Date: April 30, 2003

To: Philip Zelikow

From: Commissioner Tim Roemer

Re: Access to Information Compiled by The Joint Inquiry

CC: Commissioners

The United States Congress passed the legislation creating the National Commission on
Terrorist Attacks Upon the United States. On November 27, 2002 the President signed Public
Law 107-306 and stated his strong support for this statute:

"an aggressive investigation into September 11, with a responsible

concern for sensitive information that will allow us to win the war on
terror, will contribute to the security of this country...."

President Bush went on to say:

"We will follow every fact wherever they lead."

The law clearly states that the Commission should fully review and study the Joint
Inquiry's documents, interviews, transcripts and general work product. The Joint Inquiry's work
is the foundation and starting point for the Commission to base their staffing, organization,
resources, templates, and ultimately, their recommendations. The Commission is duly required
to review this material - and it is the Commission's duty to read it. Access to these documents
should not be screened, filtered, delayed, restricted or prohibited by the Joint Inquiry, Congress,
or the administration.

The Commission has agreed with this principle and affirmed it in our scheduled meetings.
This position has been recorded in our minutes. In our February 12th meeting Commissioners
discussed actions to facilitate early release of the Joint Inquiry Committee documents. We
reviewed the access issue and Commissioner Ben-Veniste urged that the Commission "should
not take off the table any statutory powers of the Commission." The Commission agreed. As
recently as the April 10th Commission meeting, Mr. Ben-Veniste noted "his strong
recommendation that the Commission set a reasonable point in time for a report on the nature of
cooperation by the Executive Branch agencies with the Commission." In other Commission
meetings there have been strong bipartisan views expressed by numerous Commissioners that we
have full and complete access to the Joint Inquiry's work. We have also expressed concern that
we not diminish or dilute this access in any way.
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In addition, a "memorandum" dated March 28, 2003, from you stated that: "A\\s who have their security c

best of my knowledge, there was no division or disagreement within the Commission on this
point of access. Nor was there any discussion to enter into an agreement to limit or delay this full
access. The Commission was on record conveying the importance of full access to these
transcripts. We were never informed of any ongoing negotiation or potential agreement to limit
or restrict it.

I was disappointed and surprised when I discovered on April 25th at the Ford Building that
I could not review 3 transcripts of hearings produced by the Joint Inquiry. I had even participated
in these hearings as a Member of the Joint Inquiry. Apparently, you had agreed with Mr. Adam
Ciongoli (a Justice Department official) a few weeks before that the administration could review
certain documents to consider whether they might eventually invoke executive privilege. I had
learned on April 24th that the administration might not want me to review these transcripts. I
telephoned both the Chair and Vice Chair of the Commission. Chairman Kean told me in the
early evening of the 24th of April that I should have "full and immediate access to all Joint
Inquiry materials." On the same day, Vice Chairman Hamilton strongly agreed with this
position, adding that he saw "no good reason to limit our access to this existing material."
Neither the Chairman or Vice Chairman was apparently notified (or did not recall) of this
agreement to prohibit the access to these transcripts from all the Commissioners and staff.
Consequently, I believed we had cleared up a misunderstanding with the administration.
However, on the morning of April 25th you informed me by telephone that I would not be able to
review or read these 3 hearing transcripts. You also said that Chairman Kean and Vice Chair
Hamilton now concurred with your position and your previously undisclosed agreement with Mr.
Ciongoli. This new position was confirmed by Mr. Hamilton. I still proceeded over to the Ford
Building on April 25th to refresh my memory regarding other transcripts and documents. I read
through other "available" information provided by the Joint Inquiry.

On April 25th I expressed my opposition to this agreement reached between you and Mr.
Ciongoli, to limit the Commissions access to the materials. I continued to express my concerns
to you and other Commissioners throughout the next few days. I believe it should not have been
negotiated in the first place. If it was negotiated, it then should have been presented to the
Commission. Furthermore, once the agreement was explained to me on April 25th you stated that
the administration should have a few more days to resolve this issue, and we should extend them
this courtesy. I remain deeply concerned about how the agreement was brokered and believe we
should not have agreed to this limitation and delay regarding Joint Inquiry materials (through
April 29th). I recommend that the Commission should have acted to void this "agreement"
immediately. If the administration decides not to invoke "privilege", I would still like this issue
to be discussed and recorded for the public minutes.

Therefore, I would request that the Commission fully discuss this issue of access to Joint
Inquiry material and how it was handled, at our next meeting on April 30th and May 1st. I would
ask that this be an agenda item and we ultimately decide our future policy with respect to whether
we enter into these "agreements' again and how they should be properly and effectively
communicated to the Commissioners. Here are some recommendations for future discussions
and policy:
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1. The Commission should not allow any organization, entity, or agency to preview
and screen Joint Inquiry documents within the context of so-called"agreements"
that in any way delay or prohibit our access to this essential material.

2. The administration should not be able to restrict or delay the Commission's access
to Joint Inquiry material by claiming "the possibility" of invoking executive
privilege. This "claim" seems utterly baseless in law. The executive branch has
previously released this information to Congress, and, thereby, waived their right
to exert "privilege". If they eventually argue for privilege, they have succeeded in
preventing Commissioners from ever reading the transcripts. If they do not
exercise that claim, they have succeeded in delaying the Commission's review of
the relevant material. The law creating the Commission affirms our right to this
Joint Inquiry material.

3. In a memorandum dated April 7, 2003 you wrote the Commissioners regarding

access to Joint Inquiry information. You stated that, "Prior agreements have
cleared the way for access to the Joint Inquiry Report by the Commissioners and
selected staff." You did not state in this memorandum that the Commissioners
did not have access to the 3 transcripts of Joint Inquiry hearings. You did not
inform the Commissioners of an existing or negotiated agreement with Mr.
Ciongoli. I would recommend any future "contemplated agreements" or
accommodations with agencies in the administration be fully discussed with all
the Commissioners beforehand. In addition, that any "proposed agreement" be
circulated in writing to the Chair, Vice Chair, and all the Commissioners.

4. The lack of effective communication and subsequent confusion on this "Zelikow-

Ciongoli Agreement" underscores the need for clear, precise, and written ground
rules between the agencies and the Commission. These ground rules may be
different for the various agencies We should have these circulated to the
Commission when they are firmly decided. Previously we discussed in
Commission meetings, whether to commence a written report on Executive
Branch cooperation with the Commission. We should move forward with this
debate.

5. One of the major questions impacting our access to important information will be
whether the administration intends to invoke executive privilege with respect to
our requests for National Security Council documents. What is your
understanding of their position at this point? Why, and on what grounds, would
they argue for this position? We should explore this now, even before we make a
document request. And what documents are we going to request?
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6. While the Commission has probably not sacrificed much legal ground on the
executive privilege issue (whether the administration eventually invokes it or not),
we have suffered the loss of some significant political, symbolic, and diplomatic
power. In addition to insisting that all information from the Joint Inquiry be
available to all the Commissioners, we might consider having Chairman Kean and
Vice Chair Hamilton make visits to the agencies to begin these discussions and
agreements.

7. In addition to the delay on access to the 3 hearing transcripts, we have been

restricted from viewing 18 of the Joint Inquiry interviews since early April. Are
all of those interviews available to all of the Commissioners? What was the
reason for this delay?

8. Do the Commissioners now have full access to all the information in the 3 hearing
transcripts that were previously restricted from us? Will any information be
redacted or withheld? Was there an agreement between you and Mr. Ciongoli to
redact information from the transcripts?

9. Is Mr. Ciongoli the point person and administration contact for all our future
negotiations in every agency we are seeking materials and documents from? How
can one person do this effectively and not slow down the process?