9/11 Commission Could Subpoena Oval Office Files

Administration Faces Subpoenas From 9/11 Panel
by Philip Shenon
New York Times

October 25, 2003

MADISON, N.J., Oct. 25 - The chairman of the federal commission investigating the Sept. 11, 2001, terror attacks said that the White House was continuing to withhold several highly classified intelligence documents from the panel and that he was prepared to subpoena the documents if they were not turned over within weeks.

The chairman, Thomas H. Kean, the former Republican governor of New Jersey, also said in an interview that he believed the bipartisan 10-member commission would soon be forced to issue subpoenas to other executive branch agencies because of continuing delays by the Bush administration in providing documents and other evidence needed by the panel.

"Any document that has to do with this investigation cannot be beyond our reach," Mr. Kean said on Friday in his first explicit public warning to the White House that it risked a subpoena and a politically damaging courtroom showdown with the commission over access to the documents, including Oval Office intelligence reports that reached President Bush's desk in the weeks before the Sept. 11 attacks.

"I will not stand for it," Mr. Kean said in the interview in his offices here at Drew University, where he has been president since 1990.

"That means that we will use every tool at our command to get hold of every document."

He said that while he had not directly threatened a subpoena in his recent conversations with the White House legal counsel, Alberto R. Gonzales, "it's always on the table, because they know that Congress in their wisdom gave us the power to subpoena, to use it if necessary."

A White House spokeswoman, Ashley Snee, said that the White House believed it was being fully cooperative with the commission, which is known formally as the National Commission on Terrorist Attacks Upon the United States. She said that it hoped to meet all of the panel's demands for documents.

Mr. Kean suggested that he understood the concerns of the White House about the sensitivity of the documents at issue, saying that they were the sort of Oval Office intelligence reports that were so sensitive and highly classified that they had never been provided to Congress or to other outside investigators.

"These are documents that only two or three people would normally have access to," he said. "To make those available to an outside group is something that no other president has done in our history.

"But I've argued very strongly with the White House that we are unique, that we are not the Congress, that these arguments about presidential privilege do not apply in the case of our commission," he said.

"Anything that has to do with 9/11, we have to see it - anything. There are a lot of theories about 9/11, and as long as there is any document out there that bears on any of those theories, we're going to leave questions unanswered. And we cannot leave questions unanswered."

While Mr. Kean said he was barred by an agreement with the White House from describing the Oval Office documents at issue in any detail - he said the White House was "quite nervous" about any public hint at their contents - other commission officials said they included the detailed daily intelligence reports that were provided to Mr. Bush in the weeks leading up to Sept. 11. The reports are known within the White House as the Presidential Daily Briefing.

Despite the threat of a subpoena and his warning of the possibility of a court battle over the documents, Mr. Kean said he maintained a good relationship with Mr. Gonzales and others at the White House, and that he was still hopeful that the White House would produce all of the classified material demanded by the panel without a subpoena.

"We've been very successful in getting a lot of materials that I don't think anybody has ever seen before," he said of his earlier dealings with the White House. "Within the legal constraints that they seem to have, they've been fully cooperative. But we're not going to be satisfied until we get every document that we need."

Last year, the White House confirmed news reports that President Bush received a written intelligence report in August 2001, the month before the attacks, that Al Qaeda might try to hijack American passenger planes.

Ms. Snee, the White House spokeswoman, said, "The president has stated a clear policy of support for the commission's work and, at the direction of the president, the executive branch has dedicated tremendous resources to support the commission, including providing over two million pages of documents."

After months of stating that it believed subpoenas to the executive branch would not be necessary, the commission voted unanimously this month to issue its first subpoena to the Federal Aviation Administration after determining that the F.A.A. had withheld dozens of boxes of documents involving the Sept. 11 attacks.

The subpoena appeared to be a turning point for the commission and for Mr. Kean, a moderate Republican known for his independence. In a statement on Oct. 15, the commission said it was re-examining "its general policy of relying on document requests rather than subpoenas" as a result of the issues with the F.A.A.

The commission, which has a membership that is equally divided among Republicans and Democrats, was created by Congress last year over the initial opposition of the White House. The law creating the panel requires that it complete its work by next May, a deadline that commission members say may be impossible to meet because of the Bush administration's delays in turning over many documents.

Mr. Kean's comments on Friday came as another member of the commission, Max Cleland, the former Democratic senator from Georgia, became the first panel member to say publicly that the commission could not complete its work by its May 2004 deadline and the first to accuse the White House of withholding classified information from the panel for purely political reasons.

"It's obvious that the White House wants to run out the clock here," he said in an interview in Washington. "It's Halloween, and we're still in negotiations with some assistant White House counsel about getting these documents - it's disgusting."

He said that the White House and President Bush's re-election campaign had reason to fear what the commission was uncovering in its investigation of intelligence and law enforcement failures before Sept. 11. "As each day goes by, we learn that this government knew a whole lot more about these terrorists before Sept. 11 than it has ever admitted."

Interviews with several other members of the commission show that Mr. Kean's concerns are widely shared on the panel, and that the concern is bipartisan.

Slade Gorton, a Republican member of the panel who served in the Senate from Washington from 1982 to 2000, said that he was startled by the "indifference" of some executive branch agencies in making material available to the commission. "This lack of cooperation, if it extends anywhere else, is going to make it very difficult" for the commission to finish its work by next May, he said.

Timothy J. Roemer, president of the Center for National Policy in Washington and a former Democratic member of the House from Indiana, said that "our May deadline may, in fact, be jeopardized - many of us are frustrated that we're still dealing with questions about document access when we should be sinking our teeth into hearings and to making recommendations for the future."

Congress would need to approve an extension if the panel requested one, a potentially difficult proposition given the reluctance of the White House and many senior Republican lawmakers to see the commission created in the first place.

"If the families of the victims weighed in - and heavily, as they did before - then we'd have a chance of succeeding," said Senator John McCain, the Arizona Republican who was an important sponsor of the legislation creating the commission. He said that, given the "obfuscation" of the administration in meeting document requests, he was ready to pursue an extension "if the commission feels it can't get its work done."