9/11 commission sets precedent for executive privilege challenges

The federal commission investigating the Sept. 11 terrorist attacks faced many legal hurdles getting access to information but, in the end, set a precedent that challenges what the executive branch can claim as privileged material, the panel's chief counsel said Thursday.

One of the biggest legal challenges the commission faced was gaining access to presidential daily briefings, the highly classified intelligence reports prepared for the president and top administration officials.

The commission successfully argued that the briefings did not fall under the strict control of executive privilege, setting a precedent with implications that are unknown for the future, said Daniel Marcus, the panel's general counsel, during a forum in Washington.

According to Marcus, the commission did not have to resort to legal action to get the briefings, gaining access instead through negotiations with White House lawyers.

"The precedent is not a legal precedent; it's a practical precedent," he said. "But the law on executive privilege is so underdeveloped that the impact it will have is hard to say."

Marcus said the commission laid out four main reasons for accessing the briefings. First, the briefings did not contain deliberative information or advice to the president, only facts. Second, the briefings were written and delivered by mid-level CIA analysts, rather than the president's closest advisers. The briefings also were reviewed by multiple administration officials.

Lastly, the commission did not intend to make the briefings public. The commission's final report, however, contains text taken directly from some of the briefs.

The commission established a four-person review team that eventually reviewed every PDB that was requested, according to the panel's Web site. The team prepared a detailed report on all PDBs of critical importance to the commission's mandate, and then briefed the other commissioners.

Marcus said the commission gained unprecedented access to White House documents from both the Clinton and Bush administrations. One of the most controversial items was the Aug. 6, 2001, PDB entitled Bin Laden Determined to Strike in U.S. The White House initially opposed releasing that briefing, but finally declassified it in April after National Security Adviser Condoleezza Rice testified before the commission.