minutes of 9/11 commission meeting on january 5, 2004

8/14/2019 Minutes of 9/11 Commission Meeting on January 5, 2004

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N A T I O N A LC O M M I S S I O NO N

T E R R O R I S TA T T A C K S O N T H E U N I T E D S T A T E S

Minutes of the January 5, 2004 Meeting

The Chair called the Commission to order at 9:20 a.m. on January 5, 2004. The Chair,Vice Chair, and Commissioners Ben-Veniste, Fielding, Gorelick, Gorton, Kerrey,Lehman, and Roemer were in attendance.

Minutes. The Chair asked for approval of the minutes for the December 8, 2003meeting. Commissioner Roemer asked that his three objections to the White Houseguidelines be clarified for the record. Commissioner Fielding asked that the minutesreflect his departure of the meeting prior to the discussion of interview guidelines.Commissioner Gorelick submitted additional revisions to the Deputy Director. Uponagreement with these changes, the minutes were approved.

Welcome. The Chair welcomed Senator Kerrey to the Commission.

Access to Detainees. The Chair reported that he, the Vice Chair, and senior staff hadmet with DCI Tenet on December 23 to discuss several outstanding matters, including theCommission's request for direct access to detainees. The Chair reported that the DCIwas firmly opposed to direct interrogation, but would consider giving the Commissioneverything short of physical access. The DCI proposed that the Commission submitquestions and have the Agency's interrogators seek answers on the Commission's behalf.The DCFs primary concerns were that of compromising operational security anddisrupting ongoing investigations.

Team Leader Dieter Snell distributed a memorandum outlining Team 1 A's argument fordirect access to seven key conspirators. He stated that, while there is a considerableamount of circumstantial evidence assembled at the FBI, there is no substitute for directaccess to those involved in the 9/11 plot. He considered the DCFs "new face" objectionrather weak, contending that the Agency simply wants to hold the detainees very closely.

Commissioner Kerrey stated that the Commission must interview the conspirators andnot rely on secondary information from Agency interrogators. He suggested that theCommission employ different language when discussing the matter; these individuals aremasterminds and conspirators, no t simply detainees. Commissioner Kerrey added that theCommission should have its own Arabic interpreter present at any interrogation.

Commissioner Ben-Veniste asked about the history of the Commission's efforts to arriveat a solution. Snell explained that the Commission submitted an extensive list of follow-up questions on October 14,2003, and a second memo on the interrogation process onOctober 16, 2003. The Executive Director noted that the Agency's partial reply onNovember 7 conceded that experts in certain areas, including FBI personnel, were notconducting the interrogations. Snell added that the Agency's interrogation reports areproduced about six weeks after the actual interrogation.

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Com missioner Roemer asked if the Com mission had access to the interrogators.Snellreplied that, heretofore,the Commissionhad been declined access.The Deputy ExecutiveDirector noted thatthe DCI did mention the possibilityof direct access to analysts andinterrogators at the December 23 meeting. Commissioner Roemer askedif theCommissionhad received responsesto the questions in the October 14 memo. Snellresponded that theyhad some answers,bu t often without the precision necessarytodevelop a definitive account.

Commissioner Gorton askedif a compromise involving one-wayglass would beacceptable. Snell replied thatit would not,bu t later conceded that thiswas a conceivablefall-back option.

Armed with a list of unanswered plot-related questions, Comm issioner Gorelick observedthat the Commission's most powerful argument may be that the Agency is not doing itsjob. She added thatit would be very problematicfor the DCI ifthis argument weretobecome public. Commissioner Lehm an stated that he did not understand why theCommission was taking sucha soft approach withthe DCI. Commissioner Gorelick

responded thatthe difference with this caseas opposedto FAA, NO RAD,and NewYork C ityw as thatthe Agency could claim thatthe Commission would underminenational security. She underscored the tension between the Commission's mandate andthe operational needs of the USG.

Team Leader Doug MacEachin concurred with Commissioner Gorelick. He stated hisbelief that the Commission needs to first demonstrate thatthe other optionssubmittingquestions, work ing with interrogatorsin real-time, etc.are no t sufficient.

The General Counsel stated that the Com mission's statuteisn't well designed for issuingsubpoenas to detained conspirators. Commissioner Ben-Veniste concurred and suggested

that the Commission compelthe DCI's testimony on the matter at the upcoming hearing.Commissioner Roemer suggesteda variant of this approach: issuinga tough letterto theDCI, following-upwith a phone call, and,if necessary, makingthe letter public.Com missioner L ehman agreed that the Com mission must establish a clear record ofdemandingaccess to these conspirators. Com missioner Ben-Ven iste added that theCommission must also be clear that it is out of time.

The Vice C hair asked if the Comm ission's pursuit of this request wou ld impact otheraspects o f its relationship w ith the DCI. The General Counsel replied that it would no t.

The Vice Chair stated that he was willing to go back to the DCI and revisit the question.

He added that Tenet knewthe request was coming on December23 and that he was veryfirm in his response. H e underscored that the Comm ission shou ld not expect the D CI toreverse his position, and that it must kno w what its next steps would be. The Chair andVice C hair advised thatany letter to the DCI bedrafted in a manner that carefullyaddresses classification concernsso as to not prevent its release to the public.

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Com missioner Kerrey asked if the congressional committees wou ld support theComm ission's request. H e noted that the Comm ission may invite trouble if it presents theissue in national security terms,and suggested thatit frame debate in terms of theCom mission's mandate. Comm issioner Gorton observed that, without direct access to theconspirators, the Com mission will not be able to answer questions at the heart of itsmandate.

The Chair stated that the Comm ission had reached a consensus: The subpoena routewould no t work, and the Commission should writea letter. He requested thatallCommissioners see a draft before it is sent. The Vice Chair added thatthe Commissionneeds to state theDCI's argumen t precisely so as to not argue against a straw-man . Hesuggested thatthe letter thank the DCI forrecognizing the importance of theCommission,but state thathis proposalis not sufficient. In order to fulfill its mandate,the Com mission m ust make a credible assessment o f the key conspirators.

Com missioner Kerrey movedto send a letter to the DC Irequesting d irect interrogationofseven 9/11 conspirators. Commissioner Lehmanseconded the motion. The motion carriedon a voice vote.

The Vice Chair and Commission Gorelicksuggested that the Commission seekreinforcement from third parties, particularly congressional leaders.

Declassification of Final Report. The Commission brieflydiscussed the process ofdeclassifying the final report. The Chair stated that the Com mission was really going to"push the envelope." The Vice C hair reported that boththe White House CounselandDCI have suggested a "rolling" declassification process. The Executive Director statedthat the staff is establishing a process for getting this to w ork, including setting-up high-level review teamsand using detailed sourcing.He characterized the process as one of

pre-publication review, adding that boththe Commission and Administration learnedlessons from the Joint In quiry declassification experience.

FBI Briefing. John Pistole, Assistant Directorof the FBI's Counterterrorism Division,and Art C umm ings, Section C hief of the International Terrorism Operations Section I,conducted a SEC RET-level presentation that illustrated how counterterrorisminvestigations now w ork in the United States. MaureenBaginski, Executive AssistantDirector of the FBI'sOffice of Intelligence, delivered a brief presentation on progressmade in establishing thatoffice and the FBI's overall approachto its intelligence mission.

Global Agreement with White House. Commissioner Thompson joinedthe discussion

via telephone.

The Chair stated that the purpose of the g lobal agreement was to reach a settlement on alloutstanding access issues with the White House and liberate the Comm ission fromprotracted process discussions. Com missioner Fielding took the lead in negotiating theagreement, work ing with the Chair, Vice Chair, andstaff. Neither side believed that the

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agreement was perfect. Staff provided the Com mission with listof questions and answersregarding the agreement.

Com missioner K errey stated that he had concerns about each of thefour parts of theagreement. He noted that in the first section, the Com mission app ears to surrender itsrights to request additional documents. C ommissioner B en-Veniste concurred and askedif the sentence could be removed . The Execu tive Director explained that the purpose ofthe sentence was to prevent blanket document requests through the"front door"; theunderstand ing is that the Com mission w ould be able to request specific documents goingforward.

Com missioner F ielding noted that the first section w as the hardest to negotiate. Hecautioned thatif the Commission seeksto revise any section of the agreement, it mayopen up the entire negotiation. Commissioner Lehman commended CommissionerFielding for his work on the agreement. He advised against reopeningthe negotiationandrecommended that the Commission accept the settlement.

Commissioner Roemer stated that he was strongly opposed to the agreement. Regardingthe second sectionon meetings withEO F officials, he inquired as to why theCom mission w ould haveaccess to only a "limited" number. CommissionerGorelickstated that, practically, this w illnot be a significant problemas there are not somanypeople tha t the C omm ission intends to interview, but she did not understand w hy theCommission had to so commit in writing. She added thatthis agreement would not besustainable in the court of public op inion.

Regarding the third section, Commission Ben-Veniste argued that there was precedent forEO F officials testifying under oath. Commissioner Gorelick stated that, wh iletheCommissionmay decide on its own not to do so, shefelt unco mfo rtable with givingup

the Commission's ability to request the oath. The Commission should be able to seektestimony under oath, even if the witnessrefuses to do so. Commissioner Ben-Venisteconcurred.

Commissioner Roemer askedwhy Bush administrationofficials will not testify underoath when, for example, Dick Clarkehad already doneso. The Execu tive Director repliedthat different standards apply toformer officials. Commissioner Roemer asked if theCommission would ask D r. Rice totestify under oath and wondered when the interviewwould be scheduled. The Executive D irector stated that the interview would be scheduledfor late January or early February. Com missioner Gorelick advised that the Commissioninterview D r. Rice and request that shetestify under oath if there appears to be any

factual conflict.

Com missioner K errey stated that this agreement w ill end confrontation with the WhiteHouse; he felt comfortable with the first two sections, but not the second two.Com missioner G orton stated that thesections on documents andforeign leaders arereasonable. He recommended that the Commission accept those sections, and deal withinterviewsand hearings separately.

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The Vice Chair thanked Commissioner Fielding for his hard work. He acknowledged thatthere is ambiguous language in the agreement, but stated that the Commission still getssomething significantaccess tomore documents and key people. He outlined fouroptions:

1. Accept the agreement.2. Reject the agreement.3. Go back to the White House and seek changes.4. Operate under guiding principles set forth in the agreement without submitting to

them in writing.

The Vice Chair noted that the Commission was running against the clock. TheCommission will not be judged by the number of hearings or technical points with theWhite House. It will be judged by the quality of the final report. His impression was thatthe agreement was a package and inseparable. Commissioner Fielding explained that theagreement was written down because, after the PDB negotiation, they thought it would be

better to get things down on paper. He added that his impression, given the events of thelast week, was that the agreement was now one package.

Commissioner Ben-Veniste stated that the Vice Chair's fourth option makes the mostsense. He suggested that the Commission agree to the sections on documents and foreignleaders. Commissioner Lehman stated that the agreement was a good compromise, andthat it did not preclude the Commission from getting what it needs. He added that theEOP's concerns aren't fictitious; they have to be able to protect candid advice.

Commissioner Roemer moved to vote on the global agreement in its entirety.Commission Lehman seconded the motion. The Chair stated that he did not want an up or

down vote. The Vice Chair added that he wanted to proceed on a consensus basis.Commissioner Gorton agreed, stating that the Commission should consider each sectionindividually. Commissioner Ben-Veniste concurred.

The Executive Director argued for the severability of the public hearing section; since thematter is not crucial to decide on either side right now, the Commission should take it offthe table. Commissioner Fielding stated that he did not believe the agreement wasseverable from the White House point of view. He stated that he is committed to votingfor the agreement as negotiated. He reiterated that the agreement provides theCommission with all of the access it needs.

Commissioner Kerrey moved to accept the global agreement with two stipulations:

1. Agree with the EO F meetings section, bu t take exception to the administration ofoaths during a factual dispute in real time

2. Defer on public hearings section without prejudice

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Comm issioner Gorton seconded the motion. Comm issioner Roemer w ithdrew his motionfor a vote on the original agreement, and stated his opposition to the K errey motionbecause it gives up the C ommission's right to interviewEO F witnesses under oath.

The motion carried by voice vote. The Comm ission reiterated its unan imou s thanks toCommissioner Fielding.

Meetings with the Presidents and Vice P residents. The Chair noted that, until thatpoint, the Commission had notformally discussed the issue of interviews with P residentsBush and Clinton and Vice Presidents Cheneyand Gore. Accordingly, thiswas the publicposition that he and the Vice Chair had taken. The Com mission reached a consensus thatall four meetings should be sought. The Vice Chair stated that their press guidance wou ldnow change; the matter has been discussed and the Commission is seeking the meetingswith each of them. Com missioner Gorelick noted that these m eetings will bedifficult toschedule simplyfrom a logistical point of view, and so the Comm ission needs toschedule them now. Commissioner Roemer urged thatthe Commission send lettersimmed iately. C omm issioner Fielding advised that the Com mission discuss the matterwith the Wh ite House as a courtesybefore any letters are sent.

Extension of Statutory Deadline. The Chair reported that the White House does notsupport an extension.

Com missioner Kerrey stated his belief that the Comm ission will be"DO A" by theelection. Commission Lehman disagreed, adding that the Commission'srecommendations w ill find their way into both partyplatforms.The Chair noted that theCommissionhas set funds aside for a roll-out duringthe final weeks.

Com missioner Roemer stated that thereare three compelling reasonsfor an extension.First, presidential politics will poison theCommission's work, and it would be better toget outside the election season. Second,staff reports to him that the Commission wouldhave a great, rather than good, report with more time. Third, the Comm ission should beon the record as having asked for an extension.

Com missioner Gorelick supported seeking additional time. S he observedthat every timethe Vice Chair responds to a question, he adds the caveat that the clock is ticking. Shebelieves the Com mission will do a good report and has a greatstaff, but it will be in abetter position having askedfor more time.

CommissionerBen-V eniste noted that his position was apolitical. Given wha t the

Commissionis expected to do, hebelieves thatit cannot be done in accordance w iththecurrent deadlines. He recounted one teamleader's description of a recentstaff meeting atwhich there was a "fire sale" on team tasks, including hearings, monograph deadlines,and monographs themselves. Comm issioner Ben-Veniste stated that the C omm issionneeds those hearings,as well as the opportunityto follow-up and work on conclusionsand recomm endations. The Vice Chair sought clarification: did he suggest theCommission ask for additional timeor take additional time? Com missioner Ben-V eniste

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replied thatthe Comm ission should seek bothaskingfor two months,but settling forsix months. Tightly calibrated deadlines w ere already slipping, which,to CommissionerBen-Veniste, indicated the need to request add itional time.

The Vice Chair stated thathe and the Chair had asked the Executive D irectorto act andplan on the basis of the law . The Chair stated that until an extension is certain, thestaffcannot plan otherwise. The Executive Director agreed that the Com mission needed a planto comply the law. Thestaff is currently planning for a June 23 releaseslipping onemonth from the statute. He noted further that, by the time the Commission ends, it mustonly have a report, which requires sign ificant timefor Commissionersto work on thereport's substance. Although not allstaff could remain on board un til July, a critical masscould remain.

The Vice Chair noted that Congress would be back in session on January20; if theOmnibus billfails, the Com mission w ould have a chance with som ething in the CR.Commissioner Gorton expressed skepticism over the Commission's legislative options inJanuary. The Vice Chair added that the Commission has two options:informallyextendwithin the parameters of the statute or seek a new law.

Commissioner Fielding stated that his position had not changed. CommissionerThompson stated that he was opposed to an extension.

Commissioner Gorton statedhis belief that the Com mission's report willbe poisoned bythe political process and added thatDecember 15 would be the ideal release date.Although theCommissionmay lose staff, he concluded thatthe goal shouldbe toproduce the best possible report.

Commissioner Fielding suggested that the Commission consultwith the White House:

Does the Administration realize that the Commission is considering a late-July release?Do they really want the report to be released on the eve of the Dem ocratic NationalConvention? Com mission Thompson inquired as to how long the W hite House can delaythe declassification of the report.

The Executive Director noted that the staff was not homogeneous on the issue of anextension, but the D eputy Director added that there was grow ing sentiment for a 2-3month extension. The Chair stated that the Com mission needs to know who on thestaffcan stay and for how lon g. He requested that the seniorstaff conduct a survey.

The Chair and Vice Chair agreed to meet with JudgeGonzales on Tuesday or Wednesday

to discuss the global agreement and the need for an extension.

Upcoming H earing Plans. The C hair stated that the question of hearings w as linked tothe extension.He added thatit takes 4-5 hours of staff prep time for every ho urof ahearing. After consulting team leaders, the Executive Director recommended a modifiedhearing plantwo in January, three in March, and four in Aprilparingback theschedule from 15 days to 9 days.

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CommissionerRoemer observed that the Com mission was being asked to choosebetween hearings and the report. H e asked why the January hearing included so manylow-level witnesses. The Executive Director responded that this agendarepresented thestaf fs best judgment. T he Deputy Executive Director added that many of these witnessesare the accountableofficials who set policy o r are establishing priorities.

The Vice C hair stated that he was not personally convinced that the value of publichearings outweighedthe value of more timefor the staff to work on the report. Hesuggested that the Commission focus on the activities from which it derives the mostvalue for the purpose o f producing the final report.

Commissioner Gorelick expressed concern over thefact that the Commission's hearingshave not had a great dealof attentionand added thatthe Comm ission needsto show whatit has accomplished. Com missioner Ben-Veniste requested materials for the hearing assoon as possible.

Public Relations Firm. The Chair stated his desire to hire a firm to handle the roll-out ofthe report. The Executive Director reported that the Comm ission had receivedoffers fromtwo firmsWidmeyer andPowell Tatebut that the staff was open to other suggestions.Comm issioner Lehman recommended that the C ommission consider a non-beltway firm.

PD B Report. Com missioner Gorelick reported that she and the Executive Director hopedto present two documents to the Commission.The firstdescribes the core groupof PDBarticles in context. The second makesthe argumentfor the transferof additional articlesfrom the large group to the core group. Both documents have beendrafted, andCom missioner Gorelick planned to review and finalize them this week.

Commissioner Gorelick commented on the extent of overlap between the PD Bs andSEIBs. She recommended that Commissioners reviewthe SEIBs, which she consideredquite instructive.

Recusals. At the request of Commissioner Kerrey,the Commission discussed this matterin a closed executive session.

The Chair adjourned the meeting at5:15 p.m.

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minutes of 9/11 commission meeting on january 5, 2004

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