You are on page 1of 6

NATIONAL COMMISSION ON

TERRORIST ATTACKS UPON THE UNITED STATES

Minutes of the May 1, 2003 Meeting

The Commission met at 9:05 AM, with all Members except Commissioner Cleland in
attendance.

The minutes of the April 10th meeting were approved. Commissioners decided, for the
purpose of the current meeting, that minutes should be more detailed, recording not only
decisions but providing more detail as to the proceedings.

Commissioner Roemer asked to stipulate for the record a number of points he (and
others) had raised in discussions about access to documents at a Commission dinner the
previous evening.

• He recounted how he was unable to read a number of classified hearing transcripts at


the Joint Inquiry offices, and learned that the Executive Director had reached an
agreement allowing the Executive Branch an opportunity to review those transcripts
for the possible assertion of Executive privilege. Commissioner Roemer stated that
he felt strongly that no individual in the Administration or the Congress should block
the Commission's statutorily mandated access to Joint Inquiry documents. He
opposed any agreement limiting access to transcripts, interviews, or any other JI
documents. He stated his belief that the Commission should establish a policy where
the Commissioners make the decisions on access.

• The Executive Director noted that there are no outstanding issues with the Executive
branch on possible assertions of Executive privilege with respect to Joint Inquiry
documents; all such possible assertions had fallen away. He noted further that the
Chair and Vice-Chair had been informed in a timely manner of his actions. He
regretted any miscommunication with Commissioners, but did not regret giving the
Executive branch a few days to come to the same conclusion on Executive privilege
as the Commission did. Chairman Kean added that he did not think it was worth
having a major fight with the Administration over the question of a few days of
comity. The General Counsel concurred.

• While agreeing with Chairman Kean, Vice Chair Hamilton noted that everyone felt
Commissioner Roemer was exactly right on the underlying merits, and that the
question of access is an important, sensitive one that Commissioners should decide.
Commissioners concurred. He noted that all staff must be sensitive and attentive on
this matter. He added that, despite this bump in the road, the Commission came out
where it wanted to—a good outcome.

• Commissioner Ben-Veniste expressed concern about information restrictions,


"stovepiping" among staff. The Executive Director explained that his approach is to
clear as many staff as he can into as many compartments as possible, because the
Executive Branch overclassifies. That said, the Commission needs to adhere strictly
to the need-to-know principle in providing access to such information. Access lists
already have been expanded, and may well be expanded further, consistent with
demonstrated need-to-know.

• The Chair stated that where the Commission decides to make a stand on access to
information is a very important question. Commissioner Gorton stated his view that,
as a general rule, whenever the Commission wants a document, it should get it.
Commission Roemer closed the discussion, observing that establishing authority is a
daily battle. He stated his belief that the Commission needs to assert fully its rights.

The Commission proceeded to a review of the Work Plan for Team 1 on Al Qaeda &
Related Transnational Terrorist Groups. The Executive Director noted that this team has
the most important part of the investigative story: reconstructing the rise of al Qaeda and
its links to other terrorist groups, and reconstructing the criminal conspiracy. How did
the hijackers organize, train, rehearse, and execute their actions? The Executive Director
noted that the credibility of the Commission depends on a rigorous, authoritative account,
in other words "how well we nail this story." Commissioner Gorelick supported the
Executive Director on the importance of the factual inquiry and a detailed, authoritative
description of events. Commissioner Ben-Veniste concurred. He stressed the importance
of investigation, going beyond "all evidence now available" to dig deep into what
agencies know, in order to discover gaps in our knowledge and conduct the strongest
possible factual inquiry. The Executive Director responded and described a proposal to
reconstitute an investigative unit—a "team 1A" as part of the inquiry, headed by a senior
investigative attorney. He added that it was his intent to bring before the Commission at
the June 5th meeting briefings by the DCI Review Group and by the FBI's PENTTBOMB
investigation, the two most detailed (and on-going) investigations of the 9/11 event.

Commissioners agreed on the importance of detailed review of documents prior to


interviews, and the importance of interviewing lower-level officials before proceeding to
senior levels. Commissioner Fielding stressed the importance of reviewing existing
interviews and not re-inventing the wheel; Commissioner Roemer stressed the importance
of additional document requests, focusing especially on the 19 hijackers, as the Joint
Inquiry looked into only about 4 of them. Commissioner Gorelick stressed the
importance of exploring what methodologies hijackers used to find the seams in our
defenses and hide their activities, and the importance of the USG trying to close doors
before terrorists opened them. The Vice Chair agreed on the importance of an historical
inquiry, but that ultimately recommendations mattered most.

The Executive Director and General Counsel introduced the topic of the conduct of
interviews, and proposed that interviews be recorded and should not have agency
representatives ("minders") present. Commissioner Ben-Veniste stressed the importance
of uniformity of approach. Commissioner Gorelick believed it important to research
Congressional prerogatives and practices with respect to such interviews. The Chair
summed up the discussion as a sense of the Commission to pursue a policy of recording
interviews, without minders present, with the possibility of waving the rule in certain
circumstances. The Executive Director invited the active participation of Commissioners
in the interview process, with a minimum of two individuals to conduct all interviews.
Commissioner Gorelick noted the chilling effect of interviews when conducted with more
than 3 or 4 people in the room.

The work plan of Team 6, on Law Enforcement and Intelligence Collection inside the
United States, drew considerable favorable commentary from Commissioners.
Commissioner Gorelick asked the team to look in detail at budget requests by sub-units,
units, and by the Department of Justice as a whole—what was sought by whom, and what
was denied when and by whom? She also expressed interest in the question of what is
the definition of "analyst" (especially at the FBI), and what are the policies and practices
that got us to the point where the analytical strength of the FBI is so limited? She and
Commissioner Ben-Veniste expressed strong interest in a briefing on FISA, the
PATRIOT Act, the current status of the Levy guidelines, and associated civil liberties
questions. Commissioner Ben-Veniste expressed his belief in strong interaction between
Team 6 and Team 1, including physical proximity.

Vice-Chair Hamilton noted that the FBI has been all over the Hill on the question of
domestic intelligence, stating that it is "up to the job." He noted that some 15 Members
have asked him what his views are on a new domestic intelligence agency and so far he
has responded that he doesn't yet know what he thinks—and that the Commission will
need to take a position on this question. Commissioner Lehman noted that many private
databases have more information about individuals than exists in the hands of the federal
government. He underscored the importance of the Commission getting ahead of the
curve on the question of guidelines for the protection of civil liberties, and devoting
attention to this policy question. Commissioners Ben-Veniste and Gorelick concurred.

Commissioner Ben-Veniste noted his interest in returning to the question of an interim


judgment on cooperation by agencies with the Commission. He noted that the kind of
attention the Commission commands gives it a very powerful tool in this respect.

The Executive Director noted that Team 6 will really need to "get down in the weeds,"
visiting Joint Terrorism Task Forces (JTTFs) in San Diego and New York. It will need to
examine closely relations with State and local governments. It will need to look closely
at the CIA's National Resources Division and operations, and look carefully at the details
of domestic intelligence collection. It will also need to look at the immediate response to
9/11 and the detention of thousands of Muslim males. Commissioner Roemer closed the
discussion by asking how the Terrorism Threat Integration Center (inaugurated on May 1)
was going to work, and noting that the Commission will need to pay close attention to its
work over the next several months.

Team 8, on National Leadership and Crisis Management, focused on 3 central questions:


(1) What did national leadership do on that day, including why didn't fighter aircraft
scrambled by NORAD reach their targets on time; (2) What were emergency response
plans, and were they implemented; and (3) What was done in the immediate response to
9/11, including financial markets, immediate assistance for NYC, airlines and the creation
of a compensation fund for victims. The Executive Director noted that one of the key
questions is to spell out the agenda of issues that a White House confronts when a major
catastrophe hits.

Commissioner Gorelick praised what she saw as an excellent outline, but thought it
useful to look at the bigger picture, including the proper role the miltary can and should
legally play in national defense. She noted that the protocols on shoot-down of
threatening aircraft, at least during her time in government, were a kludge of policies that
did not fit well together in real-world practice. In terms of domestic security, she
believed that the corporate sector could do much more. She noted that the FBI always
kept available a request list of what it wanted, and brought it out at times of crisis. She
observed that the ABA's National Security Committee was holding a conference on the
role of the military in homeland security, and that staff should attend.

Team 7, on Commercial Aviation and Transportation Security, summed up its key


questions as keeping bad people and bad things off of planes. What did we know, and
do, and how did the bad guys defeat our security system? Vice Chair Hamilton
commented favorably on the Team's proposed timeline, and both he and Commissioner
Lehman stated their support for critical path planning by the Commission to produce its
product by the given deadline. Commissioner Gorelick thought it important to look at
the recommendations of previous Commissions, and Chairman Kean noted that the
families tell him that the Lockerbie report represents fine recommendations — and that
they have not been implemented. Commissioner Ben-Veniste asked if the Commission
had and would seek information from foreign carriers on their security measures and
practices. Commissioner Lehman noted the non-existent security at ports, and that a
single container incident could bring America's just-in-time manufacturing system to a
screeching halt.

Discussion turned to Hearings, and Commissioners agreed to hearings on May 22nd and a
half-day on May 23r . Vice Chair Hamilton stated that the Commission needed to plan
hearings for the duration of its existence, and asked Commissioners for suggestions as to
subjects and timing to help staff in the preparation of a proposal. The Executive Director
pointed out that there would be many events, including briefings, closed hearings and
hearings in the months ahead. Members discussed the importance of holding a hearing on
the West Coast and in the Midwest. The Chair and Vice Chair underscored the
importance of a wide invitation to Members of Congress to testify. The Commission
agreed to a series of panels on aviation security following Congressional testimony.

Discussion turned to the topic of implementation of the Commission's recommendations.


The Chair and several commissioners stressed the importance of a strategy for
persuading the public and lawmakers to adopt the commission's recommendations.
Commissioner Lehman thought that hearings outside of Washington would indeed be
most useful and effective in the Commission's implementation phase.

Commissioner Gorton expressed concern that the Commission's recommendations would


get wrapped up in classified information, leading to bland generalities in its final report.
The Executive Director urged the Commission not to extrapolate from the Joint Inquiry's
experience; he noted that it could learn from the JI in this regard and do things differently
and better in the production of a valuable unclassified report.

The Executive Director initiated a discussion on redaction of documents. Commissioners


agreed on the principle of unimpeded access by Commissioners to all documents. The
Executive Director briefed all Commissioners on 3 sensitive matters proposed for
redaction in transcripts of closed hearings. After discussion, Commissioners agreed that
they would allow 3 weeks for review, and then would agree to those 3 brief redactions.

Commissioner Roemer recommended that all matters of access be matters for


Commissioner decision. He expressed concern about the current system in place with
White House point of contact Adam Ciongoli—that he did not see how any one person
could carry out this task, and that he did not like the idea of one single gatekeeper for 14
separate federal agencies. He noted that the Commission has 12 months to work out
what the Joint Inquiry did, and a much wider jurisdiction in which to do it.

Vice Chair Hamilton noted that if Commissioner Roemer's idea were to be pursued, it
would mean going back to the White House—and that would be hard to do. The General
Counsel added that Ciongoli had in fact been very helpful in working through a number
of issues. Commissioners Roemer and Ben-Veniste noted that the Joint Inquiry had the
ability to address problems at the level of the Vice President; in response the Chair noted
that this channel of communication was used only in crisis situations. The General
Counsel observed that the Commission so far has had the ability to get what it wants; that
the potential to escalate issues is available, that the current arrangement has produced
results and should be given time to produce more. Commissioner Gorton observed that to
go over Ciongoli's head in the absence of a specific problem won't help. He noted that
what Commissioner Roemer had proposed could be the correct approach when a serious
problem arises. The Chair noted that he and the Vice Chair are the hammer—to be used
infrequently. Commissioner Gorelick agreed with the approach of going to the top only
in the case of a specific problem.

Commissioner Ben-Veniste thought it useful to try to approach the FBI first on questions
of access, because of the FBI's clear interest in cultivating the Commission. After some
discussion, it was agreed that Commissioner Ben-Veniste and Commissioner Fielding
would constitute a subcommittee of the Commission for the purpose of giving guidance
to Commission staff on how to approach access issues.

The meeting adjourned at 1:15, and was followed immediately by a meeting of


Commissioners with representatives from the Family Steering Committee and other
\y
meet again May 21-23rd.