9/11 Working-level Employee

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Background

Time in Berlin

Personnel and their approaches

Oversight and direction ftom high level in embassy

Visa policy in Berlin, written and unwritten

Describe precisely TCN policy

• How many years' residency?
• How many years' school?
• What kind of financial support?
• What other factors?

Egyptian versus Lebanese versus Yemeni

I i - 9/11 Classified Information

Knowledge about AQ presence in Germany

Atta's visa - May 18, 2000 -- Don't recall?

Statements to State - OIG

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Joanne Accolla
From: Tom Eldridge
Sent: Wednesday, February 18, 2004 9:38 AM
To; Joanne Accolla
Subject: FW: Kohn letter ,0 ... ., TT , .
/9/11 Working-level Employee

Kohn letter l.doc

(19 KB)
Please put this in I r's file. Thanks.

-- Tom

Original Message
From: Borek, Jamison S (SBU) [mailto:BorekJS@state.gov]
Sent: Friday, February 13, 2004 5:33 PM
To: Tom Eldridge
Subject: Kohn letter

FYI my interim response.

«Kohn letter l.doc»
 /9/11 Working-level Employee

February 13, 2004

Mr. Stephen M. Kohn

Kohn, Kohn & Colalpinto
3233 P Street, N.W.
Washington, D.C. 20007

Dear Mr. Kohri:

I ani in receipt of your letter of February 12, 2004. I note that] |

| jhas rescheduled his interview with the 9/11 Commission for 10:00
am on February 20, 2004. For your information, Ms. Paula Barton of this
office is planning to attend for the Department of State.

I note that, according to the fax I received, your letter was transmitted
at 5:21 pm yesterday. Your letter makes numerous requests to which a
response is requested by COB today; this deadline is unrealistic in any event.

I am writing to advise you that it will not be possible to provide you

with a response to your letter today. I must also advise you that the
Department of State does not necessarily agree with your various legal
assertions. However, I will look into the questions that you raise and
provide you with a more detailed response in the future.

Sincerely,

Jamison S. Borek
 - JflN.16.2004 7:10PM ISO. 989 P. 1/2

9/11 Working-level Employee

FAX COVER SHEET

To: Mr. Stephen M. Kohn Fax No.: 202-342-6984

Kohn, Kohn & ColapJnto,
UP
Attn: ToinEldridge 202-358-3124
From: Dan Marcus Office Tel: 202-331-4065
9-11 Cotnmission Unclassified Fax: 202-296-5545

Date: January 16,2004 Pages (including cover): 2

Re: Interview with your ch'eatl

www.9-1 lcoiriTnission.gov
 flN.16.2004 7:10PM NO.989 P. 2/2
£'?«,

CHAIR
January 16,2004
Lee H Hamilton 9/11 Working-level Employee
VICE CHAIR
Mr. Stephen M. Kohn.
Richard Bert-Veniae
Kohn, Koha & Colapinto, LLP
FjedF. Raiding 3233 P Street, N,W.
Jamie S. Gorelick Washington, D.C. 20007
Slade Gorton Dear Mr. Kohn:
BobKure/
In response to your letter of January 15,2004, the National Commission on Terrorist
John F. Tj*hffrvar>
Attacks Upon the United States hereby agrees to providcf [with 30 days
TimothyJ. Roesaer advance notice if the Commission is going to release his name and identity in its
reports, or otherwise.
James

Very truly yours,

F.XECVTIVE Duucro*

7^
Daniel Marcus
General Counsel

) 331-4060
PAX 296-5545
Ol/lSjflN.15.2004 * 5:44PM*ao"i"t "v"" NO.967 P.2/5

KOHN, KOHN 8 COLAPINTO. LLP

ATTORNEYS AT I
3233 P STREET, N,w.
WASHINGTON, DC 20007-2756
_ _ FACSIMILE (202) 3*2-69* 4
TELEPHONE (202)342-8980

January 15,2004

CONFTDENTIAL
PRIVACY ACT-PROTECTED

Via Fax

Jamison S.Borek
Assistant Legal Adviser
legislation and General Management
Room 3422
Department of State
Washington DC 20520
Fax. 202/736-7116

William H.Taft,IV
Legal Adviser
Office of the Legal Adviser
Room 6423
Department of State
2201 C St., N.W.
Washington DC 20520
Fax. 202/647-7096

Tamara GeJboin
Acting Counsel
Office of the Inspector General
Department of State
Room 6817
2201 C St., N.W.
Washington, DC 20520
Fax. 202/647-9410
01/lUftN. 15.2004» * 5:44PM'4Ztt*e* *«iin «™» N0.9S7 P.3/5

Thomas Eldridge
Counsel
National Commission on Teirotist
Attacks Upon the United Stales
301 7thSt.,N.W.
Room 5125
Washington, DC 20407
Fax. 202/296-5545
/9/11 Working-level Employee

Daniel Marcus / \l Coonsel / \l Commission on Ter

Dear ShVMadam: / \l M* h Cloyed by^he P^^*^»"

international economist, with respect to the agency's wquestttwrtk* be interviewed by The

National Commission on Terrorist Attacks Upon the United States (hereinafter; the
"Commission" or "9-11 Commission/'). Please be advised tfaatj Pf?85* TL
cooperate with the CwaSuabMPto' just as he has fuUy cooperated wi^m me Ir^pector
Gael's prior audit! Interview before tte 9-11 Commission is currently scheduled
to take place on Tuesday, January 20,2004. \n light of the strong privacy interests ax stake, we are

Tnai^r.tT.g our client's privacy interests as well as protecting his identity in mis matter.
ttierefore,we would like to ensure prior toj [appearance before tie Commission,
there will not be any disclosure of his identity, without his consent by tie Commission, the
agency, the Inspector General or any other government entity, employee or appointee
investigating or reviewing this matter.
We note mat me Commission has agreed that it will not pubh'ciy disclose the names of
State Department officers, in its report or otherwise, without the prior agreement of the
Departmeut. Su Letter from Daniel Marcus, General Counsel, 9-11 Commission, to Karl
Hofinann, Executive Secretary, Department of State (Aug. 15,2003), However, that agreement
between the agency and the Commission possibly permits the agency to wajvej I
privacy interests and allowthe Commission to disclose his identity without] ^consent
01/15JAN.15.20041 * 5:44PM I4ZOWO * *""" •"**" " NO.967 P.4/5

-3-

As the Department of Justice has recognized, Votecting **» privacy interests of

individuals who are named hi investigatory records requires special procedures." Freedom of
Information Act Guide* Privacy Act Overview, pp. 366-367 (Sept 1998). The privacy
interests of individuals who are either the subject of or identified during the course of a
-ovemment investigation must be protected because "members of the public may draw adverse
inferences from the mere feet that an individual is mentioned in the files of a criminal law
enforcement agency." Id, p, 367. Moreover, it is well established mat public employees have a
strong wivacy/reputational interest protected under the Fifth Amendment of the U.S.
Constitution.Rothv. Veteran's Administration, *S6?.2dUQl (9th Cir. 1988) (federal employee
interest in "good name" and "reputation").

Notably, Hoe federal courts have vigilantly upheld the privacy interests of public
employees who are mentioned in government investigatory records and the courts have held that
the identities of such persons, interviewees and witnesses are exempt from disclosure under
FOIA Exemptions 6 and/or 7(C). In fact, the courts have "admonished repeatedly" that
witnesses informants, and investigating agents have a "substantial interest m seeing that their
participation remains secret" King, 830 F.2d 210,233 (D.C. Cir. 1987). See also, Fitzgibbon v.
CIA, 911 F.2d 755,767 (D,C. Cir. 1990) ("the mention of an individual's name in a law
enforcement file will engender comment and speculation and carries a stigmatizing
connotation."); Lesar v. U.S. Dept. of Justice. 636 F.2d 472,488 (E.G. Cii. 1980) ("'It is difficult
if not impossible, to anticipate all respects in which disclosure might damage reputation or lead
to personal embarrassment and discomfort.'"); Maroscia v. Levi, 569 F.2d 1000,1002 (7th Cir,
1977) (protecting references to third parties "to minimize the public exposure or possible
harassment"); Ugarner v. Reno, 2 F. Supp. 2d 400.405 (S.D.N.Y. 1998) (protecting names in
file to avoid retaliation, discrimination, and encourage whistleblowers to come forward in
future); Anderson v. U.S. Postal Serv., 7 F. Supp. 2d 583, 586 (E.D. Pa. 1998) (disclosing
identities of interviewees and witnesses may result in embarrassment or annoyance).

Significantly, "publicity in the popular media cannot vitiate the FOIA privacy
exemption." Bastv. United Slates Dep't of Justice, 665F.2d 1251,1255 (D.C.Cir.1981).
Although there exists widespread media interest in the September 11* tragedy and the
government's investigations into what happened, the privacy interests of individuals,
interviewees and witnesses named hi government reports must still be protected. See also,
Kimberlin v. Dep't of Justice, 139 F.3d 944,949 (D.C. CJr.1998) (official's statement to the press
that tie was investigated and disciplined did not waive his privacy interests for FOIA purposes).

Moreover, the courts have even extended privacy protection to the identities of mid- and
low-level federal employees accused of misconduct as well as to the details and results of any
internal investigations into such allegations of impropriety. See, Stern v. FBI, 737 F.2d 84,94
(D C Cur. 1984); Duntelberger v, Dept. of Justice, 906 F,2d 779,782 (D.C. Cir. 1990). Also
see, McCutchen v. HHS, 30 F.3d 183,187-189 (D.C. Cir. 1994) (protecting identities of federally
employed scientists investigated for possible scientific misconduct.); Heller v. U.S. Marshals
Serv., 65$ F. Supp. 1088,1091 (D.D.C. 1987) ("extremely strong interest'' in protecting privacy
interest of individual who cooperated with internal investigation of possible criminal activity").
01/HJftN.15.2004> I 5:44PM»«0»»« IWHH aw«» w*—*«»« NO.967 P.5/5

/9/11 Working-level Employee

The Privacy Act, 5 U.S.C. §552^pay also be applicable in mis matter. Certainly, any
information pibvided by the agency, oithe Inspector General to the .9-11 Commission concerning
I Lould be protected by the privacy Act Any records rented roifo Inspector
General's priorreviewof this matter, bicludnig the IC's prior interview of| | should
also be protected by the Privacy ActiSee, e.g., 2.FAM 031.4 (Release of 010 Reports,
Documents and JnformaTion); 2 FAM 031,4-1 (Access to Inspection Reports); 2 FAM 031.4-2
(Access to Security Oversight Inspection Reports); ,2 FAM 031,4-3 (Release of Investigative
Information). \e believe that protecting the privacy interests and identity oq j"^ othe

similarly situated agency employees whip coapeaae with;ti& varioaa governmental Investigations
or inquiries into the September 11th tragedy will also serve Jo protect the integrity of the
Commission's review. By assuring employees ^hat their privacy interests and identities win be
fully protected, it will facilitate the frank) Ml arid free disclosure of mfonnstion by agency
employees to the Commission. \t seems that the most expedient w^y to assure that o;ir client's privacy interest

identity will be protected is for the agency and the Inspector General to commit that they will not
provide the Commission with permission to disclose] [identity wlrnoui his consent,
and for the Commission to agree to providel Iwitrt JgcEyg advance notice if Ae
Commission is going to release his name and identity either in bs reports, of otherwise. Please
let us know your respective positions on this matter as soon as possible.
We look forward to hearing from you in writing on Friday, given that! I
interview is scheduled for next Tuesday. Thank you in advance for your prompt attention to this
matter.
Sincerely,

Stephen M. Kohn
David KL ColBfiinto.
Attorneys foj

9/11 Working-level Employee

 Working-level Employee
Joanne Accolla /;
From: Tom Cldridge
Sent: Thursday, January 15, 2004 10:15 AM
To: JoanneiAccolla
Subject: FW: Tirhe Sensitive: Confirmation and Questions Concerning DOS Interview #17

Joanne - / ;

Please put into| Is file. Thanks.

~ Tom I

—Original Message— I
From: Young, Jeffrey A [mailto:youngJA@state.gov1
Sent: Wednesday, January 14, ?004 4:14 PM
To: Tom Eldridge j
Subject: RE: Time Sensitive: Confirmation and Questions Concerning DOS Interview #17

—Original Message—
From: |_
Sent: Wednesday, January 14, 2004 1:39 PM
To: Tom Eldridge'
Subject: Time Sensitive: Confirmation and Questions Concerning DOS Interview #17

Tom,

Thank you very much for rescheduling the interview to 1:30 on Tuesday, January 20, 2004 at the Commission's
Offices, 301 7th Street SW, Room 5125. I'm looking forward to meeting you and Susan Ginsburg at the meeting.

When we spoke recently, you mentioned that the focus of your questions would be on the following areas:

- Visa policies in place in Berlin during my time there for third country nationals

- The process and standards for visa issuances for this general category of applicants

- Review of procedures and standards relating to such applicants, and whether they were written or verbally
communicated

- Level of discretion delegated to consular officers in making visa decisions to approve or deny applicants

-- Use of the 221 (g) refusal clause by officers at Berlin

-- Possible review or discussion of applications refused during the period, obtained from Berlin's files.

- Questions on the Inspection MemCon created by the Department's Office of the Inspector General

Because I would like to give maximum assistance to the Commission - and because the Department's Legal Adviser
also asked me for specifics on what will be covered - if there are other areas you anticipate covering, other
documents you may reference, or further details you can provide concerning the above questions, please let me know.
The Department's Legal Adviser has asked to meet with me early on Friday, January 17 for a pre-brief.

With respect to the interview, I would like to request that my personal representative Stephen Kohn and AFSA General
Counsel Sharon Papp or Attorney Zlatana Badrich be able to attend, and that there be no taping. To ensure accuracy,
we would like to have a copy of the official notes from the interview, if possible.

If you would like to speak with my personal representative, Stephen M. Kohn, Attorney at Law, please feel free to do
so. He can be reached at: Kohn, Kohn & Colapinto, 3233 P Street N.W., Washington DC 20037, Email:
sk@skk.com. Tel. 202/342-6980, Fax. 202/342-6984.
 I look forward to cooperating fully with the Commission and hope to be of assistance.

Sincerely,
- ;;:-;/9/11 Working-level Employee

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 WITHDRAWAL NOTICE

RG: 148
Box: 00002 Folder: 0001 Document: 19
Series: 9/1 1 Commission Team 5

Copies: 1 Pages: 2

ACCESS RESTRICTED

The item identified befow has been withdrawn from this file:

Folder Title:
Document Date: ~~ \:
Document Type: Handwritten Notes
From:
To:

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
general and specific record group restriction statements which are available
for examination.

NND: 46009
Withdrawn: 04-28-2007 by:

RETRIEVAL #: 46009 00002 0001 19

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