Dm B4 Joint Inquiry Fdr- Memos- Letters- Emails Re Ji Report And Access To It- Materials- Witnesses 332

Congress of tlje {Hnttefc t, 3B.C.

Top Secret/Codeword Material Attached July 7, 2003 Mr. Philip D. Zelikow Executive Director National Commission on Terrorist Attacks Upon the United States Dear Philip: Enclosed, for the use of the Commission, is a copy of the Joint Inquiry Final Report appendix entitled, "Evolution of the Terrorist Threat and U.S. Response, 1983-2001." As you know, the Central Intelligence Agency (CIA) expressed concerns regarding further dissemination of the original version and we have been working with CIA officials since last December to produce this revised version that CIA agrees adequately protects sensitive intelligence sources and methods. In addition, several references to NSC-level actions and dissemination of intelligence have been redacted at the request of the CIA and NSC. Please note that, even with these revisions, this version remains highly classified and access should be limited to Commission members and Commission staff with appropriate clearances and a need for access in connection with the work of the Commission. Also enclosed is a copy of the final version of the Errata Sheet, dated July 7, 2002. Please ensure that it accompanies the copy of the original report, and the several redacted versions of that report, that we provided to you earlier. Sincerely,

Staff

Top Secret/Codeword Material Attached Unclassified Upon Removal From Attachments

Congress of tfje Winittti States

Top Secret Codeword Material Attached July 7, 2003 Mr. Philip D. Zelikow Executive Director National Commission on Terrorist Attacks Upon the United States Dear Philip: Enclosed, as requested on behalf of the Commission, are copies of the final 20 Joint Inquiry Staff Interview Reports that we have reviewed for release to the Commission. A list of the relevant subject names and interview dates is attached. Please note that a number of these reports are classified at very high levels and should be protected accordingly. These 20 Interview Reports involve National Security Agency (NSA) personnel and were reviewed at our offices today by NSA representatives to determine whether they have been classified at the proper levels. They also reviewed the Interview Reports of NSA personnel that were provided to the Commission previously. While those representatives recommended no change in classification level for any of the Interview Reports they reviewed, they did ask that access to a number of them be limited at the Commission. A list of those Interview reports is also enclosed for your information. These reports are being provided only for the official use of the Commission in connection with its review. As discussed, we have redacted from these reports information pertaining to the internal deliberative processes of the Committees. Sincerely,

Staff

Top Secret Codeword Material Attached Unclassified Upon Removal From Attachments

Congress of tfje {Hnttefc B.C.

Secret Material Attached July 7, 2003 Mr. Philip D. Zelikow Executive Director National Commission on Terrorist Attacks Upon the United States Dear Philip: Enclosed, as you requested on behalf of the Commission, is a copy of the list of documents that were received from various Executive Branch agencies and stored in the database that was compiled by the Joint Inquiry in the course of its work. In compiling this list, we have not included any items that appear to be Joint Inquiry Staff work product, internal Committee matters, or materials relating to non-Executive Branch issues and proceedings. Custody of the database will be transferred very shortly to the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence. As you know, the HPSCI has been engaged in discussions with the Commission regarding access to Joint Inquiry records. Thus, any questions regarding the database and the information it contains should be directed to the HPSCI. I trust this information will be of assistance to the Commission.

lorHill Director, Joint Inquiry Staff

Secret Material Attached Unclassified Upon Removal From Attachments

NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES March 21,2003 [ROMAS H. KEAN Ihait

MEMORANDUM

JEE H. HAMILTON /ice Chair

To:

Adam Ciongoli

From: Philip Zelikow ^£RICHARD BEN-VENISTE

Subj:

Request for Access to Information from the Joint Inquiry

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

Cc:

Kenneth Wainstein Eleanor Hill

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Sent Items: WHouse doc request; jt inquiry M o v ,, ropy [This message to

jj

(1 of 126) Delete | Reply | Reply to All | Forward | Redirect | Blacklist | Message Source | Resume | Save as Back to Sent Items 4f To: "" #,"" <sdunne@9-11 commission.gov>^,"" 4f Subject: WHouse doc request; jt inquiry

Philip: in reading Dick Clarke's JI testimony yesterday-i I notice that he referred to himself as Chairman of the Counterterrorism Committee- Is that the same thing as the CSG or the "Small Group"? If SOT should we substitute or add "Counterterrorism Committee" to para 2 of the draft document request? Steve and I had a discouraging conversation with Eleanor and Rick re JI report and CIA documents- They are in final throes of preparing their proposed unclassified report for the climactic meeting with the intelligence agencies! which apparently will take place (or begin) on Monday- Even if they reach agreement! it will be a couple of weeksi probablyi before the report is done-i and Eleanor and Rick will be spending all of their time getting that firstpriority task done for the next week or so- Bottom line: Goss will not be able to keep his promise to get the report to us by the end of M a y - Mid-June seems to be the earliest we can expect to get itAfter Rick a Eleanor complete their work on the reportithey will turn their attention to completing the redactions of the remaining interview reports (unless we reverse your direction to them to do that before they turn to redacting the index)- Steve and I estimate that the earliest we could expect to get the redacted index would be late Junei if we told them we wanted it before the rest of the interview reportsi we could get it maybe by mid-JuneThey conmmtinue to make clear that retrieving documents from their database! once the redacted index is available! will go smoothly only if our requests for documents are relativelky modest- They are clearly unwilling to let us use the database ourselves because of the presence of substantial amounts of "Congressionally privileged" material on it(Of course! if we had a redacted index! we presumably would be pulling up on the screen only documents from that index ! ) I made our persuasive pitch that their privilege (if any) is not compromised by our seeing an unredacted index (which they could give us now)! which simply lists and briefly describes the privileged documents- Rick was particularly adamant (and mindless) in rejecting this positionSo! you correctly concluded! Philipi that if we follow the JI path to get access to the CIA documents! we are going to be delayed about a month and the access we end up getting will be less than ideal in terms of speed and efficiency- Ue could lop off a week or so by telling them to redact the index before they redact the rest of the interview reportsThey are wholly unsympathetic to the Ciongoli position and think we should get the documents from the CIA- Their view of the statute is that their only real obligation is to give us access to the report- They also view Ciongoli's "agreement" with the JI as essentially merely a unlilateral handoffWhile we can appeal up the chain to Murray (who is back Monday) and to Gossi I am not optimistic- One interesting tidbit is thati according to Eleanor! Goss talked to Tenet a couple of days ago and asked if he could help on this issue (presumably by making the documents available to us at the CIA)i and Tenet said he would look into it- Tom/Lee could follow up on this with Goss when they talk to him this week about the Report-

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I think that is worth pursuing! while we at the same time tell Ciongoli that his "agreement" with the JI will not work to get us the access to CIA documents that we need fast enoughi and that we therefore want to revisit and reverse the decision not to permit us to access the documents at the CIAWhile the CIA index is not terrific as a guide to the documents! Doug M thinks it is adequate as a basis for pulling up documents to review at the CIA reading room! and we would not have to ask the CIA to pull up everything and try to recreate the whole set of documents that went to the JIAnd once the JI redacted index was available! we could double-check to see if there is anything more we want- If Ciongoli says noi I would favor going public with a statement that we are beinmg seriously delayed and impaired in carrying out an important part of our statutory mandate to review the JI record by the unreasonable positions of the JI and the Exec Branch. Comments welcome-

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11.60MB / 476.84MB (2.43%) Date: Sun, 1 Jun 2003 10:05:34 -0400 From: Philip Zelikow 4P' To: "" 4| GC: "" <sdunne@9-11 commission.gov>#,"" ^ Reply-to: "••
--

Re the JIi your message was well reasoned and well putyour recommendations-

I agree with

Re darken I've done a bit more research- In addition to being a member of the Principals Committee when it met on counterterrorism issues-i he or his NSC staff designee also chaired five interagency bodiesi which were entitled as follows: 1- Counterterrorism Security Group (CSG) B- Critical Infrastructure Coordinating Group 3- International Crime Coordinating Group 14. Weapons of Mass Destruction Preparedness Group 5- Continuity of Government (and Continuity of Presidency) IUG (Interagency Working Group -- the Clinton administration designation for assistant secretary-level bodies called Policy Coordinating Committeesn or PCCsn in the current administration) There are various colloquial descriptions of these groupsi but the above are the correct formal titlesIn the Clinton administration! th_e Principals Committee was often called a "Foreign Policy Team" meeting when it was chaired by the President himself- I'll incorporate this and other slight adjustments in working on our draft doc requestPhilip

Original Message From: dmarcusSn-llcommission-gov [mailto:dmarcusiin-llcommission-gov] Sent: Saturday-, May 31-i EUD3 11:20 AM To: pzelikowSH-llcommission•govi sdunneSn-llcommission-govi ckojm5n-llcommission-gov Subject: UHouse doc request1! jt inquiry Philip: in reading Dick Clarke's JI testimony yesterdayn I notice that he referred to himself as Chairman of the Counterterrorism Committee- Is that the same thing as the CSG or the "Small Group"? If soi should we substitute or add "Counterterrorism Committee" to para E of the draft document request? Steve and I had a discouraging conversation with Eleanor and Rick re JI report and CIA documents- They are in final throes of preparing their proposed unclassified report for the climactic meeting with the intelligence agenciesn which apparently will take place (or begin) on M o n d a y -

Even if

they

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05/22/03

THU 18:17 FAX

®002

(Office of ti|e Attorney (ieneral BafrI]ingtnn,B. (Q. 2 May 22, 2003

Honorable Porter Goss Chairman Permanent Select Committee on Intelligence United States House of Representatives Washington, DC 20515 Dear Mr. Chairman: I am writing in my capacity as the Executive Branch's designated point of contact with the National Commission on Terrorist Attacks Upon the United States ("the Commission") at the suggestion of your staff director, Patrick Murray. You are aware, of course, that the Executive Branch turned over copies of a substantial number of documents to the Joint Inquiry last year as part of the Joint Inquiry's review, The Joint Inquiry retains these copies. Section 604(b)(l) of the statute creating the Commission requires the Commission to review these materials prior to pursuing additional "appropriate" areas of inquiry. This Letter is 10 advise that the Executive Branch has no objections to the Joint Inquiry making those copies available to the Commission consistent with any handling or security requirements due to classification. Please let me know if you need any further information. Sincerely,

Adam G. Ciongoli Counselor to the Attorney General cc:

National Commission on Terrorist Attacks Upon The United States Honorable Thomas H. Kean, Chair Honorable Lee H, Hamilton, Vice Chair P h i l i p D. Zelikow, Executive Director

Thomas H. Kean CHAIR

DETERMINATION

Lee H. Hamilton VICE CHAIR

Having reviewed the information compiled by, and the findings, conclusions, and recommendations of, the Joint Inquiry of the Congress relating to the Intelligence Community, the National Commission on Terrorist Attacks Upon the United States hereby determines that:

Richard Ben-Veniste Max Cleland Frederick F. Fielding

(a) The Joint Inquiry did not investigate the following areas of inquiry relating to the Intelligence Community:

Jamie S. Gorelick Slade Gorton

• •

John F. Lehman Timothy J. Roemer

•

James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

• •

•

•

The organization and operational methods of Al Qa'ida; The character of Al Qa'ida's relationships with foreign governments, especially Iraq and Iran; The wider terrorist threat against the United States beyond Al Qa'ida, whether from organizations directly affiliated with Al Qa'ida or from other organizations, such as Hizbollah; The immediate response of the United States to the attacks; Lessons learned and the counterterrorism policies, programs, and procedures instituted by the Intelligence Community after the attacks of September 11, 2001; The role of state and local law enforcement agencies in the collection, analysis, and use of intelligence inside the United States; and Congressional oversight of the Intelligence Community's counterterrorism policies and programs.

(b) The Joint Inquiry investigated the following areas of inquiry relating to the Intelligence Community, some of them extensively, but did not complete its investigation into: •

• • •

The reconstruction of the September 11, 2001 plot, including the higher-level direction of the conspiracy and the activities of the Hamburg cell; The activities of the conspirators and their support network inside the United States; The global financing network of Al Qa'ida, including the financing of the September 11, 2001 plot; Controversies over the policy guidance provided by the Executive Branch for the Intelligence Community's international counterterrorism efforts, including the context and details of the debates over covert action and alternative options; 301 71'1 Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-llcommission.gov

Determination Page 2 • • •

• • • • • (c)

The relative priority of the Intelligence Community's counterterrorism mission as compared to other Intelligence Community missions; National organization and management of the Intelligence Community in performance of its counterterrorism mission; Local organization and management of the Intelligence Community counterterrorism efforts both overseas and in communities of the United States; Collection, processing, analysis, and dissemination of counterterrorism intelligence, including policies, standards, and practices for gathering and pooling of foreign and domestic information against a transnational target; Legal authorities for counterterrorism intelligence work inside and outside the United States; Liaison with foreign governments in counterterrorism efforts, including the character of cooperation with Germany, Saudi Arabia, and Pakistan both before and after the attacks; Strategic and tactical warning concerning terrorism against the United States, including the sharing of appropriate warning information with the private sector; and Resource allocation to the Intelligence Community by the Congress and Executive Branch for the counterterrorism mission.

The Joint Inquiry concluded its research and investigative work along various tracks at different times during 2002. New information not reviewed by the Joint Inquiry has become available with respect to the facts and circumstances of the terrorist attacks of September 11, 2001, the immediate response of the United States to the attacks, and the lessons learned from the attacks.

The Commission may supplement the categories above as the Commission's investigation progresses or as new information comes to the Commission's attention. ADOPTED BY THE COMMISSION:

Thomas H. Kean Chair

Lee H. Hamilton Vice Chair f Philip D. Zelikow Executive Director Date: May 12, 2003

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April 26, 2003 MEMORANDUM To: Commissioners From: Philip Zelikow Subj: Access to Information Compiled by the Joint Inquiry As several of you know, concerns have arisen again over the Commission's access to the information compiled by the Joint Inquiry. The AP story in today's newspapers states, for instance, that: "One member's attempt to review confidential transcripts exposed a rift yesterday within the independent commission examining the Sept. 11, 2001 attacks." At the Commission's last meeting you received a full report on the status of these access issues, including a copy of the relevant memorandum to Eleanor Hill. Since that meeting the issues have largely been resolved in a number of ways. Tom and Lee have been kept aware of the progress of these discussions. Without waiting for the next meeting or its accompanying briefing materials, this memo reviews the current status of all the current Joint Inquiry access issues, not just those that have been publicized. The Commission has the duty to review the "information compiled by" the Joint Inquiry. This information is in several forms: 1. Written Agency Submissions At the outset of the JI's work, written questions were posed to all the agencies in the intelligence community. Agencies responded in writing, several of them appending copies of hundreds of documents. The responses contain thousands of pages of classified material. The Commission has asked for and received copies of all this material, which is available for review at our offices. This includes the follow-up questions to the Office of the Secretary of Defense and the written questions posed to the NSC and answered in writing by Stephen Hadley. 2. Documents from Executive Branch Agencies The JI requested and received copies of thousands of documents from various intelligence agencies. They have both hard copies and digital copies of these documents. The Executive Branch has no objection to Commission review of any of these documents. The JI, however, prefers that we not review their copies of these documents, but instead go back to the originating agencies for them. The JI's position is that: (a) their digital and hard copies of these documents are stored in databases and boxes that mix those documents together with congressionally privileged material - namely the interactions between and among members and staff; and (b) the JI lacks the staff and resources to manually run out or retrieve all of these documents from this mix and provide them to us. We have acceded to the JI's request that, if possible, we will attempt to obtain the documents from the originating agencies, who have lists of what they provided to the Joint Inquiry. But we have reserved the right to request documents from the JI if we cannot readily get them from the originating agencies. Further, we have asked the JI to provide us with an authoritative list or index of the executive branch documents in their possession. At this time the JI maintains that they are not sure that they can generate such a list, but Eleanor Hill is working on the problem. We believe we must have such a list, in part as a check against whatever lists we receive from the Executive Branch

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agencies. The Executive Branch shares this concern, as they fear their lists may be imprecise or incomplete, and they do not want to be accused of misleading the Commission about what documents are in the possession of the JI. Meanwhile, the FBI tells us that they have another set of copies of what they provided to the Joint Inquiry and are prepared to make that available to us when we begin working during the next few days in the reading room they have set aside for us. The CIA did not keep an additional set of copies of what they provided to Joint Inquiry and prefers not to go through the request and retrieval process for this all over again. Adam Ciongoli has been urging the JI to provide us with these CIA documents. In the meantime, however, he has instructed CIA to furnish us with the complete list of what they provided to the Joint Inquiry, understanding that if necessary we will be obliged to request further copies of documents that have already been provided to the JI. The CIA gave copies to the JI of 'finished intelligence1 reports. The CIA also made available large quantities of raw intelligence information, including operational cables from the field. This material was set aside for JI review at CIA headquarters; it remains there for us, and Commission staff have begun reviewing this material. We expect to meet with NSA representatives next week in order to work through the status of their own material. Dan Marcus and I have also met with the designated points of contact for the White House, State, Defense, Justice, and Homeland Security, with more meetings (Transportation, Treasury, etc.) scheduled for next week. So far all of these discussions have been positive and we will be reporting on them to you next week. 3. Interview Reports All witness interviews conducted by JI staff were preserved in interview reports. These are summaries, not transcripts. There are more than 300 such reports. We have requested our own copies of all these reports, to be kept at the Commission's offices. The JI has agreed, subject to their request that Eleanor Hill and her deputy first be allowed to review all these reports and redact from them any material that falls under the congressional privilege (interactions among staff and members of the JI). We have agreed to this condition. Pursuant to this agreement, the JI has already reviewed and furnished copies to us of 91 of their interview reports, including many of the most sensitive reports. These are now available for review at our offices. We hope soon to receive copies of the remaining 200+ reports. Among those 200+ reports are 14 interview reports that the Executive Branch has also asked to review, to determine if any contain presidentially privileged material that was disclosed without authorization to the JI staff. Ciongoli has provided that list to Eleanor Hill, who has acceded to his request as she is going through her own screening of all these reports. These reports are JI summaries of information they received and are thus a JI work product. We believe the Executive Branch request should not be allowed to delay Commission access to these reports beyond the delay we have already accepted as a courtesy to the JI for its congressional review. We further believe the Commission has a duty to receive all information contained in these reports and we will insist on that if the Executive Branch asserts any claim that would deny access. No such claim has been asserted, however. 4. Hearing transcripts There were twenty hearings of the Joint Inquiry. Nine were held in public session. Though these transcripts are not publicly available, we have copies of all of them at the Commission and they are available for review.

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There were also eleven closed hearings, as follows:

1. June 11 - Counterterrorism Policy, White House Overview: Richard Clarke (This hearing was legally characterized as a briefing, and Clarke was not placed under oath.)

2. June 18 - Intelligence Agencies Overview: Tenet (CIA), Mueller (FBI), Hayden (NSA) (All of these witnesses also testified in public session as well.) 3. June 19 - Intelligence Agencies Overview, Continued

4. July 16 - Technical Intelligence Collection (NSA and CIA)

5. July 18 - Intelligence Collection (NSA - Hayden, and CIA, FBI, andNIMA)

6. July 23 - Terrorist Financing (Treasury and FBI)

7. July 25 - Analysis and Language Issues (CIA, DIA, NSA)

8. September 12 - Clandestine Intelligence Collection and Operations

9. September 26 - Foreign and Domestic Intelligence Issues, including Moussaoui and Phoenix EC (FBI and CIA)

10. October 9 - Compartmented Subject (FBI and CIA)

11. October 10 - Compartmented Subject, Continued: Tenet (CIA) and Mueller (FBI)

The Commission has requested access to all of these transcripts. The JI has agreed, on condition that we review these transcripts at the Ford Building since congressional rules prohibit their providing ../view.php?thismailbox=rNBOX&mdex=235&id=2&actionID-113&minie=589ec7bd2bd9aab 4/27/03

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copies of closed hearing transcripts to any outside entity except under very narrowly circumscribed conditions. All of these hearing transcripts will be available at the Ford Building to all commissioners and to those staffers who have the requisite clearances. We are allowed to take verbatim notes from these hearings, using whatever technology the security officers can permit, and bring those notes back to the Commission for reference under the usual procedures for handling classified information. The Executive Branch requested that, as a courtesy, we grant them the opportunity to review three of these transcripts (for numbers 2, 3, and 8 above) so that White House and Justice Department lawyers can find out what was said, so they can judge whether to claim that presidentially privileged material was disclosed without authorization. White House and Justice lawyers did not attend those hearings and have no more of a right to transcripts of them than we do. Therefore the Executive Branch has no transcript of their own and their lawyers wished to determine what was said. Our position has been that, as a courtesy, we are willing to let them look at those transcripts to see what they contain in order to make their judgment. We have also told them that we question the point of the exercise, since we think any claim of privilege on this material would be utterly meritless. Nevertheless, if they want a week or so in order to get the information that may allow them to come to this same conclusion, and thereby avoid a legal confrontation, they can have it. We will not tolerate a delay that materially hinders our investigation, but we have plenty of other material we can digest at the moment, including the eight other closed hearing transcripts. The staffer Justice sent over to the Ford Building in order to read the hearings was delayed in his work, as he discovered he needed to be read into certain additional SCI compartments and there was a consequent process of request for clearances, approval, and briefings before he could return to his work this past week. We have told Adam Ciongoli that we hope the matter can be resolved by the time the Commission meets this coming week. Otherwise the Commission may decide it has waited long enough, and choose to force the issue, thereby triggering a possible legal confrontation between the Commission and the President. On Friday, April 25, Tim Roenier sought to read hearing transcripts 2, 3, and 8. Before he arrived at the Ford Building, I told him of our current position, a position I had confirmed beforehand with Tom and Lee, and had also discussed with my deputy and our counsel. Tim strongly disagreed with any understanding that might delay his access to any of these transcripts, however temporary. He stressed that any claim of privilege would have no merit, if the President eventually chose to actually make such a claim. On this point everyone involved was in agreement, and Tom and Lee had conveyed this basic agreement to Tim. However he thought any delay in access was indefensible and that the Commission should be prepared to have a legal confrontation with the President that day. This was not our view. Tim then appealed to the court of public opinion, calling and explaining his disagreement to the family groups and to the press. Hence the news stories. 5. The JI Report The summation of what the JI learned from all sources is contained in the JI's Report. That Report has been available for review by all commissioners and appropriately cleared staff for nearly a month. The JI has insisted that we review this Report at the Ford Building until a declassified version is sent to the printers - a time that is still at least several weeks away. The full Report includes some specially designated material and notes may not be taken from it. A redacted but still highly classified copy of the Report is also available for our review. Notes may be taken from it and those notes may be brought back to the Commission for storage under the procedures for handling classified information.

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7.55MB / 476.84MB (1.58%) Date: Fri, 2 May 2003 07:54:18 -0400 From: mkara@9-11 commission.gov^P To:

dmarcus@9-11 commission.gov^, sdunne@9-11 commission.gov^f

GC: dhyde@9-11 commission.gov& Subject: Written Requests to Intel Agencies

Dani Steven based on your comment yesterday about a written agreement with the 1C agencies! some history that you may or may not have gotten from Rick and Eleanor• Brit Snider thought he had hammered out an oral agreement with the 1C that three distribution restrictions would be waived: O R C O N i 3d-agency rule! and foreign government information• When the JIS hit the ground with the agencies we found that to not be either clear or even understood. Two agencies! DIA and N I M A n allowed us untethered electronic access to all their files- That came to a screeching halt when word trickled back to Stan Noskowitz- It took several weeks to get everyone educated that the waivers were real — even then nothing was committed to writing. That caused some grief and turmoil when big DoD OGC woke up to the facts of what we had been and were doing and entered the process- It took a while to educate them that the waivers d i d i in fact! existGiven the abovei it is important that you do obtain a written agreement with the Intel Agencies- However! if the above waivers are not in place it will cause unnecessary (and unwarranted) delays in obtaining documents- The 1C is quite capable of extending such discussions on ad nauseumCase in point! separate but related- NSA decided that it had to have a storage agreement in place before JIS could be allowed to maintain NSA documents at the Ford b u i l d i n g . Rick worked hard at tilting this windmill! but never succeeded in gaining final approval even though Hayden personally thought it had been g i v e n - Should this gambit surface again! and I am sure it w i l l i the NSA issue is not about security! although they w i l l cloak it in that manner- Rather! it is about archiving. NSA wants to control thatWe eventually discovered three ways to get around the restriction. First! if we truly needed a document we would simply call up DIA and give them the datetime-group and the message cite and have them pull it from their system- If we had established the existence of a body of information through formal data calls we would farm out a written "supplemental" data call at the team levelFor example! DIA had stated in a formal product that it had identified over MO messages concerning the threat build-up in June EDD1- Ue simply asked them for those messages. As it turned out! all of them were SIGINT- Finally! thru the (3FR mechanism! we would have the Committee Chairs formally task for documentsFor examplei General Hayden mention in testimony that NSA had identified 33 or so messages important to the threat build up in June EDD1- He said he would provide them! and NSA had to respondI tell you all of this to demonstrate that! despite NSA's stonewalling of the storage agreement! JIS was able to obtain for its archives some key NSA messages • Good luck. I speculate! based on JIS experience! that Tenet and Hayden will swear up and down that their agencies are cooperating. You can go to the Vice President! but spend that silver bullet wisely-i if at a l l Miles

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Staff Statement # 10, at page 6, recounts again the story of al-Mihdhar and al-Hazmi, including the photo identification of Khallad by a Joint FBI/CIA source in January 2001. The statement concludes that CIA testimony before the Congressional Joint Inquiry was in error regarding FBI knowledge of the identification, citing the Commission's review of extensive documents, etc., as a basis for that conclusion. Unfortunately, the Commission's staff statement fails to note that the Congressional Joint Inquiry, in its Report at pp. 149-150, previously reached that same conclusion, based on its own review of the extensive factual record compiled by the Joint Inquiry and now being revisited by the Commission. By failing to also note the Committees' previous, nearly identical conclusion, the staff statement could suggest that the Joint Inquiry erroneously relied on the cited testimony and that the Commission has reached a new and different conclusion, which is not the case. In fact, the Commission Staff is essentially echoing the Joint Inquiry's previous conclusion, as clearly stated in the Joint Inquiry Report. If this issue is ultimately included in the Commission Report, I would hope that the Inquiry's conclusion is also noted. While I recognize and empathize with the difficulties the Commission faces In gathering and mastering the extensive factual record regarding 9/11, it is important, as you use the facts developed in the Congressional Joint Inquiry record, to accurately portray the Inquiry's work. To the extent that I can be helpful to the staff in quickly navigating the Inquiry's treatment of various issues, please do not hesitate to call me. Eleanor Hill King & Spalding (202-626-2955)

(Former Staff Director, Congressional Joint Inquiry on the September 11th Attacks)

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Access the National Commission on Terrorist Attacks Upon the United States must gain from entities that the Joint Inquiry was either refused or limited.

Dear Commissioners and Staff, After recently re-reading the Joint Inquiry's Report, it has come to my attention that there are many areas that this Commission must gain access. In light of recent events—namely the issuance of your first subpoena to the FAA, I would hope that if you have not already gained access to the below mentioned list, you will immediately and liberally issue subpoenas to gain such access. The issuance of a subpoena provides the legal mechanism to compel compliance with your requests. It permits your investigation to move along swiftly, constructively and thoroughly, devoid of any roadblocks. And, perhaps most importantly, the use of a subpoena establishes a level of credibility that this Commission must reach in order for your final report to be definitive, complete, and above reproach. The Joint Inquiry listed these below mentioned areas, individuals, and entities as areas that were in need of further investigation. Thus, it would seem that these areas would be well within your mandate since your investigation of them will not duplicate any work already done by the Joint Inquiry. During your consideration of issuing subpoenas for the below mentioned areas, I would hope that you would recall the words issued by the White House in their October 15, 2003, memorandum, 'Cooperation with National Commission on Terrorist Attacks Upon the United States,'—words that were steadfast and strong about the ability of this Commission to gain access to all information in order to complete a definitive final report. The Administration stated, "It is imperative that we see these strong efforts through to completion of the Commission's work." The areas that call for further investigation by this Commission include:

Areas Where Access Was Denied The President's Daily BrieffPDBV. The White determined and the DCI and CIA agreed that the Joint Inquiry could have no access to the contents of the PDB. Ultimately, this bar extended to the point where CIA personnel was not allowed to be interviewed regarding the simple process by which the PDB is prepared. Although the Inquiry was inadvertently given access to fragments of some PDB items early on, this decision limited the Inquiry's ability to determine systematically what Presidents Clinton and Bush, and their senior advisors were being told by the Intelligence Community agencies, and when it was told to them, regarding the nature of the threat to the United States from Usama

Bin Ladin and al-Qaida. Despite the White House decision, the Joint Inquiry was advised by Intelligence Community representatives of the content of an August 2001 PDB item that is discussed in the report. This glimpse into that PDB indicated the importance of such access [ ]* *National Security Advisor Condoleeza Rice stated in May 16, 2002 press briefing that on August 6, 2001, the PDB included information about Bin Ladin's methods of operation from a historical perspective dating back to 1997. One of the methods was that Bin Ladin might choose to hijack an airliner in order to hold passengers hostage to gain release of one of their operatives. She stated, however, that the report did not contain specific warning information, but only a generalized warning, and did not contain information that al Qaida was discussing a particular planned attack against a specific target at any specific time, place, or by any specific method. Foreign Liaison Relationships: The DCI refused to allow the Joint Inquiry to have access to a series of reports that had been prepared within CTC regarding the strengths and weaknesses of CIA's liaison relationships with a variety of foreign governments. This affected the Inquiry's ability to determine the extent to which some foreign governments had or had not cooperated and shared information with the United States in countering Bin Ladin and al Qaida prior to September 11. Budget Information: While certain information was made available regarding agency and Congressional action, the Office of Management and Budget and the White House prevented the agencies from sharing information regarding the budget requests that were submitted by the agencies to OMB and the actions OMB took to increase or decrease those requests before they were submitted to Congress. This limited the Inquiry's ability to determine where in the budget process requests for additional counterterrorism resources were changed. Covert Action: Covert action was an important part of CIA's overall effort to counter the threat posed by Bin Ladin prior to September 11, 2001. The NSC denied the Joint Inquiry access to documents thereby limiting its ability to inquire into this area. NSC-Level Information: There were several areas of counterterrorism intelligence policy development where insight into discussions involving the DCI, CIA and other intelligence Community officials and personnel at the National Security Council and White House levels would have been helpful in determining why certain options and programs were or were not pursued in particular time frames. Access to most information that involved NSC-level discussions was blocked, however, by the White House. Even agency documents that were drafted in anticipation of NSC discussion were denied to the Inquiry as "pre-decisional". The Inquiry also was denied access to, or a briefing concerning, the findings and conclusions of the report of the National Security Presidential Directive-5 Commission on Intelligence Reform chaired by Lt. Gen. Brent Scowcroft.

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Senior Administration Officials: It is stated in the Joint Intelligence Report that the "Joint Inquiry would have benefited greatly, ... had it been able to hear directly from the most senior national security officials in the current administration. For various reasons, the Secretaries of State and Defense, the Attorney General, and the National Security Advisor were not questioned directly about issues related to the September 11 attacks". The author goes on to say that he doesn't believe that "the record of the national commission will be complete unless this shortcoming is addressed". Interview of FBI informant: On August 8, 2002, the FBI informed the Joint Inquiry that two of the hijackers had numerous contacts with a long time FBI counterterrorism informant. The FBI supported by the Attorney General and the Administration, refused to make the informant available for an interview or to serve a Congressional deposition notice and subpoena on the informant, whose whereabouts were known to the FBI at the time. While the Joint Inquiry interviewed and received testimony from FBI personnel familiar with the information provided by the informant, it was denied the opportunity to discuss that information directly with the informant. CIA and NSA documents: CIA took the position that so-called "operational cables" from the field and certain other documents it deemed to be sensitive could be subject to Joint Inquiry review at CIA headquarters, but that no copies could be brought to the Joint Inquiry's office. NSA adopted a similar position concerning its transcripts and disseminated intelligence reports and ultimately almost all other materials. This prevented the incorporation of the original documents in the Inquiry's central records where they could be drawn upon effectively for research and reference purposes. Both agencies did permit verbatim note-taking which consumed many hours and slowed the Inquiry's progress. Both agencies then agreed to allow copies to be removed from their premises if the Joint Inquiry agreed to allow them to be stored by the agencies at the end of the Inquiry, and even provided a draft of an agreement that would recognize this. When the Inquiry later agreed in principle and responded with a revised draft, the agencies decided that such an agreement was no longer desirable. Military options: The Joint Inquiry asked to review documents regarding 13 military options that had been reportedly prepared by the Joint Chiefs of Staff in response to White House request. The Joint Chiefs of Staff Legal Counsel supported by the Defense Department General Counsel and the NSC took the position that this request exceeded the scope of the Joint Inquiry's authority.

Areas where Access Was Limited Foreign Government Information at the FBI: The FBI allowed the Joint Inquiry to review information provided by foreign governments at the FBI, but would not allow the documents or verbatim notes to be carried to the Inquiry's offices. This limited and delayed the Inquiry's efforts to understand the level of cooperation displayed by the [—] and other governments in counterterrorism efforts prior to September 11.

Interview policies: The Intelligence Community agencies insisted that agency representatives be present to monitor all interviews of their personnel—present or former. Some of the agencies pre-briefed personnel who were to be interviewed by the Joint Inquiry, explaining to them what the agency position was on certain matters and urging the employees not to range too broadly in their responses. In one instance, after lengthy discussions with DOJ and FBI personnel, a former FBI agent was interviewed without monitors present at his request. On occasion, agency legal representatives instructed individuals not to respond to questions.

Areas Where Access Was Delayed Interview of the Deputy National Security Advisor: The Joint Inquiry requested the opportunity to conduct an interview of the National Security Advisor to the President in May 2002 in order to better understand the development of counterterrorism policy in the Bush Administration before September 11, 2001 . The NSC resisted this and suggested that the Deputy National Security Advisor be the subject instead and that written questions be provided instead of conducting an interview. The Joint Inquiry provided written questions in July but did not receive responses until November 2002.

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