THE WHITE HOUSE

WASHINGTON
November 21,2003

Daniel Marcus, Esq.

General Counsel
National Commission on Terrorist Attacks Upon the United States
2100KStreetN.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" (i.e,, 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 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 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;
• 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, hi 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 wUl not inquire into deliberations with regard to
cither the formulation or implementation of policies after 9/20/01;
 • EOP 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 SCEF 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
 November 18, 2003

Daniel Marcus, Esq.

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

Dear Mr. Marcus:

I am writing to confirm the terms we have discussed for providing the National
Commission on Terrorist Acts Upon the United States ("Commission") with access to officers
from the Executive Office of the President ("EOF"). These terms would 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" (i.e., multiple letters from Chairman Kean and
Vice Chairman Hamilton dated October 27 and October 31, 2003).

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

writing, in order to minimize misunderstandings and any potential for disagreements during the
meetings to the maximum extent possible. These terms supplement the general interview
guidelines that we previously established and have been implementing with respect to interviews
of individuals from Executive Branch departments and agencies. As with those general
guidelines, I anticipate that both sides will apply a "rule of reason" when applying the below
terms, bearing in mind the overall guiding principle that, consistent with the specific guidance
below, we are trying to create rough equivalence with the access arrangements established for
EOF documents.

EOF officers -- both Commissioned Officers of the President, as well as others (including
all whom you have requested) who provide confidential advice to the President and his senior
advisers — are immune from testimonial compulsion by the Legislative Branch with regard to
their Executive Branch duties. Thus, it is long-standing White House policy not to assent to
requests for such testimony. We recognize, however, 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. Accordingly, we
currently are prepared to provide the Commission with access to EOF officers as follows:

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

• Commission access to EOF officers 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 officers);

• EOF officers 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 should not be recorded;

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

• Commission representatives will meet with EOF representatives reasonably in advance

(this will be presumed to be at least one week, though exceptions may be made upon
reasonable request) of any scheduled meeting to:

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

(2) identify, to the extent possible, particular documents made available to the
Commission in the secure NEOB space which interviewers intend to use in the
meeting;

(3) identify lines of inquiry with regard to an EOF officer's time at a department or
agency outside the EOF, if any, that the Commission would like to discuss, so that
EOF and Commission representatives may determine how best to handle such matters;

(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 WH meetings,
or otherwise regarding EOF officials;

(5) identify, to the extent it may be anticipated by the questioner, any questions
concerning individual conversations with, or concerning statements by, the President,
Vice President, National Security Advisor, White House Counsel, or Deputy National
Security Advisor;

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

available to the Commission, positions taken in specific meetings about which the
Commission intends to inquire, identifying: (a) dates of specific meetings about which
they may wish to inquire; and (b) to the extent possible, the specific
departments/agencies' positions about which they may wish to inquire (to the extent
that materials made available to the Commission are insufficient to identify particular
meetings about which the Commission seeks to inquire, we will work with the
Commission to accomplish the same goal by other means, for example, identifying
particular subject matters on which individual departments/agencies' positions about
 which they intend 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 from Summaries of Conclusion, notes, or
other documents, or from previous witness statements; look to the substance of the
discussion and the arguments presented, rather than verbatim exchanges; inquire into
personal or 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 or the implementation of policies in a manner that requires discussion
of operational detail, 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
either 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 White House Counsel's Office or National Security Council Legal
Adviser's Office);

• For Assistants to the President (or equivalent) and above: the Commission Chair or Vice
Chair must be present; one other Commissioner may attend, as well as two staff;

• For Deputy Assistants to the President (or equivalent): Chair or Vice Chair may, but
need not, be present; one or two other Commissioners may attend; as well as two staff.
At least one Commissioner must be present;

• For Special Assistants to the President (or equivalent) and below: Chair or Vice Chair
may, but need not, be present; one or two other Commissioners may attend, as well as
two staff; and

• Absent unusual circumstances, EOF officers will only be made available for one such
meeting.

As you have recognized, our accommodation with regard to making EOF officers
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 EOF officers 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 the agreement we have had regarding other EOF materials, information
obtained from EOF officers 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 purpose other than the purpose for which the
Commission made the request.

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.

Thank you for the spirit of cooperation and accommodation you have brought to our
discussions on this and other requests by the Commission. I look forward to continuing to work
with you as the Commission completes its work.

Sincerely,

Thomas A. Monheim
Associate Counsel to the President