Sd B5 White House 2 Of 2 Fdr- Letter From Gonzales And Final Terms For Commission Access To Pdbs 444

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 2100 K St. N.W. Washington, B.C. 20037 Dear Chairman Kean and Vice Chairman Hamilton: I am writing to confirm that, on the terms set forth hi 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 10 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, hi 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 Conzales to Chairman Kean and Vice Chairman Hamilton, dated November 11,2003)

Categories of PDB 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 ofPDJB 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").

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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.

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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

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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. In addition, you have agreed to afford the EOF 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.

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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

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COMMUNICATION IN CONFIDENCE TERMS FOR PROVIDING COMMISSION REPRESENTATIVES ADDITIONAL ACCESS TO PRESDDENT'S DAD1Y BRIEFS (PDBs) (per letter from Judge Gonzales to Chairman Kean and Vice Chairman Hamilton, dated November 11,2003)

review by all members of tihe 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 subj ect 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.

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