The Commission

by Philip Shenon

  SCOTT ALLAN could barely sleep the next night. He was horrified at the thought that if Zelikow’s language was allowed to stand, the report—his report—would become an important propaganda tool for the White House and its neoconservative backers in justifying the Iraq war, which was then starting to go so badly. He could just imagine the newspaper headlines: 9/11 COMMISSION FINDS AL-QAEDA–IRAQ LINK.

  As one of the younger members of the team, Allan knew it would be useful to have some gray-haired allies when it came time to stand up to Zelikow. And he did. Other members of Team 3 felt even more strongly than Allan did that the Iraq language had to come out, including Len Hawley. In terms of his government service and other accomplishments, Hawley was as close to Zelikow’s stature as anyone on the commission’s staff. Allan, Hawley, and the others knew they needed to confront Zelikow, to call his bluff. There was little time left. The public hearing with Powell and Albright was only days off. If Zelikow refused to rewrite the report, the staff would have to protest directly to the commissioners.

  A final staff editing session on the interim report was called in the conference room at the commission’s K Street offices, with Zelikow and the members of Team 3 facing each other across the table. It would be remembered as an all-important showdown for the staff, the moment when they would make it clear that Zelikow could take his partisanship only so far. The staff would not allow him to trade on their credibility to promote the goals of the Bush White House—not in these interim reports, not in the commission’s final report later that year.

  HAWLEY’S MANNER with Zelikow was diplomatic but direct.

  “Philip, we need to talk about the Iraq material that you’ve put in the report,” he said. “What evidence is there to back up what you’ve written here?” He pointed Zelikow to the sentences about the purported links between Iraq and al-Qaeda.

  Zelikow expressed surprise that Hawley saw any problem with the sentences. They argued it out, with Allan, Albion, and Bass joining in the protests over Zelikow’s insertions about Iraq. After several heated minutes of debate, Zelikow agreed to reconsider. And within a day or two, he backed down entirely, telling Team 3 that he agreed to leave the issue of al-Qaeda–Iraq ties until a later staff report. The reference to Iraq was replaced by a new, more general reference to bin Laden’s thoughts of leaving Afghanistan in the late 1990s for other, now unidentified countries:

  “For a time, bin Laden was reportedly considering relocating and may have authorized discussion of this possibility with representatives of other governments,” the new, more neutered passage said. “We will report further on this topic at a later date.”

  The staff suspected that Zelikow realized at the meeting that he had been caught in a clear-cut act of helping his friends in the Bush White House—that he had tried to twist the wording of the report to serve the needs of the Bush administration and its stumbling military campaign in Iraq. Zelikow said later it was nothing of the sort.

  BY EARLY 2004, Zelikow had an idea of what people thought of him. He seemed to have fewer and fewer allies on the staff. Even some of the staff investigators who were originally seen as allied with Zelikow appeared to have turned on him. His colleagues said he winced at unflattering stories that had been written about him in The Washington Post and The New York Times and his “conflicts of interest” with the White House. Kean and Hamilton could see that he felt embattled by the criticism. Zelikow, who was commuting to Washington weekly from Charlottesville, where his wife and children had remained, told the commissioners how eager he was to finish and go home.

  Zelikow understood that some of the staff, as well as some of the 9/11 family advocates and more than a few members of the Washington press corps, considered him a White House mole, especially when it came to promoting the war in Iraq and protecting Bush and Rice from the commission’s scrutiny. That perception had grown stronger on the staff after the debate over his editing of Scott Allan’s staff statement.

  But when confronted on the subject, he insisted that his conflicts were no more serious than those of many other academics of his stature at work in Washington. “The commission could have tried to choose an executive director who had few, if any, ties to any of the principal figures in the investigation,” Zelikow said. “To get someone with sufficient qualifications, that could have proved rather difficult.”

  If staff members had felt the commission was not being tough enough on someone like Rice, Zelikow thought there had been plenty of opportunities for them to push back. “There were many wide-open discussions about the performance of all the relevant principals, including Rice,” he said. “Written drafts were exchanged many times on all these subjects—thus avoiding the need for direct conversation by people who felt shy.

  “When I had a point of view, I had to get in there with my colleagues and defend it, laying out my proposed language and my evidence and arguments for others,” he said. “And they had to do the same.”

  As for Iraq and al-Qaeda, he said that he had simply wanted the commission not to prejudge the issue.

  “I wanted to be sure everyone kept an open mind about the evidence until we were ready to come to judgment,” he said. “It would be quite wrong to say that I wanted the commission to come to a conclusion that there was a connection between Iraq and 9/11. I had never made that argument.” Nor, he said, did he argue on the staff that there was a substantive collaboration between al-Qaeda and Iraq in the years. If some in the commission chose to see his actions on Iraq as partisan, he said, there was little he could do about it.

  “That sort of corridor talk is natural,” he said. It was one reason “I took care throughout my work at the commission never, in any setting, to express an opinion about the war in Iraq, pro or con.”

  Still, he did begin to think that he’d made errors in his leadership of the commission. He realized that he may have made a mistake in maintaining his contacts with Rice and with Karl Rove. “If I had realized just how politicized the investigative process would become, I would have been warier about the optics from the start,” he said. “I might not have taken the job in the first place.”

  46

  ROOM 216

  Hart Senate Office Building

  APRIL 13, 2004

  Jamie Gorelick could have kicked herself later. She should have seen what was coming when she walked up to Attorney General John Ashcroft, held out her hand, and tried to say hello. They were together in the private holding room where the commission’s witnesses waited to testify.

  Gorelick knew Ashcroft, at least casually. She thought she was on a first-name basis, if only because they shared the connection to the leadership of the Justice Department. She had been deputy attorney general in the Clinton administration.

  Everybody expected it to be a difficult day for Ashcroft—maybe the day that marked at least the end of his tenure as George Bush’s attorney general—but Gorelick figured it might as well begin with a civil tone. In a few minutes, Ashcroft was scheduled to walk into the white marble Senate committee room for his long-awaited public testimony before the 9/11 commission.

  “Hello, John,” she said, smiling, holding out her hand.

  “Hello, Ms. Gorelick,” Ashcroft responded coldly, barely raising his eyes to meet hers. The conversation was over before it had begun.

  The commission’s staff knew something was very wrong as they fanned out across the hearing room that afternoon. They were looking for someone from Ashcroft’s staff who had a copy of the testimony he was about to deliver. The commission had asked all witnesses to provide an advance copy of their testimony to avoid surprises.

  But Ashcroft’s staff had inexplicably failed to comply. Stephanie Kaplan, Zelikow’s tough-minded assistant, marched up to Mark Co-rallo, Ashcroft’s resourceful press spokesman, and all but ordered him to turn it over. Ashcroft’s testimony was only minutes away. “Where is it?” she demanded. He shrugged.

  In fact, copies of the testimony were in the hearing room already. One of Corallo�
�s aides was literally sitting on a pile of them, with firm orders not to stand up and begin handing them out until Ashcroft appeared in the hearing room.

  The room was jammed with television cameras, there to record what was being billed as the Washington equivalent of an execution, with the attorney general in the role of the condemned. It seemed finally that the commission had a senior Bush administration official it could hold responsible, at least in part, for what had gone wrong before 9/11.

  There had been press leaks to signal what was coming. The week before, an article published on the front page of The New York Times previewed the fierce attacks that Ashcroft was expected to face at the hearing.

  The commission’s staff had come to the conclusion that Ashcroft had done little, if anything, to prepare the department to respond to the cascade of terrorist threats in the spring and summer of 2001; the attorney general had seemed bored by the whole issue of terrorism. The Times published another story about Ashcroft on the eve of his testimony after Lowell Bergman, a reporter at the Times with exceptionally good sources at the Justice Department, obtained portions of the commission’s staff statement about Ashcroft. The statement contained the startling account from Tom Pickard, the bureau’s acting director in 2001, about how Ashcroft had ordered Pickard to stop briefing him about al-Qaeda that summer.

  IN THEIR “murder board” sessions to prepare the attorney general for his testimony, Ashcroft’s aides recommended, first and foremost, that he apologize for nothing. Ashcroft’s inner circle had come to see the 9/11 commission as a dangerous adversary; the damning leaks to the Times and other news organizations had proved it. They assumed that even a modest concession by Ashcroft that he had paid too little attention to terrorist threats in 2001 would give the commission the opening it needed to finish the job of destroying him.

  Pickard’s testimony was obviously going to be a problem; he was scheduled to testify just ahead of Ashcroft at the public hearing on April 13, 2004. If pressed, Ashcroft would accuse Pickard of perjury.

  But Corallo and others plotting Ashcroft’s strategy knew that a strong defense was not as appealing as a strong offense—change the subject from Pickard—and they went in search of evidence in the Justice Department’s files that might aid in a counterattack.

  They found what they were looking for in a sheaf of classified documents from 1995. They were internal department memos that, Ashcroft would argue, showed that if anyone was to blame for the dysfunction of the Justice Department in dealing with terrorist threats before 9/11, it was not him. It was the fault of the woman who had signed some of the 1995 memos—former deputy attorney Jamie Gorelick.

  ASHCROFT WAS away from the Justice Department for nearly a month before the hearing. He had been recuperating from gallstone surgery, and he looked pale and weak as he entered the Senate hearing room. (The public did not know at the time how eventful his postoperative recuperation had actually been; it was later revealed that Ashcroft had received a bizarre hospital visit shortly after his surgery from White House counsel Alberto Gonzales, who sought approval from the heavily sedated Ashcroft for an eavesdropping plan that Ashcroft’s aides considered unconstitutional.) Ashcroft walked haltingly, but he also flashed a surprisingly confident smile as he approached the witness table and greeted the Justice Department officials who would sit directly behind him in the audience.

  Among them was Solicitor General Theodore Olson, the Justice Department’s chief lawyer before the Supreme Court. Olson’s public display of support for Ashcroft was especially valuable since Olson’s wife, the conservative television commentator Barbara Olson, had died aboard American Airlines 77, the plane that crashed into the Pentagon.

  As Ashcroft raised his hand to be sworn in, Corallo and his deputies went to work, marching toward the press table to hand out copies of the attorney general’s testimony. The commission’s staff grabbed copies for themselves and for the commissioners and began to page through it hurriedly to see what it was that Ashcroft was about to spring on the panel.

  ASHCROFT OPENED his testimony by insisting, as he had so often since 9/11, that he’d had no idea a domestic terrorist attack was coming in 2001, no matter what Pickard and others might have claimed.

  “Had I known a terrorist attack on the United States was imminent in 2001, I would have unloaded our full arsenal of weaponry against it, despite the inevitable criticism,” Ashcroft testified. “The Justice Department’s warriors, our agents and our prosecutors, would have been unleashed. Every tough tactic we had deployed since the attacks would have been deployed before the attacks.”

  So why was the Justice Department blind to the possibility of attack on September 11? Who was responsible? Ashcroft was going to let the drama build for a minute. He kept reading.

  “The simple fact of September eleventh is this: We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies. Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions, and starved for basic information technology. The old national intelligence system in place on September eleventh was destined to fail.”

  In the most somber tone he could muster, Ashcroft explained that a classified memo distributed within the Justice Department in 1995, during the Clinton administration, had imposed evidence rules in terrorism cases that amounted to the “single greatest structural cause of the September 11 problem.” The memo had erected “a wall that segregated or separated criminal investigators and intelligence agents” by barring them from sharing evidence. It was this “wall,” he said, that explained why so much had gone wrong at the FBI in 2001, including the botched handling of the Zacarias Moussaoui investigation and the confusion over whether Moussaoui’s belongings could be searched.

  “Government erected this wall, government buttressed this wall and—before September 11—government was blinded by this wall,” Ashcroft continued. “Somebody did make these rules. Somebody built this wall.”

  Gorelick understood what was coming, and Slade Gorton, sitting next to her on the dais, could see that she was near panic.

  This was Ashcroft’s “gotcha” moment.

  “Although you understand the debilitating impacts of the wall, I cannot imagine that the commission knew about this memorandum,” he continued. “So I have had it declassified for you and the public to review. Full disclosure compels me to inform you that the author of this memorandum is a member of the commission.”

  Ashcroft paused. He did not say the author’s name, but he did not need to. Corallo had also provided reporters and others in the audience, but not the commissioners, with a copy of the memo. The eyes of many in the audience turned to Gorelick.

  The attorney general was arguing that if anyone within the Justice Department was responsible for September 11, for the dysfunction of the FBI—for Moussaoui, for the Phoenix memo, for the failures in San Diego—and all else that had gone wrong before the attacks, it was Gorelick.

  Even Tom Kean, who took pride in the fact that he was not a lawyer, said he understood instantly how unfair this was. During the course of the investigation, Kean had become enough of a student of the FBI and the Justice Department to know that Gorelick’s 1995 memo was mostly a restatement of what had been department policy on terrorism cases for years; the first bricks of the so-called wall were put into place in the 1980s as a result of court orders intended to protect civil liberties. “The wall” was largely a legacy of Watergate and the scandals unearthed by the Church committee, when the nation learned of the dangers of providing the FBI and the CIA with too much authority to spy on American citizens. The reasoning for “the wall” came down to this: The bureau’s spy catchers and counterterrorism agents faced a much lower burden of suspicion of wrongdoing to obtain court permission for wiretaps and other eavesdropping; if they shared the results of the wiretaps indiscriminately across “the wall,” it could disrupt or destroy criminal cases because the evidence would be considered inadmissible. Mor
e important to civil libertarians, the wall discouraged government spying in the guise of counterterrorism. Gorelick’s memo had reinforced the wall—and after she left the department, the memo was widely misinterpreted by the FBI to bar almost all evidence sharing—but she was not its creator.

  Spin was spin, though, and Ashcroft’s was brilliantly coordinated. Ashcroft’s staff had orchestrated his attack with several House Republicans. Another Democratic commissioner, Bob Kerrey, the former senator from Nebraska, could feel his BlackBerry vibrating in the middle of Ashcroft’s testimony.

  “Ashcroft was still speaking, and the e-mails were already coming in,” he recalled later. “The e-mails said things like ‘You traitor, you should be ashamed of yourself for having somebody like Gorelick on the 9/11 commission.’ I could see that this was a setup.”

  Slade Gorton had not been close to Ashcroft during their years together in the Senate; the attorney general was considered something of a loner among his Republican colleagues. “But you could admire John Ashcroft even without agreeing with him because he was principled,” Gorton said, adding that Ashcroft never seemed “calculating in any of the positions he took.”

  But as he listened to the attorney general’s testimony and the attack on Gorelick, Gorton realized how wrong he had been about Ashcroft. “I was shocked,” he recalled. “This attack was unprincipled. I was just infuriated.”

  He turned to Gorelick, who had become his closest friend on the commission, and encouraged her to try to stay calm. He could see that she was shuffling through her papers on the dais, “just pawing through all of these papers to find something so that she could answer” Ashcroft’s attack.

  On the roster of questioners for that afternoon’s hearing, Gorton was ahead of Gorelick. He put his hand on her arm and whispered, “Let me do this.”