September 11 Showdown
Michael Isikoff and Mark 0aHosenball
Wednesday 07 May 2003
Will the White House block a terror panel s access to critical 0adocuments?
An imminent and potentially nasty confrontation over an 0aindependent commission s authority to investigate the White House s handling of 0athe September 11 terror attacks was narrowly averted last week just before 0aPresident Bush landed a jet aboard the USS Abraham Lincoln in a carefully 0acrafted ceremony touting the toppling of Saddam Hussein as a major victory in 0athe war on terrorism.
But the battle over the issue is far from over. In fact, NEWSWEEK 0ahas learned, President Bush s chief lawyer has privately signaled that the White 0aHouse may seek to invoke executive privilege over key documents relating to the 0aattacks in order to keep them out of the hands of investigators for the National 0aCommission on Terror Attacks Upon the United States the independent panel 0acreated by Congress to probe all aspects of 9-11.
Some commission members now fear a showdown over the 0aissue particularly over extremely sensitive National Security Council minutes 0aand presidential briefing papers could be coming in the next few weeks. We do 0athink it s important to engage this issue relatively early i.e., now, says 0aPhilip Zelikow, the executive director for the commission, who is negotiating 0awith administration lawyers to inspect documents and interview senior 0aofficials.
Zelikow says he is still hopeful an accommodation can be reached 0awith administration lawyers and that the issue is now in the hands of senior 0aofficials in the White House. But he made it clear that the 9-11 panel has no 0aintention of backing down from its insistence that it receive full access to a 0awide range of material that has never been reviewed by any outside body much 0aless made public. We expect to get what we need, Zelikow says. We re not 0agoing to go quietly into that good night.
Zelikow s comments, and even stronger ones from some commission 0amembers, suggest that last week s brief contretemps over access to transcripts 0aof secret congressional testimony was only one small flare-up in a much broader 0aand potentially high-stakes struggle that could ultimately wind up in federal 0acourt.
Just two weeks ago, one commission member, Tim Roemer, a former 0aDemocratic congressman from Indiana, had sought to read transcripts of three 0adays of closed hearings that had been held last fall by the House and Senate 0aIntelligence Committees hearings that Roemer, as a member of the House panel, 0ahad actually participated in.
But when Roemer went down to a carefully guarded room on Capitol 0aHill to read the classified transcripts he says to refresh his memory he was 0astunned to learn that he couldn t have access to them. The reason, relayed by a 0acongressional staffer, was that Zelikow had acceded to a request by an 0aadministration official to permit lawyers to first review them to determine if 0athe transcripts contained testimony about privileged material.
Roemer called the deal outrageous and 9-11 family members 0avictims bombarded the panel with angry calls. But late Tuesday, White House 0alawyers relented, thereby averting an embarrassing public escalation of the 0adispute and inevitable charges of a White House cover-up that could well have 0amarred last Thursday s highly publicized ceremony aboard the USS Abraham Lincoln 0ain which Bush declared the military action in Iraq one victory in a war on 0aterror that began on September 11, 2001, and still goes on.
But that by no means settled the matter, sources say. Publicly, 0athe White House has pledged cooperation with the panel and two months ago chief 0aof staff Andrew Card even distributed a memo to agency chiefs instructing them 0ato work with the panel and provide them access to documents. But privately, 0atalks have been far more problematic. Thomas Kean, the former Republican 0agovernor of New Jersey who Bush named to chair the panel, confirmed to NEWSWEEK 0athat in private talks with White House chief council Alberto Gonzales, the 0apresident s chief lawyer, has already told him that he may seek to invoke 0aexecutive privilege over some documents sought by the commission.
Executive privilege is a doctrine traditionally invoked by all 0aWhite Houses to keep confidential briefings or advice given to the president. 0aBut the precise boundaries of the doctrine are hardly settled. And it is far 0afrom clear how a White House attempt to withhold material from a congressionally 0aauthorized national commission on 9-11 will play out.
Gonzales and the rest of the White House legal staff are known to 0afeel particularly passionate about the sanctity of staff advice given to the 0apresident a view that reflects Bush s and Vice President Dick Cheney s adamant 0aopinion that internal executive-branch decision-making should be conducted 0awithout fear of congressional or media scrutiny. Those are like the crown 0ajewels we ll never give those up, one White House lawyer predicted to NEWSWEEK 0arecently when asked about presidential briefing papers that were likely to be 0asought by the commission.
But some commission members say it might be politically difficult 0afor the White House to sustain that position especially given the panel s broad 0alegal mandate to unearth all pertinent facts relating to the events of 9-11. The 0ainvocation of executive privilege could fuel suspicions that the White House is 0astonewalling the panel in order to cover up politically embarrassing mistakes. I think they have got to be worried about this, says one panel member. This 0ais a bipartisan commission, and we ve got the family members.
Among the most sensitive documents the commission is known to be 0ainterested in reviewing are internal National Security Council minutes from the 0aspring and summer of 2001 when the CIA and other intelligence agencies were 0awarning that an attack by Al Qaeda could well be imminent. The panel is also 0aexpected to seek interviews with key principals such as national-security 0aadviser Condoleezza Rice and her chief deputy, Stephen J. Hadley to question 0athem both about advice they gave the president and about what actions they took 0ato deal with the rising concerns of intelligence-community officials about the 0aQaeda threat.
An equally dicey subject, sources say, is the commission s 0aexpected request to review debriefings of key Al Qaeda suspects who have been 0aarrested such as Khalid Shaikh Mohammed and Ramzi bin al-Shibh who played 0acritical roles in the 9-11 plot. The intelligence community has treated those 0adebriefs as among the most highly classified material in the government, and the 0aJustice Department is stoutly resisting a ruling by the federal judge overseeing 0athe Zacarias Moussoui case to make bin al-Shibh available to the defense.
But commission members argue that they can t possibly do their 0ajob to write an authoritative history of 9-11 if they can t discover what the 0afederal government has learned from Al Qaeda operatives who know the most about 0ahow the plot was put together.
TERRORISTS? WHAT TERRORISTS?
After his trip to Damascus last weekend, Secretary of State Colin 0aPowell proclaimed new progress in the war on terror. The Syrian government, he 0aannounced, had agreed to shut down offices of Hamas and two other militant 0aanti-Israel groups that the U.S. government views as violent terrorist 0aorganizations.
It is still far from clear how much the Syrians will actually 0amake good on their promises to Powell. But if they do, Syria may turn out to be 0amore helpful than some of the United States supposed European allies in the war 0aon terror. Despite renewed pressure from the Bush administration, the European 0aUnion is refusing to crack down on some of the same organizations on the grounds 0athat they aren t terrorists despite their role in staging suicide bombings 0aagainst Israeli civilians.
The issue came to a head late last year, NEWSWEEK has learned, 0awhen Jimmy Gurule then a top U.S. Treasury official involved in cracking down on 0aterrorist financing asked his counterparts at the European Union to freeze the 0aassets of six organizations on Washington s terrorist list. According to a copy 0aof the list obtained by NEWSWEEK, the targeted groups included Hamas, two 0aHamas-related businesses (the Al-Azsa Religious Bank and Beit al-mal Holdings) 0aand Hizbullah, as well as two others outside the Middle East, the Tamil Tigers 0aof Sri Lanka and the Communist Party of the Philippines. But in the case of 0aHamas and Hizbullah, the European Union refused. The purported reason: both 0agroups run large-scale social services and medical operations in the 0aIsraeli-occupied West Bank and Gaza Strip. The Europeans say that they have no 0aproblem going after the terrorist arms of both outfits but not the entire group, 0aa distinction that Washington rejects as meaningless.
At the moment, sources tell NEWSWEEK, the issue is at a 0astalemate one more sign that when it comes to the war on terror, the perspective 0ain Washington can often be sharply different than the view in other capitals, 0aeven those of our traditional allies.
For 0amore stories on: September 11
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