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81.77MB/476.84MB (17.15%) Date: Mon, 28 Jul 2003 12:37:35 -0400 From: "" <dmarcus@9-11 commission.gov>4f To: "" <dmeyers@drew.edu>4f,"" <hamiltol@wwic.si.edu>4f,"" <coultern@wwic.si.edu>4f,"" <rhodesbj@wwic.si.edu>4f Cc: "" <frontoffice @ 9-11 commission .gov> 41 Subject: Fwd: letter re EOP access guidelines
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If!] 2 draft letter to EOP re access guidelines (28 Jul 03).doc application/msword 45.05 KB H |

Tom and Lee: Attached for your review is the current working draft of our agreement letter with the WHouse Counsel. We have worked out all issues but one: the extent to which we can quote from EOP documents in our notes. That issue is highlighted on page 2 of the draft: their language is in brackets; ours is in italics. We think there is an improved chance of your selling our language to Gonzales because of our concession in the last paragraph that their will be a presumption that we will not use direct quotations from presidential documents in our report (but just a presumption!). When you call Gonzales, he may well return to an issue he mentioned in your last conversation: whether when we interview former Govt employees, we should have to make a recording and share it with the Government even when the former employee has elected NOT to have a Govt "minder" present. At the staff level we have taken a strong position that this is unacceptable: to share a recording with the GOvt where the former employee has elected NOT to have a minder present would effectively negate the employee's decision and chill or distort the interview. We urge you to hold the line on this. We have made a major concession by agreeing to have an agency representative present at interviews of current Govt employees and former employees who request one, but we should go no further. Call me if you have any questions. I hope you can make the call to Gonzales today.

http://kinesis.swishmail.com/webmail/imp/message.php?Horde=4792316dd5a7a79315392b4... 7/28/03

[draft 7/28/03 noon] Thomas A. Monheim Special Assistant to the President and Associate Counsel The White House Washington, DC 20502 Re: Principles and Procedures for Commission Review and Handling of Executive Office of the President (EOP) Documents and Information Dear Tom: This letter follows up on discussions between the Counsel to the President and the Chair and Vice Chair of the Commission regarding review and handling of Executive Office of the President (EOP) documents and information, as well as further discussions between Commission staff and EOP officials. We understand from these discussions that, consistent with the President's strong support for the work of the Commission, the EOP is prepared to continue to make available to the Commission EOP documents and information, including information related to each of the categories of EOP documents and information the Commission has requested to date. We recognize that the EOP believes the documents and information being made available to the Commission are unprecedented in character and scope, and we understand that the President is making information available voluntarily, without relinquishing presidential custody over these documents and without waiving either his constitutional prerogatives or his privileges with respect to these documents or this information. We also understand that both sides are working hard to avoid frustrations and delays and are committed to working together to iron out any issues that may arise as we go forward with the goodfaith accommodation process that is called for to balance the constitutional interests of the Executive Branch with the needs of the Commission in carrying out its important mission. We acknowledge the extraordinary nature of the information being made available to the Commission, and the great sensitivity and high level of classification of many of the documents being requested. The Commission will take all reasonable steps to protect the information provided and to prevent its unauthorized disclosure, including strict adherence to all applicable regulations and guidelines for the handling of classified information and observance of the "need-to-know" principle. In general, the documents and information being made available by the EOP will be accessible only to Commissioners and to designated members of the Commission staff, and those with access to EOP documents and information will only share such information with other designated members of the Commission staff, as we have discussed. EOP information provided in response to our requests will not be shared outside the Commission other than in the Commission's report. As we have discussed,

Thomas A. Monheim July 28, 2003 Page 2 we will consult with the EOF if we find a need to share such information with Commission staff other than those currently designated. Some documents or information sought by the Commission may be especially sensitive, either for national security reasons or to preserve the confidentiality of the President's innermost deliberative process or confidences shared with foreign leaders. In such relatively rare circumstances, we understand that the EOP will still endeavor to make information available to the Commission, such as through briefings or limiting the review of the material to specific individuals, and possibly with constraints on taking notes. In any case, the Commission's Chair and Vice Chair may seek wider Commission access to particular documents or information as they believe necessary. Unsent or uncirculated draft documents need not be made available to the Commission. If a requested draft document has been circulated for policy review, as in a draft presidential directive, the EOP is willing to consider the Commission's need for such a document on a case-by-case basis. We anticipate that some information in this category will be made available. In general, any circulated draft policy document that is not being made available will be logged or marked so that the Commission may identify what is missing and request that information be made available where it considers a particular draft policy document relevant and necessary to the Commission's work. In general, Commissioners and Commission staff may take notes when reviewing EOP documents, and such notes may be transported back to the Commission's secure facility and stored there following the appropriate procedures for the classification and secure transportation of the material. [[We agree that, as a general matter, no direct quotes of sentences or longer passages from documents will be included in notes, but that exceptions may be made on a case-by-case basis upon a particularized showing of need by the Commission.]] We agree not to take verbatim notes that effectively recreate the documents themselves, and that any quotations from EOP documents will be reasonably limited. Notes without direct quotations, or with reasonably limited quotations, will be sufficient to allow the Commission to complete its work and to prepare a report. Notes will be reviewed by EOP staff before they are removed to insure they are either unclassified or are properly classified. Paragraph marking of notes by the initial note taker will facilitate this review. Such review will occur prior to the Commissioner or staff member leaving the review facility when feasible and, if not feasible, promptly thereafter - no more than one or two business days. Since it will draw upon classified information, the Commission's report (to include any materials prepared by the Commission for public disclosure) must be submitted to the EOP for pre-publication review to verify that no classified information is contained in the report. The EOP also retains the separate right to review portions of the report that draw upon or quote presidential deliberative documents in order to determine the extent to

Thomas A. Monheim July 28, 2003 Page 3 which the report may implicate interests protected by the constitutional doctrine of Executive privilege. We agree that the presumption will be not to quote from presidential deliberative materials. Both sides intend to work out any such issues that arise through consultation and in a spirit of mutual respect, without obliging the President to assert a privilege or requiring the Commission to decide whether to contest such an assertion. Yours sincerely,

Daniel Marcus General Counsel