draft minutes of 9/11 commission meeting on january 5, 2004

8/14/2019 Draft Minutes of 9/11 Commission Meeting on January 5, 2004

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W I L M E R , C U T L E R & P I C K E R I N GSrtS M STREET, N.W,

WA S H I N G TO N . D C

TELEPHONE T| (SOS) S63 SOOO

FACiilMILE.il (202)

WWW.WILKERCOM

Date: January 29, 2004

For: Stephanie Kaplan, Chris Kojm

Company: 9-11 Commission

From: Jamie Gorelick

Facsimile Number: 202-296-5545

Main Number: 202-331-4060

COMMENTS:

We are beginning to send a communication of J,2 pages (including this cover sheet). If transmission is interruptedor of poor quality, please notify us immediately by telephone at +1 (202) 663 6712.

THIS MESSAGEIS INTENDED ONLY FOR THE USE OF THEINDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAYCONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. Ifthe reader of this message Is not the Intended recipient or the employee or agent responsible for delivering this message to theintended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictlyprohibited. If you have received this communication in error, please notify us immediately by telephone (collect), and return theoriginal message to us at the above address by post Thank You.


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Page 1 of 1

Booth, Mary

From: Stephanie Kaplan [[email protected]]

Sent: Thursday, January 22, 20049:18 PM

To : Commissioners X s

Cc: Assistants; Front Office; Karen Heitkotter

Subject: Jan. 25-26 Commission Meetings

mmissioners:

ched please find the agenda and supplementary materials for the Commission's working dinners on Sunday, January 25 andday, January 26.

ards,hanie

HANIE L. KAPLANCOMMISSION2)331-112502) 296-55459-1 1commission.gov

TV- 4

/2004


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January 22, 2004

MEMORANDUM

To: Commissioners

From: Tom and Lee

Subj: Commission Meeting Agenda for January 25 th and January 26th

Note: We plan to have a dinner meeting at the K Street office on Sunday evening from6:15 p.m. to not later than 9 p.m., and a dinner meeting on Monday eveningimmediately after the hearing in the SH-216 anteroom, from ca. 5 p.m. to 7:30 p.m.

I. Sunday Evening Agenda

Approval of the Minutes. Minutes of the January 5, 2004 meeting are attached.

Hearing Preparation. Most of what we intend to cover will be background andstaff presentations in preparation for the Monday and Tuesday hearings. Thestaff statements (already in your binders) will be discussed and presented insummary form. Staff will also explain some of the background to the statements:the nature of the investigatory work, and why staff came to the (interim)judgments included in the statements. Staff will also discuss what we hope to getout on thepublic record from each panel of witnesses, as well as begin to presentinitial thoughts on recommendations, for the purpose of eliciting Commissionerreaction. We anticipate approximately one hour of discussion on day 1 (borders)

and one hour of discussion on day 2 (transportation and managing risk).

We wish to note that the time is very tight for the hearings. For this reason, aswell as to make preparation easier for Commissioners, we are generally assigningCommissioners to one panel, one Commissioner per panel. Because of thenecessity of accommodating recusaJs,we have not in every case been able toassign Commissioners to their first panel choice. Witnesses each have 10 minutesfo r their statements, and will not be allowed to run longer. Each assignedCommissioner will have 20 minutes for questions. Otherwise, the 5 minute rulefo r questioning will be strictly observed. We intend to run on schedule.

Upcoming interviews. Staff will discuss th e upcoming schedule of Tier Ainterviews(see attached), including those with NSC staff, and the practices andprocedures for those upcoming interviews. The General Counsel will discussbriefly recusals with respect to those interviews. Staff will also discuss where weare in terms of scheduling meetings with Vice President Gore, President Clinton,Vice President Cheney, and President Bush.


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Director Mueller has asked to meet with the Commission again, to speak furtherabout reform at the FBI. The Commission needs to decide whether to meet withhim further, and if so when.

II. Monday Evening Meeting Agenda

Conspirators. The Vice Chair will brief on discussions with Director Tenet,Secretary Rumsfeld, the Justice Department, and Judge Gonzales with respect toCommission participation in interviews of the 9/11 plot conspirators.

Schedule. Attached is a schedule of Meetings and Hearings. The Commissionwill hold a total of 9 days of hearings2 in January, 3 in March (22 nd through24 th ) and 4 in April (27 th through 30 th). As you can see, we will begin to dig intostaff draft monographs and the discussion of recommendations.

PDB discussion. The Executive Director and Commissioner Gorelick willreview the status of discussions with th e White House on PDB documents.

Access Issues. The Executive Director and the General Counsel will brief onprogress with respect to access to NSC documents, and issues that remain.


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N A T I O N A LC O M M I S S I O NO NT E R R O R IS T A T T A C K SO N T H EU N IT E D S T AT E S

Minutes of TheJanuary 5, 2004 Meeting

The Chair called the Commission to order at 9:20 a.m. on January 5, 2004. The Chair,Vice Chair, and Commissioners Ben-Veniste, Fielding, Gorelick, Gorton, Kerrey,Lehman, and Roemer were in attendance.

Minutes. The Chair asked for approval of the minutes for the December 8, 2003meeting. Commissioner Roemer asked that his three objections to the White Houseguidelines be clarified for the record. Commissioner Fielding asked that the minutesreflect his departure of the meeting prior to the discussion of interview guidelines.Commissioner Gorelick submitted additional revisions to the Deputy Director. Uponagreement with these changes, the minutes were approved.

Welcome. The Chair welcomed Senator Kerrey to the Commission.

Access to Detainees. The Chair reported that he, the Vice Chair, and senior staff hadmet with DCI Tenet on December 23 to discuss several outstanding matters, including theCommission's request for direct access to detainees. The Chair reported that the DCIwas firmly opposed to direct interrogation, bu t would consider giving th e Commissioneverything short of physical access. The DCI proposed that the Commission submitquestions and have the Agency's interrogators seek answers on the Commission's behalf.The DCFs primary concerns were that of compromising operational security anddisrupting ongoing investigations.

Team Leader Dieter Snell distributed a memorandum outlining Team 1 A's argument for

direct access to seven key conspirators. He stated that, while there is a considerableamount of circumstantial evidence assembled at the FBI, there is no substitute for directaccess to those involved in the 9/11 plot. He considered the DCI's "new face" objectionrather weak, contending that the Agency simply wants to hold the detainees very closely.

Commissioner Kerrey stated that the Commissionmust interview the conspirators andnot rely on secondary information from Agency interrogators. He suggested that theCommission employ different language when discussing the matter; these individuals aremasterminds and conspirators, not simply detainees. Commissioner Kerrey added that theCommission should have its own Arabic interpreter present at any interrogation.

Commissioner Ben-Veniste asked about the history of the Commission's efforts to arriveat a solution. Snell explained that the Commission submitted an extensive list of follow-up questions on October 14, 2003, and a second memo on the interrogation process onOctober 16, 2003. The Executive Director noted that the Agency's partial reply onNovember 7 conceded that experts in certain areas, including FBI personnel, were notconducting the interrogations. Snell added that the Agency's interrogation reports areproduced about six weeks after th e actual interrogation.

COMMISSION SENSITIVE


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CommissionerRoemer asked if the Commission had access to the interrogators. Snellreplied that, heretofore, the Commission had been declined access. The Deputy ExecutiveDirector noted that the DCI did mention the possibility of direct access to analysts andinterrogators at the December 23 meeting. Commissioner Roemer asked if theCommission had received responses to the questions in the October 14 memo. Snellresponded that they had some answers, but often without the precision necessary to

develop a definitive account,

Commissioner Gorton asked if a compromise involving one-way glass would beacceptable. Snell replied that it would not, but later conceded that this was a conceivablefall-back option.

Armed with a list of unanswered plot-related questions, Commissioner Gorelick observedthat the Commission's most powerfulargument may be that the Agency is not doing itsjob. She added that it would be very problematic for the DCI if this argument were tobecome public. Commissioner Lehman stated that he did not understand why theCommission was taking such a soft approach with the DCL Commissioner Gorelick

responded that the difference with this caseas opposed to FAA, NORAD, and NewYork Citywas that the Agency could claim that the Commission would underminenational security. She underscored the tension between the Commission's mandate andthe operational needs of the USG.

Team Leader Doug MacEachin concurred with Commissioner Gorelick. He stated hisbelief that the Commission needs to first demonstrate that the other optionssubmittingquestions, working with interrogators in real-time, etc.are not sufficient.

The General Counsel stated that the Commission's statute isn't well designed for issuingsubpoenasto detained conspirators. Commissioner Ben-Veniste concurred and suggested

that the Commission compel the DCI's testimony on the matter at the upcoming hearing.Commissioner Roemer suggested a variant of this approach: issuing a tough letter to theDCI, following-up with a phone call, and, if necessary, making the letter public.Commissioner Lehman agreed that the Commission must establish a clear record ofdemandingaccess to these conspirators. Commissioner Ben-Veniste added that theCommission must also be clear that it is out of time.

The Vice Chair asked if the Commission's pursuit of this request would impact otheraspects of its relationship with the DCI. The General Counsel replied that it would not.

The Vice Chair stated that he was willing to go back to the DCI and revisit the question.

He added that Tenet knew the request was coming on December 23 and that he was veryfirm in his response. He underscored that the Commission should not expect the DCI toreverse his position, and that it must know what its next steps would be. The Chair andVice Chair advised that any letter to the DCI be drafted in a manner that carefullyaddresses classification concerns so as to not prevent its release to the public.



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Commissioner Kerrey asked if the congressional committees would support theCommission's request. He noted that the Commission may invite trouble if it presents theissue in national security terms, and suggested that it frame debate in terms of theCommission's mandate. Commissioner Gorton observed that, without direct access to theconspirators, the Commission will no t be able to answer questions at the heart of itsmandate.

The Chair stated that the Commission had reached a-consensiis:The subpoena routewould not work, and the Commission should write a letter. He requested that allCommissioners see a draft before it is sent. The Vice Chair added that the Commissionneeds to state the DCI's argument precisely so as to not argue against a straw-man. Hesuggested that the letter thank the DCI for recognizing the importance of theCommission, but state that his proposal is not sufficient. In order to fulfill its mandate,the Commission must make a credible assessment of the key conspirators.

Commissioner Kerrey moved to send a letter to the DCI requesting direct interrogation ofseven 9/11 conspirators. Commissioner Lehman seconded the motion. The motion carriedon a voice vote.

The Vice Chair and Commission Gorelick suggested that the Commission seekreinforcementfrom third parties, particularlycongressional leaders.

Declassification of Final Report The Commission briefly discussed the process ofdeclassifying the final report. The Chair stated that the Commission was really going to"push the envelope." The Vice Chair reported that both the White House Counsel andDCI have suggested a "rolling" declassification process. The Executive Director statedthat the staff is establishing a process for getting this to work, including setting-up high-level review teams and using detailed sourcing. He characterized the process as one ofpre-publication review, adding that botli the Commission and Administration learnedlessons from the Joint Inquiry declassification experience.

FBI Briefing. John Pistole, Assistant Director of the FBI's Counterterrorism Division,and Art Cummings, Section Chief of the International Terrorism Operations Section I,conducted aSECRET-level presentation that illustrated ho w counterterrorisminvestigations now work in the United States. Maureen Baginski, Executive AssistantDirector of the FBI's Office of Intelligence, delivered a brief presentation on progressmade in establishing that office and the FBI's overall approach to its intelligence mission.

Global Agreement with White House. Commissioner Thompson joined the discussion

via telephone.

The Chair stated that th e purpose of the global agreement was to reach a settlement on alloutstanding access issues with the White House and liberate the Commission fromprotracted process discussions. Commissioner Fielding took the lead in negotiating theagreement, working with the Chair, Vice Chair, and staff. Neither side believed that the



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agreement was perfect. Staff provided the Commission with list of questicregarding the agreement.

/'and answers

Commissioner Kerrey stated that he had concerns about each of the fourpartsagreement. He noted that in the first section, the Commission appears to/surrendeNtsrights to request additional documents. Commissioner Ben-Veniste concurred and;

if the sentence could be removed. The Executive Director explained tl/at the purpose ofthe sentence was to prevent blanket document requests through the "wont door"; theunderstanding is that the Commission would be able to request specific documents goingforward.

Commissioner Fielding noted that the first section was the hardes/to negotiate. Hecautioned that if the Commission seeks to revise any section of me agreement, it mayopen up the entire negotiation. Commissioner Lehman commended CommissionerFielding for his work on the agreement. He advised against reopening the negotiation andrecommended that the Commission accept the settlement,

Commissioner Roemer stated that he was strongly opposed to the agreement. Regardingthe second section on meetings with EOP officials, he inquired as to why theCommission would have access to only a "limited" number/Commissioner Gorelick

^stated that, practically, this will not be a significant problem! but she did not understand~why^4-4raritn K f i n writing. She added that this agreement would not be sustainable in thecourt of public opinion.

Regarding the third section/Commission Ben-Venistgrlrgued that there was precedent forEOP officials testifying urfder oath. CommissionepGorelick stated that, while theCommission may decide not to sfnnd rn rerrmTny. she felt uncomfortable with giving upthe Commission's ability to request the oath. The Commission should be able to seek

testimony under oath, even if the witness refuses to do so. Commissioner Ben-Venisteconcurred.

Commissioner Roemer asked why Budh administration officials will not testify underoath when,for example, Dick Clark/had already done so. The Executive Director repliedthat different standards apply to former officials. Commissioner Roemer asked if theCommission wouldask Dr. Rice to testify under oath and wondered when the interviewwould be scheduled. The Executive Director stated that the interview would be scheduledfor late January or early February. Commissioner Gorelick advised that the Commissioninterview Dr. Rice and request an oath ; it-disco vea factual conflict.

Commissioner Kerrey stated that this agreement will end confrontation with the WhiteHouse; he felt comfortable withthe first two sections, but not the second two.Commissioner Gorton stated that the sections on documents and foreign leaders arereasonable. He recommended that the Commission accept those sections, and deal withinterviews and hearings separately.



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The Vice Chair thanked Commissioner Fielding for his hard work. He acknowledged thatthere is ambiguous language in the agreement, but stated that the Commission still getssomething significantaccess to more documents and key people. He outlined fouroptions:

1. Accept the agreement.2. Reject the agreement.3. Go back to the White House and seek changes.4. Operate under guiding principles set forth in the agreement without submitting to

them in writing.

The Vice Chair noted that the Commission was running against the clock. TheCommission will not be judged by the number of hearings or technical points with theWhite House. It will be judged by the quality of the final report. His impression was thatthe agreement was a package and inseparable. Commissioner Fielding explained that theagreement w as written downbecause, after the PDB negotiation, they thought it would bebetter to get things down on paper. He added that his impression, given the events of thelast week, w as that the agreement was now onepackage.

Commissioner Ben-Veniste stated that the Vice Chair's fourth option makes the mostsense. He suggested that the Commission agree to the sections on documents and foreignleaders. Commissioner Lehman stated that the agreement was a good compromise, andthat it did not preclude the Commission from getting what it needs. He added that theEOP's concerns aren't fictitious; they have to be able to protect candid advice.

Commissioner Roemer moved to vote on the global agreement in its entirety.Commission Lehman seconded the motion. The Chair stated that he did not want an up ordown vote. The Vice Chair added that he wanted to proceed on a consensus basis.Commissioner Gorton agreed, stating that the Commission should consider each sectionindividually.Commissioner Ben-Veniste concurred.

The Executive Director argued for the severability of the public hearing section; since thematter is not crucial to decide on either side right now, the Commission should take it offthe table. Commissioner Fielding stated that he did not believe the agreement wasseverable from the White House point of view. He stated that he is committed to votingfo r the agreement as negotiated. He reiterated that the agreement provides theCommission with all of the access it needs.

Commissioner Kerrey moved to accept the global agreement with two stipulations:

1. Agree with the EOF meetings section, but take exception to the administration ofoaths during a factual dispute in real time

2. Defer on public hearings section without prejudice



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Commissioner Gorton seconded the motion. Commissioner Roemer W ithdrewhis motionfor a vote on the original agreement, and stated his opposition to thebecause it gives up the Commission's right to interview EOP witnesses under oath.

The motion carried by voice vote. The Commission reiterated/fts unanimous thanks toCommissioner Fielding.

Meetings with the Presidents and Vice Presidents. Th Chair noted that, until thatpoint, the Commission had not formally discussed the issue of interviews with PresidentsBush and Clinton and Vice Presidents Cheney and Gpre. Accordingly, this was the publicposition that he and the Vice Chair had taken. The Commission reached a consensus thatall four meetings should be sought. The Vice Chair stated that their press guidance wouldnow change; the matter has been discussed and the Commission is seeking the meetingswith each of them. Commissioner Gorelick notefl that these meetings will be difficult toschedule simply from a logistical point of view/ Commissioner Roemer urged that theCommission send letters immediately. Commissioner Fielding advised that theCommission discuss the matter with the White House as a courtesy before any letters are

sent.

Extension of Statutory Deadline. The Chair reported that the White House does notsupport an extension.

Commissioner Kerrey stated his belief that the Commission will be "DOA" by theelection. Commission Lehman disagreed, adding that the Commission'srecommendations will find their way into both party platforms. The Chair noted that theCommission has set funds aside for a roll-out during the final weeks.

Commissioner Roemer stated that there are three compelling reasons for an extension.

First, presidential politics will poison the Commission's work, and it would be better toget outside the election season. Second, staff reports to him that the Commission wouldhave a great, rather than good, report with more time, Third, the Commission should beon the record as having asked for anextension.

Commissioner Gorelick supported seeking additional time. She observed that every timethe Vice Chair responds to a question, he adds the caveat that the clock is ticking. Shebelieves the Commission will do a good report and has a great staff, but it will be in abetter position having asked for more time.

Commissioner Ben-Veniste noted that his position was apolitical. Given what the

Commission is expected to do, he believes that it cannot be done in accordance with thecurrent deadlines. He recounted one team leader's description of a recent staff meeting atwhich there was a "fire sale" on team tasks, including hearings, monograph deadlines,and monographs themselves. Commissioner Ben-Veniste stated that the Commissionneeds those hearings, as well as the opportunity to follow-up and work on conclusionsand recommendations. The Vice Chair sought clarification: did he suggest theCommission ask for additional time or take additional time? Commissioner Ben-Veniste



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replied that the Commission should seek bothasking for two months, but settling forsix months. Tightly calibrated deadlines were already slipping, which, to CommissionerBen-Veniste, indicated the need to request additional time.

The Vice Chair stated that he and the Chair had asked the Executive Director to act andplan on the basis of the law. The Chair stated that until an extension is certain, the staffcannot plan otherwise. The Executive Director agreed that the Commission needed a planto comply the law. The staff is currently planning for a June 23 releaseslipping onemonth from the statute. He noted further that, by the time the Commission ends, it mustonly have a report, which requires significant time for Commissioners to work on thereport's substance. Although not all staff could remain on board until July, a critical masscould remain.

The Vice Chair noted that Congress would be back in session on January 20; if theOmnibus bill fails, the Commission would have a chance with something in the CR.Commissioner Gorton expressed skepticism over the Commission's legislative options inJanuary. The Vice Chair added that the Commission has two options: informally extend

within the parameters of the statute or seek a new law.

Commissioner Fielding stated that his position had not changed. CommissionerThompson stated that he was opposed to an extension.

Commissioner Gorton stated his belief that the Commission's report will be poisoned bythe political process and added that December 15 would be the ideal release date.Although the Commission may lose staff, he concluded that the goal should be toproduce the best possible report.

Commissioner Fielding suggested that the Commission consult with the White House:

Does the Administration realize that the Commission is considering a late-July release?Do they really want the report to be released on the eve of the Democratic NationalConvention? Commission Thompson inquired as to how long the White House can delaythe declassification of the report.

The Executive Director noted that the staff was not homogeneous on the issue of anextension, but the Deputy Director added that there was growing sentiment for a 2-3month extension. The Chair stated that the Commission needs to know who on the staffca n stay and for how long. He requested that the senior staff conduct a survey.

The Chair and Vice Chair agreed to meet with Judge Gonzales on Tuesday or Wednesday

to discuss the global agreement and the need for an extension.

Upcoming Hearing Plans. The Chair stated that the question of hearings was linked tothe extension. He added that it takes 4-5 hours of staff prep time for every hour of ahearing. After consulting team leaders, the Executive Director recommended a modifiedhearing plantwo in January, three in March, and four in Aprilparing back theschedule from 15 days to 9 days.



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Commissioner Roemer observed that the Commission was being asked to choosebetweenhearings and this report. He asked why the January hearing included so manylow-level witnesses. The Executive Director responded that this agenda represented thestaff s best judgment. The Deputy Executive- Director added that many of these witnessesare the accountable officials who set policy or are establishing priorities.

The Vice Chair stated that he was not personally convinced that the value of publichearings outweighed the value of more time for the staff to work on the report. Hesuggested that the Commission focus on the activities from which it derives the mostvalue for the purpose of producing th e final report.

Commissioner Gorelick expressed concern over the fact that the Commission's hearingshave not had a great deal of attention and added that the Commission needs to show whatit has accomplished. Commissioner Ben-Veniste requested materials for the hearing assoon as possible.

Public Relations Firm. The Chair stated his desire to hire a firm to handle the roll-out ofth e report. The Executive Director reported that the Commission had received offers fromtwo f irms Widmeyer andPowell Tatebut that th e staff w as open to other suggestions.Commissioner Lehman recommended that the Commission consider a non-beltway firm,

PDB Report. Commissioner Gorelick reported that she and the Executive Director hopedto present two documents to the Commission. The first describes the core group of PDBarticles in context. The second makes the argument for the transfer of additional articlesfrom the large group to the core group. Both documents have been drafted, andCommissioner Gorelick planned to review and finalize them this week.

Commissioner Gorelick commented on the extent of overlap between the PDBs andSEffis. She recommended that Commissioners review the SEIBs, which she consideredquite instructive.

Recusals. At the request of Commissioner Kerrey, the Commission discussed this matterin a closed executive session.

The Chair adjourned the meeting at 5:15 p.m.


draft minutes of 9/11 commission meeting on january 5, 2004

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