The Commission

by Philip Shenon

  W. W. NORTON & COMPANY has long been one of the nation’s most distinguished publishing houses. The employee-owned company, founded in the 1920s, was the principal American publisher of Sigmund Freud and the British philosopher Bertrand Russell. It prided itself on working with some of the country’s best scholars. It was Zelikow’s principal publisher at the Miller Center of Public Affairs at the University of Virginia. Zelikow’s résumé listed eight books published by Norton that he had either edited or written.

  It was Zelikow’s idea in the early days of the investigation, endorsed enthusiastically by Tom Kean, that the commission find a private publisher to release the report on the day it was made public in Washington. That way, the report would be instantly available in bookstores around the country. The government’s official printer, the Government Printing Office, would take days to distribute even a small number of the reports and would likely need to charge as much as $65 a copy to recoup its costs. Kean left it to Zelikow to conduct the review to decide which private publisher would be best. The idea was to find a publisher that would agree to the commission’s strict security arrangements and would publish the report at a reasonable price. Although the research behind the book was prepared at the taxpayer’s expense and it was a public document, the publisher could keep all profits from the book. The publisher would make no payment at all to the commission.

  Zelikow approached three publishers: Times Books, an imprint of Henry Holt & Company that published some books in collaboration with The New York Times; PublicAffairs Books, which specialized in current events and public policy; and Norton. After hearing their proposals, Zelikow urged the commission to select Norton, saying it offered the best package to the commission. Norton agreed to publish the book for a retail price of $10, which other publishers acknowledged was reasonable for a book that was expected to be at least five hundred pages long; Norton readily agreed to meet all of the commission’s secrecy requirements. Several commissioners said they only learned of Zelikow’s connections to Norton long after the contract was signed. Zelikow said there was no conflict of interest in the commission’s choice, since he had long ago waived royalties from his earlier Norton-published books.

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  K STREET OFFICES OF THE 9/11 COMMISSION

  Washington, D.C.

  JULY 2004

  Here’s to the attorney general!”

  In the weeks after the commission released its final, unanimous report, the commissioners and the staff gathered at a few dinners and parties to celebrate their accomplishment. And at more than one of the gatherings, wineglasses were raised in a toast—to Attorney General John Ashcroft. And it was only half in jest.

  Jamie Gorelick was right to grimace at the toasts; the death threats were over, but the Ashcroft attacks had complicated, perhaps destroyed, any hope she had of Senate confirmation as attorney general or any other cabinet job if John Kerry was elected president that November. Gorelick could not deny, though, that Ashcroft’s attack on her had unified the 9/11 commission. It had been seen as an attack on the full commission, and the ten of them had bonded in a way that made it impossible for any of them to seriously consider standing in the way of a unanimous report. Some of the closest friendships on the commission, between Gorelick and Slade Gorton, certainly between Tom Kean and Lee Hamilton, had been made across party lines. “John Ashcroft did us a huge favor in trying to break us up,” Gorton said.

  KEAN AND HAMILTON went into the final deliberations over the report with trepidation. They assumed that some issue would rise up at the last minute to destroy the bipartisanship solidarity that the Ashcroft furor had helped create. There were several potential land mines—maybe the wording of the passages about al-Qaeda and its purported links to Iraq, maybe something about the way Bush and Clinton were described, maybe something about the report’s treatment of American relations with Saudi Arabia or Israel.

  But to the relief of Kean and Hamilton, the other commissioners seemed to be as eager as they were to find agreement. Gorton said the unity had much to do with the personalities of Kean and Hamilton, who were so unusual in politics—they never forced their own views on the other commissioners. They would sit and listen to others speak for hours, never interrupting, during the editing of the report. “They were trusted figures,” said Gorton. “You just didn’t want to disappoint them.” He thought there would not have been a unanimous report if Henry Kissinger and George Mitchell, with their forceful personalities and partisan loyalties, had remained on the 9/11 commission. With Kissinger and Mitchell, “all of the air would have been sucked out of the room in the first half hour,” he said.

  Another force had cemented the group’s unity: the power of the report’s writing. For many of them, it was a thrill to be associated with a document that was obviously so powerfully written and might have such impact, that would be read by their children and grandchildren. By the end of the investigation, they knew their own legacies were tied up in the commission and its final report. Whatever their other accomplishments in life, it occurred to many of them that their affiliation with the 9/11 commission would be remembered as the most important public service of their lives. The commission would show up in the first few sentences of their obituaries. For Slade Gorton, Bob Kerrey, and Tim Roemer, the 9/11 commission had brought them nearly as much fame as their long political careers. Richard Ben-Veniste had tasted nothing like this sort of fame since Watergate. For Jim Thompson, the 9/11 commission was a welcome distraction from his troubles in the Conrad Black criminal investigation back in Chicago. No great glory would come to the commissioners from a divided commission. Unanimity would cement their place in history.

  GEORGE TENET LOST. Robert Mueller won. It was almost that simple. With surprisingly little debate at the end of their deliberations, the commissioners decided that they would recommend the elimination of Tenet’s job—director of central intelligence—and that two jobs be created in its place: CIA director, to run the agency, and director of national intelligence, a new cabinet-level superspy. The DNI would have no day-to-day responsibilities at the CIA; instead, the DNI would provide oversight for all of the government’s spy agencies, including the CIA, the NSA, and the counterintelligence divisions within the FBI.

  The recommendation reflected the view, widespread among the commissioners, that the 9/11 attack proved that when it came to intelligence gathering and counterterrorism, no one was “in charge.” The record, they said, showed that Tenet had been either unable or unwilling to provide oversight to the rest of the government’s spy agencies and force them to cooperate on dealing with the al-Qaeda threat. If Tenet saw the recommendation as a personal insult, he was right to. By the end of the investigation, many of the commissioners spoke with open disdain of Tenet. At the CIA, the recommendation for a DNI was seen largely as Zelikow’s doing, the culmination of his efforts to breed contempt within the commission for Tenet and the workings of the agency.

  By the end, Tenet seemed to understand how harshly the 9/11 commission would treat his leadership of the agency. Earlier in the year, he had heard rumblings that the commission was going to call for his dismissal, and he had called Andy Card at the White House for help. Card called Kean, who was startled.

  “You know, the president likes George,” Card said. “Please don’t do this.”

  Kean stopped him. “It’s not true, Andy,” he assured Card. “We’re not calling for Tenet’s resignation. We’re not calling for anybody’s resignation.”

  CIA colleagues thought that the imminent release of the commission’s report had something to do with the timing of Tenet’s announcement on June 3, 2004, that he was resigning from the government. “George Tenet did a superb job for America,” President Bush said the next day “It was a high honor to work with him.”

  For every insult hurled Tenet’s way by the commissioners, there was a statement of effusive praise for FBI director Mueller. For all of its astounding failures before 9/11, for all of the evidence that things had c
hanged little at the FBI despite Mueller’s promises, the commission would recommend that the bureau stay intact. Team 6, the commission’s team of investigators that focused on the FBI, had felt strongly that the bureau needed to be overhauled, certainly when it came to combating terrorism. So they were appalled when they learned what changes the commission would recommend for the bureau—almost none. Several used the word whitewash when they saw a draft of the commission’s recommendations to be included in the final report. When it came to deciding what reforms were needed at the FBI, “we defer to Director Mueller,” the draft said.

  Caroline Barnes, the former FBI counterterrorism analyst on the team, gulped when she read it. Defer to Mueller? Change nothing? She and others on Team 6 felt they had to appeal this; the commission had to be tougher on the FBI and on Mueller. As he had throughout the investigation, Zelikow had essentially barred most of the staff from any direct access to the commissioners. Everything had to go through him. If Barnes was going to make a protest to the commission, she would have to do it where Zelikow would not see it. So she cornered Jamie Gorelick in the ladies’ room. Barnes had always found Gorelick much more approachable than the other members of the commission.

  “Jamie, you know that the staff is very uncomfortable with what you’re recommending at the FBI,” Barnes said.

  She worried that Gorelick might brush her off, that Gorelick would say it was too late to make any changes in the final report. In fact, Gorelick seemed concerned by what she was hearing from Barnes. She told Barnes that regardless of Zelikow’s rules, she would arrange for all the members of Team 6 to come and brief the full commission before the FBI recommendations were approved.

  The briefing took place, and the final report’s language on the FBI was toughened, if only slightly. The wording in the draft that most upset Barnes and the others—the statement that the commission would “defer” to Mueller’s judgment—was edited out of the report. But the commission’s larger recommendation, that the FBI remain intact, survived in the final draft, albeit with a call for the bureau to make new efforts to promote the work of agents and analysts who specialized in tracking down terrorists. The nation could no longer afford to have the FBI treat counterterrorism agents—like the ones in Minneapolis or Phoenix who might have stopped 9/11 if anyone in Washington had paid attention—as second-class citizens.

  KEAN AND HAMILTON had been saying it for more than a year. And in the final weeks of the investigation, they said it again. They wanted no “finger-pointing” in the final report. They were aware of criticism from within the staff, certainly from the 9/11 families, that the report was failing in a basic mission of accountability. Certainly, Kean and Hamilton sensed that the Washington press corps and pundits wanted individuals held responsible for the 9/11 attacks. Depending on the politics of the editorial writer or columnist, it was a roster that tended to include some assortment of Bush, Clinton, Rice, Berger, Ashcroft, Reno, Freeh, and Tenet.

  But Kean and Hamilton believed an effort to assign blame to individual government leaders would tear the commission apart. They had hired Zelikow to run the investigation with the knowledge that he was close to many people at the center of it—that he was not likely to agree to savage Rice and his other friends and patrons in the White House who had been in charge on September 11. They kept Zelikow in place even after they learned that his conflicts of interest were far graver than they knew at first: his role in the Bush transition team in demoting Clarke, his role in drafting the “preemptive war” strategy for the White House, his surreptitious phone calls to Karl Rove and his meetings with Rice. Kean and Hamilton believed that the government’s structure for dealing with terrorist threats was dysfunctional, dangerously so, and incompetently run. Reforming it was far more important than singling out individuals for what had gone so wrong on that terrible morning in September 2001. What was more important? they asked. Trying to humiliate Condoleezza Rice and detail her failings at the White House in the spring and summer of 2001 or obtaining a unanimous final report that recommended the overhaul of the government’s spy agencies? They were convinced it was the latter.

  “I get a lot of nasty comments about that because people wanted us to point the finger at Bill Clinton or George Bush or Dick Clarke or Condi Rice,” Hamilton said. “But if we had begun coming up with a list of bad actors, it would have blown the commission apart and it would have blown any credibility we had.

  “If we had a paragraph saying Condi Rice really screwed up, that’s all The New York Times would have written about,” he continued. “That level of personal accountability would have been a total dead end—there’s no end to it.”

  With a unanimous report, Kean and Hamilton also wanted to prove something that they had stood for throughout their careers and that seemed to have been forgotten in American politics in the new century: that it was still possible for loyal Republicans and loyal Democrats to agree on what was best for national security. After 9/11, both believed that bipartisan cooperation in dealing with terrorist threats might be all that stood between the United States and another attack. If there was one thing that terrorism experts who came before the commission agreed upon, it was the inevitability of another major attack on American soil. Maybe by al-Qaeda again, maybe by some other band of terrorists who hated Americans nearly as much. And next time, Kean and Hamilton knew, terrorists might find a method of attack—germs, chemicals, nuclear devices—that would kill even more people than had four hijacked jetliners turned into missiles.

  Kean and Hamilton had settled on a useful catchphrase in describing what had gone wrong before 9/11. There had been a “failure of imagination” by the government as a whole—not so much by individuals who worked in the government—to prepare for the threat that Osama bin Laden posed.

  Much as the staff felt beaten down by Zelikow, so did the other Democratic commissioners. By the end, they had given up the fight to document the more serious failures of Bush, Rice, and others in the administration in the months before 9/11. Zelikow would never have permitted it. Nor, they realized, would Kean and Hamilton. The Democrats hoped the public would read through the report and understand that 9/11 did not have to happen—that if the Bush administration had been more aggressive in dealing with the threats flooding into the White House from January 2001 through September 10, 2001, the plot could have been foiled. The Clinton administration could not duck blame for having failed to stop bin Laden before 2001. But what had happened in the White House in the first eight months of George Bush’s presidency had all but guaranteed that nineteen young Arab men with little more than pocket knives, a few cans of mace, and a misunderstanding of the tenets of Islam could bring the United States to its knees.

  THE PHONE call came during the final weeks of the commission’s investigation, and it was from the Justice Department’s criminal division—specifically, the division’s office of counterespionage.

  It was a courtesy call, but hardly a routine one. It was a quiet, lawyer-to-lawyer warning to the commission’s general counsel, Dan Marcus, that he should be aware that the department had opened an investigation into whether the 9/11 commission had mishandled classified information. The request for the criminal investigation had come from the CIA.

  To Marcus’s astonishment, the focus of the investigation was Zelikow.

  There was no allegation that Zelikow had intentionally leaked information to reporters or anyone else. But the Justice Department was reviewing allegations that Zelikow had been careless in the handling of information from secret documents gathered by the commission, especially in his e-mail exchanges with others on the commission, including e-mails sent overseas.

  Zelikow would later say that he knew nothing about the investigation as it was going on—that he was never contacted by the Justice Department or FBI, that no one had raised it to him when he underwent questioning for additional government security clearances after leaving the 9/11 commission. “In 2005, my security clearances were renewed at the highest level
s,” he said later. “And with no indication of any concern or issue that needed to be cleared up.”

  Zelikow said later that if there had been a criminal investigation, he suspected it was an effort by the CIA to play “hardball” with him over his long-standing disputes with the agency over how he and the commission had tried to push previously classified information onto the public record. The CIA, he suspected, had tried “to criminalize this dispute and target me in the process.”

  When staff members later heard rumors of the Justice Department investigation in 2004, they thought there was no little irony that Zelikow was under investigation for just the sort of infraction that had led to his decision to dismiss Dana Lesemann, the former Justice Department lawyer, in such a brutal fashion the year before. In a sense, the allegations against Zelikow were more serious. Lesemann, unlike Zelikow, had never been accused of doing anything that threatened to expose classified information outside the commission’s offices. She was alleged to have obtained, prematurely, a copy of a classified document that she would eventually be allowed to see anyway.

  CIA officials would later say that, whatever their differences with Zelikow, they had no choice but to refer the issue to the Justice Department because the complaint was not coming from within the CIA; it was coming from within the 9/11 commission itself. The CIA had received a written complaint from at least one commission staff member—the identity of the staff member remains secret—about Zelikow’s purported carelessness with classified documents.

  Marcus kept the information about the Justice Department’s investigation mostly to himself. He and others on the commission’s staff understood that if word of the investigation leaked to reporters in the final weeks of the commission’s work, it might do irreparable damage to the panel’s credibility. The commission’s critics at the White House and on Capitol Hill would have delighted in a scandal that focused on potential security violations by the commission—just the sort of scandal that Kean and Hamilton had warned against in the first weeks of the investigation.