fo b4 commission meeting 2-10-04 fdr- tab 1- minutes of the january 25-27 2004 meeting 150

8/14/2019 FO B4 Commission Meeting 2-10-04 Fdr- Tab 1- Minutes of the January 25-27 2004 Meeting 150

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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 ESMinutes of the January 25-27, 2004 Meetings

Minutes: Part IThe Chair called the Commission to order at 6:20 p.m. on January 25, 2004. The Chairand Commissioners Ben-Veniste, Fielding, Gorelick, Kerrey, Lehman, and Roemer werein attendance.Presentations from Team 5 & 7. Senior Counsel Susan Ginsburg summarized Team5's findings as described in Staff Statement No. 1. She reported that the team's initialconclusions are based on considerable amount of primary information, including 30briefings and 60 interviews. She added that the statement challenges the notion that the19 hijackers who entered the United States were "clean and legal." The ExecutiveDirector briefly summarized th e content an d initial findings as described in StaffStatement No. 2, which is a case study of the tracking, identification, and watchlising ofthree 9/11 hijackers. Team Leader Sam Brinkley outlined the preliminary conclusions inStaff Statements 3 & 4, and described th e structure and the goals for the aviation portionof the hearing.Commissioners Ben-Veniste and Gorelick requested that the language of the staffstatements reflect Commissioner participation in the investigation.

Minutes: Part IIA t 5:50 p.m. on Monday, January 26, the Commission resumed its meeting. The Chair,Vice Chair, and Commissioners Ben-Veniste, Fielding, Gorelick, Gorton, Kerrey,Lehman, and Roemer were in attendance.Extension. Commissioner Roemer strongly advocated a vote on the question of anextension. He noted that hearings are being cut and that team leaders have stated theyneed more time to complete their work. He stated his view that the Commission neededto be on the record publicly requesting an extension, so that friends and supporters on theHill would have a position around which to rally.Commissioner Gorton stated that Commissioners will not have time to evaluate staffdrafts properly and to form their own views as a Commission without significant time fordiscussion. In his view the process of Commissioner-level review should extend throughthe fall: if the Commission reports in December, so much the better, as it will take theCommission's recommendations out of politics. He stated a December report is farpreferable to the issuance of any report before the November 2 election. He agreed withCommissioner Roemer that a decision should be made now, that the Commission should

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take a position and make it public. He closed by stating that the Commission needs moretime to make the report what the Commission intends it to bean authoritativedocument.Commissioner Ben-Veniste observed that the Commission is learning more with eachinterview and hearing, and needs more time to follow up. He stated that the Commissionneeds more hearings, and needs to remain in the public eye. He stated thatCommissioners must have more time for collegial discussion to decide what theCommission reports and recommend. The Commission, in his view, needs to ask formore time. It is not enough for the Speaker, the Majority Leader, and the President to say"no." Those views must be tested by public opinion, hi his view, the Commission needsabout 60 days, should ask for 60 days, and then see what the legislative process offers.He urged adoption of a unanimous position.Commissioner Kerrey agreed that the Commission could use more time, but it needs tobe mindful of people's time, including that of staff and Commissioners, many of whomhave other commitments in the fall. He also asked whether the Commission could keepthe lid on its report, findings and recommendations throughout the course of the electioncampaign.Commissioner Gorelick observed that the Commission is likely to make most of its newsthrough public hearings in which key factual information emerges; hearings may makemore of an impact than the final report. She was therefore skeptical of a delay for thepurpose of avoiding release of the report in the midst of the fall campaign. She stated shewould rather the Commission ask for the time it needed, rather than ask for a delay.Commissioner Fielding stated his support for the Commission "taking" the 60 days itneeds, past May 27 to the Commission's July 26 termination date. He stated that theCommission should not ask for an extension unless it was certain it could get it.The Vice Chair noted that he had spoken with Democratic Leader Daschle, who wantsthe Commission to ask publicly for an extension. He said he could get 50 votes for anextension; the Vice Chair asked if the Leader if he could get 60 votes, and he did notanswer that question. The Vice Chair observed that Judge Gonzales knows that theCommission can take up to an additional60 days; the Judge doesn't like that, but knowshe can't do anything about it. The Vice Chair added that, from the standpoint of time, hehas concerns about every issue the Commission raises: PDBs delay us, detainees delayus, and so have all access issues.

The Chair noted that the staff took the view it needed two additional months. He agreed.He stated that he did not like the idea of work being completed and waiting on the shelffor the appropriate release date. He stated that the Commission should ask for twomonths, and that in the meantime it should take the two months, hi the view of the Chair,the Commission position was straightforward: We cannot complete the work by May 27;we need two additional months; in the meantime, pending legislative action, we will takethe two additional months we need.



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Com missioner Gorelick agreed w ith the Chair, stating that the Comm ission should askfor the time it needs.Commissioner Gorton differed; he stated that the Com mission needs to take the time todo its job well, and in his view this means December.Commissioner Roemer agreed with Commissioner Gorton, that if the Commission isgoing to do its job right it should ask for December.Com missioner L ehman proposed a reporting date of December 15. He added that thegreatest fear of the White House is Com mission hearings in the summer and fall.Com missioner Ben-V eniste stated that the Com mission is of historical importance, andhe emphasized the importance of keeping politics out of this discussion. Fo r this reason,he stated that the Com mission should ask for 60 days because that is what it needs.Com missioner Gorton asked whether the Com mission could ask for a min imum of 60days. He stated that the Comm ission sho uld not be defensive about its request: we wantto hold hearings, and the scope of the job before the Commission is enormous.Commissioner Kerrey stated that the request should be for amending the statute for anadditional 60 days. He added that if Congress changes the request, and decides toprovide more time, then so be it.Commissioner Roemer made a motion to propose that the Commission go on recordseeking at least a 60-day extension for the filing of the report; the Chair added that theproposal should include aiming to produce the report by July 26. Com missioner Gortonseconded the motion. The proposal was adopted by consensus.Detainees. The V ice Chair briefed on the discussion he and Com missioner Fielding hadheld on Friday, January 23 with Judge Gonzales, the DCI, the Secretary of Defense, and arepresentative of the Department of Justice (Chris Wray). The Secretary of Defense andthe DC I acknowledged that they need to wo rk harder and faster to get answers to theCommission's questions from those in custody. On behalf of the Adm inistration, theDCI proposed establishing a Program Manager to work closely with the Commission, tounderstand its concerns, make sure its questions get asked, and that answers come back asquickly as possible. The Vice Chair acknowledged that this proposal may not besatisfactory to Team Leader Dieter Snell because it did not include any real-timepresence during the questioning of detainees, but the proposal w as as far as theAdm inistration was w illing to go. He recommended that the C omm ission take up theProgram Manager idea, pursue it, and see whether it could provide the information theCommission needed. No objection was expressed.

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Minutes: Part II I

The Commission resumed its mee ting over dinner at 6:45 p.m. on M onday, January 26.The Chair an d Commissioners Ben-Veniste, Gorelick, Gorton, Fielding, Kerrey, an dLehman were in attendance.PDBs. Com missioner G orelick reported that she and the Executive Director had drafted

.9/11 Classified Information.I wh ile also providing some contextual information. The second mem o

9/11 Classified Informa tionauueo mai m e w m t e tiouse nad no t approved th e wider distribution ot ei ther memo tothe Commission.The G eneral Counsel and Depu ty General Counsel suggested that, should it decide toissue a subpoena, the Commission should do so for both the PDBs and the notes, statingthat th e Commission tried to execute it s agreement with th e White House but it did notwork. The Chair stated that it was his sense, from a PR perspective, that issuing asubpoena for the C om mission's notes would be a better route. The Deputy GeneralCounsel noted that a subpoe na for the notes w oul d not create a legal precedent that wo uldbe a problem for the W hite House in other contexts, un like losing a subpoena battle forth e PDBs themselves.The Commission agreed to continue the discussion on PDB s during lunch on thefollowing day.

Minutes: Part IV

The C omm ission resumed its mee ting at 12:30 p.m. on Tuesday, January 27. The Chair,Vice Chair, and Commissioners Ben-Veniste, Fielding, Gorelick, Gorton, Kerrey,Lehman, and Roemer were in attendance.PDBs. The Vice C hair opened the discussion, no ting that he and Commissioner Fieldinghad held a conversation on PDBs w ith Judge Gonzales. He thanked Com missionerGorelick and the Executive D irector for their m any hours invested in reviewing the PD Bsand preparing the two memos. He noted the problems the Commission had encounteredwith e3ch m e two memos. He notT n t h f i l IChad requested |

He noted that th e Judgeland had expected that thecommission would request, at the most, the transfer of only a handful of items to the coregroup. The Vice Chair reminde d the Judge that he had warned him m onths ago, at thetime of the PDB agreement, that he a n H the rnmnmsinn w^re. l i V ^ l v to haw vprvdifferent expectations on this question.!| j that, bythe terms ofthe PDB 'agreement.! ^ ^ ^ ^ ^ ^ ^ .

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The Vice Chair recommended that Commissioner Gorelick and the Executive Director goback an d negotiate with Bryan Cunningham (the Judge 's representative) and try to reachagreement on the PDB question. The Vice Chair understood that this was a dif f icult step,but a necessary step. The Vice Chair an d Com missioner Fielding explained that theJudge was under no misappre hension; if an agreement could not be reached, the nex t stepwas a Commission subpoena, and the Judge understood that .Commissioner Roemer asked for fur ther clarification as to the Judg e's problem with th eCom mission position. The Vice Chair recapped: the Judg e's expect ations onCommission requests for the transfer of PDB i tems to the core group are unrealisticallylow, and his expectations on the nature of the description of PDB items in the core groupare also unrealistic and do not accord with th e representation of "wide lati tude" as hestated to the Commission.Com missioner G orelick outlined her perspective on the PDB review process. She statedthat sh e thought it was important for the Commission an d staff f n sense th e f low of thePDBs. In addition to a description ofth^ [an overviewsummary is necessary, in her view, to explain the nature ot the documen ts theCommission is not/not seeking to transfer into the core group of documents, hi theabsence of such a summary, the number of documents she would ask to be moved intothe core group would be considerably| |With respect to the documentrequesting the! [the document has a short description of each PDBrequested, ana the context. In her/view, as you consider the memos she and theExecutive Director ha d prepared, those memos com pare very f avorably in length to thestack of PDBs thev had reviewed, an d .she believes their nnsitinn tn he

Com missioner Fielding joined with the Vice Chair in asking th e review team ofComrhissioner Goirelick and the Executive Director to try to work out this matter. Heobserved that there had been a mismanagement of expectations by the Commission'sinterlocutor. . ,Commissioner G orelick observed that, ironically, most of the PD Bs in dispute)'

The Executive Director observed that the Wh ite House lawyers were indeed contentneutral and not trying to protect one presidency versus another. He added, however, thattheir content neutrality went even further, arid that they really didn't care about theCQhtents of the docum ents at all and had simply decided on an arbitrary numbe r for the

.transfer of PDB i tems to the core group. He stated that he was prepared, substantively, tonegotiate on the| |Where the lawyers make agood faith effort to discussth e substance, he stated he was prepared to talk. W ith respect to the docume nt describing|he did not see much point in talking.

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The Vice Chair observed that Jud ge Gbhzales had clearly linked these tw o issues, that hecould be more f lex ib le on one if there were agreement on the other.The Executive Director noted that th e review team had already talked in detail to theWhite House lawyers, and expressed some irritation that th e several conversations thathad taken place alread y did not seem to mak e much headw ay with them on this question.Commissioner Gorelick expressed th e view that th e review team will rise above its=annoyance and talk te th em again.

Xv-^.- riCom missioner Roemer asked for a dead line to these talks. Com missioner Ben-Venisteagreed. He stated that if the Com mission cannot free its notes through the efforts of the"hostage-release team," then he agrees with the General C ounsel: the Co mm ission willneed to subpoena its notes and the documents themselves.The Chair asked with respect to the PDBs whether there was a legal diffe rence on thequestion of issuing a subpoena of the notes or the PDBs themselves,The General Counsel observed that there was a reasonably good case for a subpoena ofth e PDBs: they are circulated by the CIA, not by the White House; they went to severalpeople, not just th e President; an d they are not deliberative in nature. So, th e Executiveprivilege argument would be a relatively weak one in comparison to those memos(Clarke to Berger, Berger to the President) on which th e White House has already agreedto provide access to the Commission.The General Counsel added that if we subpoena our own notes, then we get into anargument with th e White House: did we live up to our agreement? With a process tosubpoena th e documents, th e argument is more straightforward: W e entered anaccommodation process, and it didn't work.Commissioner Gorton observed that he wou ld l ike th e Commission to take th e position,unanimously and informally, that it supports the Chair and Vice C hair going ahead withsubpoenas of both the notes and thj |f negotiations do not work. He alsoobserved that these negotiations should be conducted as expeditiously as possible.

r. /The Vice Chair stated that his belief that th e Commission is in agreement, that th e nex tstep is for the review team of Commissioner Gorelick and the Ex ecutive Director to talkto the White House lawyers once more, and see what can be done in a very short periodof time. He noted that he and Com missioner Fielding had mad e very clear to the Judgethat a subpoena wo uld be forthcoming if there is no agreement. He did not believe that aformal vote on a subpoena w as necessary at this time.Com missioner Ben-Veniste recomm ended that a letter to the Judge be preparedrecounting th e history of the negotiations; such a letter would be an important part of therecord. In defe rence to the .Vice Chair, he stated that he would defer his motion on asubpoena.

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Commissioner Roemer asked for inclusion in the record his view that the Commissionshould have voted on a subpoena, and noted that the Commission had come close to asubpoena of the PDBs before. The purpose of such a subpoena would be to strengthenthe Chair and Vice Chair, and help them in their talks with the White House.The Commission took no further action, and at 1:15 p.m. the Commission meeting ended


fo b4 commission meeting 2-10-04 fdr- tab 1- minutes of the january 25-27 2004 meeting 150

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