The Commission Read online

  Copyright © 2008 by Philip Shenon

  All rights reserved. Except as permitted under the U.S. Copyright Act of 1976, no part of this publication may be reproduced, distributed, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permission of the publisher.

  Twelve

  Hachette Book Group

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  New York, NY 10017

  Visit our Web site at www.HachetteBookGroup.com.

  Twelve is an imprint of Grand Central Publishing.

  The Twelve name and logo is a trademark of Hachette Book Group, Inc.

  First eBook Edition: February 2008

  10 9 8 7 6 5 4 3 2 1

  ISBN: 978-0-446-51131-5

  Contents

  DEDICATION

  1: NATIONAL ARCHIVES

  2: 350 PARK AVENUE

  3: BEDMINSTER, N.J.

  4: OFFICE OF THE CHIEF OF STAFF

  5: OFFICE OF THE MAJORITY LEADER

  6: OFFICE OF THE CHIEF OF STAFF

  7: CHARLOTTESVILLE, VA.

  8: J. EDGAR HOOVER FBI BUILDING

  9: OFFICES OF THE SELECT COMMITTEE ON INTELLIGENCE

  10: DREW UNIVERSITY

  11: OFFICES OF THE NATIONAL SECURITY COUNCIL

  12: WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS

  13: OFFICE OF THE COUNSEL TO THE PRESIDENT

  14: U.S. NAVY COMMAND CENTER

  15: K STREET OFFICES OF THE 9/11 COMMISSION

  16: CITY HALL

  17: K STREET OFFICES OF THE 9/11 COMMISSION

  18: K STREET OFFICES OF THE 9/11 COMMISSION

  19: OFFICE OF THE COUNSEL TO THE PRESIDENT

  20: K STREET OFFICES OF THE 9/11 COMMISSION

  21: DEPARTMENT OF HISTORY

  22: ROOM 5026

  23: Washington, D.C.

  24: K STREET OFFICES OF THE 9/11 COMMISSION

  25: HOME OF LORIE VAN AUKEN

  26: OFFICE OF POLITICAL AFFAIRS

  27: OFFICES OF THE DIRECTOR OF CENTRAL INTELLIGENCE

  28: K STREET OFFICES OF THE 9/11 COMMISSION

  29: THE CAPITOL

  30: OFFICES OF THE 9/11 COMMISSION

  31: CIA HEADQUARTERS

  32: ROOM 5026

  33: OFFICE OF THE SPEAKER

  34: THE SITUATION ROOM

  35: 26 FEDERAL PLAZA

  36: K STREET OFFICES OF THE 9/11 COMMISSION

  37: OFFICES OF THE DIRECTOR OF CENTRAL INTELLIGENCE

  38: STUDIOS OF NBC NEWS

  39: FEDERAL BUREAU OF INVESTIGATION

  40: K STREET OFFICES OF THE 9/11 COMMISSION

  41: OFFICE OF THE COUNSEL TO THE PRESIDENT

  42: ROOM 216

  43: 301 7TH STREET, SW

  44: RIYADH, SAUDI ARABIA

  45: K STREET OFFICES OF THE 9/11 COMMISSION

  46: ROOM 216

  47: OFFICES OF THE LAW FIRM OF WILMER CUTLER & PICKERING

  48: THE ROOSEVELT ROOM

  49: THE NEW SCHOOL

  50: OFFICES OF THE DIRECTOR OF CENTRAL INTELLIGENCE

  51: J. EDGAR HOOVER FBI BUILDING

  52: K STREET OFFICES OF THE 9/11 COMMISSION

  53: K STREET OFFICES OF THE 9/11 COMMISSION

  54: K STREET OFFICES OF THE 9/11 COMMISSION

  55: HARVARD UNIVERSITY

  56: K STREET OFFICES OF THE 9/11 COMMISSION

  57: K STREET OFFICES OF THE 9/11 COMMISSION

  58: OFFICE OF THE CHIEF OF STAFF

  ACKNOWLEDGMENTS

  NOTES

  BIBLIOGRAPHY

  About the Author

  To the memory of the people who died that day

  And to their families, who are still trying to get the full truth told

  1

  NATIONAL ARCHIVES

  Washington, D.C.

  MAY 30, 2002

  Sandy Berger walked down Pennsylvania Avenue toward the row of massive Corinthian columns that were the most notable architectural feature of the National Archives. The public entrance to the archives was around the corner on Constitution Avenue, and it would normally be jammed with throngs of boisterous tourists on such a bright spring morning, eager to gaze upon the great documents of American democracy. But on the day of Berger’s first visit, the few out-of-town visitors who did not have special permission to enter the archives were turned away. The building had been closed to the public for months, undergoing a $125 million renovation. The pair of 6.5-ton bronze doors at the public entrance were locked tight. The archives’ most precious documents—the Declaration of Independence, the Constitution, and the Bill of Rights—had been removed from their display cases in July 2001 and placed in storage at a secret location as part of the renovation. After the terrorist attacks on September 11, 2001, the archives was in no hurry to return them to public view, since the building was considered a potential target if al-Qaeda carried out a second wave of attacks. The new goldplated titanium display cases being built for the documents would seal the Declaration, the Constitution, and the Bill of Rights in argon gas beneath layers of bulletproof, bombproof glass, protecting them from anything that Osama bin Laden’s terrorist followers might have in mind.

  It was May 30, 2002, eight months after the terrorist attacks, and Berger walked unnoticed into a separate entrance on Pennsylvania Avenue that was used by the archives staff, who had continued to work in the building during the renovations. Berger had special permission to visit the archives that day, although he was hardly pleased to be there. The archives employees who encountered Berger that morning would remember that he made little effort to hide his annoyance with the assignment he had been given there by his old friend and boss Bill Clinton.

  Samuel R. Berger, “Sandy” to almost everyone, had a right to be annoyed. It was the Thursday after Memorial Day, and Washington seemed finally to be catching its breath in the aftermath of 9/11. Finally it was almost summer again. Many in official Washington, especially those who had any role in responding to 9/11, could actually think about leaving the city for a few days’ rest. But here was Berger, preparing to spend the entire day inside the vaultlike archives. Thousands of documents? Tens of thousands? Berger had no way of knowing. What he knew was that this was the first of what might be several days of poring over bankers boxes stuffed with secret documents about the Clinton administration’s struggles against al-Qaeda. Specifically, about Berger’s performance as Clinton’s national security adviser in dealing with the threat from Osama bin Laden’s terrorist network.

  Berger, an international trade lawyer before joining the Clinton White House, figured he had not done a document search like this in thirty years; it was the sort of laborious research work he would normally have left to a paralegal at his old law firm or to one of his army of young assistants at the White House.

  But there was no other option for Berger, who ran Clinton’s National Security Council from 1997 to 2001 and was easily Clinton’s most trusted adviser on foreign policy. Berger had to do this research himself. The documents were so highly classified that he was one of only a handful of people apart from Clinton who had authority to see them. The classification on many of the files was “SAP”—special access program, higher than top-secret, with many files stamped in red with code words that limited their distribution even further.

  From his new home in New York, Clinton had named Berger as his representative from the NSC in dealing with the special congressional committee that had been set up in early 2002 to investigate intelligence failures before September 11. Berger assumed he would later fill the same liaison role for Clinton if the 9/11 families overcame fierce opposition from the Bush White House and managed to pressure Congress to establish an independent commission to investigate the attacks. Befo
re Berger talked with any outside investigators, he needed to remind himself what was in his files and in the files of the rest of his NSC staff.

  Berger thought it was just so typical that he would be left with the assignment. He brought it on himself, he knew. “Just leave it to Sandy” had been a mantra in the Clinton White House, and Berger had never protested enough when he heard it.

  Since 9/11, he had been forced to become the Clinton administration’s de facto spokesman again, responding to all of the reporters who wanted to know whether Clinton and his White House team felt they bore any responsibility for the attacks, whether Clinton had done everything he could during his eight years in office to kill bin Laden. Many of Berger’s former colleagues in the administration had ducked the reporters’ calls—“Everyone else stepped back from the questions,” he said—but not Berger. He guessed he had spent hundreds of hours answering reporters’ calls since 9/11; that work was all unpaid, of course.

  But if annoyance was his first reaction to the assignment in the archives, his second was fear. And that, too, was typical of Sandy Berger. Beneath his gruff amiability, there was deep insecurity that, even he admitted, bordered on paranoia.

  Was there something in the White House documents that might embarrass Berger? Was there some e-mail that would give his enemies a chance to argue that Berger and his NSC staff had left the nation vulnerable to attack by al-Qaeda? If he found embarrassing documents in the files, what would he do?

  Was this the day he first considered smuggling classified documents out of the archives—in his pockets, in his socks—to try to protect himself?

  Berger entered the lobby of the archives, passed through the magne-tometer, and was ushered into the comfortable private office of Nancy Kegan Smith, a senior archivist responsible for White House documents. Berger carried his cell phone and a leather portfolio that had a notepad inside. His use of Smith’s office to review the documents was a violation of several government rules on the handling of classified documents. He should have been placed in a secure reading room, where he might have been monitored by a guard or a surveillance camera. He should have been forced to leave his cell phone behind. But the archives had long made exceptions for former senior officials like Berger. He might be out of government now, but the archives staff knew that in Washington’s revolving door, Berger was likely to be back in power in a future Democrat administration—Hillary Clinton’s secretary of state, some thought—and able to make trouble for the archives and its budget requests. Keep him comfortable. Keep him happy.

  Berger took a seat next to a coffee table in Smith’s office. For his first day of the review, five boxes had been placed on a metal cart that was wheeled up next to him. The boxes contained documents taken from the “W” library; the 153 boxes that made up the “W” library held some of Clinton’s most secret White House intelligence files. The archives staff said Berger made a special request to see one of the boxes, W-049, that contained Richard A. Clarke’s personal office files. Clarke had been the NSC’s counterterrorism director since early in the Clinton presidency—a job he continued to hold in the Bush administration. Berger knew that Clarke’s files would be the definitive record of how the Clinton White House had dealt with the al-Qaeda threat.

  Whatever the headaches of spending so much time in the archives, friends thought that Berger should have taken comfort from the assignment. He was being reunited with paperwork that, they believed, showed that Berger had mostly done his job at the White House when it came to al-Qaeda. Certainly he had a lot less explaining to do than others. During the Clinton presidency, Berger had been as obsessed with bin Laden and the terrorist network as anyone in the administration. As obsessed as Clarke, the White House’s “Chicken Little” on al-Qaeda. As obsessed as George Tenet, the director of central intelligence, who liked to say that his “hair was on fire” when it came to bin Laden.

  It had been Berger who helped convince Clinton in the mid-1990s, at a time when bin Laden and his terrorist training camps barely registered with the Washington press corps and not at all with the public, of the danger posed by al-Qaeda. It was Berger who requested that the CIA prepare a daily report for the White House with all of the agency’s overnight intelligence on bin Laden. It was Berger who made Clarke a member of the White House Principals Committee when it met to discuss terrorist threats, allowing an otherwise middle-ranking NSC bureaucrat to treat Tenet and Secretary of State Madeleine Albright as equals (which the empire-building Clarke was pleased to do). Berger had worked through Christmas Day 1999 and the following New Year’s Eve, waiting to respond to the al-Qaeda attack that had been predicted for the millennium.

  At 3:00 a.m. on January 1, 2000, Berger called Clarke. “Can I breathe now?” he asked. Clarke believed the fact that there was no attack probably had something to do with Berger’s hard work.

  “Sandy got it,” Tenet would say of Berger, his sometime friend, sometime adversary, on the question of al-Qaeda. It occurred to more than a few people at Tenet’s CIA that the world would be different if Berger had still been national security adviser in the spring and summer of 2001—and not Condoleezza Rice, Berger’s successor, who had seemed so astonishingly incurious about the agency’s drumbeat of warnings in the months before 9/11.

  But Berger was not a man to take comfort from the facts. Facts could be spun, he knew; they always were. He had always been a worrier. Friends said it was a trait that dated from childhood; his father died suddenly when Berger was only eight, leaving his widowed mother to struggle to run the family’s small department store in upstate New York. In Bill Clinton’s frenetic White House, Berger’s worrying became obsessive; he had become a catastrophizer.

  Even by the standards of Washington workaholics, Berger was exceptional. His fifteen-hour workdays at the NSC alarmed his staff. They worried that his perennial weight problems mixed with exhaustion would one day end up with him clutching his chest in a heart attack; Berger hid his paunch beneath well-tailored, dark business suits. He seemed to think that if he went home, if he was away from the White House even for a few hours, something would go terribly wrong, and he would be left to take the blame. Reputations could be destroyed in a single news cycle. He had seen it again and again.

  Investigators believed Berger had wanted to review box W-049 for a special reason, although he certainly did share that reason with Nancy Smith and the other archivists. He wanted to find a copy of a highly classified fifteen-page report that he had asked Clarke to prepare in early 2000; it reviewed what had gone right and wrong in the government’s efforts to respond to millennium threats. It was clear that major attacks by al-Qaeda and its sympathizers had been thwarted in December 1999, including the bombing of Los Angeles International Airport. The Algerian-born terrorist who intended to carry out the bombing, Ahmed Ressam, was arrested by an alert customs agent as he tried to cross the border from Canada.

  Berger’s assignment to Clarke to write the “after-action report,” which included a list of twenty-nine recommendations for overhauling government antiterrorism programs, might have been seen as one more bit of evidence of Berger’s admirable focus on the threat.

  But in his paranoia, Berger could see that the report might be read differently—would be read differently—if it became public. Certainly it would be read differently at the Bush White House and among congressional Republicans eager to find a Democratic scapegoat for 9/11. Since several of Clarke’s recommendations had not been acted on before Clinton left office, Berger had reason to fear it would be seized upon as proof that he had not done all he could to prevent a terrorist attack. All of his hard work at the White House, all of his obsession with bin Laden, would be beside the point.

  Berger’s first day at the archives ended in frustration. He feared he would have to come back. He had seen only a small fraction of the documents in the files. He had not found a copy of Clarke’s 2000 after-action report. Eight years of e-mails and paperwork! How could he possibly get through it all, even if he
devoted several more days to the task? It was doubly frustrating because the archives’ rules required Berger to leave behind the pages of handwritten notes he had taken that day. Since the notes were based on classified documents, they, too, were classified.

  It was during the second and third visits that, Berger later confessed, he decided to begin to break the law.

  His second visit, on July 18, 2003, came more than a year after his first. He had returned to the archives to prepare himself to answer questions from the newly created independent commission—the 9/11 commission, as it was being called—and to review the NSC files before they were turned over to the commission’s staff. The special congressional 9/11 committee had been blocked from seeing NSC files, on separation-of-powers grounds. But the White House had reluctantly agreed to make them available to the 9/11 commission.

  During this visit, Berger decided that whatever the archives’ rules, he would take his notes with him. It seemed crazy to return to his office empty-handed, as if he could have otherwise remembered what was in the thousands of pages of documents he had reviewed. Removing the notes seemed innocent enough. It wasn’t as if he were stealing the documents themselves, he argued to himself. And most of the documents were from his own files, so this was secret information he had already seen.

  He needed to create a distraction and asked Smith, who sat at her desk working on her computer, if he could have a few minutes of privacy to make a phone call. His secretary at his newly opened consulting firm had called him about six times that day with messages from clients. He needed to call them back. He still had a business to run. Smith agreed, leaving Berger alone in her office.

  He moved quickly. He ripped off the top fifteen pages of his handwritten notes from the pad, folded them into thirds, and placed them in one of the inner pockets of his jacket. He left two other pages behind in hopes that would throw the archivist off the trail. He hated to leave any notes behind, but he was pleased to have something he could review in his office. Some notes were better than none, he thought.

  It was on his third visit, on September 2, 2003, that Berger began to steal the documents themselves. He had finally found a copy of Clarke’s 2000 after-action report; it had been faxed to the archives a few weeks earlier from Clinton’s presidential library in Little Rock, Arkansas.