Dm B7 White House 2 Of 2 Fdr- Memos Re Access To Eop Documents And Officials 428

TALKING POINTS FOR 1/7 MEETING WITH GONZALES I.

The Global Deal

•

At its meeting on Monday the Commission agreed to the deal as worked out in the Gonzales-Fielding meetings with the exception of the provisions on appearances of EOF officials at public hearings. Just as the White House is not sure of what its final position will be on making EOF officials available for public appearances before the Commission, we are not ready to make a final commitment of the kind the White House seeks pending some additional experience with private meetings with officials. We think that while it is essential to reach agreement promptly on the other issues covered in the understanding, we can defer for a few weeks the issue of public hearings.

•

We recognize that this understanding was a package, and we regret that the Commission was not in a position to give its approval to the deal in its entirety. But we believe that the provisions we are prepared to agree to are extremely important to both sides, and that we should not pass up the opportunity to reach substantial agreement and move forward. We also pledge that if the Commission decides that it needs the testimony of any EOF officials at its public hearings we will consult with you before making any public request or statement on the subject.

•

We also seek clarification of one point on the private meetings. While we are agreeable that EOF officials will not be placed under oath at the outset of the meetings, the Commission does reserve the option, should it become clear that there is a significant conflict between an EOF official's understanding of a material fact and previous testimony under oath by another witness, to request (but not insist) that the official provide his or her answer(s) to particular questions under oath.

•

Finally, we note that the Commission took comfort in several clarifications of the understanding that Fred Fielding confirmed with you: (1) that while the Commission has agreed not to file additional general document requests for communications to or from the President, we may still request particular documents as a follow-up to information we learn from meetings or interviews; and (2) that the briefings to Commission staff on the contents of documents where there is a written indication that they were sent to the President will include information on any written annotation or comment on the document made by the President.

II. •

EXTENSION OF THE STATUTORY DEADLINE The Commission also gave further consideration to whether it should request Congress to extend the current statutory deadlines for the submission of its report and the completion of its work. We have been asked to seek reconsideration of

the White House's position on this question based on the following considerations: •

As we have discussed with you before, the Commission and its staff believe that it will be extremely difficult for the Commission to complete its work within the current statutory timeframe. We have already concluded that while we can have a draft report ready for pre-publication review by the Executive Branch by May, it is highly unlikely that we can produce a public report until late June, and that date may slip into July. The staff and the Commission believe that to ensure that we have adequate time for completion of the investigation and consideration by the Commission of its report and recommendations we need an extension of 6090 days.

•

We recognize, however, the undesirability of releasing our report at the height of the 2004 political season. A number of people have suggested, and many Commissioners agree, that it would be preferable to extend the deadline for completion of the report until after the election, and the deadline for completion of the Commission's work to December 15 or 31. The Commission could complete its investigation by the summer and complete its draft report by early November, leaving time for pre-publication review and completion of its work. This would provide us the time we need, take the report out of the political season, and put our recommendations squarely on the agenda for the new Congress and either the second Bush Administration or the new Democratic Administration.

•

We hope these points will lead to a reconsideration of the White House position on an extension. We would like to have your support, hi any event, the Commission is likely to publicly request Congress for an extension by the time it returns on January 20.

Elements The Commission and the Executive Office of the President (EOF) have been working out arrangements to give the Commission the information it needs to do its job. These arrangements do not create a precedent for solving future issues of access to EOF information. The Commission was a response to a landmark historical event, carrying with it a unique statutory mandate. EOF Documents Involving Memos to/from the President 1. The Executive Office of the President (EOF) will make available, for review by the Commission and designated staff, those documents sent to the Assistant to the President of National Security Affairs (APNSA), or a deputy to the APNSA, for the period of January 1, 1998 to September 20, 2001, that are responsive to current document requests, even if the information or proposals were submitted in the form of draft memos to the President. However, in the few cases where the only version located is the final one, EOF will not be asked to provide the version of any such memoranda that contain a written indication that they actually were provided to the President. 2. Instead, for those documents described above which do contain written indication that they actually were provided to the President, the EOF will brief designated Commission staff on the contents of those documents. Additionally, if the EOF is able to determine that a proposed memorandum was sent forward to the President, but that it had been materially revised from the proposed memorandum as provided^) the APNSA, the EOF will brief Commission staff on the discernible differences. [Commission staffwill b(T permitted to take notes on the briefings, subject to present rules for review of interview v notes. . - 3. The Commission will therefore not need to file any further document requests seeking communications directly to or from the President. Given Commission access to these documents and its ability to discuss matters relevant to the Commission's mandate with the current and former APNSA and other senior officials, past and present, the current document production requests in this area are sufficient for the Commission to do its job. EOF Documents on Communications with Foreign Leaders 1. EOF will provide Commission staff with in-depth briefings on such materials and talking points. 2. EOF will not have to provide the memoranda of conversations documenting what was actually said by the leaders. EOF will brief Commission staff on the contents of those memoranda, or advise if conversations dealt with non-substantive issues. 3. Note taking will be as described above.

Meeting with EOF Officials 1. A limited number of EOF officials and/or staff will 1/e made available for interviews in private, classified sessions to answer factual questions about the 9/11 story and counterterrorism policy in 2001 and explore current policy. These sessif publicly described as meetings.cEOF staff will not belplaced underoatK 2. EOF will provide reasonable flexibility in granting the necessary time for such meetings and permitting appropriate Commission attendance, depending on the person involved, so the Commission can receive the information it needs. Appearance of EOF Individuals at Public Hearings The Commission has invited EOF to designate appropriate individuals to publicly brief the Commission at a hearing and to provide information and answer questions related to the following areas: -

NSC role in counter-terrorism policy before 9/11 and today Homeland Security Council's role in counter-terrorism policy today National crisis management in PEOC on September 11 National crisis management on Air Force One on September 11

If the EOF would make appropriate individuals available, the Commission will describe their public appearance as a "briefing" (following precedent set in Richard Clarke appearance in 2002 at Joint Inquiry hearing). If the EOF declines to make individuals available at public hearings, but the Commission has been able to obtain the necessary information from them or other current or former staff in private meetings, the Commission will not attempt to compel a public appearance. The Commission will explamTrTatTTrias invited the EOF to designate individuals to~ appear publicly, while acknowledging that EOF has made individuals available for private meetings to provide the subject matter information. Note: The Commission currently expects to ask all fact witnesses appearing at its public hearings in 2004 to testify under oath. However, should the EOF decide to make individuals available, if the EOF so wishes the Commission will not seek testimony under oath. Review of Commission Staff Notes 1. No change on policy for review of notes taken from EOF documents. 2. If the Commission conducts private meetings with an EOF official, notes taken by Commissioners or Commission staff are the Commission's work product and may not be reviewed, except as with current practice. An EOF representative at the discussion may help ensure that the notes are properly classified and protected, by stating the level of

classification that applies to the material that was covered, and insuring that notes of discussions are transported and stored in accordance with applicable regulations.

12/26/03

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Revised ELEMENTS OF POSSIBLE UNDERSTANDING White House fWTfl Documents involving Memos to/from the President 1. WH will provide all documents sent to Berger, Rice, or their deputies, that are responsive to current and outstanding document requests, WH will provide ClarkeBerger-Rice memoe and Clarke's proposals to Berger or Rice, even if the information or proposals were submitted in the form of draft memos to the President. 2. WH will not have to provide any actual document sent to the President. WH will brief Commission staff, without providing documents, on whether Clarke-Berger draft memos were ultimately sent forward or not. If a memo was sent forward but differed materially from that proposed in draft, WH will bnejLCornmission staff on the differences. Staff will be permitted to take notes on the briefings, subject to present rules for review of interview notes. 3. Commission will not file any further document requests seeking communications directly to or from the President, Given Commission access to the documents and its ability to interview Berger, Rice and other senior officials - past and present - the current document requests are deemed sufficient for the Commission to do its job. White House Documents on Communications with Foreign Leaders 1. WH will provide Commission staff with in-depth briefings on such materials and talking points. 2. WH will not have to provide the memoranda of conversations documenting what was actually said by the leaders. WH will brief Commission staff on the contents of those memoranda, or advise if conversations dealt with non-substantive issues. 3. Note taking will be aa described above. White House Interviews 1. Limited number of WH staff will be made available in private, classified session to answer factual questions about the 9/11 story and counterterrorism policy in 2001 and explore current policy. These sessions will be publicly described as meetings. WH staff will not be placed under oath. 2. WH will provide reasonable flexibility in granting the necessary time for such meetings and permitting appropriate Commission attendance, depending on the person involved, so the Commission can receive the information it needs.

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Appearance of WH Staff at Public Hearings Commission has requested WH to designate an appropriate person of its choice to publicly brief the Commission at a hewing and to answer questions. The areas to be covered would be -

NSC role in counter-terrorism policy before 9/11 and today Homeland Security Council's role in counter-terrorism policy today National crisis management in PEOC on September 11 National crisis management on API on September 11

If WH would make appropriate staff available, Commission will describe their public appearance as a "briefing" (following precedent set in Richard Clarke appearance in 2002 at Jt. Inquiry hearing). If WH declines to make staff available at public hearing, but has permitted Commission to obtain information from these or other staffers in private sessions, Commission will not attempt to compel a public appearance. Commission will explain that it has invited witnesses and affirmatively state that WH has made them available for private meetings but declines to have them appear in public session. Note: Commission now expects to ask all fact witnesses appearing at our public hearings in 2004 to testify under oath. However, if WH decides to make witnesses available, Commission will not seek to compel testimony under oath (though the contrast will be evident). Review of Commission Staff Notes 1 No change on policy for review of notea taken from WH documents. 2, If Commission conducts a private interview of a WH official, notes taken by Commissioners or Commission staff are the Commission's work product and may not be reviewed. However, the WH representative may be sure that the notes are properly classified and protected, by stating the level of classification thai: applies to the material that was covered and insuring that notes are removed or transported in accordance with applicable regulations.

12/23/03

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PRIVILEGED/ATTORNEY WORK PRODUCT/DRAFT

SENSITIVE BUI UNCLASSIFIED [Draft: 12/22/2003)

ELEMENTS OF POSSIBLE UNDERSTANDING AS OF DECEMBER 22,2003 (based on December 19,2003 memo from Commissioner Fred Fielding to Judge Gouzales) ivolvtne Me

1. The Executive Office of the President (EOP) will make available, for review by the Commission and designated staff, those documents sent to the Assistant to the President for National Security Affairs (APNSA), or a deputy to the APNSA, for the period of January 1, 1998 to September 20,2001, mat are responsive to current document raquestsjaijd have been determined by Commission staff to be demonstrably critical to the Commission's workT] However, EOP will no{fe askedMtoTprovide any memoranda to the President that contain any written indication that they actuallywere provided to the President. 2. For those documents described in paragraph 1, above, which do contain written indication that they actually were provided to the President, the BOP will brief designated Commission staff on the contents of those documents, with the exception of any hand-written comments made by the President. Additionally, if the BO? is able to determine that a proposed memorandum was sent forward to the President, but that it differed materially from that proposed memorandum as provided to the APNSA, the EOP will brief designated Commission staff on the differences/to the extent the BOP is able to determine themj Staff will be permitted to take notes on thebriefuigs, subject to present rules for review; those notes will be maintained in secure Commission space in the New Executive Office Building (NEOB) and will be available to designated staff in the NEOB upon reasonable notice. 7

The Commission will not file any further document requests seeking communications to or from the President. Given Commission access to these documents and its ability to discuss matters relevant to the Commission's mandate with the current and former AFNSA and other senior officials, past and present, the current document production requests are deemed sufficient for the Commission to do its job. EQP Documents on Communications with Foreign Leaders 1. The EOP will provide Commission staff with in-depth briefings on talking points responsive to current document requests. 2. The EOP will not be asked to/provide written transcripts or summaries of calls for review. The EOP will briefCommission staff on the contents of those memoranda, or advise if conversations dealt with non-substantive issues. 3. Commission staff may take notes on the briefings, subject to present rules for review; those notes will be maintained in secure Commission space in &e New Executive Office Building (NEOB) and will be available to Commissioners and designated staff in the NEOB upon reasonable notice.

13:40 ~FRED F FIELDING 202 719 4941 -» 96914205 MCW 18:24 FAI

PRIVILEGED/ATTORNEY WORK PRODUCT/DRAFT

8)003

SENSITIVE BUT UNCLASSIFIED (Drafts 12/22/20031

Discussions wijfa BOP Official lumber of EOF officials will be made available for private, classified discussions to answer factual questions about the 9/11 story and counrerterrorism policy in 2001 and explore generally current policy. The EOF will make available those officials currently"' I . ^ requested by the Commission; the Commission will not file further requests for discussions / /\JO with EOF officials. ^ 2. The EOF will provide reasonable flexibility in granting the necessary time for such discussions and permitting appropriate Commission attendance, depending on the person involved, so the Commission can receive the information it Jieeds.\ln most cases the Commission will be able to do so in two hours. ._ ^ " "".^ Appearance of EQP Staff at Public Hearings The Commission will not ask any current EOF official, ojjuiy formeik,EQPi icial noicjgrcntly. hearing. The identified to the EOF by the Commission, to brief or testify at a public and the private that as a result of EOF document p; discussions with certain EOF senior officials, the Commission has no need to receive public testimony from EOF staff. Review of Commission Motes 1. No change on policy for review of notes taken from EOF documents. 2. If the Commission conducts private discussions with an EOF official, notes taken by Commissioners or Commission staff are the Commission's work product and may not be reviewed, except to ensure proper classification and handling of sensitive information. An EOF representative at the discussion may help ensure that the notes are property classified and protected, by stating the level of classification that applies to the material that was covered. A career EOF staff member (such as the NSC records manager) will review die notes to ensure proper classification and handling of sensitive information. To facilitate the proper review and handling of notes, notes regarding particularly sensitive issues (if any) will be taken separately if requested by an EOF representative. EOF representatives will attempt to identify such subjects either in advance or at the discussions. Notes on such particularly 1 sensitive issues will be maintained in secure Commission space in the KEOB and will be -Alo available to Commissioners and designated staff in the NEOB upon reasonable notice Other notes of discussions will be stored and transported in accordance with applicable toe regulations.

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503

G&004

SENSITIVE BUT UNCLASSIFIED

[Draft: 12/22/2003) September

Conference Tape And Time Ling

A

A Commission staff member/mayreview the tape to verify the/accuracy of the DoD transcript,-if-" ^xnteeViiuueaaary. DoD rinie line will be provided ifiequMitpd (without warranty as to accurateness) or Commission may develop its own time line from the tape and/or transcript. Submission of Materials Intended for Public Release for Pra-Publication Review The Commission will submit its draft report to EOF for pro-publication review (as described in the letter from Dan Marcus to Tom Monheim dated July 29,2003) on a rolling basis as soon as l>o75onS~oTlfie drafiLreport are reasonably available. The Commission will submit all portions of the draft report (or other materials based on information to which the Commission has been given accags by the Executive Branch) intended for public release to EOF for pre-publication review, All portions of the draft report will be submitted no laterthan 45 days prior to the intended da\ for public release. 7

TALKING POINTS FOR CALL TO GONZALES ON INTERVIEW NOTES 1. As you know, our staff and yours have had discussions on the issue of review by your staff of notes taken by our staff at interviews of White House officials. We hope that this issue can be resolved satisfactorily before additional interviews take place. 2. In the meantime, we request that the notes taken last week at the interview of Lisa Gordon-Haggerty be returned promptly to the Commission without any review by your staff, pending resolution of the ultimate question of what review, if any, should take place in such interviews. This is appropriate for two reasons: a. There was no notice to our interviewers before or during the interview that your representative would want to review our notes of the interview. Our prior agreement related only to review of notes of documents, and no agency representative has requested to review notes at any other interview. b. Our staff needs the notes back ASAP so they can prepare a memorandum of the interview while their memory of the interview is still fresh. 3. While we are not asking you now to resolve this issue for future interviews, you should be aware that there are strong views among our staff and many Commissioners as to why it is inappropriate for your staff to review our interview notes: a. The main policy underlying your review of our notes on White House documents - that you need to be sure that our notes are not "effectively recreating" documents we are not permitted to remove or copy - does not apply to interviews, where we are simply taking notes on what a witness is telling us. b. Interview notes reflect mental impressions of the interviewer and are confidential work product of our staff. c. Your interests in assuring that notes are properly classified and do not include sensitive material on which notes are inappropriate can be fully satisfied without reviewing the notes themselves - by discussions with our staff before and after the interview.

Elements The Commission and the Executive Office of the President (EOF) have been working out arrangements to give the Commission the information it needs to do its job. These arrangements do not create a precedent for solving future issues of access to EOF information. The Commission was a response to a landmark historical event, carrying with it a unique statutory mandate. EOF Documents Involving Memos to/from the President 1. The Executive Office of the President (EOP) will make available, for review by the Commission and designated staff, those documents sent to the Assistant to the President of National Security Affairs (APNSA), or a deputy to the APNSA, for the period of January 1, 1998 to September 20, 2001, that are responsive to current document requests, even if the information or proposals were submitted in the form of draft memos to the President. However, in the few cases where the only version located is the final one, EOP will not be asked to provide the version of any such memoranda that contain a written indication that they actually were provided to the President. 2. Instead, for those documents described above which do contain written indication that they actually were provided to the President, the EOP will brief designated Commission staff on the contents of those documents. Additionally, if the EOP is able to determine that a proposed memorandum was sent forward to the President, but that it had been materially revised from the proposed memorandum as provided to the APNSA, the EOP will brief Commission staff on the discernible differences. Commission staff will be permitted to take notes on the briefings, subject to present rules for review of interview notes. 3. The Commission will therefore not need to file any further document requests seeking communications directly to or from the President. Given Commission access to these documents and its ability to discuss matters relevant to the Commission's mandate with the current and former APNSA and other senior officials, past and present, the current document production requests in this area are sufficient for the Commission to do its job. EOP Documents on Communications with Foreign Leaders 1. EOP will provide Commission staff with in-depth briefings on such materials and talking points. 2. EOP will not have to provide the memoranda of conversations documenting what was actually said by the leaders. EOP will brief Commission staff on the contents of those memoranda, or advise if conversations dealt with non-substantive issues. 3. Note taking will be as described above.

Meeting with EOF Officials 1. A limited number of EOF officials and/or staff will be made available for interviews in private, classified sessions to answer factual questions about the 9/11 story and counterterrorism policy in 2001 and explore current policy. These sessions may be publicly described as meetings. EOF staff will not be placed under oath. 2. EOF will provide reasonable flexibility in granting the necessary time for such meetings and permitting appropriate Commission attendance, depending on the person involved, so the Commission can receive the information it needs. Appearance of EOF Individuals at Public Hearings The Commission has invited EOF to designate appropriate individuals to publicly brief the Commission at a hearing and to provide information and answer questions related to the following areas: -

NSC role in counter-terrorism policy before 9/11 and today Homeland Security Council's role in counter-terrorism policy today National crisis management in PEOC on September 11 National crisis management on Air Force One on September 11

If the EOF would make appropriate individuals available, the Commission will describe their public appearance as a "briefing" (following precedent set in Richard Clarke appearance in 2002 at Joint Inquiry hearing). If the EOF declines to make individuals available at public hearings, but the Commission has been able to obtain the necessary information from them or other current or former staff in private meetings, the Commission will not attempt to compel a public appearance. The Commission will explain that it has invited the EOF to designate individuals to appear publicly, while acknowledging that EOF has made individuals available for private meetings to provide the subject matter information. Note: The Commission currently expects to ask all fact witnesses appearing at its public hearings in 2004 to testify under oath. However, should the EOF decide to make individuals available, if the EOF so wishes the Commission will not seek testimony under oath. Review of Commission Staff Notes 1. No change on policy for review of notes taken from EOF documents. 2. If the Commission conducts private meetings with an EOF official, notes taken by Commissioners or Commission staff are the Commission's work product and may not be reviewed, except as with current practice. An EOF representative at the discussion may help ensure that the notes are properly classified and protected, by stating the level of

classification that applies to the material that was covered, and insuring that notes of discussions are transported and stored in accordance with applicable regulations.

Revised 12/26 ELEMENTS OF POSSIBLE UNDERSTANDING EOF Documents Involving Memos to/from the President 1. The Executive Office of the President (EOF) will make available, for review by the Commission and designated staff, those documents sent to the Assistant to the President of National Security Affairs (APNSA), or a deputy to the APNSA, for the period of January 1, 1998 to September 20,2001, that are responsive to current document requests, even if the information or proposals were submitted in the form of draft memos to the President. However, in the few cases where the only version located is the final one, EOP will not be asked to provide the version of any such memoranda that contain a written indication that they actually were provided to the President. 2. Instead, for those documents described above which do contain written indication that they actually were provided to the President, the EOP will brief designated Commission staff on the contents of those documents. Additionally, if the EOP is able to determine that a proposed memorandum was sent forward to the President, but that it had been materially revised from the proposed memorandum as provided to the APNSA, the EOP will brief Commission staff on the discernible differences. Commission staff will be permitted to take notes on the briefings, subject to present rules for review of interview notes. 3. The Commission will therefore not need to file any further document requests seeking communications directly to or from the President. Given Commission access to these documents and its ability to discuss matters relevant to the Commission's mandate with the current and former APNSA and other senior officials, past and present, the current document production requests in this area are sufficient for the Commission to do its job. EOP Documents on Communications with Foreign Leaders 1. EOP will provide Commission representatives with in-depth briefings on such materials and talking points. 2. EOP will not have to provide the memoranda of conversations documenting what was actually said by the leaders. EOP will brief Commission representatives on the contents of those memoranda, or advise if conversations dealt with non-substantive issues. 3. Note taking will be as described above. Meeting with EOP Officials 1. A limited number of EOP officials and/or staff will be made available for interviews in private, classified sessions to answer factual questions about the 9/11 story and

counterterrorism policy in 2001 and explore current policy. These sessions may be publicly described as meetings. EOF staff will not be placed under oath. 2. EOF will provide reasonable flexibility in granting the necessary time for such meetings and permitting appropriate Commission attendance, depending on the person involved, so the Commission can receive the information it needs. Appearance of EOF Staff at Public Hearings Commission has requested EOF to designate an appropriate person of its choice to publicly brief the Commission at a hearing and to provide information and answer questions related to the following areas: -

NSC role in counter-terrorism policy before 9/11 and today Homeland Security Council's role in counter-terrorism policy today National crisis management in PEOC on September 11 National crisis management on Air Force One on September 11

If EOF would make appropriate staff available, Commission will describe their public appearance as a "briefing" (following precedent set in Richard Clarke appearance in 2002 at Jt. Inquiry hearing). If EOF declines to make staff available at public hearing, but the Commission has been able to obtain the necessary information from them or other current or former staff in private meetings, Commission will not attempt to compel a public appearance. The Commission will explain that it has invited these individuals to appear publicly, while acknowledging that EOF has made them available for private meetings to provide the subject matter information. Note: Commission currently expects to ask all fact witnesses appearing at its public hearings in 2004 to testify under oath. However, if EOF decides to make witnesses available, if the EOF so wishes, the Commission will not seek testimony under oath (though the contrast will be evident). Review of Commission Staff Notes 1. No change on policy for review of notes taken from EOF documents. 2. If the Commission conducts private meetings with an EOF official, notes taken by Commissioners or Commission staff are the Commission's work product and may not be reviewed. An EOF representative at the discussion may help ensure that the notes are properly classified and protected, by stating the level of classification that applies to the material that was covered, and insuring that notes of discussions are transported and stored in accordance with applicable regulations.

October 3, 2003 MEMORANDUM TO COMMISSIONERS From: Tom Kean and Lee Hamilton Re: Status of White House and Agency Access Issues Since our September 23 Commission meeting and the issuance of our second interim report, we have had two telephone conversations with Judge Gonzales about pending White House access issues, and our staff has had additional conversations with his staff. We can report substantial progress on both the EOF #3 document production and on the PDB briefing, although, as discussed below, we were not able to resolve all the PDB access issues at this stage. The White House position on these issues (and a few others) is set forth in a letter from Judge Gonzales, attached to this memorandum, which we received today. First, on EOF #3: A large number of Bush Administration documents, including many important requests, are now available for review and note-taking at the NEOB, pursuant to the normal groundrules. There is a small set of particularly sensitive documents as to which the White House initially proposed limited access, but Philip, after his review of those documents, convinced the White House Counsel's office that they should be made available to all Commissioners and designated staff and that notetaking be allowed. The one concession we made to achieve this result was to agree that notes on this limited set of sensitive documents be held at the NEOB until we have a need to use them for the drafting of our report or interviewing witnessses. Documents in this category have a cover sheet indicating the different storage requirement for such notes. Finally, there are a few summaries of telephone conversations between the President and foreign leaders, as to which the White House proposes to limit access to the Chair, Vice Chair, Philip, and Chris or Dan. We told Gonzales that we would discuss with the full Commission whether to accept that limitation. The Clinton Administration documents responsive to EOP #3 are not yet available, but should be soon. There was the normal delay involved in the National Archives finding them in storage in Little Rock, and they are now in the final stages of review by Sandy Berger. On PDBs, we have made progress on two points: (1) Gonzales and the CIA have agreed to expedite the scheduling of a substantive briefing for all Commissioners by knowledgeable officials of the CIA and the NSC. That briefing will take place immediately after our Commission hearing on October 14. (2) Gonzales has agreed that Commissioners can ask questions at the briefing and that the briefers will answer questions on the spot or, if they cannot, will provide answers later. We were unable to convince Judge Gonzales to negotiate an agreement now as to the steps of additional access to PDBs that will follow the briefing. However, he understands that such requests will follow the briefing, and he has agreed to respond

promptly to those requests. The White House has also told us that any additional steps they agree to can be scheduled very quickly. We gave serious consideration to trying to elevate those questions of ultimate access to PDBs by requesting a meeting with the President or Vice President. However, we concluded that in light of the prompt scheduling of a briefing on satisfactory terms, it would be wiser to wait until after the briefing, when we will be able to determine Judge Gonzales's position on the additional steps. If an appeal is necessary, we think we will be in a stronger position to seek a meeting with the President or Vice President at that point. The two-week deadline for agencies to produce the high-level policy documents described in our interim report expires next Tuesday. Our staff has been in constant touch with Dan Levin on this matter, and substantial progress is being made. There are agencies which are locating new documents, however, and one or two may not have produced everything on our priority list by next week. Levin has asked each agency to give us a full report no later than Wednesday, October 8. We will have a clearer picture by next week to be included in any statement we issue to the press.

MEMORANDUM FOR THE RECORD From: Daniel Marcus August 25,2003 Philip and I met last week with David Leitch, Deputy Counsel to the President, to discuss the conditions set forth in Judge Gonzales's August 15 letter to Tom Kean with respect to the Commission's access to draft and final presidential directives (PDDs and NSPDs). Following is a summary of the understandings reached at that meeting with respect to the four conditions: 1. We made clear that we did not agree with a ban on Commissioners and designated staff taking notes on draft and final presidential directives. But we agreed to Leitch's request that we defer any request for note-taking on documents in this category until we had reviewed them. At that point, the White House will entertain in good faith any requests for note-taking upon a demonstration of need. 2. Leitch agreed that the reference to "previously designated staff' as part of the group among which information from draft or final presidential directives may be discussed includes not only staff designated for access to the documents in the NEOB reading room, but also their designated colleagues (team members and other team leaders with a need to know) with whom they may share notes and discuss information. 3. We expressed our concern about the "strong presumption" that the Commission report will not discuss material in drafts of presidential directives that differs from the final directive, and we emphasized the need of the Commission to explore and discuss the development of key policies, the options considered, etc. Leitch acknowledged the legitimacy of these concerns, and agreed that the presumption is not an irrebuttable one. (We also pointed out that the Gonzales letter is silent on who decides whether the presumption has been rebutted; it does not preclude us from determining for ourselves that it has been.) 4. We stated that the Commission did not intend to publicly disclose the fact of access to these particular Presidential documents during the pendency of the Commission's investigation. But we said that we could not accept the application of that condition to the final public Commission report, where it would be difficult — if not impossible ~ to avoid indicating or explicitly stating that such documents had been made available. Leitch agreed that the fourth condition did not address the issue of references to this fact in the final report.

Draft: 7/24/2003; 12:43 PM

AGREEMENT ON PRINCIPLES AND PROCEDURES BETWEEN THE EXECUTIVE OFFICE OF THE PRESIDENT AND THE SEPTEMBER 11 COMMISSION

This Agreement on Principles and Procedures ("Agreement") will guide the interaction between (1) the Executive Office of the President ("EOF") and (2) the National Commission on Terrorist Attacks Upon the United States ("September 11 Commission" or "Commission") relating to the Commission's requests to the EOF for documents and information. GENERAL PRINCIPLES The Commission has been established to examine and report upon the facts and causes relating to the September 11, 2001 terrorist attacks, and make recommendations for corrective measures that can be taken to prevent acts of terrorism; and The Commission has issued several document requests to the EOF (i.e., EOF Document Request No. 1, dated May 13, 2003; EOF Document Request No. 2, dated June 4, 2003; and EOF Document Request No. 3, dated July 23, 2003) and may issue additional document requests to the EOF in the future; and The President has clearly stated a policy of strong support for the important work of the Commission; and The President also has the constitutional authority and responsibility to prevent the disclosure of information which, if disclosed, could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties; and The EOF and the Commission believe that close cooperation with each other will help enable each to carry out their respective missions and will greatly benefit the United States and its citizens.

GENERAL NATURE AND SCOPE OF INFORMATION PROVIDED The EOF is prepared in principle to provide to the Commission information concerning each of the categories of EOF documents and information requested by the Commission to date. The EOF and the Commission agree that the scope and nature of the information being sought by and made available to the Commission is unprecedented.

Draft: 7/24/2003; 12:43 PM 2. The Commission acknowledges the extraordinary nature of the information being made available to the Commission and the great sensitivity and high-level of classification of much of this information. The Commission will take all reasonable precautions to protect the information provided and prevent its unauthorized disclosure, including strict adherence to all applicable regulations and guidelines for the handling of classified information and observance of the "need-to-know" principle. 3. The EOF is granting this access voluntarily, without relinquishing presidential custody over these documents and without waiving either the President's constitutional prerogatives or his privileges with respect to these documents or this information, including with regard to further, or public, disclosure of potentially privileged information provided to the Commission. COMMISSION REVIEW 4. Documents will generally be made available in the office space of the EOF. Documents being made available will be accessible only to Commissioners and designated members of Commission staff approved in advance by the EOF. The EOF and the Commission will consult on a case-by-case basis to determine the number and identity of individuals with access to documents and information on specific subjects. The Commission will share information made available by the EOF, including information contained in notes taken from such materials, with non-designated members of the Commission staff only upon specific agreement of the EOF. The Commission specifically agrees that Commissioners and Commission staff will not share EOF information with individuals outside the Commission, except in connection with its final report and subject to the procedures outlined in paragraphs 15-17 below.

NOTETAKING

5. In general, Commissioners and Commission staff may take notes when reviewing EOF documents. These notes may be of sufficient detail to allow the Commission to perform its work and prepare a report. Those notes will not, however, be taken verbatim from the documents or include direct quotes from documents, except as may be minimally required to glean the relevant and necessary information from the documenJi_JJie-€-ommission and the EOF agree that, as a general matter, no direct quotes'^) f sentence^otlonger passages from documents will be included in notes, but that exceptions may be made on a case-by-cases upon a particularized showing of need by the Commission. 6. Commissioners and staff members may, in certain circumstances, take notes electronically on security-approved word processing equipment that will be provided by the Commission in space made available to the Commission for reviewing EOF

Draft: 7/24/2003; 12:43 PM information Those notes must, however, be printed before leaving the review facility and thereafter handled in the same manner as handwritten notes; no electronic media will be removed from EOF space. 7. Notes will be reviewed by EOF staff before they are removed from EOF space to ensure they are properly classified. Commissioners and Commission staff taking the notes will initially mark paragraphs with classification markers based on the level of classification of the document from which notes are being taken to facilitate security review by EOF staff. EOF review will occur prior to the Commissioner or staff member leaving the review facility when feasible and, if not feasible, promptly thereafter (typically within one to two business days). Notes generally will be classified at the highest level of any document from which they were derived. 8. Notes derived from EOF documents may be brought back to the Commission's secure facility under appropriate security, transportation, and access conditions. The EOF and Commission will work together to regularize a system for transportation of notes that facilitates timely movement of the notes, but ensures they are transported only under appropriate security conditions, and only by individuals properly accredited to transport materials at the given level of security classification. 9. Any disclosure or discussion of the contents of those notes will be limited to designated Commissioners and staff. The EOF will consider, on a case-by-case basis, requests to disclose discrete portions of such information to properly cleared additional staff upon a particularized showing of need by the Commission. DRAFT DOCUMENTS

10. In general, unsent or uncirculated draft documents need not be made available to the Commission.

11. The EOF will consider making available draft polic^Csta^ments-that have been circulated for policy review. The EOF will also consider producing drafts of other types of documents on a case-by-case basis upon a particularized showing of need b,y_^_^ the Commission. No notes will be taken from draft documents except upon further agreement between the EOF and the Commission based on a particularized showing \f need by the C /""—>~-;:::;:::^) 12. In general, any circulated draft policy^dbcumentinat is not being made available, but which was attached to documents whicTTanFbeing made available or is otherwise arguably responsive to a Commission request, will be generally identified to the Commission so that the Commission may consider making a particularized showing of need in support of a request for some information about that document.

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HANDLING PARTICULARLY SENSITIVE INFORMATION 13. Even with regard to most EOF documents and information that are particularly sensitive — such as those relating to certain aspects of national security, the most deliberative processes of the President and his key advisors, or discussions with foreign leaders -- the HOP will attempt to make available^^^^formation to the Commission, upon a particularized snowing of need by the Commission. This information may be provided, for example, through briefings, limited and conditional access to the material, or by other types of accommodations as have been historically made in such cases. The EOP currently anticipates that this type of information will be relatively small in volume. 14. The EOP will also consider reasonable, particularized requests by the Commission's Chair or Vice Chair for additional information or access as required. REVIEW OF REPORT 15. The Commission and the EOP agree that any written materials that the Commission seeks to disclose publicly must be submitted to the EOP for pre-publication review, reasonably in advance of the Commission's intended publication, to verify that no classified information is contained within such materials. 16. The EOP also retains the separate right to review in advance of public disclosure portions of any such materials that draw upon or quote deliberative materials in order to determine whether the President consents to the publication of potentially privileged information. In this regard, there should be a presumption against referring to, or quoting, EOP deliberative materials except upon a particularized showing of need. 17. Both sides expect that any concerns that arise can be worked out through consultation and in a spirit of mutual respect, without obliging the President to assert a privilege or requiring the Commission to decide whether to contest such an assertion. Agreed:

FOR THE EXECUTIVE OFFICE OF THE PRESIDENT