NATIONAL COMMISSION ON

TERRORIST ATTACKS ON THE UNITED STATES

Minutes of the January 5, 2004 Meeting

The Chair called the Commission to order at 9:20 a.m. on January 5, 2004. The Chair,
Vice Chair, and Commissioners Ben-Veniste, Fielding, Gorelick, Gorton, Kerrey,
Lehman, and Roemer were in attendance.

Minutes. The Chair asked for approval of the minutes for the December 8, 2003
meeting. Commissioner Roemer asked that his three objections to the White House
guidelines be clarified for the record. Commissioner Fielding asked that the minutes
reflect his departure of the meeting prior to the discussion of interview guidelines.
Commissioner Gorelick submitted additional revisions to the Deputy Director. Upon
agreement with these changes, the minutes were approved.

Welcome. The Chair welcomed Senator Kerrey to the Commission.

Access to Detainees. The Chair reported that he, the Vice Chair, and senior staff had
met with DCI Tenet on December 23 to discuss several outstanding matters, including the
Commission's request for direct access to detainees. The Chair reported that the DCI
was firmly opposed to direct interrogation, but would consider giving the Commission
everything short of physical access. The DCI proposed that the Commission submit
questions and have the Agency's interrogators seek answers on the Commission's behalf.
The DCFs primary concerns were that of compromising operational security and
disrupting ongoing investigations.

Team Leader Dieter Snell distributed a memorandum outlining Team 1 A's argument for
direct access to seven key conspirators. He stated that, while there is a considerable
amount of circumstantial evidence assembled at the FBI, there is no substitute for direct
access to those involved in the 9/11 plot. He considered the DCFs "new face" objection
rather weak, contending that the Agency simply wants to hold the detainees very closely.

Commissioner Kerrey stated that the Commission must interview the conspirators and
not rely on secondary information from Agency interrogators. He suggested that the
Commission employ different language when discussing the matter; these individuals are
masterminds and conspirators, not simply detainees. Commissioner Kerrey added that the
Commission should have its own Arabic interpreter present at any interrogation.

Commissioner Ben-Veniste asked about the history of the Commission's efforts to arrive
at a solution. Snell explained that the Commission submitted an extensive list of follow-
up questions on October 14,2003, and a second memo on the interrogation process on
October 16, 2003. The Executive Director noted that the Agency's partial reply on
November 7 conceded that experts in certain areas, including FBI personnel, were not
conducting the interrogations. Snell added that the Agency's interrogation reports are
produced about six weeks after the actual interrogation.

COMMISSION SENSITIVE
 COMMISSION SENSITIVE

Commissioner Roemer asked if the Commission had access to the interrogators. Snell
replied that, heretofore, the Commission had been declined access. The Deputy Executive
Director noted that the DCI did mention the possibility of direct access to analysts and
interrogators at the December 23 meeting. Commissioner Roemer asked if the
Commission had received responses to the questions in the October 14 memo. Snell
responded that they had some answers, but often without the precision necessary to
develop a definitive account.

Commissioner Gorton asked if a compromise involving one-way glass would be

acceptable. Snell replied that it would not, but later conceded that this was a conceivable
fall-back option.

Armed with a list of unanswered plot-related questions, Commissioner Gorelick observed

that the Commission's most powerful argument may be that the Agency is not doing its
job. She added that it would be very problematic for the DCI if this argument were to
become public. Commissioner Lehman stated that he did not understand why the
Commission was taking such a soft approach with the DCI. Commissioner Gorelick
responded that the difference with this case—as opposed to FAA, NORAD, and New
York City—was that the Agency could claim that the Commission would undermine
national security. She underscored the tension between the Commission's mandate and
the operational needs of the USG.

Team Leader Doug MacEachin concurred with Commissioner Gorelick. He stated his
belief that the Commission needs to first demonstrate that the other options—submitting
questions, working with interrogators in real-time, etc.—are not sufficient.

The General Counsel stated that the Commission's statute isn't well designed for issuing
subpoenas to detained conspirators. Commissioner Ben-Veniste concurred and suggested
that the Commission compel the DCI's testimony on the matter at the upcoming hearing.
Commissioner Roemer suggested a variant of this approach: issuing a tough letter to the
DCI, following-up with a phone call, and, if necessary, making the letter public.
Commissioner Lehman agreed that the Commission must establish a clear record of
demanding access to these conspirators. Commissioner Ben-Veniste added that the
Commission must also be clear that it is out of time.

The Vice Chair asked if the Commission's pursuit of this request would impact other
aspects of its relationship with the DCI. The General Counsel replied that it would not.

The Vice Chair stated that he was willing to go back to the DCI and revisit the question.
He added that Tenet knew the request was coming on December 23 and that he was very
firm in his response. He underscored that the Commission should not expect the DCI to
reverse his position, and that it must know what its next steps would be. The Chair and
Vice Chair advised that any letter to the DCI be drafted in a manner that carefully
addresses classification concerns so as to not prevent its release to the public.

COMMISSION SENSITIVE
 COMMISSION SENSITIVE

Commissioner Kerrey asked if the congressional committees would support the

Commission's request. He noted that the Commission may invite trouble if it presents the
issue in national security terms, and suggested that it frame debate in terms of the
Commission's mandate. Commissioner Gorton observed that, without direct access to the
conspirators, the Commission will not be able to answer questions at the heart of its
mandate.

The Chair stated that the Commission had reached a consensus: The subpoena route
would not work, and the Commission should write a letter. He requested that all
Commissioners see a draft before it is sent. The Vice Chair added that the Commission
needs to state the DCI's argument precisely so as to not argue against a straw-man. He
suggested that the letter thank the DCI for recognizing the importance of the
Commission, but state that his proposal is not sufficient. In order to fulfill its mandate,
the Commission must make a credible assessment of the key conspirators.

Commissioner Kerrey moved to send a letter to the DCI requesting direct interrogation of
seven 9/11 conspirators. Commissioner Lehman seconded the motion. The motion carried
on a voice vote.

The Vice Chair and Commission Gorelick suggested that the Commission seek
reinforcement from third parties, particularly congressional leaders.

Declassification of Final Report. The Commission briefly discussed the process of

declassifying the final report. The Chair stated that the Commission was really going to
"push the envelope." The Vice Chair reported that both the White House Counsel and
DCI have suggested a "rolling" declassification process. The Executive Director stated
that the staff is establishing a process for getting this to work, including setting-up high-
level review teams and using detailed sourcing. He characterized the process as one of
pre-publication review, adding that both the Commission and Administration learned
lessons from the Joint Inquiry declassification experience.

FBI Briefing. John Pistole, Assistant Director of the FBI's Counterterrorism Division,
and Art Cummings, Section Chief of the International Terrorism Operations Section I,
conducted a SECRET-level presentation that illustrated how counterterrorism
investigations now work in the United States. Maureen Baginski, Executive Assistant
Director of the FBI's Office of Intelligence, delivered a brief presentation on progress
made in establishing that office and the FBI's overall approach to its intelligence mission.

Global Agreement with White House. Commissioner Thompson joined the discussion
via telephone.

The Chair stated that the purpose of the global agreement was to reach a settlement on all
outstanding access issues with the White House and liberate the Commission from
protracted process discussions. Commissioner Fielding took the lead in negotiating the
agreement, working with the Chair, Vice Chair, and staff. Neither side believed that the

COMMISSION SENSITIVE
 COMMISSION SENSITIVE

agreement was perfect. Staff provided the Commission with list of questions and answers
regarding the agreement.

Commissioner Kerrey stated that he had concerns about each of the four parts of the
agreement. He noted that in the first section, the Commission appears to surrender its
rights to request additional documents. Commissioner Ben-Veniste concurred and asked
if the sentence could be removed. The Executive Director explained that the purpose of
the sentence was to prevent blanket document requests through the "front door"; the
understanding is that the Commission would be able to request specific documents going
forward.

Commissioner Fielding noted that the first section was the hardest to negotiate. He
cautioned that if the Commission seeks to revise any section of the agreement, it may
open up the entire negotiation. Commissioner Lehman commended Commissioner
Fielding for his work on the agreement. He advised against reopening the negotiation and
recommended that the Commission accept the settlement.

Commissioner Roemer stated that he was strongly opposed to the agreement. Regarding
the second section on meetings with EOF officials, he inquired as to why the
Commission would have access to only a "limited" number. Commissioner Gorelick
stated that, practically, this will not be a significant problem as there are not so many
people that the Commission intends to interview, but she did not understand why the
Commission had to so commit in writing. She added that this agreement would not be
sustainable in the court of public opinion.

Regarding the third section, Commission Ben-Veniste argued that there was precedent for
EOF officials testifying under oath. Commissioner Gorelick stated that, while the
Commission may decide on its own not to do so, she felt uncomfortable with giving up
the Commission's ability to request the oath. The Commission should be able to seek
testimony under oath, even if the witness refuses to do so. Commissioner Ben-Veniste
concurred.

Commissioner Roemer asked why Bush administration officials will not testify under
oath when, for example, Dick Clarke had already done so. The Executive Director replied
that different standards apply to former officials. Commissioner Roemer asked if the
Commission would ask Dr. Rice to testify under oath and wondered when the interview
would be scheduled. The Executive Director stated that the interview would be scheduled
for late January or early February. Commissioner Gorelick advised that the Commission
interview Dr. Rice and request that she testify under oath if there appears to be any
factual conflict.

Commissioner Kerrey stated that this agreement will end confrontation with the White
House; he felt comfortable with the first two sections, but not the second two.
Commissioner Gorton stated that the sections on documents and foreign leaders are
reasonable. He recommended that the Commission accept those sections, and deal with
interviews and hearings separately.

COMMISSION SENSITIVE
 COMMISSION SENSITIVE

The Vice Chair thanked Commissioner Fielding for his hard work. He acknowledged that
there is ambiguous language in the agreement, but stated that the Commission still gets
something significant—access to more documents and key people. He outlined four
options:

1. Accept the agreement.

2. Reject the agreement.
3. Go back to the White House and seek changes.
4. Operate under guiding principles set forth in the agreement without submitting to
them in writing.

The Vice Chair noted that the Commission was running against the clock. The
Commission will not be judged by the number of hearings or technical points with the
White House. It will be judged by the quality of the final report. His impression was that
the agreement was a package and inseparable. Commissioner Fielding explained that the
agreement was written down because, after the PDB negotiation, they thought it would be
better to get things down on paper. He added that his impression, given the events of the
last week, was that the agreement was now one package.

Commissioner Ben-Veniste stated that the Vice Chair's fourth option makes the most
sense. He suggested that the Commission agree to the sections on documents and foreign
leaders. Commissioner Lehman stated that the agreement was a good compromise, and
that it did not preclude the Commission from getting what it needs. He added that the
EOP's concerns aren't fictitious; they have to be able to protect candid advice.

Commissioner Roemer moved to vote on the global agreement in its entirety.

Commission Lehman seconded the motion. The Chair stated that he did not want an up or
down vote. The Vice Chair added that he wanted to proceed on a consensus basis.
Commissioner Gorton agreed, stating that the Commission should consider each section
individually. Commissioner Ben-Veniste concurred.

The Executive Director argued for the severability of the public hearing section; since the
matter is not crucial to decide on either side right now, the Commission should take it off
the table. Commissioner Fielding stated that he did not believe the agreement was
severable from the White House point of view. He stated that he is committed to voting
for the agreement as negotiated. He reiterated that the agreement provides the
Commission with all of the access it needs.

Commissioner Kerrey moved to accept the global agreement with two stipulations:

1. Agree with the EOF meetings section, but take exception to the administration of
oaths during a factual dispute in real time
2. Defer on public hearings section without prejudice

COMMISSION SENSITIVE
 COMMISSION SENSITIVE

Commissioner Gorton seconded the motion. Commissioner Roemer withdrew his motion
for a vote on the original agreement, and stated his opposition to the Kerrey motion
because it gives up the Commission's right to interview EOF witnesses under oath.

The motion carried by voice vote. The Commission reiterated its unanimous thanks to
Commissioner Fielding.

Meetings with the Presidents and Vice Presidents. The Chair noted that, until that
point, the Commission had not formally discussed the issue of interviews with Presidents
Bush and Clinton and Vice Presidents Cheney and Gore. Accordingly, this was the public
position that he and the Vice Chair had taken. The Commission reached a consensus that
all four meetings should be sought. The Vice Chair stated that their press guidance would
now change; the matter has been discussed and the Commission is seeking the meetings
with each of them. Commissioner Gorelick noted that these meetings will be difficult to
schedule simply from a logistical point of view, and so the Commission needs to
schedule them now. Commissioner Roemer urged that the Commission send letters
immediately. Commissioner Fielding advised that the Commission discuss the matter
with the White House as a courtesy before any letters are sent.

Extension of Statutory Deadline. The Chair reported that the White House does not
support an extension.

Commissioner Kerrey stated his belief that the Commission will be "DO A" by the
election. Commission Lehman disagreed, adding that the Commission's
recommendations will find their way into both party platforms. The Chair noted that the
Commission has set funds aside for a roll-out during the final weeks.

Commissioner Roemer stated that there are three compelling reasons for an extension.
First, presidential politics will poison the Commission's work, and it would be better to
get outside the election season. Second, staff reports to him that the Commission would
have a great, rather than good, report with more time. Third, the Commission should be
on the record as having asked for an extension.

Commissioner Gorelick supported seeking additional time. She observed that every time
the Vice Chair responds to a question, he adds the caveat that the clock is ticking. She
believes the Commission will do a good report and has a great staff, but it will be in a
better position having asked for more time.

Commissioner Ben-Veniste noted that his position was apolitical. Given what the
Commission is expected to do, he believes that it cannot be done in accordance with the
current deadlines. He recounted one team leader's description of a recent staff meeting at
which there was a "fire sale" on team tasks, including hearings, monograph deadlines,
and monographs themselves. Commissioner Ben-Veniste stated that the Commission
needs those hearings, as well as the opportunity to follow-up and work on conclusions
and recommendations. The Vice Chair sought clarification: did he suggest the
Commission ask for additional time or take additional time? Commissioner Ben-Veniste

COMMISSION SENSITIVE 6
 COMMISSION SENSITIVE

replied that the Commission should seek both—asking for two months, but settling for
six months. Tightly calibrated deadlines were already slipping, which, to Commissioner
Ben-Veniste, indicated the need to request additional time.

The Vice Chair stated that he and the Chair had asked the Executive Director to act and
plan on the basis of the law. The Chair stated that until an extension is certain, the staff
cannot plan otherwise. The Executive Director agreed that the Commission needed a plan
to comply the law. The staff is currently planning for a June 23 release—slipping one
month from the statute. He noted further that, by the time the Commission ends, it must
only have a report, which requires significant time for Commissioners to work on the
report's substance. Although not all staff could remain on board until July, a critical mass
could remain.

The Vice Chair noted that Congress would be back in session on January 20; if the
Omnibus bill fails, the Commission would have a chance with something in the CR.
Commissioner Gorton expressed skepticism over the Commission's legislative options in
January. The Vice Chair added that the Commission has two options: informally extend
within the parameters of the statute or seek a new law.

Commissioner Fielding stated that his position had not changed. Commissioner
Thompson stated that he was opposed to an extension.

Commissioner Gorton stated his belief that the Commission's report will be poisoned by
the political process and added that December 15 would be the ideal release date.
Although the Commission may lose staff, he concluded that the goal should be to
produce the best possible report.

Commissioner Fielding suggested that the Commission consult with the White House:
Does the Administration realize that the Commission is considering a late-July release?
Do they really want the report to be released on the eve of the Democratic National
Convention? Commission Thompson inquired as to how long the White House can delay
the declassification of the report.

The Executive Director noted that the staff was not homogeneous on the issue of an
extension, but the Deputy Director added that there was growing sentiment for a 2-3
month extension. The Chair stated that the Commission needs to know who on the staff
can stay and for how long. He requested that the senior staff conduct a survey.

The Chair and Vice Chair agreed to meet with Judge Gonzales on Tuesday or Wednesday
to discuss the global agreement and the need for an extension.

Upcoming Hearing Plans. The Chair stated that the question of hearings was linked to
the extension. He added that it takes 4-5 hours of staff prep time for every hour of a
hearing. After consulting team leaders, the Executive Director recommended a modified
hearing plan—two in January, three in March, and four in April—paring back the
schedule from 15 days to 9 days.

COMMISSION SENSITIVE
 COMMISSION SENSITIVE

Commissioner Roemer observed that the Commission was being asked to choose
between hearings and the report. He asked why the January hearing included so many
low-level witnesses. The Executive Director responded that this agenda represented the
staffs best judgment. The Deputy Executive Director added that many of these witnesses
are the accountable officials who set policy or are establishing priorities.

The Vice Chair stated that he was not personally convinced that the value of public
hearings outweighed the value of more time for the staff to work on the report. He
suggested that the Commission focus on the activities from which it derives the most
value for the purpose of producing the final report.

Commissioner Gorelick expressed concern over the fact that the Commission's hearings
have not had a great deal of attention and added that the Commission needs to show what
it has accomplished. Commissioner Ben-Veniste requested materials for the hearing as
soon as possible.

Public Relations Firm. The Chair stated his desire to hire a firm to handle the roll-out of
the report. The Executive Director reported that the Commission had received offers from
two firms—Widmeyer and Powell Tate—but that the staff was open to other suggestions.
Commissioner Lehman recommended that the Commission consider a non-beltway firm.

PDB Report. Commissioner Gorelick reported that she and the Executive Director hoped
to present two documents to the Commission. The first describes the core group of PDB
articles in context. The second makes the argument for the transfer of additional articles
from the large group to the core group. Both documents have been drafted, and
Commissioner Gorelick planned to review and finalize them this week.

Commissioner Gorelick commented on the extent of overlap between the PDBs and
SEIBs. She recommended that Commissioners review the SEIBs, which she considered
quite instructive.

Recusals. At the request of Commissioner Kerrey, the Commission discussed this matter
in a closed executive session.

The Chair adjourned the meeting at 5:15 p.m.

COMMISSION SENSITIVE