COMMUNICATION IN CONFIDENCE

THE WHITE HOUSE

WASHINGTON

October 20,2003

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:

As Judge Gonzales explained to Chairman Kean and Vice Chairman Hamilton in his
letter dated October 20,2003, we remain gravely concerned about the potential for unauthorized
disclosures of highly classified and sensitive information, particularly as the Commission is
pressing for even more extraordinary access to some of the Nation's most sensitive documents.

As you and I have discussed in detail, recent circumstances have served to further
undermine our confidence in the Commission's ability to protect from disclosure classified
information and other information furnished in confidence to the Commission. Specific
incidents include, but are not limited to the following (which is not intended to and does not
confirm or deny any factual assertion reported in the press):

• On September 8,2003, U.S. News & World Report ran a story ("Pieces of the Puzzle" by
Chitra Ragavan and Mark Mazzetti) quoting Commissioner Richard Ben-Veniste
discussing the TOP SECRET air threat conference call transcript. Immediately following
that incident, Judge Gonzales and I were assured mat the Commission had taken "internal
measures" to prevent another such incident.

• On September 24,2003, L.A. Times ran a story ("Conflicting Views Arise on State of
9/11 Inquiry" by Greg Miller) quoting Commissioner Max Cleland discussing the
Commission being "stuck in negotiations over key materials including intelligence briefs
that President Bush received in the months leading up to the attacks."

• On September 25,2003, Newsweek ran a story ("Full Disclosure?" by Michael Isikoff)

quoting "sources familiar with the negotiations" that "White House lawyers are still
resisting turning over to the September 11 Commission key documents — including the
text of daily intelligence briefs provided to President Bush in the months before the
attacks..."

• On October 3,2003, Judge Gonzales wrote a letter to Chairman Kean and Vice Chairman
Hamilton (following up on telephone conversations on October 1) expressing his
concerns regarding the potential for unauthorized disclosures of highly classified and
sensitive information.

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• On October 10,2003, the Commission released a public statement that included a bullet
noting that "the White House has agreed to brief all Commissioners on another set of
highly sensitive documents." Although we expressed to you our concern that this
formulation would invite direct media questions about the PDB issue, you assured us that
to the Commission would not answer any questions as to what that bullet was meant to
include.

• On October 14,2003, the Commission received a briefing regarding the PDB's. In that
briefing, EOF staff stressed the extreme sensitivity of PDB information and the briefer
stated that these documents are viewed by CIA as the most sensitive intelligence products
in the world.

• On October 15,2003, Newsweek posted a story on its website ('TAA Foot Dragging?"
by Michael Isikoff and Mark Hosenball) that quoted Commissioner Ben-Veniste
discussing the Commission's subpoena to FAA. The story also reported that
"investigators want to know why.. .the FAA wasn't already on alert for a possible
hijacking plot and why there was no policy in place that allowed a military response to a
domestic hijacking ~ even after multiple warnings about such a possibility had been
given to President Bush and other senior officials during the summer of 2001." The story
also discussed the air threat conference call transcript, noting that President Bush and
Vice President Cheney were on the call, and referenced the timing of "an order giving the
military authority to shoot down hijacked aircraft." I then called you, and Judge
Gonzales called Vice Chairman Hamilton, to express our significant concerns about these
reports,

• On October 16,2003, the Washington Times ran an article ("9/11 Panel Votes to
Subpoena FAA" by Shaun Waterman) that reported that "among the documents being
requested by the Commission are the highly classified presidential daily briefings..." and
quoted Commissioner Roemer as saying, among other things, that "As a member of the
Commission, I believe that we need access to the PDB's. I hope we get access to all the
sensitive documents we need."

As we have discussed with you in detail, we also remain concerned that certain
Commissioners and staff are failing to comply with the agreed upon principles for notetaking
memorialized in your letter to me dated July 29,2003, by (1) "effectively recreating" substantial
portions of the EOF documents reviewed and (2) not "reasonably limiting" their direct quotes
from HOP documents. Our concerns regarding these notetaking issues are dramatically
heightened by our concerns regarding the apparent inability or unwillingness of certain
Commissioners or staff to protect from disclosure highly sensitive information.

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Although we do not doubt that you - or the majority of the Commissioners and staff-
are making good faith efforts to prevent such disclosures, the potential damage to national
security from unauthorized disclosure of certain material being made available to the
Commission could be grave even if only one person disclosed it. In addition, these issues
increasingly consume the already limited time of both EOF and Commission staff that could
better be used to facilitate access to additional information by the Commission or to address
other important issues. We look forward to renewed efforts by the Commission to maintain the
security of its activities and we look forward to working in continued cooperation with the
Commission as the Commission completes its work.

Sincerely,

ociate Counsel to the President

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THE WHITE HOUSE /

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WAS HIN GTO N/""

October 20,2003

Thomas H. Kean, Chairman

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

Dear Chairman Kean and Vice Chairman Hamilton:

As you have acknowledged, the Executive Branch has provided the National Commission
on Terrorist Attacks Upon the United States with remarkable access to many sensitive
documents. Because the Constitutional and statutory responsibility to protect sensitive
information from unauthorized disclosure rests with the President and his subordinate officers,
our ability to provide the Commissioners and staff with access to such information needed to
perform the Commission's duties is dependent on the degree to which we can, in good faith, be
confident that unauthorized disclosures will not ensue. As I have discussed with you, recent
circumstances have served to undermine that confidence.

We remain deeply troubled that the Commission appears unable to protect sensitive
information and sensitive internal discussions between the Administration and the Commission,
despite our expressions of concern and repeated warnings to the Commission of the potential
consequences of their disclosure, including my letter of October 3rd to you. We do not doubt that
you as Chairman and Vice Chairman are making good faith efforts to prevent such disclosures.
But our ability to deliver sensitive information to the Commission and our willingness to engage
in open and candid discussions, both procedural and substantive, depends on the Commission's
ability to protect such communications and information.

As I said in our telephone conversation last week, the Commission's response to the
latest incident we discussed will have a direct bearing on your most recent request for additional
access to certain highly sensitive materials. We welcome any ideas you might have regarding
ways to help restore confidence in the Commission's ability to protect such sensitive
information, and we look forward to continuing our cooperation with the Commission as it
works to complete its statutory obligations in a timely fashion.

Jerto R. Gonzali
Counsel to the President