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April 18, 2004
Gorelick Swings, and Misses

Beleaguered 9/11 Commission member Jamie Gorelick, whose memo strengthening the so-called "wall" between intelligence-gathering and law-enforcement efforts caused a sensation in the commission hearings last week, writes a defense in today's Washington Post that mostly misses the mark:

The commission investigating the attacks of Sept. 11, 2001, has a critical dual mission to fulfill -- to help our nation understand how the worst assault on our homeland since Pearl Harbor could have occurred and to outline reforms to prevent new acts of terrorism. Under the leadership of former governor Tom Kean and former congressman Lee Hamilton, the commission has acted with professionalism and skill. Its hearings and the reports it has released have been highly informative, if often disturbing. Sept. 11 united this country in shock and grief; the lessons from it must be learned in a spirit of unity, not of partisan rancor.

First off, this lead paragraph contains assertions that simply aren't true. The decision to hold public hearings has been revealed to be a disaster, instantly causing great deal of partisanship on the part of several commission members, notably Richard Ben-Veniste and Bob Kerrey, of late, not to mention Gorelick herself. The tone and wording of the questioning, especially to current members of the Administration, has been accusatory and overly dramatic, while former employees of the government (who are busy selling books) received deferential treatment.

Further, the constant parade of commission members to talk shows and their discussion of their pre-conceived beliefs have demonstrated that, at the very least, their minds were made up before the public testimony ever began. To decribe their conduct as "professional" is ludicrous. What we have witnessed on television is the OJ trial of 9/11, where the commissioners play to the television cameras during the day and again during the evening, while doing their best to generate attention by indulging in character assassination either by implication or explicitly, such as questioning John Ashcroft's attention span. The tipping point came last week, when just prior to his questioning of Condoleezza Rice, Kerrey indulged in a one-minute rant against the Bush administration's current Iraq policy, which has no relation to the commission's mandate.

Gorelick then goes into a lengthy explanation of the wall, built over two decades of court and political decisions by the DoJ, of which Gorelick was neither the alpha nor the omega. She points out, rightly, that Ashcroft deputy Larry Thompson reaffirmed the Gorelick interpretation in an August 6, 2001 memo to the DoJ. Later, Gorelick acknowledges that the USA Patriot Act eliminated the policy and court decisions that buttressed the wall, allowing investigators of all stripes to share information.

What Gorelick does not mention is that her memo specifically stated that DoJ policy during the Clinton administration was designed to go beyond what the law required. She also fails to mention that the FISA Court Review determined that Gorelick's interpretation was not required by law or practice. She then makes an odd contradiction, having argued that Thompson endorsed her memo:

My memo directed agents on both sides to share information -- and, in particular, directed one agent to work on both the criminal and intelligence investigations -- to ensure the flow of information "over the wall." We set up special procedures because of the extraordinary circumstances and the necessity to prevent a court from throwing out any conviction in those cases. Had my memo been in place in August 2001 -- when, as Ashcroft said, FBI officials rejected a criminal warrant of Moussaoui because they feared "breaching the wall" -- it would have allowed those agents to obtain a criminal warrant without fear of jeopardizing an intelligence investigation.

Well, which is it? She just insisted that Thompson kept her memo in place two paragraphs earlier. Besides, the Moussaoui connection was the last new information to come to the attention of investigators; individual agents had come across small pieces of this conspiracy for over a year before Thompson re-endorsed the Gorelick policy.

The truth is that successive administrations did not realize that terrorism was an existential threat; they assumed terrorist efforts would mostly focus overseas, and the level of attack would be mostly car-bombs, and hijackings intended for extortion. In so believing, each administration was more concerned about creating the appearance of protecting civil liberties by putting roadblocks in the way of intelligence efforts designed to uproot foreign terrorist conspiracies hatching inside the US, even though FISA didn't require it. The Clinton DoJ, via Gorelick, went the furthest by explicitly telling its agents that their standard went beyond what the law required. Under those circumstances, and with the leftists in the US already shrieking that the incoming Bush administration would be the greatest threat to civil liberties since J. Edgar Hoover, the Bush administration failed to take the proper steps to return to the standard required by law instead of politics.

All Gorelick's whitewash in the Washington Post proves is that she should be testifying to this commission instead of passing judgement with it. The fact that she can't even tell the entire truth in her editorial leads me to believe that her testimony would be even less impressive than her performance, thus far, as a commissioner.

Note: Make sure you read Rocket Man's excellent take on this editorial at Power Line, and also Hugh Hewitt, who was inspired to respond on his day off.

UPDATE: Er, that was The Big Trunk's post over at Power Line, as Trunk himself notes in the comments. Ooops! (Perhaps I should put my glasses on when I blog, eh, Trunk?)

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Posted by Ed Morrissey at April 18, 2004 10:42 AM

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