12/22/03 MOW 18:24 FAX

PRIVILEGED/ATTORNEY WORK PRODUCT/DRAFT SENSITIVE BUT UNCLASSIFIED

[Draft; 12/32/20031

ELEMENTS OF POSSIBLE UNDERSTANDING AS OF DECEMBER 22,2003

(based on December 19,2003 memo from Commissioner Fred Fielding to Judge Gouzales)

EQP Documents Involving Memos to/from the President

1. The Executive Office of the President (EOP) will make available, for review by tbe
Commission and designated staff, those documents sent to the Assistant to the President for
National Security Affairs (APNSA), or a deputy to the APNSA, for the period of January 1,
1998 to September 20,2001, that are responsive to current document requests and have been
determined by Commission staff to be demonstrably critical to the Commission's work.
However, EOP will not be asked to provide any memoranda to the President that contain any
written indication that they actually were provided to the President.
2. For those documents described in paragraph 1, above, which do contain written indication
that they actually were provided to the President, the EOP will brief designated Commission
staff on the contents of those documents, with the exception of any hand-written comments
made by the President. Additionally, if the EOP is able to determine that a proposed
memorandum was sent forward to the President, but dmt it differed materially from that
proposed memorandum as provided to the APNSA, the BOP will brief designated
Commission staff on tbe differences, to the extent the EOP is able to determine them. Staff
will be permitted to take notes on the briefings, subject to present rules for review; those
notes will be maintained in secure Commission space in the New Executive Office Building
(NEOB) and will be available to designated staff in the NEOB upon reasonable notice.
3. The Commission will not file any further document requests seeking communications to or
from tbe President. Given Commission access to these documents and its ability to discuss
matters relevant to the Commission's mandate with die current and former APNSA and other
senior officials, past and present, the current document production requests are deemed
sufficient for the Commission to do its job.

EOP Documents on Communications with Foreign Leaders

1. The EOP will provide Commission staff with in-depth briefings on talking points responsive
to current document requests,
2. The EOP will not be asked to provide written transcripts or summaries of calls for review.
Tbe EOP will brief Commission staff on the contents of those memoranda, or advise if
conversations dealt with non-substantive issues.
3. Commission staff may take notes on the briefings, subject to present rules for review; those
notes will be maintained in secure Commission space in the New Executive Office Building
(NEOB) and will be available to Commissioners and designated staff in the NEOB upon
reasonable notice.
 FAX - 8 003

PWVILEGEDMTTORNBY WORK PRODUCT/DRAFT SENSITIVE BUT UNCLASSIFIED

12/22#003J

Discussions with EOP Officials

1. A limited number of BOP officials will be made available for private, classified discussions
to answer factual questions about the 9/11 story and coumerterrorism policy in 2001 and
explore generally current policy. The BOP will make available those officials currently
requested by the Commission; the Commission will not file further requests for discussions
with EOP officials.

2. The EOP will provide reasonable flexibility in granting the necessary time for such
discussions and permitting appropriate Commission attendance, depending on the person
involved, so the Commission can receive the information it needs. In most cases the
Commission will be able to do so in two hours.

Appearance of EOP Staff at Public Hearings

The Commission will not ask any current BOP official, or any former EOP official not currently
identified to the EOP by the Commission, to brief or testify at a public closed hearing. The
Contmission will publicly explain that as a result of EOP document production, and tbe private
discussions with certain EOP senior officials, the Commission has no need to receive public
testimony from EOP staff.

Review of Commission No^es

1. No change on policy for review of notes taken from EOP documents.

2. If the Commission conducts private discussions with an EOP official, notes taken by
Commissioners or Commission staff are the Commission's work product and may not be
reviewed, except to ensure proper classification and handling of sensitive information. An
EOP representative at the discussion may help ensure that the notes are properly classified
and protected, by stating the level of classification that applies to the material that was
covered, A career EOP staff member (such as the NSC records manager) will review the
notes to ensure proper classification and handling of sensitive information. To facilitate the
proper review and handling of notes, notes regarding particularly sensitive issues (if any) will
be taken separately if requested by too. EOP representative. EOP representatives will attempt
to identify such subjects either in advance or at the discussions. Notes on such particularly
sensitive issues will be maintained in secure Commission space in the NEOB and will be
available to Commissioners and designated staff in the NEOB upon reasonable notice
Other notes of discussions will be stored and transported in accordance with applicable
regulations.
23/03 13:40 FREITF FIELDING 202 719 4941 •> 96914205 NO.047 D03
a now is:2S FAX

PRIVILKGED/ATTORNBy WORK PJROBt/CT/DRAFT SENSITIVE BUT UNCLASSIFIED

[Draft: 12/22/2003]

September 11 Air Threat Conference Tape And Time Line

A Commission staff member may review the tap* to verify the accuracy of the DoD transcript, if
deemed necessary. DoD time line will be provided if requested (without warranty as to
accurateness) or Commission may develop its own time line from the tape and/or transcript.

Submission of Materials Intended for Public Release for Pro-Publication Review

The Commission will submit its draft report to BOP for pre-publication review (as described in
the letter from Dan Marcus to Tom Monheira dated My 29,2003) on a rolling basis as soon as
portions of die draft report are reasonably available. The Commission will submit all portions of
the draft report (or other materials based on information to which the Commission has been
given access by the Executive Branch) intended for public release to BOP for pre-publication
review. All portions of the draft report will be submitted no later than 45 days prior to me
intended date for public release.
J3 WED 18:35 FAX Ig 001

THE WHITE HOUSE

WASHINGTON

December 17, 2003

Thomas H. Kean, Chairman

Lee H. Hamilton, Vice Chairman
National Commission on Terrorist Attacks Upon the United States
2100KSt.N.W.
Washington, D.C. 20037

Dear Chairman Kean and Vice Chairman Hamilton:

I am writing in response to the December 12, 2003 letters that Mr. Daniel Marcus sent to
(1) Mr. Thomas Monheim regarding the conditions under which the Executive Office of the
President ("EOF") is providing the Commission access to certain EOF officials and (2) Mr.
Daniel Levin regarding the guidelines under which the Executive Branch is providing the
Commission access to officials from Executive Branch departments and agencies. Mr. Marcus's
letters follow up on Mr. Monheim's letter of November 21,2003, and Mr. Levin's e-mail of
November 26, 2003.

I note that EOF staff consulted with Commission staff (including the Executive Director
and General Counsel) when preparing the guidelines for meetings with EOF and other Executive
Branch officials and, indeed, took into account their comments. Moreover, those guidelines
were not intended to be an inflexible set of rules to be applied across the board as Mr. Marcus's
letter suggests, hi fact, as Mr. Marcus acknowledges, both sides have established a constructive
working relationship with respect to the meeting process, which has successfully resulted in the
Commission obtaining access to more than 500 Executive Branch officials to date.

Nevertheless, I understand the Commission's concerns about its independence and

integrity as it carries out its mandate. I also appreciate the Commission's commitment to
proceed in a manner respectful of the Constitutional prerogatives of the Presidency. I believe
that conducting future meetings with Executive Branch officials consistent with our past practice
will satisfactorily address our mutual concerns. If problems arise in particular cases, I am
confident we will both be able to work them out in a satisfactory manner.

I look forward to continuing to work with you as the Commission completes its work.

Sincerely,

Alberto R. Gonzales
Counsel to the President
Thomas H. Kean December 12, 2003
CHAIR

Lee H. Hamilton
VICE CHAIR

Richard Ben-Veniste
Thomas A. Monheim, Esq.
White House Counsel's Office
Fred F. Fielding The White House
Jamie S. Gorelick Washington, D.C. 20500
Slade Gorton Dear Mr. Monheim:
Bob Kerrey
I am writing in response to your letter of November 21 setting forth
John Lehman
conditions under which the Executive Office of the President intends to
Timothy J. Roemer provide the Commission with the opportunity to interview or to meet
with EOP officials. Your letter has been reviewed by the Commission,
James R. Thompson
and I am guided in this response by the discussion at its December 8
meeting.
Philip D. Zelikow
EXECUTIVE DIRECTOR
The Commission is appreciative of the concerns that underlie your letter
with respect to the vital duties of senior White House and NSC officials
and the many demands upon their time. We also recognize the
importance of reasonably limiting, consistent with the Commission's
needs, the number of individuals - Commissioners and staff- that are
present at a given meeting. But the Commission feels strongly that a
detailed set of rules applied across the board is not the appropriate
approach, and it therefore cannot agree to the long list of conditions set
forth in your letter.

Nonetheless, we believe that we have established a constructive working

relationship with you and your colleagues with respect to this process.
We believe the initial interviews or meetings we have had (with
Ms.Gordon-Hagerty and Ms. McCarthy), as well as the pre-meetings we
have had with EOP representatives, have proceeded on a satisfactory
basis and provide a model for how we plan to proceed in the future.
Consistent with this positive experience, we believe that we can address
future interviews on a basis of mutual respect and reasonable solutions to
issues as they arise, without resort to a detailed set of rules.

We fully intend to proceed in a manner respectful of the President's

prerogatives and the status of the officials with whom we meet, in the
expectation of your reciprocal respect for the independence and integrity
of the Commission as it carries out its mandate. We will continue to

TEL (202) 331-4060

FAX (202) 296-5545
www.9-1 lcommission.gov
Mr. Thomas A. Monheim
December 12, 2003
Page 2

make every effort to respond to concerns that arise at pre-meetings or in

discussions before or during meetings, and we are confident we can
continue to work successfully with you and your colleagues on these
matters.

With best regards,

aniel Marcus
General Counsel

cc: H. Bryan Cunningham

 THE WHITE HOUSE
WASHINGTON
November 21,2003

Daniel Marcus, Esq.

General Counsel
National Commission on Terrorist Attacks Upon the United States
2100 K Street N.W.
Washington, B.C. 20037

Dear Mr. Marcus:

I am writing to confirm the conditions under which we currently intend to provide the
National Commission on Terrorist Attacks Upon the United States ("Commission") with access
to officials from the Executive Office of the President ("EOF"). These conditions apply to those
individuals made available in response to the Commission's requests for "interviews" (i.e., EOF ;
Interview Request No. 1, dated August 27,2003 and EOF Interview Request No. 2, dated I
October 23,2003) and requests for "meetings" (Le., multiple letters from Chairman Kean and i
Vice Chairman Hamilton dated October 27 and October 31,2003), as well as EOF officials made1
available in response to subsequent Commission requests.

As we have discussed, I believe it is in. our mutual interest to memorialize these

conditions in writing, in order to minimize misunderstandings and to avoid, to the maximum
extent possible, any potential for disagreements during the meetings. I anticipate that both sides
will apply a "rule of reason" when applying these conditions.

OUT approach to developing the conditions for access to EOF officials has been guided by
our responsibility to protect the crucial Constitutional prerogatives of the Presidency, for this and
future Presidents, while attempting to accommodate the unique needs associated with the
Commission's responsibility to prepare a detailed report — for the President, the Congress, and
ultimately the American people — on the attacks oil September 11,2001. In this spirit, we
currently are prepared to provide the Commission with access to EOF officials as follows:

• EOP officials will be made available voluntarily and strictly as a matter of comity
between the Executive and Legislative branches;

• Commission access to EOP officials will be provided at "meetings" or "policy

briefings," which are not, and should not be referred to as, "testimony" or "interviews";

• Meetings will be reasonably limited in time (generally from 1 - 2 hours in duration, not
including time required for prepared statements, if any, made by EOP officials);

• EOP officials will not be placed under oath;

• We will inform you on a case-by-case basis whether we request that meetings be

recorded; otherwise, meetings will not be recorded;
• Notes may be taken during the meeting. For subject matters related to those for which
there exist notes retention arrangements for EOF documents (or for equally sensitive or
deliberative material), notes will be retained at the secure NEOB reading room;

• Commission representatives will meet with EOF representatives in advance of any

scheduled meeting (generally at least one week, though exceptions may be made upon
reasonable request) to:

(1) discuss, in reasonable detail, planned areas of inquiry;

(2) identify, to the extent possible, particular documents that the questioner intends to use
in the meeting;

(3) identify lines of inquiry regarding an EOF official's time at a department or agency
outside the EOF, if any, that the questioner would like to discuss;

(4) discuss, to the extent it may be anticipated by the questioner, the Commission's
perceived need to elicit verbatim quotes regarding NSC meetings (including, but not
limited to, CSG, Deputies, or Principals Committee meetings) or other White House
meetings, or otherwise regarding EOF officials;

(5) discuss any anticipated questions concerning individual conversations with, or

concerning statements by, the President, Vice President, National Security Advisor,
Counsel to the President, or Deputy National Security Advisor,

(6) identify, in as much detail as is feasible based on an examination of materials

available to the Commission, lines of inquiry regarding positions taken in specific
meetings, including the dates of such meetings and the specific departments/agencies'
positions about which the questioner desires to inquire.

• As a general principle, interviewers will: focus only on what they need to know, that is,
information of particularized importance to the Commission's statutory mandate; seek
information not otherwise available, first looking at prior testimony and documents to
determine whether the information is available elsewhere; look to the substance of the
discussion and the arguments presented, rather than verbatim exchanges; inquire into
agency positions when it's important to understand the significance not only of a
position taken but which department took it (e.g., DOD's position on the use of military
force); and not inquire about particular statements, or particular disagreements, for their
own sake or because it might be interesting;

• With regard to post-9/20/01 matters, the Commission will not inquire into details of
specific operations, though Commission representatives may question officials about
post-9/11 policies and programs developed to deal with terrorist threats in response to
the events of 9/11. The Commission will not inquire into deliberations with regard to
cither the formulation or implementation of policies after 9/20/01;
 • HOP representatives will be present at the meetings (generally one representative per
meeting from the Office of the Counsel to the President or the Office of the Legal
Adviser to the National Security Council);

• Commission representatives may attend the meetings (generally no more than five such
representatives may be present). For Assistants to the President (or equivalent) and
above, the Commission Chair or Vice Chair must be present; up to two other
Commissioners and two staff members may attend. For Deputy Assistants to the
President (or equivalent), the Chair or Vice Chair may be present, but at least one
Commissioner must be present. For other EOF officials, no Commissioners need be
present;

• Meetings will be held in a SCIF in EOP office space, and all Commission and staff
members attending a meeting must have security clearances sufficient for any classified
information to be discussed;

• Absent unusual circumstances, EOP officials will only be made available for one
meeting.

As you have recognized, our accommodation with regard to making EOP officials
available to the Commission does not set any precedent, either for future Commission requests or
for requests for state secrets, Presidential communications, or deliberative materials of this or
other Presidents in any other context. Furthermore, these EOP officials are being made available
to the Commission with due regard for the Constitutional separation of powers and reserving all
legal authorities, privileges and objections that may apply, including with respect to other
governmental entities or private parties.

Consistent with our agreement regarding other EOP materials, information obtained from
EOP officials is being made available to the Commission in confidence and as in closed session.
The Commission should make every effort to protect this information from any unauthorized
disclosure and from use for any unauthorized purpose.

We hope and expect that the above cooperative arrangements will proceed smoothly and
respect the concerns of the Executive Branch. If difficulties arise, we will work with you in an
. effort to resolve them in a mutually satisfactory fashion. Should implementation of these
arrangements ultimately fail to meet our expectations, we reserve the right to modify or
terminate them consistent with the constitutional separation of powers.

I look forward to continuing to work with you as the Commission completes its work.

Sincerely,

lonheim
Associate Counsel to the President
 THE WHITE HOUSE
WASHINGTON
November 21,2003

Daniel Marcus, Esq.

General Counsel
National Commission on Terrorist Attacks Upon the United States
2100 K Street N.W.
Washington, D.C. 20037

Dear Mr. Marcus:

I am writing to confirm the conditions under which we currently intend to provide the
National Commission on Terrorist Attacks Upon the United States ("Commission") with access
to officials from the Executive Office of the President ("EOF"). These conditions apply to those
individuals made available in response to the Commission's requests for "interviews" (i.e., EOF :
Interview Request No. 1, dated August 27,2003 and EOF Interview Request No. 2, dated !
October 23,2003) and requests for "meetings" (Le., multiple letters from Chairman Kean and |
Vice Chairman Hamilton dated October 27 and October 31,2003), as well as EOF officials made:
available in response to subsequent Commission requests.

As we have discussed, I believe it is in our mutual interest to memorialize these

conditions in writing, in order to rnimmize misunderstandings and to avoid, to the maximum
extent possible, any potential for disagreements during the meetings. I anticipate that both sides
will apply a "rule of reason" when applying these conditions.

Our approach to developing the conditions for access to EOF officials has been guided by
our responsibility to protect the crucial Constitutional prerogatives of the Presidency, for this and
future Presidents, while attempting to accommodate the unique needs associated with the
Commission's responsibility to prepare a detailed report — for the President, the Congress, and
ultimately the American people -- on the attacks on September 11,2001. In this spirit, we
currently are prepared to provide the Commission with access to EOF officials as follows:

• EOF officials will be made available voluntarily and strictly as a matter of comity
between the Executive and Legislative branches;

• Commission access to EOF officials will be provided at "meetings" or "policy

briefings," which are not, and should not be referred to as, "testimony" or "interviews";

• Meetings will be reasonably limited in time (generally from 1 - 2 hours in duration, not
including time required for prepared statements, if any, made by EOF officials);

• EOF officials will not be placed under oath;

• We will inform you on a case-by-case basis whether we request that meetings be

recorded; otherwise, meetings will not be recorded;
 lf£J UUO

• Notes may be taken during the meeting. For subject matters related to those for which
there exist notes retention arrangements for EOF documents (or for equally sensitive or
deliberative material), notes will be retained at the secure NEOB reading room;

• Commission representatives will meet with EOF representatives in advance of any

scheduled meeting (generally at least one week, though exceptions may be made upon
reasonable request) to:

(1) discuss, in reasonable detail, planned areas of inquiry;

(2) identify, to the extent possible, particular documents that the questioner intends to use
in the meeting;

(3) identify lines of inquiry regarding an EOF official's time at a department or agency
outside the EOF, if any, that the questioner would like to discuss;

(4) discuss, to the extent it may be anticipated by the questioner, the Commission's
perceived need to elicit verbatim quotes regarding NSC meetings (including, but not
limited to, CSG, Deputies, or Principals Committee meetings) or other White House
meetings, or otherwise regarding EOF officials;

(5) discuss any anticipated questions concerning individual conversations with, or

concerning statements by, the President, Vice President, National Security Advisor,
Counsel to the President, or Deputy National Security Advisor,

(6) identify, in as much detail as is feasible based on an examination of materials

available to the Commission, lines of inquiry regarding positions taken in specific
meetings, including the dates of such meetings and the specific departments/agencies'
positions about which the questioner desires to inquire.

• As a general principle, interviewers will: focus only on what they need to know, that is,
information of particularized importance to the Commission's statutory mandate; seek
information not otherwise available, first looking at prior testimony and documents to
determine whether the information is available elsewhere; look to the substance of the
discussion and the arguments presented, rather than verbatim exchanges; inquire into
agency positions when it's important to understand the significance not only of a
position taken but which department took it (e.g., DOD's position on the use of military
force); and not inquire about particular statements, or particular disagreements, for their
own sake or because it might be interesting;

• With regard to post-9/20/01 matters, the Commission will not inquire into details of
specific operations, though Commission representatives may question officials about
post-9/11 policies and programs developed to deal with terrorist threats in response to
the events of 9/11. The Commission will not inquire into deliberations with regard to
cither the formulation or implementation of policies after 9/20/01;
 • EOF representatives will be present at the meetings (generally one representative per
meeting from the Office of the Counsel to the President or the Office of the Legal
Adviser to the National Security Council);

• Commission representatives may attend the meetings (generally no more than five such
representatives may be present). For Assistants to the President (or equivalent) and
above, the Commission Chair or Vice Chair must be present; up to two other
Commissioners and two staff members may attend. For Deputy Assistants to the
President (or equivalent), the Chair or Vice Chair may be present, but at least one
Commissioner must be present. For other EOP officials, no Commissioners need be
present;

• Meetings will be held in a SCIF in EOP office space, and all Commission and staff
members attending a meeting must have security clearances sufficient for any classified
information to be discussed;

• Absent unusual circumstances, EOP officials will only be made available for one
meeting.

As you have recognized, our accommodation with regard to making EOP officials
available to the Commission does not set any precedent, either for future Commission requests or
for requests for state secrets, Presidential communications, or deliberative materials of this or
other Presidents hi any other context. Furthermore, these EOP officials are being made available
to the Commission with due regard for the Constitutional separation of powers and reserving all
legal authorities, privileges and objections that may apply, including with respect to other
governmental entities or private parties.

Consistent with our agreement regarding other EOP materials, information obtained from
EOP officials is being made available to the Commission in confidence and as in closed session.
The Commission should make every effort to protect this information from any unauthorized
disclosure and from use for any unauthorized purpose.

We hope and expect that the above cooperative arrangements will proceed smoothly and
respect the concerns of the Executive Branch. If difficulties arise, we will work with you in an
. effort to resolve them in a mutually satisfactory fashion. Should implementation of these
arrangements ultimately fail to meet our expectations, we reserve the right to modify or
terminate them consistent with the constitutional separation of powers.

I look forward to continuing to work with you as the Commission completes its work.

Sincerely,

lonheim
Associate Counsel to the President
Thomas H- Kean
CHAIR November 17, 2003
Lee H. Hamilton
VICE CHAIR
The Honorable Alberto R. Gonzales
Richard Ben-Veniste Counsel to the President
Max Cleland The White House
Washington, DC 20500
Fred F. Fielding

Jamie S. Gorelick
Dear Judge Gonzales:

Slade Gorton As you know, we are very pleased that the Commission has been able to reach
an agreement with the White House on access to PDBs that we believe will
John F. Lehman
meet our need for access to this important information while protecting
Timothy J. Roemer Presidential prerogatives. We want to express our personal appreciation for
your efforts over the last several weeks to achieve this compromise result, as
James R. Thompson well as the substantial contributions of Tom Monheim and
Bryan Cunningham, who worked long hours with our staff to make possible
Philip D. Zelikow this result.
EXECUTIVE DIRECTOR

We do want the record to note our concern with the statement in the terms that
the Commission agreed to your formulation of the third criterion for
identifying material demonstrably critical to the fulfillment of the
Commission's mandate. The formulation of this criterion that we plan to
employ is that the item must supply "significant knowledge not otherwise
available to the Commission." This formulation is similar but not identical to
the one set forth in your letter.

We also note our concern, which we have discussed with you, about the
language used in the last paragraph of the document on the terms. The terms
had earlier stated the recognized standard - "demonstrably critical" - as the
court-sanctioned test for access. We do not agree with any language in the
last paragraph that goes beyond this standard.

We expect to approach this review with careful attention to the criteria we

have set forth as a basis for making such transfer requests - criteria which we
think give you substantial assurance that any requests made will be worthy of
serious consideration. We also expect, based on our conversations with you,

301 7th Street SW, Suite 5125 26 Federal Plaza

Washington, DC 20407 Suite 13-100
T 202.331.4060 F 202.296.5545 New York, NY 10278
www.9-1 lcommission.gov T 212.264.1505 F 212.264-1595
The Honorable Alberto R. Gonzales
November 17, 2003
Page 2

that you will give serious consideration to any such requests and that we can
have a frank and open discussion if there is any question as to their merits.

We and the representatives who will promptly be selected by the Commission

look forward to working with you and your staff on this important matter.

With best regards,

Thomas H. Kean Lee H. Hamilton

Chair Vice Chair