Sd B5 White House 2 Of 2 Fdr- Memo- Proposal For Breaking Pdb Impasse 455

September 25, 2003 MEMORANDUM To:

Tom and Lee

From:

Philip Zelikow

Subj:

Proposal for Breaking PDB Impasse

Dan Marcus and Steve Dunne have not read this memo, but they helped shape its contents and they agree with the recommendations in it. Briefing and Schedule For our own scheduling reasons, we are currently pressing for a briefing of all commissioners next Thursday, October 2. This will then become a key Commission meeting on that issue and on EOP #3. So, by then, and to avoid further friction or press problems, we hope that we can have resolved the follow-up issues. Ideally this would mean a face-to-face meeting involving the two of you at the White House, for closure, sometime late in the day on Wednesday, October 1, depending on when Tom can arrive. Another advantage of October 2 is that it would allow time for staff to follow up on the plan outlined below before folks take off for foreign lands. The choreography could then run as follows: Friday, 9/26: Staff-level introduction of proposal on PDB issues. Monday, 9/29: Preview of EOP #3 materials and related issues. Monday or Tuesday, 9/30: Staff presents positions on EOP#3 issues and tries to narrow or close differences on PDB, identifying issues for Tom and Lee to discuss at White House. Wednesday, October 1: Conclusive discussions by Tom/Lee at White House Subcommittee Approach, Lee's Concerns, and Our "Loophole" Option As you'll see, we recommend a subcommittee approach to Commission review of key PDBs (assuming the White House can be persuaded to allow this at all). We have discussed Lee's concerns about this procedure. We want to stress that we think Lee's concerns are valid. But we nonetheless recommend the subcommittee approach. There is a tradeoff here and we think this route is most likely to get the Commission past this volatile problem. If we insist on review by all ten commissioners, the logistics of managing this review under the

procedures laid out below would be difficult. The White House can also too easily outmaneuver us. If they then offer chair/vice chair or a subcommittee counterproposal, we are checkmated legally and politically. Legally, because the Commission will have access and no court will insist on ten versus two, if we were able to win in court at all. Politically, because we will be fighting over the issue often versus two, or four. Not so compelling. After all, that practice is followed on the Hill and was followed by the Joint Inquiry. Also, would we then refuse to look at the documents unless all ten commissioners could see them? That would then hurt the report, while we lacked any option to force them to give access to the ten. Could be a lose/lose proposition. But a loophole...? If the subcommittee does the review, it would still leave open the possibility that it would identify one or two PDBs (the famous Aug 6 one for example) so vital that we would ask that every commissioner must see it. We would still be able to make that request and, to borrow a phrase, articulate our specific, particularized need. PDB Proposal

I have spoken to Jamie Gorelick and have her bottom line requirements for a proposal she will stand by, even if Tim and Richard are unhappy with it. They are incorporated in our recommendations. So, beyond the briefing ... Issue #1: Cull the 320 assembled PDB items/articles. The items requiring close Commission scrutiny must be separated for more detailed examination. We hope this will result in a relatively small subset of items. Option A: Ask White House to do it for us. Hard to do because Commission cannot rely on White House to make these subjective judgments of what we need to see. Nor can we give them objective guidelines for selection, since importance will depend on the date of the document, the context, and the material in ways that will defy formal categorization. Option B: All ten commissioners to do this. Will be unacceptable to the White House and unworkable in practice. Option C: Subcommittee of four commissioners to do this. More workable, though still cumbersome. Hard for the White House. Option D: Staff to do this. Philip and Chris could do this culling on behalf of the

Commission. This option is what we recommend. Handles this modest but vital duty in a low-key way. Issue #2: Review of Key PDBs. We believe that commissioners must be able to directly review the important PDBs. In all options at least two staffers would also need to be able to review the documents as well. Option A: Review by all ten commissioners. Preserves equal status of commissioners. Mitigates dissension. Likely not to be acceptable to the White House. Option B: Review by subcommittee of four commissioners. More likely to be acceptable to the White House. Would be resented by 2 or 3 commissioners. Jamie will defend it, however, even if she is not one of the four. (Though we think she should be.) This option is what we recommend. Option C: Review only by Chair/Vice Chair. Most likely to be acceptable to the White House. Not likely to be acceptable to most commissioners. Jamie would oppose this. Issue #3: Notetaking in review of these Key PDBs. Option A: No notetaking. White House will like. Most commissioners won't. Jamie is more ambivalent, but comes down on the need for notes especially for benefit of staff. Option B: Notetaking allowed but the notes permanently held by White House, available for later referral but may not be taken back to the Commission. Jamie will go along with this, leaving for the future the issue of whether we would be able to take notes from our notes. This is the option we recommend. Option C: Notetaking allowed with Commission bringing notes back. White House would strongly oppose, since it allows the PDBs to be recreated without adequate controls on distribution.

We're not at all sure the White House will agree to the proposals we recommend here. But we think this is the line we should be willing to defend, all the way up to the President if necessary.