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Does everyone recall that stunning day earlier this year when Thomas Kean, chairman of the National Commission on Terrorist Attacks Upon the United States, blew the lid off Sept. 11? How during that unforgettable public hearing, a supernaturally calm Kean intoned to stonewalling generals and CIA agents, “Have you no decency, sirs?” How President George W. Bush, physically crumpled by new revelations about the tragedy that struck on his watch, whispered, “Mistakes was made”? How former President Bill Clinton, confronted with the long list of catastrophic security lapses that weakened the nation during his tenure, desperately insisted to his disbelieving inquisitor, “It depends on what the definition of ‘catastrophe’ is”? You don’t remember? Of course not. It never happened. The Sept. 11 commission was established by statute in November 2002. It has 10 commissioners and some 65 staffers to write a report, due by law in May, to detail how the attacks occurred, to review the effectiveness of the government’s response, and to propose what can be done to prevent future attacks. So the commission has its hands full. And, to date, it has held six public hearings and issued two interim reports. It has filed a few subpoenas. It is reviewing millions of pages of documents and interviewing hundreds of people. But the pace seems far too sluggish for comfort. This commission has a great purpose — not merely to gather some technical expertise, but to provide a testament to the truth, for the public and for history. The danger is that people will come to think that it didn’t move heaven and earth to get to the bottom of Sept. 11. If that happens, Americans might condemn its report to the conspiratorial hell of failed investigations. ‘TIME IS SLIPPING BY’ The commission got off to a bumpy start: Its first chairman, Henry Kissinger, stepped down after just a few days. For months, the commission could not get full access to the final report of a joint congressional subcommittee that focused on the intelligence community and Sept. 11. Kean said in a press conference in July — seven months after he took over in December 2002 — that “it is clear that the administration underestimated the scale of the commission’s work and the full breadth of the support that was required,” and that the administration was not responding to document requests as quickly as he had hoped. (The commission reported even in September that “many documents have yet to be produced.”) As Kean, a former Republican governor of New Jersey, also said in July, “The task in front of us is monumental. And time is slipping by. Every day lost complicates our work.” The commission’s Democratic vice chairman, former Indiana congressman Lee Hamilton, said at the same press conference that “in some cases, the problem that we confront . . . [is] getting the staff resources to examine all of those documents that are coming to us.” Kean added that resources were “stretched.” The stretch marks are showing. In November, a year into the commission’s 18-month life span, it finally hammered out a deal with the White House for limited access to the president’s daily briefings on national security. (Four commission representatives will review them.) Also in November, four months after the commission made an initial request, it finally subpoenaed New York City for records concerning that city’s response to the attacks. (The three targets of subpoenas so far — New York, the Federal Aviation Administration, and the North American Aerospace Defense Command — are all now cooperating.) The commission plans to begin holding “factual hearings” in January; hearings focusing on the “9/11 plot” will come in April, just weeks before the deadline for the final report. The commission routinely allows government minders to sit in on interviews with key witnesses (a practice that Kean has criticized but not stopped). Kean has said that the commission may speak with Bush and Clinton, but that, “as far as subpoenaing the last two presidents, no, we’re not planning to do that.” Maybe it’s just me, but shouldn’t an investigation of the defining event of our time be a little more disruptive? Or, to put it another way, where’s Kenneth Starr when you really need him? GETTING THE FACTS According to Washington Post editorial writer Benjamin Wittes’ book, Starr: A Reassessment, “truth seem[ed] to loom larger even than justice” for the independent counsel. Starr told Wittes, “I do not really want to see people being sent off to jail. I want the facts, want the facts, want the facts.” Look at how Starr dealt with the obstacles. Got a key witness who won’t tell you what you want? Fine. Call her mother to testify under oath until the mother nearly collapses from the strain. Or what if the president is being less than forthcoming? No problem. Force him to testify — on video, so the whole nation can see him squirm. Then subpoena his Secret Service bodyguards. And his secretary. And whoever else looks mildly interesting. For good measure, pull a sample of his blood to compare to stains on his girlfriend’s dress. How’s that for a disruptive search for the truth? Of course, there are key differences between the two inquiries. The Sept. 11 commission is not prosecutorial. In fact, it’s not even in the executive branch; the law makes it part of the legislative branch. While Starr had the power to call grand juries, bring criminal charges, and negotiate plea bargains, the Sept. 11 panel is a truth commission that can only subpoena and take testimony under oath. And while the Clinton investigation lasted seven years and cost a reported $70 million, the Sept. 11 inquiry has a budget of $14 million (up from an initial $3 million) and is required to finish its report in 18 months. LOSS OF POWER Those structural differences might go part of the way to explaining the difference in vigor. Compare executive prosecutorial power with legislative fact-finding power. Prosecutors can threaten witnesses with grand jury subpoenas and sometimes the hammer of jail time. That’s very persuasive. Congressional commissions also have real powers. Indeed, Eleanor Hill, who recently served as staff director of the joint congressional inquiry into the terrorist attacks, says, “My own feeling is that the powers of Congress are broader than criminal prosecutors’, because relevance is the only limit.” But Hill, now a partner in the D.C. office of King & Spalding, adds about the Sept. 11 commission, “I’m not sure that they have all of the same powers” of a typical congressional committee. She’s right: The statute creating the commission does not give it the power to grant immunity to witnesses. Testimony under oath can only be taken by commission members at hearings, not by the staff in more flexible settings like depositions. And the commission can’t issue subpoenas on the word of a single person, as congressional committees can. There’s also the obvious limitations of time and money. While Hill says that 18 months is a “long period of time,” she also notes that “they have a huge mandate, and they got off to a slow start.” On top of researching and writing the report, Hill points out that the commission also needs to budget time and money to getting its work declassified. That might be tricky, since, as Vice Chairman Hamilton noted in September, “We have no power to declassify.” So the commission would be advised to use its last 60 days (the statute grants this extra time after the report is finished) to push hard to declassify every word possible. Too much secrecy would be disastrous. Critics will have a field day if the commission submits a full report to Congress and a severely stripped-down version to the public. THE TRUTH AT LAST? But even these limitations explain only so much about the Sept. 11 commission’s pace. Yes, its task is enormous. But that too is no excuse for not pressing hard. After all, there is a long history of government panels investigating major catastrophes. University of Baltimore law professor Charles Tiefer, who served as counsel to both the House and the Senate, notes, “Whenever you have a military disaster when the enemy kicks the U.S. down, you do one of these.” That string of congressional inquiries started in 1792, with the investigation of a failed military expedition against the Indians, and led perhaps most famously to the investigation of the surprise attack on Pearl Harbor. The latter demonstrates that even serious time limits can be surmounted: The Pearl Harbor inquiry began in 1945 and was finished in 1946. That said, historical precedents show the difficulty of uncovering the whole truth — or, at least, of convincing the public that one has done so. The Pearl Harbor investigation has left people wondering, even today, whether President Franklin Roosevelt had advance notice of the attack and let it occur to spur the nation toward war. Perhaps an even closer model for the Sept. 11 commission is another inquiry into an American tragedy, the Warren Commission, which looked into the assassination of President John Kennedy. The Warren Commission was also run by highly esteemed politicians, working without prosecutorial power, under a tight deadline. Last month, the nation paused for the 40th anniversary of Kennedy’s death. And despite the conclusion of the Warren Commission that Lee Harvey Oswald fired the three shots alone, 70 percent of Americans, according to an ABC News poll, still believe that there was a conspiracy to kill the president. That doesn’t make the people right. A Nov. 20 ABC special on the assassination (and other research) made a compelling case to back up the commission’s findings. But the skepticism lives — which means the Warren Commission failed to satisfy its ultimate audience, the American public. The Sept. 11 commission might want to make a New Year’s resolution not to become yet another coverup punch line to a national tragedy. Evan P. Schultz is associate opinion editor at Legal Times. His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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