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Date: Sat, 26 Jul 2003 12:26:16 -0400
From: Philip Zelikow <pzelikow@9-11commission.gov>4?
To: "" <John_B._Bellinger@nsc.eop.gov>^,"" <Thomas_A._Monheim@who.eop.gov>^
Cc: "" <dmarcus@9-11commission.gov><y,"" <sciunne@9-11commission.gov>4P
Reply-to: •»• <pzelikow@9-11commission.gov>^9'
Subject: Quotations in Commission Notes

<g 2 unnamed text/html 5.21 KB (H)

John and Tom -

On the access guidelines letter, I think we're almost there, except for your sentence that would
prohibit the inclusion of quotations in our notes absent a showing of particularized need.

We have conceded the position on verbatim quotations that effectively export the document, etc.
But we think a general position that our notes should not include any quotations is not workable for
us. And as for the showing of "particularized need," I think every notetaker in history has probably
felt episodic, unpredictable, yet particularized needs to include quotations from time to time, in a
way and for reasons that cannot easily be anticipated in advance or reduced to a written formula.
This is especially true if the notetaker does not know how the notes may eventually be needed in
creating the final product - whether it is the law student taking notes from cases as he researches a
law review article or an investigator taking notes from memoranda as he summarizes past policy
choices.

I think this is a hard position for your side to defend. It also introduces whole new enforcement
problems, putting you in the position of reviewing notes not only for declassification, but to
determine (a) whether the notes include quotations and then (b) whether these quotations are noted
in circumstances where we have or have not yet demonstrated particularized need. And can you
imagine how outsiders would view all this if a dispute over such procedures spilled into public
view? You would be handing your opponents a ready instrument to lampoon you. So you must
judge whether there is really a constitutional or precedential gain that, from your perspective, really
outweighs this potential cost - recalling the approach we are taking when it comes to publication of
the final report.

Yet 1 understand that the administration, including the Counsel, feels strongly about this point and
that the Judge may believe that the Chair and Vice Chair agreed to his views on this particular
matter. I gained a different impression from my discussions with the Chair and Vice Chair. So
we're preparing a version of the letter that will bracket your language, show our proposed language
alongside it, and send this to Tom and Lee on Monday so they are in a position to discuss the
specific language and work the problem directly with Judge Gonzales as soon as possible.

Philip

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