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Context of 'September 2003: 9/11 Commission Discovers FAA Has Withheld Documents from Investigators'

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At its first formal meeting, the 9/11 Commission decides it will not routinely issue subpoenas for the documents it wants from other agencies.
Different Opinions - There is some debate on the matter. Commissioner Jamie Gorelick argues that the Commission should issue subpoenas for all requests it makes to the administration for documents or other information, saying that a subpoena is simply evidence of the Commission’s determination to get what it needs. She also worries that if the Commission waits to issue subpoenas, the time limit on its activities will mean that a late subpoena could not be enforced. However, she is only supported by the other three ordinary Democratic commissioners, with the top Democrat on the Commission, Vice Chairman Lee Hamilton, siding with the Republicans.
Decision Already Taken - Author Philip Shenon will write: “But [Chairman Tom] Kean and Hamilton had already made up their mind on this issue, too. There would be no routine subpoenas, they decreed; subpoenas would be seen as too confrontational, perhaps choking off cooperation from the Bush administration from the very start of the investigation.” The four Democratic commissioners cannot issue a subpoena by themselves, as it requires the approval of either six of the 10 commissioners, or both Kean and Hamilton. This is not the only occasion on which Hamilton’s Republican leanings become apparent (see March 2003-July 2004). [Shenon, 2008, pp. 70-71]
Staffer Critical - John Farmer, leader of the Commission’s team investigating events on the day of the attacks, will be critical of the decision and will urge Kean and Hamilton to change their minds. If subpoenas are issued at the start, the Commission will have time to enforce them in court and the agencies “would know that they couldn’t run out the clock,” whereas if subpoenas were issued later, after non-compliance with document requests, the agencies could use such tactics. [Shenon, 2008, pp. 201]
Difficulties with Receiving Documents - As a result of this policy, the Commission will have trouble getting documents from the White House (see June 2003), Defense Department (see July 7, 2003), FAA (see November 6, 2003), and CIA (see October 2003), leading to delays in its investigation.

Entity Tags: Lee Hamilton, John Farmer, 9/11 Commission, Jamie Gorelick, Thomas Kean

Timeline Tags: Complete 911 Timeline

The Federal Aviation Administration (FAA) tells the 9/11 Commission it has already given the Commission all the documents it asked the FAA for. John Farmer, head of the Commission team investigating what happened on the day of 9/11, finds this hard to believe, as the boxes of material the FAA has provided do not contain many tapes or transcripts of FAA communications on the day of the attacks. [Shenon, 2008, pp. 201] Later interviews of FAA staff will reveal there is a mountain of evidence the FAA is withholding from the Commission (see September 2003).

Entity Tags: 9/11 Commission, Federal Aviation Administration, John Farmer

Timeline Tags: Complete 911 Timeline

Investigators for the 9/11 Commission discover that the Federal Aviation Administration (FAA) has withheld a large amount of documents from it about the day of the attacks and falsely claimed it had provided everything the Commission asked for (see August 2003). The discovery is made on a day when the Commission’s investigators begin interviewing air traffic controllers at centers on the East Coast and in the Midwest. John Farmer, the staffer who leads the Commission’s team dealing with this aspect of its work, is only a few minutes into interviews at the FAA’s Indianapolis Center when he realizes, in the words of author Philip Shenon, “just how much evidence the FAA had held back.” His interviewees tell him that there is “extensive information the Commission has not seen, including tape recordings of conversations between the individual air traffic controllers and the hijacked planes.” He also discovers that what the FAA has provided is merely the “accident package,” rather than the much larger “accident file.” Farmer is “furious” and contacts the Commission’s lawyer in Washington. Asked to explain the situation, the FAA rapidly admits there is other material and, within days, several boxes of new material, including the air traffic control tapes, arrive at the Commission’s offices. [Shenon, 2008, pp. 201-202] However, the Commission has lost confidence in the FAA and will issue it with a subpoena next month (see October 14, 2003).

Entity Tags: 9/11 Commission, Federal Aviation Administration, Indianapolis Air Route Traffic Control Center, John Farmer

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

The 9/11 Commission issues it first subpoena, to the Federal Aviation Administration (FAA). The Commission had initially decided not to issue subpoenas (see January 27, 2003), but found that the FAA had withheld documentation from it (see August 2003 and September 2003), prompting it to take this step.
Request from Team Leader - The subpoena’s issue is the result of a request from John Farmer, leader of the Commission’s team investigating the day of the attacks. After receiving permission from the Commission’s chairman and lawyer, Tom Kean and Daniel Marcus, to address the full Commission, Farmer tells them: “My team and I have lost confidence in the FAA. We do not believe we have time to take any more chances on the possibility that they will act on good faith.” This leaves them with “no choice other than a subpoena.”
Debate inside Commission - Some of the Democratic commissioners, such as Jamie Gorelick, then claim that this is a reason to subpoena all documents the Commission wants. However Kean and Vice Chairman Lee Hamilton are against this. Republican Slade Gorton proposes a compromise where the Commission subpoenas the FAA, but only issues a warning to other agencies that are not producing the documents the Commission wants. [Shenon, 2008, pp. 202-203] The Commission approves the subpoena unanimously. The Commission comments publicly, saying, “This disturbing development at one agency has led the Commission to reexamine its general policy of relying on document requests rather than subpoenas.” [Associated Press, 10/15/2003] It also warns other agencies that “document requests must be taken as seriously as a subpoena.” [Shenon, 2008, pp. 203]

Entity Tags: Federal Aviation Administration, Daniel Marcus, 9/11 Commission, Thomas Kean, Lee Hamilton, John Farmer, Slade Gorton, Jamie Gorelick

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Several months into its investigation, the 9/11 Commission is already dissatisfied with the Department of Defense (see July 7, 2003).
Recorded Conversations Not Provided to Commission - When its staff take a tour of a Northeast Air Defense Sector (NEADS) facility in Rome, New York, which helped coordinate the air defense on the day of 9/11, the staff enter the operations room, which has “more than 20 banks of operators: some weapons controllers and some flight controllers.” The staff find that the operators’ conversations are always tape-recorded, but the tapes for 9/11 have not yet been sent to the Commission. In addition, according to Commission Chairman Tom Kean and Vice Chairman Lee Hamilton, “there were also discrepancies between things NORAD was telling [the Commission] about their performance on the morning of September 11—things that the agency had stated publicly after 9/11—and the story told by the limited tapes and documents the Commission had received.”
'Egregious' Failure - Upon learning of the existence of the tapes, team leader John Farmer immediately suspends the tour and the interviews and flies to meet Kean in New Jersey. [Kean and Hamilton, 2006, pp. 85-88] Farmer will say that the failure to produce the tapes was “egregious,” as, “Those tapes told the story of the air defense better than anything else that anyone could have given us.”
Subpoena Demanded - Farmer demands that a subpoena be issued to the Pentagon for the tapes. He tells Kean: “Listen, we have to subpoena this stuff. We may not get it, but if we don’t try to get it, how can you explain to the public that we have done our job?” Farmer is aware that it will be difficult to get a subpoena on the Pentagon—“When you’re talking about subpoenaing the DOD, the room goes quiet”—but he decides privately: “I would have quit if we didn’t. I felt we were becoming a laughingstock.” [Shenon, 2008, pp. 204]
Lost Time - Despite opposition from its Vice Chairman Lee Hamilton (see (Late October-Early November 2003)) and, allegedly, its Executive Director Philip Zelikow (see November 5, 2003), the Commission will subpoena NORAD for the tapes (see November 6, 2003). However, according to Kean and Hamilton, this means that “the staff had lost so much time that our hearing on the 9/11 story in the skies was postponed for months. Indeed, the delays from NORAD and the FAA made it highly unlikely that the team could complete its work as scheduled.” [Kean and Hamilton, 2006, pp. 85-88] Chapter 1 of the Commission’s final report will draw heavily on the tapes. [9/11 Commission, 7/24/2004, pp. 1-46]
Contrast with Other Aspects of Investigation - However, the Commission does not make the same effort with all day of 9/11 recordings. For example, it does not even find out which person(s) from the Department of Defense participated in a White House video conference chaired by counterterrorism “tsar” Richard Clarke during the attacks (see (9:10 a.m.) September 11, 2001). [9/11 Commission, 7/24/2004, pp. 36]

Entity Tags: Northeast Air Defense Sector, Lee Hamilton, 9/11 Commission, John Farmer, Thomas Kean

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Following the discovery that NORAD is withholding extremely important evidence from the 9/11 Commission (see Late October 2003), John Farmer, the leader of the Commission team investigating the day of 9/11, and the Commission’s Executive Director Philip Zelikow discuss subpoenaing the Pentagon. In the first meeting, Zelikow seems to support Farmer’s demand that a subpoena be issued, but is “hard to read” according to Farmer.
Charges that Zelikow is 'Undoing' Subpoena - Farmer then returns to New York, where he is based for his work on the Commission. According to Farmer, he receives an urgent phone call from Daniel Marcus, the Commission’s counsel, telling him Zelikow is trying to derail the subpoena and that Defense Secretary Donald Rumsfeld is to meet with the commissioners to dissuade them. Such a meeting will actually be held one day before the Commission votes on the subpoena (see November 5, 2003). In Farmer’s account, Marcus says: “You’d better get down here. It’s all unraveling. Philip is undoing this.” Marcus will later say he does not recall this call, but will say that Zelikow, who was close to members of Rumsfeld’s staff, would even “flaunt” his good relations with Undersecretary of Defense for Intelligence Stephen Cambone. Zelikow will later make a successful last-ditch bid to prevent a subpoena being issued on the White House (see February 2004).
Disagreement between Zelikow, Farmer - According to Farmer, he returns to Washington and together with Dana Hyde, one of his staffers, confronts Zelikow. Hyde complains, “We can’t do our job if you frustrate us.” Farmer adds: “I thought you were supporting this subpoena. Now I hear otherwise. What’s going on?” He demands he be allowed to address the commissioners on the subpoena, but Zelikow replies: “I represent the staff. I will represent your views.” According to author Philip Shenon, Zelikow’s face “turn[s] the crimson color that the staff in Washington ha[ve] seen before in moments of his most extreme rage.” Zelikow then says, “It’s beyond our pay grade at this point.” Farmer disagrees and storms out of Zelikow’s office.
Zelikow's Version - Zelikow will confirm that there was a difference of opinion with Farmer on the matter: “We did have concerns about timing and tactics. Tension was building to a breaking point.” However, Zelikow will say he did not necessarily oppose a subpoena, as he shared Farmer’s concerns about the Pentagon’s truthfulness. Marcus will back Zelikow, saying that he thinks Zelikow did not try to derail the subpoena because of his friendship with Cambone or for any other reason. [Shenon, 2008, pp. 205-207]

Entity Tags: Daniel Marcus, Dana Hyde, John Farmer, Philip Zelikow, 9/11 Commission

Timeline Tags: Complete 911 Timeline

The 9/11 Commission votes to issue a subpoena on the Defense Department for documents withheld from it regarding the fighter response on the day of the attacks. The vote follows a demand from the Commission’s team investigating the air defense that it be issued, as the military has been withholding documents and making false statements (see Late October 2003), as well as the failure of last-ditch attempts to stop the subpoena’s issue (see (Late October-Early November 2003) and November 5, 2003).
Chairman Kean Has Decisive Vote - The four ordinary Democratic commissioners vote for the subpoena’s issue, but Democratic Vice Chairman Lee Hamilton votes against, together with three ordinary Republican commissioners. The fourth Republican commissioner, Slade Gorton, votes for the subpoena. This means that Tom Kean, the Commission’s Republican chairman, has the deciding vote, and he votes for the subpoena. He dislikes voting against Hamilton, but thinks NORAD is trying to hide something. [Shenon, 2008, pp. 207-208]
'Especially Dismayed' - In a statement issued after the vote, the Commission says it is “especially dismayed” by incomplete document production on the part of NORAD. The Commission explains, “In several cases we were assured that all requested records had been produced, but we then discovered, through investigation, that these assurances were mistaken.” [Associated Press, 11/7/2003]
Documents Expose Apparent False Statements by NORAD - When the documents arrive, according to author Philip Shenon, they show that “NORAD’s public statements about its actions on 9/11 had been wrong, almost certainly intentionally.” Based on interviews of 9/11 Commission staffers, Shenon will add: “This was not the fog of war. This was the military trying to come up with a story that made its performance during 9/11 look reasonably competent, when in fact the military had effectively left the nation’s skies undefended that morning.” In particular, tape recordings of communications at NORAD’s Northeast Air Defense Sector (NEADS) indicate that the military did not know of the hijacking of Flight 93 until it had crashed. 9/11 Commission team leader John Farmer will even say that it is “99 percent” certain that Pentagon officers knew they were lying when they made statements to the Commission, sometimes under oath. [Shenon, 2008, pp. 208]

Entity Tags: Slade Gorton, Thomas Kean, US Department of Defense, Philip Shenon, Lee Hamilton, 9/11 Commission, John Farmer, North American Aerospace Defense Command

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

After finding that FAA and US military officials have made a string of false statements to them about the air defense on the day of the attacks and have withheld key documents for months (see September 2003, Late October 2003, October 14, 2003, and November 6, 2003), the 9/11 Commission’s staff proposes a criminal investigation by the Justice Department into those officials.
Proposal Sent to Zelikow - The proposal is contained in a memo sent by the Commission team investigating the day of the attacks to Philip Zelikow, the Commission’s executive director. However, nothing much is done with the memo for months. A similar proposal will then be submitted to the very last meeting of the 9/11 commissioners, who decide to refer the matter not to the Justice Department, but to the inspectors general of the Pentagon and FAA (see Shortly before July 22, 2004). Whereas the Justice Department could bring criminal charges for perjury, if it found they were warranted, the inspectors general cannot.
Dispute over Events - According to John Azzarello, a Commission staffer behind the proposal, Zelikow fails to act on the proposal for weeks. Azzarello will say that Zelikow, who has friends at the Pentagon (see (Late October-Early November 2003)), “just buried that memo.” Azzarello’s account will be backed by Commission team leader John Farmer. However, Zelikow will say that Azzarello was not party to all the discussions about what to do and that the memo was delayed by other Commission staffers, not him. Zelikow’s version will receive backing from the Commission’s lawyer, Daniel Marcus. [Shenon, 2008, pp. 209-210]

Entity Tags: Philip Zelikow, John Azzarello, Daniel Marcus, 9/11 Commission, John Farmer

Timeline Tags: Complete 911 Timeline

Towards the end of its tenure, the ten members of the 9/11 Commission secretly meet to discuss whether military and aviation officials deliberately misled them and the public. For over two years following 9/11, NORAD and the FAA had given information in testimony and media appearances later found to be incorrect. Authorities claimed that America’s air defenses reacted quickly on 9/11, with fighters launched in response to the last two hijackings and ready to shoot down Flight 93 if it threatened Washington, DC. Yet audiotapes from the FAA and NORAD obtained by the commission under subpoena showed that the military never had any of the hijacked airliners in its sights and only became aware of Flight 93 after it crashed. John Farmer, a senior counsel to the commission, says the military’s original story was “a whole different order of magnitude than spin. It simply wasn’t true.” The commissioners debate whether to refer the matter to the Justice Department for criminal investigation, but as a compromise they instead refer it to the inspectors general for the Pentagon and the Transportation Department (which includes the FAA). The Pentagon inspector general’s office will issue a secret report to Congress in May 2005, blaming the inaccuracies partly on “inadequate forensic capabilities,” including poor log keeping at the military air traffic control centers (see May 27, 2005). However, Farmer and other commission staff will later point out that the military had already reviewed the NORAD audiotapes before its officials gave their inaccurate testimonies. The 9/11 Commission’s concerns over whether it was deliberately misled will only come to light in news reports in August 2006. Thomas Kean, its former chairman, will say, “We to this day don’t know why NORAD told us what they told us. It was just so far from the truth.” [Vanity Fair, 8/1/2006; Washington Post, 8/2/2006; New York Times, 8/5/2006] The Transportation Department’s inspector general’s office will issue its report in response to the commission’s referral in September 2006 (see September 1, 2006).

Entity Tags: North American Aerospace Defense Command, John Farmer, 9/11 Commission, Federal Aviation Administration

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

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