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J COWIE

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JOHN R. COWIE. JR.
9/11 Personal Privacy

9/11 Personal Privacy

TELECOMMUNICATIONS TRANSMITTAL April 7, 2004 Hon. Thomas H. Kean (202)331-4060
JRC, JR.
FIRM. 9711 Commission

DATE

TO:
FAX#: FROM:

RE:
COMMENTS.

Presidential Privilege

Number of pages sent, including this cover sheet: cc: The White House/Dr. Condoleeza Rice, NSA

CONFIDENTIALITY NOTICE The documents attached hereto contain information from John R. Cowie, Jr., which is confidential or privileged. The information is intended for the addressee only. If you are not the addressee or the entity above named, any disclosure, copying, distribution or use of the contents of this telecopied information is prohibited. If you have received this information in error please contact this office and we will arrange to have the information returned without cost to you.

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]okn and Bar&gra Cowtt
9/11 Personal Privacy

The Bithop-s Cottage

April 7, 2004

The Honorable Thomas H. Kean, Chairman National Commission on Terrorist Attacks Upon the United States 301 7* Street, SW Room 5125 Washington, D. C. 20407

Re:

Presidential Privilege/Testimony of Dr. Condoleezza Rice, NSA

Dear Mr. Kean: This letter is written to the 9/11 Commission because there seems to be an obvious mischaracterization of the facts, or the conclusion which can be drawn on the basis of those facts, by your Executive Director, Philip D. Zelikow, concerning the testimony of a former Chief of Staff, Adm. William D. Leahy, given before the Joint Committee On The Investigation Of The Pearl Harbor Attack, held in November and December, 1945. In the April 12, 2004 issue of Newsweek there is an article by Newsweek Investigative Correspondent, Michael Isikoff, in which he refers to the opinion of Mr. Zelikow, that the appearance by Adm. Leahy in 1945 means that "The White House could no longer GET AWAY with the claim that Rice's appearance would be a profound breach of precedent", (emphasis supplied). Mr. Isikoff further noted in the article that Prof. Zelikow, a University of Virginia historian, (I believe he currently is the White Burkett Miller Professor of History at the University) ".,., had been poring over records of the Pearl Harbor inquiries for months,..." leading to the conclusion noted above Unfortunately, for both Prof Zelikow and Mr. Isikoff, I offer, somewhat tongue in cheek, there may well have been some

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pouring, but little poring over the testimony from the Hearing in 1945, for the following reasons. Adm. Leahy appeared as a witness at the Hearing and his testimony is contained in the published transcript in Part I, at pgs 341 to 368. At the time of his testimony he held the military position of Chief of Staff to the Commander-in-Chief of the Army and Navy. He assumed the position on July 20, 1942 and remained in the position until March 21, 1949. This is the same military position which is currently known as Chairman, Joint Chiefs of Staff, presently held by Gen. Richard B. Myers, USAF. On December 7, 1941 Adm. Leahy was the U. S. Ambassador to Vichy France, a position he had been assigned to in January, 1941 Prior to January, 1941 he had served as Governor of Puerto Rico from September 1939 to November 1940 Prior to that he served as Chief of Naval operations from January 1937 to August, 1939 when he retired from active duty with the U. S. Navy. When the Adm. appeared before the Pearl Harbor Attack Joint Committee he was not appearing to testify in his capacity as the military Chief of Staff because he did not hold that position in 1941. He did not testify to any advice given to the President during the time he held the position of Chief of Staff His testimony was entirely concerned with matters outside the scope of his position that he held at the time he testified. The privilege, if any, requires a connection between the position held, the person giving the advice and the subject matter. The first area of inquiry concerned a luncheon he had with Pres. Roosevelt and then Commanderin-Chief, United States Fleet, Adm, James O. Richardson, on October 8, 1940. Adm. Leahy, as the Governor of Puerto Rico was at the luncheon to discuss housing issues and other matters concerning Puerto Rico. Adm. Richardson was there because of his opposition to leaving the main body of the Fleet at Pearl Harbor. He wanted the Fleet to return to their home bases on the West Coast where they could be more properly replenished for war time duty if Japan attacked. Adm Richardson and Pres. Roosevelt were not on the same page on the issue. As the President was the Commander-in-Chief, Adm. Richardson was ultimately relieved of his duties in early 1941. Adm. Leahy testified to the Navy budgets that were submitted to and approved by Congress from the period of 1932 to 1941; problems the Admiral encountered as Ambassador to the Vichy Government regarding the stationing of Japanese troops in French Indochina; and he mentioned a discussion between Adm Richardson and the President concerning whether, or not, the U. S. would go to war if Japan attacked Thailand, the Kra Peninsula, the Dutch East Indies or the Philippines. The areas of inquiry were entirely outside the scope of any Presidential privilege with regard to his then, in 1945, position as the military Chief of Staff, a position he did not hold in 1940 or 1941. It is intellectually dishonest to suggest, or argue, that the testimony of Adm. Leahy in 1945 could possibly form the basis of your Committee's position on the issue of Presidential Privilege. Dr. Rice has agreed to testify so the point seems moot but not entirely so. The Commission's reliance on this so-called precedent is the equivalent of driving bridge supports into a bed of sand. Did Prof, Zelikow spend as much time poring over the records of the Clinton Administration, in particular, the final assessment by Pres. Clinton's team prepared in December 2000, titled "A National Security Strategy for a Global Age"? Was Richard Clarke crossexamined on the document? If not, why not? What could he say, he didn't recall what was in the

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document? The document contains scant references to Osama Bin Ladin and not one reference to Al Qaeda. How can the Committee give any credence to Mr Clarke's comment that the Clinton Administration was very concerned about Al Qaeda and Dr. Condoleezza Rice acted as if she didn't even know who, or what, they represented? If the Commission is to weed the chaff out of the wheat those were matters the Commission members should have undertaken on their own with Mr. Clarke instead of now leaving it up to Dr. Rice to have to spend time before the 9/11 Commission refuting the baseless charges of Mr. Clarke. A witness who just happened to have a CBS 60 Minutes interview and a soon to be released book, through Viacom/CBS/Simon and Schuster, just days before his testimony. I must add, that in retrospect, with the current climate of yellow journalism from the print and television media, the book publishers, and with Commission Member, Richard Ben-Veniste, appearing on television and opining that the Commission will find fault, this before all of the testimony is in, there does appear to be a total lack of objective inquiry taking place in Washington. The Commission, or maybe some Commission Members motivated by partisan politics, seem more intent on finding something, anything, to support a pre-determined finding of fault on the part of certain individuals, or entities, rather than an honest assessment of where we go in the future with our intelligence community. Finally, concerning Prof. Zelikow, if the references in Mr. Isikoffs article are accurate I suggest someone should be checking his work in the future. ,espectfully submitted;

cc:

The White House Dr. Condoleezza Rice, National Security Advisor

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PEARL HARBOR ATTACK HEARINGS
BEFOItE TIM
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JOINT COMMITTEE ON THE INVESTIGATION OF THE PEABL HABBOR ATTACK
CONGRESS OF THE UNITED STATES SEVENTY-NINTH CONGRESS
FIBST SESSION PURSUANT TO
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S. Con. Res. 27
79th Congress

A CONCURRENT RESOLUTION AUTHORIZING AN INVESTIGATION OP THE ATTACK ON PEARL HARBOR ON DECEMBER 7, 1941. AND EVENTS AND CIRCUMSTANCES RELATING THKRETO

PART 1
NOVEMBEfi 1C, 10,17, in, 20, aod 21, IMS

Printed for the use of the Joint Committee on the Investigation of the Pearl Harbor Attack

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UNITED STATUS GOVKBNMENT P&INTIMO OFFICE WA8HLNOTON : 1946

NAMSS 07 WITNESSES iw AM, PROCEEDINGS REGARDING THE PEABL HARBOR ATTACK—Continued
Joint Committee Etblbit No. 143 (Robots OonuBluIon, Dec. 18. 1841, to Jan. 23,1042.) fata 1146-1156 Joint Commit te« EiWblt No. 114 S»rt Inquiry, Feb. 13 to June If, 19MJ Ptgt» Joint Commute* ExUblc No. lit (Army Peart Harbor Board, July 20 to Oat. 20, IftM) Pa««
JolDC Joint Joint Joint Committee Committee Committed Committee ErhlbltNo. ZxblbltKo. ExblMt No. H7 Exhibit No 148 HB (Cl»rk» 14« (Claucon (Hewitt (Navy Court loTestlgacion. InvutlintloD, Inquiry, of Inquiry, Sept. 14 to Now. aTlSM, May 14 to JulySt to 1«. IBM: July to Sept. 12, July 1J, IMo) Oct. 19. 1M4) 13 to Aug. 1WS) 4.1MJ)

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