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Steve Dunne
From: Sent: To: Cc: Monheim, Thomas A. [Thomas_A._Monheim@ who.eop.gov] Monday, May 10, 2004 4:11 PM Dan Marcus Steve Dunne; Cors, Dylan D.

Subject: DRAFT e-mail re access to Commission notes on certain EOP documents Dan and Steve, Attached below is a draft e-mail regarding the notes issue we've been discussing. Please let me know if you have any comments. Thanks. Tom

Dan, Following up on our prior conversations, and Judge Gonzales' telephone conference with Chairman Kean and Vice Chairman Hamilton this morning, the Executive Office of the President ("EOP") will accommodate the Commission's request for the temporary use in Commission space of notes taken by Commission staff that record some of the most sensitive and most highly deliberative materials that EOP has made available to the Commission - i.e., (i) notes on memoranda to the President, (ii) notes on records of discussions between the President or his aides and foreign leaders, and (iii) notes that effectively recreate documents available for review in the NEOB SCIF. I believe that wehavethefollpwing common understandings regarding this arrangement: -- the presumption will be to not quote from these EOP materials absent ay*ff compelling reason; -- this presumption^ and not explicitly citing these EOP materials; the notes wiiTBeTeturnedTo the EOP by June 15, 2004; - no photocopies will be made of the notes and they will not be incorporated into Commission records; -- access to the notes will be limited to the authors of the requested notes, and to other staff designated for access to similar categories of EOP documents; - these conditions, including access to the notes at the Commission's offices, will be administered by the Commission's security officer; ^ - the Commission will submit drafts of its final report for pre-publication review as soon as possible, but A no later than June 30, 2004. <--—r— Please let me know if you have any questions. We look forward to continuing to work with you as the Commission completes its work. Thanks. Tom

5/10/2004

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Dan Marcus
From: Sent: To: Cc: Dan Marcus Friday, May 07, 2004 10:37 AM Chairs Front Office

Subject: Revised talking ponts for call to Gonzales Proposed talking points for Monday morning call to Gonzales on notes:

1. Your staff has agreed to lend us escrowed notes on memos to the President, conversations with foreign leaders, and some of Warren Bass's notes on crucial documents -- subject to conditions as to how we will use them in the final report. The conditions have been revised somewhat after we complained, but they are still unacceptable.

2. You have told us in the past that if we could show we needed escrowed notes to prepare our report, we could get them. We have made that showing. We need them now for our staff to draft the report under severe time pressure.

3. We appreciate your concerns about how this material will be used in our final report. We will use it responsibly and carefully. In any event, the proper forum for resolving any issues about what we say in the report is your pre-publication review of the report under standards we agreed to long ago. We cannot agree to a new set of standards and procedures as a condition of getting effective access to our notes.

4. The restrictions we have had to deal with on taking notes and getting access to them have been the cause of significant frustration for both the Commissioners and the staff. If we cannot resolve this matter, we anticipate that the Commission may want to publicly express its displeasure.

5. The simple and proper resolution of this matter is to lend the Commission the escrowed notes, with the understanding that we will use them responsibly in drafting our report, and that any issues as to the draft report will be dealt with as planned in the pre-publication review process.

5/7/2004

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Dan Marcus
From: Sent: To: Cc: Cors, Dylan D. [Dylan_D._Cors@ nsc.eop.gov] Wednesday, May 05, 2004 5:39 PM Dan Marcus Monheim, Thomas A.; Cunningham, H. Bryan

Subject: terms for notes loan DanAs we discussed this afternoon by phone, we think we may be able to reach an arrangement to satisfy your request for the temporary use in Commission space of notes taken by Commission staff that record some of the most sensitive and most highly deliberative materials that have been available to the Commission (namely, (i) notes on memoranda to the President, (ii) notes on records of discussions between the President or his aides and foreign leaders, and (iii) notes that effectively recreate documents available for review in the NEOB SCIF). Specifically, the EOP will be prepared to temporarily loan those notes for use in the Commission's offices, provided that the Commission Chair and Vice Chair first provide an assurance, via letter to Judge Gonzales, that the use of the notes will be subject to strict adherence to the following conditions: -- the notes will be returned to the EOP by June 15, 2004; -- no photocopies will be made of the notes and they will not be incorporated into Commission records; -- there will be a strong presumption that the information in these notes, or their source documents, will not be quoted, or paraphrased so as to effectively recreate any portion of the source document, in the final report or any other report (whether public or intra-USG) or public disclosure by the Commission-the notes instead will be used only to internally corroborate or support summary statements about relevant topics; - the Commission will raise any proposed exception to this presumption with the EOP by June 15, 2004 for further discussions; -- access to the notes will be limited to the authors of the requested notes, and to other staff designated for access to similar categories of EOP documents; and these conditions, including access to the notes at the Commission's offices, will be administered by the Commission's security officer. Please call Tom, Bryan, or me if you would like to discuss this further. -Dylan

5/6/2004

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Dan Marcus
From: Sent: To: Cc: Dan Marcus Tuesday, May 04, 2004 7:23 PM Chairs Front Office

Subject: Getting our notes back! (and assuring a meaningful report) Tom and Lee: We have reached an impasse in discussions with Cunningham and Monheim about a matter which we think you need to raise with Judge Gonzales. The issue is their unwillingness to lend us escrowed notes we need in drafting the report - on the Clarke-Berger-Clinton memos; on their briefings of Philip, Mike Hurley and me on Presidential and other conversations with foreign leaders; and on Warren Bass's notes on some crucial documents in the development of NSPD-9 - unless we agree to conditions that would drastically limit our ability to use this material in our report. We have told them the conditions are unacceptable, and reminded them that they will have the opportunity to raise any issues of executive privilege, as well as classification issues, when our report undergoes pre-publication review by the White House. We have also urged them to separate the issue of the notes from the report, reminding them that Judge Gonzales has told you that escrowed notes could be made available to us later if we needed them, e.g., in drafting the report. But they have not budged, and we are therefore-in the position of not having these notes available to us here at a time when our staff is working overtime to draft the report. We recommend that you schedule a call with Judge Gonzales to discuss this issue later this week, so that the problem can be discussed with the Commission at next week's meeting if necessary. Here are my initial thoughts - unreviewed by my colleagues - as to the essential points (to be fixed by them later!).

1. Three groups of escrowed notes that our staff needs to draft the report are being withheld from us by your staff unless we agree ahead of time to limits on what we can say in the report that are unacceptable. They are (a) notes that Philip took on Clarke-Berger-Clinton memos that he and Dan Marcus were allowed to see or be briefed on; (b) notes that Mike Hurley took on briefings by your staff of Presidential and other high-level conversations with foreign leaders; and (c) notes that Warren Bass took on a number of crucial documents in the development of the new Bush Administration policy on al Qaeda that were deemed by your staff to "effectively recreate" the documents. (Warren had previously spent hours distilling his notes on other documents to obtain their release.)

2. You have earlier indicated that escrowed notes would be released to us at a later date upon a showing that we need them - e.g., to write our report. We are asking for them now for just that reason - to enable our staff to have them available as a resource in drafting the report. We have agreed, and will honor our agreement, that there is a presumption that we will not quote directly from Presidential documents in our report (but only a presumption), and we will not, through paraphrasing, effectively recreate any document in our report. We have also recognized that you are free to raise issues of executive privilege as well as classification in the pre-publication review process.

3. But the pre-publication process is the appropriate forum for addressing those issues. We cannot agree in advance, as your staff has insisted, that we can only use these documents in a background, generalized fashion in our report. We will use them with care, as we believe we did in our staff statements, and you will have the opportunity to object if you think we have compromised national security or unduly intruded on executive privilege.

4. Letting us consult our notes at the NEOB is NOT an acceptable alternative. We cannot write our report

5/7/2004

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there, and our staff is working overtime now, under tight deadlines, to draft the report so we can get it to you in a timely fashion for pre-publication review. Refusing to lend us the notes will simply delay and complicate the process

5. This needs to be resolved immediately. We cannot have a situation where the Commission believes it cannot develop and present the public report we think the nation needs and deserves. The President and Vice President were gracious and generous with their time and their insights last week. We should not let this last issue spoil the progress we have made.

5/7/2004

Proposed talking points for call on notes: 1. Your staff has agreed to lend us escrowed notes on memos to the President, conversations with foreign leaders, and some of Warren Bass's notes on crucial documents subject to conditions as to how we will use them in the final report. The conditions have been revised somewhat after we complained, but they are still unacceptable. 2. You have told us in the past that if we could show we needed escrowed notes to prepare our report, we could get them. We have made that showing. We need them now for our staff to draft the report under severe time pressure. . 3. We appreciate your concerns about how this material will be used in our final report. We will use it responsibly and carefully, as we did in our staff statements. The suggestion by your staff that we might be more restricted in the final report than we have been in the staff statements is unacceptable. 4. In any event, the proper forum for resolving any issues about what we say in the report is your pre-publication review of the report under standards we agreed to long ago. We cannot agree to a new set of standards and procedures as a condition of getting effective access to our notes.

5. The restrictions we have had to deal with on taking notes and getting access to them have been the cause of significant frustration for both the Commissioners and the staff. If we cannot resolve this matter, we anticipate that the Commission will take action to publicly express our displeasure and may even consider issuing a subpoena for the notes. 6. The simple and proper resolution of this matter is to lend the Commission the escrowed notes, with the understanding that we will use them responsibly in drafting our report, and that any issues as to the draft report will be dealt with as planned in the pre-publication review process.

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Dan Marcus
From: Sent: To: Cunningham, H. Bryan [H._Bryan_Cunningham©nsc.eop.gov] Tuesday, May 04, 2004 4:19 PM Dan Marcus; Monheim, Thomas A.; Cors, Dylan D.

Subject: RE: notes see below. Original Message From: Dan Marcus [mailto:dmarcus@9-llcommission.gov] Sent: Tuesday, May 04, 2004 5:03 PM To: Cunningham, H. Bryan; Monheim, Thomas A.; Cors, Dylan D. Subject: notes Yesterday's meeting was very satisfactory until we got to the subject of our notes. It looks like we are at loggerheads and will have to elevate the issue to Kean/Hamilton/Gonzales. But I wanted to express my dismay and make one last try . You should consider us mutually dismayed and I think we have tried extremely hard (including releasing 99% of the notes, even those that blatantly violate our conditions) and it would be inaccurate to suggest otherwise : WE really need to separate the issues of access to our notes and what we say in the report. The required escrowing of notes on sensitive documents or briefings was always on the understanding that if we had a later, time-defined need to have our notes back here - e.g. for writing the report - we could request them and that request would at a minimum get a sympathetic hearing. These requests have received, and are continuing to receive, a # of hearings that are more than sympathetic (consider, again, our release of virtually all of the notes despite repeated, continuing violations). You will recall, however, that the reconsideration discussions with regard to escrowed notes were general. At that time, we never would have dreamed the Commission would get any access to memos to the president or recitations of presidential commo w/foreign leaders, much less insist on trying to use them in public documents. Further, the more we discussed your staff's precise intentions with regard to these notes, i.e., to use them at least as much as in the last staff statements, the more it became clear that this is not about convenience or speed. It is about being able to put this material directly into your publicly disclosed documents. If it's not, you'd have no problem agreeing with our suggested conditions. While we applaud your honesty on this point (more than has been shown to us by some staff in the past), it lays bare that we have a far more serious fundamental problem than we could have imagined when we were having generic conversations last year. You have conceded that PZ's notes on the Presidential communications are succinct; and Mike Hurley, at Dylan's invitations, spent a full two hours last week making a "particularized showing" on his notes on briefings re conversations with foreign leaders on a clear assumption by him and me that if we eliminated the less important conversations (which Mike did - cutting his notes roughly in half) we would get them. First, it's not so clear that, at least the Bass notes, have been so much improved upon. I'll let Dylan speak to whether Mike's have been changed significantly. Second, these discussions before you described the purpose for which the notes would be taken away, to facilitate putting info in the report at least equivalent to what went into the staff statements. The question of how we use them in our report - which we have promised you an opportunity to review for executive privilege concerns as well as classification - is wholly separate. Remember, we are free to see these notes at the NEOB; by denying us borrowing rights at this crucial period, you are simply making the writing of our report - by a staff working 60 hours or more a week under a very tight deadline substantially more difficult for no useful purpose. This is a complete red herring and we utterly reject it (as we will if it is in any way used to attempt to justify delay in preparing or providing for review portions of the report). These notes constitute a tiny fraction of all the notes and all deal with things that, in our view, shouldn't be quoted, paraphrased, or cited in the report in any event. It is absoutely implausible to us that your historians, analysts, and other well versed in drafting lengthly and complex documents and, no doubt, impecably organized, need to have all of these details on core-of-the-core sensitive materials avaiable to draft the report unless tine purpose truly is to put chunks of this information directly in the report itself. After all, in the staff statements that you hold up as examples of what you intend to do next time, none of these

5/4/2004

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foreign commo notes or, for that matter, Presidential memo notes were available at K St. We can only imagine what amount of detail will show up if they are available. We are fully confident that your staff is more than capable of drafting the report @ K St., leaving gaps for essential corroboration, and coming the 8 blocks or so over hear to fill in any gaps in their memories. As you know, we also have offered repeatedly multiple scenarios for drafting the small portions of the report that might need to be included, in your view, at the Commission's NEOB space -- precisely as all the drafting was done here for the PDB memo.

Again, what we do in our report is an entirely different matter. These issues are now clearly not inseparable, if they ever were, since we now know what the scope of information is the staff intends to put in the report. We have agreed that there is a presumption against quotation, and that you can review for exec privilege concerns as well as classification. And if there is a special agreement that flowed out of the 'global settlement" discussions last fall (which you and we are looking for), we are bound by that too. But none of this has anything to do with whether we should have the convenience (the vital convenience) of a loan of our notes as a resource for drafting the report. See above. On Warren's remaining "effectively recreating" notes, the same confusion exists. We are NOT asserting a right to "effectively recreate" any White House document in our report. (We might "effectively recreate" a point or two, but - contrary to Dylan's suggestion yesterday -- we are not prohibited from doing that and we can do that already from the notes you have already released -- which do not effectively recreate whole documents but surely, not infrequently, effectively recreate a point.) All we want is the notes here to help Warren, Mike and their team draft the report. Warren spent a lot of time cutting back the bulk of his notes to a point that you guys were willing to let them go. He has not done so on these few key documents, but the world will not end if, at this crucial time, for us, you lend out these last few pages. Remember, that loan in no way compromises your position as to what is said in the report. See above. I'm through. If the light of reason penetrates, let me know. And we make the same offer to you.

5/4/2004

.ssage

Dan Marcu
rom: Cors, Dylan D. [Dylan_D._Cors@ nsc.eop.gov] Sent: Friday, April 30, 2004 11:51 AM To: Dan Marcus Subject: Proposed interim loan of notes on foreign communications DanI understand you discussed with Bryan earlier today possible arrangements for loaning certain sensitive notes taken byithe Commission on EOP docyments for use of those notes in Commission office space. This e-mail is intended^to capture the terms of those discussed arrangements, although, as noted below, any arrangement, even interim, still needs to be cleared here internally.! Possible long-term loan arrangements. For an extended loan of the requested notes (on foreign communications, memos to the President, and Warren Bassj notes "effectively recreating" certain documents'), we expect to be able to propose an arrangement omhe following terms: / ~ ~ " ^ f\ -- The notes will be returned to the EOP by June 15, 2004.
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-- No photocopies will be made of the notes. / will be a strong presumption that tne source documents for the notes will not be directly fated, _ ^Tg-gn&cta^fiai_f]fttate> r»r quoieclJDy the Commission in the final report or any other report (whether public or intra-USG) or public disclosure. lngta?d fflfrrTV"i Ml hftlffl?!'8^^ nthmr t»«irif>nfltiflr support general, summary, and/c - Commission will raise any proposed exception to this presumption with EOP before June 15, 2004. -- Access to the notes will be limited to the authors of the requested notes on EOP/NSC documents and will be administered within Commission office space by Graham Giusti. *£*£'<£&' &^ /f^U^ - r* — 'Qssjble. intenm_arrangement. Conclusion of the above long-term arrangement will require further stages of discussion, as I believed you discussed with Bryan, and cannot happen today. We understand, however, that the Commission would appreciate using the notes on foreign communications this weekend. In order to accommodate that request, we expect to be able to propose, later today, the following interim terms: - The presumption above acts as an absolute bar, i.e. there would be an absolute bar on directly citing, paraphrasing in substantial detail, or quoting any of the source documents for the loaned notes on foreign communications, even in any draft report being compiled by Commission staff. The notes would instead be used in this interim arrangement only for the generalized purposes described above, i.e. to corroborate other evidence^ or support general, summary, and/or conclusive statements.
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-- The notes could be used for this purpose by Mike Hurley and Scott Allan and no other Commissioners or staff. - If further discussions fail to reach a mutually agreeable long-term loarf arrangement, the notes loaned on this interim basis would be immediately returned to the EOP. (Conversely, if a mutually agreeable long-term arrangement is reached, the terms for the use of the notes would convert to the long-term arrangement terms.) Again, I emphasize that both arrangments described above are only proposed, and we do not have authority to offer them without further internal clearances. I wanted to set them out here in order to facilitate concluding the interim arrangement later today if internal clearances are obtained. Thanks for your continuing cooperation,

i/ V

4/30/2004

We have reached an impasse in discussions with Cunningham and Monheim about a matter which we think you need to raise with Judge Gonzales. The issue is their unwillingness to lend us escrowed notes we need in drafting the report - on the Clarke-Berger-Clinton memos; on their briefings of Philip, Mike Hurley and me on Presidential and other conversations with foreign leaders; and on Warren Bass's notes on some crucial documents in the development of NSPD-9 - unless we agree to conditions that would drastically limit our ability to use this material in our report. We have told them the conditions are unacceptable, and reminded them that they will have the opportunity to raise any issues of executive privilege, as well as classification issues, when our report undergoes pre-publication review by the White House. We have also urged them to separate the issue of the notes from the report, reminding them that Judge Gonzales has told you that escrowed notes could be made available to us later if we needed them, e.g., in drafting the report. But they have not budged, and we are therefore in the position of not having these notes available to us here at a time when our staff is working overtime to draft the report. We recommend that you schedule a call with Judge Gonzales to discuss this issue later this week, so that the problem can be discussed with the Commission at next week's meeting if necessary. Here are my initial thoughts - unreviewed by my colleagues - as to the essential points (to be fixed by them later!). 1. Three groups of escrowed notes that our staff needs to draft the report are being withheld from us by your staff unless we agree ahead of time to limits on what we can say in the report that are unacceptable. They are (a) notes that Philip took on Clarke-BergerClinton memos that he and Dan Marcus were allowed to see or be briefed on; (b) notes that Mike Hurley took on briefings by your staff of Presidential and other high-level conversations with foreign leaders; and (c) notes that Warren Bass took on a number of crucial documents in the development of the new Bush Administration policy on al Qaeda that were deemed by your staff to "effectively recreate" the documents. (Warren had previously spent hours distilling his notes on other documents to obtain their release.) 2. You have earlier indicated that escrowed notes would be released to us at a later date upon a showing that we need them - e.g., to write our report. We are asking for them now for just that reason - to enable our staff to have them available as a resource in drafting the report. We have agreed, and will honor our agreement, that there is a presumption that we will not quote directly from Presidential documents in our report (but only a presumption), and we will not, through paraphrasing, effectively recreate any document in our report. We have also recognized that you are free to raise issues of executive privilege as well as classification in the pre-publication review process. 3. But the pre-publication process is the appropriate forum for addressing those issues. We cannot agree in advance, as your staff has insisted, that we can only use these documents in a background, generalized fashion in our report. We will use them with care, as we believe we did in our staff statements, and you will have the opportunity to object if you think we have compromised national security or unduly intruded on executive privilege. Letting us consult our notes at the NEOB is NOT an acceptable alternative. We cannot write our report there, and our staff is working overtime now, under tight deadlines, to draft the report so we can get it to you in a timely fashion for pre-publication review. Refusing to lend us the notes will simply delay and complicate the process.

4.

5. This needs to be resolved immediately. We cannot have a situation where the Commission believes it cannot develop and present the public report we think the nation needs and deserves. The President and Vice President were gracious and generous with their time and their insights last week. We should not let this last issue spoil the progress we have made.