Thomas H.

Kean
CHAIR August 21,2004

Lee H. Hamilton
VICE CHAIR
Dan Levin
Richard Ben-Veniste Acting Assistant Attorney General
Office of Legal Counsel
Fred F. Fielding
Department of Justice
Jamie S. Gorelick Washington, DC 20530
Slade Gorton Dear Mr. Levin:
Bob Kerrey
Pursuant to our discussions, enclosed, in hard copy and on disk, is a draft staff
John F. Lehman monograph for prepublication review. The first part consists of a detailed
Timothy J. Roemer
chronology of the four flights, air traffic control, and national air defense on
9/11. The "four flights" portions of that part have already been reviewed and
James R. Thompson cleared by the Executive Branch. I have tried to indicate by lines in the
margin the new material on air traffic control and national air defense. We
Philip D. Zelikow
believe that none of it is derived from classified sources.
EXECUTIVE DIRECTOR
The second part presents an analysis of the aviation security system before
9/11. It does contain some material derived from classified sources and SSI
material.

We request that this draft monograph be reviewed and cleared as promptly as

possible. (And we thank you and your colleagues for your hard work in
reviewing the two monographs that we are releasing today.) John Raidt,
other former staff members, and I will be happy to answer any questions you,
TSA, CIA or other agencies have and to assist you informally in any way you
deem appropriate. We request that when a final version of the monograph is
cleared you make it available to the Government Printing Office and to the
9/11 Public Discourse Project.

There are no other staff monographs for which we request prepublication

review.

You may contact me at any time at (301) 320-4219.

Sincerely,

aniel Marcus
General Counsel
301 7th Street SW, Room 5125 26 Federal Plaza
Washington, DC 20407 Suite 13-100
T 202.331.4060 F 202.296.5545 New York, NY 10278
www.9-llcommission.gov T 212.264.1505 F 212.264.1595
Dear Mr. Marcus:

We have received the first three staff statements for the March 23-24 hearing. We are
committed to the expeditious review of materials you provide and to the maximum possible
public disclosure of information consistent with national security and the important constitutional
principles involved. As you know, we have established a high level review group to accomplish
this. However, as we have previously advised you, we need your help in this process.

In particular, as we have previously told you, it would greatly facilitate our review of
these and any future staff statements or portions of your final report if you could: (i) provide a
sourced version of the statement or portion of the report, indicating the documents or other
sources for the various statements made; (ii) mark as unclassified only that information the
government has provided to you as unclassified; (iii) mark as currently classified at the
appropriate level that information which was provided as classified but which you think either
should be declassified or should not have been marked as classified when provided. Where you
have specific arguments for declassification (or believe that something should not have been
marked as classified), it would be helpful if you could provide it when the statement or portion of
the report is provided.

We believe we have organized to effectively review the materials you provide and that
with your assistance we can achieve our mutual desire for an expeditious pre-publication review.
Any inability on your part to provide that assistance, however, will jeopardize that goal,
significantly impede our ability to conduct the pre-publication review, and substantially delay the
process.

If you are able to provide sourced and marked versions for any of the staff statements for
the March 23-24 hearings please do so as soon as possible. In any event, please provide any
future staff statements or portions of the report with appropriate sourcing and marking.

Thank you.

Very truly yours,

Daniel Levin
 WITH DRAWAL NOTICE

RG: 148
Box: 00002 Folder: 0001 Document: 42
Series: Dan Marcus Files

Copies: 1 Pages: 3

ACCESS RESTRICTED

The item identified below has been withdrawn from this file:

Folder Title: [Daniel] Levin

Document Date:
Document Type: List
From:
To:

Subject: Issues in Pre-Publication Review

In the review of this file this item was removed because access to it is
restricted. Restrictions on records in the National Archives are stated in
general and specific record group restriction statements which are available
for examination.

NND: 221
Withdrawn: 02-25-2008 by:

RETRIEVAL #: 221 00002 0001 42

SEP-05-2003 10:06 202 616 0762 202 616 0762 P.01/01

U.S. Department of Justice

Washington. D.C 20530

September 5, 2003

Philip Zelikow, Executive Director

Daniel Marcus, General Counsel
Steve Dunne, Deputy General Counsel
National Commission on Terrorist Attacks Upon the United States
301 7th Street SW, Room 5125
Washington, D.C. 20407

Gentlemen:

This is to confirm that for purposes of responding to the question in the letters to agency
heads from the Chair and Vice Chair, "access" as used in that letter includes, in addition to
providing a copy of a document, in appropriate cases - such as particularly sensitive classified or
deliberative matters - permitting Commission members and staff to read and take notes on the
document at the agency involved. As we have explained, given the unique nature of the
Commission's mandate and in an effort to accommodate the Commission's requests for a wide
range of very sensitive information, agencies are providing extraordinary access in this manner to
a great deal of extremely sensitive information without in each case requiring the kind of
particularized showing of need generally required for access to deliberative documents.
Consistent with longstanding executive branch practice, in some cases involving particularly
sensitive documents agencies may provide an accommodation in some other manner which they
will discuss with you.

With respect to note taking, it is our understanding that given this extraordinary
accommodation and the highly sensitive information at issue in many of the Commission's
requests, in those cases where a document is made available for review at the agency, the notes
taken on the documents will not be verbatim notes that effectively recreate the document,
although they may include reasonably limited quotations.

Of course, in any case where a copy of the document is not provided, if after reviewing
the document the Commission believes it needs a copy, we would be prepared to discuss that
with you further in a spirit of accommodation. Finally, department or agency-held copies of
documents to or from any office of the Executive Office of the President, including the National
Security Council, will be made available to the Commission in the same manner and under the
same conditions as are the same or similar documents held initially by the Executive Office of
the President.

• truly yours,

Daniel Levin

TOTflL P.01
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Date: Fri, 05 Sep 2003 18:11:47 -0400 (EOT)
From: "Dan.Levin@usdoj.gov" <Dan.Levin@usdoj.gov>^P'
To: "'dmarcus@9-11commission.gov'" <dmarcus@9-11 commission.gov><^
Subject: [No Subject]
September 5, 2003

Daniel Marcus, General Counsel

National commission on Terrorist Attacks Upon the united States
301 7th Street SW, Room 5125
Washington, D.C. 20407
Dear Dan: A
As tne Coflimi&s4-efr consideps the agencies'" responses to the letters from
ttfe=JEha"fr and vice'^^^•n^^'-:^^J6^c^K^^^^is^, there are a couple of points
that I hope you will keep in mind:
1. I believe the government as a whole has made enormous efforts to comply
with the Commission's requests for documents and other information, in the less
than four months since the Commission served its first document request on May 7,
2003, the government has made available over two million pages of documents (more
than four times the amount the Joint inquiry stated in its report it had seen over
the entire course of its investigation) in response to nearly 70 document
requests, much of it highly classified or highly deliberative or both. Much of
this material has been produced in electronic format to facilitate searching by
Commission staff, and the government has even provided training to commission
staff to facilitate searches. The government has also produced some 14 CDS and
nearly 200 tapes of interviews or other information and has provided nearly 50
briefings and nearly 90 interviews to date.
2. AS you know, responding to the document requests in many instances )
requires an extensive undertaking, in addition to searches of computer data /
bases, in many cases individual files have been searched as well, and in many
cases numerous boxes of documents have had to be retrieved from off-site storage. (
Because of the highly classified nature of much of the material requested there
are limited numbers of people with appropriate clearances to review potentially
responsive materials (and to process and copy responsive material), in this
Tegard, we appreciate the Commission's continuing recognition that, in many cases, /
its document requests cannot be responded to completely within their stated /
deadlines, and that we are continuing to work as hard as possible to turn over as
much requested information as possible. <
very truly yours, j

Daniel Levin

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 v -„, C1, n-rcrj 202 616 0762 P.01
>§EP-08-2003 16:00 202 616 0762 „

~~ U.S. Department of Justice [ fiAT^^

Washington, D.C 20S30

September 8,2003

Daniel Marcus, General Counsel

National Commission on Terrorist Attacks Upon the United States
301 7* Street SW, Room 5125
Washington, D.C. 20407

Dear Dan:

In connection with the agencies' responses to the letters from the Chair and Vice Chair
and the memoranda from you, there are a couple of overall points that bear emphasis:

1. I believe the government as a whole has made enormous efforts to comply with the
Commission's requests for documents and other information. In the four months since
the Commission served its first document request on May 5, 2003, the government has
made available over two million pages of documents (more than four times the amount
the Joint Inquiry stated in its report it had seen over the entire course of its investigation)
in response to over 60 document requests, much of it highly classified or highly
deliberative or both. Much of this material has been produced in electronic format to
facilitate searching by Commission staff, and the government has even provided training
to Commission staff to facilitate searches. The government has also produced some 14
CDs and nearly 200 tapes of interviews or other information and has provided nearly 50
briefings and over 90 interviews to date.

2. As you know, responding to the document requests in many instances requires an

extensive undertaking. In addition to searches of computer data bases, in many cases files
of numerous individuals, often spread across many different offices or bureaus within a
given department or agency, have been searched as well. Because of personnel changes
at all of the departments and agencies involved (which are particularly numerous because
the document requests span more than one Administration), in many cases large numbers
of boxes of documents have had to be retrieved from off-site storage and reviewed, often
file by file or even page by page. Because of the highly classified nature of much of the
material requested, there are limited numbers of people with appropriate clearances to
review potentially responsive materials (and to process and copy responsive material) all
of which complicates (and lengthens) the process of review and production. I believe the
agencies' responses have made clear the significant efforts they have been making to
comply with the Commission's requests. As you have noted, the agencies' responses
stated that the response to some of the items set forth in your memoranda will not be
completed in some cases until the end of September or early October. Those dates were
chosen by the agencies involved to be conservative and as best as possible to ensure that
they do not provide a date that they cannot meet. In each case, the rolling production of
 202 616 0762 202 616 0762 P.02
SEP-08-2003 16=1

documents will continue. I believe that in most cases the vast majority of documents
referred to your memoranda will have been made available within the next two weeks
(indeed in many cases the vast majority of such responsive documents have already been
made available), although processing of documents that are more difficult to locate or
review will of course continue until the responses are complete.

If you have any questions about any of the agencies' responses, please do not hesitate to
call.

Very truly yours,

Daniel
^ Levin
Thomas H. Kean
CHAIR July 28, 2003
Lee H. Hamilton
VICE CHAIR
Daniel Levin, Esq.
Richard Ben-Veniste
U.S. Department of Justice
Max Cleland Washington, D.C. 20530
Frederick F. Fielding Dear Dan:
Jamie S. Gorelick
Thank you for your letter of July 24, responding to our July 1 letter to
Slade Gorton Adam Ciongoli, concerning interviews of government employees by the
]ohn F. Lehman
Commission. We appreciate your constructive efforts in this area, and we are
glad to see that we have reached substantial agreement as to how such
Timothy J. Roemer interviews will proceed. I am writing to state our understanding of a number
James R. Thompson
of points in your letter.

On point 1, in those rare instances where you believe there is a need for a
Philip D. Zelikow
EXECUTIVE DIRECTOR
second government representative at an interview, we will be prepared to
discuss with you whether such a second representative is necessary or
appropriate.

Your restatement of point 2 is acceptable to us, so long as it is understood that

the agency representative will not make substantive comments on the record
without first discussing with our interviewers whether it is appropriate or
necessary to do so.

On point 3, we recognize that in rare circumstances, you may object to

recording an interview or ask that the interview be transcribed by a court
reporter. We will be prepared to discuss with you those objections and
requests and accommodate them if we can.

You state in your letter that "we have not yet reached agreement on how to
handle interviews of former employees who do not request that an agency
representative be present and would like to continue to discuss that subject with
you." While we are always willing to discuss matters with you, we have fully
considered this question and set forth our position clearly in our discussions
with you. Where a former employee does not request that an agency
representative be present at his or her interview, it would effectively negate that
employee's decision and chill or distort the interview were we then to tell the
employee that a copy of the recording of the interview would be made
available to the government. Where we elect to record such an interview of a

301 7 lh Street SW, Room 5125

Washington, DC 20407
T 202.331.4060 F 202.296.5545
www.9-1 lcommission.gov
Page 2

former employee, we therefore do not plan to provide the government with

access to the recording.

We will be proceeding with our interviews based on these understandings.

. Sincerely

J v
;1 Marcus
^v,,,~ral Counsel
 16=34 202 616 0762 202 616 0762 P.01

U.S. Department of Justice

Washington, D.C. 20530

July 24, 2003

Philip Zelikow, Executive Director

Daniel Marcus, General Counsel
Steve Dunne, Deputy General Counsel
National Commission on Terrorist Attacks
Upon the United States
301 7th Street SW, Room 5125
Washington, D.C. 20407

Gentlemen: ^

I am responding to your July 1,2003 letter to Adam Ciongoli concerning interviews of

government employees. We share your interest in having the interviews proceed promptly and
appreciate your efforts to work with us to reach an accommodation in this area. In response to
the points set forth in your letter:

1. We agree that as a general matter there will be only one agency representative per
interview. In rare instances where particular issues are implicated, we may notify you Of our
need to have a second representative present to deal with that particular issue. */*•

2. Obviously, the agency representative's purpose is not to interfere with the conduct of
the interview, but rather to represent important Executive Branch and national security interests.
In that regard, the agency representative may, as appropriate, confer with the interviewee or
discuss concerns raised by particular questions with the Commission's interviewers.

3. In a further effort at accommodation, we will depart from longstanding Executive

Branch practice and accept your request for a presumption that interviews will be recorded if the
interviewee does not object and if the government timely receives a copy of the recording. This
agreement does not apply, however, to interviewees potentially related to the Moussaoui case,
who are addressed in the separate agreement relating to that case. Moreover, in certain
circumstances, which we expect will be rare, we reserve the right, consistent with established
practice, to object to recording because of specific issues relating to that particular interview. We
understand that in most instances the recording will be done by audio recording, but request that,
where an interviewee favors transcription by a court reporter, this request be accommodated and
a copy of the transcript be provided to the government. Copies of recordings or transcripts
provided by you pursuant to this paragraph will remain the property of the Commission and will
be lent to the government to be returned to the Commission before its termination date. Copies
of recordings or transcripts provided to the government will be maintained at the Justice
Department.
.>UL-24-2003 16=34 202 616 0762 202 616 0762 P.02

4. In the event you believe it would be inappropriate to have an agency representative

present at any particular interview, we will certainly be prepared to discuss that with you.

This agreement applies to all current employees and also applies to former employees
who request that an agency representative be present during their interview. We have not yet
reached agreement on how to handle interviews of former employees who do not request that an
agency representative be present and would like to continue to discuss that subject with you.

We reserve, of course, any applicable privileges that may apply with respect to particular
matters that may develop as the Commission's inquiry proceeds and we would expect that if any
difficulties arise they will be resolved amicably and in accordance with applicable law and
practice.

Please give me a call if you have any concerns about any part of this response. I
appreciate the constructive manner in which you have addressed these important issues.

Thank you.

Sincerely,

Daniel Levin

TI-ITQI