The national 9/11 commission's decision Wednesday to issue subpoenas against the Federal Aviation Administration, after it failed to hand over key investigative documents, may signal a new get-tough phase for the inquiry, as the commission tries to unravel the failures that made possible the Sept. 11 attacks that killed nearly 3,000.
"I hope this is a turning point," says Bill Harvey, whose wife was killed on Sept. 11. He and other family advocates have been critical of the commission for what they say has been its lackluster investigation, and its failure to aggressively go after sensitive government documents, including some key White House documents that still have not been turned over.
Wednesday, after months of pleading with agencies to voluntarily hand over all relevant information, the FAA became the commission's first public punching bag. The agency plays a starring role in the panel's investigation into what went wrong in the skies above New York City and Washington, D.C., on the morning of Sept. 11, and how four airplanes were hijacked. Specifically, the panel wants to know when the FAA contacted the North American Aerospace Defense Command, or NORAD, whose jet fighters were scrambled too late to reach any of the hijacked planes.
The subpoena was issued after commissioners discovered that key FAA information -- tapes, statements, interview reports and other data, considered to be "highly material" to the inquiry -- were missing, despite FAA assurances last month that it had turned over all requested information. An FAA spokesman said the agency is cooperating, and stressed, "No documents were ever knowingly withheld from the commission."
Complaining that the FAA's delay had "significantly impeded" their progress, the commissioners for the first time suggested the panel might not be able to complete its investigation by its May 2004 deadline. That raises the possibility that the sensitive inquiry, whose creation was stridently opposed by the Bush White House, could drag on through next year's election cycle.
During 2002 negotiations over the creation of the commission, the White House wanted to give the inquiry just 12 months to complete its monumental task, which encompasses a wide array of issues, including airport security, intelligence failures, communications breakdowns and immigration policies. In the end, the panel was given 18 months, with its final report due next May 27. But if the bipartisan panel of commissioners feels double-crossed by agencies withholding documents, they could ask for a major extension, putting the administration in the uncomfortable position of denying the request.
"If the deadline needs to be extended, there's room in the mandate to issue an interim report next May and then ask for more time and more money," says Kristen Breitweiser, whose husband died in the Sept. 11 attacks. "We need a complete investigation to know what went wrong and make sure it never happens again."
Wednesday's tough talk and subpoena may have been an attempt by the commission's chairman, former New Jersey Gov. Thomas Kean, a Republican, and its vice chair, former Rep. Lee Hamilton, a Democrat, to counter recent criticism that the panel was suffering from its go-along, get-along approach. Kean and Hamilton, who are admired for their ability to work in bipartisan fashion, had expressed reservations about issuing subpoenas because of the legal delay they might create.
But it appears the FAA's document oversights were so glaring, and the drumbeat of criticism becoming so loud, that the commission felt compelled to act. It was also sending a message to other agencies. "This disturbing development at one agency has led the commission to reexamine its general policy of relying on document requests rather than subpoenas," the panel said in a statement.
Appearing on C-SPAN Wednesday morning before the FAA subpoena was announced, 9/11 commissioner Max Cleland, the former Democratic senator from Georgia, was clearly annoyed that the White House had failed to turn over sensitive documents and suggested the administration may soon be legally compelled to do so.
Weeks ago Kean and Hamilton laid down an Oct. 6 deadline for all White House documents to be delivered, but they were not, and the commissioners agreed to continue negotiating for them. The commission won't confirm, but it's assumed one of the still-missing documents is the crucial Aug. 6, 2001, daily presidential briefing that Bush received while vacationing in Crawford, Texas, which, according to published accounts, warned of Osama bin Laden's intention to hijack planes in the United States. The White House has since said the warnings were vague in nature.
Addressing the issue last Friday, the panel released a statement saying, "The White House has agreed to brief all Commissioners on another set of highly sensitive documents."
That sent up red flags among some family members, who insist the commissioners need unfiltered access to all key documents, not to be briefed on them. "It's worrisome," says Breitweiser. "Who would brief them? Who would summarize the documents, and what would be left out?"
As for the FAA and NORAD, their timid reaction on the morning of Sept. 11, has long baffled experts who have reviewed the tragic timeline in detail. They wonder, for instance, why it took the FAA 29 minutes, from 8:55 a.m. to 9:24 a.m. to notify NORAD that American Airlines Flight 77 bound for Los Angeles was drastically off course and heading for Washington, D.C. That, after two hijacked planes had already crashed into the World Trade Center.
Even more mysterious was fact that NORAD fighter jets were not scrambled from the closest Air Force base. Instead, the jets that were eventually scrambled in a vain attempt to intercept Flight 77 came from Langley Air Force Base in Hampton, Va., rather than Andrews Air Force Base right outside D.C.
During a public 9/11 commission hearing last spring, representatives from NORAD and the FAA disagreed over who told what to whom and when. Their testimony was often so puzzling, and contradictory, that commission spokesman Al Felzenberg said those officials may be forced to come back to testify again, this time under oath, something no inquiry witnesses have yet had to do.