SK B3 Commission Meeting 2-10-04 Fdr- Letters and 4 Draft Minutes 001

8/14/2019 SK B3 Commission Meeting 2-10-04 Fdr- Letters and 4 Draft Minutes 001

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N A T I O N A L C O M M I S S I O N O NT E R R O R I S T A T T A C K S O N T H E U N J ^ E D S T A T E S j ,< v G > a t>T. *->

i > /Minutes of the February.^, 2004 Meeting /T he Ch air ca l led th e C o m m i s s i o n to order/at 9:10 a.m. A ll Commiss ioners were ina t t enda nc e .M i n u t e s . Commiss ioner Ben-Verf f s te m o v e d to a ppr ove th e m i n u t e s . T h e V i c e C h a i rseconded th e mot ion . T he m i n m e s w e re approved.PDBs. As the C o m m i s s i o n a w a i ted d e l i v e ry of the 17-page P D B s u m m a r y d r a ft e d b y th eCommiss ion Rev iew Tea m, Commiss ioner G or e l i c k desc r ibed th e h i s to r y of the T e a m ' sn e g o t i a t i o n s w i t h tb e W h i t e H o u se .C o mmiss io n e / ' Go r e l i ck reported tha t the exc ha nge o f let ters l a st N o v e m b e r hada ppa r e n t l y trot produced a m eet ing of the m inds w i t h the W hi t e House on the terms ofr e fe rence /The f o u r- p e r so n R e v i e w T e a m c o n s i s t in g o f t h e C h a i r , V i c e C h a i r ,Commiss ioner G or e l i c k , andthe E x e c u t i v e D ir e c t o r st ud ie d the] |Com miss ioner G or e l i c k a nd the E xec u t ive D i r ec to r r ev i ew ed and eva lu a ted a bou t 340a d d i t i o n a l P D B i t ems . They i n i t i a l l y identi f ied! F1"0"1 tn's group a s cr i t ica l to theC o m m i s s i o n ' s i n v e s t i g a t i o n .yThere were v a r io us a r gume n t s a bo u t the su mm a r i es o f the] Itha t were resolved th roug h changes in form tha t d id not a f fec t the substance of th esu mma r i es . TheW h i t e Hou se a lso disagreed w i th theR e v i e w Team's selec t ion of| |

W i t h b o t h G o r e l i c k a n d Z e l i k o w h a y i n g t a k e n their1 ' Ow n sets of re fe rence notes for all ofth e articles, they also drafted a m e m o arguing fo r .the transfer of thj I m a k i n g separatea r g u m e n t s for each . Ef for ts to resolve the cont roversy were unsuccessfu l . F i na l l y th ep ro b l e m w a s r e s o lv e d b y c h a n g i n g t h e approach.. R a t h e r th a n t ransfer r ing toth e core group and then d o i n g an i t e m i z e d surnrr iary, th e tearn s.tepped.back an d tr ied todo a na r r a t i v e ove r v i ew of the f low of Critical i n f o rm a t i o n through th e PDB for the ent i reun i v e r s e o f d o c u m e n t s , i n c l u d i n g i n d i v i d u a l su mma r i es o f some art icles and references toscores of o thers . Tha t nar ra t iv e could/ refer jo in format ion ' tha t was a lso c i rcu la ted in theNa t i ona l I n t e l l i g e n c e D a i l y o r it s su cces so r / the Senip i ; E xec u t ive In te l l i genc e B r i e f .T he W h i t e H o use f i n a l l y an d reluctahtly/ i igreed t#accept t h i s approach. It refused toincorpora te NID/S E IB i n fo r m a t i on direct ly in a jrierao s u m m a r i z i n g P D B s . The r ev i ewteam therefore prepared a ' S E IB Com pan ion / . cu . ed to the PDB report an d c o m p i l i n gi n f o r m a t i o n t o su pp lem ent i t. There Were p t he r ;a r gume n t s about the form of the PDBreport, i n c l u d i n g matters l i ke na ming particular of f ic ia l s w ho asked questions. S o instead

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COMMISSION SENSITIVEhad been fi ltered through four levels and eve ntua lly reached the C omm ission. H e sta tedthat he had been in support of a subpoena several months before, and that now he was insupport of a subpoena for both the PDBs and the Review T e a m ' s notes. He disagreedwith both the agreement and its implementation. In his view, all ten Commissionersshould hav e access to the PDBs.Com missioner Kerrey sta ted tha t he needs to get to the point a t wh ich he wil l feelcomfortable w ith the materia l . At th is point , he didn ' t feel com fortable w ith the puzzleapproach. The fam ilies are looking for a vote on a subpoena and responding to them isimportant .The V ice Chair suggested that the Comm ission review the document before they addressthese questions.At 10:00 a .m., Com missioner Go relick and the Executive Director presented th eclassified PD B report in executive session. The Commission resumed a discussion aboutth e PDB process at approximately 12:45 p.m.The General Counsel explained the process of a subpoena and its likelihood of success.H e reported that the Com m ission's outside lawyers contend that th e Commission has apretty good a rgum ent. The W hite House, they believe, wo uld take the case a l l the way toth e Supreme Court , thereby preven ting the Comm ission from gett ing a t imely decision.

/ The situation th e lawyers envisioned was one in w h i c h th e implementa t ion of thei agreement had collapsed. Yet now that th e White House had implemented th e agreementto the sa t isfact ion of the Re view Team, the Co mmis s io n ' s posit ion had weakened. TheVice C hair sta ted h is assumpt ion tha t th e W hite House would fight any subpoena hard .He anticipated that the W hite House wo uld run out the clock, and let the Comm ission goout of business .

Commissioner Kerrey expressed his need to see the original report, adding that theagreement, as implem ented, obscures to o m uch . T he General Counsel stated that, forbetter or worse, th e Commission delegated th e responsibility to the Review Team.Com missioner Ben-Veniste expressed his belief that th e Review Team was no tempowered to negotia te with th e White House.The Chair stated that reading what Commission Gorelick and the Executive Directorproduced enables th e Commission to do its job. Commissioner Gorton agreed and saidthat he w as satisfied with the report. He o utlined four options:

1) File a subpoena for all the PDBs.2) File a subpoena for a few PDBs.3) File a subpoena for the Rev iew Team 's notes.4) Rep ly to the Gonzales cover letter.Com missioner Gorton sta ted his preference for Option #4. He added tha t the C omm issionhad seen through th e process, but tha t it ra ised que stions. The Commission should sta te

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COMMISSION SENSITIVEprecisely w h a t would satisfy i t and make the letter pub lic, thereby invit in g pressure ont h e W hi t e House.Commissioner Roemer moved to subpoena th e PDBs. Commissioner Lehman secondedth e motion so that he could vote against it. Commissioners agreed to submit theirarguments in favor or opposit ion to the motion subsequent to the meeting.Commissioner Roemer offered th e f o l low ing v iews in support of the motion subsequentto the meet ing:

1 ) The summaries did show some new informat ion. The Comm iss ion should try tounderstand th e f u l l tex ture and contex t of the documents .2) If the Commission does not get more complete access, it reduces it s ability andcredibili ty to mak e tactical and strategic recommenda tions.3) If the Bush adminis t ra t ion cont inues to assert th at there was not warning, accessto the PDBs wi l l enable Com missioners to prove or disprove that assert ion. TheCommission should be able to make a judgment .4) The Comm ission has a solid legal case with a reasonable chance of prevail ing.PDBs are not deliberative documents, not an EOP product, and are shared w ithother officials besides the president.

The Vice Chai r offered the follow ing view s in opposit ion to the m otion subsequent to themeeting and asked that a history of PDB negotiat ions be appended to the minutes: The Commission established a Review Team, in cludin g Comm issioner Gorelick,t ha t reviewed all Presidential D aily Briefs responsive to the Commission'sdocumen t requests. The team did a superb job and prepared a detai led report forCom missioners. The Com mission now has a good understand ing of inform ation

provided to the President on al Qaeda and the events lead ing to September 11 . He believes strongly tha t th e Commission needs to support th e w o r k th e ReviewTeam did. He w a n t s to be on record in support of the work of Commiss ionerGorelick. The Com miss ion reached an agreement with th e White House three months ago.Today, the Comm ission completed implem entation of that agreement. You don ' tever get eve ryth ing you w ant in an agreement, but the Co mm ission got access toevery PDB it asked for, and the f u l l Commission received a report on nearly 100of them. The Commission has gotten the access it needs. A subpoena w ould n ot advance th e Commiss ion 's interests.

o First, th e agreement th e Com mission just reached p rovides i t the access itneeded to f u l f i l l it s mandate , in his j udgm en t ;o Second, a subpoena would be contra ry to that agreement;



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o Third, he is doub t fu l tha t a su b p oen awhic h the White House w ouldf i gh twi l l produce any outcome that advances the interests of theComm ission dur ing the life of the Commiss ion .Com missioners B en-Venis te , Kerrey, and Roemer voted in favor of the m otion. TheChair , Vice Chair , and Commissioners Fielding, Gorton, Lehman, and Thompson votedaga ins t the motion. Commissioner Gorelick abstained.The motion fa i led by a vote of 3-6-1.Com missioner Gorton sugg ested tha t the Com mission send a thoroug h and sharplyworded letter to the Judge. The Commission agreed.Extension. The Cha ir reviewed th e his to ry and sta tus of the Commission's request for anextension. The C omm ission requested an extension on Jan ua ry 27 of a t leas t 60 days .Bi l l s in t roduced in the House and Senate ca l led for a s ix-month ex tens ion . The W hi teHouse came out in suppor t of a two - m o n th e x t e ns ion of the f inal report ' s du e date, b u tSpeaker Hasten had s ta ted his opposit ion to any exten sion.Commissioner Fie lding noted th a t th e answer to the extension ques t ion l ies w ith theSpeaker. Comm issioner Thompson s ta ted tha t Hastert wa s unl ikely to suppor t m ore thana tw o-mo nth exten sion. Com missioner Kerrey expressed his bel ief tha t the Com missionshould not worry about the Speaker. He added that the Commission has created confusionby not request ing a s ix-month ex tens ion . The Vice Chair agreed that there w as confus ionon the Hil l as to wha t the Com mission's position is . He an d the Cha ir suppor ted 60 days ,bu t other Commissioners had lobbied for more time. He noted that both positions areconsistent with th e motion passed at the last Commission meeting.Com missioner Roem er ag reed th at Hastert is the key, and stated tha t it is imp erative thatth e W hite House com mu nicate to the congressional leadership, inclu ding Hastert , what i twant s . The Vice C hair reported tha t Judge G onzales had told the Comm ission n ot toworry about the Speaker. N ow t hat the Wh ite House suppor ts an extension,Commissioner Thompson recommended that the Commission call Hastert and ask if itcan c o u n t on suppor t for a 60-day extension in the House if the Senate were to pass a b i l lby u na nim ou s consent . Comm issioner Gorton added tha t the bi l l w o u l d not be b r o u g h t u pby Sen ator Frist wi th ou t una n imo us co nse n t.CommissionerCrorel ick stated that she compared the Commission schedules^vitn andwithout the 'extension. She noted tha t the Com mission is not get t ing subs tant ia l ly m orethat the extension on ly t rans la tes into 20 addit ional daysxThe Execut iveDirector noted th a t the Commiss ion had never pub l ic ly acknowledged it s in ten t ions todisregard the May 27 deadline. Commissioner Gorelick stated that the Commission didnot ask for the t ime it needed, She added that she did not ful ly appreciatethis at the lastmeet ing/ and suggested tharhe Comm ission request a "real" 60-day extension.



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COMMISSION SENSITIVECom missioner Ben-V enis te was l ikew ise concerned that the revised calendar onlyrestored ten of the 15 previo usly scheduled hearing days . He s tated that the Com missionhad voted on a 60-day s tatutory extension wh ile the Wh ite House has proposed a 30-dayextension. Com missioner Roemer concurred w ith this assessment. The V ice Chairclarified tha t the Com m ission had voted for a 60-day extension of the reporting date andreferred the Com mission to the approved m inutes and public statement by the Chair andVice Chair.The Vice Ch air reported that the W hite House had conve yed its view to cong ressionalleaders. The W hite House had spoken to Frist and McConnel l , and both agreed to a 60-day extensio n. M cCain said that he w anted to think about it. Com missioner Gortonconfirmed that this wa s the case based on his conversations w ith M cConnell.The Vice Chair stated that th e White House opposes a six-month extension because theydo not believe the Com m ission can hold the report between the time it is completed andth e time it is released.The C hair urged the Com mission to adopt a practical approach, s tating that this was not aquestion of w hich ex tens ion w as better or worse, but rather w hich extension th eCom mission can get. The C hair reported tha t he wa s to meet with the fam ilies thefol lowing d ay , and tha t he wil l need to explain th e Commission 's posit ion on theextension. He observed that the fam ilies wil l neve r be satisfied.The Chair conf i rmed that th e W hite House had stated it s objection to extendingCommiss ion activity past Labor Da y. He s tated that the Com mission cannot put anadditional 30 day s on the table and expect to reach an agreem ent with the President andCongress. H e believed that th e Com mission should pursue what it has been offered orrisk receiv ing no extension a t all. The V ice Chair agreed. The C hair urged theCom mission to be unif ied on the extension question. Comm issioner F ielding agreed,stating that the Co mm ission w ill not im prove its situation if is public position on theextension is inconsistent.Commissioner Ben-Veniste expressed concern about th e pre-publication review process.The Vice Chair suggested that th e report be drafted as soon as possible. CommissionFielding agreed. Commissioner Gorelick urged th e Commiss ion to reconsider publishingth e report as a book due to t ime constraint^ The Cha ir s tated tha t i t was important to haveth e book in order tojaisseminate the C ommiCom missioner Gorelick proposed th at the Csubmit the report to the President and Congr

sion 's work to the American people,mmission revise its internal calendar and;ss on July 26. She added that it was verycredible to state m e Com miss ion cannot adh ;re to the calendar based on the PDBexperience. The/Executive Director recommended that th e Com mission secure th e "60-30" exjensionyand suggested tha t the question of how to revise the interna l schedule wasa separate issjue.

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COMM ISSION SENSITIVEComm issioner Thompson s tated that there were reasons w hy the W hite House m ight nottrust the Com mission if it reversed its position on several agreements such as the PDBsand the extension.The Vice Chair observed that there comes a point in every investigation in w h i c h one hasto accept that you w on 't get everything you wou ld l ike. The Com mission s ti l l has astatutory mandate to fulfill , and he believes th e Comm ission will produce a strong andcredible report. He expressed h is desire that the Comm issioners state their views in a waythat does not under min e the credib ility of the report.The Chair advised that the Com mission m aintain the following posit ion: W e continue toneed and want more tim e. The Com mission w ould like the extension for wh ich it askedand will accept a 60-day extension^, ^^r-^*. M c > - . u

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POTUS and VP Meetings. Th e Executive Director reported that f h ~ e ~ C T 5 m r m s s i o ninitiated conversations w ith th e respective staffs of the four principals: Bush, Clintcfn,Cheney, and Gore. Commissioner Roemer suggested that th e Commission send lettersal l four, requesting that they meet with th e Commission privately as well as testifypublicly. Commissioner Ben-Veniste agreed that th e Commission should establish awritten record requesting a private meeting and politely inv ite them to appear at a publichearing.The Vice Ch air stated that written requests made sense to him . He reported that the Judgehad spoken to the President, and that , at the time, the President w as not ready to make adecision. The Judge believed th at the President wo uld meet with the Comm ission. Dav idAddington , Counsel to the Vice President , conveyed th at th e Vice President w ould meetwith th e Chair , th e Vice Chair, and a notetaker.Com missioner Gorelick s ta ted that this arrangement was not tenable . She believed that ,given th e comp lex i ty of the in te rv iew, staff needed to attend. The Chair , CommissionerThompson , and Com missioner Gorton agreed.The Commission agreed to send letters to both presidents and vice presidents. The Chairnoted that the Comm ission wil l have to accept the date provided b y their respectiveoffices, and it m ust be ready for these m eetings once a date is chosen.Additional Meetings. Th e Commission agreed to accept invitations to meet withSecretary Ru m sfeld and Director M ueller.Presentations from Teams 2 and 4 were postponed until the February 24 meeting.Comm issioner Gorelick comm ended the w ork of both teams and urged theCommissioners to review their respective materials.The Chair adjourne d the meeting at 3:52 p.m.



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CO MMISSIO N SENSITIVEAppendix: His tory of PD B Negotiations

I. Context \ There is no p reced en t for an inves t igat ive body outs ide of the E xecu t iv

o b t a i n a n d e x a m i n e Pr es iden t i a i iD a i l y Briefs (PDBs) . The lega l g ro un d is u n c e r t a i n : as D C Circ ui t Judge P at r i c ia W ald (a Demo cra t i ca ppo in tee ) pu t it i n one o p i n i o n : 'The ' s ta te secre ts ' p r i v i l e g e i s n ea r ly ab so lu t e ."

II, Negotiation of the PDB agreementN e g o t i a t i o n s wi t h t h e W h i t e Ho use o n access, to the PDBs began in earnest in Sep tember ,an d co n c luded i n No vemb er . Th ey t o o k 3 ninths. T h e C o m m i s s i o n d i d n o t g e tev e r y t h i ng i t w a n t e d , bu t i t won i m p o r t a n t cOrtCessions:

The Co mmi ss i o n l ea rn ed in Sep tember t h a t a c o m p u t e r ru n c h e c k i n g the CIA'sdatabase ind ica ted tha t some 360 PDB\itfems were respons ive to ou r do cumen trequest . \ T h e W h i t e Ho use en t e red the n ego t i a t i o n s ' t h i nk i ng t ha t j u s t a b r i e f

o ccur red o n Oc to b er 1 4 ) m i gh t b e en o ugh fo r th e Co mm i ss i o n . Th e C o mm i ss i o nf o un d the b r i e f i n g h i g h l y u n s a t i s f a c t o r y ,an a1 p ush ed fo r direct access to the PDBi t e ms . \ , t h ey sa id o n ly the C h a i r a n d V i c e Qtiwr co u ld see PD B i t e m s .

m o v e d to the C h a i r , V i c e C h a i r a nd two staff , f i n a l l y , t h e i r p o s i t i o n b ecame f ou ri n d i v i d u a l s of the Co mmi ss i o n ' s ch o o s i n g .I n i t i a l l y , t h ey sa i d t h ey m i g h t let the Co m mi ss i o n .see one o r two PD B i t ems .F i n a l l y , we g o t t h em to let the C o m m i s s i o n to see,gro up of 360 for p o ss i b le add i t i o n to the g roup\pfF i n a l l y , w e g o t t h em to le t the C o m m i s s i o n to se6|| an d t o r ev i ew th e en t i r euIn i t i a l l y , the W hi te House p roposed tha t on ly a sen ior CIA person was g o i n g torev iew a l l 3 60 PDB s . Th e Co m mi ss i o n mo ved t h em t o o n e staffer , and then totw o i n d i v i d u a l s of the C o m m i s s i o n ' s c h o o s in g . \, t h ey sa i d n o notes . Th en t h ey agreed to a .process o f n o t

F i n a l l y , they agreed to a process t h r o u g h w h i c h the 4 i n d i v i d u a l s of theC o m m i s s i o n ' s choosing can i n fo rm all 10 Commiss ioners ,



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InformationV\%;/... C O M M I S S I O N S E N S I T I V E

, I I I . TJie Agreement Itself .\ , Tcrrecap, th e ag'fee.rnent u l t i m a t e l y i n c l u d e d th e f o l l o w i n g terms:\ V Four Cornrn iss ioners .pr staff o f the C o m m i s s i o n ' s c h o o s i n g to review thej ]\ ;\.

\ O f t h o s e 4 . t wo w o u l d r e v i ew th e 360 tota l i t e m s f o r poss ib le i n c l u s i o n i n t hes m a l l e r g r o u p of| ..> T h e 4 w o u l d report t o a ll C om m i s si one r s on the|_Jitems, p l u s an y i t e m s m o v e d

, \ f rom th e large to the s m a l l g r o u p .

IV . Negotiations on Implementation of the PDB a g r eem ent,1 i m p l e m e n t a t i o n of the PDB a g r e e m e n t tool? from N o v e m b e r to Decem ber :

\ W h i l e i t is coirect th e J u d g e . w r o t e to t h e . C o m m i s s i o n a b o u t " w i d e l a t i tu d e " in the\n o f a report back tb . the 10 Co r r im i s s i o ne r s , he a l so w r o te abou t a"conc is e s um m ar y " o f the results, of the rev i ew o f PBD i t em s .,p The Ju dg e a lso s ta ted t ha t he tho ug h t no i t em s needed to be m oved f r om the

\ l a r ge r g r oup of al l 360 i t e m s t o t h e ' s ma l l g r o u p o f! I t e m s .o \e NSC C ou ns e l , J ohn B e l l i n ge r , i nd i ca ted t ha t he bel ieved an appropr ia te\t back to . the C o m m i s s i o n w o u l d be a.few s um m ar y par ag r aphs i n a one

or two page repor t .o\e staff t ook i m m edi a te excep t i on t o the cha r acte r iza t i ons above and theChai r and V ice Cha i r m ade c lear to the Judge tha t such an i m p l e m e n t a t i o n o f

. the a g r e e m e n t w o u l d n o t be acceptable to the C o m m i s s i o n . The R evi ew Team prepare*! tw o m e m o s , o n e r e p o r t i n g o n the]PDBs a n d o n ea s k i n g foil [ d o c u m e n t s to be t rans fer red f rom th e l a rge to s m a l l g r o u p for thepurpose o f prepar ing summar ies to i n f o r m al l Commiss ioners . The W hit e Ho use re jected th e m e m o s , an d r ej ec ted m ov em en t o f P D B s from th ela rge t o the s m a l l g r o u p . A f t e r l o n g n e g o t i a t i on s , i t becam e clear that t h e W h i t e H o u s e w ou l d accep t nom or e than\\dt he n n o m o r e t h a n I lo f th e P D B s m o v i n g f rom th e l a r ge t oth e s m a l l g r o u p . ^"^

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A f t e r an im pas s e in which negot ia t ions almos t col lapsed, th e Com m is s ion and theW h i t e House reached a deal on February 9 for the Review Team to brief allCom miss ione rs on a repor t 17 s ingle-spaced pages in l en g t h .

V. PDB ReportTh e r e p o r t i m p l e m e n t i n g the PDB agr e e m e nt inc lude d th e f o l l o w i n g elements:^ _A n i t e m iz e d s um m ar y (ind discussion f o r pas tan y agreement i t wo uld hav e accepted at the outse t ; and

The Commiss ion moved the W h i t e House ( from November to February) to accepta report far more d e t a i l ed t han w ha t the W hi t e House had envis ioned in theN ove m be r ag r e e m e n t .

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N A T I O N A L C O M M I S S I O N O N"" T E R R O R I S T A T T A C K S O N T H E U N I T E D S T A T E S 'Minutes o f th e February 10, 2004 M eeting

The Chair called th e Commission to order at 9:10 a.m. All Comm issioners w ere inattendance.Minutes. Commissioner Ben-Veniste moved to approve the minutes. The Vice Chairseconded th e motion. The minutes were approved.PDBs. As the Com mission awaited d elivery of the 17-page PDB summary drafted by theComm ission Review Team , Comm issioner G orelick described th e history of the Team'snegotiations with th e White House.Commissioner Gorelick reported that the exchange of letters last November ha dapparently no t produced a meeting of the minds with th e White House on the terms ofreference so there was a prolonged negotiation leading to the approval of the summarymem o. The four-person Review Teamconsisting of the Chair, Vice Chair.Commissioner Gorelick, and the Executive Directorstudied the|_Com missioner G orelick and the Exe cutive Director reviewed and evaluated about 340additional PDB items. They initially identified! [from this group as critical to theCommission's investigation.There were discussions about the summaries of thwere resolved through changes in form that did no t affect th e substance of the summarThe White House also disagreed with th e Review Team's selection of L

With both Gorelick and Zelikow having taken the ir own sets of reference notes for all ofth e articled, they also drafted a mem o arguing for the transfer ofthj I making separatearguments for each. Efforts to resolve the controversy were unsuccessful. Finally th eproblem w as resolved by changing the approach. Rather than transferring] |tothe core group and then doing an itemized summ ary, the team stepped back and tried todo a narrative overview of the flow of c ritical information through the PDB for the entireuniverse of documents, including individual summ aries of some articles and references toscores of others. That narrative could refer to inform ation that was also circulated in theNational Intelligence Daily or its successor, the Senior Exe cutive Intelligence Brief.The W hite House finally an d reluctantly agreed to accept this approach . It refused toincorporate NID/SEIB information directly in a memo summ arizing PDBs. The reviewteam therefore prepared a 'SEIB Companion,' cued to the PDB report and compilinginformation to supplement it . There were other arguments about the form of the PDBreport, including matters like namin g particular officials who asked questions. So instead

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COMMISSION SENSITIVEthe report might refer to a "senior administration official." But in all such casescommissioners need only ask who the person is, and the review team will answer.Commissioner Gorelick added that the Commission would receive the August 6 PDBverbatim during the briefing by the Executive Director reading from the team's memoand interlineating relaflct SEIBjm^eftak She and the Executive Director stated that thetext of the August 6 PDB could be recreated; Commissioner Ben-Veniste said that thisshould be done in physical form. Commissioner Gorelick stated that the report also doesno t itself list all the other strident threat headlines from the summer of 2001, but thematerials that would be provided would allow that to be recreated. She concluded bystating that there were no disagreements among the members of the Review Team as tohow the report was drafted.The Chair thanked Commissioner Gorelick and the Executive Director for their hardwork. The Vice Chair stated that he and the Commission owed a huge debt of gratitude tothem fo r their efforts. He added that the White House lawyers ha d been helpful, bu tultimately Judge Gonzales was the only one dealing with the President, who becameincreasingly involved in this process.Commissioner Gorelick suggested that, since the President conveyed on Meet the Pressthat the Chair and Vice had access to all of the PDBs, the Chair and Vice Chair shouldseek such access.The Executive Director urged the Commission not to be misled by the amount ofattention given to PDBs by the public, press, and the Commission itself. He added thatthe PDBs were just one tributary in a river of information to the presidents. He discussedsome of the other sources flowing to top officials in each administration.Commissioner Ben-Veniste asked who else would receive this briefing beside theCommission. The Executive Director stated that senior staff and designated team leaderswould likely have access to the PDB summary, but that the issue was not resolved in timefor the briefing that morning.Commission Lehman asked about the impact of the recent Newsweek article on thenegotiations. The Vice Chair stated that the article nearly blew the negotiations apart. TheJudge showed the article to the President, who reportedly exploded. The Vice Chairurged the Judge to keep his eye on the future; it was of mutual benefit to reachagreement. The Vice Chair convinced the Judge to hold the briefing at the Commission'soffices; bu t they just didn't have time to work out the staff access issue.Commissioner Ben-Veniste asked what the Commission's recourse would be if it wantedmore access. The General Counsel stated that the Commission can do what it wants, butnoted that this is the process the Commission agreed to pursue. Commissioner Gorelicksaid that it would seem inconsistent with the agreement with the White House for theCommission to issue a subpoena if it didn't like the briefing. The Vice Chair noted thatthe Commission is not precluded from asking for more material on a case-by-case basis.



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Commissioner Roemer thanked the Review Team for their diligence and hard work. Hedescribed the process as one of a four-level strainer, whereby information about the PDBshad been filtered through four levels and eventually reached the Commission. He statedthat he had been in support of a subpoena several months before, and that now he was insupport of a subpoena for both the PDBs and the Review Team's notes. He disagreedwith both the agreement and its implementation. In his view, all ten Commissionersshould have access to the PDBs.Commissioner Kerrey stated that he needs to get to the point at which he will feelcomfortable with the material. At this point, he didn't feel comfortable with the puzzleapproach. The families are looking for a vote on a subpoena and responding to them isimportant.The Vice Chair suggested that the Commission review the document before they addressthese questions.At 10:00 a.m., Commissioner Gorelick and the Executive Director presented theclassified PDB report in executive session. The Commission resumed a discussion aboutthe PDB process at approximately 12:45 p.m.The General Counsel explained the process of a subpoena and its likelihood of success.He reported that the Commission's outside lawyers contend that the Commission has apretty good argument. The White House, they believe, would take the case all the way tothe Supreme Court, thereby preventing the Commission from getting a timely decision.Outside counsel based their analysis on a situation in which implementation of theagreement had collapsed. Yet now that the White House had implemented the agreementto the satisfaction of the Review Team, the Commission's position had weakened. TheVice Chair stated his assumption that the White House would fight any subpoena hard.He anticipated that the White House would run out the clock, and let the Commission goou t of business.Commissioner Kerrey expressed his need to see the original report, adding that theagreement, as implemented, obscures too much. The General Counsel stated that, forbetter or worse, the Commission delegated the responsibility to the Review Team.Commissioner Ben-Veniste expressed his belief that the Review Team was notempowered to negotiate with the White House.The Chair stated that reading what Commission Gorelick and the Executive Directorproduced enables the Commission to do its job. Commissioner Gorton agreed and saidthat he was satisfied with the report. He outlined four options:

1) File a subpoena for all the PDBs.2) File a subpoena for a few PDBs.3) File a subpoena for the Review Team's notes.4) Reply to the Gonzales cover letter.



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Commissioner Gorton stated his preference for Option #4. He added that the Commissionhad seen through the process, but that it raised questions. The Commission should stateprecisely what would satisfy it and make the letter public, thereby inviting pressure onthe White House.Commissioner Roemer moved to subpoena the PDBs. Commissioner Lehman secondedthe motion so that he could vote against it. Commissioners agreed to submit theirarguments in favor or opposition to the motion subsequent to the meeting.

Commissioner Roemer offered the following views in support of the motion subsequentto the meeting:

1) The summaries did show some new information. The Commission should try tounderstand the full texture and context of the documents.

2) If the Commission does not get more complete access, it reduces its ability andcredibility to make tactical and strategic recommendations.

3) If the Bush administration continues to assert that there was not warning, accessto the PDBs will enable Commissioners to prove or disprove that assertion. TheCommission should be able to make a judgment.

4) The Commission has a solid legal case with a reasonable chance of prevailing.PDBs are not deliberative documents, not an EOP product, and are shared withother officials besides the president.

Commissioner Kerrey offered the following views in support of the motion subsequent tothe meeting:

s\\) The value of having a W Commissioner read the PDBs is that collectively the

Commission is much/more likely to take notice of the facts it needs to get the fulland complete accour ting the law requires.

2) The Commission Review Team, which did work long hours and did superb work,no only was not give*"wide latitude" as the White House promised, but also wasgive very restrictive instructions on what their report could contain. As aconsequence, the report was confusing and incomplete, and does not give allCommissioners what they need to make informed decisions.

3) Even in its intentionally confusing state, the report of the PDBs brought back tothe Commission discloses key facts that are enormously important in severalways, and will affect who the Commission invites as witnesses as well as thedetails of the questions the Commission will ask. It must be clear to mostCommissioners from a brief reading of the summary that the Commission willneed to recall some who have previously testified.

4) For these reasons, Commissioner Kerrey voted to subpoena these documents.



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The Vice Chair offered the following views in opposition to the motion subsequent to themeeting and asked that a history of PDB negotiations be appended to the minutes:

1) The Commission established a Review Team, including CommissionerGorelick, that reviewed all Presidential Daily Briefs responsive to theCommission's document requests. The team did a superb job and prepared adetailed report for Commissioners. The Commission now has a goodunderstanding of information provided to the President on al Qaeda and theevents leading to September 11.2) He believes strongly that the Commission needs to support the work theReview Team did. He wants to be on record in support of the work ofCommissioner Gorelick.3) The Commission reached an agreement with the White House three monthsago. Today, the Commission completed implementation of that agreement.You don't ever get everything you want in an agreement, but the Commissiongo t access to every PDB it asked for, and the full Commission received areport on nearly 100 of them. The Commission has gotten the access it needs.4) A subpoena would not advance the Commission's interests.

First, the agreement the Commission just reached provides it theaccess it needed to fulfill its mandate, in his judgment;

Second, a subpoena would be contrary to that agreement; Third, he is doubtful that a subpoenawhich the White House would

fightwill produce any outcome that advances the interests of theCommission during the life of the Commission.

Commissioners Ben-Veniste, Kerrey, and Roemer voted in favor of the motion. TheChair, Vice Chair, and Commissioners Fielding, Gorton, Lehman, and Thompson votedagainst the motion. Commissioner Gorelick abstained.The motion failed by a vote of 3-6-1.Commissioner Gorton suggested that the Commission send a thorough and sharplyworded letter to the Judge. The Commission agreed.Extension. The Chair reviewed the history and status of the Commission's request for anextension. The Commission requested an extension on January 27 of at least 60 days.Bills introduced in the House and Senate called for a six-month extension. The WhiteHouse came out in support of a two-month extension of the final report's due date, butSpeaker Hastert had stated his opposition to any extension.Commissioner Fielding noted that the answer to the extension question lies with theSpeaker. Commissioner Thompson stated that Hastert was unlikely to support more thana two-month extension. Commissioner Kerrey expressed his belief that the Commissionshould not worry about the Speaker. He added that the Commission has created confusionby not requesting a six-month extension. The Vice Chair agreed that there was confusion

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COMMISSION SENSITIVEon the Hill as to what the Commission's position is. He and the Chair supported 60 days,but other Commissioners had lobbied for more time. He noted that both positions areconsistent with the motion passed at the last Commission meeting.Commissioner Roemer agreed that Hastert is the key, and stated that it is imperative thatthe White House communicate to the congressional leadership, including Hastert, what itwants. The Vice Chair reported that Judge Gonzales had told the Commission not toworry about the Speaker. Now that the White House supports an extension,Commissioner Thompson recommended that the Commission call Hastert and ask if itcan count on support for a 60-day extension in the House if the Senate were to pass a billby unanimous consent. Commissioner Gorton added that the bill would not be brought upby Senator Frist without unanimous consent.Commissioner Gorelick stated that she compared the Commission schedules with andwithout the extension. She noted that the Commission is not getting substantially moretime for its work from the extension, and that the extension only translates into 20additional days for Commission work. The Executive Director noted that the Commissionhad never publicly acknowledged its intentions to disregard the May 27 deadline.Commissioner Gorelick stated that the Commission did not ask for the time it neededwhen it agreed to accept a 60-day extension for the report deadline but only a 30-dayextension of its statutory life. She added that she did not fully appreciate at the lastmeeting that the Commission was not intending to seek a true 60-day extension andsuggested that the Commission do so.Commissioner Ben-Veniste was likewise concerned that the revised calendar onlyrestored ten of the 15 previously scheduled hearing days. He stated that the Commissionhad voted on a 60-day statutory extension while the White House has proposed a 30-dayextension. Commissioner Roemer concurred with this assessment. The Vice Chairclarified that the Commission had voted for a 60-day extension of the reporting date an dreferred the Commission to the approved minutes and public statement by the Chair andVice Chair. Commissioner Ben-Veniste stated that, notwithstanding the minutes, it washis clear understanding the vote had been on a 60-day statutory extension for both thedate of the report and the life of the Commission. Commissioners Gorton and Roemerconcurred.The Vice Chair reported that the White House had conveyed its view to congressionalleaders. The White House had spoken to Frist and McConnell, and both agreed to a 60-day extension. McCain said that he wanted to think about it. Commissioner Gortonconfirmed that this was the case based on his conversations with McConnell.The Vice Chair stated that the White House opposes a six-month extension because theydo not believe the Commission can hold the report between the time it is completed an dthe time it is released.The Chair urged the Commission to adopt a practical approach, stating that this was not aquestion of which extension was better or worse, but rather which extension theCommission can get. The Chair reported that he was to meet with the families the

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following day, and that he will need to explain the Commission's position on the C~extension. He observed that tho familica will never be satisfied.The Chair confirmed that the White House had stated its objection to extendingCommission activity past Labor Day. He stated that the Commission cannot put anadditional 30 days on the table and expect to reach an agreement with the President andCongress. He believed that the Commission should pursue what it has been offered orrisk receiving no extension at all. The Vice Chair agreed. The Chair urged theCommission to be unified on the extension question. Commissioner Fielding agreed,stating that the Commission will not improve its situation if is public position on theextension is inconsistent.Commissioner Ben-Veniste expressed concern about the pre-publication review process.The Vice Chair suggested that the report be drafted as soon as possible. CommissionFielding agreed. Commissioner Gorelick urged the Commission to reconsider publishingthe report as a book on July 26 due to time constraints, but rather submit the report forpre-publication review on that date. The Chair stated that it was important to have thebook in order to disseminate the Commission's work to the American people*.Commissioner Gorelick proposed that the Commission revise itsJnterrlaTcalendar andsubmit the report to the President and Congress on Ju^y^6rThe Chair agreed that thiswas an option and extended discussion ensued. Sfe^added that the Commission cannotadhere to the calendar based on the PDB experience and other similar delays. TheExecutive Director recommended that the Commission secure the "60-30" extension andsuggested that the question of how to revise the internal schedule was a separate issue.Commissioner Thompson stated that there were reasons why the White House might nottrust the Commission if it reversed its position on several agreements such as the PDBsand the extension.The Vice Chair observed that there comes a point in every investigation in which one hasto accept that you won't get everything you would like. The Commission still has astatutory mandate to fulfill, and he believes the Commission will produce a strong andcredible report. He expressed his desire that the Commissioners state their views in a waythat does not undermine the credibility of the report.The Chair advised that the Commission maintain the following position: We continue toneed and want more time. The Commission would like the extension for which it askedand will accept a 60-day extension of time in which to submit a report.POTUS and VP Meetings. The Executive Director reported that the Commission hadinitiated conversations with the respective staffs of the four principals: Bush, Clinton,Cheney, and Gore. Commissioner Roemer suggested that the Commission send letters toall four, requesting that they meet with the Commission privately as well as testifypublicly. Commissioner Ben-Veniste agreed that the Commission should establish awritten record requesting a private meeting and politely inviting them to appear at apublic hearing.



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The Vice Chair stated that written requests made sense to him. He reported that the Judgehad spoken to the President, and that, at the time, the President was not ready to make adecision. The Judge believed that the President would meet with the Commission. DavidAddington, Counsel to the Vice President, conveyed that the Vice President would meetwith the Chair, the Vice Chair, and a notetaker.Commissioner Gorelick stated that this arrangement was not tenable. She believed that,given the complexity of the interview, staff needed to attend. The Chair, CommissionerThompson, and Commissioner Gorton agreed.The Commission agreed to send letters to both presidents and vice presidents. The Chairnoted that the Commission will have to accept the date provided by their respectiveoffices, and it must be ready for these meetings once a date is chosen.Additional Meetings. The Commission agreed to accept invitations to meet withSecretary Rumsfeld and Director Mueller.Presentations from Teams 2 and 4 were postponed until the February 24 meeting.Commissioner Gorelick commended the work of both teams and urged theCommissioners to review their respective materials.The Chair adjourned the meeting at 3:52 p.m.



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i9/ll Classified Information; | ] > f o T J p N A L C O M M I S S I O N O NT E R R O R I S T A I P T A C K S O N T H E U N I T E D S T A T E S

Miniiies ofahefybruary 10 , 2004 MeetingThe Chair called the Commission to'order at 9:10 a.m.All Commissioners were inattendance. ; \Minutes. Commissioner ^enfVenistey^noved.to approve theminutes. The Vice Chairseconded themotion. The mmutes wefe approved,PDBs. As the Commission awaited delivery of trie i7-page PDB summary drafted by theCommission Review Team, CJ:ommissiori,e.r Gorelick described the history of the Team'snegotiations with theWhite House. \ , ,Commissioner Gorelicki reported that theexchangeof letters last November hadapparently not produced a meeting of the rriihds with the, White house on the termsofreference so there was a prolonged negotiation leading to the approval of the summarymemo. The four-persop Revijew Teamconsisting of the Chair: Vice Chair.Commissioner Goreliqk, and|theExecutive Directorstudied thefCommissioner Gorelick and the Executive Director reviewed and evaluated about 340additional PDB items/ They initially i d e n t i f i e c j \ | f r o m this grejup as critical to theCommission's investigation.! "There were discussiqns about the summaries ofthj |were resolved through changes in form that did not affect the substance of the summanThe White House also disagreed with theReview Team's selection oil

With both Commissioner Gorelick and the Executive Director having taken their ownsets of referencenbtes fo r al j of the articles, they also drafted a memo arguing for thetransfer ofthej[making separate arguments for each. Efforts to resolve the controversywere unsuccessful. Finally theproblem was resolved by changing theapproach. Ratherthan transferring }o thecore group and then doing an itemized summary, theteam stepped back and tried to do a narrative overview of the flow of critical informationthrough the PDB for the entire universe of documents, including individual summaries ofsome articles and references to scores of others. That narrative could refer to informationthat was also circulated in the National Intelligence Daily or its successor, theSeniorExecutiveIntelligence Brief.The White House finally and reluctantly agreed to accept this approach. It refused toincorporate NID/SEIB information directly in amemo summarizing PDBs. The reviewteam therefore prepared a 'SEIB Companion,' cued to the PDB report and compilinginformation to supplement it. There were other arguments about the form of the PDB



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COMMISSIONSENSITIVE

report, including matters like naming particular officials who asked questions. So insteadthe report might refer to a"senior administration official." But in all such casescommissioners need only ask who the person is, and the review team will answer.Commissioner Gorelick added that the Commission would receive the August 6 PDBverbatim during thebriefingby the Executive Director reading from the team's memoand interlineating the SEIB, which the Commission has. She and the Executive Directorstated that the text of the August 6 PDB could be recreated; Commissioner Ben-Venistesaid that this should be done in physical form. Commissioner Gorelick stated that thereport also does not itself list all the other strident threat headlines from the summer of2001, but the materials that would be provided would allow that to be recreated. Sheconcluded by stating that there were no disagreements among the members of the ReviewTeam as to how the report was drafted.The Chair thanked Commissioner Gorelick and the Executive Director for their hardwork. The Vice Chair stated that he and the Commission owed a huge debt of gratitude tothem for their efforts. He added that the White House lawyers had been helpful, butultimately Judge Gonzales was the only one dealing with the President, who becameincreasingly involved in this process.Commissioner Gorelick suggested that, since the President conveyed on Meet the Pressthat the Chair and Vice had access to all of the PDBs, the Chair and Vice Chair shouldseek such access.The Executive Director urged the Commission not to be misled by the amount ofattention given to PDBs by the public, press, and the Commission itself. He added thatthe PDBs were just one tributary in a river of information to the presidents. He discussedsome of the other sources flowing to top officials in each administration.Commissioner Ben-Veniste asked who else would receive this briefing beside theCommission. The Executive Director stated that senior staff and designated team leaderswould likely have access to the PDB summary, but that the issue was not resolved in timefor the briefing that morning.Commission Lehman asked about the impact of the recent Newsweek article on thenegotiations. The Vice Chair stated that the article nearly blew the negotiations apart. TheJudge showed the article to the President, who reportedly exploded. The Vice Chairurged the Judge to keep his eye on the future; it was of mutual benefit to reachagreement. The Vice Chair convinced the Judge to hold the briefing at the Commission'soffices; but they just didn't have time to work out the staff access issue.Commissioner Ben-Veniste asked what the Commission's recourse would be if it wantedmore access. The General Counsel stated that the Commission can do what it wants, butnoted that this is the process the Commission agreed to pursue. Commissioner Gorelicksaid that it would seem inconsistent with the agreement with the White House for the



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Commission to issue a subpoena if it didn't like the briefing. The Vice Chair noted thatthe Commission is not precluded from asking for more material on a case-by-case basis.Commissioner Roemer thanked the Review Team for their diligence and hard work. Hedescribed the process as one of a four-level strainer, whereby information about the PDBshad been filtered through four levels and eventually reached the Commission. He statedthat he had been in support of a subpoena several months before, and that now he was insupport of a subpoena for both the PDBs and the Review Team's notes. He disagreedwith both the agreement and its implementation. In his view, all ten Commissionersshould have access to the PDBs.Commissioner Kerrey stated that he needs to get to the point at which he will feelcomfortable with the material. At this point, he didn't feel comfortable with the puzzleapproach. The families are looking for a vote on a subpoena and responding to them isimportant.The Vice Chair suggested that the Commission review the document before they addressthese questions.At 10:00 a.m., Commissioner Gorelick and the Executive Director presented theclassified PDB report in executive session. The Commission resumed a discussion aboutthe PDB process at approximately 12:45 p.m.The General Counsel explained the process of a subpoena and its likelihood of success.He reported that the Commission's outside lawyers contend that the Commission has apretty good argument on the PDB issue. However, the White House, they believe, wouldtake the case all the way to the Supreme Court, thereby preventing the Commission fromgetting a timely decision. Moreover, outside counsel based their analysis on a situation inwhich implementation of the agreement had collapsed. Now that the White House hasimplemented the agreement to the satisfactionof the Review Team, the Commission'sposition in subpoenaing the PDBs would be weaker. The Vice Chair stated hisassumption that the White House would fight any subpoena hard. He anticipated that theWhite House would run out the clock, and let the Commission go out of business.Commissioner Kerrey expressed his need to see the original report, adding that theagreement, as implemented, obscures too much. The General Counsel stated that, forbetter or worse, the Commission delegated the responsibility to the Review Team.Commissioner Ben-Veniste expressed his belief that the Review Team was notempowered to negotiate with the White House.The Chair stated that reading what Commission Gorelick and the Executive Directorproduced enables the Commission to do its job. Commissioner Gorton agreed and saidthat he was satisfied with the report. He outlined four options:

1) File a subpoena for all the PDBs.2) File a subpoena for a few PDBs.



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COMMISSION SENSITIVE3) File a subpoena for the Review Team's notes.4) Reply to the Gon/ales cover letter.

Com missioner G orton stated his preference for Option #4. He added that the Comm issionhad seen through the process, but that it raised questions. The Com mission should stateprecisely what would satisfy it and mak e the letter public, thereby inviting pressure onthe W hite House.Commissioner Roemer moved to subpoena the PDBs. Commissioner Lehman secondedthe motion so that he could vote against it. Commissioners agreed to submit theirarguments in favor or opposition to the mo tion subsequent to the meeting.Comm issioner Roemer offered the follow ing views in support of the motion subsequentto the meeting:

1) The summaries did show some new information. The Commission should try tounderstand the full texture and context of the documents, which can best beachieved by access by all 10 Commissioners and relevant staff to the documents.2) If the Comm ission does not get more com plete access, it reduces its ability andcredibility to ma ke tactical and strategic recomm endations. Judgm ents about thequality of analysis and wa rning by the Intelligence Com munity can best be m adewhen the Comm ission has access to the entirety of the stream of reporting to thePresident, of which the PDB s are the most sensitive and most important. Betterrecomm endations will flow from complete access.3) If the Bush adm inistration continues to assert that there was not warning, accessto the PD Bs will enable Commissioners to prove or disprove that assertion. TheCommission should be able to state authoritatively as a group often and make ajudgment about such an assertion.

4) The Commission has a solid legal case with a reasonable chance of prevailing.PDBs are not deliberative docum ents and therefore should not fall under anassertion of Executive privilege. Moreover, they are not Executive Office of thePresident documents, and they are shared with other officials besides the presidentoutside the White H ouse. While the Commission had an agreement on terms ofaccess to PDBs, it is certainly the right of the Commission to assert that suchagreement did not provide the access necessary to fulfill the statutoryrequirements of the Commission's mandate.

Commissioner Kerrey offered the following views in support of the motion subsequent tothe meeting:1) The value of having all Commissioner read the PDB s is that collectively theCommission is much m ore likely to take notice of the facts it needs to get the fulland complete accounting the law requires.2) The Comm ission Review Team, which did work long hours and did superb work,no only was not given "wide latitude" as the White House promised, but also wasgive very restrictive instructions on what their report could contain. As a

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consequence, the report was confusing and incomplete, and does not give allCommissioners what they need to make informed decisions.

3) Even in its intentionally contusing state, the report of the PDBs brought back tothe Commission discloses key facts that are enormously important in severalways, and will affect who the Commission invites as witnesses as well as thedetails of the questions the Commission will ask. It must be clear to mostCommissioners from a brief reading of the summary that the Commission willneed to recall some who have previously testified.

4) For these reasons, Commissioner Kerrey voted to subpoena these documents.The Vice Chair offered the following views in opposition to the motion subsequent to themeeting and asked that a history of PDB negotiations be appended to the minutes:

1) What Commissioners Roemer and Kerrey argue for is desirable and a soundway to proceed, the question is, however, how does the Commission achieveit? The Commission has tried hard to reach that outcome and has achieved theagreement implemented by the review team.

2) The Commission established a Review Team, including CommissionerGorelick, that reviewed all Presidential Daily Briefs responsive to theCommission's document requests. The team did a superb job and prepared adetailed report for Commissioners. The Commission now has a goodunderstanding of information provided to the President on al Qaeda and theevents leading to September 11.

3) He believes strongly that the Commission needs to support the work theReview Team did. He wants to be on record in support of the work ofCommissioner Gorelick.

4) The Commission reached an agreement with the White House three monthsago. Today, the Commission completed implementation of that agreement.You don't ever get everything you want in an agreement, but the Commissiongot access to every PDB it asked for, and the full Commission received areport on nearly 100 of them. The Commission has gotten the access it needs.

5) A subpoena would not advance the Commission's interests. First, the agreement the Commission just reached provides it the

access it needed to fulfill its mandate, in his judgment; Second, a subpoena would be contrary to that agreement; Third, he is doubtful that a subpoenawhich the White House would

fightwill produce any outcome that advances the interests of theCommission during the life of the Commission.

Commissioners Ben-Veniste, Kerrey, and Roemer voted in favor of the motion. TheChair, Vice Chair, and Commissioners Fielding, Gorton, Lehman, and Thompson votedagainst the motion. Commissioner Gorelick abstained.The motion failed by a vote of 3-6-1.



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Commissioner Gorton suggested that the Commission send a thorough and sharplyworded letter to the Judge. The Commission agreed.Extension. The Chair reviewed the history and status of the Commission's request for anextension. The Commission requested an extension on January 27 of at least 60 days.Bills introduced in the House and Senate called for a six-month extension. The WhiteHouse came out in support of a two-month extension of the final report's due date, butSpeaker Hastert had stated his opposition to any extension.Commissioner Fielding noted that the answer to the extension question lies with theSpeaker. Commissioner Thompson stated that Hastert was unlikely to support more thana two-month extension. Commissioner Kerrey expressed his belief that the Commissionshould not worry about the Speaker. He added that the Commission has created confusionby not requesting a six-month extension. The Vice Chair agreed that there was confusionon the Hill as to what the Commission's position is. He and the Chair supported 60 days,but other Commissioners had lobbied for more time. Henoted that both positions areconsistent with the motion passed at the last Commission meeting.Commissioner Roemer agreed that Hastert is the key, and stated that it is imperative thatthe White House communicate to the congressional leadership, including Hastert, what itwants. The Vice Chair reported that Judge Gonzales had told the Commission not toworry about the Speaker. Now that the White House supports an extension,Commissioner Thompson recommended that the Commission call Hastert and ask if itcan count on support for a 60-day extension in the House if the Senate were to pass a billby unanimous consent. Commissioner Gorton added that the bill would not be brought upby Senator Frist without unanimous consent.Commissioner Gorelick stated that she compared the Commission schedules with andwithout the extension. Shenoted that the Commission is not getting substantially moretime for its work from the extension, and that the extension only translates into 20additional days for Commission work. The Executive Director noted that the Commissionhad never publicly acknowledged its intentions to disregard the May 27 deadline.Commissioner Gorelick stated that the Commission did not ask for the time it neededwhen it agreed to accept a 60-day extension for the report deadline but only a 30-dayextension of its statutory life. She added that she did not fully appreciate at the lastmeeting that the Commission was not intending to seek a true 60-day extension andsuggested that the Commission do so.Commissioner Ben-Veniste was likewise concerned that the revised calendar onlyrestored ten of the 15 previously scheduled hearing days. He stated that the Commissionhad voted on a 60-day statutory extension while the White House has proposed a 30-dayextension. Commissioner Roemer concurred with this assessment. The Vice Chairclarified that the Commission had voted for a 60-day extension of the reporting date andreferred the Commission to the approved minutes and public statement by the Chair andVice Chair. Commissioner Ben-Veniste stated that, notwithstanding the minutes, it washis clear understanding the vote had been on a 60-day statutory extension for both the



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COMMISSION SENSITIVEdate of the report and the life of the Com mission. Comm issioners Gorton and Roemerconcurred.The Vice Chair reported that the White House had conveyed its view to congressionalleaders. The W hite House had spoken to Frist and McConnell, and both agreed to a 60-day extension. M cCain said that he wanted to think about it. Com missioner Gortonconfirmed that this was the case based on his conversations w ith M cConnell.The Vice C hair stated that the White House opposes a six-month extension because theydo not believe the Commission can hold the report between the time it is completed andthe time it is released.The Chair urged the Com mission to adopt a practical approach, stating that this w as not aquestion of which extension w as better or worse, but rather which extension theCommission can get. The Chair reported that he was to meet with the families thefollowing day, and that he will need to explain the Commission's position on theextension.The Chair confirm ed that the Wh ite House had stated its objection to extendingCommission activity past Labor Day. He stated that the Comm ission cannot put anadditional 30 days on the table and expect to reach an agreement with the President andCongress. He believed that the C omm ission should pursue what it has been offered orrisk receiving no extension at all. The Vice C hair agreed. The Chair urged theComm ission to be unified on the extension question. Com missioner Fielding agreed,stating that the C omm ission w ill not improve its situation if is public position on theextension is inconsistent.Com missioner Ben-Veniste expressed concern abou t the pre-publication review process.The Vice Chair suggested that the report be drafted as soon as possible. CommissionFielding agreed. Comm issioner Gorelick urged the Commission to reconsider publishingthe report as a book on July 26 due to time constraints, but rather submit the report forpre-publication review on that date. The Chair stated that it was im portant to have thebook in order to disseminate the Comm ission's work to the American people.Commissioner Gorelick proposed that the Commission revise its internal calendar andsubmit the report to the President and Congress on July 26. The C hair agreed that thiswas an option and extended discussion ensued. Comm ission Gorelick added that theCommission cannot adhere to the calendar based on the PDB experience and othersimilar delays. The Execu tive Director recomm ended that the Com mission secure the"60-30" extension and suggested that the question of how to revise the internal schedulewas a separate issue.Commissioner Thompson stated that there were reasons why the White House might nottrust the Comm ission if it reversed its position on several agreements such as the PDB sand the extension.



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COMMISSION SENSITIVEThe Vice C hair observed that there comes a point in every investigation in which one hasto accept that you w on't get everything you wou ld like. The Com mission still has astatutory m andate to fulfill, and he believes the Commission will produce a strong andcredible report. He expressed his desire that the C omm issioners state their views in a waythat does not undermine the credibility of the report.The C hair advised that the Com mission maintain the following position: We continue toneed and want more time. The Comm ission w ould like the extension for which it askedand will accept a 60-day extension of time in w hich to submit a report.POTUS and VP Meetings. The Executive Director reported that the C omm ission hadinitiated conversations with the respective staffs of the four principals: Bush, Clinton,Cheney, and Gore. Com missioner Roemer suggested that the C omm ission send letters toall four, requesting that they meet w ith the Commission privately as well as testifypublicly. Comm issioner Ben-Veniste agreed that the Com mission should establish awritten record requesting a private meeting and politely inviting them to appear at apublic hearing.The Vice Chair stated that written requests made sense to him. H e reported tha t the Judgehad spoken to the President, and that, at the time, the President was not ready to ma ke adecision. The Judge believed that the President would meet with the Commission. DavidAddington, Counsel to the Vice President, conveyed that the Vice President would m eetwith the Chair, the Vice Chair, and a notetaker.Commissioner Gorelick stated that this arrangement was not tenable. She believed that,given the complexity of the interview, staff needed to attend. The Chair, C omm issionerThompson, and Commissioner Gorton agreed.The Commission agreed to send letters to both presidents and vice presidents. The Chairnoted that the C omm ission w ill have to accept the date provided by their respectiveoffices, and it must be ready for these meetings once a date is chosen.Additional Meetings. The C omm ission agreed to accept invitations to meet w ithSecretary R um sfeld and Director Mueller.Presentations from Teams 2 and 4 were postponed until the February 24 meeting.Com missioner Gorelick commended the work of both teams and urged theCommissioners to review their respective materials.The Chair adjourned the meeting at 3:52 p.m.

COMM ISSION SENS ITIVE


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COMMISSION SENSITIVEAppendix: History of PDB Negotiations

ContextThere is no precedent for an investigative body outside of the Executive Branch toobtain and examine Presidential Daily Briefs (PDBs).The legal ground is uncertain: as DC Circuit Judge Patricia Wald (a Democraticappointee) put it in one o pin ion : "The 'state secrets' privilege is nearly absolute."

II. Negotiation of the PDB agreementNeg otiations with the White House on access to the PDBs began in earnest in September,and concluded in November. They took 3 months. The Comm ission did not geteverything it wanted, but it won important concessions:

The Com mission learned in September that a computer run checking the CIA 'sdatabase indicated tha t some 360 P DB items were responsive to our docum entrequest. The White House entered the negotiationsthinking that just a briefing (as

occurred on October 14) might be enough for the Commission. The Commissionfound the briefing high ly unsatisfactory, an d pushed fo r direct access to the PDBitems.

Initially, they said only the Chair andVice Chair could see PDB items. Then theymoved to the Chair, Vice C hair and two staff. Fina lly, their position became fourindividuals of the Comm ission's choosing. Initially, they said they might let the Comm ission see one or two PDB items.Finally, we got them to let the Commission to seel land to review the entiregroup of 360 for possible addition to the group ofl Initially, the Wh ite House proposed that only.a senior CIAperson was going toreview all 360 PDBs. The Commission m0Ved them to one staffer, and then totw o individuals of the Com mission's chpbsing. Initially, they said no notes. Then they agreed to aprocess of note-taking.Finally, they agreed to a process through which the 4 individuals of theCom mission's choosing can inforjn all 10 Commissioners.

9/11 Classified Information



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COMMISSION SENSITIVEIII. The Agreement ItselfTo recap, the agreement ultim ately included the following terms:

Four Com missioners or staff of the Com mission's choosing to review thej Iitems; Of those 4, two would review the 360 total item s for possible inclusion in thesmaller group ofl I The 4 would report to all Commissioners on the^Jitems, plus any/items movedfrom the large to the small group. /

IV. Negotiations on Implementation of the PD B agreementImplementation of the PDB agreement took from November to December:

While it is correct the Judge wrote to the Cojnmission about "wide latitude" in thepreparation of a report back to the 10 Commissioners, he also wrote about a"concise summary" of the results of the rev/iew of PBD items.o The Judge also stated that he thought rio items needed to be moved from the

larger group of all 360 items to the small group ofTjitems.o The NSC Counsel, John Bellinger, indicated th at hebelieved an appropriatereport back to the Corhmission would be a few'summary paragraphs in a oneor two page report, j / /o The staff took immediate exceptiori to the characterizations above and theChair and Vice Chair ijiade clear to the Judge that such an implementation of

the agreement would not be acceptable tp/the Commission. The Review Team prepared two merhos, orie reporting on the| |pDBs and oneasking foiTJdocuments to ibe transferred/from the large to small group for thepurpose oipreparingsummaries to jnfoqfi all Commissioners. The W hite House rejected the menios,/and rejected m ovem ent of PDBs from thelarge to the small group. \ / After longneeotiations,,it beqame clear that the W hite House w ould accept no

more than|__]and then no mote than] |of the PDB s moving from the large tothe small group. " " - - . . . \>"9/11 Classified Information

COMM ISSION SENSITIVE 10


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After an impasse in which negotiations almost collapsed, the Commission and theWhite House reached a deal on February 9 for the Revie w Team to brief allCommissioners on a report 17 single-spaced pages in length.

V. PDB ReportThe report implementing the PDB agreement included the following elements:

An itemized summary and discussion of nearly 100 PDB items (exceeding thetotal oij |and||referenced earlier); Detailed statements of context, framing the report on the PDBs; A complete re-creation, word-for-word, of the August 6 PDB; An annex, compiled .with the Senior Executive Intelligence Briefs (SEIBs),

providing more \context and de tail; and A briefing in which Commissioner Gorelick and the Exec utive Dire ctor spelledout specifics behind certain euphemisms w rit ten in the report.

VI. Conclusions \ e bottom line here is that the Commission didn't ge t everything it wanted, bu

The Commission moved the White House (from September to November) far pastany agreement it would have accepted at the outset; an d The Commission moved the White House (from November to February) to accepta report far more detailed than what the White House had e nvisioned in theNovember agreement. \1 Classified Information

COMMISSION SENSITIVE 11


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To: Tim RoemerFrom: Stephanie Kaplan

Special Assistant9-11 CommissionDate: March 1, 2004

UNCLASSIFIEDFAX COVER SHEET

Fax No.: (703) 759-7>44Main Line: (202)331-1125

Unclassified Fax: (202) 296-5545Email: skaplan@9-11 commission.gov

Pages (including cover): 9

Attached are the materials you requested.Also, I wanted to let you know that I misspoke about the minutes just now. As Chris indicated, Mr.Hamilton did decide to keep the appendix in the minutes. Per Chris, below are your revised comments. Ifyou approve, we will distribute a version with this text tomorrow:"Commissioner Roemer offered the following views in support of the motion subsequent to the meeting:

1) The summaries did show some new information. Th e Commission should try to understand the fulltexture and context of the documents, which can best be achieved by access by all 10Commissioners and relevant staff to the documents.2) If the Commission does not get more complete access, it reduces its ability and credibility to maketactical and strategic recommendations. Judgments about the quality of analysis and warning by theIntelligence Community can best be made when the Commission has access to the entirety of thestream of reporting to the President, of which the PDBs are the most sensitive and most important.Better recommendations will flow from complete access.3) If the Bush administration continues to assert that there was not warning, access to the PDBs willenable Commissioners to prove or disprove that assertion. The Commission should be able to stateauthoritatively as a group often and make a judgment about such an assertion.4) The Commission has a solid legal case with a reasonable chance of prevailing. PDBs are notdeliberative documents and therefore should no t fall under an assertion of Executive privilege.Moreover, they are not Executive Office of the President documents, and they are shared with otherofficials besides the president outside the White House. While the Commission had an agreement onterms of access to PDBs, it is certainly the right of the Commission to assert that such agreement didnot provide the access necessary to fulfill the statutory requirements of the Commission's mandate."

We'll be in early as well in case youhave any changes.

T E L (202) 331-4060F A X (202) 296-5545

www.9-llcommission.gov


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Commissioner Roemer thanked the Review Team for their diligence and hard work. Hedescribed the process as one of a four-level strainer, whereby information about the PDBshad been filtered through four levels and eventually reached the Commission. He statedthat he had been in support of a subpoena several months before, and that now he was insupport of a subpoena for both the PDBs and the Review Team's notes. He disagreedwith both the agreement and its implementation. In his view, all ten Commissionersshould have access to the PDBs.Commissioner Kerrey stated that he needs to get to the point at which he will feelcomfortable with the material. At this point, he didn't feel comfortable with the puzzleapproach. The families are looking for a vote on a subpoena and responding to them isimportant.The Vice Chair suggested that the Commission review the document before they addressthese questions.At 10:00 a.m., Commissioner Gorelick and the Executive Director presented theclassified PDB report in executive session. The Commission resumed a discussion aboutthe PDB process at approximately 12:45 p.m. i-l^^âê^The General Counsel expmined the process of a subpoena and its likelihood of success.He reported that the Commission's outside lawyers contend that the Commission has apretty good argument^The White House, they believe, would take the case all the way tothe Supreme Court, thereby preventing the Commission from getting a timely decision,

i ûtside counsel based their analysis on a situation in which implementation of theagreement had collapsed. etôw that theWhite House haff implementgd the agreement^x -ln ,,.,to the satisfaction of the Review Team, the Commission's positionAtfcFweakehed. The j lVice Chair stated his assumption that the White House would fight any subpoena hard. /7\$He anticipated that the White House would run ou t the clock, and let the Commission go out of business. rP'J SCommissioner Kerrey expressed his need to see the original report, adding that theagreement, as implemented, obscures too much. The General Counsel stated that, forbetter or worse, the Commission delegated the responsibility to the Review Team.Commissioner Ben-Veniste expressed his belief that the Review Team was notempowered to negotiate with the White House.The Chair stated that reading what Commission Gorelick and the Executive Directorproduced enables the Commission to do its job. Commissioner Gorton agreed and saidthat he was satisfied with the report. He outlined four options:

1) File a subpoena for all the PDBs.2) File a subpoena for a few PDBs.3) File a subpoena for the Review Team's notes.4) Reply to the Gonzales cover letter.



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N A T I O N A L C O M M I S S I O N O NT E R R O R I S T A T T A C K S O N T H E U N I T E D S T A T E SMinutes of the February JO , 2004 Meeting

The Chair called the Commission to order at 9:10 a.m. All Commissioners were inattendance.Minutes. Commissioner Ben-Veniste moved to approve the minutes. The Vice Chairseconded th e motion. The minutes were approved.PDBs. As the Commission awaited delivery of the 17-page PDB summary drafted by theCommission Review Team, Commissioner Gorelick described the history of the Team'snegotiations with the White House.Commissioner Gorelick reported that the exchange of letters last November hadapparently not produced a meeting of the minds with the White House on the terms ofreference so there was a prolonged negotiation leading to the approval of the summarymemo. The four-person Review Teamconsisting of the Chair, Vice Chair,Commissioner Gorelick, and the Executive Directorstudied th jCommissioner Gorelick and the ExecutiveDirector reviewed and evaluated about 340additional PDB items. They initially i d e n t i f i c < | | f r o m this group as critical to theCommission's investigation.There were discussions about the summaries of the! Iwere resolved through changes in form that did not affect the substance of the sutrtmflrip.qThe White House also disagreed with the Rf tv i ^w Team's g^lpotmn r > f + hJ j

With both Commissioner Gorelick and the Executive Director having taken their ownsets of reference notes for all of the articles, they also drafted a memo arguing for the

I I making separate arguments fo r each. Efforts to resolve the controversywere unsuccessful. Finally the problem was resolved by changing the approach. Ratherthan transferring! In the core group and then doing an itemized summary, theteam stepped back and tried to do a narrative overview of the flow of critical informationthrough the PDB for the entire universe of documents, including individual summaries ofsome articles and references to scores of others. That narrative could refer to informationthat was also circulated in the National Intelligence Daily or its successor, the SeniorExecutive Intelligence Brief.The W hite House finally and reluctantly agreed to accept th is approach. It refused toincorporate N ID/S E IB information directly in a memo summarizing PDBs. The reviewteam therefore prepared a 'SEIB Companion,' cued to the PDB report and compilinginformation to supplement it. There were other arguments about the form of the PDB



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report, including matters like naming particular officials who asked questions. So insteadthe report might refer to a "senior administration official." But in all such casescommissioners need only ask who the person is, and the review team will answer.Commissioner Gorelick added that the Commission would receive the August 6 PDBverbatim during the briefing by the Executive Director reading from the team's memoand interlineating the SEIB, which the Commission has. She and the Executive Directorstated that the text of the August 6 PDB could be recreated; Commissioner Ben-Venistesaid that this should be done in physical form. Commissioner Gorelick stated that thereport also does not itself list all the other strident threat headlines from the summer of2001, but the materials that would be provided would allow that to be recreated. Sheconcluded by stating that there were no disagreements among the members of the ReviewTeam as to how the report was drafted.The Chair thanked Commissioner Gorelick and the Executive Director for their hardwork. The Vice Chair stated that he and the Commission owed a huge debt of gratitude tothem for their efforts. He added that the White House lawyers had been helpful, butultimately Judge Gonzales was the only one dealing with the President, who becameincreasingly involved in this process.Commissioner Gorelick suggested that, since the President conveyed on Meet the Pressthat the Chair and Vice had access to all of the PDBs, the Chair and Vice Chair shouldseek such access.The Executive Director urged the Commission not to be misled by the amount ofattention given to PDBs by the public, press, and the Commission itself. He added thatthe PDBs were just one tributary in a river of information to the presidents. He discussedsome of the other sources flowing to top officials in each administration.Commissioner Ben-Veniste asked who else would receive this briefing beside theCommission. The Executive Director stated that senior staff and designated team leaderswould likely have access to the PDB summary, but that the issue was not resolved in timefor the briefing that morning.Commission Lehman asked about the impact of the recent Newsweek article on thenegotiations. The Vice Chair stated that the article nearly blew the negotiations apart. TheJudge showed the article to the President, who reportedly exploded. The Vice Chairurged the Judge to keep his eye on the future; it was of mutual benefit to reachagreement. The Vice Chair convinced the Judge to hold the briefing at the Commission'soffices; but they just didn't have time to work out the staff access issue.Commissioner Ben-Veniste asked what the Commission's recourse would be if it wantedmore access. The General Counsel stated that the Commission can do what it wants, butnoted that this is the process the Commission agreed to pursue. Commissioner Gorelicksaid that it would seem inconsistent with the agreement with the White House for the



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Commission to issue a subpoena if it didn't like the briefing. The Vice Chair noted thatthe Commission is not precluded from asking for more material on a case-by-case basis.Commissioner Roemer thanked the Review Team for their diligence andhard work. Hedescribed the process as one of a four-level strainer, whereby information about the PDBshad been filtered through four levels and eventually reached the Commission. He statedthat he had been in support of a subpoena several months before, and that now he was insupport of a subpoena for both the PDBs and the Review Team's notes. He disagreedwith both the agreement and its implementation. In his view, all ten Commissionersshould have access to the PDBs.Commissioner Kerrey stated that he needs to get to the point at which he will feelcomfortable with the material. At this point, he didn't feel comfortable with the puzzleapproach. The families are looking for a vote on a subpoena and responding to them isimportant.The Vice Chair suggested that the Commission review the document before they addressthese questions.At 10:00 a.m., Commissioner Gorelick and the Executive Director presented theclassified PDB report in executive session. The Commission resumed a discussion aboutthe PDB process at approximately 12:45 p.m.The General Counsel explained the process of a subpoena and its likelihood of success.He reported that the Commission's outside lawyers contend that the Commission has apretty good argument on the PDB issue. However, the White House, they believe, wouldtake the case all the way to the Supreme Court, thereby preventing the Commission fromgetting a timely decision. Moreover, outside counsel based their analysis on a situation inwhich implementation of the agreement had collapsed. Now that the White House hasimplemented the agreement to the satisfaction of the Review Team, the Commission'sposition in subpoenaing the PDBs would be weaker. The Vice Chair stated hisassumption that the White House would fight any subpoena hard. He anticipated that theWhite House would run out the clock, and let the Commission go out of business.Commissioner Kerrey expressed his need to see the original report, adding that theagreement, as implemented, obscures too much. The General Counsel stated that, forbetter or worse, the Commission delegated the responsibility to the Review Team.C

SK B3 Commission Meeting 2-10-04 Fdr- Letters and 4 Draft Minutes 001

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Transcript of SK B3 Commission Meeting 2-10-04 Fdr- Letters and 4 Draft Minutes 001