sk b2 commission meeting 1-25-04 fdr- minutes w gorelick notes 270

8/14/2019 SK B2 Commission Meeting 1-25-04 Fdr- Minutes w Gorelick Notes 270

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NATIONAL COMMISSION ONTERRORIST ATTACKS ON THE UNITED STATES

Minutes of the January 25-27, 2004 Meetings

Minutes: Part IThe Chair called the Com mission 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 & 1. 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 the content and 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 the 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 IIAt 5:50 p.m. on Monday, January 26, the Comm ission 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.Comm issioner Gorton stated that Comm issioners will not have time to evaluate staffdrafts properly and to form their own views as a Commission without significant time fordiscussion, hi 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 theCom mission'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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COMMISSION SENSITIVEtake 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. In 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 election

Commissioner Gorelick observed that the Commission is likelythrough public hearings in which key factual informationmore of an impact them 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 additional 60 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. In 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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Commissioner Gorelick agreed with the Chair, stating that the Commission should askfor the time it needs.Commissioner Gorton differed; he stated that the Commission needs to take the time todo its job well, and in his view this means December.Commissioner Roemer agreed with C ommissioner Gorton, that if the Commission isgoing to do its job right it should ask for December.Commissioner Lehm an 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.Commissioner Ben-Veniste stated that the Commission is of historical importance, andhe emphasized the importance of keeping politics out of this discussion. For this reason,he stated that the Commission should ask for 60 days because that is what it needs.Commissioner Gorton asked whether the Commission could ask for a minimum of 60days. He stated that the C omm ission should 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 Comm ission 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. Commissioner Gortonseconded the motion. The proposal was adopted by consensus.Detainees. The Vice Chair briefed on the discussion he and Commissioner 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 D CI acknowledged that they need to w ork harder and faster to get answers to theCommission's questions from those in custody. On behalf of the Administration, 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 was as far as theAdministration was willing to go. He recommended that the Commission take up theProgram Manager idea, pursue it, and see whether it could provide the information theComm ission needed. No objection was expressed.



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Minutes: Part IIIThe Commission resumed its meeting over dinner at 6:45 p.m. on Monday, January 26.The Chair and Commissioners Ben-Veniste, Gorelick, Gorton, Fielding, Kerrey, andLehman were in attendance. ^PDBs. Commissioner Gorelick reported that she and the E xecutive Director had drafted

1 while also orovidine some contextual information The second i9/11 Class i f i ed Information

1nemoJSheaaaea mai ine wmte House nad not approved th e wider distribution ot either memo tothe Commission.The General Counsel and Deputy General Counsel suggested that, should it decide toissue a subpoena, the Commission should do so for both the PDBs and the notes, statingthat the Commission tried to execute its agreement with the W hite House but it did notwork. The Chair stated that it was his sense, from a PR perspective, that issuing asubpoena for the C omm ission's notes would be a better route. The Deputy GeneralCounsel noted that a subpoena for the notes would not create a legal precedent that wouldbe a problem for the White House in other contexts, unlike losing a subpoena battle forthe PDBs themselves.The Co mmission agreed to continue the discussion on PDBs during lunch on thefollowing day.

Minutes: Part IVThe Co mm ission resumed its meeting at 12:30 p.m. on Tuesday, Ja nuary 27. The Chair,Vice Chair, and Com missioners Ben-Veniste, Fielding, Gorelick, G orton, Kerrey,Lehman, and Roemer were in attendance.PDBs. The Vice Chair opened the discussion, noting that he and Commissioner Fieldinghad held a conversation on PDBs with Judge Gonzales. He thanked C ommissionerGorelick and the Executive Director for their many hours invested in reviewing the PDBsand preparing the two memos. He noted the problems the Commission had encountered

n Tn thfj Inith each mernn Tn thfj Innmmiggtnnor frfM-pHr-lr anrl fVio Pvpr'iiiiwf* niiwtr>^had requested I

J He noted that the JudgeJand had expected that the^omrnissjon \vould request, at the most, the transfer of only a handful of items to the coregroup. "The Vice Chair reminded the Judge that he had warned him months ago, at thetim'e Qf'the PDB agreement, that he anH the Commi'i^inn wpm l i lrplv tr> havp vfrvdifferent expectations on this question, I I| Ithat, by the terms of the PD Bagreement.! """" I

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The Vice Chair recommended that Commissioner Gorelick and the Exec utive Director goback and negotiate with Bryan Cunningham (theJudge's representative) and try to reachagreement on the PDB question. The Vice Chair understood that this was a difficult step,bu t a necessary step. The Vice Ch air and Comm issioner Fielding explained that theJudge was under no misapprehension; if an agreement could not be reached, the next stepwas a Commission subpoena, and the Judge understood that.Commissioner Roemer asked for further clarification as to the Judg e's problem with theCommission position. The Vice Chair recapped: the Judge's expectations onCommission requests for the transfer of PDB items to the core group are unrea listicallylow, and his expectations on the nature of the description of PDB items in the core groupare also unrealistic and do not accord with the representation of "wide latitude" as hestated to the Commission.Comm issioner Gorelick outlined her perspective on the PDB review process. She statedthat she thought it was important for the Commission and staff tn sense the flow of thePDBs. In addition to a description ofth^ Ian overviewsummary is necessary, in her view, to explain tne nature of the documents theCommission is not/not seeking to transfer into the core group of documents. In 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 docum ent

J1requesting the! [the document has a short description of each PDBrequested, and the context. In her/View, as you consider the memos she and theExecutive Director had prepared; those memos compare very favorably in length to thestack of PDBs thev had revi6wfed and she believes fheir nnsitinn tr> h=i highly

Commissioner Fielding joined with the Vice Chair in asking the review team ofComjhissioner Gorelick 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 Gorelick observed that, ironically, most of thePDBs indispute! |ommissioner ooreiicK observed tnatI \I The Executive Director observed that the White Ho use lawyers were indeneutral 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 thecontents of the documents at all and had simply decided on an arbitrary number for thetransfer of PDB items to the core group. He stated that he was prepared, substantively, to

.. negotiate on thej IWhere the lawyers make a good faith effort to discussthe substaoefe, he stated he was prepared to talk. With respect to the document describing.1 [he did not see much point in talking.

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The Vice Chair observed that Judge Gbhzales had clearly linked these two issues, that hecould be more flexible on one if there were agreement on the other.The Executive Director noted that the review team had already talked in detail to theWhite House lawyers, and expressed some irritation that the several conversations thathad taken place already did not seem to make much headway with them on this question.Commissioner Gorelick expressed theview that thereview team will rise above its ^i^annoyance and talk to them again. . . t r^ ,. / r

^--^'f-Vv A"* 1* JCommissioner Roemer asked for a deadline to these talks. Commissioner Ben-Venisteagreed. He stated that if the Commission cannot free its notes through the efforts of the"hostage-release team," then he agrees with the General Counsel: the Commission willneed to subpoena its notes and the documents themselves.The Chair asked with respect to the PDBs whether there was a legal difference 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 ofthe PDBs: they are circulated by the CIA, not by the White House; they went to severalpeople, not just the President; and they are not deliberative in nature. So, the Executiveprivilege argument would be a relatively weak one in comparison to those memos(Clarke to Berger, Berger to the President) on which the 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 the White House: did we live up to our agreement? With a process tosubpoena the documents, the argument is more straightforward: We entered anaccommodation process, and it didn't work.Commissioner Gorton observed that he would like the Commission to take the position,unanimously and informally, that it supports the Chair and Vice Chair going ahead withsubpoenas of both the notes and th j [f negotiations do not work. He alsoobserved that these negotiations should be conducted as expeditiously as possible.--'The Vice Chair stated thm his belief that the Commission is in agreement, that the nextstep is for the review team of Commissioner Gorelick and the Executive 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 Commissioner Fielding had made very clear to the Judgethat a subpoena would be forthcoming if there is no agreement. He did not believe that aformal vote on a subpoena was necessary at this time.Commissioner Ben-Veniste recommended that a letter to the Judge be preparedrecounting the history of the negotiations; such a letter would be an important part of therecord. In deference to the .Vice Chair, he stated that he would defer his motion on asubpoena. /

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Comm issioner R oemer asked for inclusion in the record his view that the C omm issionshould have voted on a subpoena, and noted that the C omm ission had come close to asubpoena of the PDBs before. The purpose of such a subpoena would be to strengthenthe Chair and Vice C hair, and help them in their talks with the W hite House.The Commission took no further action, and at 1:15 p.m. the Com mission meeting ended


sk b2 commission meeting 1-25-04 fdr- minutes w gorelick notes 270

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