The Commission

by Philip Shenon

  Zelikow would later claim that he had no idea Heitkotter was keeping a log of his phone calls. But the existence of the log—and Zelikow’s contacts with Rove and Rice—did become widely known within the commission that fall.

  A staffer passing Heitkotter’s desk late one evening noticed the phone log, which was open to a page that made reference to a call from “Rove.” Alarmed to see the name of Bush’s top political adviser in the commission’s phone logs, the staffer picked up the notebook and paged through the rest of it, finding references to the additional contacts with Rove—and with Rice.

  The next day, word of Zelikow’s contacts at the White House began to spread wildly through the commission. For many of the staff, it was just what they had suspected: Zelikow was some kind of White House mole, feeding information back to the administration about the commission’s findings. Now, they thought, they had proof of it.

  PERHAPS ZELIKOW never understood how badly he came off to the staff. Some of his detractors on the commission worried that they assumed the worst about Zelikow because they simply did not like him. Or they feared him. “I’m very conscious of my many weaknesses,” Zelikow said later when told of the harsh appraisals of his management style. But as a historian, he said, he had often seen words like “obnoxious” and “nasty” and “bully” applied to people who would later be remembered and admired as “change agents” in government—leaders “who have to drive an institution or set of issues very hard.” The commission “needed high-intensity, high-energy staff leadership,” he said.

  Yes, he was a friend of Condi Rice’s; that was well known on the staff from early in the investigation. And yes, he knew and respected Rove, a fact that became clear to the staff only later. But there were others on the staff who faced their own conflicts of interest, or at least the appearance of a conflict, involving their ties to the Democratic Party. Zelikow had hired investigators for the 9/11 commission who had worked in the White House for Democrats or for Democratic leaders in Congress. Dan Marcus, for instance, had worked in Bill Clinton’s White House and was the number-three official at the Justice Department under Janet Reno. On the commission, Marcus was involved in the investigation of the performance of the Clinton Justice Department on terrorism. So were there similar complaints that Marcus was a Democratic partisan who might protect Clinton or Reno from scrutiny? No, Zelikow knew. Zelikow felt he was being singled out.

  Whatever others thought of him, Zelikow never considered himself a partisan Republican. Certainly he would never admit that to himself. Until 1991, he said, he had always registered to vote as a Democrat or an independent; he had worked for Jimmy Carter’s first presidential campaign, in 1976. In his earlier career practicing law in Texas, his work often allied him with civil rights and civil liberties groups that were hardly under the sway of the GOP. In the early 1980s, he had worked with the Southern Poverty Law Center to seek court protection for Vietnamese-American shrimpers who were being harassed by the Ku Klux Klan and other racist groups. In 1980, he had sued the University of Houston for giving way to perceived pressure from the Saudi government in blocking the school’s PBS station from showing a controversial British docudrama, “Death of a Princess,” apparently based on the true story of a Saudi princess who was executed for adultery. He became a Republican only after entering the foreign service in 1985 and finding himself at the White House, working for the first President Bush on the National Security Council. Zelikow was impressed by what he saw of Republican leadership, especially during the 1991 Gulf War, and he worked actively in Bush’s reelection bid in 1992, when he lost to Bill Clinton.

  DANA LESEMANN was Zelikow’s nightmare. At the suggestion of former congressman Tim Roemer, she and another investigator—Mike Jacobson—had been hired from the joint congressional committee on pre-9/11 intelligence failures. Roemer had gotten to know them both during the House-Senate inquiry, which was shutting down just as the 9/11 commission was opening its doors. On the commission, Lesemann and Jacobson were assigned to the team that was responsible for trying to unravel the September 11 plot. That meant they could continue the digging they had begun on Capitol Hill.

  Lesemann was that rare thing on the commission: She was not afraid of Zelikow; she would not be intimidated by him. In fact, from the moment she arrived at the commission’s offices on K Street, she seemed almost to relish the daily combat with Zelikow, even if she wondered aloud to her colleagues why there had to be any combat at all.

  Lesemann and Jacobson had become friends on the congressional investigation. Both were lawyers in their mid-thirties and had backgrounds in federal law enforcement. She was on leave from the Justice Department, where she had overseen the preparation of wiretap warrants in terrorism cases; he was a former FBI intelligence analyst. They shared a mutual skepticism, if not contempt, for the FBI, made all the stronger after their work on the congressional investigation of 9/11.

  That was where the similarities between the two of them ended. Lesemann could be blunt-spoken to the point of rudeness—a self-described “pain in the ass”—and did not seem aware that she often left bruised feelings in her wake. Jacobson was slow to anger and could be shy, as eager to avoid confrontation as Lesemann was to embrace it. Instead, he tended to intimidate people with his physical presence: At six feet three and 210 pounds, he had the height of a basketball player and the bulk of a wide receiver. For relaxation, Lesemann went scuba-diving in New Zealand; Jacobson played the flute.

  Both welcomed the chance to continue the lines of inquiry they had opened in the congressional investigation. In their work on Capitol Hill, they had come to the conclusion that FBI officials had tried to hide the truth of what had happened in San Diego with Nawaf al-Hazmi and Khalid al-Mihdhar, the two 9/11 hijackers who had lived in the open in Southern California for nearly a year. It was Jacobson who, digging through FBI files, discovered that Hazmi and Mihdhar had lived in the home of an FBI informant in San Diego, an astonishing fact that no one had shared for weeks after 9/11 with the bureau’s headquarters in Washington.

  Jacobson was convinced that a network of Saudis and other Arab expatriates living in California had assisted the two terrorists. It was Jacobson’s work that had led Senator Bob Graham and others in Congress to accuse the White House of covering up a Saudi role in the attacks. Jacobson was the primary author of the twenty-eight pages in the final congressional report that the White House refused to declassify because it contained evidence suggesting that Saudi government officials, including Fahad al-Thumairy, the Saudi diplomat in Los Angeles, were part of the support network.

  Both Lesemann and Jacobson came to the commission from Congress with security clearances, which meant that they, unlike so many of the other staff members, could go straight to work. And because they knew the issues so well and the questions that were left unanswered by the congressional inquiry, they knew exactly what documents and interviews the commission needed to request from the Bush administration.

  Shortly after she was given a desk at the offices on K Street, Lesemann presented Zelikow with a list of about twenty people that she and Jacobson wanted to interview, including senior FBI officials. She also asked Zelikow for a copy of Jacobson’s still classified twenty-eight pages; the law creating the commission had required that it build upon the record of the congressional investigation, and the twenty-eight pages included the most explosive allegations that she and Jacobson needed to pursue. Jacobson did not have a copy, either, and he could not remember every detail of what he had written. Although the twenty-eight pages were not available to the public, they were certainly supposed to be available to the commission.

  Lesemann was startled when, after several days, Zelikow’s office came back with an answer to her request for the interviews. She could not ask for twenty interviews, he told her. She could ask for half of that.

  “What?” she asked. “Why?”

  Zelikow did not like to explain himself to the staff; he wanted his orders followed without question. But in
this case, he made an exception. He explained to Lesemann that the commission did not want to overwhelm federal agencies with documents and interview requests at such an early stage in the investigation.

  That seemed preposterous to Lesemann—and to many of the other staff members on the commission. It was a tradition at the Justice Department, and a good one, to demand the widest range of documents and interviews early on from the target of an investigation and then, if necessary, cut back the requests through negotiation. A good investigation didn’t limit itself from the start, especially since the staff had been told that subpoenas were going to be a last resort.

  “This seems very arbitrary,” she said. “This seems crazy.”

  Zelikow was done explaining. He was not in the business of negotiating with staff who worked for him.

  “Philip, this is ridiculous,” she said, almost pounding him in the chest with her outstretched index finger. “We need the interviews. We need these documents. Why are you trying to limit our investigation?”

  It was the first of several similar confrontations between the two, and they became the talk of the K Street offices, with some of the investigators quietly cheering on Lesemann. She could be obnoxious, sure, but she was fearless. Jacobson and others on the staff worried that Lesemann would push Zelikow too far.

  Their battles also involved the twenty-eight pages from the congressional report. Weeks after she had requested a copy, Zelikow had still not obtained it for the commission. Finally, Lesemann stopped him in the hallway.

  “Philip, how are we supposed to do our work if you won’t provide us with basic research material?” she said. Her colleagues said that Zelikow stormed away.

  Lesemann made a decision: If Zelikow wasn’t going to get her a copy, she would get one herself. She apparently did not understand that she was about to give Zelikow the ammunition he would need to fire her.

  ZELIKOW LEARNED that spring that Lesemann had broken the commission’s rules and obtained a copy of classified portions of the congressional report on 9/11, including the twenty-eight pages. News that she had the material came to Zelikow from another staff member on a different team who had tangled with Lesemann and wanted to see her removed from the investigation. It took only hours for Zelikow to fire her.

  To some of her colleagues, what Lesemann had done seemed a minor infraction of the rules. It was a mystery to them how she had gotten the documents. But she certainly had the security clearances needed to read them, even if she did not have the authorization to keep them in her possession. There was no allegation that any classified documents had left the K Street offices. She had locked them away at night. There was no doubt that she needed them to do her job.

  But Zelikow had what he needed to argue to Kean and Hamilton that Lesemann had, technically, broken the law by mishandling a classified document. He believed she needed to be dismissed—instantly. “Lesemann committed a set of very serious violations in the handling of the most highly classified information,” Zelikow said later. She had violated the commission’s “zero-tolerance policy on the handling of classified information.”

  Dan Marcus agreed with Zelikow that Lesemann had to go. To their minds, it was an infraction that put the entire investigation in jeopardy. If the White House learned that the commission had mishandled secret material, it would be all the excuse the administration needed to cut off cooperation with the commission. “The administration would have seized upon any negligence on our part,” Zelikow said.

  Lesemann was called into Zelikow’s office and emerged a few minutes later, ashen-faced. She walked out of the commission offices without emptying her desk. Zelikow had fired her on the spot. He would not hear her appeals. There was no announcement of what had happened.

  Raj De, a newly minted graduate of Harvard Law School who was on the “plot” team, was told to empty out Lesemann’s desk; he was not told why she had gone. Only later did word begin to spread about the reasons for Lesemann’s abrupt departure. It was Lesemann’s good fortune, and the commission’s, that word of her firing did not reach the press or the investigation’s Republican critics on Capitol Hill. The fact that the news did not leak was proof of how tightly Zelikow was able to control the flow of information on the commission.

  To Lesemann’s friends, it seemed that Zelikow had accomplished all of his goals with her departure. He had gotten rid of the one staff member who had emerged early on as his nemesis; he had managed to eject her without attracting the attention of the press corps or the White House. And he had found a way to send a message to the staff: Do not cross me.

  18

  K STREET OFFICES OF THE 9/11 COMMISSION

  Washington, D.C.

  APRIL 2003

  Slade Gorton had to catch his breath as the nearly four-inch blade was passed around for the commissioners to inspect. It was shocking to see the sort of weapon that was used to butcher some of the pilots and passengers aboard the four planes on 9/11. The staff investigators wanted the ten commissioners to see for themselves exactly what the hijackers had been allowed to carry onto the planes. So they went out and purchased a plierslike utility tool common among building contractors and known as a Leatherman. It had an exceptionally sharp, forged-steel blade that folded out and locked into place. Obviously it could maim. How could anyone have doubted that it could kill with a well-directed plunge into a victim’s neck or chest?

  Yet on the morning of September 11, 2001, the rules of the Federal Aviation Administration allowed a metal blade up to four inches long to be taken aboard a passenger plane. If it was detected by a magnetometer at an airport security checkpoint, the FAA’s rules called for the knife to be inspected and then returned to the passenger. The FBI believed that at least two Leatherman-like tools were among the weapons used by the 9/11 hijackers to take control of the planes.

  The blade was just one more bit of proof to Gorton that if one agency of the government above all others bore responsibility for 9/11, it was the FAA, which was supposed to maintain safety in the skies and at the nation’s airports. It was not a view shared by most of his colleagues on the commission, who were much more likely from the start to single out the FBI and CIA for blame. But Gorton thought he could make a strong argument that the FAA deserved the shameful distinction of being the most culpable for the attacks.

  It went far beyond the lunacy of FAA rules that allowed an obviously lethal weapon like a nearly four-inch steel blade to be carried onto a passenger plane. To Gorton, it was a question of the basic competence of senior FAA officials who were aware in the summer of 2001 that there was a grave terrorist threat that could involve the hijacking of civilian airliners yet did almost nothing to respond to it. It was a view shared by the commission’s staff. In their early interviews at the FAA, the panel’s investigators were often impressed by agency officials who worked outside Washington, especially the air traffic controllers around the country who responded to the hijackings on 9/11. But almost uniformly, the commission’s staff held FAA leaders at headquarters in contempt. Many of them seemed the definition of careerist bureaucrats.

  For Gorton, the FAA’s incompetence was embodied in the fact that its official no-fly watch list of potential terrorists had fewer than twenty names on September 11. The State Department had its own watch list, known as TIPOFF, which included sixty-one thousand names of possible terrorists. Among the names on the TIPOFF list on September 11 were those of Nawaf al-Hazmi and Khalid al-Mihdhar, the two hijackers who had lived in San Diego for much of the year before the attacks. TIPOFF was considered the government’s most authoritative terrorist watch list, and it was readily available to the FAA and the airlines; the State Department was eager to share it.

  But the FAA’s chief of civil aviation security in 2001, Cathal L. Flynn, had admitted sheepishly to the commission’s staff early in the investigation that he had been unaware before September 11 that the State Department’s watch list even existed. “I regret to say that I was unaware of the TIPOFF list,” said Flynn.
Gorton thought that Flynn’s humiliating acknowledgment was among the most telling moments in the commission’s investigation—“stunning, just unbelievable,” and an “example of the absolute incompetence” of the FAA and other government agencies in sharing information.

  Others at the FAA said that while they were aware of TIPOFF and made use of it on occasion, they and the airlines found it difficult to take advantage of a list that included tens of thousands of names, many of them foreigners. Gorton thought that ridiculous; during his Senate career, he had flown home to Seattle almost weekly, and the airlines had little difficulty cross-indexing his name and ticket with his frequent flier account and properly crediting his mileage, just as they did for millions of other passengers who had names far more exotic than his.

  The performance of the FAA’s parent organization, the Department of Transportation, was not much more reassuring. One of the commission’s earliest witnesses at its public hearings in 2003 was Transportation Secretary Norman Mineta, a genial former Democratic congressman from California who was considered the token Democrat in George W. Bush’s cabinet.

  If the commission was looking for early proof of how little the Bush White House had done to prepare domestic agencies for a terrorist attack that summer, Mineta offered it up, perhaps unintentionally.

  As head of the Department of Transportation, he oversaw the FAA, the Coast Guard, and other agencies that should have played some role in preparing for a domestic terrorist attack in 2001. But Mineta revealed that the White House had made no special effort to warn the Transportation Department to be ready for an al-Qaeda strike that spring and summer. He could not remember any special interagency meetings at the White House about the threats, when the CIA was warning President Bush almost daily of an imminent attack.