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April 13, 2004
Jamie Gorelick: Part of the Solution, or the Problem?

Former deputy Attorney General Jamie Gorelick has been one of the more partisan members of the 9/11 Commission, clashing sharply with Condoleezza Rice during her public testimony, although not as rudely as her colleagues Richard Ben-Veniste and Bob Kerrey. Gorelick has been particularly critical of statements regarding the collection of intelligence and the failure to "connect the dots" by national-security agencies and the NSC themselves. However, as Andrew McCarthy points out in today's National Review Online, Gorelick is no disinterested observer to the structural problems between the FBI's efforts at coordinated intelligence with law-enforcement investigations into terrorists:

For those of us who were in the trenches of the struggle against militant Islam beginning in the early 1990s, it is jarring to hear, of all people, Jamie Gorelick now a member of the 9/11 Commission hectoring government officials about their asserted failure to perceive how essential it is that the right pieces of intelligence get into the right hands. Equally bracing is to read the account of Gorelick's star witness, former counterterrorism coordinator Richard Clarke that hero of the last 15 minutes who bemoans how, even though he "had asked to know if a sparrow fell from a tree" during the summer 2001, the FBI and CIA nonetheless failed to stitch together disconnected bits of information about al Qaeda operatives and flight schools. ...

Commissioner Gorelick, as deputy attorney general the number two official in the Department of Justice for three years beginning in 1994, was an architect of the government's self-imposed procedural wall, intentionally erected to prevent intelligence agents from pooling information with their law-enforcement counterparts. That is not partisan carping. That is a matter of objective fact. That wall was not only a deliberate and unnecessary impediment to information sharing; it bred a culture of intelligence dysfunction. It told national-security agents in the field that there were other values, higher interests, that transcended connecting the dots and getting it right. It set them up to fail. To hear Gorelick lecture witnesses about intelligence lapses is breathtaking.

The governing legislation guiding the FBI's use of material gleaned in intelligence gathering is FISA, which Congress passed in the 1970s as a way to allow the FBI to pursue legitimate national-security interests without descending into the kind of domestic spying it did under Hoover, especially later in his career. Civil libertarians rightly feared a return of federal snooping into legitimate areas of political activism, such as civil rights.

However, Congress never intended to require a "wall" to be built between the two functions of intelligence gathering and law enforcement within the FBI. That practice came in large measure from court decisions that were left unchallenged and from Department of Justice directives that emphasized the supposedly illegal nature of information-sharing between the two investigative tracks. As McCarthy notes, the 1993 World Trade Center bombing should have alerted the DoJ to rethink their policies on FISA:

In any event, by 1995 it should have been clear even to government lawyers that we no longer had the luxury of pretending that we were playing with the house money of pretending that we could safely saddle national-security tools like FISA with conventional law-enforcement restrictions. The time, instead, was ripe for a searching analysis of whether FISA was constitutional, whether it still made sense, and, at the very least, whether self-inflicted wounds like limitations on FISA evidence and unsustainable creations like the "primary purpose" test should be ignored, discarded, or challenged.

But the Justice Department, with Deputy Attorney General Jamie Gorelick in the thick of important policy decisions, did not see it that way. Committed to the bitter end to the law-enforcement mindset, and overwrought at the mere possibility of violating the ill-conceived "primary purpose" test, DOJ made matters significantly worse. It imposed severe procedural barriers against competent intelligence gathering.

The FISA Court of Review reported, in its own internal investigation into the failures that led to 9/11:

The procedures state that "the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division's directing or controlling the FI or FCI investigation toward law enforcement objectives." 1995 Procedures at 2, 6 (emphasis added). Although these procedures provided for significant information sharing and coordination between criminal and FI or FCI investigations, based at least in part on the "directing or controlling" language, they eventually came to be narrowly interpreted within the Department of Justice, and most particularly by [the Justice Department's Office of Intelligence Policy Review (OIPR)], as requiring OIPR to act as a "wall" to prevent the FBI intelligence officials from communicating with the Criminal Division regarding ongoing FI or FCI investigations. . . . Thus, the focus became the nature of the underlying investigation, rather than the general purpose of the surveillance. Once prosecution of the target was being considered, the procedures, as interpreted by OIPR in light of the case law, prevented the Criminal Division from providing any meaningful advice to the FBI.

McCarthy notes that since FBI agents are not practicing lawyers -- and presumably are not accomplished Talmudists either -- this was widely interpreted to mean that information-sharing between law-enforcement and intelligence-gathering activities were essentially illegal. The legal hurdles placed before agents made it clear that any attempt to rationalize information-sharing would almost certainly be rejected.

This situation preceded Gorelick and continued after her departure from the DoJ later in 1998. However, it clearly shows that Gorelick, far from being a disinterested investigator into the problems surrounding terrorism investigations, was enough of a player that she should really be testifying instead of analyzing the testimony of others. To my knowledge, no one else on the Commission had as much professional involvement in these processes, and that calls her membership into question, and also the supposedly non-partisan nature of their work.

For an example of the latter quality, the New York Times ran an article this morning detailing a preliminary report from the Commission criticizing Attorney General John Ashcroft before he even had a chance to testify before them. I am unaware of a credible process that judges people before they've had a chance to speak. This demonstrates the problem of having Gorelick as a member of the Commission; blaming Ashcroft's supposed "lack of interest" in counterterrorism very neatly shifts any potential responsibility from Gorelick herself for the structural defects of the counterterrorist effort itself.

How can any final report from this group be considered anything but a partisan effort to turn people into scapegoats?

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Posted by Ed Morrissey at April 13, 2004 12:59 PM

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