:9/ll Classified Information

/ \L COMMISSION ON
TERRORIST ATTACKS ON THE UNITED STATES

Minutes of the February 10, 2004 Meeting

The Chair called the Commission to order at 9:10 a.m. All Commissioners were in
attendance. • ; \. Commissioner Ben-fVeniste^noved: to'approve the minutes. The Vice Chair

seconded the motion. The/minutes were approved, .

PDBs. As the Commission awaited delivery of the 17-p'age PDB summary drafted by the
Commission Review Team, Commissioner Gorelick described the history of the Team's
negotiations with the White House. \. , -

Commissioner Gorelick; reported that the exchange of letters last November had
apparently not produced a meeting of the rriihds with the, White house on the terms of
reference so there was ji prolonged negotiation leading to the approval of the summary
memo. The four-perso^i Revijew Team—consisting of the Chair'. Vice Chair.
Commissioner Gorelipk, andjthe Executive Director—studied thej \r Gorelick and [he Executive Director revi

additional PDB items; They initially identifiedjTpom this group as critical to the
Commission's investigation, j .

There were discussions aboujt the summaries ofthj , , |

were resolved through changes in form that did not affect the substance of the siirnman
The White House also disagreed with the Review Team's selection ofl

With both Commissioner Gorelick and the Executive Director having taken their own
sets of referencenotes for al{ of the articles, they also drafted a memo arguing for the
transfer ofthel [making separate arguments for each. Efforts to resolve the controversy
were unsuccessful. Finally the problem was resolved by changing the approach. Rather
than transferring }o the core group and then doing an itemized summary, the
team stepped back and tried to do a narrative overview of the flow of critical information
through the PDB for the entire universe of documents, including individual summaries of
some articles and references to scores of others. That narrative could refer to information
that was also circulated in the National Intelligence Daily or its successor, the Senior
Executive Intelligence Brief.

The White House finally and reluctantly agreed to accept this approach. It refused to
incorporate NID/SEIB information directly in a memo summarizing PDBs. The review
team therefore prepared a 'SEIB Companion,' cued to the PDB report and compiling
information to supplement it. There were other arguments about the form of the PDB

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the report might refer to a "senior administration official." But in all such cases
commissioners need only ask who the person is, and the review team will answer.

Commissioner Gorelick added that the Commission would receive the August 6 PDB
verbatim during the briefing from pieces of the PDB that appear in different places in the
report. She and the Executive Director stated that the text of the August 6 PDB could be
recreated; Commissioner Ben-Veniste said that this should be done in physical form. She
stated that the report does not itself list all the other strident threat headlines from the
summer of 2001, but the materials that would be provided would allow the headlines also
to be recreated. She concluded by stating that there were no disagreements among the
members of the Review Team.

The Chair thanked Commissioner Gorelick and the Executive Director for their hard
work. The Vice Chair stated that he and the Commission owed a huge debt of gratitude to
them for their efforts. He added that the White House lawyers had been helpful, but
ultimately Judge Gonzales was the only one dealing with the President, who became
increasingly involved in this process.

Commissioner Gorelick suggested that, since the President conveyed on Meet the Press
that the Chair and Vice had access to all of the PDBs, the Chair and Vice Chair should
pursue such access. She believed strongly that the Chair and Vice Chair should have
access to all PDB items requested by the Commission.

The Executive Director urged the Commission not to be misled by the amount of
attention given to PDBs by the public, press, and the Commission itself. He added that
the PDBs were just one tributary in a river of information to the presidents. He discussed
some of the other sources flowing to top officials in each administration.

Commissioner Ben-Veniste asked who else would receive this briefing beside the
Commission. The Executive Director stated that senior staff and designated team leaders
would likely have access to the PDB summary, but that the issue was not resolved in time
for the briefing that morning.

Commission Lehman asked about the impact of the recent Newsweek article on the
negotiations. The Vice Chair stated that the article nearly blew the negotiations apart. The
Judge showed the article to the President, who reportedly exploded. The Vice Chair
urged the Judge to keep his eye on the future; it was of mutual benefit to reach
agreement. The Vice Chair convinced the Judge to hold the briefing at the Commission's
offices; but they just didn't have time to work out the staff access issue.

Commissioner Ben-Veniste asked what the Commission's recourse would be if it wanted

more access. The General Counsel stated that the Commission can do what it wants, but
noted that this is the process the Commission agreed to pursue. Commissioner Gorelick
stated her belief that the Commission could not turn around and subpoena the White
House if it didn't like the briefing. The Vice Chair noted that the Commission is not
precluded from asking for more material on a case-by-case basis.

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Commissioner Roemer thanked the Review Team for their diligence and hard work. He
described the process as one of a four-level strainer, whereby information about the PDBs
had been filtered through four levels and eventually reached the Commission. He stated
that he had been in support of a subpoena several months before, and that now he was in
support of a subpoena for both the PDBs and the Review Team's notes. He disagreed
with both the agreement and its implementation. In his view, all ten Commissioners
should have access to the PDBs.

Commissioner Kerrey stated that he needs to get to the point at which he will feel
comfortable with the material. At this point, he didn't feel comfortable with the puzzle
approach. The families are looking for a vote on a subpoena and responding to them is
important.

The Vice Chair suggested that the Commission review the document before they address
these questions.

At 10:00 a.m., Commissioner Gorelick and the Executive Director presented the
classified PDB report in executive session. The Commission resumed a discussion about
the PDB process at approximately 12:45 p.m.

The General Counsel explained the process of a subpoena and its likelihood of success.
He reported that the Commission's outside lawyers contend that the Commission has a
pretty good argument. The White House, they believe, would take the case all the way to
the Supreme Court, thereby preventing the Commission from getting a timely decision.
The situation the lawyers envisioned was one in which the implementation of the
agreement had collapsed. Yet now that the White House had implemented the agreement
to the satisfaction of the Review Team, the Commission's position had weakened. The
Vice Chair stated his assumption that the White House would fight any subpoena hard.
He anticipated that the White House would run out the clock, and let the Commission go
out of business.

Commissioner Kerrey expressed his need to see the original report, adding that the
agreement, as implemented, obscures too much. The General Counsel stated that, for
better or worse, the Commission delegated the responsibility to the Review Team.
Commissioner Ben-Veniste expressed his belief that the Review Team was not
empowered to negotiate with the White House.

The Chair stated that reading what Commission Gorelick and the Executive Director
produced enables the Commission to do its job. Commissioner Gorton agreed and said
that he was satisfied with the report. He outlined four options:

1) File a subpoena for all the PDBs.

2) File a subpoena for a few PDBs.
3) File a subpoena for the Review Team's notes.
4) Reply to the Gonzales cover letter.

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Commissioner Gorton stated his preference for Option #4. He added that the Commission
had seen through the process, but that it raised questions. The Commission should state
precisely what would satisfy it and make the letter public, thereby inviting pressure on
the White House.

Commissioner Roemer moved to subpoena the PDBs. Commissioner Lehman seconded

the motion so that he could vote against it. Commissioners agreed to submit their
arguments in favor or opposition to the motion subsequent to the meeting.

Commissioner Roemer offered the following views in support of the motion subsequent
to the meeting:

1) The summaries did show some new information. The Commission should try to
understand the full texture and context of the documents.
2) If the Commission does not get more complete access, it reduces its ability and
credibility to make tactical and strategic recommendations.
3) If the Bush administration continues to assert that there was not warning, access
to the PDBs will enable Commissioners to prove or disprove that assertion. The
Commission should be able to make a judgment.
4) The Commission has a solid legal case with a reasonable chance of prevailing.
PDBs are not deliberative documents, not an EOP product, and are shared with
other officials besides the president.

The Vice Chair offered the following views in opposition to the motion subsequent to the
meeting and asked that a history of PDB negotiations be appended to the minutes:

• The Commission established a Review Team, including Commissioner Gorelick*

that reviewed all Presidential Daily Briefs responsive to the Commission's
document requests. The team did a superb job and prepared a detailed report for
Commissioners. The Commission now has a good understanding of information
provided to the President on al Qaeda and the events leading to September 11.

• He believes strongly that the Commission needs to support the work the Review
Team did. He wants to be on record in support of the work of Commissioner
Gorelick.

• The Commission reached an agreement with the White House three months ago.
Today, the Commission completed implementation of that agreement. You don't
ever get everything you want in an agreement, but the Commission got access to
every PDB it asked for, and the full Commission received a report on nearly 100
of them. The Commission has gotten the access it needs.

• A subpoena would not advance the Commission's interests.

o First, the agreement the Commission just reached provides it the access it
needed to fulfill its mandate, in his judgment;

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o Second, a subpoena would be contrary to that agreement;

o Third, he is doubtful that a subpoena—which the White House would
fight—will produce any outcome that advances the interests of the
Commission during the life of the Commission.

Commissioners Ben-Veniste, Kerrey, and Roemer voted in favor of the motion. The
Chair, Vice Chair, and Commissioners Fielding, Gorton, Lehman, and Thompson voted
against the motion. Commissioner Gorelick abstained.

The motion failed by a vote of 3-6-1.

Commissioner Gorton suggested that the Commission send a thorough and sharply
worded letter to the Judge. The Commission agreed.

Extension. The Chair reviewed the history and status of the Commission's request for an
extension. The Commission requested an extension on January 27 of at least 60 days.
Bills introduced in the House and Senate called for a six-month extension. The White
House came out in support of a two-month extension of the final report's due date, but
Speaker Hastert had stated his opposition to any extension.

Commissioner Fielding noted that the answer to the extension question lies with the
Speaker. Commissioner Thompson stated that Hastert was unlikely to support more than
a two-month extension. Commissioner Kerrey expressed his belief that the Commission
should not worry about the Speaker. He added that the Commission has created confusion
by not requesting a six-month extension. The Vice Chair agreed that there was confusion
on the Hill as to what the Commission's position is. He and the Chair supported 60 days,
but other Commissioners had lobbied for more time. He noted that both positions are
consistent with the motion passed at the last Commission meeting.

Commissioner Roemer agreed that Hastert is the key, and stated that it is imperative that
the White House communicate to the congressional leadership, including Hastert, what it
wants. The Vice Chair reported that Judge Gonzales had told the Commission not to
worry about the Speaker. Now that the White House supports an extension,
Commissioner Thompson recommended that the Commission call Hastert and ask if it
can count on support for a 60-day extension in the House if the Senate were to pass a bill
by unanimous consent. Commissioner Gorton added that the bill would not be brought up
by Senator Frist without unanimous consent.

Commissioner Gorelick stated that she compared the Commission schedules with and
without the extension. She noted that the Commission is not getting substantially more
time, and that the extension only translates into 20 additional days. The Executive
Director noted that the Commission had never publicly acknowledged its intentions to
disregard the May 27 deadline. Commissioner Gorelick stated that the Commission did
not ask for the time it needed. She added that she did not fully appreciate this at the last
meeting, and suggested that the Commission request a "real" 60-day extension.

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Commissioner Ben-Veniste was likewise concerned that the revised calendar only
restored ten of the 15 previously scheduled hearing days. He stated that the Commission
had voted on a 60-day statutory extension while the White House has proposed a 30-day
extension. Commissioner Roemer concurred with this assessment. The Vice Chair
clarified that the Commission had voted for a 60-day extension of the reporting date and
referred the Commission to the approved minutes and public statement by the Chair and
Vice Chair. Commissioner Ben-Veniste stated that, notwithstanding the minutes, it was
his clear understanding the vote had been on a 60-day statutory extension for both the
date of the report and the life of the Commission. Commissioners Gorton and Roemer
concurred.

The Vice Chair reported that the White House had conveyed its view to congressional
leaders. The White House had spoken to Frist and McConnell, and both agreed to a 60-
day extension. McCain said that he wanted to think about it. Commissioner Gorton
confirmed that this was the case based on his conversations with McConnell.

The Vice Chair stated that the White House opposes a six-month extension because they
do not believe the Commission can hold the report between the time it is completed and
the time it is released.

The Chair urged the Commission to adopt a practical approach, stating that this was not a
question of which extension was better or worse, but rather which extension the
Commission can get. The Chair reported that he was to meet with the families the
following day, and that he will need to explain the Commission's position on the
extension. He observed that the families will never be satisfied.

The Chair confirmed that the White House had stated its objection to extending
Commission activity past Labor Day. He stated that the Commission cannot put an
additional 30 days on the table and expect to reach an agreement with the President and
Congress. He believed that the Commission should pursue what it has been offered or
risk receiving no extension at all. The Vice Chair agreed. The Chair urged the
Commission to be unified on the extension question. Commissioner Fielding agreed,
stating that the Commission will not improve its situation if is public position on the
extension is inconsistent.

Commissioner Ben-Veniste expressed concern about the pre-publication review process.

The Vice Chair suggested that the report be drafted as soon as possible. Commission
Fielding agreed. Commissioner Gorelick urged the Commission to reconsider publishing
the report as a book due to time constraints. The Chair stated that it was important to have
the book in order to disseminate the Commission's work to the American people.
Commissioner Gorelick proposed that the Commission revise its internal calendar and
submit the report to the President and Congress on July 26. The Chair agreed that this
was an option and extended discussion ensued. Commissioner Gorelick added that it was
very credible to state the Commission cannot adhere to the calendar based on the PDB
experience. The Executive Director recommended that the Commission secure the "60-
30" extension and suggested that the question of how to revise the internal schedule was
a separate issue.

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Commissioner Thompson stated that there were reasons why the White House might not
trust the Commission if it reversed its position on several agreements such as the PDBs
and the extension.

The Vice Chair observed that there comes a point in every investigation in which one has
to accept that you won't get everything you would like. The Commission still has a
statutory mandate to fulfill, and he believes the Commission will produce a strong and
credible report. He expressed his desire that the Commissioners state their views in a way
that does not undermine the credibility of the report.

The Chair advised that the Commission maintain the following position: We continue to
need and want more time. The Commission would like the extension for which it asked
and will accept a 60-day extension.

POTUS and VP Meetings. The Executive Director reported that the Commission had
initiated conversations with the respective staffs of the four principals: Bush, Clinton,
Cheney, and Gore. Commissioner Roemer suggested that the Commission send letters to
all four, requesting that they meet with the Commission privately as well as testify
publicly. Commissioner Ben-Veniste agreed that the Commission should establish a
written record requesting a private meeting and politely invite them to appear at a public
hearing.

The Vice Chair stated that written requests made sense to him. He reported that the Judge
had spoken to the President, and that, at the time, the President was not ready to make a
decision. The Judge believed that the President would meet with the Commission. David
Addington, Counsel to the Vice President, conveyed that the Vice President would meet
with the Chair, the Vice Chair, and a notetaker.

Commissioner Gorelick stated that this arrangement was not tenable. She believed that,
given the complexity of the interview, staff needed to attend. The Chair, Commissioner
Thompson, and Commissioner Gorton agreed.

The Commission agreed to send letters to both presidents and vice presidents. The Chair
noted that the Commission will have to accept the date provided by their respective
offices, and it must be ready for these meetings once a date is chosen.

Additional Meetings. The Commission agreed to accept invitations to meet with

Secretary Rumsfeld and Director Mueller.

Presentations from Teams 2 and 4 were postponed until the February 24 meeting.
Commissioner Gorelick commended the work of both teams and urged the
Commissioners to review their respective materials.

The Chair adjourned the meeting at 3:52 p.m.

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Appendix: History of PDB Negotiations

I. Context \ There is no precedent for an investigative body outside of the Executiv

obtain and examine PresidentiaiDaily Briefs (PDBs).

• The legal ground is uncertain: as PC Circuit Judge Patricia Wald (a Democratic

appointee) put it in one opinion: •.'The 'state secrets' privilege is nearly absolute."

II. Negotiation of the PDB agreement

Negotiations with the White House on access, to the PDBs began in earnest in September,
and concluded in November. They took 3 rti^nths. The Commission did not get
everything it wanted, but it won important concessions:

• The Commission learned in September that a computer run checking the CIA's
database indicated that some 360 PDB\itfems were responsive to our document
request. \ The White House entered the negotiations 'thinking that just a bri

occurred on October 14) might be enough, f$r the Commission. The Commission
found the briefing highly unsatisfactory, aji&pushed for direct access to the PDB
items. \\, they said only the Chair and Vice 0imr could see PDB items. T

moved to the Chair, Vice Chair and two staff, finally, their position became four
individuals of the Commission's choosing. \, they said they might let the Commissioti.see one or two PDB

Finally, we got them to let the Commission to'se6Jn and to review the entire
group of 360 for possible addition to the group\of|

Initially, the White House proposed that only a senior CIA person was going to
review all 360 PDBs. The Commission moved them to one staffer, and then to
two individuals of the Commission's choosing. .

Initially, they said no notes. Then they agreed to a.process of note-taking.

Finally, they agreed to a process through which the 4 individuals of the
Commission's choosing can inform all 10 Commissioners*

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III. The Agreement Itself

To recap, the agreement ultimately included the following terms:

. \ Four .Commissioners.pr staff of the Commission's choosing to review thcj ]

\\..iterhs;''--. '"--...

• Of those 4, two would review the 360 total items for possible inclusion in the
smaller group of| j

> The 4 would repdrt to all Commissioners on the{_Jitems, plus any items moved
, from the large to the small group.

. IV. Negotiations on fnjplementation of the PDB agreement

\ implementation of the PDB agreement to'oJc from November to December:

\ While It is correct the Judge-.wrote to the.,Commission about "wide latitude" in the

\ preparation of a report back tb.the 10 Corrimissioners, he also wrote about a
\ "concise summary" of the results, of the review of PBD items.

, p The Judge also stated that he thought no items needed to be moved from the
\ larger group of all 360 items to the'sjnall group ofLJtems.

\ . The NSC Counsel, John Bellinger, indicated that he believed an appropriate

\t back tcXthe Commission would be a.few summary paragraphs in a one
or two page report.

o. The staff took immediate exception to the characterizations above and the
\r and Vice Chair made clear to the Judge that such an implementation of
the agreement would not be acceptable to the Commission.

• The Review Team prepared two memos, one reporting on the| jPDBs and one
asking foil {documents to be transferred from the large to small group for the
purpose of preparing summaries to inform all Commissioners.

• The White House rejected the memos, and rejected movement of PDBs from the
large to the small group.

• After long negotiations, it became clear that the White House would accept no
more than £j and then no more than I jof the PDBs moving from the large to
the small group. ^"^

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• After an impasse in which negotiations almost collapsed, the Commission and the
White House reached a deal on February 9 for the Review Team to brief all
Commissioners on a report 17 single-spaced pages in length.

V. PDB Report

The report implementing the PDB agreement included the following elements:

An itemized summary tnd discussioncoT^iearly 100 PDB items (exceeding the

total of^^andQreferenced earlier); , j_ ~

• Detailed statements of context, framing the report on the PDBs;

• A complete re-creation, word-for-word, of the August 6 PDB;

• ATI annex, compiled with the Senior Executive Intelligence Briefs (SEIBs),
providing more context and detail; and

• / A briefing in which Commissioner Gorelick and the Executive Director spelled

/ out specifics behind certain euphemisms written in the report.

VI. Conclusions

The bottom line here is that the Commission didn't get everything it wanted, but: ^)

I • The Commission moved the White House (from September to Novemoer)>fa/past

any agreement it would have accepted at the outset; and

• The Commission moved the White House (from November to February) to accept
a report far more detailed than what the White House had envisioned in the
November agreement.

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