Dm B3 Faa Fdr- 12-22-03 Letter From Marcus To Faa Chief Counsel Steinberg Re Faa Subpoena And Tapes Requested 281

December 22, 2003

Thomas H. Kean CHAIR

Lee H. Hamilton VICE CHAIR Richard Ben-Veniste

BY FACSIMILE Andrew B. Steinberg Chief Counsel Federal Aviation Administration 800 Independence Avenue, S.W. Room 900 East Washington, D.C. 20591

Max Cleland

Dear Mr. Steinberg: Fred F. Fielding Jamie S. Gorelick Slade Gorton John F. Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

As you know, the National Commission on Terrorist Attacks Upon the United States continues to discover, through staff interviews at FAA field offices, information relevant to the events of September 11, 2001 that, for whatever reason, has not been produced to the Commission. I understand this issue was the subject of a meeting between our respective staffs on December 12, and I hope that these matters have now been resolved. I also understand that, in the interest of clarity, you have requested a document setting forth precisely the universe of tapes the Commission is requesting from the FAA. That document is attached. Let me address a couple of important points with respect to it. First, the attachment in no way amends or alters the information called for in the Commission's subpoena to the FAA. Specifically, the Commission's subpoena called for "all logs, tapes and transcripts of internal FAA communications, including phone conversations among FAA locations, concerning aircraft presumed to be hijacked on September 11, 2001." That requirement still stands. The attached document merely identifies specific rerecordings the Commission is seeking. Second, because of the Commission's need to time-stamp some of the data received, we will not be able to take advantage of the FAA's capability with respect to voice-activated recording. Accordingly, the FAA should produce complete tapes of the positions and time frames requested, even if such tapes contain blank air. Finally, with respect to the procedures for conducting our interviews, we have sent you a copy of the Commission's exchange of letters with the Department of Justice on this issue. Our process has not been to negotiate separate agreements regarding interview procedures with each of the agencies involved in our investigation. Having said that, by this letter please be advised that the Commission does not object to the inclusion of a representative from the National Air Traffic Controllers Association (NATCA) in the Commission's interviews with bargaining unit employees.

301 7th Street SW, Suite 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-1 lcommission.gov

26 Federal Plaza Suite 13-100 New York, NY 10278 T 212.264.1505 F 212.264.1595

Andrew B. Steinberg December 22, 2003 Page 2 I hope this correspondence serves to clear up any ambiguities that may have previously existed. If your understanding of these matters differs in any way, or if you have any questions with respect to our requests, please let me know immediately. Otherwise, I will assume that we are in accord and that the tapes listed in the attachment, to the extent not already produced, will be produced forthwith. Sincerely,

Daniel Marcus General Counsel Attachment (1) cc: Daniel Levin, U.S. Department of Justice

Attachment — Air Traffic Control Tapes The Commission is seeking re-recording of tapes at the times, positions and locations specified below: (1)

Air Route Traffic Control Centers -- ZNY, ZBW, ZDC, ZIB & ZOB (a) Re-recordings of voice tapes from all phone lines (both "landline" and "VSCS") in the Traffic Management Unit (TMU), all phone lines associated with the Operational Manager In Charge (OMIC) position and/or Air Manager in Charge (AMIC), and all phone lines associated with the Military Operations Specialist (MOS) position from 8:30 am to noon on September 11,2001. (b) Re-recordings of voice tapes from all phone lines (both "landline" and "VSCS") that were involved in a teleconference with either the ATCSCC, FAA Headquarters, or a Regional Center.

(2)

Air Traffic Control System Command Center (ATCSCC) Re-recordings of voice tapes from all recorded phone lines (both "landline and VSCS") within the ATCSCC from 8:30 - 10:30 am on September 11, 2001.

(3)

Terminal Radar Approach Control (TRACON) - New York and Dulles (a) Re-recordings of voice tapes from all phone lines (both "landline" and "VSCS") in the Traffic Management Unit (TMU), all phone lines associated with the Operational Manager In Charge (OMIC) position and/or Air Manager in Charge (AMIC), and all phone lines associated with the Military Operations Specialist (MOS) position from 8:30 am to noon on September 11,2001.

A couple of important notes: (1) (2)

The Commission is only seeking additional tapes from the facilities specified above. The Commission is not seeking duplicates of tapes that have already been produced. For example, it appears that the Cleveland Center followed the Commission's original guidance and produced 4-hour block recordings of TMU, OMIC and MOS positions. Other Centers — such as Indianapolis ~ do not appear to have provided continual blocks of time but rather snippets of "pertinent communications." This request seeks re-recordings of complete and continual blocks of time (i.e. 0800-1200) of the channels specified above; it does not seek an exact duplicate of a tape already provided.