Sd B5 White House 2 Of 2 Fdr- 9-19-03 Letter To Gonzales Re Access To Presidential Directives 456

Thomas H. Kean CHAIR

September 19, 2003

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

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

Frederick F. Fielding Jamie S. Gorelick Slade Gorton John F. Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

Dear Judge Gonzales: We are writing in response to your letter of August 15 concerning access to Presidential Directives. As you know, after receiving that letter, our Executive Director and General Counsel met with David Leitch and reached a number of understandings as to the nature of the conditions set forth in your letter, as well as clarifying the remaining areas of disagreement. We continue to appreciate the hard work by your staff in making documents available to us, including highly sensitive documents that are ordinarily not available outside the White House. And we agree with your observation that the special circumstances of the Commission's investigation should not set a precedent for the disclosure of deliberative materials of this or future Presidents. The purpose of this letter, supplementing our telephone discussion with you, is to set forth our views on the areas where progress has been made in resolving our remaining differences, and to emphasize several points that, in our view, still call for reconsideration of your position. We are pleased that you have reconsidered the prohibition on Commissioners and designated staff taking notes on the final version of NSPDs 8 and 9 and the three key Clinton administration PDDs on counterterrorism, as well as drafts of NSPD-9. But we strongly urge you to reconsider the current ground rule that permits us to take notes on certain critical policy documents and drafts only after we have made a particularized showing of need which you find persuasive. Understanding our past and present policies on terrorism requires an understanding of alternatives that were considered and rejected in developing those policies. Our Commission and staff will be severely hampered in drafting a meaningful and accurate report if we cannot take notes. A related issue is access to drafts. You have not agreed to our compromise proposal that we have access to circulated drafts of important documents, but said you would consider requests for drafts on a case-by-case, need-to-know basis. Again, we strongly urge you to reconsider this position and provide access to all circulated drafts of significant policy documents. 301 7'1' Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-1 lcommission.gov

The Honorable Alberto R. Gonzales September 19, 2003 Page 2

Under the current ground rules, we are required to make particularized showings of need before we can get access to circulated drafts and take notes on them. While we have made such showings—for example, on our need to take notes on the pre-9/11 drafts of NSPD-9—the process of making such showings and obtaining answers is proving too time-consuming and uncertain. Our experience has confirmed our view that it is important to revisit these issues. In answer to the condition set forth in your August 15 letter that there will be a "strong presumption that the Commission's report will not discuss draft materials not included in, or different from, the final, signed directive," we will be sensitive about disclosure of materials from drafts that differ from the final directives. Much of this material may be classified in any event. But we must be free to explore and discuss in our report policy options that were considered but not adopted. Finally, with respect to the final condition set forth in your August 15 letter, the Commission has no intention, during the pendency of our investigation over the next nine months, of disclosing that draft or final Presidential Directives have been made available to us. It is not clear whether this condition was intended to apply to our final report itself. As we told Mr. Leitch, it would be difficult, if not impossible, to avoid indicating or explicitly stating that such documents had been made available. We appreciate the opportunity we had to discuss some of these points with you yesterday. We hope this letter is useful in summarizing where we stand on the access issues and in convincing you to reconsider your position on the points indicated. We and our staff stand ready to discuss these matters further with you and your staff. With best regards,

Thomas H. Kean Chair

Lee H. Hamilton Vice Chair