August 12,2003

Thomas H. Kean
CHAIR MEMORANDUM
Lee H. Hamilton To: Commissioners
VICE CHAIR

Richard BetvVeniste From: Tom and Lee

Max Cleland
Subj: Our Meeting on Thursday, August 14
Frederick F. Fielding

Jamie S. Gorelick
We plan to meet from 9:00 a.m. to 1:00 p.m.
Slade Gorton
I. Minutes
John F. Lehman

Timothy J. Roemer The draft from our July 31 meeting is at Tab 1. We could follow up the
discussion of access issues with any updates from Philip and Steve (Dan is on
James R. Thompson
leave).

Philip D. Zelikow II. Schedule of Public Activities

EXECUTIVE DIRECTOR

Following up on our last meeting, at Tab 2 we attach a draft plan of public

activities for the remainder of 2003. We would deliver a public address at the
National Press Club on September 23 that would include our promised interim
report, remind the public of how we differ from the Joint Inquiry, and describe
the way forward. We would hold policy roundtables in October, November,
and December that focus on ideas for change, organized with the assistance of
the Council on Foreign Relations, the American Enterprise Institute, and the
ABA's Standing Committee on Law and National Security.

At Tab 3 we attach our current schedule for resuming hearings to receive the
testimony of administration officials in early 2004. '"**

III. Intelligence Warning and Policy Action

Following up our substantive discussion of July 31, we have arranged for

another such discussion that carries forward our attention to how alarms are—
or should be—translated into warnings, and actions. This time to help us we
will be joined by perhaps the three best experts on this subject we could
possibly find: Charlie Allen, Mary McCarthy, and Fritz Ermarth. Their bios
and writings are attached at Tab 4.

We look forward to seeing you on Thursday.

301 7th Street SW, Room 5125

Washington, DC 20407
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NATIONAL COMMISSION ON
TERRORIST ATTACKS UPON THE UNITED STATES

Minutes of the July 31, 2003 Meeting

The Chair called the Commission to order at 9:04 AM on July 31, 2003. All
Commissioners were in attendance.

Minutes. The minutes of the July 8, 2003 meeting were agreed to, after the incorporation
of several minor changes.

Access to White House Documents. The Vice Chair summarized the key points of an
agreement reached between the Commission and the White House regarding access to EOF
and NSC documents:

1) Commissioners and key staff will have access to highly sensitive NSC and White
House documents. Individuals with access may share information with other colleagues
on a need-to-know basis. This agreement goes beyond access granted to the Joint
Inquiry and Congress. In rare cases, access to certain documents may be reserved for
only the Chair and Vice Chair, but the Commission can then request wider access.

2) Commissioners and staff who take notes may bring them back to the Commission's K
Street office. The notes will be reviewed for proper classification on the spot, or, in
some cases, within 1-2 business days. Portion marking will expedite the process. Highly
classified material will be transported via approved courier channels.

3) Direct quotes from documents are permissible; however, the Commission will exercise
restraint and will not endeavor to recreate documents with verbatim notes. The
presumption is that the Commission will not quote directly from presidential
deliberative documents. (Commissioner Ben-Veniste observed that the agreement
allows for this issue to be subject to later discussion.)

4) The Commission will be granted access to circulated drafts on a case-by-case basis; the
Commission will not see uncirculated drafts.

5) The Commission is not prohibited from taking notes on draft documents.

6) The agreement further recognizes the Commission's need for access to this material in
order to complete its work. The Vice Chair noted that Judge Gonzales emphasized,
again and again, conciliation. He noted that Judge Gonzales is committed to working
with the Chair, Vice Chair, and staff on any problems that may arise.

Commissioner Ben-Veniste asked how the Commission is handling the review of

redactions in EOF documents. The Executive Director stated that he, the Chair, Vice Chair,
and General Counsel were allowed to review redactions, and that he had reviewed all of the

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redactions to date. The Executive Director observed that the body of redactions was not
controversial, but that he had made a request to the White House—in writing—to
reconsider four redactions. Three of the four redactions obscured the policy context of a
decision, and the fourth dealt with covert action. Commissioner Roemer agreed that such a
request should be made in writing. Commissioner Ben-Veniste suggested that it would be
helpful to have annotations next to redactions stating the subject matter of, and rationale
for, each redaction.

Commissioner Ben-Veniste inquired if any documents had been limited to review by the
Chair and Vice Chair. The General Counsel responded that, to date, the continuity of
government information was the only such information limited to review by the Chair and
Vice Chair, but that the Commission was already informed of this exception. The
Executive Director described a couple of other documents that were also being handled in
this way.

Commissioner Fielding described the agreement as a phenomenal breakthrough.

Commissioner Roemer concurred that the agreement brought the Commission into
uncharted territory and had broken new ground. While access isn't completely there, he
added, the agreement established ground rules for access to material that the Joint Inquiry
did not get. The Vice Chair added that everything will depend upon implementation of the
agreement. There will be bumps in the road, but the Judge has committed to working
through them.

Commissioner Roemer expressed his concern that the NSC documents frequently record
announcements of meetings, but no documentation appears in connection with those
meetings in terms of minutes or follow-up. The Executive Director noted that such
documents may not actually exist at all, or in a circulated form. In cases where minutes
were prepared but only circulated internally, they will be picked up by the recently-
submitted EOF Document Request No. 3.

Commissioner Roemer then asked if the Commission would gain access to the pre-9/11
"draft" of NSPD-9. He stressed the significance of this document. The Executive Director
agreed with this assessment. The General Counsel stated that NSPD-9 was the
Commission's first request to view a circulated draft, which, according to the agreement,
can be done on a case-by-case basis. Commissioner Gorelick expressed her belief that it
should be an easy case. The Executive Director stated that Judge Gonzales had yet to make
a decision, and that the Chair and Vice Chair might need to press the point directly with
him.

Commissioner Gorelick inquired as to whether the White House documents could be

arranged in a single chronological set rather than in parallel sets separated by classification
or records categories. On a separate matter, she added that the Commission ought to
compile an integrated timeline of events on 9/11, reconciling various times and time zones
involved in various accounts. She went on to observe that there was deep confusion among

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the public about the difference between the Commission and the Congressional Joint
Inquiry.

Senator Cleland inquired as to whether the Commission would have access to the same
information as Bob Woodward did. The Executive Director explained that the Commission
would have greater access.

Moussaoui Agreement. Commissioner Ben-Veniste inquired about the impact on the

Commission's Moussaoui agreement if the criminal trial is not completed by the
publication date, or furthermore, if the case is dismissed altogether and moved to a military
tribunal. The General Counsel stated that they had not discussed the latter point, but that his
understanding, based on language in the letter, was that the agreement only applied to the
current case.

Declassification. Based on his experience with the declassification of the Joint Inquiry
report, Commissioner Roemer asked how the Commission was going to write and publicize
an unclassified report if the source material for the report itself is classified. Commissioner
Ben-Veniste inquired as to what mechanism the Commission would have in place if there
are objections to the report's declassification. He also asked what, if anything, the
Commission could learn from the Joint Inquiry declassification process. The Executive
Director responded by stating that the Commission intends to write an unclassified report
and submit it to pre-publication review. He explained why this is a stronger position legally
and procedurally than one in which the report is treated as classified and then must go
through the traditional declassification process.

The General Counsel suggested that the Commission build in time to allow for the
classification review process. Commissioner Gorton stated that the Commission should use
all of the time it has to write the report. Commissioner Gorelick expressed concern that
there was no time to build in a couple of months before the May 2004 deadline, and asked
if the statute would allow for declassification in the two months beyond the deadline. The
General Counsel said that the statute would probably accommodate this.

The Chair concurred that the Commission's report should be written so that it is
automatically released to the public. The Vice Chair noted that it will take a lot of work on
the part of the staff to limit the points of difference before the report goes to the White
House for review. He added that he and the Chair would try to get an agreement from the
White House to act very quickly. Commissioners Gorelick and Fielding concurred that the
White House would want the report to be released as soon as possible.

FBI Access. The Vice Chair announced that the Commission had received the FBI timeline
and had also been granted electronic access to the PENTTBOM's case files at FBI
Headquarters. The Executive Director and General Counsel added that such access to the
PENTTBOM file enables the staff to search it on site, easing the need for further document
requests as to this material.

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Commissioner Gorelick observed that although the Commission does not have physical
custody of some documents, the Commission's access to such documents should be
memorialized. She suggested that the Commission put both the White House and FBI on
notice, and stated that it was not tenable to close down the Commission without a record of
its access to materials from these agencies. The General Counsel suggested that the
Commission could create its own record by either describing the documents or archiving
the documents the Commission reviews. Commissioner Gorelick restated her preference
that these agencies create a set of what was accessible to the Commission and include that
set in the archives when the Commission concludes.

Hearings. The Chair voiced the staffs strong preference for the hearing schedule to resume
in January 2004, allowing time to conduct interviews and review documents for the
remainder of the calendar year. He circulated a proposal endorsed by all team leaders and
staff.

The Vice Chair said that his approach was to give some deference and weight to staff
considerations; the proposal, which suggests a moratorium on public hearings until January,
is ambitious, with 12-13 days of hearings planned in 2004. He observed that this schedule,
in addition to Commission meetings, would require a very heavy time commitment from
Commissioners. He added that the proposal leaves the Commission open to criticism for
not doing anything during the remainder of this year, and gives the impression that the
Commission is inactive. He suggested that they might head-off such criticism by issuing a
press release stating what the Commission will accomplish between now and January.
Commissioner Fielding encouraged the Commission to announce the hearing schedule as
soon as possible.

The Vice Chair added that the Commission needs to adopt a more aggressive hearing
format, go into each hearing with specific objectives, and instruct the witnesses to answer
questions succinctly.

The Chair noted that the Commission had promised to provide another interim report to the
public in September. He suggested that the Commission could issue another in October or
November. Commissioner Gorton recommended that the next interim report include how
many individuals had been interviewed, how many documents had been received, and a
schedule of Commission activities.

Commissioner Ben-Veniste applauded the first interim report, stating that it was successful
beyond his wildest expectations, and resulted in the White House looking at the
Commission in a completely different light. He added that the report gave the country a
look at the Commission and that almost all of the op-eds were unfailingly supportive of the
Commission. He went on to suggest that the Commission consider a schedule of closed
hearings and entertain the idea of Commissioner subcommittees, which is permitted by the
statute. The closed hearings, he asserted, would enable the Commission to develop
information in a private session before conducting a public inquiry.

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Commissioner Gorton stated his support for the staffs emphasis on getting the report done.
He expressed his belief that what the Commission says at the end is what matters most.

Commissioner Cleland expressed his concerns regarding the hearing proposal, stating that
it gives the appearance of the Commission shutting down. He added that it is not the time to
retreat in light of the Joint Inquiry report and heightened terrorist threats. He observed that
part of the Commission's product is not just the final report, but giving the country the
sense that things have been investigated.

Commissioner Lehman concurred that a measure of the Commission's effectiveness will be

the public's perception and recommended monthly hearings. He added that there are many
issues that the Commission could expose publicly (such as some of the problems he
encountered during his visit to Kennedy Airport). He suggested that the Commission
consider issuing interim findings and recommendations on issues such as the visa-transit
problem. The Vice Chair wondered if the Commission could identify 4-5 recommendations
that could be made immediately. The Executive Director noted that guidance had been
given to staff to forward any policy recommendations that were ready for presentation to
the nation in an interim report.

Commissioner Ben-Veniste suggested a follow-up to the FAA/NORAD hearing, picking up

on the aviation issues raised by Commissioner Lehman.

Commissioner Gorelick stated that the staff proposal has a lot of merit. She wondered if
there were three policy-oriented topics that the Commission could consider for day-long
hearings on prospective issues for which less preparation is required, such as, "Who is
defending our nation?" She added that the Commission has a mandate to bore into the
historical facts, but also to look at prospective issues. She also suggested that the Chair
deliver a speech at the National Press Club that combines process and substance.

Commissioner Roemer observed that media's appetite had increased measurably given the
recent release of the Joint Inquiry report. The Commission, he said, has a real opportunity
to bond with the American people; to let them know why the Commission exists and what
it is going to accomplish. He then proposed a hybrid schedule that called for a speech in
September, issuing policy recommendations in October, and holding a hearing in
November. He suggested that the Commission select 2-3 issues that wouldn't take a great
deal of staff work, such as congressional oversight, what had been learned about the plot
from the detainees, or more unified management of the intelligence community—
converging with legislation that Senator Graham was introducing.

The Executive Director stated that the Commission was now in a zero-sum situation in that
all hearings, regardless of their length and scope, required significant staff time. He
contended that the Joint Inquiry's investigation had been hampered by its hearing schedule
and that the report suffered as a result.

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The Vice Chair recommended that the Commission accept the 2004 hearing proposal and
requested that the staff prepare a proposal outlining a menu of possible fall events.
Commissioner Thompson concurred, but believed that the Commission should move
forward immediately on the idea of a National Press Club speech. The Vice Chair added
that the Commission should not expect any Administration principal to appear more than
once.

Commissioner Ben-Veniste inquired about the status of the budget, and if it allowed for the
hiring of additional staff. The Executive Director stated that the Commission was currently
in a satisfactory financial position, and that it had hired new professional staff members in
recent weeks.

Aircraft as Weapons. Aided by staff from Teams 2 and 7, and by Ernest May, the
Executive Director led an extended, classified discussion of the intelligence and policy
issues surrounding the pre-9/11 threat assessment of "aircraft as weapons." The
presentation and subsequent discussion clustered around two major sets of questions:

1. Assuming that there was an intelligence failure in warning about the danger of aircraft
as weapons, when did that failure occur? In other words, when should analysts in
possession of the relevant information have come to the conclusion that seems so
obvious in hindsight? This "when" question leads immediately to another: Why?

2. If analysts had done their job just as we would hope they would, just how would
intelligence have made the jump to preventive policies? hi other words, what would a
success have looked like?

Commissioner Ben-Veniste thought it was important to go through the matters (just

concluded) in a hearing format. The Executive Director replied that it would require a staff
presentation in order to bring forward the material effectively. There was then a brief
discussion noting the virtues of the approach Eleanor Hill had adopted in providing
collective staff summaries in order to frame issues discussed in some of the Joint inquiry's
hearings.

The Vice Chair stated that he was impressed with the presentation. He wanted to know the
staffs conclusions as to what happened, and what didn't happen—and why. He also wanted
to know what the Commission should recommend to prevent such actions in the future.

At 1 PM, the Commission meeting concluded.

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