Thomas H.

Kean
CHAIR April 2, 2004
Lee H. Hamilton
VICE CHAIR
MEMO to Front Office; Graham Guisti
Richard Ben-Veniste

Fred F. Fielding Here is the final, toned-down version of a draft letter we saw a week ago or
so. (The paragraph scolding us on leaks has been eliminated, among other
Jamie S. Gorelick things.) I recommend that we NOT circulate this to Commissioners.
Slade Gorton
Dan Marcus
Bob Kerrey

John F. Lehman

Timothy J. Roemer

James R. Thompson

Philip D. Zelikow
EXECUTIVE DIRECTOR

3017 th Street SW, Room 5125 26 Federal Plaza

Washington, DC 20407 Suite 13400
T 202.331.4060 F 202.296.5545 New York, NY 10278
www.9-11 commission.gov T 212.264.1505 F 212.264.1595
 THE WHITE HOUSE
WASHINGTON

April 1, 2004

Daniel Marcus, Esq.

General Counsel
National Commission on Terrorist Attacks Upon the United States
3017th Street, SW
Washington, B.C. 20407

Dear Mr. Marcus:

We appreciate the Commission's efforts to work through several difficult issues related
to your hearing on Counterterrorism Policy on March 23-24 and look forward to your next
hearing scheduled for April 13-14. Such hearings provide an important forum to discuss issues
relevant to the Commission's inquiry, while not jeopardizing national security or compromising
other vital interests of the U.S. government, if they properly balance two critical national
interests: enhancing the public's understanding of events leading to September 11,2001, and
protecting our ability to conduct counterterrorism operations to prevent future attacks of equal or
greater severity.

We also appreciate the Commission recognizing its duty to assistan the protection of
classified and other highly sensitive information from unauthorized disclosure. To that end, the
Commission has previously committed to provide us with materials prepared by the Commission
for public disclosure with a reasonable time to review them so that we can: (i) verify that no
classified information is disclosed hi the materials; and (ii) determine the extent to which the
materials implicate interests protected by the constitutional doctrine of executive privilege (as
memorialized in your letter to me dated July 29,2003).

We are committed to the expeditious review of materials you provide and to the
maximum possible public disclosure of information consistent with national security, with the
broader foreign policy interests of the United States, and with the important constitutional
principles involved. As you know, at Secretary Card's direction, we have also taken the
extraordinary step of establishing a special high-level-review group of senior officials at the
relevant departments and agencies to help accomplish this.

The pre-publication review process cannot be performed efficiently and effectively,

however, unless the Commission adequately sources and marks its material and provides
sufficient time for the process to work. In particular, as we have previously advised you, it
would greatly facilitate our review of staff statements and, most importantly, 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 that you received in unclassified form or is derived
exclusively from unclassified documents; and (iii) mark, with the current classification level as
indicated on the source document, all information which was provided as classified, identifying
any portions of that material 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 those arguments when the statement (or portion of the report) is
provided.

Unfortunately, only one of the four draft staff statements for the Commission's last
hearing was submitted - as previously promised - at least two weeks before the scheduled
hearing. More importantly, none of the four statements was adequately sourced or marked. We
are concerned that the lack of such sourcing and marking may jeopardize our mutual goal of an
expeditious and effective pre-publication review.

Moreover, in addition to helping facilitate our pre-publication review of the materials, the
Commission must properly mark and source materials derived from classified materials as part
of its obligation to protect national security and comply with applicable security regulations. In
this regard, we hope that all draft staff statements, portions of the report, and public comments
potentially derived from classified information will be approved by the Commission's career
Security Officer, who will ensure that they are properly marked, sourced, and handled.
Commissioners and staff, of course, have no classification or declassification authority and may
only "derivatively" classify newly produced documents by marking portions derived from
documents, interviews, or meetings, at the same level as the original information itself.

In any event, please provide all future staff statements and portions of the report in a
timely manner and with appropriate sourcing and marking. The provision of such portion-
marked and sourced materials in a timely fashion will be necessary to facilitate Executive
Branch clearance both of future staff statements and the Commission's report in a timely fashion.

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

Sincerely,

A/Monheim
fciate Counsel to the President