BUT THE BATTLE over the issue is far from over. In fact, NEWSWEEK has learned, President Bush's chief lawyer has privately signaled that the White House may seek to invoke executive privilege over key documents relating to the attacks in order to keep them out of the hands of investigators for the National Commission on Terror Attacks Upon the United States—the independent panel created by Congress to probe all aspects of 9-11.
Some commission members now fear a showdown over the issue—particularly over extremely sensitive National Security Council minutes and presidential briefing papers—could be coming in the next few weeks. "We do think it's important to engage this issue relatively early—i.e., now," says Philip Zelikow, the executive director for the commission, who is negotiating with administration lawyers to inspect documents and interview senior officials.
Zelikow says he is still hopeful an accommodation can be reached with administration lawyers and that the issue is now in the hands of senior officials in the White House. But he made it clear that the 9-11 panel has no intention of backing down from its insistence that it receive full access to a wide range of material that has never been reviewed by any outside body—much less made public. "We expect to get what we need," Zelikow says. "We're not going to go quietly into that good night."
Zelikow's comments, and even stronger ones from some commission members, suggest that last week's brief contretemps over access to transcripts of secret congressional testimony was only one small flare-up in a much broader and potentially high-stakes struggle that could ultimately wind up in federal court.
Just two weeks ago, one commission member, Tim Roemer, a former Democratic congressman from Indiana, had sought to read transcripts of three days of closed hearings that had been held last fall by the House and Senate Intelligence Committees—hearings that Roemer, as a member of the House panel, had actually participated in.
But when Roemer went down to a carefully guarded room on Capitol Hill to read the classified transcripts—he says to refresh his memory—he was stunned to learn that he couldn't have access to them. The reason, relayed by a congressional staffer, was that Zelikow had acceded to a request by an administration official to permit lawyers to first review them to determine if the transcripts contained testimony about "privileged" material.
Roemer called the deal "outrageous" and 9-11 family members victims bombarded the panel with angry calls. But late Tuesday, White House lawyers relented, thereby averting an embarrassing public escalation of the dispute—and inevitable charges of a White House cover-up—that could well have marred last Thursday's highly publicized ceremony aboard the USS Abraham Lincoln in which Bush declared the military action in Iraq "one victory in a war on terror that began on September 11, 2001, and still goes on."
But that by no means settled the matter, sources say. Publicly, the White House has pledged cooperation with the panel and two months ago chief of staff Andrew Card even distributed a memo to agency chiefs instructing them to work with the panel and provide them access to documents. But privately, talks have been far more problematic. Thomas Kean, the former Republican governor of New Jersey who Bush named to chair the panel, confirmed to NEWSWEEK that in private talks with White House chief council Alberto Gonzales, the president's chief lawyer, has already told him that he "may seek to invoke executive privilege" over some documents sought by the commission.
Executive privilege is a doctrine traditionally invoked by all White Houses to keep confidential briefings or advice given to the president. But the precise boundaries of the doctrine are hardly settled. And it is far from clear how a White House attempt to withhold material from a congressionally authorized national commission on 9-11 will play out.
Gonzales and the rest of the White House legal staff are known to feel particularly passionate about the sanctity of staff advice given to the president—a view that reflects Bush's and Vice President Dick Cheney's adamant opinion that internal executive-branch decision-making should be conducted without fear of congressional or media scrutiny. "Those are like the crown jewels—we'll never give those up," one White House lawyer predicted to NEWSWEEK recently when asked about presidential briefing papers that were likely to be sought by the commission.
But some commission members say it might be politically difficult for the White House to sustain that position—especially given the panel's broad legal mandate to unearth all pertinent facts relating to the events of 9-11. The invocation of executive privilege could fuel suspicions that the White House is stonewalling 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 is a bipartisan commission, and we've got the family members."
Among the most sensitive documents the commission is known to be interested in reviewing are internal National Security Council minutes from the spring and summer of 2001 when the CIA and other intelligence agencies were warning that an attack by Al Qaeda could well be imminent. The panel is also expected to seek interviews with key principals—such as national-security adviser Condoleezza Rice and her chief deputy, Stephen J. Hadley—to question them both about advice they gave the president and about what actions they took to deal with the rising concerns of intelligence-community officials about the Qaeda threat.
An equally dicey subject, sources say, is the commission's expected request to review debriefings of key Al Qaeda suspects who have been arrested—such as Khalid Shaikh Mohammed and Ramzi bin al-Shibh—who played critical roles in the 9-11 plot. The intelligence community has treated those debriefs as among the most highly classified material in the government, and the Justice Department is stoutly resisting a ruling by the federal judge overseeing the Zacarias Moussoui case to make bin al-Shibh available to the defense.
But commission members argue that they can't possibly do their job to write an authoritative history of 9-11 if they can't discover what the federal government has learned from Al Qaeda operatives who know the most about how the plot was put together.