12/22/03

MOW 18:24 FAX

PRIVILEGED/ATTORNEY WORK PRODUCT/DRAFT

SENSITIVE BUT UNCLASSIFIED [Draft; 12/32/20031

ELEMENTS OF POSSIBLE UNDERSTANDING AS OF DECEMBER 22,2003 (based on December 19,2003 memo from Commissioner Fred Fielding to Judge Gouzales)
EQP Documents Involving Memos to/from the President

1. The Executive Office of the President (EOP) will make available, for review by tbe Commission and designated staff, those documents sent to the Assistant to the President for National Security Affairs (APNSA), or a deputy to the APNSA, for the period of January 1, 1998 to September 20,2001, that are responsive to current document requests and have been determined by Commission staff to be demonstrably critical to the Commission's work. However, EOP will not be asked to provide any memoranda to the President that contain any written indication that they actually were provided to the President. 2. For those documents described in paragraph 1, above, which do contain written indication that they actually were provided to the President, the EOP will brief designated Commission staff on the contents of those documents, with the exception of any hand-written comments made by the President. Additionally, if the EOP is able to determine that a proposed memorandum was sent forward to the President, but dmt it differed materially from that proposed memorandum as provided to the APNSA, the BOP will brief designated Commission staff on tbe differences, to the extent the EOP is able to determine them. Staff will be permitted to take notes on the briefings, subject to present rules for review; those notes will be maintained in secure Commission space in the New Executive Office Building (NEOB) and will be available to designated staff in the NEOB upon reasonable notice. 3. The Commission will not file any further document requests seeking communications to or from tbe President. Given Commission access to these documents and its ability to discuss matters relevant to the Commission's mandate with die current and former APNSA and other senior officials, past and present, the current document production requests are deemed sufficient for the Commission to do its job. EOP Documents on Communications with Foreign Leaders 1. The EOP will provide Commission staff with in-depth briefings on talking points responsive to current document requests, 2. The EOP will not be asked to provide written transcripts or summaries of calls for review. Tbe EOP will brief Commission staff on the contents of those memoranda, or advise if conversations dealt with non-substantive issues. 3. Commission staff may take notes on the briefings, subject to present rules for review; those notes will be maintained in secure Commission space in the New Executive Office Building (NEOB) and will be available to Commissioners and designated staff in the NEOB upon reasonable notice.

FAX

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8 003

PWVILEGEDMTTORNBY WORK PRODUCT/DRAFT

SENSITIVE BUT UNCLASSIFIED 12/22#003J

Discussions with EOP Officials 1. A limited number of BOP officials will be made available for private, classified discussions to answer factual questions about the 9/11 story and coumerterrorism policy in 2001 and explore generally current policy. The BOP will make available those officials currently requested by the Commission; the Commission will not file further requests for discussions with EOP officials. 2. The EOP will provide reasonable flexibility in granting the necessary time for such discussions and permitting appropriate Commission attendance, depending on the person involved, so the Commission can receive the information it needs. In most cases the Commission will be able to do so in two hours. Appearance of EOP Staff at Public Hearings The Commission will not ask any current BOP official, or any former EOP official not currently identified to the EOP by the Commission, to brief or testify at a public closed hearing. The Contmission will publicly explain that as a result of EOP document production, and tbe private discussions with certain EOP senior officials, the Commission has no need to receive public testimony from EOP staff. Review of Commission No^es 1. No change on policy for review of notes taken from EOP documents. 2. If the Commission conducts private discussions with an EOP official, notes taken by Commissioners or Commission staff are the Commission's work product and may not be reviewed, except to ensure proper classification and handling of sensitive information. An EOP representative at the discussion may help ensure that the notes are properly classified and protected, by stating the level of classification that applies to the material that was covered, A career EOP staff member (such as the NSC records manager) will review the notes to ensure proper classification and handling of sensitive information. To facilitate the proper review and handling of notes, notes regarding particularly sensitive issues (if any) will be taken separately if requested by too. EOP representative. EOP representatives will attempt to identify such subjects either in advance or at the discussions. Notes on such particularly sensitive issues will be maintained in secure Commission space in the NEOB and will be available to Commissioners and designated staff in the NEOB upon reasonable notice Other notes of discussions will be stored and transported in accordance with applicable regulations.

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FREITF FIELDING 202 719 4 4 •> 9 9 4 0 91 6125

NO.047

D03

a now is:2S FAX
PRIVILKGED/ATTORNBy WORK PJROBt/CT/DRAFT SENSITIVE BUT UNCLASSIFIED [Draft: 12/22/2003]

September 11 Air Threat Conference Tape And Time Line A Commission staff member may review the tap* to verify the accuracy of the DoD transcript, if deemed necessary. DoD time line will be provided if requested (without warranty as to accurateness) or Commission may develop its own time line from the tape and/or transcript. Submission of Materials Intended for Public Release for Pro-Publication Review The Commission will submit its draft report to BOP for pre-publication review (as described in the letter from Dan Marcus to Tom Monheira dated My 29,2003) on a rolling basis as soon as portions of die draft report are reasonably available. The Commission will submit all portions of the draft report (or other materials based on information to which the Commission has been given access by the Executive Branch) intended for public release to BOP for pre-publication review. All portions of the draft report will be submitted no later than 45 days prior to me intended date for public release.

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WED 18:35

FAX

Ig 001

THE WHITE HOUSE
WASHINGTON

December 17, 2003 Thomas H. Kean, Chairman Lee H. Hamilton, Vice Chairman National Commission on Terrorist Attacks Upon the United States 2100KSt.N.W. Washington, D.C. 20037 Dear Chairman Kean and Vice Chairman Hamilton: I am writing in response to the December 12, 2003 letters that Mr. Daniel Marcus sent to (1) Mr. Thomas Monheim regarding the conditions under which the Executive Office of the President ("EOF") is providing the Commission access to certain EOF officials and (2) Mr. Daniel Levin regarding the guidelines under which the Executive Branch is providing the Commission access to officials from Executive Branch departments and agencies. Mr. Marcus's letters follow up on Mr. Monheim's letter of November 21,2003, and Mr. Levin's e-mail of November 26, 2003. I note that EOF staff consulted with Commission staff (including the Executive Director and General Counsel) when preparing the guidelines for meetings with EOF and other Executive Branch officials and, indeed, took into account their comments. Moreover, those guidelines were not intended to be an inflexible set of rules to be applied across the board as Mr. Marcus's letter suggests, hi fact, as Mr. Marcus acknowledges, both sides have established a constructive working relationship with respect to the meeting process, which has successfully resulted in the Commission obtaining access to more than 500 Executive Branch officials to date. Nevertheless, I understand the Commission's concerns about its independence and integrity as it carries out its mandate. I also appreciate the Commission's commitment to proceed in a manner respectful of the Constitutional prerogatives of the Presidency. I believe that conducting future meetings with Executive Branch officials consistent with our past practice will satisfactorily address our mutual concerns. If problems arise in particular cases, I am confident we will both be able to work them out in a satisfactory manner. I look forward to continuing to work with you as the Commission completes its work. Sincerely,

Alberto R. Gonzales Counsel to the President

Thomas H. Kean
CHAIR

December 12, 2003 Thomas A. Monheim, Esq. White House Counsel's Office The White House Washington, D.C. 20500 Dear Mr. Monheim: I am writing in response to your letter of November 21 setting forth conditions under which the Executive Office of the President intends to provide the Commission with the opportunity to interview or to meet with EOP officials. Your letter has been reviewed by the Commission, and I am guided in this response by the discussion at its December 8 meeting. The Commission is appreciative of the concerns that underlie your letter with respect to the vital duties of senior White House and NSC officials and the many demands upon their time. We also recognize the importance of reasonably limiting, consistent with the Commission's needs, the number of individuals - Commissioners and staff- that are present at a given meeting. But the Commission feels strongly that a detailed set of rules applied across the board is not the appropriate approach, and it therefore cannot agree to the long list of conditions set forth in your letter. Nonetheless, we believe that we have established a constructive working relationship with you and your colleagues with respect to this process. We believe the initial interviews or meetings we have had (with Ms.Gordon-Hagerty and Ms. McCarthy), as well as the pre-meetings we have had with EOP representatives, have proceeded on a satisfactory basis and provide a model for how we plan to proceed in the future. Consistent with this positive experience, we believe that we can address future interviews on a basis of mutual respect and reasonable solutions to issues as they arise, without resort to a detailed set of rules. We fully intend to proceed in a manner respectful of the President's prerogatives and the status of the officials with whom we meet, in the expectation of your reciprocal respect for the independence and integrity of the Commission as it carries out its mandate. We will continue to

Lee H. Hamilton
VICE CHAIR

Richard Ben-Veniste Fred F. Fielding Jamie S. Gorelick Slade Gorton Bob Kerrey John Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow
EXECUTIVE DIRECTOR

TEL (202) 331-4060 FAX (202) 296-5545 www.9-1 lcommission.gov

Mr. Thomas A. Monheim December 12, 2003 Page 2

make every effort to respond to concerns that arise at pre-meetings or in discussions before or during meetings, and we are confident we can continue to work successfully with you and your colleagues on these matters. With best regards,

aniel Marcus General Counsel cc: H. Bryan Cunningham

THE WHITE HOUSE
WASHINGTON

November 21,2003 Daniel Marcus, Esq.

General Counsel
National Commission on Terrorist Attacks Upon the United States 2100 K Street N.W. Washington, B.C. 20037 Dear Mr. Marcus: I am writing to confirm the conditions under which we currently intend to provide the National Commission on Terrorist Attacks Upon the United States ("Commission") with access to officials from the Executive Office of the President ("EOF"). These conditions apply to those individuals made available in response to the Commission's requests for "interviews" (i.e., EOF ; Interview Request No. 1, dated August 27,2003 and EOF Interview Request No. 2, dated I October 23,2003) and requests for "meetings" (Le., multiple letters from Chairman Kean and i Vice Chairman Hamilton dated October 27 and October 31,2003), as well as EOF officials made1 available in response to subsequent Commission requests. As we have discussed, I believe it is in. our mutual interest to memorialize these conditions in writing, in order to minimize misunderstandings and to avoid, to the maximum extent possible, any potential for disagreements during the meetings. I anticipate that both sides will apply a "rule of reason" when applying these conditions. OUT approach to developing the conditions for access to EOF officials has been guided by our responsibility to protect the crucial Constitutional prerogatives of the Presidency, for this and future Presidents, while attempting to accommodate the unique needs associated with the Commission's responsibility to prepare a detailed report — for the President, the Congress, and ultimately the American people — on the attacks oil September 11,2001. In this spirit, we currently are prepared to provide the Commission with access to EOF officials as follows: • EOP officials will be made available voluntarily and strictly as a matter of comity between the Executive and Legislative branches; Commission access to EOP officials will be provided at "meetings" or "policy briefings," which are not, and should not be referred to as, "testimony" or "interviews"; Meetings will be reasonably limited in time (generally from 1 - 2 hours in duration, not including time required for prepared statements, if any, made by EOP officials); EOP officials will not be placed under oath; We will inform you on a case-by-case basis whether we request that meetings be recorded; otherwise, meetings will not be recorded;

• •

Notes may be taken during the meeting. For subject matters related to those for which there exist notes retention arrangements for EOF documents (or for equally sensitive or deliberative material), notes will be retained at the secure NEOB reading room; Commission representatives will meet with EOF representatives in advance of any scheduled meeting (generally at least one week, though exceptions may be made upon reasonable request) to: (1) discuss, in reasonable detail, planned areas of inquiry; (2) identify, to the extent possible, particular documents that the questioner intends to use in the meeting; (3) identify lines of inquiry regarding an EOF official's time at a department or agency outside the EOF, if any, that the questioner would like to discuss; (4) discuss, to the extent it may be anticipated by the questioner, the Commission's perceived need to elicit verbatim quotes regarding NSC meetings (including, but not limited to, CSG, Deputies, or Principals Committee meetings) or other White House meetings, or otherwise regarding EOF officials; (5) discuss any anticipated questions concerning individual conversations with, or concerning statements by, the President, Vice President, National Security Advisor, Counsel to the President, or Deputy National Security Advisor, (6) identify, in as much detail as is feasible based on an examination of materials available to the Commission, lines of inquiry regarding positions taken in specific meetings, including the dates of such meetings and the specific departments/agencies' positions about which the questioner desires to inquire.

As a general principle, interviewers will: focus only on what they need to know, that is, information of particularized importance to the Commission's statutory mandate; seek information not otherwise available, first looking at prior testimony and documents to determine whether the information is available elsewhere; look to the substance of the discussion and the arguments presented, rather than verbatim exchanges; inquire into agency positions when it's important to understand the significance not only of a position taken but which department took it (e.g., DOD's position on the use of military force); and not inquire about particular statements, or particular disagreements, for their own sake or because it might be interesting; With regard to post-9/20/01 matters, the Commission will not inquire into details of specific operations, though Commission representatives may question officials about post-9/11 policies and programs developed to deal with terrorist threats in response to the events of 9/11. The Commission will not inquire into deliberations with regard to cither the formulation or implementation of policies after 9/20/01;

HOP representatives will be present at the meetings (generally one representative per meeting from the Office of the Counsel to the President or the Office of the Legal Adviser to the National Security Council); Commission representatives may attend the meetings (generally no more than five such representatives may be present). For Assistants to the President (or equivalent) and above, the Commission Chair or Vice Chair must be present; up to two other Commissioners and two staff members may attend. For Deputy Assistants to the President (or equivalent), the Chair or Vice Chair may be present, but at least one Commissioner must be present. For other EOF officials, no Commissioners need be present; Meetings will be held in a SCIF in EOP office space, and all Commission and staff members attending a meeting must have security clearances sufficient for any classified information to be discussed; Absent unusual circumstances, EOP officials will only be made available for one meeting.

As you have recognized, our accommodation with regard to making EOP officials available to the Commission does not set any precedent, either for future Commission requests or for requests for state secrets, Presidential communications, or deliberative materials of this or other Presidents in any other context. Furthermore, these EOP officials are being made available to the Commission with due regard for the Constitutional separation of powers and reserving all legal authorities, privileges and objections that may apply, including with respect to other governmental entities or private parties. Consistent with our agreement regarding other EOP materials, information obtained from EOP officials is being made available to the Commission in confidence and as in closed session. The Commission should make every effort to protect this information from any unauthorized disclosure and from use for any unauthorized purpose. We hope and expect that the above cooperative arrangements will proceed smoothly and respect the concerns of the Executive Branch. If difficulties arise, we will work with you in an . effort to resolve them in a mutually satisfactory fashion. Should implementation of these arrangements ultimately fail to meet our expectations, we reserve the right to modify or terminate them consistent with the constitutional separation of powers. I look forward to continuing to work with you as the Commission completes its work. Sincerely,

lonheim Associate Counsel to the President

THE WHITE HOUSE
WASHINGTON

November 21,2003 Daniel Marcus, Esq. General Counsel National Commission on Terrorist Attacks Upon the United States 2100 K Street N.W. Washington, D.C. 20037 Dear Mr. Marcus: I am writing to confirm the conditions under which we currently intend to provide the National Commission on Terrorist Attacks Upon the United States ("Commission") with access to officials from the Executive Office of the President ("EOF"). These conditions apply to those individuals made available in response to the Commission's requests for "interviews" (i.e., EOF : Interview Request No. 1, dated August 27,2003 and EOF Interview Request No. 2, dated ! October 23,2003) and requests for "meetings" (Le., multiple letters from Chairman Kean and | Vice Chairman Hamilton dated October 27 and October 31,2003), as well as EOF officials made: available in response to subsequent Commission requests. As we have discussed, I believe it is in our mutual interest to memorialize these conditions in writing, in order to rnimmize misunderstandings and to avoid, to the maximum extent possible, any potential for disagreements during the meetings. I anticipate that both sides will apply a "rule of reason" when applying these conditions. Our approach to developing the conditions for access to EOF officials has been guided by our responsibility to protect the crucial Constitutional prerogatives of the Presidency, for this and future Presidents, while attempting to accommodate the unique needs associated with the Commission's responsibility to prepare a detailed report — for the President, the Congress, and ultimately the American people -- on the attacks on September 11,2001. In this spirit, we currently are prepared to provide the Commission with access to EOF officials as follows: • EOF officials will be made available voluntarily and strictly as a matter of comity between the Executive and Legislative branches; Commission access to EOF officials will be provided at "meetings" or "policy briefings," which are not, and should not be referred to as, "testimony" or "interviews"; Meetings will be reasonably limited in time (generally from 1 - 2 hours in duration, not including time required for prepared statements, if any, made by EOF officials); EOF officials will not be placed under oath; We will inform you on a case-by-case basis whether we request that meetings be recorded; otherwise, meetings will not be recorded;

• •

lf£J UUO

Notes may be taken during the meeting. For subject matters related to those for which there exist notes retention arrangements for EOF documents (or for equally sensitive or deliberative material), notes will be retained at the secure NEOB reading room; Commission representatives will meet with EOF representatives in advance of any scheduled meeting (generally at least one week, though exceptions may be made upon reasonable request) to: (1) discuss, in reasonable detail, planned areas of inquiry; (2) identify, to the extent possible, particular documents that the questioner intends to use in the meeting; (3) identify lines of inquiry regarding an EOF official's time at a department or agency outside the EOF, if any, that the questioner would like to discuss; (4) discuss, to the extent it may be anticipated by the questioner, the Commission's perceived need to elicit verbatim quotes regarding NSC meetings (including, but not limited to, CSG, Deputies, or Principals Committee meetings) or other White House meetings, or otherwise regarding EOF officials; (5) discuss any anticipated questions concerning individual conversations with, or concerning statements by, the President, Vice President, National Security Advisor, Counsel to the President, or Deputy National Security Advisor, (6) identify, in as much detail as is feasible based on an examination of materials available to the Commission, lines of inquiry regarding positions taken in specific meetings, including the dates of such meetings and the specific departments/agencies' positions about which the questioner desires to inquire.

As a general principle, interviewers will: focus only on what they need to know, that is, information of particularized importance to the Commission's statutory mandate; seek information not otherwise available, first looking at prior testimony and documents to determine whether the information is available elsewhere; look to the substance of the discussion and the arguments presented, rather than verbatim exchanges; inquire into agency positions when it's important to understand the significance not only of a position taken but which department took it (e.g., DOD's position on the use of military force); and not inquire about particular statements, or particular disagreements, for their own sake or because it might be interesting; With regard to post-9/20/01 matters, the Commission will not inquire into details of specific operations, though Commission representatives may question officials about post-9/11 policies and programs developed to deal with terrorist threats in response to the events of 9/11. The Commission will not inquire into deliberations with regard to cither the formulation or implementation of policies after 9/20/01;

EOF representatives will be present at the meetings (generally one representative per meeting from the Office of the Counsel to the President or the Office of the Legal Adviser to the National Security Council); Commission representatives may attend the meetings (generally no more than five such representatives may be present). For Assistants to the President (or equivalent) and above, the Commission Chair or Vice Chair must be present; up to two other Commissioners and two staff members may attend. For Deputy Assistants to the President (or equivalent), the Chair or Vice Chair may be present, but at least one Commissioner must be present. For other EOP officials, no Commissioners need be present; Meetings will be held in a SCIF in EOP office space, and all Commission and staff members attending a meeting must have security clearances sufficient for any classified information to be discussed; Absent unusual circumstances, EOP officials will only be made available for one meeting.

As you have recognized, our accommodation with regard to making EOP officials available to the Commission does not set any precedent, either for future Commission requests or for requests for state secrets, Presidential communications, or deliberative materials of this or other Presidents hi any other context. Furthermore, these EOP officials are being made available to the Commission with due regard for the Constitutional separation of powers and reserving all legal authorities, privileges and objections that may apply, including with respect to other governmental entities or private parties. Consistent with our agreement regarding other EOP materials, information obtained from EOP officials is being made available to the Commission in confidence and as in closed session. The Commission should make every effort to protect this information from any unauthorized disclosure and from use for any unauthorized purpose. We hope and expect that the above cooperative arrangements will proceed smoothly and respect the concerns of the Executive Branch. If difficulties arise, we will work with you in an . effort to resolve them in a mutually satisfactory fashion. Should implementation of these arrangements ultimately fail to meet our expectations, we reserve the right to modify or terminate them consistent with the constitutional separation of powers. I look forward to continuing to work with you as the Commission completes its work. Sincerely,

lonheim Associate Counsel to the President

Thomas H- Kean CHAIR Lee H. Hamilton VICE CHAIR Richard Ben-Veniste Max Cleland Fred F. Fielding Jamie S. Gorelick Slade Gorton John F. Lehman Timothy J. Roemer James R. Thompson

November 17, 2003 The Honorable Alberto R. Gonzales Counsel to the President The White House Washington, DC 20500 Dear Judge Gonzales: As you know, we are very pleased that the Commission has been able to reach an agreement with the White House on access to PDBs that we believe will meet our need for access to this important information while protecting Presidential prerogatives. We want to express our personal appreciation for your efforts over the last several weeks to achieve this compromise result, as well as the substantial contributions of Tom Monheim and Bryan Cunningham, who worked long hours with our staff to make possible this result. We do want the record to note our concern with the statement in the terms that the Commission agreed to your formulation of the third criterion for identifying material demonstrably critical to the fulfillment of the Commission's mandate. The formulation of this criterion that we plan to employ is that the item must supply "significant knowledge not otherwise available to the Commission." This formulation is similar but not identical to the one set forth in your letter. We also note our concern, which we have discussed with you, about the language used in the last paragraph of the document on the terms. The terms had earlier stated the recognized standard - "demonstrably critical" - as the court-sanctioned test for access. We do not agree with any language in the last paragraph that goes beyond this standard. We expect to approach this review with careful attention to the criteria we have set forth as a basis for making such transfer requests - criteria which we think give you substantial assurance that any requests made will be worthy of serious consideration. We also expect, based on our conversations with you,

Philip D. Zelikow EXECUTIVE DIRECTOR

301 7th Street SW, Suite 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-1 lcommission.gov

26 Federal Plaza Suite 13-100 New York, NY 10278

T 212.264.1505 F 212.264-1595

The Honorable Alberto R. Gonzales November 17, 2003 Page 2

that you will give serious consideration to any such requests and that we can have a frank and open discussion if there is any question as to their merits. We and the representatives who will promptly be selected by the Commission look forward to working with you and your staff on this important matter. With best regards,

Thomas H. Kean Chair

Lee H. Hamilton Vice Chair