Sd B5 White House 1 Of 2 Fdr- Letter From Gonzales Re Pdbs And Agreements 431

CONFIDENCE [Draft: 2/18/2004] February

,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 was surprised by your February 13, 2004 letter to me regarding the Commission's access to articles of the President's Daily Briefs ("PDBs"). Several statements contained therein appear to be inconsistent with the Commission's past, and current, actions. First, the Commission Review Team did request access beyond the terms of our agreement. As you know, the Commission Review Team initially prepared two draft memoranda regarding the PDB articles: (1) one from Commissioner Gorelick and Executive Director Philip Zelikow to the Commission, dated January 15, 2004, purportedly summarizing the results of the Review Team's analysis of the PDB articles in Category 1 for the Commission ("Category 1 Memo"); and (2) another from Commissioner Gorelick and Philip Zelikow to me, dated January 15, 2004, purportedly articulating the bases for requesting transfer of articles from Category 2 to Category 1 ("Category 2 Memo"). Although we have not suggested that any member of the Review Team acted in bad faith, both the draft memoranda went beyond any reasonable reading of our agreement in a number of respects, including: •

The Category 1 Memo contained approximately two single-spaced pages describing PDB articles generally. This section, however, was not anywhere contemplated by our agreement. In fact, this section was clearly at odds with our agreement that: (1) the concise statement concerning the Category 1 articles would "comprise the full extent of information from PDB articles that the Review Team would be authorized to communicate to the Commission" and (2) the smaller Category 2 Review Team may "communicate regarding the PDB articles in Category 2 only with other members of the Review Team..."

•

The Category 1 Memo also contained approximately four single-spaced pages describing all several hundred PDB articles (from Category 1 and Category 2, despite the fact that none had yet been transferred from Category 2 to Category 1) year-byyear, including two pages discussing the articles the Category 2 Memo did not seek to move to the core group. Again, these additional pages of material that the Review Team sought to disclose to the entire Commission and additional staff were not anywhere contemplated in the terms of our agreement. Remarkably, a principal reason for including this four page section advanced by the Review Team was to describe for the full Commission a large amount of material which the Review Team had specifically concluded was not demonstrably critical to the fulfillment of the Commission's statutory mandate. This reasoning was completely inconsistent with the letter and spirit of our agreement.

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The Category 1 Memo also contained approximately six single-spaced pages describing, individually, and, in multiple cases, great substantive detail, each and every one of the articles in Category 1. For the vast majority of the articles, the descriptions were at least a full paragraph long, many included direct quotes from the PDB articles themselves, and many effectively recreated nearly the entire article. This was hardly a "concise statement of the results of their review," as mandated by the agreement. In none of our discussions leading up to our agreement was it suggested to us that each individual sentence or paragraph of a particular article would be described in detail to the full Commission and, in repeated discussions with staff, we made clear that this approach was not consistent with the conditions under which we made the PDB articles available.

•

Moreover, in none of our discussions was the possibility of an individualized summary of each individual article contemplated. An individualized summary of each PDB article was also logically inconsistent with the reasoning underlying our agreement that: (1) only a limited number of Commission representatives would have access to the substance of any PDB articles, and (2) the principal purpose of the Category 2 Review Team's access to the remaining PDB articles was to verify that no information demonstrably critical to the Commission's statutory mandate was inadvertently being left out of the materials available to the Commission. Never, in any discussion with the Commission or staff, was it suggested to us that a large number of additional PDB articles would be disclosed beyond the Review Team just because information might be interesting to the whole Commission.

•

The insistence of the Category 2 Review Team on further disclosure to the entire Commission and additional staff of such substantive detail for each of the articles in Category 1 increased dramatically our concern with the large number of Category 2 articles the Category 2 Review Team separately sought to move into Category 1. It seemed logical to assume that, if the additional requested articles were moved into Category 1, the next step would be a request for detailed, substantive summaries of all such articles, which would further undermine our agreement.

•

There was no attempted showing by the Commission Review Team that the articles in the Category 2 Memo satisfied the standard articulated in my November 11, 2003 letter: that they were "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." In fact, the vast majority of the articles requested did not even appear to be "demonstrably critical" to the Commission's statutory mandate.

•

Moreover, numerous articles in the Category 2 Memo did not even satisfy the minimum criteria for such transfer articulated in my November 11, 2003 letter: whether the articles address "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 the National Security Council or COMMUNICATION IN CONFIDENCE 2

COMMUNICATION IN CONFIDENCE [Draft: 2/18/2004] other interagency meetings, or other records)." Notably, many of these articles did not even satisfy the Commission's re-formulation of that criterion in your November 17, 2003 letter to me: that the "item must supply significant knowledge not otherwise available to the Commission." When our staff suggested that the Intelligence Community would need a significant period of time to conduct a review of such other products — as I notified you in my November 11 letter would be the case ~ the Review Team advised us that any period of more than a few days likely would be unacceptable to the Commission and would likely result in the Commission voting to issue a subpoena. •

Furthermore, I must take issue with the suggestion in your letter that the terms and conditions for Commission access to PDB materials were in some way modified by the Commission's letter to me of November 17, 2003. As you know, Thomas Monheim, Associate Counsel to the President, sent a letter to Daniel Marcus, General Counsel of the Commission, on December 1, 2003, that explicitly re-affirmed that the PDB articles were being made available to the Commission under the terms of my November 11 letter. In addition, my staff reiterated to Executive Director Zelikow, after your November 17 letter and Tom Monheim's December 1 response, but prior to initial review of any PDB materials by he or Commissioner Gorelick, that any access was being granted only on the terms and conditions stated in my November 11 letter.

•

Finally, although my letter also memorialized my commitment to you that we would "accommodate, to the extent we reasonably can, the Commission's desire for wide latitude in preparing this statement," this wide latitude, of course, was in the context of what the memorandum was intended to do, and was not intended to dramatically expand the purpose, scope, and level of detail of the "concise statement of the results" of the review of Category 1 articles (and Category 2 articles transferred to Category 1).

Notwithstanding your earlier statements that our prior agreement was sufficient for the Commission to complete its mission, we ultimately agreed to a creative solution to bridge the gulf between the terms of our agreement and the Review Team's proposed disclosure of additional information not contemplated by our agreement to the full Commission and additional staff. In working through this new solution ~ proposed by the Commission ~ members of my staff worked long hours with members of the Review Team to ensure that the Review Team's revised Report contained sufficient information for the Commission to fulfill its statutory mandate, was consistent with the fundamental principles underlying our agreement, and will not — if carried out in good faith by the Commission ~ compromise national security or lead to an erosion of the Constitutional prerogatives of the Presidency. As a result of hard work on both sides, the EOF had approved: (1) by February 5 (two days before the Commission's meeting with Dr. Rice), the Review Team's revised report language on the Category 1 articles, including the extensive discussion of the August 6,2001 PDB article, and (2) the entire Review Team Report on February 10th (in advance of the Commission meeting that day). Although no compelling reason was ever advanced by Commission representatives as to why the final agreement had to be reached by that date, the EOF went to extraordinary lengths ~ including COMMUNICATION IN CONFIDENCE 3

COMMUNICATION IN CONFIDENCE [Draft: 2/18/2004] foregoing CIA review of potential other sources of information explicitly mandated by our agreement ~ and met this deadline. Second, I appreciate your acknowledgment that the EOF has complied with our agreement. Indeed, as noted above, I believe that the EOF has gone well beyond the original scope of our agreement in a number of respects. Therefore, I am troubled by Commission sources continuing to allege in the media that the EOF has not complied with the agreement and/or that the Commission needs additional access beyond the scope of the agreement. For example: •

"Cleland called the agreement 'unconscionable' and said it was 'deliberately compromised by the president of the United States' to limit the Commission's work..." (Washington Post, November 13, 2003, by Dan Eggen)

•

".. .the panel had agreed to terms that would let the White House edit the reports to remove the contexts in which the intelligence was presented and to hide any 'smoking guns.'" (Commissioner Roemer, as quoted in New York Times, November 15, 2003, "Sept. 11 Panel Lets White House Edit Reports to Bush," by Philip Shenon)

•

"The White House, I believe, did not keep its word." (Commissioner Kerrey, as quoted in Associated Press, February 10, 2004)

•

"What we got was a summary that had been modified substantially with many things taken out... I have not seen everything I need. The summary was confusing and limited, and does not inform anyone reading it what was going on in the White House from February 1998 to September 11 (2001)." (Commissioner Kerrey, as quoted in Star Ledger Washington Bureau, "White House Papers No Help, Says Member of 9/11 Panel," February 13, 2004, by Robert Cohen)

•

"It seems inconsistent to me for the White House to say we were not warned prior to 9/11, but you can't see all the documents that might help you understand this.... If they want to make this claim, let us see the documents so that we may or may not validate that." (Commissioner Roemer, as quoted in Star Ledger Washington Bureau, "White House Papers No Help, Says Member of 9/11 Panel," February 13, 2004, by Robert Cohen)

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Also troubling are repeated assertions that the Commission now needs to conduct additional meetings with a number of individuals who already have given a great deal of time, notwithstanding their responsibilities in fighting the war on global terror, to the Commission. For example, Commissioner Ben-Veniste reportedly told the media that, "based on the intelligence material made available [on February 10]... it appears 'we will have to go back and re-interview a number of individuals.' That could include National Security Condoleezza Rice, who was questioned by panel members in a private session on Saturday." (Star Ledger Washington Bureau, February 11, 2004, by Robert Cohen). Not only was the Commission aware as a whole that they had not yet received the Review Team's report, which includes every COMMUNICATION IN CONFIDENCE 4

COMMUNICATION IN CONFIDENCE [Draft: 2/18/2004] word originally proposed by the Review Team concerning the August 6,2001 PDB article, but my staff advised senior Commission staff explicitly the day before the meeting with Dr. Rice that the EOF was in full agreement with the Review Team on each and every word of the team's Report on the group of PDB articles that included the August 6 article. The Commission did not seek to re-schedule the meeting with Dr. Rice, and the Review Team continued to refuse to finalize the agreement as to these materials prior to the meeting, as we would have been willing to do. Having reviewed those materials yourselves, you are aware that nothing in them is inconsistent with the discussion the Commission held with Dr. Rice on February 7. Third, I am pleased that you share my grave concern about improper disclosures of highly sensitive information regarding the PDBs in the February 16, 2004 Newsweek article. Unfortunately, however, this is not the first time that we have raised concerns about the Commission's handling of sensitive ~ and potentially classified ~ information. For example, on October 3, 2003,1 wrote a letter to you expressing my concern about leaks of highly sensitive information. On October 20, 2003, Tom Monheim wrote a letter to Dan Marcus explaining some of our concerns in more detail. (Also, as you know, there have been a number of conversations regarding this issue between us, and our respective staffs, that have never been memorialized in writing.) Some specific prior incidents include, but are certainly not limited to, the following (which is not intended to and does not confirm or deny any factual assertion reported in the press): •

On September 8, 2003, U.S. News & World Report ran a story ("Pieces of the Puzzle" by Chitra Ragavan and Mark Mazzetti) quoting Commissioner Richard Ben-Veniste discussing the TOP SECRET air threat conference call transcript. Immediately following that incident you assured me that the Commission had taken "internal measures" to prevent another such incident.

•

On September 25,2003, Newsweek ran a story ("Full Disclosure?" by Michael Isikoff) quoting "sources familiar with the negotiations" that "White House lawyers are still resisting turning over to the September 11 Commission key documents — including the text of daily intelligence briefs provided to President Bush in the months before the attacks..."

•

On October 15, 2003 (the day after the full Commission received its briefing on the PDBs), Newsweek posted a story on its website ("FAA Foot Dragging?" by Michael Isikoff and Mark Hosenball) that quoted Commissioner Ben-Veniste discussing the Commission's subpoena to FAA and noted "investigators want to know why.. .the FAA wasn't already on alert for a possible hijacking plot and why there was no policy in place that allowed a military response to a domestic hijacking ~ even after multiple warnings about such a possibility had been given to President Bush and other senior officials during the summer of 2001." The story also discussed the air threat conference call transcript, noting that President Bush and Vice President Cheney were on the call, and referenced the timing of "an order giving the military authority to shoot down hijacked aircraft." I called you to express our significant concerns about these leaks. COMMUNICATION IN CONFIDENCE 5

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On October 16, 2003, the Washington Times ran an article, also by Shaun Waterman ("9/11 Panel Votes to Subpoena FAA") that noted that "among the documents being requested by the Commission are the highly classified presidential daily briefings..." This article also repeated the statement "one presidential daily briefing in August warned that al Qaeda might try to use jetliners as weapons."

•

On February 9, 2004, the New York times reported ("9/11 Panel Threatens to Issue Subpoena for Bush's Briefings," February 9, 2004, by Philip Shenon) that "Commission officials said that negotiations continued throughout the day on Monday and into the evening with the office of Alberto R. Gonzales, the White House Counsel. ... In recent weeks, however, the White House has refused to give permission for the four members of the delegation to share their handwritten and computerized notes — which have been retained by the White House under the agreement -- with the full commission."

•

On February 9, 2004, a Newsweek article ("The White House: A New Fight Over Secret 9/11 Docs," February 16, 2004 issue, by Michael Isikoff) reported that "The fourmember team asked to look at 360 PDBs dating back to 1998; White House Counsel Alberto Gonzales permitted them to see just 24, arguing that only those that specifically mentioned possible domestic attacks or airplane hijackings were relevant. (One panel member was allowed to read all 360 - but couldn't share the contents with colleagues.)"

Moreover, the Commission continues to publicly disclose such information (some of which is reported incorrectly) even after my February 10 letter to you specifically requesting that "the Commission not further publicly describe the details of our negotiations or the specifics of the Report" and assurances from your senior staff that the Commission took such leaks very seriously and that the Commission may take some action in response to the most recent Newsweek article. •

On February 11, 2004, the Washington Post reported that the Commission agreed to accept a "17 page summary of presidential briefing documents it had sought... .The summary covered several dozen original intelligence documents." ("9/11 Commission Agrees to Accept Summary of President's Daily Briefings," by Dan Eggen)

•

February 11,2004, the New York Times quoted Commissioner Roemer as saying that the report contained "startlingly new information from some of the PDBs." ("No 'Smoking Guns' in Reports, Head of Sept. 11 Panel Says," by Phillip Shenon).

•

On February 12, 2004, The Record ("9/11 Panel's Plan," by Mike Kelly) reported that "what evolved was a two-tiered system, Kean explained, whereby the White House first selected PDBs that contained general information about potential al-Qaeda terrorism, then whittled down the reports only to specific references to Sept. 11 .. ..the process broke down again, Kean said, when White House lawyers refused to let Gorelick and Zelikow share their notes with the full 10-member commission. What was worked out only this week, Kean said, was a compromise under which Gorelick and Zelikow summarized their notes in lengthy report." COMMUNICATION IN CONFIDENCE 6

COMMUNICATION IN CONFIDENCE [Draft: 2/18/2004] Your February 13 letter argues that the "record of the Commission properly handling classified information is strong." I assume that this statement means that the Commission's internal investigation of public disclosures of information in the TOP SECRET air threat conference call, of the linking of a specific number of PDB articles with the criteria for their selection reported in the media following the Review Team's report, and other public disclosures, have concluded that, in fact, no classified information was disclosed. Although I do not necessarily concur with your analysis, I hope that the Commission's security officer has taken, or will take, measures to increase awareness on the part of Commissioners and staff of the types of information that is, and is not, classified. In addition to the specific incidents described above, there are other prior incidents that have caused us concern regarding the Commission's internal handling of classified information (e.g., related to classification markings of notes, transportation of classified material, and limiting access to compartmented information). Because, however, those concerns have been discussed by our respective staffs and are arguably not as potentially damaging as public disclosure of highly sensitive and classified information, I will not detail them here. The careful wording of your February 13 letter also suggests an implicit acknowledgment that the Commission's record of preventing disclosure of sensitive negotiations is not strong, as is clearly demonstrated by the numerous examples stated above, and others. The fact that Commissioners clearly feel free to publicly discuss this type of information, have shown a willingness to discuss publicly information about PDB materials as they get it, and are apparently making their own, individual assessments of how much they can publicly disclose without damaging our national security, continues to trouble me greatly and does not bode well for the future. I continue to urge the Commission to protect from unauthorized disclosure sensitive information regarding our discussions and the secrets of the Nation to which the Commission is given access. It would be extremely tragic and ironic if actions of individual Commissioners or staff result in undermining our ability to protect Americans from terrorist attack, rather than enhancing it, as is the Commission's most critical mandate. 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

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