fo b4 commission meeting 2-24-04 fdr- tab 1- minutes of the february 10 2004 meeting 154

8/14/2019 FO B4 Commission Meeting 2-24-04 Fdr- Tab 1- Minutes of the February 10 2004 Meeting 154

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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 w ill answer.Com missioner Gorelick added that the Comm ission w ould receive the August 6 PDBverbatim during the briefing from pieces of the PDB that appear in different places in thereport. She and the Executive Director stated that the text of the August 6 PDB could berecreated; Com missioner Ben-V eniste said that this should be done in physical form. Shestated that the report does not itself list all the other strident threat h eadlines from thesummer of 2001, but the materials that would be provided w ould allow the headlines alsoto be recreated. She concluded by stating that there were no disagreements among themembers of the Review Team.The Chair thanked Commissioner Gorelick and the Executive Director for their hardwork. The V ice C hair stated that he and the Com mission owed a huge debt of gratitude tothem for their efforts. He added that the W hite House lawyers had 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 shouldpursue such access. She believed strongly that the Chair and Vice Chair should haveaccess to all PDB items requested by the Comm ission.The Executive D irector urged the Com mission not to be misled by the amo unt ofattention given to PD Bs by the public, press, and the Com mission itself. He added thatthe PD Bs 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 theCom mission. The Executive Director stated that senior staff and designated team leaderswould likely have access to the PDB summary, bu t 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 C hair 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 ben efit to reachagreement. The Vice C hair convinced the Judge to hold the briefing at the Com mission'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 G eneral C ounsel stated that the C omm ission can do w hat it wants, butnoted that this is the process the Commission agreed to pursue. Commissioner Gorelickstated her belief that the Com mission could not turn around and subpoena the Wh iteHouse if it didn't like the briefing. The V ice Chair noted that the Com mission is notprecluded from asking for mo re materia l on a case-by-case basis.

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Com missioner Roemer thanked the Review Team for their diligence and hard w ork. Hedescribed the process as one of a four-level strainer, whereby in formation about the PDB shad been filtered through four levels and eventually reached the Commission. He statedthat he had been in support of a subpoena several m onths before, and that now he was insupport of a subpoena fo r both the PDBs and the Review Team's notes. He disagreedwith both the agreement and its implem entation. In his view, all ten Com missionersshould have access to the PDBs.Com missioner Kerrey stated that he needs to get to the point at which he will feelcomfortable with the m aterial. At this point, he didn't feel com fortable 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., Com missioner 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 Comm ission has apretty good argument. The W hite House, they believe, would take the case all the way tothe Supreme C ourt, thereby preventing the Commission from getting a timely decision.The situation the lawyers envisioned was one in which the implementation of theagreement had collapsed. Yet now that the White House had implemented the agreementto the satisfaction of the R eview Team, the Com mission's position had weakened. TheVice C hair stated his assumption that the White House would fight any subpoena hard.He anticipated that the Wh ite House would run out the clock, and let the Comm ission 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 Com mission 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 Com mission Gorelick and the Executive Directorproduced enables the C omm ission to do its job. Comm issioner G orton 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 T eam 's notes.4) Reply to the Gonzales cover letter.



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COMMISSION SENSITIVECommissioner Gorton stated his preference for Option #4. He added that the Commissionhad seen through the process, but that it raised questions. The C omm ission should stateprecisely w hat would satisfy it and make the letter pub lic, 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) Th e summaries did show some new information. Th e Commission should try tounderstand the full texture and context of the documents.2) If the Comm ission does not get more complete access, it reduces its ability andcredibility to mak e tactical and strategic recommendations.3) If the Bush adm inistration continues to assert that there was not warning, accessto the PDBs w ill enable Com missioners to prove o r 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 do cuments, not an EOP product, and are shared withother officials besides the president.The Vice Chair offered the following views in opposition to the motion subsequent to themeeting and asked that a history of PDB neg otiations be appended to the minutes:

TheCommission established a Review Team, including Commissioner Gorelick*that reviewed all Presidential Daily Briefs responsive to the Com mission'sdocument requests. The team did a superb job and prepared a detailed report forCom missioners. The Com mission now has a good understanding of informationprovided to the President on al Qaeda and the events leading to September 11.

Hebelieves strongly that the Com mission needs to support the work the ReviewTeam did. He wants to be on record in support of the work of CommissionerGorelick. The Com mission reached an agreement with the White House three months ago.Today, the Com mission completed implementation of that agreement. You don'tever get everything you want in an agreement, but the Commission got access to

every PDB it asked for, and the full Commission received a report on nearly 100of them. The Commission has gotten the access it needs. A subpoena would not advance the Commission's interests.

o First, the agreement the Commission just reached provides it the access itneeded to fulfill its mandate, in his judgment;



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COMMISSION SENSITIVEo Second, a subpoena wo uld be contrary to that agreement;o Third, he is doubtful that a subpoenaw hich the W hite House wouldfightwill produce any outcome that advances the interests of theComm ission during the life of the Commission.

Commissioners Ben-Veniste, Kerrey, and Roemer voted in favor of the motion. T heChair, Vice Chair, and Com missioners 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 C ommission 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, bu tSpeaker Hastert had stated his opposition to any extension.Comm issioner Fielding noted that the answer to the extension question lies with theSpeaker. Commissioner Thompson stated that Hastert was unlikely to support more thana two-m onth extension. Com missioner Kerrey expressed his belief that the Com missionshould not worry about the Speaker. H e added that the C ommission has created confusionby not reque sting a six-mon th extension. The V ice 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 fo r more time. He noted that both p ositions areconsistent with the motion passed at the last Commission meeting.Com missioner Roem er agreed that Hastert is the key, and stated that it is imperative thatthe W hite House com municate to the congressional leadership, including Hastert, what itwants. The Vice Chair reported that Judge Gonzales had told the Commission not toworry ab out the Sp eaker. Now that the W hite 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 thebill 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, and that the extension on ly translates into 20 additional days. The ExecutiveDirector noted that the Commission had never pub licly acknowledged its intentions todisregard the May 27 deadline. Comm issioner G orelick stated that the Commission didnot ask for the time it needed. She added that she did not fully appreciate this at the lastmeeting, and suggested that the Commission request a "real" 60-day extension.



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COMMISSION SENSITIVECom missioner Thompson stated that there were reasons why the Wh ite House m ight 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 wo n't get everything you wo uld like. The Com mission still has astatutory ma ndate to fulfill, and he believes the Comm ission w ill produce a strong andcredible report. He expressed his desire that the Commissioners state their views in a waythat does not underm ine the credibility of the report.The Chair advised that the Commission maintain the following position: We continue toneed an d want more time. The Com mission would like the extension for which it askedand will accept a 60-day extension.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 Com mission privately as well as testifypublicly. Com missioner Ben-Veniste agreed that the Commission should establish awritten record requesting a private meeting and politely invite them to appear at a publichearing.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 m eet with the Com mission. DavidAddington, Counsel to the Vice President, conveyed that the Vice President would meetwith the C hair, 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, Comm issionerThompson, and Comm issioner Gorton agreed.The Commission agreed to send letters to both presidents and vice presidents. The Chairnoted that the Com mission 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 Commission agreed to accept invitations to meet withSecretary Rumsfeld an d Director M ueller.Presentations from Teams 2 and 4 were postponed until the February 24 meeting.Com missioner Gorelick comm ended 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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9/11 Classified Information

C O M M I S S I O N SEN SITIVEAppendix: History of PDB Negotiat ions

I. Context \ There is no precedent for an i n v e s t i ga t i v e body outs ide o f the Exec ut i

o b t a in a n d e x a m i n e P r e s i d e n t i a i D a i l y B r ie f s (PD B s ) . The l e g a l g r o u n d is u n c e r t a i n : as P C C i r cu i t Ju dg e Pa t r i c i a W a l d (a D e m o c r a t i ca p p o i n t e e ) put i t in one o p i n i o n : .'The ' s t a te secrets ' p r i v i l eg e i s n e a r l y absolu te ."

I I . Negotiation of the PDB agreementN e g o t i a t i o n s w i t h th e W h i t e H o u se o n access, to the P D B s b e g a n in ea rnes t in Sep tember ,an d c o n c l u d e d in N o v e m b e r . T h e y t o o k 3 r t i^n ths . The C o m m i s s i o n d i d n o t ge te v e r y t h i n g i t w a n t e d , but i t won i m p o r t a n t concess ions :

T he C o m m i s s i o n l ea r n ed in Sep tember tha t a c o m p u t e r run c h e c k i n g th e CIA'sd a t a b a s e i n d i c a t e d t h a t s ome 360 PDB\ i t fems were r e s p ons ive to our d o c u m e n treques t . \ The Whi te Hou s e en te r ed the n e g o t i a t i o n s ' t h i nk i ng th a t j u s t a b r

occurred o n October 14) m i g h t b e enough, f$ r th e C o m m i s s i o n . T he C o m m i s s i o nf ou nd 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 , a j i&p u s hed f o r direct access t o the PD Bi t e ms . \ \ , they s a id on l y the C h a i r a n d V i c e 0imr c o u l d s e e P D B i t e m s .

m o v e d to the C h a i r , Vice Cha i r a n d t w o s taff , f i n a l l y , the i r p os i t i on became f o u ri nd i v i d u a l s o f t he C o m m i s s i o n ' s c h o o s i n g . \, t h e y s a id t h e y m i g h t le t the C o m m i s s i o t i . s e e o n e o r t w o P D B

F i n a l l y , w e g o t them to le t the C o m m i s s i o n to'se6Jn and to r e v i e w the e n t i r eg rou p o f 360 f o r p os s ib l e ad d i t i on to the g r o u p \ o f |I n i t i a l l y , the W hi te Hou s e p rop os ed tha t on l y a s en io r CIA p e rs on was g o ing tor e v i e w al l 360 P D B s . T he C o m m i s s i o n m o v e d t h e m to one s ta f fer , an d 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 si n g. .I n i t i a l l y , t h e y s a i d n o notes . Then t hey agreed to a.process o f n o t e - t a k i n g .F i n a l l y , the y ag reed 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 c h o o s i n g ca n i n fo r m all 10 Co m m i s s i o n er s*

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Classified InformationY:/:V' ' - - , . . . . . . . C O M M I S S I O N S E N S I T I V E

I I I . T h e Agreement It se l fT o recap , th e ag reemen t 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:

. \ F o u r .Commiss ioners .pr s taf f of the C o m m i s s i o n ' s c h o o s i n g to rev i ew thcj ]\\..iterhs;''--. ' " - - . . .

O f t hose 4 , two w ou ld r ev i ew the 360 to tal i t ems f o r p oss ib l e i n c l u s i o n in thes m a l l e r g r o u p of| j

> T h e 4 w o u l d repdrt t o a l l Com miss ion e rs on the{_Jitems, p l u s an y i t em s mov ed, from th e large to the s m a l l g r o u p .

. I V . Negotiations on fnjplementat ion of the PDB agreement\ imp le me n ta t i on of the PDB agreement to'oJc from N o v e m b e r to December:\ W h i l e It is correct the Judge-.wrote to the. ,Commiss ion a b o u t " w i d e l a t i t u d e " in the\ prepara t ion of a report back tb . the 10 Corr imiss ioners , he a lso wrote about a

\ " c o n c i s e s u m m a r y " of the resu l t s , of the rev iew o f PBD i t ems ., p The Judge a lso s ta ted t h a t h e t h o u g h t n o i t e m s needed to be moved f rom the\ l a rger group of al l 360 i t ems to the ' s jnal l g r o u p ofLJtems.

\ . The N SC Cou n se l , John B e l l i n g e r , i n d i ca t ed tha t h e b e l i ev ed an appropr ia te\t back t c X t h e C o m m i s s i o n w o u l d be a. few su mm ary p a rag rap hs i n a on e

or two page report .o. T h e staff t ook i mm ed i a t e ex cep t i on to t he cha rac te r i za t i on s ab ov e an d the\r an d V ice Cha i r made c l ea r t o t he J ud g e t ha t such an im p lem en ta t i on o f

th e agreement w o u l d n o t b e acceptab le to the C o m m i s s i o n . The Rev iew Team prepared two memos , one rep or t i n g on the | j P D B s a n d o n e

a s k i n g foi l {documents to be t ransferred f rom the l a rg e to s m a l l g r o u p for thep u rp ose o f p rep a r in g summar i e s to i n f o rm al l C o m m i s s i o n e r s . The W hi te H ou se re jec t ed the memos, and re jec t ed mov emen t o f P D B s f rom th elarge to the s m a l l g r o u p . A f t e r l o n g n eg o t i a t i o n s , i t became clear t ha t t he W hi t e H ouse w ou ld accep t n omore t hanjand t hen n o more than I j o f th e P D B s m o v i n g f r o m th e l a rge to

th e sma l l g r o u p . "



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C O M M I S S I O N S EN S I TI V E

A f t e r a n i m p a s s e in which nego t i a t i ons a lmos t co l l aps ed , t h e C o m m i s s i o n and t h eW h i t e House r eached a dea l on Feb r ua ry 9 f o r th e Re v i e w Team to b r ie f a l lCom mis s ione r s on a r epo r t 17 s i ng l e - spaced pages i n l e n g t h .

V . PDB Repor tThe r epo r t i m p l e m e n t i n g t h e P D B ag r e e m e n t i n c l u d e d t h e f o l l o w i n g e l e m e n t s :

A n i t e m iz e d s u m m a r y tnd discuss ioncoT^iear ly 100 PDB i t ems ( exc eed ing th eto ta l of^^andQreferenced ea r l i e r ) ; , j_ ~ De ta i l ed s t a t emen t s o f c o n t e x t , f r am i n g t h e r epo r t on t h e PDBs; A comple te r e -c rea t ion, word-for -word , of the A u g u s t 6 PDB; A TI an n e x , c o m p i l e d w i t h t h e Sen io r Execu t i ve In t e l l i g enc e Br i e f s (SEIBs) ,p rov id ing mor e con t ex t and de ta i l ; and / A b r i e f i n g in w h i c h C o m m i s s i o n e r G o r e l i c k and the Execu t i ve D i r ec to r spe l l ed/ o u t s p e c i f ic s b e h i n d c e r t a i n e u p h e m i s m s w r i t t e n in the r epor t .

V I. ConclusionsT h e b o t t o m l i n e h e r e i s t h a t t h e Commiss ion d idn ' t g e t e v e r y t h i n g i t w an t e d , b u t : )

I Th e C o m m i s s i o n m o v e d th e W h i t e Hous e ( f rom S e p t e m b e r t o N o v e m o e r )>f a /p a s tany ag r eeme n t i t wo u ld have accepted at the outse t ; and

The Commiss ion moved th e W h i t e House (f rom N o v e m b e r to F e b ru a r y ) to accepta r epor t f a r m o r e d e t a i le d t h an w h a t th e W h i t e House had env i s i oned in theN o v e m b e r ag r e e m e n t .

Classified Information

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fo b4 commission meeting 2-24-04 fdr- tab 1- minutes of the february 10 2004 meeting 154

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