sd b1 commission meetings fdr- 8-26-03 memo from marcus-dunne re issues for august 17 meeting (w...

8/14/2019 SD B1 Commission Meetings Fdr- 8-26-03 Memo From Marcus-Dunne Re Issues for August 17 Meeting (w Attachm

1/8

MEMORANDUM TO ACCESS SUBCOMMITTEEAugust 26, 2003From: Dan Marcus and Steve D unneRe: Issues for August 27 Meeting

hi preparation for tomorrow's meeting, there are a number of matters we want tobring to your attention:1. Gonzales letter and negotiated und erstandings. The day after the last Commissionmeeting Tom received a letter from Judge Gonzales purporting to state formally theconditions on access to NSPDs/PDDs and drafts of those documents that he haddiscussed with Tom before the Comm ission meeting. The Gonzales letter is attached atTab A. As you will see, it states the conditions in somewhat stronger and more absoluteterms than were set forth in Gonzales's conversation w ith Tom, and the letter fails toinclude the crucial assurance Gonzales gave Tom about revisiting these conditions if theCommission finds that it needs to.Philip and Dan therefore met with David Leitch, Gonzales's deputy, last week(Gonzales was out of town) to discuss our concerns abou t the Judge's letter. D an'smemo for the record, attached at Tab B, sets forth the understandings we reached at themeeting, which Leitch told us he confirmed with G onzales later.2. No tice letters to agencies. As discussed at the Commission meeting, we sent, onAugust 19, letters to the heads of all major departments and agencies notifying that, inpreparation for our September interim report, we need to know by September 5 theirposition on any access issues that are still outstanding, and we need to receive from themthe most important docum ents that are already overdue. An exam ple of these letters toagencies is attached at Tab C. Today, we notified each agency by email of the "litmustest" documents or requests for which we will hold them accountable.At our Wednesday meeting, we will review w ith you where we stand with eachdepartment or agency. The major outstanding issues revolve around the Team 2 and 3docum ent requests to State, DoD and CIA for high-level policy d ocuments (where D anLevin is conducting a review of potentially privileged material, which he promises willbe completed by September 5) and Team 4 requests to the FBI and State Department fordocuments related to terrorist financing issues.3. Air Threat Conference Call. After the Comm ission meeting, we informed D an Levinand the W hite House that the Com mission had instructed the staff to send a letter toLevin demanding immediate production of the long-delayed transcript of the conferencecall. David Leitch asked us to hold off for a few days so that he could read the transcript.After reviewing the transcript, he proposed to deal with our concerns by a letter from himor Dan Levin, apologizing for the delay andpromising prompt access. We agreed to holdoff further action, and we received the letter from Dan Levin attached at Tab D last


2/8

Friday. (Philip consulted Tom and Lee on these steps.) This morning Philip had anopportunity, on behalf of Tom and Lee, to review the transcript.4. Briefings on 9-11 conspirators and detainees. We sent a memorandum to Dan Levinlast Friday requesting two important sets of briefings, which Levin, the CIA and the FBIhave agreed to provide: (1) a briefing/discussion on the process for interviewingdetainees and to provide us additional information or documents on the results ofinterrogations of particular detainees where the intelligence reports do not exist or areinadequate; and (2) a meeting to exchange and discuss information on currentunderstandings of who may have been involved in the 9/11 plot and who were the leadersof the Al Qaeda organization in the period immediately before the attacks..


3/8

1^002ACONFIDENTIAL COMMUNICATION

T H E W H I T E H O U S EW A S H I N G T O NAugust 15,2003

Thomas H . KeanChairmanNational Commission on Terrorist Attacks Upon the United States2100 K. St. N.W.Washington, D.C. 20037Dear Chairman Kean:

As you know, the President has clearly stated a policy of support for the work of theNational Commission on Terrorist Attacks Upon the United States ("Commission"). Consistentwith that policy, and as a matter of comity between the legislative and executive branches, wehave made available to the Commission highly sensitive and deliberative documents of theExecutive Office of the President. Continuing with this extraordinary accommodation, as wediscussed earlier this week, we will make available, to the 10 Commissioners and previouslydesignated staff, a number of Presidential Directives (including National Security PresidentialDirectives and Presidential Decision Directives) and, in one case, several drafts of a directiveultimately signed by President Bush.

In making these materials available, I want to stress that I, and other senior officials,remain most concerned with making this information available outside the Executive Branch.These are not only Presidential documents of the utmost importance and sensitivity but, inseveral cases, govern ongoing sensitive U.S. Government operations to this day. We are makingthe extraordinary accommodation on the Presidential Directive drafts only after concluding thatthis specific directive is of singular relevance to the Commission's work, based on particularizedrepresentations by your staff. W e do not expect ou r accommodation with regard to these draftdocuments, and the signed Presidential Directives, to set any precedent, either for futureCommission requests or for the handling of deliberative materials of this or future Presidents.

Because of these concerns, as we discussed, we are making these materials availableunder the following conditions: no notes will be taken concerning these materials; informationin these materials may not be discussed beyond the 10 Commissioners and previously designatedstaff; there will be a strong presumption that the Commission's report will not discuss draftmaterials not included in, or different from, the final, signed directive; and the Commission andstaff will not discuss publicly the fact that these materials - final, signed Presidential Directives,or drafts of a Presidential Directive - have been made available. Wewould, of course, have noobjection to more general representations to the effect that the Commission has had available toit the materials it needs to do its work, bu t insist that no specific acknowledgement be made withregard to draft or final Presidential Directives.

These documents will be made available in the New Executive Office Building readingroom dedicated for the Commission's review of materials. These materials, and all documents


4/8

uo/j .o/uo PKI io:uo fA A lg]003

CONFIDENTIAL COMMUNICATION

and information subsequently famished, are furnished with due regard for the constitutionalseparation of powers and reserving all legal authorities, privileges and objections that may apply,including with respect to other governmental entities or private parties. Documents and otherinformation are furnished to the Commission in confidenceand as in closed session. Pleaseensure that the Commission protects them from unauthorized disclosure and from use for anypurpose other than the legislative purpose for which the Commission made the request.

Thank you for meeting with me on short notice Wednesday to discuss this importantmatter. I look forward to continuing to work with you to balance the Commission's need forinformation to carry out its important mission with the constitutional interests of the current andfuture Presidents.

Sincerely yours,

Alberto R. GonzalesCounsel to the President


5/8

MEMORANDUM FOR THE RECORDFrom: Daniel MarcusAugust 25, 2003Philip and I met last week w ith David Leitch, Deputy Counsel to the President, to discussthe conditions set forth in Judge Gonzales's August 15 letter to Tom Kean withrespect to the Com mission's access to draft and final presidential directives(PDDs and NSPDs). Following is a summary of the understandings reached at thatmeeting with respect to the four conditions:1. We made clear that we did not agree with a ban on Commissioners anddesignated staff taking notes on draft and final presidential directives. Butwe agreed to Leitch's request that we defer any request for note-taking ondocuments in this category until we had reviewed them. At that point, theWhite House will entertain in good faith any requests fo r note-taking upon ademonstration of need.2. Leitch agreed that the reference to "previously designated staff as part of the groupamong which information from draft or final presidential directives may be discussedincludes not only staff designated for access to the documents in the NEOB readingroom, but also their designated colleagues (team members and other team leaders with aneed to know) with whom they may share notes and discuss information .3. We expressed our concern about the "strong presumption" that the Comm issionreport will not discuss material in drafts of presidential directives thatdiffers from the final directive, and we emphasized the need of the Commissionto explore and discuss the development of key policies, the options considered,etc. Leitch acknowledged the legitimacy of these concerns, and agreed that thepresumption is not an irrebuttable one. (We also pointed out that the Gonzalesletter is silent on who decides whether the presumption has been rebutted; itdoes not preclude us from determining for ourselves that it has been.)4. We stated that the Commission had agreed that it would not publicly disclose the factof access to these particular Presidential documents during the pendency of theCommission's investigation. But we said that we could not accept the application of thatcondition to the final public Commission report, where it would be difficult -- if notimpossible ~ to avoid indicating or explicitly stating that such documents had been madeavailable. Leitch agreed that the fourth condition did not address the issue of referencesto this fact in the final report.


6/8

a\ON ON

H. Kean

C H A I Rd Ben-Veniste

ClelandF. Fielding

S. GorelickGorton

F. LehmanJ . Roemer

R . Thompson

August 19 , 2003

The H onorable Norm an Y. MinetaSecretary of Transportation400 Seventh Street, SWWashington, DC 20590Dear Secretary Mineta:Public Law 107-306 directs the Commission to investigate the facts andcircumstances surrounding the September 11, 2001 terrorist attacks, includingthe nation's preparedness for and immediate response to those attacks. We arealso mandated to identify and evaluate lessons learned and m akerecommendations for the future. The statute authorizes the Commission tosecure needed information directly from any agency. The Comm ission hasthus m ade numerous requests for documents an d discussions with officialsfrom your department. Given the extraordinary character of the 9/11 eventsand our mandate, the scope an d sensitivity of our requests have few , if any,precedents.We are therefore all the more grateful for the efforts you and your colleagueshave made so far to deal with our ma ny, necessary requests. With so manyother issues confronting you and your staff, we do understand ho w hard thiscan be. We try to make appropriate allowances when we know people aredoing their best. In July the Commission issued an interim report on ourprogress so far. In that report we said the coming weeks w ould be critical.We promised another report in September that would appraise whether thelevel of volun tary cooperation is sufficient so that we will be able tt5Tlo the jobwe are charged to do unde r the statute.That time is now approaching. You are entitled to some advance notice ofwhat we need. To make such a decisive appraisal an d properly evaluate yourdepartment's cooperation, we will assess:1. Your policy choicesone way or anotheron every access issue posed byou r pending requests.2. Whether w e actually receive the most imp ortant categories of documentsthat are already overdue. We will follow up to be sure our points ofcontact know which overdue documents we regard as litmus tests foreffective cooperation. 30 1 7'1' Street SW, Room 5125

Washington, DC 20407T 202.331.4060 F 202.296.5545www.9-1 lcommiss ion.gov


7/8

The Honorable Norm an Y. MinetaAugust 19,2003Page 2

We understand that you and your staff may need a few more weeks to finalizepolicy choices and push through delivery of key documents. Therefore wethink it is reasonable to w ait and assess the situation based on positionscommunicated with us and documents that have actually been delivered orotherwise made available to us by CO B on Friday, September 5, 2003.As the second anniversary of the devastating attacks on our countryapproaches, we thank you for working with us to meet the challenge ofunderstanding how and why America suffered such a devastating attack, andhow to prevent another.

Sincerely,

Thomas H. KeanChair Lee H. HamiltonVice Chaircc: Rosalind A. Knapp


8/8

flUG-22-2003 11:19 202 616 0762 202 616 0762 P.01/01'U.S. Department of Justice

" ~~~~~~ " Washington. D.C. 20SSOAugust 22,2003Philip Zelikow, Executive DirectorNational Commission on Terrorist AttacksUpon the United States301 7th Street SW, Room 5125Washington, D.C. 20407Dear Philip:

I am writing concerning the Commission's request to the Department of Defense for atranscript of the September 11, 2001 air threat conference call. That lengthy docum ent (it is over180 pages) discusses highly classified and extremely sensitive national security information. Italso includes very high level pre-decisional discussions, raising the kinds of deliberative processconcerns which have historically required careful analysis within the Executive branch in order todetermine how to appropriately accommodate congressional requests for information.I apologize for the delay in responding to the Commission's request to review thisdocument. We are in the process of consulting w ith the proper officials concerning anappropriate way to accommodate the Comm ission's request. I can confirm, however, that we areprepared to have the Chair and Vice Chair of the Comm ission review the entire docum ent assoon as practicable consistent with the ordinary practice for such review. In the meantime, we

will continue to consider your request for further review of the document; it is my expectationthat we will soon be in a position to make large portions of the document available to othermembers of the Commission and a limited number of staff. Consistent with our mutualunderstanding, with respect to a relatively small subset of the document that discussesparticularly sensitive matters, we will need to specify additional conditions for any further reviewthe Commission might seek.

Very truly yours,

Daniel Levin

TOTAL P.01