version of what Gorelick and Zelikow chose to show them.

  By early 2004, however, the families’ struggles with the commission seemed a minor story to the Washington press corps; reporters wanted to focus instead on what they saw as the real headline—the growing hostility between the 9/11 commission and George Bush’s White House and its implications for Bush’s reelection.

  With the PDB issue settled, Kean and Hamilton prepared for their next struggles with the White House: first to find a way to force Condoleezza Rice to answer the commission’s questions in public, and then to persuade Bush and Cheney to meet with all ten commissioners to answer their questions. Gonzales had reluctantly agreed to make Rice available for a private question-and-answer session with the commission. But he insisted she would never testify publicly. He said Bush and Cheney might answer a few questions privately, but certainly not from all ten commissioners.

  33

  OFFICE OF THE SPEAKER

  House of Representatives

  JANUARY 27, 2004

  The otherwise infuriating battle over the PDBs had a silver lining for the commission: It made it easier for Kean and Hamilton to argue for more time to finish the investigation. They could blame White House stalling for the need for an extension.

  It was clear by the end of 2003 that the commission could not meet its original deadline to issue a final report—the following May—and Kean and Hamilton began polling the other members and the staff about how much more time might be needed.

  Any change in the deadline required new legislation, so the commission would need support from Republican congressional leaders and the White House. And Kean and Hamilton were certain it would be a tricky negotiation, if only because 2004 was a presidential election year, in which the outcome might be determined in part by the commission’s conclusions about George Bush’s performance in dealing with terrorists.

  Gorton and Roemer called for an extension of at least six months, which would push the release of the report past the November elections. But Kean and Hamilton doubted that the White House and Republican lawmakers would ever permit such a lengthy extension, fearing that parts of the report damning to Bush would be leaked throughout the fall in an effort to damage his reelection campaign.

  Kean’s political instincts also told him that it was best to get the report out before the election anyway. He wanted the commission’s recommendations to become an issue in the presidential campaign; he wanted the report to become a political football. He saw that the report might set off a campaign season “bidding war” between Bush and his Democratic contender to adopt the commission’s recommendations as their own.

  In a statement to reporters on January 27, Kean and Hamilton made the formal announcement that the commission needed more time. They said the commission had gathered most of the documents it needed and completed most of its interviews. But they said the panel still needed an extra sixty days to complete its report, pushing the deadline to July. They said they were aware of the political implications of the request but that “the right course is simply this: Put aside the politics and just ask for the time we really need.”

  As expected, there was no enthusiasm at the White House for a delay. But Bush’s aides feared a new, ugly round of headlines about how Bush was failing to cooperate with the investigation, so they agreed to the extension. Andy Card and Karl Rove figured that if the report was issued in July, they would still have time before election day to organize an effective response to any criticism of Bush. The Senate Republican leadership signed on quickly to the deal.

  But Dennis Hastert, once again, was furious with the commission. The White House had reached the deal on the extension to July without getting his okay.

  “The commission is a creation of Congress, and the Congress is not consulted about when the commission goes out of business?” Hastert said angrily to one of his top aides, clearly feeling snubbed once again. “That’s not right.”

  He decided he would single-handedly block the extension. He had the enthusiastic support of some conservative news outlets, notably the editorial board of The Wall Street Journal, which put the headline THE 9/11 AMBUSH on top of an editorial that savaged the commission: “The membership and behavior of the current 9/11 commission have always looked like a political crackup waiting to happen. Now the commission, which was supposed to report in May, is asking for more time.” The editorial writers said that “our sources tell us the real problem is that Democrats have held up drafting the final report with the excuse that some document might materialize that changes the entire picture.”

  On the commission, some Democrats wondered if Hastert was really doing the dirty work of the White House in trying to block the extension. If Hastert’s contempt for the commission was being stage-managed by anyone at the White House, it was assumed on the commission to be Dick Cheney. The vice president was a frequent, if rarely announced, visitor to the Speaker’s office.

  One theory, and it made as much sense as any, was that Hastert also felt personally insulted by the commission—both that it was ignoring him and that it was insulting the institution he ran. The latter was undeniably true. During the course of the investigation, members of the commission frequently sneered at any mention of Congress and its “dysfunctional” oversight of intelligence and law enforcement agencies. Hastert was tired of it.

  He made his true feelings known when he agreed to be interviewed on February 5 by Michael Smerconish, a conservative radio talk-show host in Philadelphia. The Speaker bluntly accused Democrats on the commission of leaking classified information that was intended to tarnish the administration in the run-up to the election.

  “I think there’s a belief that they would like to drag this thing out and drag it out and then have death by a thousand cuts,” Hastert said angrily. “There are Democrats on this thing that are leaking things already. They will leak it all the way to the election and make it a political issue.”

  Kean figured that he would have to intervene to try to make peace with Hastert, no matter how distasteful that would be. His view of Hastert was shaped in part by Hamilton, and Hamilton’s contempt for the Speaker—as expressed behind the closed doors of the commission—was almost palpable.

  But Kean knew that the commission needed the extension; there was no hope of finishing the final report by May. So he and Hamilton organized a meeting on the Hill with Hastert, Tom DeLay, and other House Republicans on March 2.

  The meeting began badly. The House was enemy territory for the 9/11 commission. Kean said he could not remember who started hurling insults at the meeting. But he remembered the insults:

  “You’re hurting the troops.”

  “You guys are doing this without consulting us—and we created you!”

  “Who do you think you are?”

  The venting reflected months of House Republican anger over the commission, and Kean was reminded again of what a mistake it had been to not open a line of communication earlier.

 
He was pleased that Hastert and DeLay had said little in the unpleasantness of the first few minutes of the meeting. At one point, he turned to Hastert, hoping to make the personal connection he should have made months earlier with the Speaker. After all his years in the statehouse in Trenton, Kean understood that political deals were often clinched by a tiny kindness, a small remark that reminded his opponents that “I am not the devil.”

  “You know, Mr. Speaker, you and I have a lot in common,” Kean said. “You were a high school history teacher?”

  “Yes,” Hastert replied.

  “And so was I,” Kean said, reminiscing about his two-year stint as a teacher at St. Mark’s, the Massachusetts prep school that he had attended as a student. “And you were a wrestling coach?” he continued.

  “Yes,” Hastert said, clearly softening. “Yes, I loved that.”

  “And so was I,” Kean said.

  Kean could not say if the fond reminiscences of two old high school wrestling coaches were what got the 9/11 commission more time. But Hastert walked out of the meeting that afternoon to announce that he and Kean had worked out the final details of the two-month extension. He told reporters that he was reluctant to do it, but it was “apparent they couldn’t get their work done” any other way.

  THE INSULTS headed Congress’s way from the commission did not stop. If there was one conclusion that the commissioners agreed on virtually from the first day of their investigation, it was the need for Congress to remake itself when it came to intelligence and national security. The House and Senate intelligence committees were poorly informed and, often, poorly led. The committees lacked budget authority over the CIA and other spy agencies; control over the budgets fell instead to the appropriations and armed services committees. The commission’s staff determined that eighty-eight committees and subcommittees in Congress had oversight responsibilities for the newly created Department of Homeland Security, which effectively meant that an agency to deal with domestic terrorist threats after 9/11 had no clear point of contact in the House or Senate.