draft minutes of 9/11 commission meeting on november 6-7, 2003 with comments

8/14/2019 Draft Minutes of 9/11 Commission Meeting on November 6-7, 2003 with Comments

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N A T I O N A L C O M M I S S I O N O NT E R R O R I ST A T T A C K S U P O N T H E U N I T E D S T A T E SMinutes of the November 6-7, 2003 Meeting

T he C hair called the C omm ission to order at 6:25 p.m. on N ovember 6, 2003. A llC ommissioners were in attendance.Press Guidelines. The Chair expressed his concern over public disclosures of internalC omm ission deliberations, specifically referring to the C omm ission's recent conferencecall. T he C hair stressed that the C ommission should have an equal understanding aboutwhat could and could not be disclosed in public. H e did not necessarily wan t to proposean y guidelines, but he did wan t all C omm issioners to operate un der the same guidelines.The Vice C hair concurred. He stated that public disclosures of internal deliberations havebeen a major obstacle in negotiating with the White H ouse. H e observed that the WhiteH ouse considers the leaks from the C omm ission detrimental, and that there had been atoughening of the W hite H ouse position because of such leaks. o /- c?'C omm issioner Gorelick agreed that it was hard to have a collaborative discussion if theviews of C omm issioners were going to be reflected in the press/She believed that th eC om mission sho uld keep its discussions internal until a decision is made. C omm issionerR oemer agreed with C omm issioner Gorelick that members of the C ommission need toexplain their views. H e stated that it was absurd that everyone else could talk about P D Bsexcept for the C omm ission. H e added that he had not public ly discussed theC omm ission's internal busines s, but rather spoke to his own position on various issues.C omm issioner Gorton alluded to his experience in the R epublican caucus. T he rule wasthat you could speak to your own position, but not to the position of others. H e expressedthe importance of self-discipline, and urged the C omm issioners not to make comm entsthat would be harmful to ongoing negotiations. T he Vice C hair stated that JudgeGonzales knew the Commission's fall-back position when the negotiations began.C omm issioner Ben-V eniste noted that it is extraordinarily damag ing to have the otherside know your fall-back position during a negotiation.T he C hair observed that a big danger for the C omm ission is the appearance of divisionalong partisan lines. H e believed that the C omm ission had avoided partisanship, andurged the C ommissioners to guard against it in any way that they could. I t was importantto stay unified, especially as they begin to take on policy issues. C omm issioner Fieldingadded tha t a leak of classified inform ation would destroy the C om missio n's credibility.C omm issioner Lehman rem inded his colleagues that talking to family members istantamount to talking to the press.C omm issioner Ben-Ven iste stated that he found th e recent letter from T h o m as M o n he imto the General C ounsel to be outrageous.


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/9/11 Classified Information

The Cha ir noted th at Senator Roberts [Chairman of the Senate Select Committee onIntell igence] had sent a memoijandum to the W hite House essen tially quo ting theCommiss ion ' s request fo r documents. H e reported that th e intell igence committees ar esaying that the Congress/is entit led to w hate ver docu ments the Com mission receives,because th e Commission was created by Congress.The Chair summ arized th e discussion, stating that Com missioners cou ld voice theirposit ions once decisions are reached. He advised that Com missioners shou ld refrain fromth e disclosure of internal mat ters ( includ ing th e status of ongoing negotiations) and m u s tno t disclose classif ied information. H e also urged that pub lic com ments remain no n-partisan. / IMinutes. The minu te s from the!September 23 , 2003 and October 14, 2003 meetings wereapproved. iPDBs. The Chair out l ined th e Admin i s t r a t ion ' s offer to the Commission regarding accessto the President's dai ly intell igence briefs (PDBs):1) The Chair . Vice Chair , a f l d t w o Staff members w ould he given arcess tn a mm group

of| FDB i tems. Thesd Items relate to| 9/11 class if ied information JThesefour can take notes on these items and brief th e Commiss ion wi th "wide lati tude."

2) The Chair , Vice Chair , or one staff member ca n view th e r emain ing 300+ PDB itemsto determine whether any th ing in the broader group is material to the Commission'sworks.3) The Com mission wil l then make the case to the W hite House for the transfer of i temsfrom th e large group to the core group.As he told th e Judge, th e Chair said that th e Comm ission wou ld seek to place in the coregroup any i tems tha t it believes it needs in order to fu l f i l l it s mandate . The Judge d idn ' tdisagree with th is p o in tb ut he did not agree either.Commiss ione r Roemer asked th e Chai r wha t he understood to be the processoft ransferring i tems from the large group into the core group. They discussed how a staffmemberlikely the Deputy Directorwould review the i tem s and report o n theirrelevance to the Chai r and Vice Chair . They w ould then make th e case to the Judge onbehalf of the Commiss ion . The Chair believed that if the Commiss ion co u ld make th ecase for access to add itional items, then the Ad m inistra tion wo uld agree; the C omm issionis in its strongest posit ion when it demonstrates th e need fo r access to certain documents.The Chair explained that he had approached the W hite House twice, asking them to addCommissioners and staff to the review group. Both t imes the W hit e House expressed"frustration from the highest level." Ov er the weekend, the W hite House Chief of Staffha d cal led th e C h a i r to give him a "heads-up" that th e impend ing offer was as far as theWhi te House w ould go. The Vice Chair observed that if this was in fact th e final offer,


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and the Comm ission turned it down, the Commission would lose access and the offerwould be off the table.Commissioner Ben-Veniste asked why the proposal grants access to the Chair, ViceChair, and two staffers as opposed to four Commissioners. The Chair responded that staffneeds access to these documents to write the report. The bottom line, the Vice Chairbelieved, wa s that the White House d idn't trust the Comm issioners.Comm issioner Ben-V eniste noted that the perception of the public m atters. This is abipartisan, independent commission. The W hite House is dictating conditions, and tellingthe Commission what it can and cannot do. Comm issioner Roem er agreed, adding that ifno individual Commissioner [beyond the C hair and Vice Chair] sees the PDBs, then therewill be an asterisk after the work of the Commission. If you look at the public'sperception of the situation, the Commission is pretty far out there in terms of requestingaccess. The Commission won' t satisfy the families, and if the Senate goes after the PDBsmore aggressively and subpoenas th e Wh ite House, then th e Congress will be ahead ofth e Comm ission. Com missioner Roemer concluded that the me chanics of the agreementdid not work, and reluctantly arrived at the position to subpoena th e W hite House.Comm issioner Cleland concurred.Commissioner Thompson stated his belief that the Commission will never be ab le tosatisfy th e families. He added that th e Comm ission won' t win a court battle, and such abattle would extend past th e life of the Commission. The General Counsel concurred.Com missioner Thompson added that this arrangement was the functional equivalent ofall 10 commissioners seeing the documents, and he believed it would work.Comm issioner Ben -Veniste asked why they had not received a legal memorandumreviewing the merits of the Executive privilege claim. The Chair and Vice Chair statedthat, in all fairness, they had not asked C ounsel to prepare such a mem orandum . TheGeneral Counsel added that the subpoena would vastly complicate the Com mission'srelationship with th e W hite House. Even though th e subpoena would be technicallydelivered to the CIA, it would be interpreted as a demand on the W hite House. The ViceChair reminded the Commission that they are still seeking very senior-level interviews.The Vice Cha ir said that th e real question is whether th e Commission ca n reasonablyfulfill its responsibilities if it accepts the current proposal. If the Commission rejects theproposal, he stated, then it would not see the documents it needs. If he thought asubpoena w ould get the Commission th e access it needed, then he would vote for thesubpoena.The C omm ission discussed three possible options:1) Accept the offer and issue a statement expressing th e Commission's satisfaction withthe agreement.2) Accept th e offer an d issue a statement expressing th e Com mission's dissatisfactionwith th e agreement.


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3) Reject the offer an d issue a subpoena.The Vice Chair stated tha t he was leaning tow ard Option 1, if the Commission could stateclearly th at its preference was for all ten Commissioners to have access.Com missioner Cleland stated that, in terms of the credibility o f repor t, they need to beable to say that the Commission had access. The statute gives the Commission as anentity the respon sibility, and he shares that responsibility. He wants access; tenCommissioners o r nothing.Com missioner Gorton said that the Com mission's goal was to have sufficient access toinformation in order to d o their job. H e added tha t it wo uld be better to have two peoplereviewing the large group of do cuments. He agreed tha t ten Com missioners were betterthan two , bu t asked where a subpoena w ou ld lead th e Commission. He advised th eCommission to take wh at it was offered, see how it goes, an d then ask for more if it isunsatisfactory.Com missioners Gorton and Lehman stated their belief that there w as a possibility of abetter "best and f inal" offer f rom the White House.Com missioner Ben-Veniste s tated that we ought to be in a position to determine wh ichtw o Commissioners ca n view th e core group, and have tw o people review th e largergroup. If they don 't accept this propo sal, he contended, then th e Commission should beprepared to subpoena.

-3Commissioner Gorelick -aafaittcd that sh e began the conversation with an openas the discussion progressed, she had become more convinced tha t the Wh ite House w astaking an unreasonable position. She did not know how to acquit her personalresponsibility, and w as offended by the idea that th e White House didn't trust th eCommissioners and was trying to decide th e scope of the inquiry.Commissioner Lehman said that th e Commission was looking at the wro ng question.This is not about whether there was a "smoking gun" in the briefings, bu t whether theintelligence com mun ity failed the President. He expressed his belief that the C om missionshould not issue a subpoena. Com missioner Fielding agreed, suggesting that theCommission take what it can get. Com missioner Ro emer reiterated his belief that th eCommission needs access to the PDBs, an d that they wo uld take a hit if they agreed tothe proposal o n the table.Com missioner Gorton suggested that the Comm ission choose Option la, and present adraft statement to the W hite House. If they ca n improve the deal, then th e statement w illimprove. The Commiss ion, it his view, should tell th e Wh ite House th at th e only way itcan avoid a statement critical of its position is to allow more Commissioners an d staff onthe review teams.


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Comm issioner Thompson m oved to accept Option 1, and Commissioner Fieldingseconded the motion. Commissioners Thompson an d Fielding voted in favor of themotion. The m otion failed to carry.Commissioner Roemer moved to accept Option 2, and Commissioner Cleland secondedthe motion. Commissioners Ben-Veniste, Cleland, Gorelick, and Roemer voted in favorof the motion. The motion failed to carry.The Commission agreed that the Chair and Vice Chair should make an appointment withthe White House as soon as possible the next morning, and make another attempt atimproving the proposal. They wo uld report to the White House on the Com mission'sdiscussions this evening, an d propose tha t the y allow four individuals of theCom mission's cho osing to review the core group of PDBs and two to review the largegroup of PDBs.The Commission agreed to vote on the proposal after it had received a response from theWhite House.Department of Defense. The V ice Chair reported on his recent meeting with theSecretary of Defense, D eputy Secretary of Defense, an d other Pentagon officials.Commissioner Gorton and the Executive Director joined the Vice Chair at this meeting.The Vice Chair stated that the Secretary w as very forthright in his support for theCommission's work. He gave the Comm ission everything it asked for; he pledged his fullcooperation, gave direct orders to sub ordinates, and promised to provide a timeline toCommission for the delivery of all documents still outstanding. He was distressed to learnof NO RA D's p erformance. The Vice Chair and Commissioner G orton believed that theSecretary had only learned of these problems the previous evening.The Commissioners received a copy of correspondence between Undersecretary ofDefense of Intelligence Stephen Cambone (USD/I) and the Comm ission's ExecutiveDirector on November 6, 2003. It summ arized understandings reached at the meetingwith the Secretary and set deadlines for the delivery of the three categories of documentsin question: 1) NORAD materials; 2) detainee materials; and 3) high-level policymaterials.Although he welcomed the Secretary's assurances, th e Executive Director recommendedthat the Com mission issue a forthwith subpoena to the Department of Defense for thefirst category of documents relating to NORAD. He added that trust with NORAD hadbeen shattered, an d that the staffparticularly Team 8felt strongly about thisrecommendation.The Executive Director then recommended that the Comm ission issue a conditionalsubpoena for the second category of docum ents relating to detainees. Such an actionwould allow the Chair and Vice Chair to issue a subpoena without further reference with


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th e Com mission if the Pentagon did not meet the deadlines outlined in the Novem ber 6USD/I memorandum.In regard to the third category high-level policy documents he Executive Directorrecommended that th e commission not issue a subpoena at this time, stating that th ebehavior of the Department was not as egregious. He had personally seen 20 peopleporing through 90 boxes of docume nts recently received from th e archives, and he didno t think that a subpoena w ould hasten the delivery of those docum ents. He confirmedthat the Commission had asked fo r these documents on July 3, 2003, an d CommissionerGorelick stated her belief that th e Pentagon had only requested tho se docum ents recently.The Exec utive Director stated that th e Com mission m ust decide whe ther satisfactionderived from th e subpoena's punitive use is outweighed by the costs associated withissuing one. Commissioner Fielding asked why this calculation did not apply to NORAD.The Execu tive Director exp lained that th e situation bordered on willful concealment, an dthat circumstance s dictated formal legal compulsion.The Vice C hair said that he could not support a subpoena because of the Secretary'spersonal assurances to cooperate with every one of his requests. The Vice C hair statedthat he understood the position of the staff, but suggested that the Com mission'sperspective needs to be broader. Commissioner Lehman concurred, but asked that th erecord reflect that he supported a subpoena to the Defense Department three weeks prior.Commissioner Thompson also concurred with th e Vice Chair.The C hair voiced the staff 's concerns that there is more inform ation out there. TeamLeader Jo hn Farmer had expressed his considerable frustration with NORAD to theChair. The General Counsel stated that there was strong sentiment among some staff torecommend an even broader subpoena to DoD, an d that Team Leader Dieter Snell, forexample, was extremely d isturbed by the delay in detainee materials.The V ice Chair stated th at he would be comfortable w ith a conditional subpoena for theNORAD an d detainee documents, with a letter to the Secretary indicating as much. Heobserved that there is a level of frustration in the Commission to issue a subpoena againstsomebody, to let them know that th e Commission is exercising th e power it has. Thismade him u ncom fortable. The Secretary had expressed his support for everything theVice Chair requested and set delivery deadlines within 24 hours after th e meeting.Commissioner Ben-Veniste stated th at there must/be integrity in the process an dexpressed his concern that the staff was becomjng demoralized. Commissioner Gorelickexpressed her support for the staff as well. hcy had not gotten the D epq(t|ment ofDefense to salute o the Commission's tremendous detriment an d had lost 2-3 monthsas a result.Comm issioner Gorton said that the situation was so unsatisfactory that a subpoen a wasappropriate. He agreed that the Secretary was high ly cooperative, but he added that i t wasimportant for the Co mm ission to be credible.


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Commissioner Ben-Veniste moved that the Commission accept th e staff recommendat ionfo r th e first category of documents , and subpoena th e Depar tment of Defense for al lNOR AD-related mater ia l s . The C hair and Comm iss ioners B en-Venis te , C leland,Gorelick, Gorton, and Roemer voted in favor of the mo tion. The V ice Chair andComm issioners Fie lding, Lehman, and Thompson opposed. The mot ion carried by a voteof 6-4.Commissioner Gorton moved that the Commission accept the staff recommendation forth e second and third categories of docume ntsa con di t ional subpoena for detaineematerials and no immediate action on high- leve l pol icy documents. The Commissionvoted u n an imo u s ly in favor of the mot ion .The Exe cut ive Director ann ounced that th e W h i t e House Chief of Staff wou ld meet withth e Chair and Vice Chair at 9:45 a.m. the f o l lowing day. The m eeting adjourned a t 9:40p.m.

The meeting resumed at 9:00 a.m. on Friday, November 7, 2003, The Chair, Vice Chair ,an d Com miss ioners Ben-Ven is te , C leland , Gorton Fielding , Lehman, Roemer, andThompson were present.

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PDBs. T he Ch ai r repor ted tha t he and the Vi c e C ha i r ha d met w i t h th e C h i e f of Staff andW h i t e House Coun sel that m orn ing . From the outset , Card an d Gonzales made i t clearthat th e entire discussion w as not ional ; any decision woul d be the President's.The Vice Cha i r sa id that the m eet ing was cordia l . The Chief of Sta ff stated tha t th eAd m inis t ra t ion 's chief goal w as to protect the presidency not the President. He t hough tth e A dm inis t ra t ion 's proposa l offered unprecedented access a nd w a s fo rw a rd- l ea n i ng .T he situation w as crea t ing problem s for them o n the Hil l , and they expressed t he i rdispleasure over t h a t morning ' s N ew York Times art icle.T he Ch ai r presented th e Commiss ion 's counter-proposa l to al low four individuals of theC om mi s s i on 's c hoos i ng rev i ew th e core group of PDBs and two to review th e largergroup.

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They l i s tened ca refu l ly a n d cou nte red. Fi r st , they be l ieved tha t th e Co m m i s s i o n ' sdo c um e n t request w a s broader than it s m a n d a t e . The w o r d i n g w a s s o broad tha t it w o u l di nc lude , for e x a m p l e , PD B i t e m s on Pakis tan, even if there w as n o r e l a t i o ns h i p to a lQaeda. They wanted th e Commission to sharpen it s request. Second, they would al lowtw o staff members o f the Com mis s ion 's choosing to rev iew the la rger se t o f PDB i tems.T hi r d , they accepted th e proposal tha t four people of the Co m m i s s i o n ' s c h o o s i ng c o u l dreview th e core set of PDBs.They made c lear th a t these were jus t the i r sugges tions , an d tha t the Pres ident had n o tau thor ized them to accept an y changes to the Whi te House proposa l . Bu t because Carda n d G o nz a l e s w e r e d i s c u s s i ng c h a nge s , th e Cha i r be l ieved th a t there w a s room fornegotiation. They indica ted tha t they would speak to the President as soon a s possible.Comm iss ioner Roemer asked i f the two i n d i v i d u a l s r e v i e w i ng th e larger group were staffmembers o r anyon e of the Com mis s ion 's choosing . The Chai r and Vice Chai r be l ievedtha t under th e proposed agreement, a s they un derstood i t , the two representativesr e v ie w ing th e l a rger g roup wou ld be members of the s ta f f .Comm iss ioner Roemer asked abou t the d is t inc t ion be tween PD B i tems and the ent i reP D B, a s k i n g h o w t h e Co m m i s s i o n c o u l d "prove a negative" if i ts members could not seeth e ent i re b r ie f . The Exec ut ive Direc to r responded tha t the Co m m i s s i o n ' s do c um e n treques t had asked fo r i tems , no t ent ire b r ie fs . Somet imes these i tem s am ou nt topar ag r aphs ; sometim es the y are pages long.Commiss ioner B en -Ven i s t e s a i d t h a t he w as prepared to compromise w i t h the W h i t eHouse on terms tha t preserve th e in tegr i ty , independence , a n d b i p a r t i s a ns h i p of theC ommi s s i on . H e c o m m e nde d t h e Ch a i r a nd V i c e Ch a i r f o r m o v i ng t h e Wh i t e H o us etoward a posi t ion tha t th e Co m m i s s i o n c o u l d a c c ep t. H e asked i f the Co m m i s s i o n w o u l da sk for a cer t i f ica t ion tha t the i tems received are the on ly responsive i tems. TheExecu t ive Direc tor expressed h is suppor t fo r the idea . Comm iss ioner B en-Ven is te askedfur ther if the C o m m i s s i o n w a s comfor tab le w i t h a n y res t r i c t ions on b r i e f i ng s b a c k to theCommiss ion. The Chai r responded tha t th e W h i t e H ous e is no t going to censor a n y t h i n g .Senator Gorton urged the Co m m i s s i o n to accept th i s a r r a n g e m e n t if approved by thePres ident . He depar ted the meeting and gave Commiss ioner Lehma n h is p roxy.Co m m i s s i o ne r L e h m a n s t a t ed t h a t th e Co m m i s s i o n s h o u l d n ot unde r e s t i m a t e thei mpor t an ce of r e a c h i ng a n agreement .Commiss ioner C l e l an d asked if the proposal left the C o m m i s s i o n in a s i t u a t i o n in w h i c hall ten Comm iss ion ers cou ld no t see the core g rou p of| |PDB i tems. The Cha i rcon f i r med tha t th i s was the case , but added that aR members o f the Commiss ion could bebriefed. .Comm iss ioner Roemer asked how t h ey w o u l d e x p l a i n s uc h a n a r r a ng e m e n t to the p u b l i c .Commissioner Ben-Veniste recommended t h a t the Commiss ion announce tha t i t has the

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access and independence that it needs to do its job. C omm issioner Cleland disagreed. T heVice Chair added that if they reached an agreement, the Commission would respondpositively.DoD Subpoena Revisited. The Vice Chair announced that he would speak withSecretary Ru m sfel d at 5:00 p.m . that day. The C omm ission w ill deliver the subpoena onMonday, November 10, but release a statement that day. Commissioners Lehman andBen-Veniste urged the staff to word the statement in such a way tha t it is directed atNORAD. The Executive Director explained that they intended to praise the Secretaryindividually, but criticize NORAD.Commissioner Ben-Veniste cautioned against being overly praiseworthy. He asked ifsubpoenas w ould go out to DoD if their deadlines were not met. The Chair and ViceChair responded that he was correct.Commissioner Roemer asked for a report on the effectiveness of the FAA subpoena. TheGeneral C ounsel stated that he wou ld be happy to provide a reply.Final Report. The Executive Director presented a staff proposal for the drafting an dpublication of the Commission's final report.He proposed that the Commission produce an unclassified, book-length report, anexecutive sum mary, an d nine supporting volumes, most of which would remainclassified. He proposed that the staff begin drafting the final report in the early months of2004. T he report w ould be a rolling draft, with input from the teams and theirmonographs informing the narrative on a co ntinuous basis. The monographs would nearcompletion in February an d March. The staff would produce a final draft for theCom mission's consideration thro ughou t April and May. With th e manuscript completedby the end of Ma y, the Com mission could sched ule the public roll-out for late June,leaving an additional month fo r press appearances in July.The C hair noted tha t the Com mission had set aside funds to promote their policyrecommendations at the end. H e expressed his hope that the Commission'srecommendations appear in both party platforms in 2004.The Executive Director asked th e Commission to consider producing hard- and soft-cover versions of the final report through a commercial pub lishing house. With such apartnership, the Commission's report would be widelyand affordablyavailable to theAmerican people. The Executive Director asked for the Commission's authority to seekproposals from three publishing housesPublicAffairs, Times Books, and W.W. Norton.In response the questions ab out profits, the Exec utive Director stated tha t theCommission would waive all royalties, and try to keep the cost down witho utcompromising the quality of the publication. After a discussion of donating profits tocharity, th e consensus was that the Commission should not pursue such an arrangement.

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The Commissioners discussed the difficulty of the declassification process, a lluding tothe experience of the Joint Inquiry. The Executive Director described why it would be inthe Comm ission's interest to draft w hat it believed to be an uncl assified report requiringprepublication review versus a classified report requiring th e more arduousdeclassification process.Commissioner Roemer noted that it wil l be very difficult to draft the report whilecontinuing to review do cum ents, conduct interviews, and holding hearings. Th eExecutive Director agreed that it wo uld be a difficult task.Comm issioner Ben -Veniste suggested that th e NORAD/FAA hearing be rescheduled forearly M arch. The Ch air agreed to find a date for the NORAD/FAA hearing that wo uldwork for Commissioner Ben-Veniste.The Chair an d Vice Chair asked th e staff to add more m eeting dates to the Commission'scalendar, especially in the March-May corridor.Next Public Hearing. Professional Staff Member Emily Walker walked through th eagenda for the Novem ber 19 public hearing on "Private/Public Sector Partnerships forEmergency Preparedness" at Drew University. Professional Staff Member KevinShaeffer explained details regarding th e Commission's visit to Ground Zero.Oath Resolution. The Commission approved a resolution authorizing th e Chair an d ViceChair or Executive Director an d General Counsel to authorize th e administration of oathswithout further reference to the C omm ission. The resolution w as ratified by v oice vote.Staff Change. The Executive D irector ann ounce d that Chris Healey had agreed to serveas the leader of Team 6, and that Barbara Grewe would now report to the Front Office asSenior Counsel for Special Projects.The City of New Y ork. The Executive D irector explained the staff 's dissatisfaction withthe NYC docum ent production process, and asked if any members of the Comm issioncould assist. Comm issioner Lehm an suggested that Senator McCain is very closewithMayor B loomberg. The Executive Director agreed to provide talking points forCommissioner Lehman's conversation with th e Senator.The meeting adjourned at 1:02 p.m.

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NOU 21 '03 13=48 FR MBR8.M LLP TO 92022965545 P.01/04

MAYER, BROWN, ROWE & MAW LLPFACSIMILE COVER SHEET

1909 K Street, N.W,Washington, D.C. 20006-1101Main phone: (202) 263-3000

FROM:Direct phone:Direct fax:

Richard Ben-Veniste(202) 263-3333(202) 263-5333

TO THE FOLLOWING:Name CompanyMr. Chris Kojm 9-11 Commission

Date/time: 11/21/2003 - 1:17 pmPages: ALL P A G E S M U S T BE N U M B E R E DCode: 03007903

Fax # Phone #202-296-5545

MESSAGE:

Chris,attached please find my suggested edits to statements attributed to me in the Minutes of the November 6-7Commission meetings.Please let me know if you have any questions.Many thanks.

Richard

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NOU 21 '03 13=48 FR MBR&M LLP TO 92022965545 P.02/04

N A T I O N A L C O M M I S S I O N O NT E R R O R I S T A T T A C KS U P O N T H E U N I T E D S T A T ESMinutes of th e Novem ber 6-7, 2003 Meeting

T he C hair called the C omm ission to order at 6:25 p.m. on N ovem ber 6, 2003. A llC omm issioners were in attendance.Press Guidelines. The C h ai r expressed his concern over p ublic disclosures of internalC ommission deliberations, specifically referring to the Commission's recent conferencecall. T he C hair stressed that th e C ommission should have an equal understanding aboutwhat co uld and could not be disclosed in public. He did not necessarily want to proposean y guide lines, but he did want all C om missioners to operate under the same guidelines.T he Vice C hair concurred. He stated that public disclosures of internal delibe rations havebeen a ma jo r obstacle in negotiating with the White House. He observed that the WhiteHouse considers the leaks from the C omm ission d etrimental, and that there had be en atoughening of the White House position because of such leaks.C ommissioner Gorelick agreed that it was hard to have a collaborative discussion if theviews of C ommissioners were going to be reflected in the press. She believed that theC ommission should keep its discussions internal until a decision is made. C ommissionerR oemer agreed with C omm issioner Gorelick that members of the C omm ission need toexplain their views. He stated that it was absurd that everyone else could talk about PDBsexcept for the C ommission. He added that he had not pub licly discussed th eC om m ission's internal business, but rather spoke to his own position on various issues.C ommissioner Gorton alluded to his experience in the R epublican caucus. The rule wasthat you cou ld speak to you r own position, but not to the position of others. He expressedthe importance of self-discipline, and urged the C ommissioners not to make commentsthat would be harmful to ongoing negotiations. T he Vice C hair stated that JudgeGonzales knew the C omm ission's fall-back position whe n the negotiations began.C ommissioner Ben-Veniste noted that it is extraordinarily damaging to have the otherside kno w your fall-back position during a negotiation.T he C hair observed that a big danger for the C omm ission is the appearance of divisionalong partisan line s. He believed that the C omm ission had avoided partisanship, andurged the C ommissioners to guard against it in any way that they cou ld. It was importantto stay unified, especially as they begin to take on policy issues. C omm issioner Fieldingadded that a leak of classified information would destroy th e C omm ission's credibility.C ommissioner Lehman reminded his colleague s that talking to family members is ftantamount to talking to the press. ^C omm issioner Be n-Ven iste stated that he found the recent letter from Thomas Monheim / /


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9 / 1 1 Classif ied Information

The Chair noted that Senator Roberts [Chairman of the Senate Select Committee onIntelligence] had sent a memorandum to the W hite H ouse essentially quoting theCom mission's request fo r documents. He reported that the intelligence committees aresaying that the Congress is entitled to whatever documents the Commission receives,because the Commission was created by Congress.Tie Cha ir summ arized the discussion, stating that C omm issioners could voice theirpositions once decisions are reached. He advised that Commissioners should refrain fromthe disclosure of internal matters (including the status of ongoing negotiations) and mustnot disclose classified inform ation. He also urged that public comm ents remain non-partisan. \.The minutes from the September 23,2003 and October 14 , 2003 meetings were

approved.Pt)Bs. The Chair outlined the Administration's offer to the Comm ission regarding accessto the President's daily intelligence briefs (PDBs):1) the Chair, Vice Chair> and two gtafTmembers would be given access to a corejyoup

ofj~|PDB items. ThescrPlitems relate to[^ J . . _ _l . i - 9/1] - classi f ied i n f o r m a t i o nfour can take notes on these items and brief the Commission with "wide latitue."2) The Ch air, Vice Chair, or one staff member can view the remaining 300-t- PD B itemsto determine whether anything in the broader group is material to the Commission's

works.3) The C ommission will then make the case to the White House for the transfer of item s

from the large group to the core group.As he told the Judge, the Chair said that the Commission would seek to place in the coregroup any item s that it believes it needs in order to fulfill its mandate. The Judg e didn'tdisagree with this pointbu t he did not agree either.Commissioner Roemer asked the Chair what he understood to be the process oftransferring items from the large group into the core g roup. They discussed how a staffmemberlikely the Deputy Director would review the items and report on theirrelevance to the Chair and Vice Chair. They would then make the case to the Judge onbehalf of the Com mission. The Chair believed that if the Comm ission could make thecase for access to additional items, then th e Administration would agree; the Commissionis in its strongest position when it demonstrates the need fo r access to certain documents.The Chair explained that he had approached the White House twice, asking them to addCommissioners and staff to the review group. Both times the White H ouse expressed"frustration from the highest level." O ver the weekend, the W hite House Chief of Staffha d called the Chair to give him a "heads-up" that the imp ending offer was as far as theWhite House would go . The Vice Chair observed that if this was in fact the final offer,


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and the Commission turned itwo uld be off the table.j , the Commission would lose access an d the/ftfer

Commissioner Ben-Venis te as k ed /h y the proposal grants access to tha/Chair, ViceChair, and two staffers as opposed \ four Commissioners. The Chai^responded that staffneeds access to these docum ents to Wite the report. The bottom IOK , the Vice Chairbelieved, was that the White House didn't trust the Commissioners.

(^Commissioner Ben-V eniste noted that the perception of th/public matters. This is abipartisan, independent commission/yhe White House ^dictating conditions, an d tellingthe Co mm ission what it can and cannot do. Comm issioner Roemer agreed, add ing that ifno individual Comm issioner [beyond the Chair and Vice Chair] sees the PDB s, then therewill be an asterisk after the wo rk of the Commission. If you look at the pub lic'sperception of the situation, the C omm ission is pretty far out there in terms of requestingaccess. The C omm ission won 't satisfy the families, and if the Senate goes after the PDBsmore aggressively and subpoenas the W hite House, then the Congress w ill be ahead ofthe Commission. Commissioner Roemer concluded that the mechanics of the agreementdid not w ork, and reluctantly arrived at the position to subpoen a the W hite H ouse.Commissioner Cleland concurred.Commissioner Thompson stated his belief that the Commission will never be able tosatisfy the families. He added that the Commission won't win a court battle, and such abattle would extend past the life of the Comm ission. The General Counsel con curred.Commissioner Thompson added that this arrangement was the functional equivalent ofall 1 0 comm issioners seeing the documents, and he believed it would w ork.Comm issioner Ben-Veniste asked whyttheVhad no t received a legal m emorandumreviewing the merits of the Executive privilege claim. The Chair and Vice Chair statedthat, in all fairness, they had not asked Counsel to prepare such a memorandum . TheGeneral C ounsel added that the subpoena would v astly complicate the Commission'srelationship with the W hite House. Even though the subpoena w ould be technicallydelivered to the CIA, it would be interpreted as a demand on the White House. The ViceChair reminded the Commission that they are still seeking very senior-level interviews .The Vice C hair said th at the real question is whether the C om mission can reasonablyfulfill its responsibilities if it accepts the current proposal. If the Commission rejects theproposal, he stated, then it wou ld not see the docu ments i t needs. If he though t asubpoena would get the Commission the access it needed, then he would vote for thesubpoena.The Com mission discussed three possible options:1) Accept the offer and issue a statement expressing the Commission's satisfaction with

the agreement.2) Accept the offer and issue a statement express ing the Com m ission 's dissatisfactionwith the agreement.

** TOTfiL PflGE.04 **

draft minutes of 9/11 commission meeting on november 6-7, 2003 with comments

Documents