BRIEFING ON ACCESS ISSUES 9/9/03

1. Agency Responses to Commission Document Requests

a. Overview
b. Senior Level Policy Documents
c. Agency-by-agency status

2. White House Access Issues

a. Background: Gonzales letter and meeting with Leitch

b. Air Threat Conference Call Transcript
c. Notes on Presidential Directives and Drafts
d. PDBs
e. Interviews of High-Level Officials
e. Legal Issues ~ Executive Privilege
DM TALKING POINTS FOR 9/9 BRIEFING ON ACCESS ISSUES

Agency Responses

Overview: Aug. 19 letters and follow-up memos re priority "litmus test"

documents, like our earlier interim, report, served as a spur to agencies. Over last two
weeks, agencies have put in enormous effort and produced a lot. We have over 2 million
pages of Exec Branch documents now. Levin has done an excellent job of coordinating
and prodding agencies. Our earlier problem agencies - FBI, Justice, DoD -- have
improved enormously, as has the State Dept. We have gotten scores of useful briefings,
and the initial interviews of agency officials are going well.
The one general area highlighted in our August 19 letters where document
production remains incomplete is in the crucial area of high-level agency policy
documents. As you will see from a number of the agency responses, the process has
been slowed by agency difficulty in locating some documents, particularly from the
Clinton Administration. Dan Levin also needs to review some of these documents for
privilege concerns. All agencies have promised to complete their production of these
documents by the end of September or the first week in October, and Levin - after
talking to the agencies - has assured us that the bulk of the remainder will be produced in
the next two weeks.
Now Steve will give us a quick run-through of where we stand with the major
agencies,.
[Add remarks re NY, Port Auth, airlines, ATA, Congress]

White House Access Issues

a. Gonzales letter: Shortly after last Comm. Meeting, Gonzales sent Tom a
letter following up on his conversation with Tom that Tom reported on at the
meeting. Covered same points, but with a harder tone. We were very
concerned and asked for a meeting with Leitch, which took place promptly.
As you can see from my memo for the record, we succeeded in getting
clarification on a couple of crucial points, and stated our non-agreement and
intent to pursue others, especially the taking of notes.
b.
a. Air Threat Conf Call Transcript (report from Miles/Dana). Wenowshave
access for all Commrs and designated staff to redacted version (redacted for
COG/COOP); no limit on notes. DoD is preparing time markings.

b. Notes on Directives and Drafts: Current Whouse position - notes if we

demonstrate need. But some indication Gonzales reconsidering and consulting Card. If
we're stuck with current position, we plan to ease burden on Commrs by having Philip,
me, Hurley or Bass review docs promptly and make case for need to take notes. PZ did
so today on NSPD9 and pre-9/11 drafts and on three Clinton PDDs. We are optimistic
we will get some relief on notes.
c. PDBs: Whouse concerned re access to actual PDBs. We have persuaded
them that there needs to be a meaningful, substantive general briefing of all
Commissioners, but if they do so only on the understanding that more
detailed briefings on specific PDBs, and access to a few specific PDBs, will
be limited to Ch, VCh, Ex Dir, & GC.

d. Interviews of High-Level Officials: They proposed a set of guidelines that we

viewed as too limiting of our ability to question high-level officials about
what transpired at NSC Principals and Deputies meetings. We countered
with a proposal that they have accepted: a set of general principles based on
need to know (as we see it), where we would not generally seek a blow-by-
blow or exact-quotation account of debates at such meetings but would ask
questions about positions various participants took on options considered
where we believe those positions are important to our understanding of why
decisions were made. We also agreed that our interviewer will meet with the
agency representative a few days before the interview to outline the topics we
expect to cover, what NSC meetings we plan to question the witness about,
and whether (and why) we expect to ask questions about the positions taken
by participants at the meeting.

e. Legal Issues - Executive Privilege. Admin position on executive privilege

with respect to discussions at NSC meetings among the President's top
advisors and communications to the President on national security and
intelligence matters is a strong one. WE cannot be confident of winning a
legal battle should we push the Whouse into a claim of e.p.

Case law skimpy but not promising for us: U.S. v. Nixon (the Nixon tapes
subpena case) - Sup Ct upheld subpena because of needs of criminal
investigation, but said explicitly that the issue would be different if a "claim of
need to protect military, diplomatic, or sensitive national security secrets" were
involved - areas where the courts "have traditionally shown the utmost deference
to Presidnetial responsibilities." And in a more recent (1997) decision in
connection with the Independent Counsel investigation of Mike Espy, Judge
Wald, for the DC Circuit, wrote a lengthy dissertation on executive privilege
which describes a special, heightened protection for "presidential
communications", including not only direct communications with the President
but communications among his senior advisors about advice that should be given
to the President - the very purpose of NSC principals and deputies meetings.
The presidential communications privilege includes final documents as well as
pre-decisional ones. It can be overcome by a sufficient showing of need, but in a
situation such as the PDBs, where briefings are being provided, questions
answered and key documents being made available to the Chair & Vice Chair,
that demonstration would be difficult to make..

[If necessary, discuss problems with subpoenas - Whouse can defy; we then have
to go to court to enforce; process will take substantial time; and we may well lose.
Subpenas of Whouse documents in national security area would be regarded as
declaration of war by Whouse, and they would likely provide less cooperation
generally. And once having staked out a position, they would be unlikely to
retreat, even if they take a public-relations hit.]