Panel on 9/11 might subpoena White House for documents

Administration continues to withhold information

October 26, 2003|By NEW YORK TIMES NEWS SERVICE

MADISON, N.J. - The chairman of the federal commission investigating the Sept. 11 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 issue a subpoena for 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 he believed that 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.

"Any document that has to do with this investigation cannot be beyond our reach," Kean said Friday in his first explicit public warning to the White House that it risked a subpoena and a politically damaging courtroom showdown with the panel 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," Kean said in the interview in his offices here at Drew University, of which he is president. "That means that we will use every tool at our command to get hold of every document."

He said that although 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."

Although 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 the documents included the detailed daily intelligence reports that were provided to Bush in the weeks before Sept. 11. The reports are known as the Presidential Daily Briefing.

Kean suggested that he understood the concerns about the sensitivity of the White House 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."

Despite the threat of a subpoena and his warning of the possibility of a court battle over the documents, Kean said that he maintained a good relationship with Gonzales and others at the White House, and that he was hopeful 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 dealings with the White House.

Last year, the White House confirmed news reports that Bush received a written intelligence report in August 2001, the month before the attacks, that al-Qaida might try to hijack U.S. passenger planes.

A White House spokeswoman, Ashley Snee, said the White House believed that 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.

"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 2 million pages of documents," she said.

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 agency had withheld dozens of boxes of documents related to the Sept. 11 attacks.

The subpoena appeared to be a turning point for the commission and for Kean, a moderate Republican known for his independence. In a statement issued 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 FAA.

The commission, which has a membership 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 May, a deadline that commission members say might be impossible to meet because of the Bush administration's delays in turning over many documents.

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