Minutes of 9/11 Commission Meeting on November 6-7, 2003

8/14/2019 Minutes of 9/11 Commission Meeting on November 6-7, 2003

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Kean

ee H. HamiltonC H A I RBen-Veniste

ax ClelandF. FieldingS. GorelickGorton

F. Leh m a nJ . Roemer

R. Thompson

D. ZelikowD I R E C T O R

December 3, 2003MEMORANDUM

To: CommissionersFrom: Tom and Lee

thR e: Agenda for the December 8 C omm ission Meeting

T he m eeting will take place at 4:30 p.m . in R ussell 236, after the conclusionof the Security and Liberty hearing. W e will meet until approximately 6:15p.m. T he agenda follows:I. Minutes. A pproval of the minutes from the November 6-7 meeting(circulated previously) and minutes from the November 19 m eeting (T ab 1).II. Interview Plans. The E xecutive D irector will introduce and walkthrough for Commissioners the schedule for interviews with senior officialspast and present, both those currently scheduled and those planned (Tab 2).In addition, Guidelines for A gency and W hite H ouse Interviewsworked ou tcarefully with the Executive branchare enclosed (also Tab 2).We welcome C omm issioner participation in interviews. Such participationcan both help us do our work better, and signal to senior officials theseriousness and dedication of the Commission to fulfillment of our mandate.We believe it is very important for the staff to conduct these interviews. Staffhave done the detailed preparation. T hey need to conduct and carry out linesof questioning without interruption. A t the conclusion of staff questioning,Commissioners are welcome to ask any additional questions.III. Schedule and Discussion of a Possible Extension. Enclosed (at Tab3) is an integrated schedule of H earings and Commission meetings for theduration of the C om m ission, based on the current statutory deadline.T he schedule is a dem anding one. Fortunately, the staff has received almostall of the documents we expect to request or has access to databases like thePE NT T BO M case file. In addition to our public hearings, we still plan toconduct about 250-300 interview s. T o put that in perspective, we havealready completed about 760.

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In connection with a discussion of the schedule, we w ill turn to Rich ard'srequest for a detailed discussion of the merits of seeking an extension of theCom mission's deadline. We have canvassed views of all our team leaders onthis question.IV . Oaths. Staff is preparing a recommendation on administering oathsto witnesses at our 2004 public hearings. W e have asked outside pro bonocounsel to prepare a memo on our ability to compel sw orn testimony of W hiteHouse officials. The memo on this topic will be distributed at the meeting.

Tab 1 Minutes of November 6-7 and November 19 MeetingsTab 2 Schedule and Guidelines for InterviewsTab 3 - 2004 Schedule for Commission Meetings andHearings



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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 IS T A T T A C K S U P O N T H E U N I T E D ST A T E SMinutes o f th e No vember 6-7, 2003 Meeting

T he C hair called the C ommission to order at 6:25 p.m. on N ovember 6, 2003. A llC ommissioners were in attendance.Press Guidelines. T he C hair expressed his concern over public disclosures of internalC omm ission deliberations, specifically referring to the C omm ission's recent conferencecall. T he C hair stressed that the C ommission should have an equal understanding aboutwhat could and could not be disclosed in public. He did not necessarily want to proposeany new guidelines, but he did want all C ommissioners to operate under the sameguidelines.T he Vice C hair concurred. H e stated that public disclosures of internal deliberations havebeen a major obstacle in negotiating with the White H ouse. H e observed that the WhiteH ouse considers the leaks from the C omm ission detrimental, and that there had been atoughening of the White H ouse position because of such leaks.C ommissioner Gorelick agreed that it was hard to have a collaborative discussion if theviews of C omm issioners were going to be reflected in the press or otherwise disclosed.Shebelieved that the C omm ission should keep its discussions internal until a decision ismade. C ommissioner R oemer argued that members of the C ommission need to explaintheir views. H e stated that it was absurd that everyone else could talk about P D Bs exceptfor the C ommission. H e added that he had not publicly discussed the C ommission'sinternal business, but rather spoke to his own position on various issues.C omm issioner Gorton alluded to his experience in the R epublican caucus. T he rule wasthat yo u could speak to your ow n position, but not to the position of others. H e expressedthe importance of self-discipline, and urged the Commissioners not to make commentsthat would be harmful to ongoing negotiations. T he Vice C hair stated that JudgeGonzales knew the C ommission's fall-back position when the negotiations beg an.C ommissioner Ben-Veniste noted that it is extraordinarily dam aging to have the otherside know your fall-back position during a negotiation.T he C hair observed that a big danger for the C ommission is the appearance of divisionalong partisan lines. H e believed that the C ommission ha d avoided partisanship, an durged the Commissioners to guard against it in any way that they could. It was importantto stay unified, especially as they begin to take on policy issues. C omm issioner Fieldingadded that a leak of classified information would destroy the C omm ission's credibility.C ommissioner Lehman reminded his colleagues that talkin g to family members istantamount to talking to the press.

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Comm issioner B en-Veniste stated that he found the recent letter from Thomas Monheimto the General Counsel to be outrageous. He noted that the complaints listed inMonheim's letter did not even suggest that any classified inform ation had been disclosed.Comm issioner Ben-Veniste stated that the Monheim/Gonzales letters w ere pretextualattempts to limit Commission access to important documents.The C hair noted that Senator Roberts [Chairman of the Senate Select Com mittee onIntelligence] had sent a memorandum to the White House essentially quoting theCom mission's request for documents. He reported that the intelligence committees aresaying that the Congress is entitled to whatever docum ents the Comm ission receives,because the Com mission w as created by Congress.The Chair summarized the discussion, stating that Commissioners could voice theirpositions once decisions are reached. He advised that Commissioners should refrain fromthe disclosure of internal matters (including the status of ongoing negotiations) and mustnot disclose classified informa tion. He also urged that pub lic comments remain non-partisan.Minutes. The minutes from the September 23,2003 and October 14, 2003 meetings wereapproved.PDBs. The Chair outlined the Administration's offer to the Commission regarding accessto the President's daily intelligence briefs (PDBs):1) The Chair, Vice Cha ir, and two staff members would be given access to a core groupof items. These items relate to domestic terrorist threats or aircraft. These four can

take notes on these items andbrief the Commission with "wide latitude."2) The Chair, Vice Chair, or one staff member can view the remaining 300+ PDB itemsto determine wh ether anything in the broader group is material to the Commission'sworks.3) The Commission will then make the case to the White House for the transfer of itemsfrom the large group to the core group.As he told the Judge, the Chair said that the Commission would seek to place in the coregroup any items tha t it believes it needs in order to fulfill its mandate. The Judge didn'tdisagree with this pointbut he did not agree either.Comm issioner R oemer asked the Chair what he unde rstood to be the process o ftransferring items from the large grou p into the core group. They discussed how a staffmem ber likely the Deputy Directorwould review the items and report on theirrelevance to the Chair and Vice Chair. They wou ld then make the case to the Judge onbehalf of the Commission. The Chair believed that if the Commission could make thecase for access to additional items, then the A dministration wou ld agree; the Commissionis in its strongest position when it demonstrates the need for access to certain documents.

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The Chair explained that he had approached the White House twice, asking them to addCommissioners and staff to the review group. Both times the White House expressed"frustration from the highest level." Over the weekend, the White House Chief of Staffhad called the Chair to give him a "heads-up" that the impending offer was as far as theWhite House would go. The Vice Chair observed that if this was in fact the final offer,and the Commission turned it down, the Commission would lose access and the offerwould be off the table.Commissioner Ben-Veniste asked why the proposal grants access to the Chair, ViceChair, and two staffers as opposed to four Commissioners. The Chair responded that staffneeds access to these documents to write the report. The bottom line, the Vice Chairbelieved, was that the White House didn't trust all of the Commissioners.Commissioner Ben-Veniste state that it was time for the Commission to provide theWhite House with its final offer. Commissioner Ben-Veniste noted that the perception ofthe public matters. This is a bipartisan, independent commission. He found itunacceptable for the White House to be dictating conditions, and telling the Commissionwhat it can and cannot do. Commissioner Roemer agreed, adding that if no individualCommissioner [beyond the Chair and Vice Chair] sees the PDBs, then there will be anasterisk after the work of the Commission. Commissioner Roemer noted that, if you lookat the public's perception of the situation, the Commission is pretty far out there in termsof requesting access. He added that, with this agreement, the Commission won't satisfythe families, and if the Senate goes after the PDBs more aggressively and subpoenas theWhite House, then Congress will be ahead of the Commission. He concluded that themechanics of the agreement did not work, and reluctantly arrived at the position tosubpoena the White House. Commissioner Cleland concurred.

Commissioner Thompson stated his belief that the Commission will never be able tosatisfy the families. He added that the Commission won't win a court battle, and such abattle would extend past the life of the Commission. The General Counsel concurred.Commissioner Thompson added that this arrangement was the functional equivalent ofall 10 commissioners seeing the documents, and he believed it would work.Commissioner Ben-Veniste asked why the Commissioners had not received a legalmemorandum reviewing the merits of the Executive privilege claim. The Chair and ViceChair stated that, in all fairness, they had not asked Counsel to prepare such amemorandum. The General Counsel added that the subpoena would vastly complicate theCommission's relationship with the White House. Even though the subpoena would betechnically delivered to the CIA, it would be interpreted as a demand on the WhiteHouse. The Vice Chair reminded the Commission that they are still seeking very senior-level interviews.The Vice Chair said that the real question is whether the Commission can reasonablyfulfill its responsibilities if it accepts the current proposal. If the Commission rejects theproposal, he stated, then it would not see the documents it needs. If he thought a

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subpoena would get the Commission the access it needed, then he would vote for thesubpoena.The Comm ission discussed three possible options:1) Accept the offer and issue a statement expressing the Commission's satisfaction with

the agreement.la) Accept the offer and issue a statement expressing the Com mission's dissatisfactionwith the agreement.2) Reject the offer and issue a subpoena.The Vice Chair stated that he was leaning toward Option 1, if the Commission could stateclearly that its preference was for all ten Commissioners to have access.Commissioner Cleland stated that, in terms of the credibility of report, they need to beable to say that the Com mission had access. The statute gives the Com mission as anentity the responsibility, and he shares that responsibility. He wants access; tenCommissioners or nothing.Com missioner Gorton said that the Com mission's goal was to have sufficient access toinformation in order to do their job. H e added that it would be better to have two peoplereviewing the large group of documents. He agreed that ten Commissioners were betterthan two, but asked where a subpoena would lead the C omm ission. He advised theComm ission to take what it was offered, see how it goes, and then ask for more if it isunsatisfactory.Comm issioners Gorton and Lehm an stated their belief that there was a possibility of abetter "best and final" offer from the White House.Commissioner Ben-Veniste stated that we ou ght to be in a position to determine whichtwo Commissioners can view the core group, and have two people review the largergroup. If they do n't accept this proposal, he contended, then the Com mission should beprepared to subpoena.Commissioner Gorelick stated that she began the conversation with an open mind. As thediscussion progressed, she had become more convinced that the W hite House was takingan unreasonable position. She did not kno w how to acquit her personal responsibility, andwas offended by the idea that the Wh ite House didn't trust the Commissioners and wastrying to decide the scope of the inquiry.Commissioner Lehman said that the Commission was looking at the wrong question.This is not about whether there was a "smoking gun" in the briefings, but whether theintelligence community failed the President. He expressed his belief that the Comm issionshould not issue a subpoena. Comm issioner Fielding agreed, suggesting that theCommission take what it can get. Com missioner Roemer reiterated his belief that the

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Commission needs access to the PDBs, and that they would take a hit if they agreed tothe proposal on the table.Commissioner Gorton suggested that the Comm ission choose Option la, and present adraft statement to the White H ouse. If they can improve the deal, then the statement willimprove. The Comm ission, it his view, should tell the White House that the only way itcan avoid a statement critical of its position is to allow more Comm issioners and staff onthe review teams.Comm issioner T hompson moved to accept O ption 1, and Comm issioner Fieldingseconded the motion. Commissioners Thompson and Fielding voted in favor of themotion. The motion failed to carry.Commissioner R oemer moved to accept Option 2, and Commissioner Cleland secondedthe m otion. Commissioners Ben-Veniste, Cleland, Gorelick, and Roemer voted in favorof the motion. The motion failed to carry.The Com mission agreed that the Chair and Vice Chair should make an appointment withthe White House as soon as possible the next morning, and make another attempt atimproving the proposal. They w ould report to the White House on the Com mission'sdiscussions this evening, and propose that they allow four individuals of theCommission's choosing to review the core group of PDBs and two to review the largegroup of PD Bs.The C omm ission agreed to vote on the proposal after it had received a response from theWhite House.Department of Defense. The Vice Chair reported on his recent meeting w ith theSecretary of Def ense, Depu ty Secretary of D efense, and other Pentagon officials.Commissioner Gorton and the Executive Director joined the Vice Chair at this meeting.The Vice Chair stated that the Secretary was very forthright in his support for theCommission's work. He gave the Comm ission everything it asked f or; he pledged his fullcooperation, gave direct orders to subordinates, and promised to provide a timeline toCommission for the delivery of all documents still outstanding. He was distressed to learnof NORAD's performance. The Vice Chair and Comm issioner Gorton believed that theSecretary had only learned of these problems the previous evening.The Commissioners received a copy of correspondence between Undersecretary ofDefense of Intelligence Stephen Cambone (USD/I) and the Commission's ExecutiveDirector on November 6,2003. It summ arized unde rstandings reached at the mee tingwith the Secretary and set deadlines for the delivery of the three categories of documentsin question: 1) NO RAD materials; 2) detainee materials; and 3) high-level policymaterials.

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Although he welcomed the Secretary's assurances, the Executive Director recommendedthat the Commission issue a forthwith subpoena to the Department of Defen se for thefirst category of docum ents relating to NORA D. He added that trust with NO RA D hadbeen shattered, and that the staffparticularly Team 8felt strongly about thisrecommendation.The Executive D irector then recommended that the Comm ission issue a conditionalsubpoena for the second category of documents relating to detainees. Such an actionwould allow the Chair and Vice Chair to issue a subpoena without further reference withthe Com mission if the Pentagon did not meet the deadlines outlined in the Novem ber 6USD/I memorandum.In regard to the third categoryhigh-levelpolicy documentsthe Executive Directorrecommended that the comm ission not issue a subpoena at this time, stating that thebehavior of the D epartment was not as egregious. He had personally seen 20 peopleporing through 90 boxes of documents recently received from the archives, and he didnot think that a subpoena would hasten the delivery of those documents. He confirmedthat the Comm ission had asked for these do cumen ts on July 3, 2003, and CommissionerGorelick stated her belief that the Pentagon had on ly requested those documents recently.The Executive Director stated that the Commission must decide whether satisfactionderived from the subp oena's punitive use is outweighed by the costs associated withissuing one. Com missioner Fielding asked why this calculation did not apply to NORAD.The Executive Director exp lained that the situation bordered on willful concealment, andthat circumstances dictated formal legal com pulsion.The Vice C hair said that he could not support a subpoena because of the Secretary'spersonal assurances to cooperate with every one of his requests. The V ice Chair statedthat he understood the position of the staff, but suggested that the Commission'sperspective needs to be broader. Commissioner Lehman concurred, but asked that therecord reflect that he supported a subpoen a to the Defense Department three weeks prior.Comm issioner Thom pson also concurred with the Vice Chair.The Chair voiced the sta ff s concerns that there is mo re information out there. TeamLeader John Farmer had expressed his considerable frustration with NOR AD to theChair. The General Counsel stated that there was strong sentiment am ong some staff torecommend an even broader subpoena to DoD, and that Team Leader Dieter Snell, forexample, was extremely disturbed by the delay in detainee materials.The Vice Chair stated that he would be comfortable with a conditional subpoena for theNORAD and detainee docum ents, with a letter to the Secretary indicating as m uch. H eobserved that there is a level of frustration in the Com mission to issue a subpoena againstsomebody, to let them know that the Com mission is exercising the power it has. Thismade him uncomfortable. The Secretary had expressed his support for everything theVice Chair requested and set delivery deadlines within 24 hours after the m eeting.



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Commissioner Ben-Veniste stated that there must be integrity in the process andexpressed his concern that the staff was becoming demoralized. Commissioner Gorelickexpressed her support for the staff as well. The C omm ission had not gotten theDepartment of Defense to saluteto the Commission's tremendous detrimentand hadlost 2-3 mon ths as a result.Com missioner Gorton said that the situation was so unsatisfactory that a subpoena wasappropriate. He agreed that the Secretary was highly cooperative, but he added that it wasimportant for the Com mission to be credible.Commissioner Ben-Veniste moved that the Commission accept the staff recommendationfor the first category of documents, and subpoena the Department of Defense for allNORAD-related materials. The C hair and Comm issioners Ben-Veniste, Cleland,Gorelick, Gorton, and Roemer voted in favor of the motion. The V ice Chair andCommissioners Fielding, Lehman, and Thompson opposed. The mo tion carried by a voteof 6-4.Commissioner Gorton moved that the Commission accept the staff recommendation forthe second and third categories of documentsa conditional subpoena for detaineematerials and no imm ediate action on high-level policy docum ents. The Commissionvoted unanimously in favor of the motion.The Ex ecutive D irector announced th at the Wh ite House Chief of Staff would meet withthe Ch air and V ice Cha ir at 9:45 a.m. the following day. The meeting adjourned at 9:40p.m.The meeting resumed at 9:00 a.m. on Friday, Novem ber 7, 2003. The Chair, Vice Chair,and Com missioners Ben-Veniste, Cleland , Gorton Fielding, Lehman, R oemer, andThompson were present.MI-5 Briefing. The E xecutive Director introduced the Director-General of the B ritishSecurity Service (BSS), Eliza Ma nningha m-B uller. who spoke briefly and then responded



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the Administration's proposal offered unprecedented access and was forward-leaning.The situation was creating problems for them on the Hill, and they expressed theirdispleasure over that morning's New York Times article.The Chair presented the Commission's counter-proposal to allow four individuals of theCom mission's choosing review the core group of PDBs and two to review the largergroup.They listened carefully and countered. First, they believed that the Com mission'sdocument request was broader than its mandate. The wording was so broad that it wouldinclude, for example, PDB items on P akistan, even if there was no relationship to alQaeda. They w anted the C ommission to sharpen its request. Second, they would allowtwo mem bers of the Com mission's choosing to review the larger set of PDB items. Third,they accepted the proposal that four people of the Com mission's choosing could reviewthe core set of PDBs.They made clear that these we re just their suggestions, and that the President had notauthorized them to accept any changes to the White House proposal. But because Cardand Gonzales were discussing changes, the Chair believed mat there was room fornegotiation. They indicated that they would speak to the President as soon as possible.Commissioner Roemer asked if the two individuals reviewing the larger group w ere staffmembers or anyone of the Commission's choosing. The Chair and Vice Chair believedthat under the proposed agreement, as they understood it, the two representativesreviewing the larger group would be members of the staff.Comm issioner Roemer asked about the distinction between PD B items and the entirePDB, asking how the Com mission could "prove a negative" if its members could not seethe entire brief. The Executive Director responded that the Commission's documentrequest had asked for items, not entire briefs. Sometimes these items amount toparagraphs; sometimes they are pages long.Comm issioner B en-Veniste said that he was prepared to com promise w ith the W hiteHouse on terms that preserve the integrity, independence, and bipartisanship of theComm ission. He comm ended the Chair and Vice Chair for moving the White Housetoward a position that the Comm ission could accept. He asked if the Commission wou ldask for a certification that the items received are the only responsive items. TheExecutive Director expressed his support for the idea. Comm issioner Ben-Veniste askedfurther if the Commission was comfortable with any restrictions o n briefings back to theComm ission. The Chair responded that the White House is not going to censor anything.Senator Gorton urged the Com mission to accept this arrangement if approved by thePresident. He departed the mee ting and gave Commissioner Lehman his proxy.Commissioner Lehman stated that the Comm ission should not underestimate theimportance of reaching an agreement.



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Commissioner Cleland asked if the proposal left the Commission in a situation in whichall ten Commissioners could not see the core group ofQPDB items. The Chairconfirmed that this was the case, but added that al l members of the Commission could bebriefed.Commissioner Roemer asked how they would explain such an arrangement to the public.Commissioner Ben-Veniste recommended that the Commission announce that it has theaccess and independence that it needs to do itsjob. Commissioner Cleland disagreed. TheVice Chair added that if they reached an agreement, theCommission would respondpositively.DoDSubpoena Revisited. TheVice Chair announced that hewould speak withSecretary Rumsfeld at 5:00 p.m. that day. The Commission will deliver the subpoena onMonday, November 10, but releaseastatement that day. CommissionersLehman andBen-Veniste urged the staff to word the statement in such a way that it is directed atNORAD. TheExecutive Director explained that they intended to praise the Secretaryindividually, but criticize NORAD.Commissioner Ben-Veniste cautioned against being overly praiseworthy. Heasked ifsubpoenas would go out to DoD if theirdeadlines were not met. TheChair and ViceChair responded that he was correct.Commissioner Roemer asked for a report on the effectiveness of the FAA subpoena. TheGeneral Counsel stated that he would be happy to provide a reply.Final Report. TheExecutive Director presented astaff proposal for thedrafting andpublication of the Commission's final report.He proposed that the Commission produce an unclassified, book-length report, anexecutive summary, andnine supporting volumes, most ofwhich would remainclassified. He proposed that the staff begin drafting the final report in the early months of2004. The report wouldbe a rollingdraft, with input from the teams an d theirmonographs informing the narrative on a continuous basis. The monographs would nearcompletion in February an d March. The staff would produce a final draft for theCommission's consideration throughout April and May. With the manuscript completedby the end of May, the Commission could schedule the public roll-out for late June,leaving an additional month fo r press appearances in July.TheChair noted that theCommissionhad set aside funds to promote their policyrecommendations at the end. He expressed his hope that the Commission'srecommendations appear in both party platformsin 2004.TheExecutive Director asked theCommission to consider producing hard- andsoft-cover versions of the final report through a commercial publishing house. With such apartnership, theCommission's report would bewidelyandaffordablyavailable to the



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Am erican people. The Executive Director asked for the Commission's authority to seekproposals from three publishing housesPublicAffairs, Times Books, and W.W. Norton.In response the questions about profits, the Executive Director stated that theCommission would waive all royalties, and try to keep the cost down withoutcompromising the quality of the publication. After a discussion of donating profits tocharity, the consensus w as that the Com mission should not pursue such an arrangement.The Commissioners discussed the difficulty of the declassification process, alluding tothe experience of the Joint Inquiry. The Executive Director described why it would be inthe Commission's interest to draft what it believed to be an unclassified report requiringprepublication review versus a classified report requiring the more arduousdeclassification process.Commissioner Roemer noted that it will be very difficult to draft the report whilecontinuing to review docum ents, conduct interviews, andholding hearings. TheExecutive Director agreed that it would be a difficult task.Com missioner Ben-Veniste suggested that the NORA D/FAA hearing be rescheduled forearly March. The Chair agreed to find a date for the NO RA D/FA A hearing that wouldwork for Commissioner Ben-Veniste.The Ch air and Vice Chair asked the staff to add more meeting dates to the Com mission'scalendar, especially in the March-May corridor.Next Public Hearing. Professional Staff Member E mily Walker walked through theagenda for the November 19 public hearing on "Private/Public Sector Partnerships forEmergency Preparedness" at Drew University. Professional Staff Member KevinShaeffer explained details regarding the Commission's visit to Ground Zero.Oath Resolution. The Comm ission approved a resolution authorizing the Chair and ViceChair or Executive Director and General Counsel to authorize the administration of oathswithout further reference to the Comm ission. The resolution w as ratified by voice vote.Staff Change. The Executive Director announced that Chris Healey had agreed to serveas the leader of Team 6, and that Barbara Grewe would now report to the Front Office asSenior Counsel for Special Projects.The City of New York. The Executive Director explained the sta ffs dissatisfaction withthe NYC document production process, and asked if any members of the Commissioncould assist. Comm issioner Lehm an suggested that Senator McCain is very close withMayor Bloomberg. The E xecutive Director agreed to provide talking points forCommissioner Leh man's conversation with the Senator.The meeting adjourned at 1:02 p.m.

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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 U P O N T H E U N I T E D S T A T E SMinutes of th e November 19, 2003 Meeting

T he C hair called the C ommission to order at 6:05 p.m. on N ovember 19, 2003. T heC hair, Vice C hair, and C omm issioners Ben -Veniste, Fielding, Gorelick, Gorton, Lehman,and Roemer were present.Minutes. T he minutes from the N ovember 6-7, 2003 meetings w ere distributed fo rC ommissioner review. S everal C ommissioners submitted amendments subsequent to themeeting.City of New York. T eam L eader John F armer reported on the status of negotiations withN ew York C ity. H e stated that the C ity will give the C ommission access to 911 tapes an dF D N Y interview transcripts on D ecember 31 or when the C ity loses its appeal, whicheveris sooner. T he C ity also agreed to let Farmer see the material an d take notes beforeD ecember 31. A lthough he recommended that the C ommission proceed with a subpoena,Farmer explained that a potential downside would be that the C ity might resist orrequirea subpoena for all other materials going forward. T he General C ounsel added that theD epartment of Justice would represent the C ommission in the event that the Citychallenged the subpoena.C ommissioner Fielding moved that the C ommission issue a subpoena to the City o f N e wYork. T he Vice C hair seconded the motion. T he motion carried by voice vote.EPA/CEQ Investigation. C ommissioner Ben-Veniste inquired about the status of anoffer to receive pro-bono work from a private law firm in order to investigate allegationsof White H ouse interference with E P A health warnings after the 9-11 attacks. T heGeneral C ounsel stated that he was reluctant to use private law firms to conductinvestigative work for the C ommission, an d furthermore, that the matter was a relativelysmall investigative piece that he believed could be handled by C ommission staff. T heExecutive Director and General C ounsel agreed to develop a plan on how theinvestigation w ould be staffed.Trip Report. T he E xecutive D irector delivered a presentation on the staff s recent trip toSaudi A rabia, Yemen, Qatar, the U A E , A fghanistan, P akistan, and th e U K . H e reportedthat the staff conducted over 90 interviews, two-thirds of which were alreadymemorialized in memoranda for the record and available fo r review at the K Street office.PDB Agreement. T he C hair reviewed the terms of the agreement, which calls fo r fourC ommissioners and/or staff to review the core set of PD B articles, and two to review theentire body of articles responsive to the C omm ission's request. T he four-person reviewteam can take notes and can brief the rest of the C ommission with "wide latitude." H eadded that the team reviewing the larger group of P D B articles will be able to take

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COMMISSION SENSITIVEFOR OFFICIAL USE ONLYlimited notes in order to help them identify and make the case for a transfer of items tothe core group. He stated his preference for issuing a statement releasing a sum mary ofthe agreement and comp osition of the review team.Commissioner Ben-Veniste expressed his concern over the fulsomeness of reporting backto the Comm ission by the review team . He asked what would happen in the event of animpasse between the White House and the Commission over the transfer of items fromthe larger to sm aller group. The Vice C hair conceded that this was a difficult problem,and suggested that this was not an issue that the Commission could likely resolve aheadof time.The Chair and Vice Chair distributed the White House letter and terms of the agreement,and asked that the docum ents be returned upon the conclusion of the m eeting.Com missioner Gorelick asked if the Com mission had foregone its right to subpoena thematerials in question. The Chair and Vice C hair confirmed that the Commission had notgiven up any of its rights. Commissioner Gorton suggested that the Commission not"borrow trouble" when it hasn't surrendered any of its rights.Com missioner Ben-Veniste stated that the term "wide latitude" implied that the WhiteHouse could censor the review team 's briefing back to the Commission. The Vice Chairand General Counsel stated that the agreement d id not allow for White House censorship.The General Counsel added that the review was m ore to protect sources and methods.The General Counsel called the Com mission's attention to the final paragraph of theagreement. The Chair noted that this paragraph was objectionable; he, as well as the ViceChair and the staff, had asked that the language be removed from the letter. The ViceChair explained Gonzales's claim that he could not get the agreement through the W hiteHouse w ithout the language in the final paragraph. The General Counsel em phasized thatthe Cha ir's and Vice Chair's letter in response to Gonzales made clear the Commission'sdisagreement with that final paragraph.Commissioner Gorelick addressed two concerns from the family members. First, howdoes the Com mission know if it is seeing all of the requested PDB s items? She stated thatthe Commission should seek a certification to solve this problem. The second concernrelated to the public release of the agreement. C omm issioner Gorelick stated she initiallythought the Comm ission should put out the text of the entire agreement; now she thoughtit was the prudent course to issue a summary. She stated that it would be difficult to raisean issue later if the Com mission hasn't prepared public opinion as to the nature of theagreement. The General Counsel circulated a draft summary for Commissionerconsideration. Com missioner Lehman expressed his concern over releasing the terms ofthe agreement.

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COMMISSION SENSITIVEFOR OFFICIAL USE ONLYCommissioner Ben-Veniste revisited a suggestion he m ade at a previous meeting, askingstaff to prepare a memorandum on the rights of the Commission to compel docum entsfrom the White House. The Chair and Vice Chair agreed.The Vice Chair thought it would be helpful to recapitulate the negotiations. First, herecalled, the White House offered a briefing on PD Bs. Then, the administration suggestedthat perhaps the Chair and Vice Chair could see a few PDBs. Next, the White Housesuggested that a senior CIA official could see all of the requested items. Then theproposal was that one staffer could review all items, with the Chair and Vice Chairreviewing a core group. The White House finally agreed to two individuals of theCommission's choosing to review all articles, and then four individuals of theCommission's choosing to review a core group.Discussion ensued on the stated criteria fo r moving items from the larger group to thecore group. Commissioner Ben-Veniste asked if there had been a conversation with theWhite House about its letter beforehand. The Chair and Vice Chair said that there had notbeen, except afterwards, especially with respect to the objectionable last paragraph thatprompted a letter back to Gonzales. The Executive D irector explained the processwhereby the PDBs and SEIBs would be comp ared. He stated that there w ill be no need totransfer PDB items from the larger group to the core group if their content matches theSEIBs; the Com mission has the SEIBs and can share them with the full Commission atany time.Com missioner Gorelick asked if there is an ability to share information from the two tothe four to all ten Comm issioners. The Vice Chair responded that there was no issueunless Judg e Gonzales said no; then the question would have to come back to theCom mission. Comm issioner G orelick moved that the Com mission issue the amendedsummary of the access agreement. The mo tion carried by voice vote.Review Team. The C hair proposed that the Vice Chair, Comm issioner Gorelick, theExecutive Director, and he serve on the four-member review team, with CommissionerGorelick and the Executive Director reviewing the larger set of PDB articles.Com missioner Ben-Veniste proposed that Com missioner Roemer serve on the reviewteam, replacing either the Chair or Vice Chair. H e stated that such a move would make animportant public statement, demonstrate a level of cohesion, and assuage critics of theagreement. Comm issioner Roemer stated that he did not wish to be a member of thereview team given that he disagrees with the access arrangement. He added that he wouldrather spend time reviewing NSC m aterial. The Vice Chair observed that CommissionerRoemer had also spent valuable time taking on the issue of Congressional oversight.

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COMMISSION SENSITIVEFO R OFFICIAL USE ONLYCommissioner Fielding moved to accept the Chair's proposal. Commissioner Lehmanseconded the motion. The Chair's proposal for the composition of the review team wasapproved by voice vote. Commissioner Roemer abstained.Oaths. The staff redistributed a memorandum describing the Commission's options forissuing oaths at public hearings and private interviews. The Vice Chair stated that he wasinclined to consider issuing oaths to everyone or no one. Commissioner Ben-Venisteagreed as to the importance of a consistent policy.The General Counsel reported that the White House was taking the position that EO Fofficials should not testify under oath. Commissioner Gorelick suggested that theCommission consider the IG analogy rather than the Congressional analogy whenconsidering whom to place under oath. Commissioner Ben-Veniste stated that there areprecedents for placing White House officials under oath.The Executive Director stated that the staff was divided on the issue of oaths; they have asymbolic value and are an expression of the credibility of the Commission. On the otherhand, they can stifle a witness who would otherwise be more candid. The GeneralCounsel advised that the Commission should be flexible on the issue of oath-taking,particularly in private interviews. The Commission made no decision, suggesting that thestaff conduct more research and provide a recommendation.The Vice Chair noted with respect to interviews that the higher up you go, the more thewitnesses will squeeze staff with respect to time.Commissioner Ben-Veniste asked for a list of pending interviews, and closed and openhearings. He stated that the NORAD/FAA hearing should be two days.The meeting was adjourned at approximately 9:45 p.m. The Commission receivedbriefings from Amb. Richard Holbrooke, Amb. Richard Haass, and Amb. RichardMurphy the following day in New York City.

1 Commissioner Roemer asked that the record reflect his view, which he did not have the opportunity toexpress during the meeting, that access to the full PDBs would enable the Commission to know exactlywhat Presidents Clinton and Bush knew and when they knew it. Full access would enable the Commissionto be exculpatory of both, if the facts supported that assessment, and enable the Commission to make ajudgment as to how capable the 1C was in the provision of warning.

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Documents

Minutes of 9/11 Commission Meeting on November 6-7, 2003