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April 14, 2004
Media: Dances With Gorelick

Walter Branigin filed a report yesterday at the Washington Post on the testimony of John Ashcroft at the 9/11 Commission, as well as that of Louis Freeh, Thomas Pickard, and Janet Reno. Imagine my surprise when the Post managed to miss the most intriguing part of Ashcroft's testimony -- that commissioner Jamie Gorelick had played an integral part in defending the flawed structure that stymied counterterrorism efforts for a decade and more:

For nearly a decade before the Sept. 11 attacks, he said, "our government had blinded itself to its enemies." He said U.S. covert action authorities were "crippled" in their ability to go after bin Laden by "a battery of lawyers" in the government who insisted that the United States should try to capture him before taking any lethal action.

Branigin never even mentions Gorelick by name, let alone discuss her memo to the FBI instructing them that their law-enforcement and intelligence-gathering units could only share information by jumping through legal hoops -- in effect, quashing any practical efforts to do so. Nor, not surprisingly, does Walter Pincus and Dan Eggen do much better in their report filed later on:

Ashcroft sought to blame the Clinton administration for many of the shortcomings in counterterrorism strategies before the attacks, taking the unusual step of publicly citing the work of a Democratic member of the commission, Jamie S. Gorelick, who served as a deputy attorney general in the Clinton administration. Ashcroft announced the declassification and release of a 1995 memo she wrote that outlined legal rules on sharing intelligence information, characterizing the guidelines as "the single greatest structural cause for the September 11th problem."

"We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies," Ashcroft said.

Ashcroft's pointed remarks capped a day of finger-pointing by current and former law enforcement and intelligence officials, who defended their own roles in assessing and fighting the al Qaeda threat while generally criticizing the missteps of others.

So the only mention of this astounding conflict of interest on Gorelick's part -- one which she apparently did not disclose to other commission members -- comes wrapped in an accusation of blame-shifting against Ashcroft. Funny, but I don't recall the headlines or articles resulting from Richard Clarke's testimony being couched in terms of blame-shifting, even though Clarke led counterterrorism efforts for the US for ten years prior to 9/11. Suddenly, when Ashcroft presents evidence of structural flaws to this commission tasked with discovering what went wrong in our intelligence analysis instead of selling a book, the Post goes into attack mode and ignores the Gorelick conflict of interest altogether.

CNN mentions Gorelick in its omnibus feature article on the entire day's testimony, but it never mentions any potential conflict of interest, even though Lou Dobbs confronted her about it immediately afterward:

Ashcroft appeared to criticize the Clinton administration early on in his testimony.

"We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies," he said. "Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions and starved for basic information technology."

Ashcroft criticized his predecessors at the Justice Department, saying a 1995 memorandum by then-Deputy Attorney General Jamie Gorelick -- now a member of the commission -- hamstrung the FBI beyond what the law required.

However, even though CNN doesn't think it worth a mention, Lou Dobbs confronted Gorelick on his CNN show and asked her whether she thought she should resign:

DOBBS: Let me ask you as well, former Acting FBI Director Thomas Pickard has questioned your role on the commission itself. You recused yourself today because of your association and work with Attorney General Janet Reno, suggesting that you should not be on the commission at all. Your response?

GORELICK: Actually, I'm not aware of that. I'm totally unaware of that.

No one, to my knowledge, has reported on Pickard's reservations about Gorelick's participation on the commission, not even CNN itself.

The Los Angeles Times runs a feature article today on this "wall", painting it as a "scapegoat" but explaining the issue in detail rather than attacking Ashcroft:

The wall the long-standing rule prohibiting criminal investigators and intelligence agents from sharing information with each other has since been significantly lowered in a series of post-Sept. 11 reforms.

Whether that wall is dismantled completely or the FBI itself is dismantled by having its intelligence function taken away is fast becoming a central focus of the commission's independent investigation.

Again, Gorelick's role in maintaining and deepening that wall never gets any mention by Josh Meyer at the Times, nor does the article even mention Gorelick by name. Their other story on Ashcroft's testimony mentions Gorelick and the memo, but past the jump:

Ashcroft also suggested that a particularly harmful policy that prevented FBI agents from seeking secret wiretap authority and sharing intelligence information stemmed in part from a memo drafted in 1994 by one of the members of the commission, Jamie S. Gorelick, a deputy attorney general in the Clinton administration at that time.

Ashcroft declassified what commission aides said was a 1994 memo from Gorelick instructing prosecutors and the FBI in the first World Trade Center bombing case on how to keep criminal and intelligence work separate.

The move surprised and appeared to dismay some of the commission members, although they discounted the significance of its contents.

Greg Miller and Richard Schmitt mention the commission's "despair" -- an interesting term -- but never reveals its cause. As far as I read it this morning, the Times joins the Post in its silence on Gorelick's conflict of interest.

In order to read anything about this issue, you have to turn to a surprising source -- the New York Times, which for once manages not to bury a lede on a story that puts Democratic partisans in a poor light. First, this story reports Gorelick's involvement in the wall's structure in much better detail than anything the Post or the LA Times bothered to attempt:

In his Tuesday testimony, Mr. Ashcroft pointedly blamed one of the commission members, Jamie S. Gorelick, for enacting the wall. Ms. Gorelick was the deputy attorney general in the Clinton administration who signed regulations in 1995 enforcing the wall. "In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required," Mr. Ashcroft said, adding that the wall specifically impeded investigations into two of the terrorists who hijacked aircraft on Sept. 11. ...

"Somebody built this wall," he said, citing Ms. Gorelick's 1995 secret memorandum.

"Although you understand the debilitating impacts of the wall, I cannot imagine that the commission knew about this memorandum. So I have had it declassified for you and the public to review. Full disclosure compels me to inform you that the author of this memorandum is a member of the commission," a reference to Ms. Gorelick.

The appeals court that demolished the wall said, however, that it had been erected earlier and was only codified by Ms. Gorelick. The court also said that it was "quite puzzling that the Justice Department, at some point during the 1980's, began to read the statute as" requiring a separation of the two fields of counterintelligence and criminal search warrants.

And then David Rosenbaum takes on the conflict of interest issue, although not just with Gorelick -- he broadens it to the entire commission:

As most people in the hearing room knew, he was referring to Jamie S. Gorelick, a Democratic member, who has been especially aggressive in questioning Bush administration witnesses. Ms. Gorelick did not respond to Mr. Ashcroft. From 1994 to 1997, Ms. Gorelick, now a lawyer in private practice, was deputy attorney general under Janet Reno in the Clinton administration.

This is the most direct conflict between the members' responsibilities on the commission and their past positions that has arisen in the public hearings. But all 10 members were once public officials, and all bring some baggage to the proceedings.

All the ex-lawmakers on the commission former Senators Bob Kerrey of Nebraska and Slade Gorton of Washington and former Representatives Lee H. Hamilton and Timothy J. Roemer, both of Indiana were members of intelligence committees when they were in Congress and had access to classified information about terrorism.

It appears that the primary culprit of the intelligence failure will be the structural hurdles placed recklessly in our counterterrorism efforts by a string of people, which neither starts nor ends with Gorelick, but certainly deeply involves her. Under those circumstances, the American public can have no confidence in any report in which she plays a significant part in shaping. No other member of the commission had this much impact on such a critical flaw. The public should demand the withdrawal of Gorelick from the 9/11 Commission, and they probably would if the media actually reported the story of the day anywhere near as well as the New York Times.

UPDATE: Welcome Instapundit readers! We'll be discussing this tonight when we fill in for Hugh Hewitt on his national radio show.

UPDATE II: Let's not forget Jamie Gorelick's other major conflict of interest -- her law firm's ties to defending the Saudis against trillion-dollar lawsuits for 9/11. Why does the press continue to treat Gorelick with kid gloves?

UPDATE III: Run, don't walk, to Robert Tagorda's excellent post on Gorelick to read her Congressional testimony defending the "wall" in 1995.

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Posted by Ed Morrissey at April 14, 2004 6:18 AM

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