The Commission

by Philip Shenon

  As for Bush, May appeared less critical of the president himself than of Condoleezza Rice and Bush’s other top aides in the White House.

  May had come to his own conclusion about the central dispute between Richard Clarke and Condoleezza Rice over the performance of the Bush White House in 2001. It may have infuriated Zelikow to hear it, but May was certain that Clarke was right. Clarke’s assertion that the Bush White House failed to make terrorism an urgent issue before September 11, despite all of the threats of an imminent attack, was “manifestly true,” May thought. (He believed the same criticism could be made of the Clinton White House.) May thought the report was being written to avoid “even implicit endorsement of Clarke’s public charge.” The staff was never certain May understood that it was his protégé Zelikow who had worked so hard to undermine Clarke and his allegations against Rice. May would later say that he had crafted language endorsing Clarke’s views on Bush but that “people with better partisan antennae,” including a prominent Democrat on the staff, urged him not to put it in the final report. They thought the language was “potentially inflammatory,” he said, “and I accepted their judgments.”

  May thought the commission had made a serious mistake in its decision not to demand access to al-Qaeda terrorists in American custody. The interrogation reports that had been provided to the commission by the CIA and Pentagon were incomplete and poorly written. And the fact that the information had almost certainly been obtained under “coercive questioning”—techniques that the Bush administration’s critics would later describe as torture—diminished their value even more, as many on the staff knew. May tried to read each and every one of the interrogation reports, and “what impressed me overall was the poor quality of the summaries as historical evidence.” May felt that the commission had also compromised its promise to tell the full story of the 9/11 attacks by its refusal to tackle the issue of how American support for Israel and repressive Muslim regimes in Saudi Arabia, Egypt, and Pakistan had “fed the anger that manifested itself on September 11.” But May was told that the commissioners believed questions about Israel and Saudi Arabia were too controversial to be addressed in the final report. “Composing a report that all commissioners could endorse carried costs,” May wrote.

  Surprisingly, criticism of the commission for failing to “name names” and hold individuals accountable for 9/11 was also being made at the place where many of the “names” presumably worked: the Bush White House. In the spring of 2004, Richard A. Falkenrath, a former Harvard colleague of Zelikow and May’s, was in his final weeks on the White House staff. He had joined the White House in 2001, initially on Rice’s staff, and was made a special assistant to Bush for homeland security after 9/11. Falkenrath was diplomatic enough not to say it loudly while he was still on the White House payroll, but he could see that the 9/11 commission was doing a disservice to the nation by failing to identify officials in the Bush administration—and the Clinton administration—who had left the nation vulnerable to attack on 9/11. (Falkenrath never said so publicly, but colleagues suspected he was talking specifically about Rice and, to some degree, Clarke.) The failure to name names, he believed, was “exactly the wrong message to send to future government officials and the people who train them.”

  After leaving the White House and joining a Washington think tank, Falkenrath surprised—and, many suspected, outraged—Zelikow by writing a savage critique of the commission’s report and having it appear where it would almost certainly cause Zelikow discomfort: the scholarly journal International Security, published jointly by Harvard and MIT. Falkenrath has since insisted that his criticism was not directed personally at Zelikow and May and that he respects both men. But since his former Harvard colleagues were the architects of the report, Zelikow and May may still have winced at Falkenrath’s accusation that the commission had endorsed a “no fault” theory of government in which individuals were not held responsible for their actions, no matter how catastrophic. He said that the commission’s report instead offered an “imprecise, anodyne and impersonal assignment of responsibility for the U.S. government’s failure to prevent the 9/11 attacks.”

  In fact, “government is not a ‘no fault’ business,” Falkenrath wrote. “When the government fails to act in situations in which it has a legal authority to do so, it is almost always because specific and identifiable officials made a decision, formally or informally, not to act.”

  MUCH OF THE REST of the commission’s staff would have agreed with the sorts of criticisms that May and Falkenrath were making. But with only weeks left in the life of the commission, they were so exhausted and so beaten down by months of working under the autocratic Zelikow that they had no energy left to conduct a larger fight over the report. Zelikow had been so effective in stovepiping the work of the commission that few of the teams of investigations knew exactly what the other teams had uncovered in their months of digging. That helped explain why the NSA terrorism archives had gone mostly unread until the final days of the investigation—almost certainly the commission’s most grievous failure in its research. In the final days of the investigation, the teams of investigators were focused almost entirely on making sure their own part of the story of 9/11 was being told accurately and hoping that their findings would be reflected in the commission’s final recommendations. Many of the teams were girding themselves for a final showdown with Zelikow to make sure the truth was told.

  56

  K STREET OFFICES OF THE 9/11 COMMISSION

  Washington, D.C.

  JUNE 2004

  It’s too Clarke-centric,” Philip Zelikow barked to Warren Bass and the other members of Team 3. Bass and the others were writing the portions of the final report that would deal with arguably the most sensitive issue of all before the commission: Had the Bush White House bungled terrorism warnings in 2001? Who was telling the truth: Richard Clarke or Condoleezza Rice? There was no doubt that Zelikow stood with his friend Rice. “We need balance,” he declared.

  Even after a year of battling Zelikow, Bass was still fuming. He tried never to raise his voice to Zelikow, but it was becoming harder and harder. Why hadn’t he resigned when he had the chance? Bass asked colleagues. It was now the late spring of 2004, and he was explaining to Zelikow again that no matter how eager Zelikow was to knock down Clarke’s credibility, the former White House terrorism czar had left behind a vast documentary record of what had gone so wrong in the months before 9/11. Bass had the backing of everyone on his team who knew what was in the NSC records, notably Mike Hurley, the team’s leader. And it was not just Clarke’s records. The other members of the NSC staff who worked with Clarke supported his account in their own interviews with the commission. They had all been alarmed at the slowness of Bush and Rice to respond to the threats in 2001. So had the CIA and the State Department.

  The commission’s staff had conducted a memorable private interview on January 21, 2004, with John McLaughlin, Tenet’s deputy during the summer of 2001. He described how there had been “great tension” at the CIA—near panic, others at the agency would say—over what seemed to be the refusal of the White House to deal with warnings of an imminent terrorist attack in 2001. The White House had just seemed unwilling to believe there was a problem—or at least no problem that required immediate attention, and certainly no problem on American soil. McLaughlin was a member of the White House Deputies Committee, made up of the number two officials at major agencies, and the commission’s staff had come across slides from a briefing that the CIA had given to the committee that April. The message was stark. The slides described al-Qaeda as “the most dangerous group we face” and that its focus was “on attacking U.S.” The commission was told that Michael Scheuer and his replacement at Alec Station had both threatened to resign from the CIA in the summer of 2001 and go public as a protest over the White House’s stunning lack of interest in dealing with the threats.

  So Bass and his colleagues wondered: How did Zelikow propose to balance all of that
out? There was a large documentary record to back up Clarke and his colleagues. There was little to support Rice.

  Well, Zelikow explained, there were Rice’s own words. She had given public testimony to the commission, and there was her four-hour private interview with the commissioners in the White House Situation Room in February. He never said so explicitly, but Zelikow made clear to Team 3 that the commission’s final report should balance out every statement of Clarke’s with a statement from Rice. The team should leave out any judgment on which of them was telling the truth.

  Zelikow had some support from Dan Marcus, the commission’s general counsel, who thought that Team 3 tended to make Clarke, undeservedly, “into a superhero.” Marcus felt that the commission’s final report “needed to point out some of the limitations and flaws in Clarke’s performance.” Marcus could see that Team 3’s wariness of Zelikow was no longer being hidden; they were openly suspicious of his motives. “In a sense, they overreacted to Philip because they were so worried about him they pushed and pushed and pushed, and sometimes they were wrong,” said Marcus.

  Members of Team 3 tried to console themselves with the thought—the hope, perhaps—that the public would read between the lines of the report and understand that Clarke was mostly telling the truth, that Rice often wasn’t, and that the White House had left the country vulnerable to a clear-cut threat of terrorist attack in September 2001. But the results of the team’s work were some of the most tortured passages in the final report, especially in the description of the performance of the NSC in the first months of the Bush presidency. It was written almost as point, counterpoint—Clarke says this, Rice says the opposite—with no conclusion about what the truth finally was.

  ALEXIS ALBION, the team’s CIA specialist, was having her own final showdown with Zelikow, with the same partisan overtones.

  Earlier in the year, the staff had been asked by Hamilton to compile a roster of how often Clinton and Bush had addressed terrorist threats in their speeches and other public remarks before 9/11—al-Qaeda threats in particular. There could be no exact comparison, since Bush had been in office only eight months before the attack, compared with Clinton’s eight years. But it would give the commission some idea of the relative priority that the two presidents had given the issue, at least in terms of their public declarations.

  The staff uncovered dozens of instances in which Clinton addressed terrorism, which he described as “the enemy of our generation.” He referred to it in each of his State of the Union addresses to Congress. In a speech to open the General Assembly of the United Nations in 1999, Clinton said antiterrorism efforts were “at the top of the American agenda and should be at the top of the world’s agenda.” Clinton often warned that stateless terrorist groups like al-Qaeda might be on the verge of obtaining chemical and biological weapons. (He rarely referred to Osama bin Laden by name, which he told the commissioner was intentional—an effort to avoid enhancing the al-Qaeda leader’s stature.) Bush, by comparison, almost never mentioned terrorism in his public speeches, and that was true both on the 2000 campaign trail and after he became president. When Bush did refer to it, it was usually in the context of the dangers of state-sponsored terrorism and how it demonstrated the need for a missile defense system against rogue states like North Korea, Iran, or Iraq.

  Albion and others on her team could see that such a direct comparison between the two presidents would annoy, maybe even infuriate, the Bush White House. In a report that otherwise was not going to apportion personal blame for 9/11, a statement that suggested President Bush demonstrated little public curiosity about terrorism would be seen as the report’s most direct personal criticism of him. Still, Albion felt strongly that the comparison needed to be in the report. Obviously, what the president of the United States chose to talk about in his public remarks mattered. It set the agenda for the rest of the government and for the press.

  Zelikow insisted that it come out—all of it. He was adamant.

  “This is totally unreasonable,” his colleagues remembered him almost yelling at Albion and the others. “This is unfair.” Unfair to President Bush, of course. “He hadn’t been in office long enough to make a major address on terrorism,” Zelikow said, defending Bush. “We cannot do this.” Zelikow’s anger was so off the scale on this issue that some of the staff members wondered if this was simply a show on his part to intimidate them into backing down.

  Albion argued back. “Philip, it’s reasonable to balance out the two presidents” in their public comments on terrorism, she said. “I’m surprised you consider this such a big issue.” During the cold war, wouldn’t it be fair to judge two presidents about how they publicly measured the national security threat posed by Communist armies, how often they talked about it?

  Marcus, the general counsel, sided with Albion and the others. He thought it was one of Zelikow’s most overt displays of his partisanship, of his desire to protect the administration. Obviously it was significant if Bush, who was now claiming that he had been gravely worried throughout 2001 about terrorist threats, never bothered to mention it in public during that same period. “You’d think he would say something about it once in a while, right?” asked Marcus.

  Zelikow was not backing down, and the comparison between Bush and Clinton came out of the final draft over the objections of the staff. He bristled at the suggestion that he was trying to do a final favor to the White House. He said that “playing it straight” also meant that “if I bent over backwards to be tough on the Bush administration, just to show off, it would be another form of bias.”

  Albion later got a small dose of revenge. She figured, correctly, that in the chaos of the final days of writing and editing the report, Zelikow would not pay much attention to the drafting of footnotes. So she wrote footnotes that summarized the comparisons between Bush and Clinton and snuck them in.

  Chapter 6, footnote 2: “President Clinton spoke of terrorism in numerous public statements. . . . Clinton repeatedly linked terrorism groups and WMD as transnational threats for the new global era.”

  Chapter 6, footnote 164: “Public references by candidate and then President Bush about terrorism before 9/11 tended to reflect . . . [his concern with] state-sponsored terrorism and WMD as a reason to mount a missile defense.”

  FOR MIKE JACOBSON, Raj De, and the other members of the “plot” team who felt strongly that they had demonstrated a close Saudi government connection to the two hijackers in San Diego, their opponent in revealing the full story was not Zelikow. It was Dieter Snell, the hypercautious prosecutor who was their team leader.

  Jacobson and De felt they had explosive material on the Saudis: the actions by Omar al-Bayoumi, the Saudi “ghost employee” who played host to the two hijackers in San Diego, and Fahad al-Thumairy, the shadowy Saudi diplomat in Los Angeles. Jacobson and De had documentation of the unusual cash transfers from the wife of the Saudi ambassador in Washington to the family of another mysterious Saudi who was tied to al-Bayoumi. They were especially excited by the discovery of the FBI files on the taxi driver who had worked for Thumairy in Los Angeles and had initially identified the photos of Nawaf al-Hazmi and Khalid al-Mihdhar.

  But after presenting Snell with their final drafts outlining their findings, Jacobson was alarmed to get a phone call close to midnight on one of the final nights of editing. Snell and Zelikow were in the office, rewriting the report. Snell had presented an alternative draft of the chapter, and it removed virtually all of the most serious allegations against the Saudis. Jacobson called De, and they both rushed back to the offices on K Street.

  Snell made clear that he was not going to stand for a final report that made allegations that could not be backed up conclusively. From his long career as a prosecutor, he knew that an allegation based on partial evidence should not be made at all, he said. Snell was widely admired by the commissioners for his dedication to the truth. His caution had obviously served him well as a prosecutor. But members of his team believed that the level of
proof he was demanding on the 9/11 commission would exonerate the guilty.

  In front of Zelikow, Jacobson and De tried all of the arguments they had been using for months—how it was “crazy” to insist on 100 percent proof of guilt when it came to a terrorist network like al-Qaeda or the workings of an authoritarian regime like Saudi Arabia’s. The commission was not a trial jury; there was no “reasonable doubt” requirement. Couldn’t he see that by removing this material from the report, he was effectively telling the public that Saudi Arabia had done nothing wrong, when in fact there was every reason to fear what Saudi officials had done? But Snell was determined.

  Zelikow seemed sympathetic to some of the arguments being made by Jacobson and De; he, too, initially had grave suspicions about the Saudis. But at this late hour, his role was as mediator between Snell and the staff. There were only days left before the entire report had to be at the printers. Short of resigning and removing their names from the report entirely, Jacobson and De had to compromise, and much of their most damning material was moved to the report’s footnotes. It was in the report, but readers would have to find it to decipher it in the tiny type of the footnotes.