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Thomas H. Kean CHAIR Lee H. Hamilton VICE CHAIR Richard Ben-Veniste Max Cleland Frederick F.

Fielding Jamie S. Gorelick Slade Gorton John F. Lehman Timothy J. Roemer James R. Thompson

September 19, 2003 The Honorable Alberto R. Gonzales Counsel to the President The White House Washington, DC 20500 Dear Judge Gonzales: We are writing in response to your letter of August 15 concerning access to Presidential Directives. As you know, after receiving that letter, our Executive Director and General Counsel met with David Leitch and reached a number of understandings as to the nature of the conditions set forth in your letter, as well as clarifying the remaining areas of disagreement. We continue to appreciate the hard work by your staff in making documents available to us, including highly sensitive documents that are ordinarily not available outside the White House. And we agree with your observation that the special circumstances of the Commission's investigation should not set a precedent for the disclosure of deliberative materials of this or future Presidents. The purpose of this letter, supplementing our telephone discussion with you, is to set forth our views on the areas where progress has been made in resolving our remaining differences, and to emphasize several points that, in our view, still call for reconsideration of your position. We are pleased that you have reconsidered the prohibition on Commissioners and designated staff taking notes on the final version of NSPDs 8 and 9 and the three key Clinton administration PDDs on counterterrorism, as well as drafts of NSPD-9. But we strongly urge you to reconsider the current ground rule that permits us to take notes on certain critical policy documents and drafts only after we have made a particularized showing of need which you find persuasive. Understanding our past and present policies on terrorism requires an understanding of alternatives that were considered and rejected in developing those policies. Our Commission and staff will be severely hampered in drafting a meaningful and accurate report if we cannot take notes. A related issue is access to drafts. You have not agreed to our compromise proposal that we have access to circulated drafts of important documents, but said you would consider requests for drafts on a case-by-case, need-to-know basis. Again, we strongly urge you to reconsider this position and provide access to all circulated drafts of significant policy documents.
301 7th Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-llcommission.gov

Philip D. Zelikow EXECUTIVE DIRECTOR

The Honorable Alberto R. Gonzales September 19, 2003 Page 2

Under the current ground rules, we are required to make particularized showings of need before we can get access to circulated drafts and take notes on them. While we have made such showings—for example, on our need to take notes on the pre-9/11 drafts of NSPD-9—the process of making such showings and obtaining answers is proving too time-consuming and uncertain. Our experience has confirmed our view that it is important to revisit these issues. In answer to the condition set forth in your August 15 letter that there will be a "strong presumption that the Commission's report will not discuss draft materials not included in, or different from, the final, signed directive," we will be sensitive about disclosure of materials from drafts that differ from the final directives. Much of this material may be classified in any event. But we must be free to explore and discuss in our report policy options that were considered but not adopted. Finally, with respect to the final condition set forth in your August 15 letter, the Commission has no intention, during the pendency of our investigation over the next nine months, of disclosing that draft or final Presidential Directives have been made available to us. It is not clear whether this condition was intended to apply to our final report itself. As we told Mr. Leitch, it would be difficult, if not impossible, to avoid indicating or explicitly stating that such documents had been made available. We appreciate the opportunity we had to discuss some of these points with you yesterday. We hope this letter is useful in summarizing where we stand on the access issues and in convincing you to reconsider your position on the points indicated. We and our staff stand ready to discuss these matters further with you and your staff. With best regards,

Thomas H. Kean Chair

Lee H. Hamilton Vice Chair

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CONFIDENTIAL COMMUNICATION THE WHITE HOUSE
WASHINGTON

August 15,2003 Thomas H. Kean Chairman National Commission on Terrorist Attacks Upon the United States 2100K. StN.W. Washington, D.C. 20037 Dear Chairman Kean: As you know, the President has clearly stated a policy of support for the work of the National Commission on Terrorist Attacks Upon the United States ("Commission"). Consistent with that policy, and as a matter of comity between the legislative and executive branches, we have made available to the Commission highly sensitive and deliberative documents of the Executive Office of the President. Continuing with this extraordinary accommodation, as we discussed earlier this week, we will make available, to the 10 Commissioners and previously designated staff, a number of Presidential Directives (including National Security Presidential Directives and Presidential Decision Directives) and, in one case, several drafts of a directive ultimately signed by President Bush. In making these materials available, I want to stress that I, and other senior officials, remain most concerned with making this information available outside the Executive Branch. These are not only Presidential documents of the utmost importance and sensitivity but, in several cases, govern ongoing sensitive U.S. Government operations to this day. We are making the extraordinary accommodation on the Presidential Directive drafts only after concluding that this specific directive is of singular relevance to the Commission's work, based on particularized representations by your staff. We do not expect our accommodation with regard to these draft documents, and the signed Presidential Directives, to set any precedent, either for future Commission requests or for the handling of deliberative materials of this or future Presidents. Because of these concerns, as we discussed, we are making these materials available under the following conditions: no notes will be taken concerning these materials; information in these materials may not be discussed beyond the 10 Commissioners and previously designated staff; there will be a strong presumption that the Commission's report will not discuss draft materials not included in, or different from, the final, signed directive; and the Commission and staff will not discuss publicly the fact that these materials - final, signed Presidential Directives, or drafts of a Presidential Directive - have been made available. We would, of course, have no objection to more general representations to the effect that the Commission has had available to it the materials it needs to do its work, but insist that no specific acknowledgement be made with regard to draft or final Presidential Directives. These documents will be made available in the New Executive Office Building reading room dedicated for the Commission's review of materials. These materials, and all documents

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CONFIDENTIAL COMMUNICATION and information subsequently furnished, are furnished 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. Documents and other information are furnished to the Commission in confidence and as in closed session. Please ensure that the Commission protects them from unauthorized disclosure and from use for any purpose other than the legislative purpose for which the Commission made the request. Thank you for meeting with me on short notice Wednesday to discuss this important matter. I look forward to continuing to work with you to balance the Commission's need for information to carry out its important mission with the constitutional interests of the current and future Presidents.

Sincerely yours,

Alberto R. Gonzales Counsel to the President