Did Cheney break the law on 9/11?

By Mark Follman
Published October 5, 2004 9:07PM (EDT)

For months the Bush administration fiercely resisted having the president and vice president testify before the 9/11 Commission. It was only under intense public pressure that the two leaders eventually agreed to do so -- and then only under the conditions that they would testify jointly, would not speak to the commission under oath, and that there would be no written material or transcript allowed from the session.

It was clearly the behavior of leaders who aimed to keep an airtight grip on the narrative of their minute-by-minute actions on that fateful day. A new report in Vanity Fair magazine reveals why Bush and Cheney may have wanted to remain in firm control of their story.

In its November issue (obtained by War Room), the magazine reports that after Bush and Cheney's all but hermetically sealed session with the 9/11 Commission, some of the bipartisan investigators remained highly skeptical of the duo's testimony that Cheney cleared his order with the president on 9/11 to have U.S. fighter jets shoot down hijacked civilian aircraft.

"Some members of the 9/11 commission and its staff are convinced that Cheney acted on his own -- before receiving the president's approval -- which would mean he broke the chain of command and, by exceeding his constitutional powers, acted unlawfully," the story says. "The final report of the 9/11 commission stops just short of saying that the conversation with the president before Cheney gave the order never happened ... the report goes as far as to say 'there is no documentary evidence for this call ...' Only after Cheney twice issued a shootdown order is there clear evidence that he called Bush and received authorization to order fighter jets to shoot down hijacked aircraft."

As one commission member told Vanity Fair on condition of anonymity, the panel was concerned about how to handle the politically explosive issue: "We purposely did not reach a conclusion. We just laid it out. Some people may read what we wrote and conclude the authorization call had not preceded the [shootdown] order. People can come to their own conclusion. We didn't want to be in the position of saying the president and the vice president were lying to us."

Bob Kerrey, the former Democratic senator from Nebraska and an outspoken member of the 9/11 commission, said: "We don't see that it happened the way he [Cheney] recalled it."

And one commissioner told the magazine (also anonymously) that the panel's members simply did not buy Cheney's account. "We tried to work out language that allows the reader to get that," he said, "without saying the vice president did not tell the truth."

Indeed, as the article further details, the bipartisan panel was forced to perform some linguistic acrobatics on the issue, after the White House applied intense pressure:

"A series of staff statements issued by the commission, as well as the final report, were first sent to the White House for review. The draft of staff statement No. 17, dealing with the shootdown, brought an angry letter from [White House counsel Alberto] Gonzales, objecting to the wording. Cheney also telephoned both [9/11 Commission leaders Thomas] Kean and [Lee] Hamilton, complaining vociferously about the language.

"Philip Zelikow, the commission's executive director, confirmed that changes were made, and approved by the commissioners, in both the staff statement and the final report after the White House letter was received and Cheney made his phone calls. But Zelikow said 'our fundamental judgment' had not changed. 'Which is the President and Vice President have offered an account. Their account could be true but we can't find corroborating documentary evidence to prove conclusively that it is true.'"

Such corroborating evidence of an earlier call to the president, the article adds, could not be found in two different sets of personal notes kept by Lynne Cheney and Lewis "Scooter" Libby -- both of whom accompanied the vice president in the secure bunker under the White House that morning -- nor in seven different phone logs kept by various White House operations, from the Secret Service to the White House Military Office.

Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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