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9/11 Commission Shield

Newly Released Memo: Government ‘Minders’ at 9/11 Commission Interviews ‘Intimidated’ Witnesses

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April 27, 2009
History Commons Groups

A recently released 9/11 Commission memo highlights the role of government
“minders” who accompanied witnesses interviewed by the commission.
It was added to the National Archives’ files at the start of the year
and discovered there by History Commons contributor paxvector.

The memo, entitled “Executive Branch Minders’ Intimidation of Witnesses,”
complains that:

  • Minders “answer[ed] questions directed at witnesses;”
  • Minders acted as “monitors, reporting to their respective agencies on
    Commission staffs lines of inquiry and witnesses’ verbatim responses.”
    The staff thought this “conveys to witnesses that their superiors will
    review their statements and may engage in retribution;” and
  • Minders “positioned themselves physically and have conducted themselves
    in a manner that we believe intimidates witnesses from giving full and candid
    responses to our questions.”

The memo was drafted by three staffers on the commission’s Team 2, which
reviewed the overall structure of the US intelligence community. One of the
drafters was Kevin Scheid, a senior staffer who led the team. His co-writers
were Lorry Fenner, an air force intelligence officer, and lawyer Gordon Lederman.
The complaint was sent to the commission’s counsels, Daniel Marcus and
Steve Dunne, in October 2003, about halfway through the commission’s 19-month
life.

The memo makes clear that the problems were not occurring only with witnesses
talking to Team 2, but also in “other teams’ interviews.”
A hand-written note on a draft of the memo says, “not one agency or minder
— also where we’ve sat in on other Teams’ interviews.”

According to the memo, some minders merely policed prior agreements between
the commission and their parent agency about what the commission could ask witnesses,
and others were simply there to make a list of documents the commission might
want based on a witness’ testimony. However, some minders saw their role
differently.

Intimidation through Physical Positioning

The three staffers argued minders should not answer questions for witnesses
because they needed to understand not how the intelligence community was supposed
to function, but “how the Intelligence Community functions in actuality.”
However: “When we have asked witnesses about certain roles and responsibilities
within the Intelligence Community, minders have preempted witnesses’ responses
by referencing formal polices and procedures. As a result, witnesses have not
responded to our questions and have deprived us from understanding the Intelligence
Community’s actual functioning and witnesses’ view of their roles
and responsibilities.”

The memo also describes the minders’ conduct in detail: “…
[M]inders have positioned themselves physically and have conducted themselves
in a manner that we believe intimidates witnesses from giving full and candid
responses to our questions. Minders generally have sat next to witnesses at
the table and across from Commission staff, conveying to witnesses that minders
are participants in interviews and are of equal status to witnesses.”

The staffers also worried about minders taking “verbatim notes of witnesses’
statements,” as they thought this “conveys to witnesses that their
superiors will review their statements and may engage in retribution.”
They believed that “the net effect of minders’ conduct, whether
intentionally or not, is to intimidate witnesses and to interfere with witnesses
providing full and candid responses.”

Another problem with the verbatim notetaking was that it “facilitates
agencies in alerting future witnesses to the Commission’s lines of inquiry
and permits agencies to prepare future witnesses either explicitly or implicitly.”

Proposals

In response to this, the three staffers proposed not that minders be banned
from interviews, but a set of rules governing minders’ conduct. For example,
minders were to keep a “low profile,” sit out of witnesses’
sight, not take verbatim notes and not answer any questions directed at the
witnesses.

Perhaps the most remarkable proposal is that the number of minders be limited
to one per witness. The memo indicates that where an interviewee had served
in multiple agencies, more than one minder would accompany the witness. The
memo therefore requests, “Only one minder may attend an interview even
if the witness served in multiple agencies,” meaning a witness would at
least not be outnumbered by his minders.

False Statement by Chairman Kean

Commission Chairman Tom Kean, a Republican, first raised the issue of minders
in a press briefing in early July 2003 . He said, “I think the commission
feels unanimously that it’s some intimidation to have somebody sitting
behind you all the time who you either work for or works for your agency. You
might get less testimony than you would.”

He was asked about the minders again on September 23 at another press briefing.
Instead of saying the minders represented “intimidation,” he commented:
“Talking to staff, what they have told me is that as they’ve done
these interviews, that the interviewees are encouragingly frank; that they by
and large have not seemed to be intimidated in any way in their answers. …
I’m glad to hear that it’s — from the staff that they don’t
feel it’s inhibiting the process of the interviews.”

The commission’s Vice Chairman Lee Hamilton, a Democrat, commented, “it
is our feeling that thus far, the minders have not been an impediment, in almost
all cases.” He added that there were “one or two instances where
the question has arisen,” but, “neither are we aware at this point
that the presence of a minder has substantially impeded our inquiry. And nor
have we run into a situation where we think a witness has refrained from speaking
their minds.”

However, the Team 2 memo, sent a mere nine days after Kean and Hamilton’s
remarks, shows Kean’s statements to have been untrue. The memo even referenced
“Minders’ Intimidation of Witnesses” in the title, contained
unusually strong language and was co-drafted by a leader of one of the commission’s
teams.

Nevertheless, it is unclear whether Kean and Hamilton made the false statements
knowingly. One of the criticisms at the commission was that the ten commissioners
were cut off from the body of the staff, and all information that flowed from
the staff to the commissioners went through the commission’s executive
director, Philip Zelikow.

Author Philip Shenon, who wrote a history of the commission, found that at
the start of the commission’s work Zelikow drafted a welcome memo containing
ground rules for staffers, such as not talking to journalists. One of the rules
was that the staff should not talk freely to the commissioners. If a staffer
were contacted by a commissioner, he should not deal with the commissioner himself,
but contact Zelikow or his deputy, who would then “be sure that the appropriate
members of the commission’s staff are responsive.”

This rule was rescinded after complaints from some of the commissioners, including
former Deputy Attorney General Jamie Gorelick. Nevertheless, Zelikow’s
control of information continued. When the commission’s counterterrorism
team found a draft of the final report to be overly deferential to the FBI,
they did not launch a formal objection to the draft’s language though
the commission’s bureaucracy, but a female staffer cornered Gorelick “where
Zelikow would not see it–in the ladies room.

Source URL: http://hcgroups.wordpress.com/2009/04/27/…intimidated-witnesses/