MEMORANDUM TO ACCESS SUBCOMMITTEE

August 26, 2003

From: Dan Marcus and Steve Dunne

Re: Issues for August 27 Meeting

hi preparation for tomorrow's meeting, there are a number of matters we want to

bring to your attention:

1. Gonzales letter and negotiated understandings. The day after the last Commission
meeting Tom received a letter from Judge Gonzales purporting to state formally the
conditions on access to NSPDs/PDDs and drafts of those documents that he had
discussed with Tom before the Commission meeting. The Gonzales letter is attached at
Tab A. As you will see, it states the conditions in somewhat stronger and more absolute
terms than were set forth in Gonzales's conversation with Tom, and the letter fails to
include the crucial assurance Gonzales gave Tom about revisiting these conditions if the
Commission 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 about the Judge's letter. Dan's
memo for the record, attached at Tab B, sets forth the understandings we reached at the
meeting, which Leitch told us he confirmed with Gonzales later.

2. Notice letters to agencies. As discussed at the Commission meeting, we sent, on

August 19, letters to the heads of all major departments and agencies notifying that, in
preparation for our September interim report, we need to know by September 5 their
position on any access issues that are still outstanding, and we need to receive from them
the most important documents that are already overdue. An example of these letters to
agencies is attached at Tab C. Today, we notified each agency by email of the "litmus
test" documents or requests for which we will hold them accountable.
At our Wednesday meeting, we will review with you where we stand with each
department or agency. The major outstanding issues revolve around the Team 2 and 3
document requests to State, DoD and CIA for high-level policy documents (where Dan
Levin is conducting a review of potentially privileged material, which he promises will
be completed by September 5) and Team 4 requests to the FBI and State Department for
documents related to terrorist financing issues.

3. Air Threat Conference Call. After the Commission meeting, we informed Dan Levin
and the White House that the Commission had instructed the staff to send a letter to
Levin demanding immediate production of the long-delayed transcript of the conference
call. 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 him
or Dan Levin, apologizing for the delay and promising prompt access. We agreed to hold
off further action, and we received the letter from Dan Levin attached at Tab D last
Friday. (Philip consulted Tom and Lee on these steps.) This morning Philip had an
opportunity, on behalf of Tom and Lee, to review the transcript.

4. Briefings on 9-11 conspirators and detainees. We sent a memorandum to Dan Levin

last Friday requesting two important sets of briefings, which Levin, the CIA and the FBI
have agreed to provide: (1) a briefing/discussion on the process for interviewing
detainees and to provide us additional information or documents on the results of
interrogations of particular detainees where the intelligence reports do not exist or are
inadequate; and (2) a meeting to exchange and discuss information on current
understandings of who may have been involved in the 9/11 plot and who were the leaders
of the Al Qaeda organization in the period immediately before the attacks..
 1^002

CONFIDENTIAL COMMUNICATION
A
THE WHITE HOUSE
WASHINGTON

August 15,2003

Thomas H. Kean
Chairman
National Commission on Terrorist Attacks Upon the United States
2100 K. St. N.W.
Washington, D.C. 20037

Dear Chairman Kean:

As you know, the President has clearly stated a policy of support for the work of the
National Commission on Terrorist Attacks Upon the United States ("Commission"). Consistent
with that policy, and as a matter of comity between the legislative and executive branches, we
have made available to the Commission highly sensitive and deliberative documents of the
Executive Office of the President. Continuing with this extraordinary accommodation, as we
discussed earlier this week, we will make available, to the 10 Commissioners and previously
designated staff, a number of Presidential Directives (including National Security Presidential
Directives and Presidential Decision Directives) and, in one case, several drafts of a directive
ultimately 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, in
several cases, govern ongoing sensitive U.S. Government operations to this day. We are making
the extraordinary accommodation on the Presidential Directive drafts only after concluding that
this specific directive is of singular relevance to the Commission's work, based on particularized
representations by your staff. We do not expect our accommodation with regard to these draft
documents, and the signed Presidential Directives, to set any precedent, either for future
Commission 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 available

under the following conditions: no notes will be taken concerning these materials; information
in these materials may not be discussed beyond the 10 Commissioners and previously designated
staff; there will be a strong presumption that the Commission's report will not discuss draft
materials not included in, or different from, the final, signed directive; and the Commission and
staff will not discuss publicly the fact that these materials - final, signed Presidential Directives,
or drafts of a Presidential Directive - have been made available. We would, of course, have no
objection to more general representations to the effect that the Commission has had available to
it the materials it needs to do its work, but insist that no specific acknowledgement be made with
regard to draft or final Presidential Directives.

These documents will be made available in the New Executive Office Building reading
room dedicated for the Commission's review of materials. These materials, and all documents
uo/j.o/uo PKI i o : u o fAA lg]003

CONFIDENTIAL COMMUNICATION

and information subsequently famished, are furnished with due regard for the constitutional
separation 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 other
information are furnished to the Commission in confidence and as in closed session. Please
ensure that the Commission protects them from unauthorized disclosure and from use for any
purpose 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 important
matter. I look forward to continuing to work with you to balance the Commission's need for
information to carry out its important mission with the constitutional interests of the current and
future Presidents.

Sincerely yours,

Alberto R. Gonzales
Counsel to the President
MEMORANDUM FOR THE RECORD

From: Daniel Marcus

August 25, 2003

Philip and I met last week with David Leitch, Deputy Counsel to the President, to discuss
the conditions set forth in Judge Gonzales's August 15 letter to Tom Kean with
respect to the Commission's access to draft and final presidential directives
(PDDs and NSPDs). Following is a summary of the understandings reached at that
meeting with respect to the four conditions:

1. We made clear that we did not agree with a ban on Commissioners and
designated staff taking notes on draft and final presidential directives. But
we agreed to Leitch's request that we defer any request for note-taking on
documents in this category until we had reviewed them. At that point, the
White House will entertain in good faith any requests for note-taking upon a
demonstration of need.

2. Leitch agreed that the reference to "previously designated staff as part of the group
among which information from draft or final presidential directives may be discussed
includes not only staff designated for access to the documents in the NEOB reading
room, but also their designated colleagues (team members and other team leaders with a
need to know) with whom they may share notes and discuss information.

3. We expressed our concern about the "strong presumption" that the Commission
report will not discuss material in drafts of presidential directives that
differs from the final directive, and we emphasized the need of the Commission
to explore and discuss the development of key policies, the options considered,
etc. Leitch acknowledged the legitimacy of these concerns, and agreed that the
presumption is not an irrebuttable one. (We also pointed out that the Gonzales
letter is silent on who decides whether the presumption has been rebutted; it
does 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 fact
of access to these particular Presidential documents during the pendency of the
Commission's investigation. But we said that we could not accept the application of that
condition to the final public Commission report, where it would be difficult -- if not
impossible ~ to avoid indicating or explicitly stating that such documents had been made
available. Leitch agreed that the fourth condition did not address the issue of references
to this fact in the final report.
 a\ON ON

Thomas H. Kean August 19, 2003

CHAIR

Lee H. Hamilton
VICE CHAIR
The Honorable Norman Y. Mineta
Richard Ben-Veniste Secretary of Transportation
Max Cleland
400 Seventh Street, SW
Washington, DC 20590
Frederick F. Fielding
Dear Secretary Mineta:
Jamie S. Gorelick

Slade Gorton Public Law 107-306 directs the Commission to investigate the facts and
circumstances surrounding the September 11, 2001 terrorist attacks, including
John F. Lehman
the nation's preparedness for and immediate response to those attacks. We are
Timothy J. Roemer also mandated to identify and evaluate lessons learned and make
James R. Thompson
recommendations for the future. The statute authorizes the Commission to
secure needed information directly from any agency. The Commission has
thus made numerous requests for documents and discussions with officials
Philip D. Zelikow
EXECUTIVE DIRECTOR
from your department. Given the extraordinary character of the 9/11 events
and our mandate, the scope and sensitivity of our requests have few, if any,
precedents.

We are therefore all the more grateful for the efforts you and your colleagues
have made so far to deal with our many, necessary requests. With so many
other issues confronting you and your staff, we do understand how hard this
can be. We try to make appropriate allowances when we know people are
doing their best. In July the Commission issued an interim report on our
progress so far. In that report we said the coming weeks would be critical.
We promised another report in September that would appraise whether the
level of voluntary cooperation is sufficient so that we will be able tt5Tlo the job
we are charged to do under the statute.

That time is now approaching. You are entitled to some advance notice of
what we need. To make such a decisive appraisal and properly evaluate your
department's cooperation, we will assess:

1. Your policy choices—one way or another—on every access issue posed by

our pending requests.

2. Whether we actually receive the most important categories of documents

that are already overdue. We will follow up to be sure our points of
contact know which overdue documents we regard as litmus tests for
effective cooperation.
301 7'1' Street SW, Room 5125
Washington, DC 20407
T 202.331.4060 F 202.296.5545
www.9-1 lcommission.gov
The Honorable Norman Y. Mineta
August 19,2003
Page 2

We understand that you and your staff may need a few more weeks to finalize
policy choices and push through delivery of key documents. Therefore we
think it is reasonable to wait and assess the situation based on positions
communicated with us and documents that have actually been delivered or
otherwise made available to us by COB on Friday, September 5, 2003.

As the second anniversary of the devastating attacks on our country

approaches, we thank you for working with us to meet the challenge of
understanding how and why America suffered such a devastating attack, and
how to prevent another.

Sincerely,

Thomas H. Kean Lee H. Hamilton

Chair Vice Chair

cc: Rosalind A. Knapp

flUG-22-2003 11:19 202 616 0762 202 616 0762 P.01/01'

U.S. Department of Justice

" ~~~~~~ " Washington. D.C. 20SSO

August 22,2003

Philip Zelikow, Executive Director

National Commission on Terrorist Attacks
Upon the United States
301 7th Street SW, Room 5125
Washington, D.C. 20407

Dear Philip:

I am writing concerning the Commission's request to the Department of Defense for a

transcript of the September 11, 2001 air threat conference call. That lengthy document (it is over
180 pages) discusses highly classified and extremely sensitive national security information. It
also includes very high level pre-decisional discussions, raising the kinds of deliberative process
concerns which have historically required careful analysis within the Executive branch in order to
determine how to appropriately accommodate congressional requests for information.

I apologize for the delay in responding to the Commission's request to review this
document. We are in the process of consulting with the proper officials concerning an
appropriate way to accommodate the Commission's request. I can confirm, however, that we are
prepared to have the Chair and Vice Chair of the Commission review the entire document as
soon 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 expectation
that we will soon be in a position to make large portions of the document available to other
members of the Commission and a limited number of staff. Consistent with our mutual
understanding, with respect to a relatively small subset of the document that discusses
particularly sensitive matters, we will need to specify additional conditions for any further review
the Commission might seek.

Very truly yours,

Daniel Levin

TOTAL P.01