Thomas H.

Kean January 15, 2004

CHAIR

Lee H. Hamilton
VICE CHAIR
MEMORANDUM
Richard Ben-Veniste

Fred F. Fielding To: Alberto Gonzales

Scott Muller
Jamie S. Gorelick Steve Cambone
Slade Gorton
From: Philip Zelikow
Bob Kerrey

John F. Lehman
The Commission has asked me to forward the attached draft letter to each of you. If the
Timothy J. Roemer administration's position remains unchanged, the Commission has decided to send and
release the final letter next week. Our fundamental concern is substantive. We believe the
James R. Thompson
current circumstances significantly limit our ability to understand the pre-9/11 activities of
the conspirators and the development of the plot to attack America.
Philip D. Zelikow
EXECUTIVE DIRECTOR
We remain ready to work creatively with you on any option that can allow us to aid the
intelligence community in cross-examining the conspirators on many critical details, clarify
for us what the conspirators are actually saying, and allow us to evaluate the credibility of
these replies.

TEL (202) 331-4060

FAX (202) 296-5545
www 9-11rnmmi<;<;inn crnv
 DRAFT

January 14, 2004

The Honorable Donald H. Rumsfeld

Secretary of Defense
1010 Defense Pentagon
Washington, DC 20301-1010

The Honorable George J. Tenet

Director of Central Intelligence
Central Intelligence Agency
Washington, DC 20505

Dear Secretary Rumsfeld and Director Tenet:

With your assistance, the Commission has made good progress on many
aspects of our work. Yet we need to raise an issue on which we still have a
significant point of difference: Commission participation in the questioning of
core conspirators in the 9/11 plot who — above all others now under U.S.
control -- helped conceive, organize, supervise, finance, and carry out these
attacks.

While we have evaluated reports from more than one hundred detained
individuals, we are limiting our request only to seven of particular interest by
reason of their involvement in the 9/11 plot. We have provided your staffs
with the identity of those seven core conspirators.

When we met with Director Tenet, he explained on behalf of the intelligence

community that he could not reveal the location of these conspirators to
Commission representatives. He expressed concern that efforts to obtain
current intelligence would be impeded by the introduction of new
interrogators into the process.

We want to assure you that we will agree to procedures that can adequately
protect the security interests of the United States and the location of these
individuals. We are prepared to work with you on procedures which will not
supplant the role of the familiar interrogators, but which will allow our staff
members to observe questioning in real time and then to put forward to the
interrogators immediate, essential follow-up questioning, with the opportunity
The Honorable Donald H. Rumsfeld and the Honorable George J. Tenet
January 14, 2004
Page 2

to independently evaluate the replies. We believe that one-way glass,

adjoining rooms or similar techniques can accommodate our mutual concerns.

We are mindful of the importance of continuing to question these key

conspirators about current intelligence, just as we are sure you understand our
statutory mandate to provide a "full and complete accounting" of the 9/11
attacks. Our request concerns participation in questioning only with respect
to our mandate, not your ongoing mission.

We appreciate Director Tenet's offer to do everything possible to take our

questions and try to get them answered by other officials. Even so, we believe
the Commission needs to participate in questioning of these seven individuals
in the limited manner we have proposed, in order to fulfill our mandate by the
deadline specified by law. We ask you to consider the following:

• The Commission has developed considerable expertise on the 9/11

plot that may well exceed the knowledge base of current interrogators.
Our participation can help in the evaluation of conspirators' statements
that are incomplete or conflict directly with other evidence.

• The procedure offered does not meet the Commission's compressed

deadline for completion of its work. In October we provided two
memoranda detailing many specific anomalies and gaps in the reports,
and listing certain questions we asked to be posed to the conspirators.
The intelligence community answered as best it could in November,
but only a few of our submitted questions have been addressed. The
various substantive problems remain after analyzing even the most
recent information we have received. We cannot detail these problems
in this unclassified letter.

• The time elapsed in this process also persuades us that the

Commission needs to participate in the limited manner we have
proposed in order to conduct immediate follow-up.

The procedures we have proposed will enable the Commission to form its own
independent evaluation of the credibility of the conspirators' statements. We
welcome the opportunity to meet with you and your staff on this issue again to
try to come to agreement; we believe a failure to reach agreement would
inevitably invite public and congressional scrutiny.

Because we are sensitive to national security concerns about the protection of

information and the way it is collected, we have limited our request only to
those individuals who are at the very center of the plot we have been charged
to investigate. The Commission respectfully, and unanimously, asks you to
The Honorable Donald H. Rumsfeld and the Honorable George J. Tenet
January 14, 2004
Page 2

consider favorably our request for participation in the questioning process in

the limited manner we have proposed.

Sincerely,

Thomas H. Kean Lee H. Hamilton

Chair Vice Chair
 r

January 21,2004
To: Lee
From: Dan, Chris
Re: Prospective meeting with Judge Gonzales and DCI Tenet

I. What We Know

1. We have made little progress in discussions with CIA staff on the merits of our
proposal. Moseman and Rousseau have sounded sympathetic, and Tenet made
some conciliatory noises at lunch today. But Dieter, Steve Dunne and I made
hardly a dent in a lengthy meeting late this afternoon with Scott Muller, the CIA
GC, and his deputy, John Rizzo. DO is strongly opposed because they believe
any effort to change questioning of detainees to adapt to our style and needs (even
if we are not asking the questions ourselves) runs risk of throwing off the overall
interrogation of the detainee.

2. The most CIA will do is to improve their processing of our questions and foliow-
Up questions and, MAYBE, give Dieter a chance to meet directly with
interrogators to discuss strategy.

3. Bigger problem is Justice Dept and White House, who fear that acceptance of
anything like our proposal will cause serious problems in the pending Moussaoui
case, since they believe they would have to inform the Court of what they were
doing. On broader level, they don't want to agree to anything that they think
undermines the absolutist position they have taken in court and publicly that
President has exclusive authority to determine how detainees will be handled and
that his decisions are not to be questioned by courts (or independent
commissions).

4. It is clear from what Cunningham told me that the purpose of tomorrow's White
House meeting is not to discuss merits of our proposal, but to convince you that
when it is rejected we should not go public with letter because that will harm
national security. I think their main argument will be that by spotlighting this
issue, we will encourage complaints by foreign countries about their lack of
access to the detainees and perhaps trigger pressure to promptly bring these guys
to trial.

II. Talking Points

1. We appreciate the efforts that the CIA has made to provide us information from
interrogations of detainees, but we have concluded that they do not satisfy our
needs in two important respects. That has led to the proposal contained in our
January 16 draft letter with respect to interrogations of seven core conspirators.

2. First, and most important, we need a process that provides us, in "real time" an
opportunity to interact with the interrogators themselves to assure that the
 questions we need asked relating to the 9-11 plot are asked, and that appropriate
follow-up questions are asked while the same interrogation is taking place. We
also need to be able to discuss with the interrogator - again, in "real time" - the
appropriate strategy to be followed in questioning the conspirator/detainee about
the plot. As you know, we are NOT seeking to question any detainee ourselves,
and we are NOT concerned with interrogation with respect to subjects other than
the 9-11 plot, and we are interested ONLY in seven core conspirators.

3. Second, we need an opportunity to listen to and observe the answers being given
by these key conspirators, so that we can form our own judgment as to their
credibility. We believe a one-way glass or some similar technique can
accommodate this purpose. These conspirators are the best direct source of
information as to the genesis and planning of the 9-11 plot, but we need to be in a
position to make a judgment as to how much we can rely on what they are telling
us.

4. We are committed to acting consistently with national security interests. And we

are also cognizant of the need for the Administration to protect its legal position
in the currently-pending Moussaoui case and future cases that may arise. We
believe that our proposal is significantly different from anything that we
understand is at issue in the Moussaoui case. Moreover, our situation is unique:
we are another Government agency with a statutory mandate to investigate the
facts and circumstances surrounding the 9-11 attack, and Congress has directed all
Executive Branch agencies to provide us the information we need.

5. We welcome any further proposal that the DCI may be prepared to make, and to
give it our most serious consideration. We would even detail our staff to the CIA
for the period of their participation in questioning, if this would help you maintain
your position on other legal and precedential questions.
 MEETING MEMORANDUM

December 22, 2003

To: Tom and Lee

From: Philip and Chris

Re: Meeting with DCI George Tenet, December 23rd, 12 Noon, DCI Dining Room

I. Introductory Talking Points

• Thank you for taking the time out of your very busy schedule to meet with us.
We appreciate your willingness to meet and to take up the topics we had
mentioned to your Chief of Staff (John Moseman) earlier. We hope that by
addressing some issues now we can keep our good relations on track and
avoid issues later.

• First, it is worth noting at the outset that we believe we have established a

generally good working relationship with you. We have asked you for a very
large number of documents, as well as a large number of interviews and
briefings. You have provided a substantial amount of material to us and
made your people available as well. You have been responsive, and we
appreciate that.

• One particular high note has been our work with Rudy Russo and the look-
back group. He and his people have been outstanding and extraordinarily
helpful to us. We commend them, and commend you, for making this superb
team available to us.

• hi cases where differences have arisen, we have been able in most cases to
resolve them. In all cases, we appreciate the goodwill and good offices of
John Moseman and Scott Mueller and his office.

• What we want to do today is to clear the decks as much as we can of old

business, handle some new business, and look ahead so that we can avoid
some problems later.

II. Detainees
• We are going to need your help on access to detainees.
• We have come to the conclusion that we are going to need direct access to
certain detainees with critical knowledge about the formation and execution of
the 9/11 plot. Although the Commission has requested, to date, interrogation
reports with respect to over 100 individuals, we believe we are going to need
 access to a limited number of key detainees (7), for direct questioning by
Commission staff.
We continue to struggle to understand innumerable specific details regarding
the plot's early stages: Exactly how did the transition from concept to
operation take place? What steps were taken by whom after the green light
from UBL? Who were the first operatives and how were they selected?
Interrogations, to date, do not appear to have focused on such historical issues
in sufficient detail; they have focused much more on current and future
threats.
Even if we could be confident that all questions necessary for our mission
were being asked of the detainees, we are at least two removes from the
detainees' actual statements (to the interrogator, and as summarized by the
reports officer). This distance makes it more difficult to appraise the
detainees' credibility. Much of their information cannot be corroborated by
other means; some detainee material is actually contradictory.
Therefore, we believe Commission staff must be able to question a small
number of the key detainees directly, so that the Commission can make its
own independent credibility evaluations before incorporating detainee
accounts into the report.
We do not believe the arguments in the United States v. Zacharias Moussaoui
apply. The balancing test in Moussaoui - national security versus defendant
rights ~ is not our issue. Our proposal involves weighing the nation's
generalized interest in withholding access to detainees against the same
nation's interest in gaining the definitive account that the Commission is
specifically charged to deliver to the American public. Appropriate
application of this test tips the balance, we believe, decidedly in favor of the
Commission's proposal.

III. Document Requests

The Commission has made 24 specific document requests to CIA. We know

that a lot of people have been pulled into this effort, and that they have
worked hard to meet these requests. As I mentioned, we are generally pleased
with the responsiveness of the CIA to these requests.
Your record is a pretty good one - especially compared to some other
agencies where we have had substantial concerns. Some of the items we have
requested are from just this month. Some requests, however, have been
pending since July.
We have crossed-checked records with your staff. They indicate that 12 of
these requests are still open, meaning that not all the individual items in the
requests have been fully responded to.
 • We would like you to designate a couple of Senior staff, who can meet with
our Senior staff, so that we can go over this long list (see attachment), and
come up with definitive deadlines for the production of documents. We
would like you to aim for a not later than mid-January production date for all
requests dating from the July to November timeframe.
• We have also been asking agencies to certify that they have provided all
documents related to our requests. We plan to formally request you certify
that all CIA documents requested by the Commission have been provided to
the best of the agency's ability to identify and find such documents.
• If there are other relevant documents which could be helpful to us — but have
not been specifically requested - we want you to bring them to our attention.
This has happened in some cases, but not every case. We hope that you will
actively urge your officers to be forthcoming with documents that can aid us
in our investigation.
• For example, Director Tenet had a conversation with Commissioner Gorelick.
You told her she needs to see everything you did when you prepared for your
Joint Inquiry hearing on the 9/11 plot. We still have not been able to nail
down exactly what documents you referenced. We would appreciate your
help in making sure such documents get to us.
• At the end of our investigation it would be unfortunate if relevant information
comes to light and this Commission had not been aware of it simply because it
didn't fall within the parameters of our specific requests.

IV. Resource Data Request

• We have one new briefing request that believe merits your attention.
• Our statute requires us to review resources for counterterrorism efforts across
the government. We believe we need an authoritative briefing for the
Commission on Intelligence Community resource allocation for
counterterrorism purposes.
• We would like to ask you to designate a senior budget person to work with us
on the preparation of such a briefing and the elements we need to include in it.
• We believe it is not only in the Commission's interest but the Intelligence
Community's interest to set the record straight on the budget. We hope you
will help us with this effort.

V. Your Personal Appearance before the Commission

We also wanted to review the bidding with you on what we will be seeking
from you personally. We will interview you, in closed session, on January
 22nd from 9 AM to 4 PM. Staff will conduct the interview, and we expect
several Commissioners to be present as well. Commissioners will ask
questions in the latter part of the interview, after the staff has concluded their
lines of questioning.
• We also will be seeking your public testimony on the morning of Monday,
March 22, 2004, from 9 AM to 1 PM.

VI. Preparing for a Public Report

• We also want to draw your attention to the issue we will face in publishing an
unclassified, public report. We are going to need your direct involvement in
declassification.
• We are going to need National-level policy decisions about declassification:
what can be said about the plot, what can be cited from detainee information.
• We are going to need you to help establish appropriate redlines, so that
historical information about the 9/11 plot can be published.
• Decisions on declassification cannot be delegated to lower levels, because no
lower level officials will have the authority to declassify what we believe
needs to be put in the public record.
• We hope you can make a commitment to help us with the declassification
process.
 MEETING MEMORANDUM
January 21,2004

To: Commissioners

From: Tom and Lee

Re: Commission Meeting Agenda for January 25th and January 26lh

Note: We plan to have a dinner meeting at the K Street office on Sunday evening from
6:15 PM to not later than 9 PM, and a dinner meeting on Monday evening
immediately after the Hearing in the anteroom of SH-216, from ca. 5 PM to 7:30
PM.

I. Sunday Evening Agenda

Hearing Preparation. Most of what we intend to cover will be background and

staff presentations in preparation for the Monday and Tuesday hearings. The
staff statements (already in your binders) will be discussed and presented in
summary form. Staff will also explain some of the background to the statements:
the nature of the investigatory work, and why staff came to the (interim)
judgments included in the statements. Staff will also discuss what we hope to get
out on the public record from each panel of witnesses, as well as begin to present
initial thoughts on recommendations, for the purpose of eliciting Commissioner
reaction. We anticipate approximately one hour of discussion on day 1 (borders)
and one hour of discussion on day 2 (transportation and managing risk).

We wish to note that the time is very tight for the hearings. For this reason, as
well as to make preparation easier for Commissioners, we are generally assigning
Commissioners to one panel, one Commissioner per panel. Because of the
necessity of accommodating recusals, we have not in every case been able to
assign Commissioners to their first panel choice. Witnesses each have 10 minutes
for their statements, and will not be allowed to run longer. Each assigned
Commissioner will have [20?] minutes for questions. Otherwise, the 5 minute
rule for questioning will be strictly observed. We intend to run on schedule.

PDB discussion. The Executive Director fand Commissioner Gorelick?] plan[s]

to report to the Commission on ti9/n classified int ormation[f he/they are unable to
do so, he/they will review the status of discussions with trie White House on the
PDB documents.

Upcoming interviews. Staff will present the upcoming list of Tier A interviews,
including those with NSC staff, and the practices and procedures for those
upcoming interviews. The General Counsel will discuss briefly recusals with
 respect to those interviews. Staff will also discuss where we are in terms of
scheduling meetings with Vice President Gore, President Clinton, Vice President
Cheney and President Bush.

Conspirators. Staff will brief on discussions with Director Tenet, Secretary

Rumsfeld and Judge Gonzales with respect to Commission participation in
interviews of the 9/11 plot conspirators.

Director Mueller has asked to meet with the Commission again, to speak further
about reform at the FBI. The Commission needs to decide whether to meet with
him further, and if so when.

II. Monday Evening Meeting Agenda

Reporting Date for the Commission. As you have been informed, the President
and the Speaker are of the firm belief that the Commission should report as
required by law; they do not support any extension of the reporting date.

The Commission has discussed at length the question of an extension. We beli

it is time to decide. We believe there are two choices: either a two month
extension - which we truly need and which we can give ourselves -- or we can
seek a 6 month extension that we really do not need and must ask of others who
do not want to give it to us.

Consistent with the law, the Commission may use 60 days after May 27 "for the
purpose of concluding its activities," and could report in July. We will strongly
advocate this approach; a draft press release is attached for discussion.

Schedule. Consistent with the approach to the report outlined above, attached is a
schedule of Meetings and Hearings for the duration of the Commission. The
Commission will hold a total of 9 days of hearings — 2 in January, 3 in March
(22nd through 24th) and 4 in April (27th through 30th). We will hold more frequent
Commission meetings so that we can begin to dig into the staff draft monographs
and begin discussion of recommendations. (Attached 2004 Timeline Proposal).

Access issues. The Executive Director and the General Counsel will brief on
progress with respect to access to NSC documents, and issues that remain.
 Page 1 of 1

Dan Marcus

From: Al Felzenberg
Sent: Tuesday, May 11, 2004 3:17 PM
To: Dan Marcus; Steve Dunne; Chris Kojm
Cc: Philip Zelikow
Subject: see below

Dan, Steve, Chris et al:

I am following up a request from Tom. He was asked in very precise terms by Michael Isikoff of
Newsweek what access we have to detainees. The reporter wanted to know specifically
whether we review transcripts, talk to interrogators (if not to detainees themselves) or are
actually able to get specific questions asked of detainees. (Can Commissioner Jones call
Justice official Y to say, "please ask them about Z"?)

I sensed Tom felt uncomfortable saying "we have access to detainee materials." I also sense
he needs to know precisely what we have seen and done, even if he does not say what this is
in public. I do know he is not confident talking about this matter.

Alvin S. Felzenberg
Deputy for Communications
9-11 Commission
202 401-1725 (office)
202 236-4878 (cellular)

5/11/2004
 Detainee Attributions

Agency/DOD position: no attribution of statements from any detainee whose captivity

hasn't been publicly acknowledged by USG official

Using this standard, Agency/DOD cites "agreement" supposedly reached before last
hearing in context of Staff Statement Nos. 15 and 16, whereby attributions would be
permitted only for six detainees who met the above criterion. (We were able to increase
this list by two names, both of which, we pointed out, appeared on the White House's
web site.)

By its terms, the "agreement" related solely to the June hearing and the staff statements;
it did not purport to cover the final report.

The eight "approved" detainees are:

KSM
Binalshibh
Khallad
Hawsawi
Nashiri
Hambali
Hasan Ghul

A web search has revealed media reporting of the capture of at least 16 additional
detainees whom we want to identify as being captured and, in most cases, as sources for
statements we make in the report

The Agency/DOD standard for detainee attribution makes no sense from a national
security standpoint:
it ignores the reality that the detainees' capture is widely known
it deprives the public of knowledge that these dangerous sworn enemies of
the U.S. are no longer in circulation
it fails to provide any countervailing benefit, particularly given that most
of these detainees have been in custody so long that their information has
minimal current threat value

Adherence to this standard deprives the Commission of articulating a clear basis for
important detainee-derived information presented in the report. This becomes all the
more important when one remembers that our lack of direct access severely compromised
our ability to make credibility assessments.
 WITH DRAWAL NOTICE

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ACCESS RESTRICTED

The item identified below has been withdrawn from this file:

Folder Title: Detainees

Document Date: 06-07-2004
Document Type: Fax
From: JML
To: Dan

Subject: Detainees Officially Acknowledged by the U.S. Gove

rnment

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Folder Title: Detainees

Document Date: 01-13-2004
Document Type: Memorandum
From: Snell; De
To: Zelikow; Kojm; Marcus

Subject: Initial DCI Response re Detainee Questions

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Folder Title: Detainees

Document Date: 01-28-2004
Document Type: Miscellaneous
From:
To:

Subject: Process Issues

In the review of this file this item was removed because access to it is
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Folder Title: Detainees

Document Date: 10-16-2003
Document Type: Memorandum
From: Philip Zelikow
To: Scott Muller

Subject: Evaluating Primary Information about the 9/11 Plot

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restricted. Restrictions on records in the National Archives are stated in
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Folder Title: Detainees

Document Date: 10-07-2003
Document Type: Memorandum
From: Dieter Snell
To: Zelikow; Marcus; Dunne

Subject: Questions for CIA Regarding Detainee Interrogation

s

In the review of this file this item was removed because access to it is
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Folder Title: Detainees

Document Date: 08-05-2003
Document Type: Memorandum
From:
To:

Subject: DOD Document Request No. 3

In the review of this file this item was removed because access to it is
restricted. Restrictions on records in the National Archives are stated in
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