sd b1 commission meetings fdr- 4-30-03 memo from roemer to zelkow re access to joint inquiry 729

8/14/2019 SD B1 Commission Meetings Fdr- 4-30-03 Memo From Roemer to Zelkow Re Access to Joint Inquiry 729

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Date: April 30 , 2003To: Philip ZelikowFrom: Commissioner Tim RoemerRe: Access to Information Compiled by The Joint Inquiry

CC: Commissioners

The United States Congress passed the legislation creating the National Commission onTerrorist Attacks Upon the United States. On November 27 , 2002 the President signed PublicLaw 107-306 and stated his strong support for this statute:"an aggressive investigation into September 11, with a responsibleconcern for sensitive information that will allow us to win the war onterror, will contribute to the security of this country...."

President Bush went on to say:"W e will follow every fact wherever they lead."The law clearly states that the Commission should fully review an d study the JointInquiry 's documents, interviews, transcripts an d general work product. The Joint Inquiry's work

is the foundation and starting point for the Commission to base their staffing, organization,resources, templates, an d ultimately, their recommendations. The Commission is duly requiredto review this material - and it is the Commission's duty to read it. Access to these documentsshould not be screened, filtered, delayed, restricted or prohibited by the Joint Inquiry, Congress,or the administration.

The Commission has agreed with this principle and affirmed it in our scheduled meetings.This position has been recorded in our minutes. In our February 12th meeting Commissionersdiscussed actions to facilitate early release of the Joint Inquiry Committee documents. W ereviewed the access issue and Commissioner Ben-Veniste urged that the Commission "shouldno t take off the table any statutory powers of the Commission." The Commission agreed. Asrecently as the April 10th Commission meeting, Mr. Ben-Veniste noted "his strongrecommendation that the Commission set a reasonable point in time for a report on the nature ofcooperation by the Executive Branch agencies with the Commission." In other Commissionmeetings there have been strong bipartisan views expressed by numerous Commissioners that wehave full and complete access to the Joint Inquiry's work. We have also expressed concern thatwe no t diminish or dilute this access in any way.


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Page-2-In addition, a "memorandum" dated March 28, 2003, f rom you stated that: "A\\s who have their security

best of m y knowledge, there was no division or disagreement within the Commission on thispoint of access. Nor was there an y discussion to enter into an agreement to limit or delay this fu l laccess. The Commission was on record conveying the importance of ful l access to thesetranscripts. W e were never informed of any ongoing negotiation o r potential agreement to limitor restrict it.

I was disappointed an d surprised when I discovered on April 25 th at the Ford Building thatI could no t review 3 transcripts o f hearings produced by the Joint Inquiry. I had even participatedin these hearings as a Member of the Joint Inquiry. Apparently, you had agreed with Mr. AdamCiongoli (a Justice Department official) a few weeks before that the administration could reviewcertain documents to consider whether they might eventually invoke executive privilege. I hadlearned on April 24 th that the administration might not want m e to review these transcripts. Itelephoned both the Chair an d Vice Chair of the Commission. Chairman Kean told m e in theearly evening of the 24 th of April that I should have "ful l an d immediate access to all JointInquiry materials." On the same day, Vice Chairman Hamilton strongly agreed with thisposition, adding that he saw "no good reason to limit our access to this existing material."Neither the Chairman or Vice Chairman was apparently notified (or did not recall) of thisagreement to prohibit the access to these transcripts from all the Commissioners and staff.Consequently, I believed we had cleared u p a misunderstanding with the administration.However, on the morning of April 25th you informed me by telephone that I would not be able toreview or read these 3 hearing transcripts. You also said that Chairman Kean an d Vice ChairHamilton no w concurred with your position an d your previously undisclosed agreement with M r.Ciongoli . This new position was confirmed by Mr. Hamilton. I still proceeded over to the FordBuilding on April 25 th to refresh m y memory regarding other transcripts an d documents. I readthrough other "available" information provided by the Joint Inquiry.

On April 25 th I expressed m y opposition to this agreement reached between you and Mr.Ciongoli , to limit the Commissions access to the materials. I continued to express my concernsto you and other Commissioners throughout the next few days. I believe it should not have beennegotiated in the first place. If it was negotiated, it then should have been presented to theCommiss ion. Furthermore, once th e agreement was explained to me on April 25 th yo u stated thatthe administration should have a few more days to resolve this issue, and we should extend themthis courtesy. I remain deeply concerned about how the agreement was brokered an d believe weshould not have agreed to this limitation an d delay regarding Joint Inquiry materials (throughApri l 29th). I recommend that the Commission should have acted to void this "agreement"immediately. If the administration decides not to invoke "privilege", I would still like this issueto be discussed and recorded for the public minutes.

Therefore, I would request that the Commission ful ly discuss this issue o f access to JointInquiry material and how it was handled, at our next meeting on April 30 th and May 1st. I wouldask that this be an agenda item and we ultimately decide o u r future policy with respect to whetherwe enter into these "agreements' again and how they should be properly an d effectivelycom m unicated to the Commissioners. Here ar e some recommendations fo r fu ture discussionsand policy:


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1. The Commission should no t allow any organization, entity, or agency to previewand screen Joint Inquiry documents within the context of so-called"agreements"that in any way delay or prohibit our access to this essential material.

2. The administration should not be able to restrict or delay the Commission's accessto Joint Inquiry material by claiming "the possibility" of invoking executiveprivilege. This "claim" seems utterly baseless in law. The executive branch haspreviously released this information to Congress, and, thereby, waived their rightto exert "privilege". If they eventually argue fo r privilege, they have succeeded inpreventing Commissioners from ever reading the transcripts. If they do notexercise that claim, they have succeeded in delaying the Commission's review ofthe relevant material. The law creating the Commission affirms ou r right to thisJoint Inquiry material.3. In a memorandum dated April 7, 2003 you wrote the Commissioners regardingaccess to Joint Inquiry information. You stated that, "Prior agreements havecleared the way for access to the Joint Inquiry Report by the Commissioners an dselected staff." You did not state in this memorandum that the Commissionersdid not have access to the 3 transcripts of Joint Inquiry hearings. You did notinform the Commissioners of an existing or negotiated agreement with Mr.Ciongoli. I would recommend any future "contemplated agreements" oraccommodations with agencies in the administration be fully discussed with allthe Commissioners beforehand. In addition, that an y "proposed agreement" becirculated in writing to the Chair, Vice Chair, and all the Commissioners.4. The lack of effective communication an d subsequent confusion on this "Zelikow-Ciongoli Agreement" underscores the need fo r clear, precise, an d written groundrules between the agencies and the Commission. These ground rules may be

different for the various agencies W e should have these circulated to theCommission when they are firmly decided. Previously we discussed inCommission meetings, whether to commence a written report on ExecutiveBranch cooperation with the Commission. W e should move forward with thisdebate.

5. One of the major questions impacting our access to important information will bewhether the administration intends to invoke executive privilege with respect toour requests fo r National Security Council documents. What is yourunderstanding of their position at this point? Why, and on what grounds, wouldthey argue for this position? We should explore this now, even before we make adocument request. And what documents are we going to request?


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page -4-6. While the Com mission has probably not sacrificed much legal ground on theexecutive privilege issue (whether the administration eventually invokes it or not),we have suffered the loss of some significant political, symbolic, and diplomaticpower. In addition to insisting that all information from the Joint Inquiry beavailable to all the Co mm issioners, we might co nsider having Chairman Kean andVice Chair Hamilton make visits to the agencies to begin these discussions andagreements.7. In addition to the delay on access to the 3 hearing transcripts, we have beenrestricted from viewing 18 of the Joint Inquiry interviews since early April. Areall of those interviews available to all of the Commissioners? What was thereason fo r this delay?8. Do the Commissioners now have full access to all the info rmation in the 3 hearingtranscripts that were previously restricted from us? Will any information beredacted or withheld? Was there an agreement between you and Mr. Ciongoli to

redact information from the transcripts?9. Is Mr. Ciongoli the point person an d administration contact for all our futurenegotiations in every agency we are seeking materials and docum ents from? How

can one person do this effectively and not slow down the process?

sd b1 commission meetings fdr- 4-30-03 memo from roemer to zelkow re access to joint inquiry 729

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