Dm B3 Faa Fdr- Talking Points Re Faa Subpoena 280

TALKING POINTS reFAA SUBPOENA

1. Last week the Commission voted to issue its first subpoena to a Government agency for documents. The FAA was the subject of the subpoena because our staff discovered, in interviewing agency officials that critical documenmts that we had requested months earlier had not been provided to the Commission. 2. While the FAA is cooperating in providing the missing documents and other materials, the Commission decided that a subpoena was appropriate to ensure that the document production was complete and in light of the fact that the long delay had seriously impaired our investigation. Our staff is now busy reviewing the large volume of documents the FAA has belatedly provided us, and the agency is cooperating. 3. The subpoena we issued served another salutary purpose: to put other agencies on notice that they must carefully review their responses to our document requests to make sure that they have fully complied with them. We were gratified that Judge Gonzales, the Counsel to the President, followed up our subpoena and press statement with his own memorandum to heads of Executive Branch agencies, reminding them that document requests should be treated as seriously as subpoenas, and that thjey should fully comply. 4. We are optimistic that the FAA will comply with our subpoena, and we are hopeful that this example will make it unnecessary for us to issue additional subpoenas to federal agencies. But we remain prepared to do so if necessary.

As we have previously stated, the general level of cooperation by Executive Branch agencies with the Commission has improved over the last several months, and the Commission now has many of the documents it needs. Over the past two weeks, however, as a result of field interviews by our staff, the Commission has learned of serious deficiencies in one agency's production of critical documents. On May 14, the Commission requested from the FAA all documents related to the FAA's tracking of hijacked airliners on 9/11, including without limitation all communications with NORAD. As of early August, the Commission was assured that the FAA's document production was complete, and therefore scheduled interviews in New York, Boston, Cleveland and Indianapolis. Over the course of these interviews the Commission learned that various tapes, statements, interview reports and agency self assessments had been inexplicably withheld from the FAA's production. Once this issue came to light just in the past few days — the FAA provided the Commission with dozens of boxes and materials that they now claim satisfy our request. While the staff has not yet had the opportunity to fully digest these materials, it is clear that the FAA's delay has significantly impeded the progress of our investigation and undermined our confidence in the completeness of the FAA's production. This disturbing development at one agency has led the Commission to re-examine its general policy of relying on document requests rather than subpoenas. [Alternative 1 ]: We have decided to issue a subpoena to the FAA for the documents we have already requested. This will not only underline our specific concerns about the serious problem created for the Commission by the FAA's failure to respond fully to our document requests, but will also put other agencies on notice that our document requests must be taken as seriously as a subpoena, and that they should review the efforts they have made so far to see if further steps are necessary to assure full compliance. [Alternative 2]: We have decided that, to provide adequate assurance that we are actually getting the documents we have requested and need, we should issue subpoenas to each of the Executive Branch agencies on which we have previously served document requests. This is not meant in any way to suggest that any particular additional agency has been deficient; indeed, many have already gone the extra mile and invested great resources to comply with our requests. But our experience with the FAA convinces us that the only fair way of getting the assurances we need is to treat all agencies the same and issue across-the-board subpoenas. [If Alternative 2 is adopted:] Our negotiations with the White House regarding access to sensitive documents are continuing and will be completed soon. The Commission has made no decision at this time as to whether a subpoena for such documents will be necessary or appropriate. Finally, we want to express our growing concern about whether delays such as that we have encountered at the FAA will prevent the Commission from completing its work and issuing its report within the time frame set by statute. At its next meeting, the Commission will discuss whether it will be necessary to ask the Congress to extend the statutory deadline.