Dm B2 Adam Ciongoli Fdr- Memos Re Access To Joint Inquiry Documents 226

February 13, 2003 MEMORANDUM To:

Eleanor Hill

From:

Philip Zelikow

Subj:

Commission Request for Access to Information from the Joint Inquiry

Following up on our telephone conversation today, I would like to help clarify a way forward to facilitate cooperation between the Joint Inquiry and the National Commission on Terrorist Attacks Upon the United States. When investigating "facts and circumstances relating to the intelligence community," the statute requires the Commission to "first review the information compiled by, and the findings, conclusions, and recommendations of, the Joint Inquiry." We are then allowed to pursue our inquiry if the Commission makes the three findings specified in the law. (Section 604(b) of the Intelligence Authorization Act for FY 03.) In practice the prerequisite is broader, since even on the policy parts of our inquiry, any agency that has already given you documents will ask us at the outset if we have accessed the materials they have already made available to you. When the law refers to "information compiled by ... the Joint Inquiry" I believe this includes: documentary evidence or written briefing material obtained from other agencies; testimony of witnesses, associated exhibits, and transcripts of all hearings conducted by the Joint Inquiry; and reports, transcripts, or other records of interviews that the members or the staff conducted with relevant officials in the executive branch. However, I believe the term "information compiled by ... the Joint Inquiry" does not include records of the Joint Inquiry's internal deliberations or internal communications that do not contain relevant evidence about the outside events. In other words, we're studying the attacks on America and the related policies of the U.S. government past and future. We're not mandated to study the Joint Inquiry itself or its internal workings, such as the interactions among members of Congress or between members and staff. In addition, you know that we are ready to develop careful, tailored arrangements for exchanging or accessing especially sensitive material, so that the Commission's leadership can make appropriate judgments about how material is distributed, beyond the

formal security clearance requirements. In making these judgments I know that we will be very attentive to suggestions from the leadership of the Joint Inquiry. As a practical matter, I hope that the HPSCI - after due consultation with Senate counterparts - will authorize appropriate access as outlined above, as soon as possible. Most urgently, I hope the HPSCI - after due consultation - will allow you and Rick to begin briefing me and my deputy (Chris Kojm) and authorize us to work together on the modalities for later Commission review of the information the Joint Inquiry has compiled and the resulting findings. One of our commissioners, Slade Gorton, met earlier today with Senator Roberts to raise these issues directly with him. Slade thought the discussion was very positive, and told me that Senator Roberts stands ready to help the Commission get the access that it needs and that the law requires.

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Tom Kean, Lee Hamilton, Slade Gorton

NATIONAL COMMISSION ON TERRORIST ATTACKSUPON THE UNITED STATES March 21, 2003 THOMAS H. KEAN Chair LEE H. HAMILTON Vice Chair

RICHARD BEN-VENISTE

MEMORANDUM To:

Adam Ciongoli

From: Philip Zelikow Subj:

Request for Access to Information from the Joint Inquiry

MAXCLELAND FRED F. FIELDING JAMIE S. GORELICK SLADE GORTON JOHN F. LEHMAN TIMOTHY J. ROEMER JAMES R. THOMPSON

PHILIP D. ZELIKOW Executive Director

TEL (202) 331-4060 FAX (202) 296-5545 WWW.9-11COMMISSION.GOV

In its mandated investigation of the "facts and circumstances relating to the intelligence community," the statute that created the Commission requires it to "first review the information compiled by, and the findings, conclusions, and recommendations of, the Joint Inquiry." We are then allowed to pursue our inquiry if the Commission makes the three findings specified in the law. (Public Law 107-306, Section 604(b).) The Commission has not yet been able to begin this work under the statute. Although the relevant congressional authorities have agreed to provide the necessary information compiled by the Joint Inquiry to the Commission, the Joint Inquiry staff has not yet been able to proceed because of objections interposed by the Department of Justice and the FBI. After inquiring with the Joint Inquiry staff, I am not aware of any other pending objections from any other agencies. With respect to Justice concerns, the March 14 letter to Senator Roberts and Congressman Goss from Acting Assistant AG Jamie Brown stated that "if the Committee is willing to make the Report available to the Commission, subject to the Committee's own rules and procedures concerning access to and handling of classified information, we have no objection, provided that the Commission agrees to abide by the same access and disclosure provisions that were agreed to between DOJ/FBI and the Committee." As to that past agreement, the same Justice letter described it as "a de facto agreement" that limited access to and knowledge of certain FBI information "only to the Chairs, Vice-Chairs, and specified staff." This description seems to be incorrect. This sensitive information was apparently shared by Justice and FBI with all Members of Congress serving on both committees in the Joint Inquiry, for instance in Director Mueller's testimony in closed session to the full Joint Inquiry in October 2002. Further, this information is extensively discussed in the Joint Inquiry's report, a report that has been made available to all members of both intelligence committees in the 107th Congress. With respect to the information of concern, the Commission is indeed ready to abide by the same access and disclosure provisions applied by Justice and FBI to the Joint Inquiry. Therefore access to Report Finding 5(d); Part Two, Section IV; and Part Four and related portions of the Report will be limited

only to the commissioners themselves and tightly restricted within the staff to the few individuals with the requisite security clearances and a specific need to know. This is, of course, in addition to the rules and procedures that accompany the handling of highly classified national security information. Moreover, while the classified character of the Report should provide for the confidentiality of any information pertaining to Mr. Zacarias Moussaoui, if a portion marked or unclassified version of the Report is prepared, we will refrain from public disclosure of portions regarding Mr. Moussaoui prior to his trial as needed to insure continued compliance with relevant court orders and Local Rule 57 of the Eastern District of Virginia. Since the Commission "agrees to abide by the same access and disclosure provisions that were agreed to between DOJ/FBI and the Committee," we hope this memorandum now lifts any remaining objections to Commission examination of the Joint Inquiry information it is required to review before doing so much of its work. Looking beyond this particular issue, the Commission is determined to prevent the unauthorized disclosure of any sensitive information it receives in the course of its work. The Chair and Vice-Chair of the Commission remain prepared to consider various other special restrictions on the handling of specific information or particular reports, as these concerns arise. We stand ready to work together with you to find the right approach on a case-by-case basis.

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Kenneth Wainstein Eleanor Hill

FOR OFFICIAL USE ONLY (with SECRET attachment) April 7, 2003 MEMORANDUM To:

Eleanor Hill

From:

Philip Zelikow

Subj:

National Commission Requests for Joint Inquiry Information

This memorandum follows up on our constructive discussions on April 3 and helpful conversations the next day with Adam Ciongoli, the President's designee for coordinating Executive Branch cooperation with the Commission. So that everyone can track the complicated status of these varied issues, I am sharing a copy of this memo (in its unclassified version, without the attachment) with Mr. Ciongoli and with HPSCI counsel Pat Murray. Chairman Goss has informed us that he prefers to defer a discussion of any outstanding issues with Tom Kean and Lee Hamilton until we have done all we can, especially with Mr. Murray's help. I.

The Joint Inquiry Report

Prior agreements have cleared the way for access to the Joint Inquiry Report by the commissioners and selected staff. The entire report includes material that has been designated as especially sensitive by Justice and FBI. The codeword we informally use for this material is DSM (designated sensitive material). Currently the report with the DSM is accessible only at the Ford Building, with no copying or notetaking permitted, and only to commissioners and selected staff with a need to know.1 At our request, the Joint Inquiry staff has prepared a version of the report from which the DSM material has been redacted (following the guide prepared by FBI). This version of the report remains hifihjydassified and includes material in a compartment that has the unclassified trigraph|__j This redacted report is also accessible to the Commission only at the Ford Building with no copying permitted. Notetaking is allowed, but the notes are being held at the Ford Building. Again this version of the report is accessible only to commissioners and selected staff who have the requisite need to know to be briefed into thel [compartment.2

1 The six/commission staff members who now have DSM access, after discussion with Mr. Ciongoli, are Zelikow, Kojm, MacEachin, May, and two former Joint Inquiry staffers - Jacobsen and Moon. Another former Joint Inquiry staffer, Kara, had access to this material while working on the Hill, but his current dut,HSs do not require access to this material. We expect to add to this list - sparingly - as additional staffers are cleared and the Commission makes further decisions about the scope of its work.

/.•'• Staff access tol [material is similarly restricted, though to an overlapping and somewhat different set ,/:•'•' of individuals. We have provided and remain ready to provide the names of the staff who are receiving / access to this compartment,

9/11 Classified Information

FOR OFFICIAL USE ONLY (with SECRET attachment) Currently, however, commissioners cannot access the Joint Inquiry Report at the Commission offices. Cleared staff cannot have ready access to their notes on the redacted version Report and cannot readily refer to the Report. Further, no staff can view any page of this voluminous report, even at the Ford Building, unless they are among the select group cleared for the DSM oj [fractions of it. We understand that Chairman Goss is reluctant to provide a copy of the Report to the Commission, in any form, until a declassified version of the Report has been cleared and sent to the government printer. You told me you hoped this could happen in about six weeks - or late May. Chairman Goss wants to help the Commission succeed and he has already been helpful, for example in his leadership of the Committee's prompt and positive response to our February 1 3 written request for access to Joint Inquiry materials. We therefore hope you can ask him to consider the difficulty commissioners and staff will encounter in making effective use of the Report at an early phase of our work, as the law mandates us to do. Further, we request that portions of the redacted Report that do not containl [material be reclassified to remove that codeword marking from those pages, so that we may provide access to this important work for commissioners in a slightly less constrained work environment and so that we can broaden distribution of these portions of the Report to cleared staff who need to review this work, yet do not need .access to thej | material. In addition, our commissioners' or staffs notes on any part of the Report should be retained by the Commission, with appropriate contrbls. We are prepared to make cleared staff available to help in any way. II.

Transcripts of Joint Inquiry Hearings

Working with you, we have identified 19 hearings that contain evidence falling within the scope of our original February 13 request. Nine of these were public,, hearings. You have agreed to provide copies of the transcripts of those hearings. to the Commission as soon as possible. Of the ten closed hearings, two involve DSM; we believe three involve! [material. Mr. Ciongoli has agreed that the Commission can access those hearing transcripts on the same ground rules of compartmented access on.a need to know basis that we have already agreed upon for such material,... A portion of one hearing (on 9/12/02) may Contain material involving Another compartment, and Mr. Ciongoli expects to review this ,.;: and perhaps other transcripts in the next few days to see what, if any, further restrictions /y1'' he may propose for this or other very specific material. ~ 9/11 Classified Information

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FOR OFFICIAL USE ONLY (with SECRET attachment) With that understanding, you are prepared to grant the Commission access to transcripts of closed hearings, and grant them without any further delay in the case of all hearings for which there are no outstanding Executive Branch concerns. But you reported that Chairman Goss doubted whether he could supply the Commission with copies of those transcripts, questioning whether HPSCI or House rules prohibit the provision of such a copy. We hope the HPSCI resolution authorizing Commission review of the information compiled by the Joint Inquiry does afford the Chairman sufficient discretion about the modalities of how he makes this information available to us. In the analogous case of the IG or intelligence community exceptions already covered in HPSCI Rule 12, the Chairman appears to have such discretion. Obviously the language of the HPSCI resolution on the Commission is important. We have not been given access to the text of this resolution and would be grateful for a copy. Obviously you can see the benefit from our perspective, even the necessity, of obtaining a copy of these transcripts so that commissioners and staff can study them at length and have them available for ready reference, including in the evenings and on weekends. III.

Joint Inquiry Interview Reports

You have helpfully offered to provide the Commission with a copy of the hundreds of the interview reports prepared by the Joint Inquiry staff. You asked that we first identify which of those reports are relevant to our work. Attached you will find the classified index of interview reports in the Joint Inquiry database. We have lined out the reports we believe we do not need. You and Rick now plan to review all those reports, redact from them any internal Committee material outside the scope of the Commission's February 13 request, and then copy them for us. We are happy to make former Joint Inquiry staffers Jacobsen, Kara, and Moon available to assist you in this work, under your supervision. In addition to the interview reports listed in the attached index, we also request copies of the interview reports related to the DSM. These reports (there are about 30 of them) were not uploaded into the database and do not appear on the index. Jacobsen can help locate them, along with associated documents. Mr. Ciongoli has agreed that the Commission can have access to all interview reports, subject once again to the same distribution limits and special compartmented access that we have described earlier and will cover Commission handling of all other Joint Inquiry material. IV.

Other Joint Inquiry Documents and Work Products

FOR OFFICIAL USE ONLY (with SECRET attachment) In addition to the material we have identified above, and apart from the CIA, FBI, and NSA material discussed later in this memo, the Commission will need to review several other sets of information compiled and produced by the Joint Inquiry. These are: 1. Documents obtained from agencies other than CIA, FBI, and NSA. We will endeavor to review needed CIA, FBI, and NSA documents from among the holdings that were already created at those agencies for the benefit of the Joint Inquiry. That option may not be similarly available for information you have obtained from agencies other than those three (such as DOD, State, DOT, etc.). We request, for example, a copy of: Stephen Hadley's written answers to the Joint Inquiry's questions, submitted on behalf of the NSC staff. fc

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The compilation of all agency answers to the initial 13 question interrogatory sent to agencies while Britt Snider was directing the staff.

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The CD that contains Kara's work files (John Ivicic has this), which include such things as the report of his OFAC interview.

If you can provide us with a copy of the index of document files held at the Ford Building we can work with you identify our needs more specifically. 2\t on thej

Islides.' This is in|

|work files.

3. The excerpted distillation of SEIBs in another file that Kara can locate. /4. The analytic exhibit prepared byj / important research work at CIA,,

providing the results of some of his

As we proceed with o.ur work, we may identify other Joint Inquiry work products that we must review in order to make the statutory findings about further requests for information or that constitute material evidence in the Commission's inquiry. V. CIA, FBI; antf NSA Documents Held for the Joint Inquiry Whatever the legal status of these documents, both you and Mr. Ciongoli agree these agency ..holdings should be preserved for use by the Commission. He will facilitate access to these holdings by Commission staff as soon as we provide him with the names of the relevant staffers. We are doing that in a separate message to him. I know that this process is complex and, at times, burdensome. But these complications are only a reflection of the scale and quality of the effort that the members of the Joint Inquiry and their staff devoted to their task in the relatively short time available to them. You, and they, deserve our gratitude. 9/11 Closed by Statute

FOR OFFICIAL USE ONLY (with SECRET attachment)

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Adam Ciongoli (cover memo only) Pat Murray (cover memo only)