October 2, 2003: 9/11 Commission Staffers Complain about ‘Executive Branch Minders’ Intimidation of Witnesses’

Three 9/11 Commission staffers write a memo entitled “Executive Branch Minders’ Intimidation of Witnesses.” The memo describes how minders sent by government agencies are affecting what happens when the Commission tries to interview witnesses. Some minders:
“Answer […] questions directed at witnesses.” The memo says this is bad because the Commission needs to understand not how the intelligence community is 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,” meaning they do not tell the Commission how the intelligence community actually works and what they think their job is.
Act as “monitors, reporting to their respective agencies on Commission staffs lines of inquiry and witnesses’ verbatim responses.” The staff thinks this “conveys to witnesses that their superiors will review their statements and may engage in retribution.” They believe 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 note-taking is that it means agencies can alert future witnesses to the Commission’s lines of inquiry and it “permits agencies to prepare future witnesses either explicitly or implicitly.”
Position “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.” [9/11 Commission, 10/2/2003]
Drafters - The memo is drafted by three staffers on the Commission’s Team 2, which is reviewing the overall structure of the US intelligence community. One of the drafters is Kevin Scheid, a senior staffer who leads the team. His co-writers are Lorry Fenner, an Air Force intelligence officer, and lawyer Gordon Lederman. [9/11 Commission, 2003; 9/11 Commission, 10/2/2003; Shenon, 2008, pp. 87-88, 156] The complaint is sent to the Commission’s counsels, Daniel Marcus and Steve Dunne, in October 2003, about half way through the Commission’s 19-month life.
Not Just One Team - The memo makes clear that the problems are 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.”
Proposed Response - In response to the problem, the three staffers propose a set of rules governing minders’ conduct. For example, minders are to keep a “low profile,” sit out of witnesses’ sight, not take verbatim notes, and not answer any questions directed at the witnesses. In addition, the number of minders is to be limited to one per witness. Previously, where an interviewee had served in multiple agencies, more than one minder would accompany him. [9/11 Commission, 10/2/2003]
Previous False Claim - Nine days before, the Commission’s chairman and vice chairman, Tom Kean and Lee Hamilton, had downplayed the effect minders were having in interviews. Kean had even said the staff “don’t feel it’s inhibiting” interviews (see September 23, 2003).