V:.

NATIONAL COMMISSION ON
TERRORIST ATTACKS ON THE UNJ^ED STATES j • ,
<vG> a t>T. *->
i >•/
Minutes of the February.^, 2004 Meeting •
/
The Chair called the Commission to order/at 9:10 a.m. All Commissioners were in
attendance.

Minutes. Commissioner Ben-Verffste moved to approve the minutes. The Vice Chair
seconded the motion. The minmes were approved.

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

Commissione/'Gorelick reported that the exchange of letters last November had

apparently trot produced a meeting of the minds with the White House on the terms of
reference/The four-person Review Team—consisting of the Chair, Vice Chair,
Commissioner Gorelick, and the Executive Director—studied the] |
Commissioner Gorelick and the Executive Director reviewed and evaluated about 340
additional PDB items. They initially identified! F1"0"1 tn's group as critical to the
Commission's investigation.
y
There were various arguments about the summaries of the] I
that were resolved through changes in form that did not affect the substance of the
summaries. The White House also disagreed with the Review Team's selection of| |

With both Gorelick and Zelikow haying taken their 1 'Own sets of reference notes for all of
the articles, they also drafted a memo arguing for .the transfer of thj I making separate
arguments for each. Efforts to resolve the controversy were unsuccessful. Finally the
problem was resolved by changing the approach.. Rather than transferring to
the core group and then doing an itemized surnrriary, the tearn s.tepped.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 jo information' that was also circulated in the
National Intelligence Daily or its successor/the Senipi; Executive Intelligence Brief.

The White House finally and reluctahtly/iigreed t#accept this approach. It refused to
incorporate NID/SEIB information directly in a jrierao summarizing PDBs. The review
team therefore prepared a 'SEIB Companion/.cu.ed to the PDB report and compiling
information to supplement it. There Were pther;arguments about the form of the PDB
report, including matters like naming particular officials who asked questions. So instead

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

Commissioner Gorelick added^nat the Commission woiiJdreceTve the August 6 PDB

verbatim during the briefing/ She stated that the report/floes not itself list aft- the other
strident threat headlines from the summer of 2001, but the materials that would be
provided would allow that to be recreated. She concluded by stating that there were no / 0
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
p»»ue such access. She believed sliuiigly that the Chair and Vice Chair should have <,
aeccss to all TDD iiuns i equaled by the Gemmi^km-A.

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
statin frp.r Helipf thnt thr^ 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.

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

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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
i 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.

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

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

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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 Hasten 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.

CommissionerCrorelick stated that she compared the Commission schedules^vitn and

without the'extension. She noted that the Commission is not getting substantially more
that the extension only translates into 20 additional daysxThe 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 tha£rhe 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.

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 constraint^ The Chair stated that it was important to have
the book in order tojaisseminate the Commi sion's work to the American people,
Commissioner Gorelick proposed that the C mmission revise its internal calendar and
submit the report to the President and Congr ;ss on July 26. She added that it was very
•credible to state me Commission cannot adh ;re to the calendar based on the PDB
experience. The/Executive Director recommended that the Commission secure the "60-
30" exjensionyand suggested that the question of how to revise the internal schedule was
a separate issjue.

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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 ^Jr

and will accept a 60-day extension^, ^^r-^*. M c>-.u

s*A* »*t, ^T~~
POTUS and VP Meetings. The Executive Director reported that fh~e~CT5mrmssion
initiated conversations with the respective staffs of the four principals: Bush, Clintcfn,
Cheney, and Gore. Commissioner Roemer suggested that the Commission send letters
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 Executive

obtain and examine PresidentiaiiDaily Briefs (PDBs).

• The legal ground is uncertain: as DC 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 ninths. The Commission did not get
everything it wanted, but it won important cOrtCessions:

• 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 briefi

occurred on October 14) might be enough for the Commission. The Commission
found the briefing highly unsatisfactory, ana1 pushed for direct access to the PDB
items. \, they said only the Chair and Vice Qtiwr 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.

Initially, they said they might let the Commission .see one or two PDB items.
Finally, we got them to let the Commission to see,
s e 6 | | and to review the entire
group of 360 for possible addition to the group\pf u
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. \, they said no notes. Then they agreed to a.process of note

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. TJie Agreement Itself .

\ , Tcrrecap, the ag'fee.rnent ultimately included the following terms:

\ V Four Cornrnissioners.pr staff of the Commission's choosing to review thej ]

\; \.

\ • Ofthose 4. two would review the 360 total items for possible inclusion in the
smaller group of| | • ..

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

IV. Negotiations on Implementation of the PDB agreement

,1 implementation of the PDB agreement tool? from November to December:

\ While it is coirect the Judge.wrote to the.Commission about "wide latitude" in the

\n 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'small group of! Items.

o \e NSC Counsel, John Bellinger, indicated that he believed an appropriate

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

o\e staff took immediate exception to the characterizations above and the
Chair 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 prepare*! two memos, one reporting on the£]PDBs 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 \\d then no more than I lof 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 (ind discussion<6Tnearly 100 PDB items (exceeding the
total ofj land|~1referenced earlier!; , j_ uJLtiuV\^ jt f~L*T I iCi~n
—- ' %
• 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: ^)

/ • The Commission moved the White House (from September to November)>forpast

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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 NATIONAL 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.

Minutes. Commissioner Ben-Veniste moved to approve the minutes. The Vice Chair
seconded the motion. The minutes were approved.

PDBs. As the Commission awaited delivery of the 17-page 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 minds with the White House on the terms of
reference so there was a prolonged negotiation leading to the approval of the summary
memo. The four-person Review Team—consisting of the Chair, Vice Chair.
Commissioner Gorelick, and the Executive Director—studied the|_
Commissioner Gorelick and the Executive Director reviewed and evaluated about 340
additional PDB items. They initially identified! [from this group as critical to the
Commission's investigation.

There were discussions about the summaries of th

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

With both Gorelick and Zelikow having taken their own sets of reference notes for all of
the articled, they also drafted a memo arguing for the transfer ofthj I making separate
arguments for each. Efforts to resolve the controversy were unsuccessful. Finally the
problem was resolved by changing the approach. Rather than transferring] |to
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
report, including matters like naming particular officials who asked questions. So instead

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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 by the Executive Director reading from the team's memo
and interlineating relaflct SEIBjm^eftak 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. Commissioner Gorelick stated that the report also does
not itself list all the other strident threat headlines from the summer of 2001, but the
materials that would be provided would allow that to be recreated. She concluded by
stating that there were no disagreements among the members of the Review Team as to
how the report was drafted.

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
seek such access.

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
said that it would seem inconsistent with the agreement with the White House for the
Commission to issue a subpoena 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.
Outside counsel based their analysis on a situation in which 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.

Commissioner Kerrey offered the following views in support of the motion subsequent to
the meeting:
s\\) The value of having aW Commissioner read the PDBs is that collectively the

Commission is much/more likely to take notice of the facts it needs to get the full
and complete accour ting the law requires.
2) The Commission Re view Team, which did work long hours and did superb work,
no only was not give* "wide latitude" as the White House promised, but also was
give very restrictive instructions on what their report could contain. As a
consequence, the report was confusing and incomplete, and does not give all
Commissioners what they need to make informed decisions.
3) Even in its intentionally confusing state, the report of the PDBs brought back to
the Commission discloses key facts that are enormously important in several
ways, and will affect who the Commission invites as witnesses as well as the
details of the questions the Commission will ask. It must be clear to most
Commissioners from a brief reading of the summary that the Commission will
need to recall some who have previously testified.
4) For these reasons, Commissioner Kerrey voted to subpoena these documents.

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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:

1) 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.
2) 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.
3) 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.
4) A subpoena would not advance the Commission's interests.
• First, the agreement the Commission just reached provides it the
access it needed to fulfill its mandate, in his judgment;
• Second, a subpoena would be contrary to that agreement;
• 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

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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 for its work from the extension, and that the extension only translates into 20
additional days for Commission work. 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
when it agreed to accept a 60-day extension for the report deadline but only a 30-day
extension of its statutory life. She added that she did not fully appreciate at the last
meeting that the Commission was not intending to seek a true 60-day extension and
suggested that the Commission do so.

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

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following day, and that he will need to explain the Commission's position on the C~^
extension. He observed that tho familica 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 on July 26 due to time constraints, but rather submit the report for
pre-publication review on that date. 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 itsJnterrlaTcalendar and
submit the report to the President and Congress on Ju^y^6rThe Chair agreed that this
was an option and extended discussion ensued. Sfe^added that the Commission cannot
adhere to the calendar based on the PDB experience and other similar delays. 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.

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 of time in which to submit a report.

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 inviting them to appear at a
public hearing.

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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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 i9/ll Classified Information

; |]>foTJpNAL COMMISSION ON
TERRORIST AIPTACKS ON THE UNITED STATES
Miniiies ofahefybruary 10, 2004 Meeting

The Chair called the Commission to'order at 9:10 a.m. All Commissioners were in
attendance. ; \

Minutes. Commissioner ^enfVenistey^noved.to approve the minutes. The Vice Chair

seconded the motion. The mmutes wefe approved,

PDBs. As the Commission awaited delivery of trie i7-page PDB summary drafted by the
Commission Review Team, CJ:ommissiori,e.r Gorelick described the history of the Team's
negotiations with the White House. \ , ,

Commissioner Gorelicki 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 a prolonged negotiation leading to the approval of the summary
memo. The four-persop Revijew Team—consisting of the Chair: Vice Chair.
Commissioner Goreliqk, and|the Executive Director—studied thef
Commissioner Gorelick and the Executive Director reviewed and evaluated about 340
additional PDB items/ They initially identifiecj\|from this grejup as critical to the
Commission's investigation.! ^"^

There were discussiqns about the summaries ofthj |

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

With both Commissioner Gorelick and the Executive Director having taken their own
sets of referencenbtes for alj of the articles, they also drafted a memo arguing for the
transfer o f t h e j [ m a k i n g 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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report, including matters like naming particular officials who asked questions. So instead
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 by the Executive Director reading from the team's memo
and interlineating the SEIB, which the Commission has. 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. Commissioner Gorelick stated that the
report also does not itself list all the other strident threat headlines from the summer of
2001, but the materials that would be provided would allow that to be recreated. She
concluded by stating that there were no disagreements among the members of the Review
Team as to how the report was drafted.

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
seek such access.

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
said that it would seem inconsistent with the agreement with the White House for the

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Commission to issue a subpoena 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.

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 on the PDB issue. However, 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. Moreover, outside counsel based their analysis on a situation in
which implementation of the agreement had collapsed. Now that the White House has
implemented the agreement to the satisfaction of the Review Team, the Commission's
position in subpoenaing the PDBs would be weaker. 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.

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3) File a subpoena for the Review Team's notes.

4) Reply to the Gon/ales cover letter.

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, which can best be
achieved by access by all 10 Commissioners and relevant staff to the documents.
2) If the Commission does not get more complete access, it reduces its ability and
credibility to make tactical and strategic recommendations. Judgments about the
quality of analysis and warning by the Intelligence Community can best be made
when the Commission has access to the entirety of the stream of reporting to the
President, of which the PDBs are the most sensitive and most important. Better
recommendations will flow from complete access.
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 state authoritatively as a group often and make a
judgment about such an assertion.
4) The Commission has a solid legal case with a reasonable chance of prevailing.
PDBs are not deliberative documents and therefore should not fall under an
assertion of Executive privilege. Moreover, they are not Executive Office of the
President documents, and they are shared with other officials besides the president
outside the White House. While the Commission had an agreement on terms of
access to PDBs, it is certainly the right of the Commission to assert that such
agreement did not provide the access necessary to fulfill the statutory
requirements of the Commission's mandate.

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

1) The value of having all Commissioner read the PDBs is that collectively the
Commission is much more likely to take notice of the facts it needs to get the full
and complete accounting the law requires.
2) The Commission Review Team, which did work long hours and did superb work,
no only was not given "wide latitude" as the White House promised, but also was
give very restrictive instructions on what their report could contain. As a

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consequence, the report was confusing and incomplete, and does not give all
Commissioners what they need to make informed decisions.
3) Even in its intentionally contusing state, the report of the PDBs brought back to
the Commission discloses key facts that are enormously important in several
ways, and will affect who the Commission invites as witnesses as well as the
details of the questions the Commission will ask. It must be clear to most
Commissioners from a brief reading of the summary that the Commission will
need to recall some who have previously testified.
4) For these reasons, Commissioner Kerrey voted to subpoena these documents.

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:

1) What Commissioners Roemer and Kerrey argue for is desirable and a sound
way to proceed, the question is, however, how does the Commission achieve
it? The Commission has tried hard to reach that outcome and has achieved the
agreement implemented by the review team.
2) 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.
3) 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.
4) 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.
5) A subpoena would not advance the Commission's interests.
• First, the agreement the Commission just reached provides it the
access it needed to fulfill its mandate, in his judgment;
• Second, a subpoena would be contrary to that agreement;
• 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.

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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 for its work from the extension, and that the extension only translates into 20
additional days for Commission work. 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
when it agreed to accept a 60-day extension for the report deadline but only a 30-day
extension of its statutory life. She added that she did not fully appreciate at the last
meeting that the Commission was not intending to seek a true 60-day extension and
suggested that the Commission do so.

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

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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.

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 on July 26 due to time constraints, but rather submit the report for
pre-publication review on that date. 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. Commission Gorelick added that the
Commission cannot adhere to the calendar based on the PDB experience and other
similar delays. 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.

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.

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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 of time in which to submit a report.

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 inviting 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

Context

There is no precedent for an investigative body outside of the Executive Branch to

obtain and examine Presidential Daily Briefs (PDBs).

The legal ground is uncertain: as DC 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 months. 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 items were responsive to our document
request.

• The White House entered the negotiations thinking that just a briefing (as
occurred on October 14) might be enough for the Commission. The Commission
found the briefing highly unsatisfactory, and pushed for direct access to the PDB
items.

• Initially, they said only the Chair and Vice Chair could see PDB items. Then they
moved to the Chair, Vice Chair and two staff. Finally, their position became four
individuals of the Commission's choosing.

• Initially, they said they might let the Commission see one or two PDB items.
Finally, we got them to let the Commission to seel land to review the entire
group of 360 for possible addition to the group ofl

• Initially, the White House proposed that only.a senior CIA person was going to
review all 360 PDBs. The Commission m0Ved them to one staffer, and then to
two individuals of the Commission's chpbsing.

• 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 inforjn all 10 Commissioners.

9/11 Classified Information

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 COMMISSION SENSITIVE

III. The Agreement Itself

To recap, the agreement ultimately included the following terms:

• Four Commissioners or staff of the Commission's choosing to review thej I

items;

• Of those 4, two would review the 360 total items for possible inclusion in the
smaller group ofl I

• The 4 would report to all Commissioners on the^Jitems, plus any/items moved

from the large to the small group. /

IV. Negotiations on Implementation of the PDB agreement

Implementation of the PDB agreement took from November to December:

• While it is correct the Judge wrote to the Cojnmission about "wide latitude" in the
preparation of a report back to the 10 Commissioners, he also wrote about a
"concise summary" of the results of the rev/iew of PBD items.

o The Judge also stated that he thought rio items needed to be moved from the
larger group of all 360 items to the small group ofTj items.

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

report back to the Corhmission would be a few'summary paragraphs in a one
or two page report, j / /

o The staff took immediate exceptiori to the characterizations above and the
Chair and Vice Chair ijiade clear to the Judge that such an implementation of
the agreement would not be acceptable tp/the Commission.

• The Review Team prepared two merhos, orie reporting on the| |pDBs and one
asking foiTJdocuments to ibe transferred/from the large to small group for the
purpose oipreparingsummaries to jnfoqfi all Commissioners.

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

• After longneeotiations,,it beqame clear that the White House would accept no
more than|__]and then no mote than] |ofthe PDBs moving from the large to
the small group. ""--... \>

"9/11 Classified Information

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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 and discussion of nearly 100 PDB items (exceeding the
total oij |and||referenced earlier);

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

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

• An 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 \e bottom line here is that the Commission didn't get everything it wanted, bu

• The Commission moved the White House (from September to November) far 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. \1 Classified Information

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 UNCLASSIFIED
FAX COVER SHEET

To: Tim Roemer Fax No.: (703) 759-7>44

From: Stephanie Kaplan Main Line: (202)331-1125

Special Assistant Unclassified Fax: (202) 296-5545
9-11 Commission Email: skaplan@9-11 commission.gov

Date: March 1, 2004 Pages (including cover): 9

Attached are the materials you requested.

Also, I wanted to let you know that I misspoke about the minutes just now. As Chris indicated, Mr.
Hamilton did decide to keep the appendix in the minutes. Per Chris, below are your revised comments. If
you approve, we will distribute a version with this text tomorrow:

"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, which can best be achieved by access by all 10
Commissioners and relevant staff to the documents.
2) If the Commission does not get more complete access, it reduces its ability and credibility to make
tactical and strategic recommendations. Judgments about the quality of analysis and warning by the
Intelligence Community can best be made when the Commission has access to the entirety of the
stream of reporting to the President, of which the PDBs are the most sensitive and most important.
Better recommendations will flow from complete access.
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 state
authoritatively as a group often and make a judgment about such an assertion.
4) The Commission has a solid legal case with a reasonable chance of prevailing. PDBs are not
deliberative documents and therefore should not fall under an assertion of Executive privilege.
Moreover, they are not Executive Office of the President documents, and they are shared with other
officials besides the president outside the White House. While the Commission had an agreement on
terms of access to PDBs, it is certainly the right of the Commission to assert that such agreement did
not provide the access necessary to fulfill the statutory requirements of the Commission's mandate."

We'll be in early as well in case you have any changes.

TEL (202) 331-4060

FAX (202) 296-5545
www.9-llcommission.gov
 COMMISSION SENSITIVE

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. i-l^^^a^e^

The General Counsel expmined 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,
i ^utside counsel based their analysis on a situation in which implementation of the
agreement had collapsed. ¥et^ow that the White House haff implementgd the agreement^x ^ -ln ,,.,
to the satisfaction of the Review Team, the Commission's positionAtfcFweakehed. The j l
Vice Chair stated his assumption that the White House would fight any subpoena hard. /7\$
He anticipated that the White House would run out the clock, and let the Commission go „
out of business. rP'J S

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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 NATIONAL COMMISSION ON
TERRORIST ATTACKS ON THE UNITED STATES

Minutes of the February JO, 2004 Meeting

The Chair called the Commission to order at 9:10 a.m. All Commissioners were in
attendance.

Minutes. Commissioner Ben-Veniste moved to approve the minutes. The Vice Chair
seconded the motion. The minutes were approved.

PDBs. As the Commission awaited delivery of the 17-page 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 minds with the White House on the terms of
reference so there was a prolonged negotiation leading to the approval of the summary
memo. The four-person Review Team—consisting of the Chair, Vice Chair,
Commissioner Gorelick, and the Executive Director—studied thj
Commissioner Gorelick and the Executive Director reviewed and evaluated about 340
additional PDB items. They initially identific<||from this group as critical to the
Commission's investigation.

There were discussions about the summaries of the! I

were resolved through changes in form that did not affect the substance of the sutrtmflrip.q
The White House also disagreed with the Rftvi^w Team's g^lpotmn r>f +hJ j

With both Commissioner Gorelick and the Executive Director having taken their own
sets of reference notes for all of the articles, they also drafted a memo arguing for the
I I making separate arguments for each. Efforts to resolve the controversy
were unsuccessful. Finally the problem was resolved by changing the approach. Rather
than transferring! In 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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report, including matters like naming particular officials who asked questions. So instead
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 by the Executive Director reading from the team's memo
and interlineating the SEIB, which the Commission has. 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. Commissioner Gorelick stated that the
report also does not itself list all the other strident threat headlines from the summer of
2001, but the materials that would be provided would allow that to be recreated. She
concluded by stating that there were no disagreements among the members of the Review
Team as to how the report was drafted.

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
seek such access.

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
said that it would seem inconsistent with the agreement with the White House for the

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Commission to issue a subpoena 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.

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 on the PDB issue. However, 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. Moreover, outside counsel based their analysis on a situation in
which implementation of the agreement had collapsed. Now that the White House has
implemented the agreement to the satisfaction of the Review Team, the Commission's
position in subpoenaing the PDBs would be weaker. 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.

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3) File a subpoena for the Review Team's notes.

4) Reply to the Gonzales cover letter.

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, which can best be
achieved by access by all 10 Commissioners and relevant staff to the documents.
2) If the Commission does not get more complete access, it reduces its ability and
credibility to make tactical and strategic recommendations. Judgments about the
quality of analysis and warning by the Intelligence Community can best be made
when the Commission has access to the entirety of the stream of reporting to the
President, of which the PDBs are the most sensitive and most important. Better
recommendations will flow from complete access.
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 state authoritatively as a group often and make a
judgment about such an assertion.
4) The Commission has a solid legal case with a reasonable chance of prevailing.
PDBs are not deliberative documents and therefore should not fall under an
assertion of Executive privilege. Moreover, they are not Executive Office of the
President documents, and they are shared with other officials besides the president
outside the White House. While the Commission had an agreement on terms of
access to PDBs, it is certainly the right of the Commission to assert that such
agreement did not provide the access necessary to fulfill the statutory
requirements of the Commission's mandate.

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

1) The value of having all Commissioner read the PDBs is that collectively the
Commission is much more likely to take notice of the facts it needs to get the full
and complete accounting the law requires.
2) The Commission Review Team, which did work long hours and did superb work,
no only was not given "wide latitude" as the White House promised, but also was
give very restrictive instructions on what their report could contain. As a

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consequence, the report was contusing and incomplete, and does not give all
Commissioners what they need to make informed decisions.
3) Even in its intentionally contusing state, the report of the PDBs brought back to
the Commission discloses key facts that are enormously important in several
ways, and will affect who the Commission invites as witnesses as well as the
details of the questions the Commission will ask. It must be clear to most
Commissioners from a brief reading of the summary that the Commission will
need to recall some who have previously testified.
4) For these reasons, Commissioner Kerrey voted to subpoena these documents.

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:

1) What Commissioners Roemer and Kerrey argue for is desirable and a sound
way to proceed, the question is, however, how does the Commission achieve
it? The Commission has tried hard to reach that outcome and has achieved the
agreement implemented by the review team.
2) 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.
3) 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.
4) 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.
5) A subpoena would not advance the Commission's interests.
• First, the agreement the Commission just reached provides it the
access it needed to fulfill its mandate, in his judgment;
• Second, a subpoena would be contrary to that agreement;
• 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.

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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 for its work from the extension, and that the extension only translates into 20
additional days for Commission work. 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
when it agreed to accept a 60-day extension for the report deadline but only a 30-day
extension of its statutory life. She added that she did not fully appreciate at the last
meeting that the Commission was not intending to seek a true 60-day extension and
suggested that the Commission do so.

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

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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.

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 on July 26 due to time constraints, but rather submit the report for
pre-publication review on that date. 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. Commission Gorelick added that the
Commission cannot adhere to the calendar based on the PDB experience and other
similar delays. 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.

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.

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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 of time in which to submit a report.

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 inviting 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 Executive Branch to

obtain and examine Presidential Daily Briefs (PDBs).

The legal ground is uncertain: as DC 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 months. 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 items were responsive to our document
request.

• The White House entered the negotiations thinking that just a briefing (as
occurred on October 14) might be enough for the Commission. The Commission
found the briefing highly unsatisfactory, and pushed for direct access to the PDB
items.

• Initially, they said only the Chair and Vice Chair could see PDB items. Then they
moved to the Chair, Vice Chair and two staff. Finally, their position became four
individuals of the Commission's choosing.

• Initially, they said they might let the Commission see one or two PDB items.
Finally, we got them to let the Commission to seel land 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 moyed them to one staffer, and then to
two individuals of the Commission's choking.

• 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.

9/11 Classified Information

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 /9/11 C l a s s i f i e d I n f o r m a t i o n

III. The Agreement Itself f i \o recap, the agreement ultimately; inclined.the following terms:

• Four Commissioners 6i? staff of the.Cornmission's choosing to review the["~|

items; I II \\ Of those 4, two wouldfrevieWthe 3 6Q total items for possible inclusion in

smaller group of] III i . V

• The 4 would report to; all Corhmissioners\on the] [terns, plus any items moved
from the large to the;small group.

IV. Negotiations on Implementation of the PI>B agreement

Implementation of the PDBJagreement took from November to December:

• While it is corrective Judge wrbte to the Commission about "wide latitude" in the
preparation of a reipiort back to the 10 Commissioners, he also wrote about a
"concise summar^5' of the results of the review ofPBD items.

o The Judge also! stated that he thought no items heeded to be moved from the
larger group pf all 360 itemsito the small group of] ptems.

o The NSC Cbuhsel, John Bellinger, indicated that he believed an appropriate

report back fo;the Commission would be a few summary paragraphs in a one
or two page; report. i \ The staff tpok immediate exception to the chara

Chair and Vice Chair made clfear to the Judge that such an implementation of
the agreeirierit would not be acceptable to the Commission.

• The ReviewTeain prepared two mjsmos, one reporting on the] pDBs and one
asking forrjdocuments to be transferred from the large to smalTgroup for the
purpose ofpreparing summaries to inform all Commissioners.

• The White House rejected the mem^s, and rejected movement of PDBs from the
large to the small group. \ After longnegotiations, it became clbar that the White House would

more than) [and then no more thanj [of the PDBs moving from the large to
the small group.

COMMISSION SENSITIVE 10
 COMMISSION SENSITIVE

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 and discussion of nearly 100 PDB items (exceeding the
total oq |and| {referenced earlier);

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

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

• An annex, coppilejd with the Senior Executive Intelligence Briefs (SEIBs),

providing more context and detail; and

• A briefing in \yhich Commissioner Gorelick and the Executive Director spelled

out specifics behind certain euphemisms written in the report.

VI. Conclusions \e bottom line here is that ithe Commission didn't get everything it wanted, but:

• The Commission jnoyed the White House (from September to November) far past
any agreement it VyoUld have accepted at the outset; and

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

9/11 Classified Information

COMMISSION SENSITIVE 11
 rbG. FflX NO. :
nay. 15 2003 12=13PM P2
FROM :

Bob Kerrey New School University

66 West mh Street N«w York NY loon 212.229.5656 fa» ara.za9.5W7 www.new5ChonI.edu

February 11,2004

The Honorable Thomas H, Kean

Chairman, 9-11 Commission
President
Drew University
36 Madison Avenue
Madison, NJ 07940

f/ee H. Hamilton
Vice-Chairman, 9-11 Commission
President and Director
Woodrow Wilson International Center for Scholars
Ronald Reagan Building and International Trade Center
One Woodrow Wilson Plaza
1300 Pennsylvania Avenue, NW
Washington, DC 20004-3027

Dear Tom and Lee:

I read wiiJToonsidcrable concern the press accounts of the February 10 meeting of

the National Commission on Terrorist Attacks on thej-mited States (9-11
Commission), wui^h, I presume, are largely the re^tfJt of reading the jomt
statement you rnado\y concern centers on a simple but uncoraortable truth: I do not agree with you

characterization of the agreehient you^'cached with the White House on the

question of Presidential Daily rfcaefisTor PDBs. ] simply do not believe that this
"agi-eernenl has enabled the Cpmmi^sion Review Team to report back to the full
Commission on all PDBspfcriticfil mwortancc to the Commission's work," Not
only do T not agree witj^this statement, fsffongly disagree with it.
Had I been a nwriTber of the Commission whence original agreement was put
together wift/the White House, J would have obje&led because my experience
with document analysis is that we all read a little dinbsntly. While it is true that
a careen reading will result in both you and I seeing thing^we regard as
d-otrt- thaH- ICO
The value of having all Commissioners read the PDfls is that collectively
we are much more likely to take notice of the facLs we need to get the iiill and
complete accounting the law require** of us/
School

Ttle Ne»
OrjrlnMe fdculry for 1'Olllil'Jl n Soslsl 5clmcc

MsnnM CoK»3« at Music

Airrnrs Snidlft Drama Sclltwl
 1AM COMMISSION
FflX NO. May. 15 2003 12:idpn P3

As a member of Ik, Cummiaaion, I [mated that me Commission Review Team -

which did work long hours and did superb work - wmrfd bo givonj^jd^eJaiiiM^
ift reporting back to the full Gommiaaion../^ only were thttfnot given "wide
i
latitude" as the White House promised,, but t
also i -!*_ * *
given A ' -*
vevy restrctive 1
instructions on what their report could contain. As a equence, the report is
confusing and incomplete, and does not give all what we need to make
informed decisions.

even in its intentionally confusing state, the

report of PDBs brought back to the Commission discloses key facts thatlf"
cons*4»4rbe enormously important in several waysj Tbta^'facywiiniffbct who
mz invitcras witnesses as well as the details of the questions wo will"agl:ifaaiksfa
-fact .it must be clear to most Commissioners from eftif brief reading of the X,
summary that,w® will need to recall some who have/^rcvioiisly testified.

To be cifcafj^am not interested in just those PDBffthat were delivered to

Bash. The peno'tkdijiinc
^^^-^
which is of 3&^
grasfeStinterest to me is from February
1998, when Osama binxacteaigsued'aTatwa against the United States, through
September 11, 2001. For nmrffpT^hts^eciod;I was vice-chairman of the Senate's
Select Committee on Inteftfgen£e and haveanTSctrVftjiiemory of what T was told
_^r ** ^^^i^^^^ "
and knew at the timc<^For me it is all the more reason UwFTiisei I mast be given
the opportunity lefread the PDDs myself.
fa)
g^ voted to subpoena these documents. T-hatig i> I biiJie-vc-il-ie
White House's unwillingness to aU0w eto review c latitude" in
preparing their report has comppemisea my abilitjf-trfget a foil and complete
accounting. And that is whvJPwilLcontuiue tfxsffgue that we must be given this
access in order to do ourpywk ac/iording tp^e letter and spjrit of the law.

I respect you and your cfforts/fo produce consensus on tHis Commission?- If

anyone can do it, it is you. /Regretfully, in this case ijXvas not and is/fot possible.

There is one more item ki your joint press rclease/o which I object. While it is
true that the team "revjfewed all ... (of the) . . . BOBs responsiveoo the
Commission's docunfent requests," and that^ni-s access to PDBs is
unprecedented," the statement is misleading II misleads because observers of our
work will mistakenly conclude that the review we were given was adequate for
our work. Those who voted against Ae subpoena presumably believe it was;
those of us wh6 voted in tho affirmative do not,

It also misleads because the "unprecedented" access signals a heroic effort on the
part of tb/Whito House, a presumption that Id6 not accept. 'ITiis is au
unprecedented commissioiyfuvestigaimg mi^iftprecedented incident, liven the
President uses tliis rationafe to ask Amerioans TO do tilings to which they are
unaccustomed. Furtricr/dy allowing Commissioners some access, they have
 FAX NO. May. 15 2003 12:14PM P4

already broken the veil of executive privilege, making their legal and political
cage against further access quite weak.

A much more accurate statement would have been that this was the best we were
going lo get and thai we feared that litigation tor access would take so long we
might not be able to finish on time. Indeed these were the arguments I heard on
February 10 in support of a negative vole on the question of using our subpoena
powers to get this access.

Finally, while you "are confident that the Commission has obtained an account of
all PDBs that relate to the al Qaeda threat and the events of September 11," and
"are confident that we can prepare a strong and credible report," 1 hold no such
confidence. I fear the opposite: that our lack of access to the PDfls will
compromise our ability lo prepare a strong and credible report.

I hope that cit the end of this process I will be able to look back on this incident
and say that you were right and I was wrong. If that happens, it won't be my first
such apology. I ateo hope that you do not conclude thai my confidence in and
respect for you has been, shaken. Both have survived this disagreement,

Respectfully yours,

Kerrey