By early 2004, the relationship between Zelikow and Ben-Veniste had become poisonous. Zelikow thought Ben-Veniste, in particular, was trying to make use of the commission’s supposedly nonpartisan staff for blatantly partisan purposes. He thought Ben-Veniste wanted to turn De into his “personal ‘oppo’ researcher” in trying to savage Bush administration witnesses.
Zelikow pulled De aside a few minutes later.
“What are you doing,” he demanded.
“I’m doing some work for Richard,” De replied.
“You know this isn’t the Democratic National Committee,” Zelikow sneered.
AMONG NEWS organizations, the reaction to Richard Clarke’s testimony was predictable. Conservative newspaper editorial boards and television commentators laid into Clarke, pointing to the August 2002 briefing transcript as proof of his duplicity, even his perjury.
Bill O’Reilly of the popular Fox News show The O’Reilly Factor opened his broadcast the night of Clarke’s testimony with a statement and a question: “Tonight, Richard Clarke did not tell the truth on at least one occasion. How badly does this damage him?”
But the rest of the Washington press corps seemed to believe that Clarke’s credibility was still mostly intact. Certainly his credibility was intact for most of the commission’s staff—apart from Philip Zelikow, of course. Warren Bass and the rest of the investigators on Team 3 had read through Clarke’s files and knew that his paper trail and e-mail traffic backed up almost every essential assertion in his testimony. Clarke had certainly gotten the public’s attention. A poll by the Pew Research Center released the day after Clarke’s testimony showed that 90 percent of those surveyed had heard something about Clarke’s allegations against the president; 40 percent of them had heard “a lot” about Clarke.
The polling created fresh alarm at the White House. The president’s political handlers felt that Bush, his reelection campaign well under way, had to respond to Clarke’s accusations of pre-9/11 negligence, albeit without mentioning the former White House aide by name. The political dangers of any further silence by Bush were too great.
“Had I known that the enemy was going to use airplanes to strike America, to attack us, I would have used every resource, every asset, every power of this government to protect the American people,” Bush said the next day at a campaign appearance in Nashua, New Hampshire; he was apparently hoping his audience would forget that the August 6 PDB had warned specifically that planes might be hijacked by al-Qaeda within the United States.
Bush then tried to shift the blame to his predecessor. He suggested that Bill Clinton had more explaining to do for 9/11 than he did, noting that the commission was looking at “eight months of my administration and the eight years of the previous administration.”
Bush’s political handlers feared that Clarke’s testimony had guaranteed that it was Bush’s eight months—not Clinton’s eight years—that would be the focus of what remained of the investigation by the 9/11 commission.
THE PRESIDENT’S RANCH
CRAWFORD, TEX.
On one side of the debate was Alberto Gonzales, David Addington (Dick Cheney’s hard-nosed counsel), and the rest of the executive privilege absolutists in the Bush White House.
On the other side of the debate was Condoleezza Rice. She was desperate to be given a chance to clear her name in front of the 9/11 commission.
In the middle was President Bush, who was asked to interrupt a brief spring holiday at his beloved Texas ranch to decide whether Rice could testify publicly before the commission to rebut Clarke’s devastating attacks.
For many lawyers who specialize in constitutional issues and the separation of powers, the White House was on firm ground in refusing to allow Rice to testify before the commission—much firmer ground even than in its initial refusals to turn over the PDBs. The doctrine of executive privilege holds that a president must be able to speak freely with his advisers, without fear their communications would be revealed to Congress or anyone else. Although there is no reference to executive privilege in the Constitution and the case law on the issue is ambiguous, the Supreme Court has recognized that the privilege exists for presidents and their senior advisers. And no one met the definition of senior presidential adviser better than Rice; the national security adviser is the highest-ranking official in the executive branch, apart from the chief of staff, who does not require Senate confirmation. The concept, which Congress has accepted, is that the national security adviser’s job exists to provide confidential advice to the president. National security advisers and their earlier counterparts in the White House have almost never testified before Congress. There have been exceptions, but almost always in proceedings in which there were allegations of criminality. In 1980, Jimmy Carter’s national security adviser, Zbigniew Brzezinski, testified to the Senate about allegations of wrongdoing by Carter’s brother Billy in his lobbying for the government of Libya.
From his first meetings with Kean and Hamilton, Gonzales had been uncompromising on the point, as firm as on any issue in his tortured negotiations with the 9/11 commission. While Rice would meet informally with the commission, just as she met routinely with members of Congress, there would be no public testimony from her, Gonzales told them. “I’m sure you understand that this is not negotiable,” he said to them more than once.
But in the panicked aftermath of Clarke’s testimony and his book, everything was negotiable, including the question of Rice’s testimony. Senior White House officials said that Rice grew uncharacteristically frantic. They said she went to Bush and pleaded to be allowed to testify. “Condi desperately wanted to do it,” Andy Card said.
She certainly tried to make her case on television. On Monday, March 22, she appeared on the morning news programs of ABC, CBS, NBC, and CNN and was interviewed later in the day by Sean Hannity of Fox News to rebut Clarke’s charges. But the many interviews in the wake of Clarke’s testimony, including her own interview on 60 Minutes the Sunday after Clarke, seemed to have backfired on Rice. By accepting almost every invitation she received from television networks to respond to Clarke, Rice left the impression that she would answer any question put to her by a television reporter but was ducking the questions of the official government commission that was trying to understand how the 9/11 attacks happened.
Kean and Hamilton had stepped up the pressure on Rice, saying in interviews that Clarke’s allegations needed to be answered, and they needed to be answered—in public and under oath—by Condoleezza Rice.
As usual, Gonzales would not budge. White House colleagues said that he felt his own credibility rested on holding firm in refusing to make Rice available for public testimony to the commission. He had already been forced to make concessions on the PDBs, despite his earlier insistence that the commission would never see any of them. Would he now have to reverse himself on Rice, on an issue of executive privilege that was far more important?
The answer, as it turned out, was yes. The political pressure on the White House was too great, and Rice’s persuasive powers with the president were more than a match for Alberto Gonzales’s. Rice was as strong-willed as any member of the White House staff. Gonzales was strong-willed until the president told him otherwise.
Karen Hughes, the former White House communications director and one of Bush’s closest advisers from Texas, acknowledged that political necessity overwhelmed any sense of constitutional principle when it came to Rice’s testimony.
“The president recognized that the debate about the process—about who and how and where and whether it was public or private or sworn or unsworn—was overwhelming the facts of the matter,” she said at the time. Hughes said Bush had told his aides, “Let’s figure out how we can do this.”
Bush made the announcement himself after he returned to the White House from Texas a few days later. He revealed that Rice would testify in public and under oath before the commission. And he announced an additional White House reversal: He and Cheney had agreed to meet in p
rivate with all ten members of the commission.
“I’ve ordered this level of cooperation because I consider it necessary to gaining a complete picture of the months and years that preceded the murder of our fellow citizens on September 11,” Bush said in a brief appearance before White House reporters. “Our nation must never forget the loss or the lessons of September 11, and we must never assume that the danger has passed.”
The commission had received a letter from the White House, signed by Gonzales, a day before the president’s announcement. The letter disclosed the reversal on Rice’s testimony and on the commission’s meeting with Bush and Cheney. Dan Marcus, the commission’s counsel, was delighted—and astonished—by what he read. He marveled at the nearly complete collapse of every executive privilege argument that Gonzales had been making for a year.
THE RICE hearing was scheduled for Thursday, April 8. Even after the furor over Clarke’s testimony, this was almost certain to be the dramatic high point of the commission’s public hearings. Washington was abuzz with speculation about what might happen when Rice was finally forced, under oath, to explain what had happened on September 11 and in the months leading up to the attacks. No one understood the event’s importance better than Richard Ben-Veniste, the veteran Watergate prosecutor, who had seen how disclosures made during televised hearings had pulled the final pillars out from under Richard Nixon’s presidency.
So there was astonishment among the other commissioners when they received an e-mail from Ben-Veniste on April 1 in which he said he regretted that he would have to miss Rice’s testimony:
“I will not be able to attend the Rice hearing, as I am scheduled to be in a trial and the judge will not permit me to be absent.”
There was a second e-mail from Ben-Veniste about an hour later: “April Fool.”
42
ROOM 216
Hart Senate Office Building
APRIL 8, 2004
Condoleezza Rice almost never let her nerves show. Maybe it was all the years of training as a little girl, the choice of childhood hobbies—ice-skating, concert piano—that demanded rigidly disciplined public performances, usually solo performances at that. But this once, Rice did look anxious, her posture a little too erect, her smile frozen in place. Her eyes swept back and forth across the audience as she marched into the Senate hearing room where all of Washington seemed to have gathered to judge her. She knew that much of the country, and for that matter the world, was watching, too; major television networks were carrying her testimony live, interrupting their big-profit game shows and talk shows, something almost unheard of in the years since network news divisions were forced to turn a profit. She could see Philip Zelikow, a friendly face, on the dais, which doubtless offered a little comfort.
The logistics of the room, which normally served as the hearing room for the Senate Intelligence Committee, worked to her benefit. The witness table was set well below the platform where the commissioners sat, which gave the appearance of a modern-day Star Chamber. That had worried the commission’s staff throughout the investigation; some had wondered if the commission should find a different room for the more confrontational hearings. In Rice’s case, it was hard not to feel sympathy for this poised, strikingly accomplished African-American woman all alone at the table. She was being looked down on, literally, by nine very white men and one woman who were the personification of the old American Establishment. Behind them sat several of the commission’s staff members, most of them white and male. It was a moment like this that reminded Jamie Gorelick why she had been right to push for more women on the commission. A black or Hispanic commissioner would not have hurt, either.
Tom Kean and Lee Hamilton were alarmed about the potential for disaster at the Rice hearing. Richard Clarke’s testimony two weeks earlier had produced the first sharp public split on the commission on partisan grounds, the first real threat to the commission’s unity since the troubles with Max Cleland. A direct attack on Rice would almost doubtless attract a new round of fierce attacks from Dennis Hastert and other congressional Republicans and from their allies on talk radio and in the press. Kean thought the situation was dangerous, potentially the moment when the investigation might unravel. He had gone to several of the commissioners privately and urged them to try to tamp down any harsh expressions of partisanship during Rice’s testimony. The success of the commission, certainly its ability to produce a unanimous report, was at stake. He repeated the plea in a meeting with the commissioners the night before her appearance.
Kean and Hamilton decided that, unlike past hearings, when they allowed other commissioners to lead off the questioning, they would ask the first rounds of questions themselves. The decision worried some of the Democrats, who guessed that Kean and Hamilton might ask softball questions of Rice. They knew Rice could expect a true grilling after that. The decision was made for the commissioners to go in alphabetical order, which meant that Richard Ben-Veniste would come first among the Democrats, and he was easily the most aggressive and prosecutorial in questioning administration witnesses.
Even before asking the first question, Kean and Hamilton also decided that they would make a public statement—to try to establish a tone of nonconfrontation. It was read for the cameras by Hamilton.
“Our purpose is not to embarrass,” he said. “It is not to put any witness on the spot. Our purpose is to understand and to inform. Questions do not represent opinions.” If the White House had made bad choices in 2001 in dealing with terrorist threats, perhaps that was understandable, Hamilton seemed to be suggesting. “Policy makers face terrible dilemmas,” he continued. “Information is incomplete. The in-box is huge. Resources are limited. There are only so many hours in the day. The choices are tough. And none is tougher than deciding what is a priority and what is not.” Some of Hamilton’s fellow Democrats winced at the statement, as if the commission were suggesting that Rice had nothing to answer for.
When Kean asked Rice to stand up to take the oath, the room erupted with the now familiar machine-gun rattle of clicking cameras. For the photographers and cameramen, this was the iconic moment of the commission’s investigation, even more so than when Clarke had testified. Rice stood up in her demure beige suit, an American flag pin on her lapel, raised her right hand, and swore to tell the truth about what had happened on 9/11. It was the first time a White House national security adviser had been forced to testify like this.
As she put down her hand and returned to the seat, Rice glanced at the clock. It was shortly after 9:00 a.m. Rice had come into the hearing with an important advantage. The commission had promised to limit her testimony to a single appearance, and Rice could feel confident that the ordeal would be over by lunch. The panel had not announced it publicly, but the White House knew that the commission had scheduled its private interview with Bill Clinton that afternoon across town.
Given the time constraints, Rice’s strategy was an obvious one, then. She was a fanatical football fan, and on how many Sundays had she watched her beloved Cleveland Browns take a slight advantage on the scoreboard and then try to run out the clock? With the friendly Republican commissioners, she would answer their questions respectfully and give them the chance to follow up. With the more aggressive Democrats, she would try to run out the clock—talk and talk and talk, giving them no chance to ask follow-up questions before the ten minutes that each of the commissioners had been allotted had run out.
Kean invited Rice to present an opening statement. Most of the witnesses before the commission were requested to limit their remarks to a few minutes, with their full written statements introduced into the commission’s records. But given the sensitivity of Rice’s appearance, Kean and Hamilton did not want to be seen as restricting her ability to make the administration’s case.
So Rice began reading her full public statement—ten single-spaced pages, all of it a painfully familiar recitation of what the White House had said in the past about 9/11. The presentation ate up twenty-five minute
s before the first question could be asked, a remarkable contrast to Clarke’s opening statement, his two-minute apology. Rice made no apology to the 9/11 families because, she suggested, there was nothing to apologize for.
“There was no silver bullet that could have prevented the 9/11 attacks,” she said. Long before George Bush came to office, she said, the government had failed again and again to deal with the threat that Osama bin Laden and his terrorist network posed. For almost two decades, she said, “the terrorists were at war with us, but we were not yet at war with them.”
Kean asked the first questions, and he surprised and pleased some of the Democrats by opening with an unexpectedly tough one. It was about Clarke and his allegations against Rice. Kean wanted to know how Rice had reacted in January 2001 when Clarke and her predecessor as national security adviser, Sandy Berger, had warned her that al-Qaeda was the most serious threat that she faced in the White House.
“We all had a strong sense that this was a crucial issue,” she replied with seeming calm. “The question was, what do you then do about it?” What she had done about it, she said, was to keep Clarke in place at the NSC in early 2001 and to rely on the advice of other experienced holdovers from the Clinton administration, including George Tenet at the CIA and Louis Freeh at the FBI.
Kean followed up with another relatively tough question, asking her about Clarke’s charge that the White House had hastily focused on an attack on Iraq after 9/11. Rice denied that there had been any rush to judgment about Baghdad. She ducked Kean’s next question, about whether Clarke was telling the truth when he claimed in his book that Bush had cornered him in the White House Situation Room after 9/11 and urged him to look for an Iraqi connection to the attacks. “I personally don’t remember it,” she replied.
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