MEMORANDUM FOR COMMISSIONERS

From: Steve Dunne

Date: June 4, 2003

Subject: FAA Document Production

On May 7, 2003, the staff sent its first document request to the Department of
Transportation asking for FAA documents relating to the September 11 hijackings. One portion
of this request asked for "[a]ll documents relating to FAA's tracking of hijacked airliners on
9/11/01, including without limitation communications with NORAD." When we transmitted this
document request, we made clear that these documents directly related to the Commission
hearings on May 22-23, and we asked DoT as well as Adam Ciongoli at DOJ to make every
effort to produce the requested documents before that hearing.

The day before the hearings, our point of contact at DoT, Deputy General Counsel Lindy
Knapp, reported that DoT had gathered some of the relevant documents but had not been given
approval by DOJ to produce the documents. As we investigated further, we discovered from
conversations with DoT and DOJ that litigators at DOJ on the Moussaoui team had held up the
production because they were concerned about the disclosure of voice recordings of individuals
in the cockpits of the hijacked planes. Such recordings are apparently the subject of a non-
disclosure order in the Moussaoui case. When Adam Ciongoli found out that this was the
situation on the afternoon of May 23, he immediately agreed with us that the entire production
should not have been held up if the concerns only pertained to certain voice recordings. He
apologized, attributing the incident to "growing pains;" Lindy Knapp also apologized for not
being able to produce the documents before the hearing. We made clear to both of them that the
Commissioners were extremely unhappy that no FAA documents were produced before the
hearing, and that Jane Garvey's testimony in particular would have been much more productive
if the documents had been produced.
r'i "
On May 28, DoT produced logs, radar data, chronologies, and some of the other
documents we requested. Today, DoT completed its production of all the documents it has in
response to the first document request, including voice recordings of conversations between the
hijacked planes and FAA air traffic controllers.
X
e
U S Department of
Transportation
GENERAL COUNSEL 400 seventh St., s.w.
Washington, D.C. 20590
Office of the Secretary
of Transportation June 4, 2003

Mr. Daniel Marcus

General Counsel
National Commission on Terrorist Attacks
Upon the United States
301 Seventh Street, SW
Washington, DC 20407

Dear Mr. Marcus:

On May 5, 2003, the Department of Transportation received a request from the

National Commission on Terrorist Attacks Upon the United States for documents related
to the Commission's-4nvestigation. of the terrorist attacks of September 11, 2001. DOT is
in the process of making these documents available to the Commission, in accordance
with the requirements of Title VI of the Intelligence Authorization Act for Fiscal Year
2003, P.L. 107-306.

Under section 605(c)(2) of the Act, documents provided to the Commission are to
be "received, handled, stored, and disseminated by members of the Commission and its
staff consistent with all applicable statutes, regulations, and Executive orders." A
number of documents that the Federal Aviation Administration (FAA) is providing to the
Commission contain information that has been designated by the Transportation Security
Administration (TSA) as sensitive security information (SSI).

By statute and implementing regulations, all information designated by the TSA

as SSI must not be disclosed to the public, notwithstanding the Freedom of Information
Act or other laws. See 49 U.S.C. § 114(s); 49 C.F.R. part 1520. The need to protect SSI
stems primarily from the extent to which this information, if compromised, would reveal
a systemic vulnerability of the transportation system or a vulnerability of transportation
facilities that would make it more likely for terrorists to succeed in their attacks and,
therefore, make such attacks more difficult to prevent.

SSI includes intelligence information, specific threats, and countermeasures that,

if released to the public, could be used to thwart security measures that are in place at
airports, are being carried out by aircraft operators, and that are or would, in appropriate
circumstances, be implemented by the Government. Given the risk to national security
and to the traveling public posed by any unauthorized disclosure of SSI, the TSA has
created and enforces strict controls on access to SSI.

A number of the documents that the FAA is providing to the Commission contain
SSI and have been marked accordingly. As explained above, dissemination of SSI
beyond the Commission would be detrimental to the security of the Nation's
transportation system and to the safety of passengers in transportation. Therefore, the
Department requests that each member of the Commission and the Commission staff who
will have access to SSI complete the enclosed nondisclosure agreement and return it to
the Department.

If you need further information or assistance, please call Ms. Shirley Miller,
Senior Advisor to the FAA's Deputy Administrator at (202) 267-8111.

Sincerely,

Kirk K. Van Tine

General Counsel

Enclosure
 SENSITIVE SECURITY INFORMATION

NONDISCLOSURE AGREEMENT

I understand that the documents provided by the Department of Transportation,

Federal Aviation Administration to the National Commission on Terrorist Attacks Upon
the United States, pursuant to Title VI of the Intelligence Authorization Act for Fiscal
Year 2003, P.L. 107-306, contain information identified by the Transportation Security
Administration (TSA) as sensitive security information (SSI) governed by 49 CFR part
1520.

I understand that I am being granted access to these documents only in my

capacity as a member of the Commission or as a member of the Commission staff, and I
further understand that I must protect the information therein from unauthorized
disclosure.

Accordingly, I agree not to discuss documents identified as SSI, or their contents,

with anyone other than members of the Commission and members of the Commission
staff, who have signed this agreement, and I agree not to disclose such documents, or
their contents, to anyone other than members of the Commission and members of the
Commission staff, who have signed this agreement.

Signature

Printed Name

Date

PLEASE RETURN SIGNED FORM TO:

U.S. Department of Transportation
Federal Aviation Administration
Shirley Miller
Fax: (202) 267-5738
Phone:(202)267-8111