Dm B6 Pbd Fdr- Letters And Memos- Negotiation Over Access To Pdbs 354

Thomas H. Kean CHAIR

February 13, 2004

Lee H. Hamilton VICE CHAIR

The Honorable Alberto R. Gonzales Counsel to the President The White House Washington, DC 20500

Richard Ben-Veniste Fred F. Fielding Jamie S. Gorelick

Dear Judge Gonzales:

Slade Gorton Bob Kerrey John F. Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

We appreciate your decision to approve the transmittal of the report of the Commission's PDB Review Team to Commissioners and designated staff. We want to respond, however, to several points in your February 10, 2004 letter. Contrary to the suggestion in your letter, the Review Team did not request access beyond the scope of our exchange of letters, including our letter to you dated November 17, 2003. We believe that both sides have acted in accord with our agreement. The Review Team conducted its negotiations with you and your staff in good faith, consistent with our agreement. We share your concern about disclosure of sensitive negotiations between the Commission and your office and details about the PDB review process in the Newsweek article. We believe, however, that the record of the Commission properly handling classified information is strong. The Commissioners and staff have handled hundreds of thousands of pages of highly classified documents without incident. We have not publicly disclosed, nor will we publicly disclose, the contents of any particular PDB unless the Administration clears such release (as it did, for example, when the National Security Adviser made such public disclosure about the August 6, 2001 PDB in her May 2002 press conference). We will discuss with you any plans to describe the contents of any PDB in our public report. As you know, Commissioners have also participated in dozens of interviews and meetings with current and former Administration officials, during which a great deal of highly sensitive classified information has been discussed. None of that information has been publicly disclosed. We believe that the overall record shows that Commissioners handle classified information properly.

301 7th Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-11 commission.gov

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

The Honorable Alberto R. Gonzales February 13, 2004 Page 2

We look forward to working with you so that the Commission can complete its important work. Yours sincerely,

Thomas H. Kean Chair

Lee H. Hamilton Vice Chair

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February 11,2004 The Honorable Thomas H, Kcan Chairman, 9-11 Commission Pros ideal Drew University 36 Madison Avenue Madison, NJ 07P40 f/ee H. Hamilton Vice-Chairman, 9-11 Commission President and Director Woodrow Wilson International Center for Scholars Rouald Reagan Building aid International Trade Center

One Woodrow Wilson Fla2a 1300 Pennsylvania Avenue, NW Washington, DC 20004-3027 Dear Tom and Loe:

I read with considerable concern the press accounts of the February 10 meeting of the National Commission on Terrorist Attacks on the United States (9-11 Commission), which, I presume, are largely the result of reading the joint statement you made. My concern centers on a simple but uncomfortable trulh: I do not agree with your characterization of the agreement you reached with the White House on the question of PresidentiaJ Daily Briefs, or PDBs. J simply do not believe that this "agi-eement has enabled the Commission Review Team to report back to the full Commission on all PDBs of critical importance to the Commission's work," Not only do T not agree with this statement, T strongly disagree with it. Had I been a member of the Commission when the original agreement was put together with the White House, J would have objected because my experience with document analysis is that we all read a little differently. While it is true that a careful reading will result in both you and I seeing things we regard as significant, it is also true lhat .something will stand out to you that f miss and vico versa, The value of having all Commissioners read the PDI3s is that collectively wo srs much more likely to take notice of the facts we need to get the lull and complete accounting the law requires of US. Mew School UiUvftr.iilry Einunn UllJ CO])
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As a member of the Commission, I (rusted that the Commission Review Team which did work long hours and did superb work- would be given "wide latitude" in reporting back to the full Commission, Not only were they not given "wide latitude" as the White House promised, but also they were given very restrictive Instructions on what their report could contain, As a consequence, the report is confusing and incomplete, and does nol give all ten of us what we jiecd to make informed decisions. This is all the more important because even in its inlentionally confusing state, the report of PDBs brought back lo the Commission discloses key facts that I consider to be enormously important in several ways. These facts will affocl who we invite as witnesses as well as the details of the questions we will ask them. Tn fact it must be clear lo most Commissioners from our brief reading of the summary that we will need to recall some who have previously testified. To be clear I am nol interested in just those PDBs that were delivered to President Bush. The period of time which is of greatest interest to me is from February 1998. when Osama bin Laden issued a Farwa against the United States, through September 11,2001. For much of this period I was vice-chairman of the Senate's Select Committee on Intelligence and have an active memory of what T was told and knew at the time. For me it is all the more reason that I feel I must be given the opportunity to read Ibe PDBs myself, That is why I voted to subpoena these documents, That is why I believe the White House's unwillingness to allow our review team "wide latitude" in preparing their report has compromised my ability to get a full and complete accounting. And that is why f will continue to argue that we must be given this access in order to do our work according to the teller find spirit of the law. I respect you and your efforts to produce consensus on this Commission, If anyone can do it, it is you, Regretfully, in this case it was not and is not possible. There is one more item in your joint press release to which I object. While it is true that the team "reviewed all... (of the) ... PDBs responsive to the Commission's document requests," and that "this access to PDBg is unprecedented," the statement ia misleading. Tl .misleads because observers of our work will mistakenly conclude that the review we were given was adequate for our work. Those who voted against the subpoena presumably believe it was; those of us who voled in the affirmative do not. ft also misleads because the "unprecedented" access signals a heroic effort on the part of the White House, a presumption that I do not accept. This is an unprecedented commission investigating an unprecedented incident. liven the President uses this rationale to ask Americans to do tilings to which they are unaccustomed. Further, by allowing Commissioners some accesa, they have

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already broken the veil of executive privilege, making their legal and political case against further access quite weak. A much more accurate statement would have been that this was the best we were going to get and that we feared that litigation for access would take so long we might not be able to finish on time. Indeed these were rhe arguments 1 heard on February 10 in support of a negative vole on the question of using our subpoena powers to get this access. Finally, while you "are confident that the Commission lias obtained an account of all PDBs that relate to the al Qaeda threat and the events of September 11 " and "are confident that we can prepare a strong and credible report," 1 hold no such confidence, I fear the opposite; that our lack of access to the PDBs will compromise our ability to prepare a strong and credible report. I hope that at the end of this process I will be able to look back on this incident and say that you were right and I was wrong. If that happens, it won't be my first such apology. I also hope that you do not conclude that my confidence in and respect for you has been shaken. Both have survived this disagreement. Respectfully yours,

Kerrey

COMMUNICATION IN CONFIDENCE THE WHITE HOUSE WASHINGTON

February 10, 2004 Thomas H. Kean, Chairman Lee H. Hamilton, Vice Chairman National Commission on Terrorist Attacks Upon the United States 2100KSt.N.W. Washington, D.C. 20037 Dear Chairman Kean and Vice Chairman Hamilton: I am pleased to confirm that the Executive Office of the President ("EOF") has reached an agreement with the 9/11 Commission regarding the Commission Review Team's "Report on Review of FDD Articles," dated February 9, 2004 (the "Report"). As you know, the Commission and the EOF extensively discussed the terms under which designated members of the Commission would be permitted to review the requested articles of the President's Daily Brief ("PDB"). Pursuant to the terms of our agreement, which were set forth in my letter to you dated November 11, 2003, the Commission Review Team was authorized to prepare a concise summary of the results of their review of the PDB articles from the so-called "Core Group" or "Category 1," as well as any PDB articles transferred from Category 2 to Category 1. This statement would comprise "the full extent of the information from PDB articles that the Review Team would be authorized to communicate to the Commission." In connection with our earlier agreement, you previously acknowledged in a November 15, 2003 op-ed in the Washington Post entitled "9/11 Panel: Free to Probe," that the Commission "will have access to everything - we repeat, everything - it asked to see." You further noted that "The agreement before us gives the Commission access to materials on which the Executive's claim of executive privilege and state secrets is strong. ... Under this agreement, the Commission has gained a degree of access to sensitive information unequaled in the history of the United States. This agreement before us gives us the ability to fulfill our mandate ... The bottom line is that this agreement allows us to see everything we have requested." Notwithstanding these statements, the Commission Review Team subsequently requested access beyond the scope of our agreement. Because of the extraordinary events of September 11, and the unique nature of the Commission's mandate, the President has authorized the Review Team to communicate the Report to the Commission and designated staff. Please note that this authorization should not be interpreted as agreement as to the factual accuracy of any statements in the Report. The Report has been represented by the Review Team to be the full extent of information the Review Team seeks to communicate to the Commission from all PDB articles reviewed. From our perspective, the PDB access issues are now fully resolved. I hope that you will be able to overcome the apparent desire of some Commission sources to undermine our PDB access agreement or to create the misleading public impression that damning information from the PDB COMMUNICATION IN CONFIDENCE

COMMUNICATION IN CONFIDENCE articles is being hidden from the Commission. I would also request that the Commission not further publicly describe the details of our negotiations, or specifics of the Report. As stated in my November 11, 2003 letter, we do not expect statements in any public disclosure, including the final report, that would be attributed to the PDBs. Although I am pleased that we have resolved the PDB access issues, I am deeply troubled by a recent Newsweek article (dated February 16, 2004) that cites Commission sources as providing detailed information regarding the PDB review process and, even more disturbingly, the substance of the PDB articles themselves. As we have previously advised you, leaks of sensitive information raise significant concerns about the Commission's willingness to protect information vital to the protection of national security. As you know, the PDB contains some of our Nation's most sensitive national security secrets and, as the President recently reiterated, it is vitally important to our security that all Presidents have the most accurate and complete information our intelligence agencies can provide. The greater the disclosure of PDB information ~ both in terms of the number of individuals to whom the material is disclosed and the amount of material that is disclosed — the more we risk damaging the President's ability to protect our Nation. I urge the Commission to protect from unauthorized disclosure of the secrets of the Nation to which the Commission is given access. In light of these concerns and consistent with our past practice where highly sensitive items are at issue, the EOF will maintain control of the Report in the New Executive Office Building ("NEOB") Reading Room dedicated to the Commission's use and will escrow notes taken by Commissioners and designated staff on the Report. As an accommodation to your request, the EOF will make the Report available to the Commissioners at the Commission SCIF space for a portion of the Commission meeting today. An EOF security official will transport 11 copies of the Report from the NEOB to the Commission space, and will return from the Commission space with those copies, as well as any notes taken regarding the Report. I appreciate the significant time and effort that you and other members of the Review Team have invested in this process. I look forward to continuing to work with you as the Commission completes its work in a timely manner.

Sincerely, Alberto R. Gonzales Counsel to the President

COMMUNICATION IN CONFIDENCE 2

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From: "Tim Roemer" To: '"Gorelick, Jamie'" <[email protected]>, Date: Wed, Dec 3, 2003 2:33 PM Subject: RE: PDB review Jamie-

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The Joint Inquiry analyzed the Senior Executive Intelligence Brief (SEIB) betwee_o_March and June of 2001 to see if there was a rise in reportip
Information

It is a product for the president of the United States and his closest security advisers, not intended for the broader bureaucracy. 2) The PDBs contain, by their very nature, the "marginalia", or the "give and take" between the president and the briefer(often the CIA director), This gives them their unique navor and could certainly show if/when President Clinton pushed for more information on terrorism after the 1998 Africa bombings, or if/when President Bush inquired about the terrorism threats leading into the summer of 2001. We will not see any of this, according to the agreement 3)One of the few PDBs that the J.I. had information about in any helpful detail was the August 6. 2001 product. It includes, according to the public report, references to Ahmed Ressam's arrest and the US embassy bombings in Africa; al Qida members that resided in the US; references about Bin Ladin wanting to hijack airlines to get hostages released; FBI judgments about types of activity taking place consistent with preparations for hijackings or other types of attacks; as well as information from May of 2001 that a group of Bin Laden supporters was planning attacks in the US with explosives. These are all mentioned in the published report. Therfore, one of my long questions is: will we see all of these individual references as separate "articles" ? have you seen all 5 of these references? were all 5 or six references to terrorism presented orally to the president or simply included in various sections of the entire PDB? did he engage the briefer

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Lee Hamilton - RE: PDB review

about this? who did the brief? was there follow-up the next day? what else was included in that particular PDB? i ' I j j j j I j

4) We do jiq{ have the sense of "totality that you need to put thg above enumerated "articles" in the proper context of a 1fl-1? page repgjj gn that particular day .Were these 5-6 references to al Qida and terrorism part of 10 other issues that day or 50? The priority and texture is lost when vpu cannot see the full report. Even your well-intentioned attempt to construct a table of contents makes this process extremely difficult and severely limits what conclusions you can draw, either about the respective presidents or about the performance of the CIA in putting this type of information together. It might turn out that the Intelligence Community missed some of the signals and did not include them in the PDBs. Or that they continually emphasized problems in North Korea and the Middle East instead of terrorism threats to the US.

' I still believe we need to see the entire PDBs(and not simply fragments). j You quite accurately point out some of the problems with viewing only the j "articles". Your view that it is very clumsy trying to match UP PDB ; "articles" somehow with the SEIBs is right on target This limited view and j restricted access does not help us'draw up helpful conclusions at the end of : the day. I still firmly believe we need to subpoena the entire PDBs from \e Office of Policy Support in the CIA.

Tim

Original Message From: Gorelick, Jamie [mailto:[email protected]] Sent: Wednesday, December 03, 2003 9:40 AM To: Philip Zelikow (E-mail); Mike Hurley (E-mail); Daniel Marcus (E-mail); Chris Kojm (E-mail); 9/11 Commissioners (E-mail) Subject PDB review Philip and I had our first look at the PDBs yesterday. It is slow going as the material is dense and the conditions of our review/note-taking are cumbersome. I would just share one observation and make one request. The observation is that

9/11 Classified Information

I am confident that we can accurately review the "core group" and develop a factual basis for decisions regarding additional requests, but I just wanted you to know sooner rather than later that the thouqht that much of this issue would be mooted is not, in my view, bearing out.

12/05/03

04:42

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| Lee Hamilton -RE: PDB review

Second, one of the impressions that emerges even from a review of the SEIBs is of the spikes in threat warnings. It would be extremely useful, therefore, for us to request the tables of contents for both the SEIBs and the PDBs, so that we can literally count how many articles or items were written about during each relevant period of time and therefore determine the percentage that related to terrorism, domestic and foreign; to Bin Ladin; to developments in Afghanistan and other areas of interest. This would provide us very important context and also enable us to answer the criticism that - because we limited our request to certain articles in the first place — we cannot evaluate what we are seeing. Given that we would not be asking for the substance beyond our current request, there should be little objection to such a request. I strongly urge that we make this request now. Jamie Jamie S. Gorelick Wilmer, Cutler & Pickering 2445 M Street. N.W. Washington, D.C. 20037 202.663.6500

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November 24, 2003 Thomas H. Kean CHAIR

Lee H. Hamilton VICE CHAIR

Richard Ben-Veniste Max Cleland Fred F. Fielding Jamie S. Gorelick Slade Gorton John Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

To Members of the Family Steering Committee: The Commission is in receipt of your statement of November 20, 2003, regarding our summary of the agreement we reached with the White House regarding Commission access to the Presidential Daily Briefs regarding the attacks upon the United States on September 11,2001. The agreement we reached with the White House provides the Commission with access to all the material the Commission requested to see in its initial document requests. That is a fact. At no point will the White House be "editing" anything the Commission sees. We corrected this misimpression on previous occasions, including in our November 16, 2003, Op-Ed in the Washington Post and, to the press, immediately following our November 19 public hearing. We are confused as to why you believe the Director of Central Intelligence should determine what PDB articles are germane to the Commission's work. He is a presidential appointee and serves at the pleasure of the President. Your communication, if we understand it, would convey to a presidential appointee powers no one else in the administration has demanded. As we have said repeatedly, most recently in our statement of November 21, 2003, the Commission will not hesitate to speak out forcefully and use the fullest powers at its command should it have reason to believe materials it needs to do its work are being withheld for whatever reason. Let us now turn to the meaning of the words "limited review." Given the sensitive nature of the materials we will be reviewing, it is only sensible to allow those in custody of these documents to know what we hope to take away from them and impressions we form from them. Review by White House officials of that information will be limited to sources, methods, and, above all, national security considerations. This is not censorship. The four Commission representatives can and will prepare a complete report for all Commissioners. They will accept no limitations on the substance of what they present. Again, should the Commission fail to obtain what it needs, it retains the right to take whatever actions it deems appropriate. Finally, we have considered your assertions that the Executive Director of the Commission has a conflict of interest with respect to participation in the PDB review group because of his prior collaboration on a book with a high ranking official in the current Administration and his role in the Clinton-Bush transition. After discussions among ourselves and upon the advice and opinion of our counsel, we continue to disagree. Dr. Zelikow has recused himself from all aspects of our investigation that

301 7™ STREET, SW, ROOM 5125 WASHINGTON, DC 20407 TEL (202) 331-4060 FAX (202) 296-5545 www.9-llcommission.gov

Letter to the Family Steering Committee November 24, 2003 Page 2 pertain to the Clinton-Bush transition. He has held no full-time office in the current Administration; he resigned from the President's Foreign Intelligence Advisory Board after taking up his current position with the Commission. His ability to approach the tasks we assign him with detachment and objectivity is only underscored by his prior work with officials who have served presidents of both political parties and his reputation a fair and impartial scholar. With best regards, Sincerely,

Thomas H. Kean Chair

Lee H. Hamilton Vice Chair

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THE WHITE HOUSE WASHINGTON

December I, 2003 Daniel Marcus, Esq. General Counsel National Commission on Terrorist Attacks Upon the United States 2100 K Street N.W. Washington, D.C, 20037

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Dear Mr. Marcus: As you know, the President has clearly stated a policy of support for the work of the National Commission on TerrorisL Attacks Upon the United States ("Commission"). Consistent with that policy, and as a matter of comity between the legislative and executive branches, we are making available to designated representatives of the Commission documents and information that may be responsive to the Commission's DCI Document Request No. 8, Item 1, on the terms sei forth in the November 11, 2003 letter from Judge Gonzalcs to Chairman Kean and Vice Chairman Hamilton. We look forward to continuing to work with you as the Commission completes its work. Sincerely,

lomas A. Associate Counsel to the President

Thomas H. Kean CHAIR Lee H. Hamilton VICE CHAIR Richard Ben-Veniste Max Cleland

November 17, 2003 The Honorable Alberto R. Gonzales Counsel to the President The White House Washington, DC 20500

Fred F. Fielding Jamie S. Gore lick Slade Gorton John F. Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

Dear Judge Gonzales: As you know, we are very pleased that the Commission has been able to reach an agreement with the White House on access to PDBs that we believe will meet our need for access to this important information while protecting Presidential prerogatives. We want to express our personal appreciation for your efforts over the last several weeks to achieve this compromise result, as well as the substantial contributions of Tom Monheim and Bryan Cunningham, who worked long hours with our staff to make possible this result. We do want the record to note our concern with the statement in the terms that the Commission agreed to your formulation of the third criterion for identifying material demonstrably critical to the fulfillment of the Commission's mandate. The formulation of this criterion that we plan to employ is that the item must supply "significant knowledge not otherwise available to the Commission." This formulation is similar but not identical to the one set forth in your letter. We also note our concern, which we have discussed with you, about the language used in the last paragraph of the document on the terms. The terms had earlier stated the recognized standard - "demonstrably critical" - as the court-sanctioned test for access. We do not agree with any language in the last paragraph that goes beyond this standard. We expect to approach this review with careful attention to the criteria we have set forth as a basis for making such transfer requests - criteria which we think give you substantial assurance that any requests made will be worthy of serious consideration. We also expect, based on our conversations with you,

301 7th Street SW, Suite 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-11 commission.gov

26 Federal Plaza Suite 13-100 New York, NY 10278 T 212.264.1505 F 212.26^1595

The Honorable Alberto R. Gonzales November 17, 2003 Page 2

that you will give serious consideration to any such requests and that we can have a frank and open discussion if there is any question as to their merits. We and the representatives who will promptly be selected by the Commission look forward to working with you and your staff on this important matter. With best regards,

Thomas H. Kean Chair

Lee H. Hamilton Vice Chair

Page 1 of2

Steve Dunne From:

Daniel Marcus [[email protected]]

Sent:

Wednesday, November 12, 2003 8:57 AM

To:

[email protected]; [email protected]

Subject: FW: Judge Gonzales' Letter on PDB Issue

—Original Message From: Philip Zelikow [mailto:[email protected]] Sent: Wednesday, November 12, 2003 12:37 AM To: [email protected]; [email protected] Cc: 'Daniel Marcus1 Subject: Judge Gonzales' Letter on PDB Issue

John and Tom (please forward a cc to Bryan, I don't have his e-mail address) Dan and I were pleased to receive a copy of the letter the Judge wrote to our Chair and Vice Chair. The language of the letter was thoughtfully crafted. The terms reflected a conscientious effort to work through some difficult issues with great skill. The process provides an excellent basis for agreement. We therefore hope that you will take another look at the text of the last two paragraphs of the terms, on page 3 of the "Terms for Providing Commission Representatives Additional Access to President's Daily Briefs." In the first full sentence on that page, the terms state that the Commission and the HOP "have agreed" based on "criteria suggested by the Commission" to three tests related to the standard of identifying material "demonstrably critical" to the fulfillment of the Commission's mandate. The language prefacing the criteria - "at a minimum" - is yours, not ours. The language of the third criterion "addresses a specific subject matter not substantially addressed" - again is yours, not ours. We gave you our language, which in the latter case referred to "significant knowledge not otherwise available to the Commission." You may certainly prefer different words, but then you should not say that the Commission agreed to your choice. Our choice of language in the second and third criterion, as you probably recognized, echoed the established judicial formula of "importance and unavailability" that have been used in the context of presidential privilege and other qualified executive privileges. In re Sealed Case, 121 F.3d 729, 754-55 (D.C. Cir. 1997). Since this formulation describes how we will be guided in our own work, we hope you will consider our preference for how to describe it. We are puzzled too, by the last paragraph, which adds little to the document. The terms had earlier stated the recognized standard - "demonstrably critical" - as the court-sanctioned test for access. We accepted your use of this formulation. So we were surprised that this paragraph, at the very end, puts aside the "demonstrably critical" standard and offers instead a new one - that the articles must be of "extraordinary significance to a particular issue - the resolution of which is absolutely vital to the Commission's mandate." The cases ~ whether Sirica, Senate Committee, or Espy - do not use such language. This paragraph then adds the confident prediction that the Commission will not find any articles that can meet this novel standard. You will certainly be free to disagree with the basis for the Commission's

11/12/2003

Page 2 of2 request. But perhaps you will grant the Commission an independent role in judging what it considers necessary for its work, just as you are entitled to expect the Commission to pay some regard to the EOP's judgment of the constitutional prerogatives of the presidency. If we cannot reconcile those equities then we may have to find other judges to weigh them. But our success so far in accommodating each other's concerns has begun with mutual respect for the jobs that we each must do. Philip Zelikow

11/12/2003

Statement by the 9-11 Commission November 12, 2003 - As President Bush noted, the Commission has asked to examine intelligence items included in the President's Daily Brief in both the Clinton and Bush administrations during the years before the 9-11 attack. The Commission received a briefing on this intelligence material, and has also sought to examine these documents in order to have direct access to information we need to prepare our report. We are pleased to report that the Commission has reached agreement with the White House on a process that will provide the Commission with access to these key documents while recognizing the sensitivity of the information contained in them. We believe this agreement will prove satisfactory and enable us to get our job done. We expect that the terms of this agreement will provide the Commission the access it needs to prepare the report mandated by our statute, in a manner that respects the independence and integrity of the Commission. We remain committed to obtaining the access we need to fulfill our mandate.

AL FELZENBERG, DEPUTY FOR COMMUNICATIONS National Commission on Terrorist Attacks Upon the United States Office: 202-401-1725 • Cell: 202-236-4878 • Fax: 202-296-5545 afelzenberg@9-l lcommission.gov

NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES

AGREEMENT ON ACCESS TO PDBs •

The Commission sought access to years of articles from the President's Daily Brief that might be relevant to the Commission's work. There are hundreds of such PDB articles. The agreement provides access to all the requested PDB items.

•

The Commission will select four representatives (Commissioners and/or senior staff members) as their review team. They will examine the core group of PDBs made up of those that are plainly critical to the Commission's investigation, including PDB items involving threats to the U.S. homeland. The four representatives may take notes on the PDBs, which will be kept at the White House but may be reviewed at any time by the representatives. They may also prepare summaries for all Commissioners and designated staff. That summary is subject to limited White House review before it is shared with the full Commission, but with an agreement that the Commission's representatives will have "wide latitude" in preparing the summary.

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Two members of the Commission review team ~ again chosen by the Commission — may review the entire group of several hundred responsive PDB items to determine whether there are any additional PDB items that are demonstrably critical to the Commission's mandate and should therefore be added to the core group to be reviewed by the full team and summarized for the full Commission. The criteria for adding such items to the core group is that they are material, important to the Commission's mandate, and that they provide significant knowledge not otherwise available to the Commission. In conducting this review of the complete group of responsive PDB items, the two representatives may take limited notes and consult with their colleagues on the review team. Any items selected for transfer to the core group of PDBs will then be discussed with the White House's representative, who must concur before they are transferred to the core group.

•

The Commission is satisfied that this agreement will allow the needed access to all the information the Commission has requested.

PDB Agreement Elements 1. The Commission would accept the White House offer to provide a briefing to the full Commission on the information contained in the PDB's that have been assembled in response to the Commission's document request. That briefing will address questions such as the following: How was the Al Qa'ida threat depicted to the President? What kind of information or analysis about the terrorist enemy did CIA choose to elevate to the President's Daily Brief? What kind of warnings did President Bush (or President Clinton) receive about possible terrorist attacks upon the United States? When did they receive these warnings? How did the PDBs portray the relevant actions or likely behavior of Afghanistan, Pakistan, and Saudi Arabia? Compared to more widely distributed analyses, was there any significant difference in the way these topics were described in the PDB? 2. This briefing should be as specific as possible and would be scheduled to occur promptly, within about the next two or three weeks or at a later time convenient to the Commission. 3. Commissioners and designated staff could ask questions at the briefing. The Commission understands that some questions at the briefing may raise difficult intelligence or legal issues. If so, the briefer may choose to take the question and provide the Commission later with an appropriate answer after doing the necessary analysis. 4. If the Commission needs more information either about the contents of the documents or to verify the statements that have been made about them, the Commission, after careful consideration, will make further, more specific, requests for information or access.

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Two options to address Commission's need for information contained in PDBs. Option #1: Briefing to the Commission by administration officials on the PDBs assembled in response to the Commission's document request. The briefing would address the following questions: How was the Al Qa'ida threat depicted to the President? What kind of information or analysis about the terrorist enemy did CIA choose to elevate to the President's Daily Brief? What kind of warnings did President Bush (or President Clinton) receive about possible terrorist attacks upon the United States? When did they receive these warnings?

How did the PDB portray the relevant actions or likely behavior of Afghanistan, Pakistan, and Saudi Arabia? Compared to more widely distributed analyses, was \e any significant dif

This briefing should be as specific as possible. If particular items appear to be significant, the Commission may request further access to the items that seem especially important. Option #2: Provide direct access to the Chair/Vice Chair and designated staff to the PDBs assembled in response to the Commission's document request. They would then prepare an analysis, or briefing, to the Commission on the above-listed questions. There would then be no further requests for access to these documents.

TALKING POINTS FOR COMMISSION CONFERENCE CALL ON PDBs 1. Purpose of call is to convey to you Judge Gonzales's proposal - which we understand has been cleared by the President. While it doesn't provide us everything we sought, it has been signifcantly improved over what was initially offered to us, and we think it merits your serious consideration. 2. The PDBs are important to us, not so much because of their contents - which are often duplicated in other intelligence documents and reports that have been made available to us - but because they tell us what intelligence information was given to President Clinton and President Bush about the Al Qaeda threat in the period leading up to 9/11 - and therefore enable us to make a judgment about whether adequate action was taken in light of that information. We will be able to answer definitely whether there was any "smoking gun" of warning to the President. 3. The initial approach of the White House, as you know, was to rely mainly on briefings — the one we received already with a promise of more specific briefings for the Chair and Vice Chair on a limited group of PDBs. They have come to the realization, however, that we cannot just take their word for what is and isn't in these documents. To fulfill our obligation to the public, we must be able to VERIFY what we are told. 4. Here is what the White House is now prepared to offer: a. Review by Chair. Vice Chair and two senior staff members of 22 PDB items it that l| 9/11 Classified Information I mention! b. Review by a senior staffer of the additional 340 PDB items that are responsive to our document request, to verify that there are no other PDBs that meet the criteria for the 22. and to see if there are any other PDB items | | | |that are so significant that they should be added to the group of 22. c. "Wide latitude" for Chair and Vice Chair to share what they have learned from their review of the 22+ PDBs with other Commissioners, subject to pre-review by White House. d. Chair, VChair & designated staff can take notes, to be held at NEOB. e. Final Commission report will not cite information as derived from particular identified PDBs. 5. We are obviously disappointerd that the White House is not prepared to provide access to the relevant PDBs to ALL Commissioners. But they have been responsive to our concerns about being able to verify what they have said about warnings to President Clinton and Bush with respect to all 362 items responsive to our request.

9/11 Classified Information

6. This is the best offer we can get from the White House. And, while it is certainly not ideal, it provides the Commission with meaningful access. We do not think we can or should marshall a public battle on the issue of whether all Commisssioners, rather than two Commissioners and two staff members, get to see the actual PDBs. We recommend that we accept this deal as the best we can get — one that satisfies our minimal needs and enables us to tell the American public what it needs to know about the warnings communicated by the DCI to Clinton and Bush.

THE PROPOSAL A core group of 22 PDB items can be examined by the Chair, Vice Chair, and two members of the Commission staff. They can take notes. The notes will be held for the Commission by the White House. The notes or other summaries of the information in these items can be shared with other commissioners and staff. Before sharing such notes/summaries outside the limited group, the White House would have the right to review the notes/summaries in order to limit circulation of especially sensitive details about the intelligence. If this information is used in the Commission's report, the White House will resist citations that specifically identify the information as coming from the President's Daily Brief. A Commission representative (Chair, Vice Chair, or staff designee - staff designee would be Kojm) can examine the remaining 340 PDB items produced in response to the Commission request. That representative can identify any other PDB items that the Commission must see in order to do its job under the statute. The White House would then move those items to the core group for further examination and effective sharing of the necessary information with the rest of the Commission. If, however, the White House refuses to add such items to the core group, the Commission could consider whether to take further action, including a subpoena to obtain adequate access to the specific PDB items at issue. OPTIONS 1. Accept proposal Pro: Gets issue behind us without complaints about which commissioners or staff have access to what. Recognizes that Commission as an institution will have access to all the PDBs it requested, that Chair/Vice Chair and 2 staff will be able to take notes on core group of PDBs and pass information to their colleagues, and that Commission will be able to seek addition of other significant PDB items from the 340 to this core group. Con: Does not provide as much direct access to core group (for all Commissioners or an expanded subgroup) or to 340 that we sought. la. Accept proposal with complaints. Pro: Would make clear our disagreement with the White House proposal while still taking advantage of it. Con: Would require public, detailed discussion of the modalities for Commission access to highly sensitive intelligence materials, thereby influencing ongoing discussions of White House with Congress, etc. White House may therefore resolve other issues (like interviews of White House staff and the scope of

interview questioning) under the assumption that details will be made public by the Commission and set precedents for dealing with Congress. 2. Reject proposal — This would presumably mean issuing public statement saying that White House is denying us access we need to PDBs and issuance of a subpoena to CIA to produce these documents. Pro: Preserves our position of the need for direct access for all Commissioners. Puts additional public pressure on White House. Con: Would likely mean that we would get no access to any PDBs unless we won a difficult court case to enforce a subpoena against the likely claim of executive privilege/state secrets by the President. White House would contend that the Commission has been offered access to all the documents it sought. White House voluntary cooperation on all other matters - including interviews and access to other especially sensitive documents — also could be jeopardized.

DRAFT TEXT (Option 1) As President Bush noted last week, the Commission has asked to examine a large number of intelligence items prepared for the President's Daily Brief in both the Clinton and Bush administration during the years before the 9/11 attack. Hundreds of such items have been identified in response to the Commission's request. The Commission received a briefing on this intelligence material, but we have also sought to examine these documents in order to have direct access to information we need to prepare our report. The Commission and the White House have now agreed upon a process that will allow the Commission to examine all of the documents produced in response to our requests. We expect that these procedures will allow the Commission to obtain the information that it must have in order to prepare the report mandated by law. If those procedures fail to achieve that goal, the Commission retains the option of using whatever remedies are available under its statute. These are not easy issues. There are few, if any, precedents for the Commission's requests. These negotiations have concluded in a fashion that will allow the Commission to do its job with due regard for the sensitivity of the information contained in such intelligence documents. DRAFT TEXT (Option la) As President Bush noted last week, the Commission has asked to examine a large number of intelligence items prepared for the President's Daily Brief in both the Clinton and Bush administration during the years before the 9/11 attack. Hundreds of such items

have been identified in response to the Commission's request. The Commission received a briefing on this intelligence material, but we have also sought to examine these documents in order to have direct access to information we need to prepare our report. The Commission asked that all commissioners be able to examine these documents. The White House position would limit direct access only to the Chair, Vice Chair, and two members of the staff, who would in turn have to report what they found to the rest of the Commission in summaries cleared by the White House. The Commission believes these procedures make it more difficult for all commissioners to play their part in the preparation of the report. Nevertheless, to avoid further delay in gaining access to the information, the Commission has accepted the White House proposal. We expect that these procedures will allow the Commission to obtain the information that it must have in order to prepare the report mandated by law. If those procedures fail to achieve that goal, the Commission retains the option of using whatever remedies are available under its statute. DRAFT TEXT (Option 2) As President Bush noted last week, the Commission has asked to examine a large number of intelligence items prepared for the President's Daily Brief in both the Clinton and Bush administration during the years before the 9/11 attack. Hundreds of such items have been identified in response to the Commission's request. The Commission received a briefing on this intelligence material, but we have also sought to examine these documents in order to have direct access to information we need to prepare our report. The Commission asked that all commissioners be able to examine these documents. The White House position would limit direct access to a subset of the requested PDBs only to the Chair, Vice Chair, and two members of the staff, who would in turn have to report what they found to the rest of the Commission in summaries cleared by the White House. Other requested PDBs would be available only to one representative of the Commission, who would not be able to take notes on relevant information unless the White House acceded to further requests to add such items to the subset set aside for the limited access described above. The Commission believes these conditions on access will not allow commissioners to be able to play their required part in the preparation of the report. Having failed to obtain through negotiations the adequate, effective access to the information we must have to fulfill our statutory mandate, the Commission has decided to issue a subpoena to the Central Intelligence Agency requiring the production of these documents for the Commission's review.

SUMMARY OF FINAL OFFER FROM WHITE HOUSE ON PDBs 1. Four representatives chosen by the Commission (Commissioners and/or staff members) can review the core group of approximately 20+ PDB articles responsive to our request concerning (a)terrorism threats against the U.S. homeland; and/or (b) use of aircraft by terrorists. They may take notes on the PDBs, which will be kept at the secure NEOB facility (but can be reviewed by the four representatives at any time) 2. The four representatives may prepare a summary statement of their review to share with all Commissioners and designated staff. That review will be subject to White House review, but with a promise that the representatives will have "wide latitude" in preparing the summary. jA

3. Two of those four representatives of the Commission, designated by the / Commission, may review the total universe of responsive PDBs (all those from January 1,1998 through September 20, 2001 that relate to Usama bin Lade/al Qaida (including related groups), or Afghanistan (including the Taliban arid/or the Northern Alliance)) to determine whether there are additional PDB articles that are "demonstrably critical" to the Commission's inquiry that they believe should be added to the "core group" of PDBs described above. These two representatives may take limited notes on why particular items are deemed to be "demonstrably critical" and may consult with the other two representatives and (if they are not representatives) the Chair and Vice Chair about the potential transfer of such items to the core group. Any proposals for adding PDBs to the core group would then be discussed with Judge Gonzales to seek his agreement to the transfer.

THE WHITE HOUSE WASHINGTON

November 11, 2003 Thomas H. Kean, Chairman Lee H. Hamilton, Vice Chairman National Commission on Terrorist Attacks Upon the United States 2100KSt.N.W. Washington, D.C. 20037 Dear Chairman Kean and Vice Chairman Hamilton: I am writing to confirm that, on the terms set forth in the attachment to this letter, I am authorized to make available, on behalf of the Executive Office of the President ("EOF"), for review by designated representatives of the National Commission on Terrorist Acts Upon the United States ("Commission"), articles of the President's Daily Brief ("PDB") that are responsive to the Commission's DCI Document Request No. 8, Item No. 1 ("the Request"). As you know, the PDB contains some of the Nation's most sensitive national security secrets. It is vitally important to the security of the Nation, and to ensure the best possible decisions in formulating U. S. foreign and defense policies, that all Presidents have the most accurate, fullest, and timeliest information U.S. intelligence agencies can provide on a wide range of topics, including the capabilities and intentions of terrorist groups and other foreign powers who would do us harm. Thus, access to the PDB must be tightly limited and those who produce the PDB must be completely candid and confident that secrets will be kept. To put it squarely, if, through even limited disclosure, the PDB loses its status as the most carefully protected intelligence document that our country produces, the quality of the information received by the President — and his ability to protect our Nation ~ will be damaged irreparably. Furthermore, public disclosure of the contents of a PDB, even where they may appear innocuous to the untrained eye, risks identifying for our adversaries the best information we have on a particular topic at a specific time, considering that the President may be expected to be given the best information available. Conversely, gaps in our intelligence capabilities might be identified by what is not stated in a PDB. Disclosure could also expose a President's priorities, and offer insight into the degree of resources being directed at particular targets. The Commission is charged with investigating history to help prevent its repetition; its work should not and must not become the occasion for weakening our ability to fight those who would harm this Nation. We have recognized the unique needs associated with the Commission's responsibility of preparing — for the President, the Congress, and ultimately the American people — a detailed report on the attacks on September 11,2001. As a result, Executive Branch cooperation with the Commission to date has been extraordinarily extensive, in terms of depth, breadth, and the sensitivity of the materials made available. In providing unprecedented access to the Commission, we have worked cooperatively to establish special access arrangements for only a

small fraction of the most sensitive documents, arrangements which are firmly rooted in Constitutional principle and judicial recognition and are consistent with the historical practices of the Executive and Legislative branches. Based on the unique nature and historic importance of the Commission's responsibilities, and on the particularized showings of need that the Commission has made for the requested PDB articles, the Central Intelligence Agency ("CIA") provided the Commission with a detailed briefing regarding the contents of the requested PDB articles on October 14, 2003. Even more extraordinary, as you know, for two weeks now, we have offered the Commission access to every single PDB article requested by the Commission. Consequently, we have been disappointed by the unfounded accusations reported in the media that the Bush Administration is denying the Commission access to the information contained in the PDBs. We want to reiterate that, contrary to numerous media reports, the PDB articles at issue are not solely from the Bush Administration and, indeed, a substantial majority of these materials ~ as the Commission and senior staff know from the CIA's October 14th briefing on the PDBs - were provided to ' President Clinton, rather than to President Bush. In light of the Commission's rejection of our earlier offers, and based upon additional, particularized showings of need by the Commission, we have now agreed to make available for review, by designated representatives of the Commission, PDB articles as described in the attachment. We believe that our proposal addresses as many of the Commission's concerns as possible consistent with our obligation to protect the institution of the Presidency and the Nation's most sensitive secrets. As you have recognized, our accommodation with regard to these PDB articles does not set any precedent, either for future Commission requests or for requests for state secrets, Presidential communications, or deliberative materials of this or other Presidents in any other context. The circumstances justifying this accommodation are truly unique and extraordinary. We hope to continue to work together to protect the interests of all future Presidents in being able to receive the best, and most complete, intelligence available, while recognizing the legitimate investigative needs of the Commission. Furthermore, these PDB articles are being made available to the Commission with due regard for the constitutional separation of powers and reserving all legal authorities, privileges and objections that may apply, including with respect to other governmental entities or private parties. Consistent with the agreement we have had regarding other EOP materials, this information is being made available to the Commission in confidence and as in closed session. As we have repeatedly discussed, it is vital that the Commission make every effort to protect this information from any unauthorized disclosure and from use for any purpose other than the purpose for which the Commission made the request. Finally, I must stress again, in the strongest possible terms, the extreme sensitivity of the materials to be made available to the Commission, and urge you to ensure that there is no discussion of this information, in public, with the media, or in any other fashion beyond the terms stated in this letter and its attachment. In the event of an unauthorized disclosure of information gleaned from review of the PDB articles made available to the Commission, we will be forced to terminate immediately all further Commission access to the information contained in the PDBs.

I look forward to continuing to work with you as the Commission completes its work. Sincerely yours,

Alberto R. Gonzales Counsel to the President Enclosure

COMMUNICATION IN CONFIDENCE TERMS FOR PROVIDING COMMISSION REPRESENTATIVES ADDITIONAL ACCESS TO PRESIDENT'S DAILY BRIEFS (PDBs) (per letter from Judge Gonzales to Chairman Kean and Vice Chairman Hamilton, dated November 11, 2003)

Categories ofPDB articles. For definitional and procedural clarity, we have identified two basic categories of PDB articles that are potentially responsive to DCI Document Request No. 8, Item No. 1: •

"Category 1" consists of those potentially responsive PDB articles that concern: (1) terrorism threats directed at the United States homeland; and/or (2) the use of aircraft by terrorists (not including threats of attack against aircraft, including Air Force One). With respect to this category, the Commission has made a showing that these issues — which focus on alleged threat warnings provided to Presidents Bush and Clinton concerning the potential time, place, and/or manner of the September 11 attacks — are "demonstrably critical" to its core inquiry. This, as you know, is the court-sanctioned test for access to highly sensitive materials protected by the interests underlying Executive Privilege.

•

"Category 2" consists of potentially responsive PDB articles not included in Category 1, from January 1, 1998 to September 20, 2001, relating to Usama bin Laden (UBL), al Qa'ida or Afghanistan (including the Taliban and/or Northern Alliance), as well as these counterterrorism issues in Pakistan, Saudi Arabia, Germany, Yemen, and/or Sudan.

Review of PDB articles in Category 1. We will make the PDB articles in Category 1 available for review in the secure New Executive Office Building ("NEOB") reading room dedicated for the Commission's review of materials, under the following conditions: •

Reviewers. The Commission may identify up to four representatives to review the PDB articles in Category 1 (the "Review Team").

•

Notes. The Review Team may take notes, which will be stored in secure NEOB space, with the reviewers having access to them any time during reasonable business hours.

•

Communications regarding articles. Members of the Review Team may communicate with each other, consistent with standard security procedures. The reviewers may also prepare a concise statement of the results of their review that they would propose to share with other Commissioners and designated staff. This statement is to be reviewed and approved by appropriate officials of the Executive Office of the President ("EOF") with regard both to the sensitivity of the information to be conveyed and the degree to which further dissemination of the information could lead to an erosion of the Constitutional prerogatives of the 1 COMMUNICATION IN CONFIDENCE

COMMUNICATION IN CONFIDENCE TERMS FOR PROVIDING COMMISSION REPRESENTATIVES ADDITIONAL ACCESS TO PRESIDENT'S DAILY BRIEFS (PDBs) (per letter from Judge Gonzales to Chairman Kean and Vice Chairman Hamilton, dated November 11,2003)

Presidency. As we have said, we will accommodate, to the extent we responsibly can, the Commission's desire for wide latitude in preparing this statement. This statement would comprise the full extent of information from PDB articles that the Review Team would be authorized to communicate to the Commission, hi addition, you have agreed to afford the EOP a prior review, for these same purposes, of materials intended to be disclosed publicly that discuss information gleaned from these PDB articles. As Commission and EOP representatives have discussed, we do not expect there to be any statements in any public disclosure, including the final report, that would be attributed to the PDBs. You have advised us that you may want to discuss this issue further with regard to the final report. Review of PDB articles in Category 2. We will make the PDB articles in Category 2 available for review in the secure NEOB reading room, under the following conditions: •

Reviewers. The Commission may identify up to two members of the designated Review Team to review the PDB articles in Category 2 ("Category 2 Reviewers").

•

Markers. The Category 2 Reviewers may mark or tab for further discussion any Category 2 PDB articles that they believe are demonstrably critical to the responsible fulfillment of the Commission's functions. The reviewers may also take limited notes sufficient to assist them in connection with any effort to establish that articles in question are demonstrably critical and should be transferred to Category 1, as described in more detail below. These notes, if any, will be stored in secure NEOB space, with the Category 2 Reviewers having access to them any time during reasonable business hours.

•

Communications regarding articles. Category 2 Reviewers may communicate regarding the PDB articles in Category 2 only with other members of the Review Team or designated EOP representatives and solely for the purpose of discussing potential transfer of questioned articles to Category 1. In the event that the Commission does not designate the Chairman or the Vice Chairman as members of the Review Team, your staff has advised us that the Category 2 Reviewers may wish to seek our concurrence to discuss with you potential requests to move PDB articles to Category 1.

•

Request for Transfer from Category 2 to Category 1. In the event that the Category 2 Reviewers identify any PDB articles that they believe are "demonstrably critical" to the Commission's inquiry, those reviewers may request that those PDB articles be transferred to Category 1 (and thus be available for 2 COMMUNICATION IN CONFIDENCE

COMMUNICATION IN CONFIDENCE TERMS FOR PROVIDING COMMISSION REPRESENTATIVES ADDITIONAL ACCESS TO PRESIDENT'S DAILY BRIEFS (PDBs) (per letter from Judge Gonzales to Chairman Kean and Vice Chairman Hamilton, dated November 11,2003)

review by all members of the Review Team under the specified conditions). As the Commission and the EOF have agreed, however, based on criteria suggested by the Commission, the Commission will not request that any PDB article be transferred unless, at a minimum, an article: (1) is material; (2) is important to a specific issue being investigated by the Commission; and (3) addresses a specific subject matter not substantially addressed in other intelligence documents available to the Commission (such as the Senior Executive Intelligence Brief, threat warnings, or other publications of the Intelligence Community, records of any of the various levels of National Security Council or other interagency meetings, or other records). In this regard, we accept the offer of your staff to assemble and review all such other materials prior to review of the materials in Category 2, but reiterate that this may cause some delay in these materials being reviewed. As you know from the CIA's October 14th briefing, no threat-related information would be expected to appear solely in a PDB, nor is that product the primary method by which threat information was, or is, reviewed, analyzed, or acted upon within the Executive Branch. The Commission is further advised that, even for articles that the Commission believes meet these three criteria, we do not anticipate that any articles will be of such extraordinary significance to a particular issue — the resolution of which is absolutely vital to the Commission's mandate ~ to justify transfer to Category 1. This is particularly true in light of the fact that Category 1 already includes the articles that concern issues identified by the Commission as being "demonstrably critical" to its core inquiry.

COMMUNICATION IN CONFIDENCE

TALKING POINTS FOR 11/10 MEETING WITH GONZALES 1. Our staffs made considerable progress this morning on refining our positions. We believe we are close to an agreement consistent with the discussion we had with you and Secretary Card on Friday. We should not let this opportunity pass; we should reach an agreement so that we can announce to the press and public that the Commission is pleased that we are getting the access to PDBs that we need. 2. We have addressed your concerns in three ways: First, we have agreed to modify our document request to make clear that we are interested in documents relating to the named countries ONLY insofar as they relate to Al Qaeda, UBL, or Afghanistan. We cannot limit the scope of our formal document request further. 3. Second, we have provided examples to your staff of the types of PDB items beyond threat information in which we are interested; this provides assurance that we will not be roaming through the 300+ PDB items with no focus. 4. Third, and most important, we have proposed to your staff a standard to govern switches from the large group of PDBs to the small group that we believe addresses your concerns. Our test for requesting "switches" would be that the PDB item is (a) material to our inquiry; (b) important; and (c) not in substance known to the Commission through other documents, in particular the SEIBs. The last criterion will eliminate many if not most PDB items from consideration for possible switch. And, of course, you will have the opportunity to pass on our requests for switches. 5. I know you are concerned with the total number of people who will see the large and small groups of PDBs. I can assure you it will be no more than 5. The Commission believes it is very important for two senior staff members rather than one to review the larger group, in order to give all Commissioners adequate assurance that the smaller group of PDBs that will be seen by the group of 4 and summarized for all Commissioners is properly constituted. But we also believe that it is very important that 3 rather than 2 Commissioners see the core group of PDBs. We understand your desire to keep the number of people seeing PDBs down, but the difference between 4 and 5 people is not great, and it is a crucial difference for us.

Statement by the 9-11 Commission November 7 - As President Bush noted last week, the Commission has asked to examine a large number of intelligence items prepared for the President's Daily Brief in both the Clinton and Bush administration during the years before the 9/11 attack. Hundreds of such items have been identified in response to the Commission's request. The Commission received a briefing on this intelligence material, but we have also sought to examine these documents in order to have direct access to information we need to prepare our report. The Commission asked that all commissioners be able to examine these documents. The White House position would limit direct access to a subset of the requested PDBs only to the Chair, Vice Chair, and two members of the staff, who would in turn have to report what they found to the rest of the Commission in summaries cleared by the White House. Other requested PDBs would be available only to one representative of the Commission, who would not be able to take notes on relevant information unless the White House acceded to further requests to add such items to the subset set aside for the limited access described above. While it is possible that these procedures will allow the Commission to obtain the information that it must have in order to prepare the report mandated by law, if they fail to do so, the Commission retains the option of using any and all remedies available under its statute.

AL FELZENBERG, DEPUTY FOR COMMUNICATIONS National Commission on Terrorist Attacks Upon the United States Office: 202-401-1725 . Cell: 202-236-4878. Fax: 202-296-5545 afelzenberg@9-l lcommission.gov

TALKING POINTS FOR 11/7 MEETING WITH ANDREW CARD 1. The Commission discussed the White House proposal on PDBs extensively last night. This was a difficult discussion. Four commissioners voted to issue a subpoena to the White House. Other sentiment ran in favor of a grudging acceptance that would explain the terms and the reasons for dissatisfaction. 2. Such a public outcome, even if a full battle is narrowly avoided, will not be good for anyone. 3. However, it is clear that with two modest changes in the proposal, the Commission will not only accept the proposal but would also welcome it, stating our satisfaction that the agreement will provide the access we need. 4. The two changes are (a) add two Commissioners (one R, one D) selected by the Chair and Vice Chair to the group permitted to review the set of approximately 22 documents; and (b) permit the Chair and Vice Chair to designate two rather than one staff member to review the additional 340 PDBs to determine whether to seek the transfer of additional PDBs to the "core" set of PDBs for review by the subgroup of Commissioners and staff. 5. We believe the agreement to these two changes will enable you and us to put this issue behind us in a way that serves your interests and provides the Commission with the access it needs. It will enable the Commission to address authoritatively the question of what information was provided to Presidents Clinton and Bush. 6. Our clear preference, as you know, is to reach a solution that avoids a public confrontation. We are sure that the course we recommend will achieve that result.

CHRONOLOGY ON PDB PROPOSAL 1. Document Request to CIA (July 3,2003): "Articles from the President's Daily Brief (PDB) relating to Usama bin Laden (UBL), al Qaida, or Afghanistan (including the Taliban and/or the Northern Alliance), as well as articles relating to counterterrorism issues in Pakistan, Saudi Arabia, Germany, Yemen, and/or Sudan from January 1, 1998 to September 20, 2001." 2. Initial Offer by White House (September 2003): General briefing for all Commissioners on numbers of PDBs in various categories, followed by more specific briefings for Chair and Vice Chair and designated staff, with possible access for same group to one or more PDBs. 3. After negotiations in late September, White House agrees to more "substantive:" general briefing for all Commissioners, leaving open what further steps will follow. 4. Briefing for all Commissioners and selected staff takes place on October 14, 2003. 5. Further offer by Gonzales to Tom (October 25, 2003): Access for Chair and Vice Chair and two staff to approximately 22 PDBs relating to] | | [(subject to further discussion with Tom and Lee). Notes can be taken, and full Commission can be briefed after clearance by White House. No access to additional 340 PDBs responsive to our request. 6. Revised offer by Gonzales to Tom and Lee (October 28): Same as above, plus access by one staff member to 340 to determine whether there were omissions in constituting the core group of approximately 22 and whether there are additional highly relevant documents that should be added 10 the core group. 7. Commission meeting (November 1, 2003): Commission rejects Gonzales offer; directs Chair and Vice Chair to present counterproposal seeking access to the core group for all Commissioners and access by Chair/Vice Chair and two staff members to additional 340. Tom and Lee present counterproposal to Gonzales. 8. Final offer by Gonzales (November 5, 2003): Same as October 28 offer, except that review of 340 may be conducted by Chair or Vice Chair or staff member chosen by Commission, and Gonzales apparently accepts Tom's characterization of review of 340 as providing opportunity for Commission to seek to add to core group any additional PDBs that are important to our carrying out our statutory mission.

9/11 Classified Information

Dear Judge Gonzales:

Draft 1173/03

We are responding to your letter of October 20, 2003 to us, as supplemented by Thomas Monheim's letter of the same date to Daniel Marcus, the Commission's General Counsel. We take very seriously the concerns you raise about unauthorized disclosures of sensitive information in documents made available to the Commission and relating to discussions between the Commission and the Administration. We share with you the belief that the work of the Commission as well as the public interest can be harmed by leaks of national security information or other sensitive information. That is why we have personally taken action whenever we have become aware of any such apparent disclosures. We would be happy to discuss with you in greater detail the steps we have taken and plan to continue to take to address such issues. At the same time, however, we think it is important to place the specific incidents set forth in Mr. Monheim's letter in context. Most of them relate to your concerns about references in public by the Commission or individual Commissioners to the request of the Commission for access to "sensitive documents" or PDBs. With respect, we think that too much is being made of these disclosures. Ever since the Joint Inquiry made public the fact that it sought and was denied access to NSC documents and PDBs, the press and victims' families representatives have been focusing publicly on the question of whether the Commission would obtain access to PDBs. We and our fellow Commissioners are frequently asked about it, and the matter is the subject of widespread public discussion. This is a discussion that would have taken place regardless of what any Commissioner said publicly, and was in no sense initiated by or inflamed by the Commission. We regret the limited public disclosures relating to the air threat conference Call transcript, but we think that those disclosures cannot fairly be said to involve national security information. And our investigation of the statement in the October 15, 2003 Newsweek website story about "multiple warnings" to the President in the summer of 2001 has disclosed no basis for concluding that that information came from a member of the Commission or its staff. In responding to the specific points in Mr. Monheim's letter, we emphasize again that we and our fellow Commissioners take the underlying concerns reflected in your letter seriously. But we believe that experience to date provides no reason to believe that members of the Commission will violate the law with respect to classified information contained in documents, briefings or interviews to which they have access, or with respect to any other sensitive national security information. We pledge our continued commitment, and that of all our Commissioners, to keep such information confidential. Sincerely, [Tom and Lee]

September 25, 2003 MEMORANDUM To:

Tom and Lee

From:

Philip Zelikow

Subj:

Proposal for Breaking PDB Impasse

Dan Marcus and Steve Dunne have not read this memo, but they helped shape its contents and they agree with the recommendations in it. Briefing and Schedule For our own scheduling reasons, we are currently pressing for a briefing of all commissioners next Thursday, October 2. This will then become a key Commission meeting on that issue and on EOF #3. So, by then, and to avoid further friction or press problems, we hope that we can have resolved the follow-up issues. Ideally this would mean a face-to-face meeting involving the two of you at the White House, for closure, sometime late in the day on Wednesday, October 1, depending on wh€n Tom can arrive. Another advantage of October 2 is that it would allow time for staff to follow up on the plan outlined below before folks take off for foreign lands. The choreography could then run as follows: Friday, 9/26: Staff-level introduction of proposal on PDB issues. Monday, 9/29: Preview of EOF #3 materials and related issues. Monday or Tuesday, 9/30: Staff presents positions on EOP#3 issues and tries to narrow or close differences on PDB, identifying issues for Tom and Lee to discuss at White House. Wednesday, October 1: Conclusive discussions by Tom/Lee at White House Subcommittee Approach, Lee's Concerns, and Our "Loophole" Option As you'll see, we recommend a subcommittee approach to Commission review of key PDBs (assuming the White House can be persuaded to allow this at all). We have discussed Lee's concerns about this procedure. We want to stress that we think Lee's concerns are valid. But we nonetheless recommend the subcommittee approach. There is a tradeoff here and we think this route is most likely to get the Commission past this volatile problem. If we insist on review by all ten commissioners, the logistics of managing this review under the

procedures laid out below would be difficult. The White House can also too easily outmaneuver us. If they then offer chair/vice chair or a subcommittee counterproposal, we are checkmated legally and politically. Legally, because the Commission will have access and no court will insist on ten versus two, if we were able to win in court at all. Politically, because we will be fighting over the issue often versus two, or four. Not so compelling. After all, that practice is followed on the Hill and was followed by the Joint Inquiry. Also, would we then refuse to look at the documents unless all ten commissioners could see them? That would then hurt the report, while we lacked any option to force them to give access to the ten. Could be a lose/lose proposition. But a loophole...? If the subcommittee does the review, it would still leave open the possibility that it would identify one or two PDBs (the famous Aug 6 one for example) so vital that we would ask that every commissioner must see it. We would still be able to make that request and, to borrow a phrase, articulate our specific, particularized need. PDB Proposal

I have spoken to Jamie Gorelick and have her bottom line requirements for a proposal she will stand by, even if Tim and Richard are unhappy with it. They are incorporated in our recommendations. So, beyond the briefing ... Issue #1: Cull the 320 assembled PDB items/articles. The items requiring close Commission scrutiny must be separated for more detailed examination. We hope this will result in a relatively small subset of items. Option A: Ask White House to do it for us. Hard to do because Commission cannot rely on White House to make these subjective judgments of what we need to see. Nor can we give them objective guidelines for selection, since importance will depend on the date of the document, the context, and the material in ways that will defy formal categorization. Option B: All ten commissioners to do this. Will be unacceptable to the White House and unworkable in practice. Option C: Subcommittee of four commissioners to do this. More workable, though still cumbersome. Hard for the White House. Option D: Staff to do this. Philip and Chris could do this culling on behalf of the

Commission. This option is what we recommend. Handles this modest but vital duty in a low-key way. Issue #2: Review of Key PDBs. We believe that commissioners must be able to directly review the important PDBs. In all options at least two staffers would also need to be able to review the documents as well. Option A: Review by all ten commissioners. Preserves equal status of commissioners. Mitigates dissension. Likely not to be acceptable to the White House. Option B: Review by subcommittee of four commissioners. More likely to be acceptable to the White House. Would be resented by 2 or 3 commissioners. Jamie will defend it, however, even if she is not one of the four. (Though we think she should be.) This option is what we recommend. Option C: Review only by Chair/Vice Chair. Most likely to be acceptable to the White House. Not likely to be acceptable to most commissioners. Jamie would oppose this. Issue #3: Notetaking in review of these Key PDBs. Option A: No notetaking. White House will like. Most commissioners won't. Jamie is more ambivalent, but conies down on the need for notes especially for benefit of staff. Option B: Notetaking allowed but the notes permanently held by White House, available for later referral but may not be taken back to the Commission. Jamie will go along with this, leaving for the future the issue of whether we would be able to take notes from our notes. This is the option we recommend. Option C: Notetaking allowed with Commission bringing notes back. White House would strongly oppose, since it allows the PDBs to be recreated without adequate controls on distribution. We're not at all sure the White House will agree to the proposals we recommend here. But we think this is the line we should be willing to defend, all the way up to the President if necessary.