Zelikow Failed to Mention Possible Criminal Referral of False Statements by NORAD and FAA in Memo to 9/11 Commission Heads


Kevin Fenton

A document recently discovered in the National Archives shows that, in a memo to the 9/11 Commission’s chairman and vice-chairman on false statements made by NORAD and FAA officials about the failure of US air defenses, the commission’s Executive Director Philip Zelikow failed to mention the possibility of a criminal referral. This supports allegations that Zelikow “buried” the option of a criminal referral by the commission to the Justice Department for a perjury investigation. The document was found at the National Archives by History Commons contributor paxvector and posted to the History Commons site at Scribd.

Initially, the FAA and NORAD claimed that the FAA had notified NORAD of the third hijacked flight 13 minutes before it hit the Pentagon and that it had also notified NORAD of the fourth plane, which NORAD then allegedly tracked until it crashed in Pennsylvania. After working for a year and analyzing documents and audio recordings, the commission formed the opinion that the FAA had given NORAD much less notice and that the fourth plane had never been tracked. The staff also thought that the FAA and NORAD officials who had made the false statements must have known they were false when they made them, and wanted the issue to be referred to the proper authorities for investigation.

The staff then spent months discussing what to do and which body the false statements should be referred to. One option was a referral to the Justice Department for a criminal investigation, as the statements had been made under oath and the officials could be prosecuted for perjury. The other option would be a referral to the FAA and Pentagon inspectors general. As the inspectors general themselves could not bring criminal charges, a referral to them would cause less discomfit to the officials who made the false statements.

At its last meeting, the commission decided to refer to matters to the inspectors general. However, the two inspector general reports blamed the errors on innocent mistakes and poor logkeeping, and no officials were seriously punished for the false statements.

In an interview with Philip Shenon, who wrote a book about the commission’s workings, staffer John Azzarello accused Zelikow of frustrating the criminal referral and not acting on the staff’s initial memo urging such referral for several months. “He just buried that memo,” said Azzarello.

Zelikow denied the allegations and in correspondence with Shenon repeatedly emphasized that he had not maneuvered against a criminal referral: “Three basic options emerged: criminal referral to DOJ, referral to the IGs (with a possible criminal referral as a follow-on to that), or proceed with our investigation without further action… Once I had worked through the evidence and felt I understood it, I concluded that the evidence was serious enough that we needed to make a referral, either criminal or to the IGs… Strongly tempted by the possible need for a criminal referral, I worked with Dan [Marcus, the commission’s counsel,] and others to play out how that would work and the sequence that would follow.”

Zelikow also wrote that he had mentioned the possibility of a criminal referral at a meeting of the full commission, although by this time he had already decided to recommend referral to the inspectors general, not the Justice Department.

The newly-found document, entitled “How Should the Commission Handle Evidence of Possible False Statements of US Officials” and dated June 6, 2004, casts doubt on Zelikow’s version and offers some support to Azzarello. If Zelikow really was “strongly tempted” by a criminal referral, why is this possibility not mentioned a single time in four-page memo to the commission’s chairman Tom Kean and Vice Chairman Lee Hamilton on what action the commission should take?

Although the memo was written several weeks before the commission’s final decision on the matter, Zelikow does not even offer criminal referral as an option. For example, in the second question he simply asks whether the commission should contact the Pentagon inspector general now or later. A person who was not knowledgeable of the issue and read the memo would not even know that the possibility of a criminal referral existed.

Although Zelikow is not known to have had friends at the FAA, according to Shenon he was a close friend of Under Secretary of Defense for Intelligence Stephen Cambone. Marcus even later said that Zelikow would “flaunt” his closeness to Cambone. Staffers also accused Zelikow of favoring the Pentagon in a dispute over whether a subpoena would be issued on the Defense Department.

It is unclear what other communications exist between Zelikow and the commissioners about the issue. Presumably, Zelikow did mention the possibility of a criminal referral in some documentation which has yet to be found. For example, the memo to Kean and Hamilton was found with a withdrawal notice for three memos totalling 50 pages about the false statements and they may contain discussion of the criminal referral.

Nevertheless, the way it looks is that Zelikow decided to recommend a referral to the inspectors general instead of a criminal referral and then frontloaded the documentation for the commissioners with his preferred option, instead of offering them an unbiased overview of the possibilities upfront. This again supports allegations that Zelikow was a uniquely powerful person on the commission and regulated the information flow to the commissioners to get them to rubber-stamp actions he had already decided on.

Zelikow worked on counterterrorism issues during the Bush transition under National Security Advisor Condoleezza Rice. When this work and all his links to Rice, with whom he co-authored a book in the 1990s, came to light in the middle of the commission’s work, he was recused from part of the investigation.