Stephanie Kaplan

Dan.Levin@usdoj.gov
ent: Wednesday, July 07, 2004 8:00 AM
fo: Philip Zelikow; Chris Kojm; Steve Dunne; Stephanie Kaplan; Dan Marcus
Cc: Dan.Levin@usdoj.gov
Subject: SELECTED SUBSTANTIVE COMMENTS ON CHAPTERS 6, 8 AND 10

Justice will have significant additional substantive comments on chapters 6 and 8 (and
possibly 10), but here are a few:

Chapter 6

- page 8-9: we believe describing implementation of the Millennium After Action report as
some proposals moved forward and others did not is misleading. We believe very little
progress was made implementing any of the proposals and the overhwelming majority were not
even begun let alone implemented before September 11. Moreover, there were far more
significant proposals than a centralized translation unit that were not implemented -
including disrupting the al Qaeda network and terrorist presence here using immigration
violations, minor criminal infractions and tougher visa and border controls; precisely the
kinds of steps taken after September 11. The discussion minimizes the fact that
significant proposals in this document were not acted upon.

endnote 196 refers to possibility of a CTC briefing of the Attorney General on March 9,
2001. We do not know the basis for this suggestion, but the Attorney General's calendar
shows no such briefing (and we have not seen any other evidence that such a briefing
occurred). The sentence should be deleted.

Chapter 8

•^ page 2, fifth paragraph: as is noted for the July 5 briefing (page 5), it should note
hat the May 15 briefing of the Attorney General by the CIA "only addressed threats
outside the United States"

Chapter 10

- Page 3: third paragraph, sentence beginning "New regulations" - in fact no new

regulations were needed for that purpose. The ability to detain illegal aliens until
cleared by the FBI existed under existing regulations.

Thanks

20
 Stephanie Kaplan
/^~From: Dan.Levin@usdoj.gov
>ent: Friday, July 09, 2004 12:24 PM
Co: Philip Zelikow; Chris Kojm; Steve Dunne; Stephanie Kaplan; Dan Marcus
Cc: Dan.Levin@usdoj.gov
Subject: SELECTED JUSTICE DEPARTMENT SUBSTANTIVE COMMENTS ON CHAPTERS 6, 8
AND 10

More to come.

1. Draft Chapter 8 at 10 & endnote 55: As the report notes, Mr. Pickard says the
Attorney General made the statement and the Attorney General denies it. In addition, (a)
Mr. Ayres, who was present at every meeting between the Attorney General and Mr. Pickard,
denies that the Attorney General made any such statement; (b) Mr. Thompson, who was
present at every meeting between the Attorney General and Mr. Pickard, denies that the
Attorney General made any such statement; (c) David Laufman, then Chief of Staff to Deputy
Attorney General Thompson, who was also present at the second briefing where Mr. Pickard
apparently claims that this statement was made, does not recall the Attorney General
making any such statement and, based on his interactions with the Attorney General, thinks
it highly unlikely that he made any such statement. The statements of Mr. Ayres, Mr.
Thompson and Mr. Laufman should be added to the discussion in the text (or comments of all
individuals other than Pickard's and the Attorney General's should be placed in the
endnote).

2. Draft Chapter 8 at 10: Mr. Pickard met with the Attorney General on August 2, so
the statement that there were no meetings between the two between July 26 and August 22 is
incorrect. (They also met on August 20 during this period, although that was not one of
the regular briefings.)

/— 3. Draft Chapter 8 at 10: The placement of the discussion about the

ickard/Ashcroft briefing is inappropriate. Mr. Pickard apparently claims that the
Attorney General made this statement in their second meeting - on June 28. Yet the
discussion is not placed at that point in the chronology. If it is to be included, it
should be moved to the proper point in the chronology.

4. Also misleading is the statement in the report that when asked whether there was
intelligence about attacks in the United States, "Pickard said he replied that he could
not assure Ashcroft that there would be no attacks in the United States, although the
reports of threats were related to overseas targets." Draft Chapter 8 at 10. While that
may be Pickard's description of events, other participants stated that Pickard repeatedly
told the Attorney General that they had no evidence of threats in the United States (which
was consistent with the CIA briefings the Attorney General had received). The Commission
should present this evidence as well.

5. With respect to the criticism of the Attorney General's May 10, 2001 budget
memorandum (Draft Chapter 6 at 35; Draft Chapter 8 at endnote 55): The statement of goals
in the May 10, 2001, memorandum is word-for-word from Attorney General Reno's strategic
plan for FY 2000-2005. As the May 10, 2001 memorandum explains, "the Justice Department's
Strategic Plan for FY 2000-2005 is the 'blueprint' that will guide the formulation of 2003
component program budget estimates and performance planning." It further explains that
budget requests "should be focused on the objectives outlined below." May 10, 2001
Memorandum at 1. And those objectives are verbatim the strategic goals from Attorney
General Reno's Strategic Plan for FY 2000-2005 (as should be obvious from the title of the
document since Attorney General Ashcroft had no involvement in any budget before FY 2002
and, therefore, could hardly have been the person responsible for preparing the strategic
plan for FY 2000-2005) . While it may be fair to criticize Attorney General Ashcroft for
not changing Attorney General Reno's strategic plan more quickly, it is not fair to do so
without noting that it was Attorney General Reno who promulgated those goals in the first
.—olace.

6. At any point where the May 10 memorandum is discussed (currently chapters 6 and
8), the report should include the following from Attorney General Ashcroft's May 9, 2001
testimony: "It goes without saying that our number one goal is the prevention of terrorist
33
acts." "One of this nation's most fundamental responsibilities is to protect its
citizens, both home and abroad, from terrorist attacks. The Department of Justice has no
higher priority than the protection of its citizens."

7. The discussion of the FY 2003 budget is unfair. The report states that in the
-rocess of preparing the FY 2003 budget, Pickard appealed for more counterterrorism
enhancements and the Attorney General denied this appeal on September 10. See Draft
Chapter 6 at 35. While this same statement was in the staff statement, the staff
statement at least noted that the same proposed FY 2003 budget included enhancements for
the FBI's information technology program. See Staff Statement 9 at 7. In addition, the
following should be noted:

* In September 2001, the FBI was operating under a Clinton/Reno budget in which
Attorney General Reno did not seek full funding of the FBI budget (and counterterrorism)
requests in her submission to OMB and President Clinton sought even less funding than was
proposed by Attorney General Reno.
*

* In eight out of eight years the Clinton Administration did not seek full
funding of the FBI's budget request, and in seven of those eight years Attorney General
Reno did not propose full funding of the FBI's budget request to OMB. The shortfall in
funding for information technology alone over the eight years totaled more than $800
million.
*
* In every one of the eight years, the Clinton/Reno budgets for the FBI included
less in actual dollars (let alone real dollars) for information technology than was
contained in the last budget of the first Bush Administration. The Clinton/Reno FY 2001
budget included $36 million less for information technology than in the last budget of the
first Bush Administration, eight years earlier.
*
* The FY 2003 budget being developed (which would not take effect until October
2002) also included, as of September 10, 2001, a proposed $300 million increase for the
FBI as a whole and a substantial increase for the FBI counterterrorism program over the
-last Clinton/Reno budget. While it did not seek full funding of everything FBI had
equested (as noted, eight out of eight Clinton/Reno budgets also did not seek full
funding of everything the FBI had requested), it did include substantial increases and
seek funds for each of the FBI's top priorities, including information technology. The
items not proposed for funding were those the FBI set as the lowest priorities - among the
"counterterrorism" items not proposed for funding were funds for a G-5 executive aircraft
and additional contract security guards for Quantico.

8. Where the FBI's information technology is criticized (see Draft Chapter 3 at 8),
the report should note that the FBI's information technology budget was underfunded by
$800 million versus FBI's requests in the eight years of the Clinton/Reno Justice
Department.

9. The report states: "neither the Gorelick memorandum nor the Reno procedures
governed whether information could be shared between intelligence and criminal agents with
the FBI, a separation that the Bureau did not begin making formally until well after the
procedures were in place." Draft Chapter 8 at endnote 85; see also Draft Chapter 3 at 5.
But Deputy Attorney General Gorelick's memorandum did precisely that. It stated: "All
foreign counterintelligence information (including all foreign counterintelligence
information relating to future terrorist activities) will be in classified reports which
will be provided to OIPR, but will not be provided either to the criminal agents, the
USAO, or the Criminal Division, without Federal Bureau of Investigation Headquarters and
OIPR concurrence." Gorelick Memorandum at 3 (emphasis added).

10. The report states: "A proposal to increase intelligence sharing went to
Ashcroft in March, right after he had received Lamberth's order. The proposal was
tabled." Draft Chapter 6 at endnote 241. There is no citation for this statement and it
--is not accurate. A memorandum was prepared by David Kris, but it never reached the
.ttorney General (Mr. Kris notes in his submission that there was no record of the
memorandum being sent to Attorney General Ashcroft, see endnote 76). These two sentences
should be omitted. (There was, however, a memorandum containing such a proposal that was
sent to Attorney General Reno in late 2000, which was not acted upon, as Mr. Kris notes in
34
his submission, see page 10 (noting that there was apparently consensus for a change and
meetings with Attorney General Reno to discuss it but no final action was taken by her).)

11. Chapter 10, page 3, fourth paragraph: The discussion of the detention program
"^ s misleading. The deterrence benefit was a result of the program. Without in any way
dnimizing any acts of abuse, they were a result of individuals violating the rules they
are supposed to be following, not a part of the program. To present the benefits of
deterrence and then note that some detainees were abused seems to suggest that they
balance out in analyzing the program - but one is a benefit of the program, the other is
deplorable but is not appropriately a cost of the detention program (any more than abuse
of inmates in any other setting is a cost of prosecuting people). Moreover, it is
important to keep in mind that there is a clear track record of illegal aliens who are
released on bond pending removal proceedings absconding. For example, a February 2003
Department of Justice Inspector General report found that while 94% of detained aliens are
deported, only 13% of released aliens are deported once their immigration proceedings are
concluded, and that high-risk aliens are particularly likely to abscond.

Thanks.

35
 Stephanie Kaplan
,-from: Dan.Levin@usdoj.gov
ent: Friday, July 09, 2004 3:18 PM
r'o: Dan Marcus; Stephanie Kaplan; Steve Dunne; Chris Kojm; Philip Zelikow
Cc: Dan.Levin@usdoj.gov
Subject: SELECTED SUBSTANTIVE JUSTICE COMMENTS ON CHAPTERS 1, 7 AND 8

More to come on these chapters, but some comments:

Chapter 1:

Pg. 14: No caller from Flight 93 said they thought the hijackers had a gun. This
paragraph refers to an incorrect statement attributed to passenger Jeremy Click. Instead,
the incorrect statement was made by Click's mother-in-law to police during which she
wrongly surmised that the hijackers had a gun. She later corrected it.

p. 50 fn. 29: Nydia Gonzalez was an operations specialist, not a reservations specialist.

p. 51 fn. 32: part of the description regarding the calls from attendant Amy Sweeney is
incorrect. Amy Sweeney made a total of 5 calls: 2 calls were not connected, 2 calls were
very brief and disconnected, and the other call was the lengthy call to Michael Woodward.
The calls at 8:22 and 8:24 did not connect. Sweeney did get through to Logan Flight
services at approx. 8:25 (1 min. 47 sees.) and 8:29 (43 sees.). These two calls got cut
off. Then, at 8:32 a.m., she had the 12 min. call with Michael Woodward.

There are a series of footnotes (43, 45, 48, 49, 56,57, 58) which cite to the Moussaoui
team briefing (the report says: "DOJ briefing, 'Phone calls from UA Flights 175 and 93'"
or "DOJ briefing on cell and phone calls"). That briefing should not be cited to.
/—Instead, the report should cite to the GTE Airphone records or cell phone records for the
ppropriate passenger, which is the actual evidence. The Moussaoui team members simply
nelped explain them.

Footnotes 77 and 78 on pg. 56 note the CVR for Flight 93. There is a statute that may
prohibit public disclosure of CVR information: 49 USC 1154.

Chapter 7:

p. 25: reference to "third semester" -- we question the accuracy of the code

interpretation. This should be checked with PENTTBOM team.

There are references in footnotes 51 and 52 on pg. 41-42 to "DOJ memo, Moussaoui
prosecution issues." The citation should be to the actual evidence, not the DOJ memo
which simply guided the staff to the appropriate evidence. FBI will provide proper
citations.

Chapter 8:

P. 18: The statement: "An unreliable operative and apparently unstable person, he had
fallen into the hands of the FBI" may be subject to misinterpretation. There is no
evidence that Moussaoui was unstable (at least in some senses of the word) - indeed, the
Court has already ruled that he is competent. We ask that the description of him as
unreliable and unstable be deleted.

38
 Stephanie Kaplan
,~From: Dan.Levin@usdoj.gov
ent: Thursday, July 08, 2004 5:26 PM
fo: Philip Zelikow; Chris Kojm; Steve Dunne; Stephanie Kaplan; Dan Marcus
Cc: Dan.Levin@usdoj.gov
Subject: RE: SELECTED SUBSTANTIVE COMMENTS ON CHAPTER 6

Page 34, last sentence: The budget discussion of the enhancements in the FY 2002 budget
proposal for the FBI is unclear. Assuming the reference to "additional funds" means the
8% increase, the examples given are incomplete and are not the largest items. The
enhancements total $170.8 million. The largest enhancement by far was for information
technology ($67.66 million), which has important counterterrorism applications; also
included are $31.3 million for counterintelligence; $17.7 million for incident response
readiness (a counterterrorism program item); $12.3 million for Olympic support (a
counterterrorism program item), $10.9 million for information technology relating to
translations (also having important counterterrorism applications) ; and a number of other
technology and support matters which would have applications for counterterrorism as well
as other programs, such as laboratory activation ($1.1 million), counterencryption ($8.2
million), data network interception ($7.7 million), telecommunications services ($6.5
million), motor vehicles ($4 million), tactical operations support ($1.4 million) and the
like.

31
 •po
Stephanie Kaplan
—From: Dan.Levin@usdoj.gov
ent: Thursday, July 08, 2004 3:22 PM
Co: Dan Marcus; Stephanie Kaplan; Steve Dunne; Chris Kojm; Philip Zelikow
Cc: Dan.Levin@usdoj.gov
Subject: SELECTED SUBSTANTIVE COMMENTS ON CHAPTERS 6 AND 8

More to come, but a couple:

1. Chapter 8 at 10: Mr. Pickard met with the Attorney General on August 2, 2001,
so the statement that there were no meetings between July 26 and August 22 is incorrect.
(They also met on August 20 during this period, although that was not one of the regular
briefings.)

2. Chapter 6, endnote 241: The report states: "A proposal to increase intelligence
sharing went to Ashcroft in March, right after he had received Lamberth's order. The
proposal was tabled." There is no citation for this statement and it is not accurate. A
memorandum was prepared by David Kris but it never reached the Attorney General. These
two sentences should be omitted. (There was, however, a memorandum containing such a
proposal that was sent to Attorney General Reno in December 2000, which was not acted
upon.)

29
Stephanie Kaplan
J=rom: Dan.Levin@usdoj.gov
ent: Friday, July 09, 2004 1:07 PM
fo: Dan Marcus; Stephanie Kaplan; Steve Dunne; Chris Kojm; Philip Zelikow
Cc: Dan.Levin@usdoj.gov
Subject: RE: SELECTED JUSTICE DEPARTMENT SUBSTANTIVE COMMENTS ON CHAPTERS 6, 8
AND 10

I have just heard from David Laufman who said that Barbara Grewe called him and, among
other things, informed him that the Commission believes that the Ashcroft statement to
Pickard would have been at their third meeting not the second.

If that is the case, the third meeting was on July 12 and was attended by the Attorney
General, Mr. Pickard, Deputy Attorney General Thompson and David Ayres. That would mean
that the other three people in the room besides Mr. Pickard all flatly deny that the
Attorney General made the statement Mr. Pickard claims he made. (Neither Mr. Garcia nor
Mr. Laufman was at this meeting.)

This would also mean that the appropriate point in the chronology for this meeting would
be July 12.

36
 Stephanie Kaplan
^—From: Dan.Levin@usdoj.gov
>ent: Monday, July 12, 2004 11:15 AM
To: Philip Zelikow; Chris Kojm; Steve Dunne; Stephanie Kaplan; Dan Marcus
Cc: Dan.Levin@usdoj.gov
Subject: ADDITIONAL COMMENT ON CHAPTER THREE

p. 20, second full paragraph [Atta went on-line from Germany to enroll in flight schools,
no source given]:

Although Atta went on-line to research flight schools, there is no evidence suggesting
that he enrolled in flight school on-line. Thus, Chapter 3 seems incorrect on that point.

58
 Stephanie Kaplan
_ From: Dan.Levin@usdoj.gov
;ent: Friday, July 02, 2004 4:27 PM
To: Dan Marcus; Stephanie Kaplan; Steve Dunne; Chris Kojm; Philip Zelikow
Cc: Dan.Levin@usdoj.gov
Subject: CHAPTER 5 SUBSTANTIVE COMMENT

From SEC :

page 26, line 10

change "determined that no one" with "uncovered no evidence that any one"

Thanks
 Stephanie Kaplan
,—-prom: Dan.Levin@usdoj.gov
ient: Friday, July 09, 2004 4:08 PM
To: Dan Marcus; Stephanie Kaplan; Steve Dunne; Chris Kojm; Philip Zelikow
Cc: Dan.Levin@usdoj.gov
Subject: TREASURY SUBSTANTIVE COMMENTS ON CHAPTER 3

TREASURY COMMENTS ON CHAPTER 3

page 18 in the middle of the page it states "... the intelligence components of the
Treasury Department." Should be "component" singular.

page 33 in the middle, reads: "During 1995 and 1996, President Clinton devoted
considerable time seeking cooperation from other nations in denying sanctuary to
terrorists and drying up their sources of money." More specifics or clarification was
requested in reference to this statement as it is not clear what is being referred to.

I believe this completes Treasury comments on chapters 3 and that Treasury does not have
comments on chapters 2, 8 or 10.

41