Sd B5 White House 2 Of 2 Fdr- Letter From Gonzales- Review Of Second Interim Report 445

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COMMUNICATION IN CONFIDENCE THE WHITE HOUSE WASHINGTON

October 3,2003 Thomas H. Kean, Chairman Lee H. Hamilton, Vice Chairman National Commission on Terrorist Attacks Upon the United States 2100KStreetN.W. Washington, D.C. 20037 Dear Chairman Kean and Vice Chairman Hamilton: We have reviewed the Second Interim Report that the National Commission on Terrorist Attacks Upon the United States ("Commission") issued on September 23, 2003, the transcript of your press conference that day, and numerous media reports since then. We appreciated that much of your report and press conference strove to provide a reasonably accurate and balanced assessment of the progress made to date, the pending issues, and your intended road ahead. I also appreciated the opportunity to speak to you on September 24 and October 1 about the Commission's work. I am confident that we can continue the cooperative and productive relationship that we have strived to maintain thus far, and which I believe is necessary to take proper account of the Constitutional interests of the President as the Commission carries out its important mission. To that end, I write to emphasize several key issues I discussed with you on October 1. First, we are pleased to report that, in addition to the impressive production statistics included in your Second Interim Report, more than 220 individuals in the Executive Branch -many of whom are also responsible for helping fight the war on terrorists of global reach — spend at least a significant part of their time directly responding to the Commission's hundreds of requests for documents, briefings, interviews, and information. This is in addition to the hundreds of Executive Branch officials, many also on the front lines of the war, who have been or will be interviewed. To my knowledge, the Executive Branch has not refused to make available to the Commission any information in response to any request issued by the Commission to date and, in fact, has provided the Commission with access to many highly classified and very sensitive documents that have seldom, if ever, been made available outside the Executive Branch, particularly on this scale. We appreciate your acknowledgement that the level and nature of access is remarkable. Second, we will continue to provide the Commission with the information it needs, consistent with a responsible concern for sensitive information that will allow us to win the war on terrorism and protect the institution of the Presidency. Although some Commissioners and staff have expressed frustration about having to demonstrate a particulari2ed showing of need before obtaining access to certain documents and/or complained about certain access arrangements, we continue to believe these arrangements are firmly rooted in Constitutional principle and judicial recognition and are part of the good-faith accommodation process necessary to maintain the effective functioning of our governmental system. Furthermore, 1 note that while we believe the Commission has a duty to make particularized showings of need for COMMUNICATION IN CONFIDENCE

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COMMUNICATION IN CONFIDENCE sensitive materials, we have sought such showings for only a fraction of the most sensitive and highly deliberative documents, and we have consistently proposed new ways to facilitate prompt review of documents and expeditiously respond to Commission requests for additional access. Third, based upon our most recent discussion, I currently anticipate that we will be able to satisfactorily resolve most of the pending production and access issues regarding materials from the Executive Office of the President ("EOF") before the next Commission meeting scheduled for October 14, 2003. •

Regarding the Presidential Directives, we have previously agreed to your request that all Commissioners and selected staff have access to the final directives and drafts of a particular directive, as well as agreeing, based upon a particularized showing of need by your staff, that notes may be taken on drafts of one such directive.

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Regarding EOP Document Request No. 3, we have now made available to the Commission the vast majority of responsive documents in our possession. We recently made available the substantial remainder of responsive documents from the Bush Administration (and have agreed immediately to additional access to some of these materials based upon your staffs particularized showing of need). We have reviewed the Clinton Administration documents we have thus far received from the National Archives and Records Administration, which are only partial and do not include electronic e-mail, and will make every attempt to make those materials already received available to you within the next two weeks. Additional EOP 3 materials will continue to be made available as their processing is completed as part of our "rolling production" agreement, but as you noted on our call, the EOP 3 production issues are now largely resolved.

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Regarding EOP Briefing Request No. 1, we have scheduled a responsive briefing for today, Friday, October 3, in the White House Situation Room.

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Regarding the Presidential Daily Briefs ('TDB's"), we have agreed to your request that we provide a substantive briefing to the full Commission and selected staff and to allow questions at the briefing. We are working hard to schedule that briefing as ""soon as possible, but, as we have previously advised, it will take some time to properly prepare this briefing given the sheer number of documents at issue, the extraordinary sensitivity of those documents, the current operational demands on those involved with the PDB process, and the Commission's requirement that questions be asked at the briefing. I expect this briefing will occur by October 14, 2003. As I said on our call, you have assurances that we will promptly consider and respond to a request for additional access with respect to the PDB's.

There are no other significant production or access issues of which I am aware. I also appreciate your recent clarification to me that recent Commission statements and media reports concerning assurances that the "remainder of documents" will be produced to the Commission in "the next two weeks" were not intended to apply to EOP materials, although we endeavor to provide information as quickly as possible. COMMUNICATION IN CONFIDENCE

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COMMUNICATION IN CONFIDENCE Fourth, we remain concerned about leaks of highly sensitive information. In particular, as I discussed I was very troubled by a Newsweek story, dated, September 25, 2003, quoting "sources familiar with the negotiations." Although we certainly do not wish to unduly interfere with your ability to communicate appropriate information to the public, prior incidents raise concerns about the Commission's ability and willingness to protect highly classified information and are counterproductive to our negotiation efforts. Because the Constitutional and statutory responsibility to protect sensitive information from unauthorized disclosure rests with the President and his subordinate officers, our ability to provide the Commissioners and staff with access to such information is dependent on the degree to which we can, in good faith, be confident that such access to classified information is clearly consistent with the national security and that unauthorized disclosures of it will not ensue. T know that you appreciate this and I urge the Commission to give top priority to protection from unauthorized disclosure of the secrets of the Nation to which the Commission is given access. I hope that you will share my views with the Commission and appropriate staff. I appreciate your cooperation and hope that we can continue our progress towards issuance of the Commission's report in accordance with the Commission's organic statute. Sincerely,

Alberto R. Gonzales Counsel to the President

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