The Honorable Bill Shuster
United States House of Representatives
Pennsylvania-9th, Republican
204 Cannon HOB
Washington, DC 20515-3809
Phone: (202) 225-2431

Dear Representative Shuster:

On January 15, 2009, I inquired into the new release by the Legislative Archive of 9/11 Commission Report documents and learned of the existence of the Commission’s Staff Monograph about the Wall. My inquiry prompted the Legislative Archive to review the monograph for release. On April 22, 2009, the Legislative Archive verbally informed me that the monograph was releasable and I would “likely have a copy in [my] hands within two weeks.” Yet a memo to me dated April 23, 2009 from the Legislative Archive in part states, “[I]t was determined by the National Archives that the monograph requires official declassification review before it can be released. I will submit the 35-page document to the reviewing agency as a mandatory declassification review request in your name tomorrow.” [1]

A person who had reviewed the staff monograph subsequently stated to me, “While it contains only a brief passage that might be considered sensitive in nature, the mechanics of information sharing, expect the DOJ to heavily redact it.” They added, “When Jamie Gorelick hears the monograph’s release has been held up, she will be furious.” They were not the first with knowledge of the monograph to describe it in those terms, albeit no one has disclosed to me its actual classified contents.

Those events and statements, coupled with previously released government documents, indicates to me that contrary to the 9/11 Commission’s founding principles and Executive Order 12958, political considerations motivated the DOJ to order – 4 ½ years after the Commission ended its work – an official declassification review of the monograph and to delay the release of eight related memorandums for record (MFRs).

Background:

1) The Legislative Archive released on January 14, 2009 an update to the Staff Monograph on Civil Aviation and approximately 40% of the 1,200+ MFRs summarizing interviews by Commissioners and staff that had been previously withheld [2]. 9/11 Commission materials are Congressional records not subject to the FOIA yet the remainder of their work was scheduled by the Commissioners to be released on “January 2, 2009, or as soon thereafter as possible,” and are subject to the mandatory release and appeal procedures of Executive Order 12958.

2) Among those DOJ-related MFRs released on that date were summaries of Commissioner and staff interviews of John Ashcroft, James Castello, Stephen Colgate, Jamie Gorelick, David Nahmias, Janet Reno, Jim Reynolds, Frances Fragos Townsend, and Michael Vatis. Yet an additional eight DOJ-related MFRs were listed ‘Classification Review Pending’ with no names showing for them [3]. Remarkably, the new release did not include MFRs for Eric Holder, Richard Scruggs, and Daniel Seikaly, who were well aware of the procedures and their debilitating effects upon information sharing with the Criminal Division.

3) Then acting OIPR chief Richard Scruggs informally created the Wall, on his own authority [4 and 5]. As indicated by then DAG Gorelick’s “beyond legal requirements” memo [6], Mr. Scruggs was also part of the working group that formalized those intelligence-sharing procedures.

4) Page 722 of the Bellows Report indicates senior DOJ officials were repeatedly informed that critical information was not being shared with the Criminal Division, as early as 1996, while Ms. Gorelick was still the DAG, and in 1997, 1999, and 2000 during Mr. Holder’s tenure as the DAG [7]. (Then AG John Ashcroft received a similar report shortly before 9/11):

“In June 1996, a memorandum was drafted for the Attorney General to issue emphasizing that contacts between intelligence and criminal agents were not prohibited. This draft memorandum was never issued, however. By September 1997, according to Daniel S. Seikaly, Director of the Executive Office for National Security (”EONS”), the Director of the FBI had complained to the Attorney General that, despite the July 1995 memorandum, OIPR was preventing the FBI from contacting the Criminal Division. According to a memorandum, Seikaly wrote at the time, the Attorney General was “anxious” to see the problem resolved. Deputy Attorney General Holder instructed Seikaly to convene a working group consisting of representatives from OIPR, the FBI, and the Criminal Division to address the issue. Seikaly concluded that the Attorney General’s memorandum was not being followed, indeed that both OIPR and the FBI “were ignoring the procedures out of an abundance of caution.” One suggestion was “simply to ask the Attorney General to … reassert the validity of the Procedures,” but there was some sentiment that it would be inappropriate for the Attorney General to issue a memorandum that essentially said “And we really mean it this time.” In the end, the working group was disbanded without recommendation and no significant action was taken.” [Bellows Report citations removed]

5) Per Chapter 3 of the 9/11 Commission Report, “Separate reviews in 1999, 2000, and 2001 concluded independently that information sharing was not occurring, and that the intent of the 1995 procedures was ignored routinely [8].

6) In late May 2009 an additional 200 MFRs are scheduled to be released yet neither the monograph nor the eight pending DOJ MFRs will be among them.

While, I am aware of my right to appeal the DOJ’s decision, should it withhold or redact the monograph and related memorandums, expediting their release might provide our nation a timely reminder of the “unintended consequences” of unchecked, institutional risk aversion. Despite the Commission’s portrayal of the pre-9/11 investigation as “a failure of imagination,” the FBI’s Criminal Division was procedurally shielded from critical information as the “planes operation” loomed and “the lights were blinking red.”

I ask that you assist me in this matter utilizing the full force of your good offices.

Respectfully,

/s/
Timothy W. Sumner
9/11 Families for a Safe & Strong America
(Emailed and mailed May 5, 2009. In addition, a senior staff person for Rep. Shuster confirmed on May 5, 2009 that he was in receipt of my email and letter.)

Notes:

1 – National Archives memo dated April 23, 2009

2 – 9/11 Commission Records, The National Archives (features new release)

3 – 9/11 Commission Memoranda for the Record (MFRs) (see Department of Justice)

4 – Bellows Report, Chapter 20 (see pages 712 through 714) (pdf reader required)

5 – 9/11 Commission Report, page 78, Chapter 3: Counterterrorism Evolves

6 – Memorandum from DAG Jamie Gorelick: ‘beyond legal requirements‘ (pdf)

7 – ibid. (Bellows Report, Chapter 20, see page 722)

8 – 9/11 Commission Report, page 79, Chapter 3: Counterterrorism Evolves

——

Updated, 10:40 a.m. EDT: Having just read a comment elsewhere, I realized memories fade, some portion of America paid no attention to the 9/11 Commission, and some were too young to remember. For those now interested, here are a few references:

‘The National Commission on Terrorist Attacks Upon the United States’ (also known as the 9-11 Commission) July 22, 2004

‘The Truth About ‘the Wall” by Jamie S. Gorelick, Washington Post, April 18, 2004

‘The Wall Truth: Gorelick provides the clearest proof yet that she should resign’ by Andrew C. McCarthy, National Review Online, April 19, 2004

‘President Gulliver’s Lawyer,’ Wall Street Journal editorial, January 10, 2009 (this prefaces the next reference)

‘Jamie Gorelick Defends Her FISA Record at Justice,’ letter to the WSJ Editor by Jamie Gorelick, January 16, 2009

My intent in pursuing this matter is not to blame — only Islamic terrorists are to blame for the mass murder of 2,975 people on 9/11. We must at least learn what precluded our detecting the September 11 plot to help prevent future attacks upon our nation.