by Philip Shenon
New York Times
Tuesday, Feb 10, 2004
WASHINGTON, Feb. 9 — Members of the independent commission investigating the Sept. 11 terrorist attacks warned the White House on Monday that it could face a politically damaging subpoena this week if it refused to turn over information from the highly classified Oval Office intelligence reports given to President Bush before 9/11.
The panel’s chairman, Thomas H. Kean, a Republican and the former governor of New Jersey, said through a spokesman that he was hopeful an agreement would be worked out before the commission’s next meeting, on Tuesday. Commission officials said that negotiations continued throughout the day on Monday and into the evening with the office of Alberto R. Gonzales, the White House counsel.
But other members of the commission said that without an immediate resolution, they would call for a vote on Tuesday on issuing a subpoena to the White House for access to information in the documents. The papers are known as the President’s Daily Brief, the intelligence summary prepared each morning for Mr. Bush by the Central Intelligence Agency.
Responding to earlier threats of a subpoena, the White House agreed last year to allow three members of the 10-member commission and the panel’s Republican staff director to review portions of the daily briefings from before the Sept. 11 attacks that referred to intelligence warnings about Al Qaeda and its plans for terrorist attacks.
The commission has described the briefings as vital since they would show whether the White House had warnings of a catastrophic terrorist attack. The White House has acknowledged that one briefing Mr. Bush saw in August 2001 referred to the possibility of a Qaeda strike with commercial airplanes.
In recent weeks, however, the White House has refused to give permission for the four members of the delegation to share their handwritten and computerized notes — which have been retained by the White House under the agreement — with the full commission. That has outraged Democrats and Republicans on the panel and prompted the renewed threat of a subpoena.
“I’m determined to resolve this with a subpoena vote,” said one of the Democrats, Timothy J. Roemer, a former congressman from Indiana. “We need to get access to the notes. There needs to be full information to all 10 commissioners. So far, the White House has vetoed that.”
Another Democrat on the panel, Richard Ben-Veniste, a former Watergate prosecutor, said he would be prepared to support the subpoena.
“This thing has dragged on for months,” Mr. Ben-Veniste said Monday, adding that he was not convinced by repeated statements from the White House that it intended to cooperate fully with the commission.
“Saying that they have cooperated just doesn’t get them over the finish line,” he said.
The delegation that has reviewed the briefing reports is made up of Mr. Kean; Lee H. Hamilton, another former Democratic congressman from Indiana and the commission’s vice chairman; Jamie S. Gorelick, deputy attorney general in the Clinton administration; and Philip D. Zelikow, the executive director.
The panel, known formally as the National Commission on Terrorist Attacks Upon the United States, was created by Congress over the initial objections of Mr. Bush.
It has made use of its subpoena authority three times: against the Defense Department, the Federal Aviation Administration and the City of New York. A subpoena to the White House could be politically damaging to Mr. Bush, because it would allow his Democratic opponents to suggest he was stonewalling the panel, and because it would raise the prospect of an extended election-year court fight between the commission and the White House.
A spokesman for the commission, Al Felzenberg, said that Mr. Kean was involved Monday in the negotiations and that there had been “some positive action.”
“It’s fair to say that the governor is hopeful that things are going to move in a good direction,” Mr. Felzenberg added, “that we will have access to everything we need.”
The subpoena threat comes a week after the White House reversed itself and agreed to support the commission’s request to Congress for an additional two months to complete its work, extending the deadline for a final report until July.
That is subject to approval by Congress, and spokesmen for the two crucial Senate authors of the bill creating the commission — John McCain, Republican of Arizona, and Joseph I. Lieberman, Democrat of Connecticut — said on Monday they were negotiating with the commission and victims’ families over how much extra time the commission should get.