Sept. 11 Commission closes first chapters

By SHAUN WATERMAN, UPI Homeland and National Security Editor   |   June 30, 2004 at 9:05 PM
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WASHINGTON, June 30 (UPI) -- The commission investigating the Sept. 11, 2001, attacks has sent drafts of the initial chapters of its final report to administration officials for a pre-publication review that is "somewhat murky, legally," United Press International has learned.

Following a process established in February by White House Chief of Staff Andy Card that commission and administration officials say has already been successfully employed in clearing the commission staff statements, the drafts of the first two chapters were sent to the Justice Department June 21, senior administration officials told UPI.

In a letter to Card in February, Commission Chairman Thomas H. Kean and Vice Chairman Lee H. Hamilton called the setting up of the process "a positive step" and said that the Justice Department official designated by Card as the administration's point man for the process, Dan Levine, had "performed superbly" so far.

UPI spoke at length about the pre-publication review process with three senior administration officials who requested anonymity and spoke on the condition that any direct quotes attributed to them be cleared beforehand.

The process, which administration officials say is uncommonly swift and has already resulted in unprecedented acts of declassification, is nevertheless something of a lightning rod for critics of the commission, who say that it will empower the administration to hide the extent of its failure.

"This whole process smacks of censorship," Kristen Breitweiser of the Family Steering Committee -- a group that monitors the commission for relatives of those killed in the attacks -- told UPI. "We were never happy with the White House having the final edit. Of course, national security must be protected, but the track-record of this administration is that they've used the excuse of national security to hide information that is just embarrassing or inconvenient."

The process is also likely to result in some "tricky" negotiations, Commission Staff Director Philip Zelikow told UPI.

Unlike the previous report on the attacks, produced jointly by the Intelligence committees of the House and Senate, there will not be a classified version redacted or censored for public consumption. Rather, Zelikow explained, the commission will produce a report which it considers "unclassified, in the sense that we believe nothing in it will hurt the national interest." He added that there will be lengthy classified annexes addressing particular topics "too specialized to be of interest to the public."

But since even the main report is based on secret information and the commission lacks the power to declassify, the drafts are being marked and handled as classified documents before they are reviewed.

During the summer of 2003 the congressional inquiry that investigated the Sept. 11 attacks engaged in a bitter and protracted battle with the executive branch over which parts of its report could be made public. Inquiry staff members complained, for instance, that defense officials had argued for the deletion from the unclassified version of information that was available on the Pentagon's Web site. In the end, large sections of the report -- including the now-infamous 28 pages detailing foreign support for the Sept. 11 plotters -- were redacted.

Officials from the Sept. 11 Commission -- formally known as The National Commission on Terrorist Attacks Upon the United States -- said they expected a much smoother ride this time around.

The process "is working better with us so far," said Zelikow. "We've already been able to reveal more than (the congressional inquiry) did, even in its final report.

"But to be fair," he added, "that may be because folks learned something from that process."

The commission's drafts are sent in what one of the administration officials called a "shotgun distribution" to a designated point of contact in each department or agency concerned, with tight deadlines set for them to review it and respond with any concerns.

Zelikow described the process as "somewhat murky, legally," but pointed out that it was "completely different, both legally and practically, from a declassification process." In essence, he said, the burden of proof in normal declassification procedures is reversed. Any agency that has concerns will have to explain "specifically how the national interest would be damaged by release of the information."

"There will be discussions," he said, about how exactly to express information in ways that do not compromise intelligence sources and methods. "We will say things like, 'Is it all right if we put it this way?'"

He said it was "unclear what would happen" if disputes could not be resolved by negotiations but pointed out that the process had been used successfully for the staff statements produced since the Card memo established the new process in February.

Both commission and administration officials say that the process is working well. "We are very optimistic about how this is going to work out," said commission spokesman Al Felzenberg.

Administration officials say there is a new, more open mindset -- something evidenced by the declassification of one of the most highly classified national-security documents of all: the Presidential Daily Brief of Aug. 6, 2001.

Officials say that, although under the law the administration must continue to balance the public's interest in finding out what went wrong with the need to protect national security, the mindset had changed.

"It's the same balance," one said, "but as the (Card) memo makes clear, the president has already decided that there's a significant interest in making as much of this material public as possible."

The Card memo requires every department to "designate an appropriate senior official" to lead the review. "It's not just a White House judgment," said one administration official. "We want others to help us (strike that) balance."

To ensure the process is quick enough to meet the onrushing deadline for the commission to complete its work by July 27, the Card memo says, "Designated officials should have authority to make timely classification/declassification decisions and be available to dedicate a substantial portion of their time to the review during the relevant period."

Officials say that normal declassification procedures can take months, and it became clear at the beginning of the year that they might not have that kind of time. "The commission made it clear their schedule was going to be highly compressed in spring and summer and they were going to be getting into a lot of very sensitive areas one after the other," one official explained. The Card memo was designed to short-circuit those procedures.

"What we tried to do," the official continued, "was set up a process that cut out the middle levels of bureaucracy and gets it right up to -- or close to -- the officials who can actually make the decisions, which saves a lot of time."

Since the memo was circulated, the commission has produced a dozen staff statements to accompany its hearings. Administration officials say that declassifying the statements -- since they covered what one called "the most sensitive issues of both classification and deliberative process" like counter-terrorism policy, the presidential response on the morning of Sept. 11 and weighty foreign-policy issues -- required some "heavy lifting." But it also helped them "fine-tune the process."

On each occasion, the work was completed in days. "The fruit of (this new process) is the speed with which we have been able to turn (those staff reports) around," said the official. "The way that we've set this up," he summed up, "makes it more likely that information gets declassified, and it's a much quicker turnaround."

Critics charge that this pre-publication negotiation will deprive the public of the right to know how much is being kept from them.

"Visible redactions like the congressional inquiry used at least show people how much the White House wants to keep secret," says Breitweiser. "This way -- negotiating the redactions behind closed doors before publication -- means that we won't know how much is being kept from us."

But Zelikow contends the commission had little choice. "As a condition of getting access to other people's information, we are required to give them the chance to examine the report before publication," he said.

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(Please send comments to nationaldesk@upi.com.)

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