White House Letter To 9/11 Commission About Limits On Access To White House Officials

THE WHITE HOUSE WASHINGTON

November 21,2003 Daniel Marcus, Esq. General Counsel National Commission on Terrorist Attacks Upon the United States 2100 K Street N.W. Washington, D.C. 20037 Dear Mr. Marcus: I am writing to confirm the conditions under which we currently intend to provide the National Commission on Terrorist Attacks Upon the United States ("Commission") with access to officials from the Executive Office of the President ("EOF"). These conditions apply to those individuals made available in response to the Commission's requests for "interviews" (i.e., EOF ; Interview Request No. 1, dated August 27,2003 and EOF Interview Request No. 2, dated ! October 23,2003) and requests for "meetings" (Le., multiple letters from Chairman Kean and | Vice Chairman Hamilton dated October 27 and October 31,2003), as well as EOF officials made • available in response to subsequent Commission requests. As we have discussed, I believe it is in our mutual interest to memorialize these conditions in writing, in order to minimize misunderstandings and to avoid, to the maximum extent possible, any potential for disagreements during the meetings. I anticipate that both sides will apply a "rule of reason" when applying these conditions. Our approach to developing the conditions for access to EOF officials has been guided by our responsibility to protect the crucial Constitutional prerogatives of the Presidency, for this and future Presidents, while attempting to accommodate the unique needs associated with the Commission's responsibility to prepare a detailed report — for the President, the Congress, and ultimately the American people - on the attacks on September 11,2001. In this spirit, we currently are prepared to provide the Commission with access to EOF officials as follows: •

EOF officials will be made available voluntarily and strictly as a matter of comity between the Executive and Legislative branches;

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Commission access to EOF officials will be provided at "meetings" or "policy briefings," which are not, and should not be referred to as, "testimony" or "interviews";

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Meetings will be reasonably limited in time (generally from 1-2 hours in duration, not including time required for prepared statements, if any, made by EOF officials);

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EOF officials will not be placed under oath;

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We will inform you on a case-by-case basis whether we request that meetings be recorded; otherwise, meetings will not be recorded;

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HOP representatives will be present at the meetings (generally one representative per meeting from the Office of the Counsel to the President or the Office of the Legal Adviser to the National Security Council);

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Commission representatives may attend the meetings (generally no more than five such representatives may be present). For Assistants to the President (or equivalent) and above, the Commission Chair or Vice Chair must be present; up to two other Commissioners and two staff members may attend. For Deputy Assistants to the President (or equivalent), the Chair or Vice Chair may be present, but at least one Commissioner must be present. For other EOF officials, no Commissioners need be present;

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Meetings will be held in a SCIF in HOP office space, and all Commission and staff members attending a meeting must have security clearances sufficient for any classified information to be discussed;

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Absent unusual circumstances, HOP officials will only be made available for one meeting.

As you have recognized, our accommodation with regard to making EOP officials available to the Commission 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. Furthermore, these EOP officials are being made available to the Commission with dne 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 our agreement regarding other EOP materials, information obtained from EOP officials is being made available to the Commission in confidence and as in closed session. The Commission should make every effort to protect this information from any unauthorized disclosure and from use for any unauthorized purpose. We hope and expect that the above cooperative arrangements will proceed smoothly and respect the concerns of the Executive Branch. Tf difficulties arise, we will work with you in an . effort to resolve them in a mutually satisfactory fashion. Should implementation of these arrangements ultimately fail to meet our expectations, we reserve the right to modify or terminate them consistent with the constitutional separation of powers. I look forward to continuing to work with you as the Commission completes its work. Sincerely,

lonheim Associate Counsel to the President