T3 B7 Dialogue W Commissioners Fdr- 3-25-04 Gonzales Letter Re Commission Mischaracterization Of Rice And 2 Emails From Bass Re Letter 091

THE WHITE HOUSE WASHINGTON

March 25,2004 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: As you know, on February 7, 2004, Dr. Rice met privately for approximately four hours with members of the National Commission on Terrorist Attacks Upon the United States ("Commission"); she fully answered every question posed to her; and she offered to meet privately again if the Commission had any additional questions for her. In light of yesterday's hearings, in which there were a number of mischaracterizations of Dr. Rice's statements and positions, Dr. Rice requests to meet again privately with the Commission. In particular, further discussions would clear up a repeated mischaracterization yesterday of Dr. Rice's March 15, 2004 op-ed in the Washington Post. Commissioner Gorelick suggested that Dr. Rice's statement in the Post editorial that "[o]ur plan called for military options to attack al Qaeda and Taliban leadership, ground forces and other targets — taking the fight to the enemy where he lived" was inaccurate. In fact, as records made available months ago to the Commission demonstrate, the draft National Security Presidential Directive on al Qaeda approved by Deputies and Principals before September 11, 2001 included a direction to the Department of Defense to plan for military action against: "Taliban targets in Afghanistan, including leadership, command-control, air and air defense, ground forces and logistics" (as well as numerous al Qaeda targets). It is clear, then, that Dr. Rice's Washington Post op-ed was entirely consistent with the documentary record provided to the Commission. In addition, I want to inform you that certain statements made during this week's hearings conducted by the Commission, and during television appearances of certain Commissioners, concerning prior testimony of Assistants to the President for National Security Affairs ("National Security Advisors") are inaccurate. Commissioner Ben-Veniste, for example, repeatedly cited an April 5, 2002 Congressional Research Service ("CRS") report for the proposition that "other national security advisers have come before the Congress and have testified in open session, including Mr. Berger, including Zbigniew Brzezinski." The Commissioner reiterated during your hearing that Mr. Berger, twice, "did in fact come and testify in open session." These statements left the misimpression that sitting National Security Advisors have regularly testified in public to legislative bodies (such as the Commission) concerning policy matters. A careful review of the CRS report indicates that each example cited by Commissioner Ben-Veniste is distinct from the Commission's request that Dr. Rice testify publicly about policy matters. The first appearance by Mr. Berger cited in the report (May 3, 1994), when he was Deputy

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National Security Advisor, was to provide "a policy briefing on Haiti." Contrary to Commissioner Ben-Veniste's statements, however, the Congressional Record and records on the U.S. Senate's website (copies attached) both indicate that this was a closed briefing, substantially similar to the meeting Dr. Rice has already had with the Commission, and which she has offered to have again. The other appearance by Mr. Berger cited by Commissioner Ben-Veniste (September 11,1997, in connection with the campaign finance investigation) was in public, but in decidedly different circumstances. This appearance by Mr. Berger, according to CRS, like the two examples cited by Commissioner Ben-Veniste from the Carter Administration, was in connection with potential improper or illegal conduct. Neither the CRS paper cited by Commissioner Ben-Veniste nor, so far as I know, any other authority, reveals any example of a sitting National Security Advisor appearing publicly before a legislative body outside the context of potential improper or illegal conduct. However, that report and our own research indicate a number of examples of sitting National Security Advisors declining to appear under such circumstances, including: • •

Samuel Berger declined to testify on June 10, 1999 concerning the theft of nuclear weapons secrets by China; and Anthony Lake declined to testify in 1996 concerning the Administration's Bosnia policy.

More important than the legal precedents are the principles underlying the Constitutional separation of powers at stake here. In order for President Bush and future Presidents to continue to receive the best and most candid possible advice from their White House staff on counterterrorism and other national security issues, it is important that these advisers not be compelled to testify publicly before congressional bodies such as the Commission. As Vice Chairman Hamilton noted on NewsHour on February 11th: "I think we have adequate information from these Presidential briefings, and from thousands, millions of other documents, and 900 interviews conducted thus far, with probably several hundred to go. When you put ail of this together, we're going to be able to fulfill our mandate and tell the story of September 11th." I agree, and look forward to continuing to work with the Commission to obtain the information it needs to fulfill its statutory mandate without jeopardizing the ability of President Bush and future Presidents to receive candid advice from their National Security Advisors and to better protect our Nation.

3erto R. Gonza Counsel to the President Enclosures

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Mike Hurley From:

Warren Bass

Sent:

Thursday, March 25, 2004 7:28 PM

To:

Jamie Gorelick

Cc:

Front Office; Team 3

Subject: Gonzales letter

In a letter to Gov. Kean and Rep. Hamilton that we received late today, Counsel to the President Alberto Gonzales has complained that, during our recent hearings, you offered "a repeated mischaracterization" of National Security Adviser Rice's March 22 op-ed in The Washington Post describing pre-9/11 Bush counterterrorism policy. In that piece, Rice wrote: "Through the spring and summer of 2001, the national security team developed a strategy to eliminate al Qaeda ~ which was expected to take years. .. .Our plan called for military options to attack al Qaeda and Taliban leadership, ground forces and other targets — taking the fight to the enemy where he lived." As we note in Staff Statement 6, the draft NSPD does indeed "include a section that called for development of a new set of contingency military plans against both al Qaeda and the Taliban regime." The source of the confusion may stem from Rice's added phrase "taking the fight to the enemy where he lived," which is not in the NSPD. This phrase could reasonably be interpreted to imply that the NSPD called not just for military planning but for the actual use of military force. The draft is mute on whether the USG might strike, although it did call for planning about how the USG might strike. On a related front, on September 10, the Deputies Committee endorsed a three-phase plan to try to deny al Qaeda its Afghan sanctuary. This third phase of this strategy, according to Staff Statement 5, called for efforts "to overthrow the Taliban regime through more direct action." This third phase contemplated covert action efforts, not U.S. military force. The deputies intended to merge this three-phase plan with the draft NSPD on al Qaeda. We'd be glad to brief you at K Street on the "direct action" contemplated in the third phase. Hope that's helpful. Warren

3/26/2004

Mike Hurley From: Sent: To: Cc: Subject:

Warren Bass Friday, March 26, 2004 12:30 PM Jamie Gorelick Front Office; Mike Hurley RE: Gonzales letter

I'd be glad to draft something for you, Jamie. (I've checked with Dan and Chris, and they've both approved this, too.) Please advise as to the format—I presume a letter from yourself to Judge Gonzales? Your understanding of what's in the draft NSPD is right: it calls for contingency planning for strikes on both al Qaeda and the Taliban, but it does not specify or hint that the USG was considering an outright invasion. Nor does the NSPD draft specify that the contingency planning would entail boots on the ground. Still, since the plans for Operation Infinite Resolve did discuss commando raids, it'd be odd if DOD wouldn't have wound up producing at least some modest ground options. You already have my take on the Rice piece from the last note. Again, there seems to be a critical decision between a decision to task more military planning (which had been decided by September 4 at the latest) and a decision to actually use force in Afghanistan (which we have no evidence had been). We do have a sense of what military options may have been under discussion from a CIA document on the September 4 PC, which we can brief you on at K Street. I'm afraid I can't really speak to the impressions Rice has been leaving elsewhere; my memory of the coverage is a vast blur... One other potential source of confusion: the military contingency planning was tasked by the NSPD and presumably would have been due ASAP. The military planning was not tasked by another fruit of the deputies' 2001 labors, the policy review on Afghanistan. That review produced the now-famous three-phase plan on Afghanistan. Phase III called for attempts to oust the Taliban's leadership, but by covert action involving Afghan proxies, not military force. We can brief you in more detail at the SCIF. Best, Warren