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August 19, 2005
Dafydd: Jamie Gorelick's Other Job (Update From Captain Ed)

A commenter, vnjagvet (does that stand for Vietnam JAG veteran?), on my previous post, Dafydd: An Atta By Any Other Name, discovered a very interesting and provacative connection between the Department of Justice and the Department of Defense (under the Clinton administration) that may have a very strong bearing on the Able Danger scandal.

As noted earlier by many, many people, Jamie Gorelick, who was deputy attorney general (number two in the department) under Janet Reno, is widely credited, if that's the word I want, with explicating the wall of separation between intelligence and criminal investigations in a 1995 memo to FBI Director Louis Freeh and U.S. Attorney Mary Jo White. From the Wall Street Journal's, Gorelick's Wall: (paid subscription probably required)

At issue is the pre-Patriot Act "wall" that prevented communication between intelligence agents and criminal investigators--a wall, Mr. Ashcroft said, that meant "the old national intelligence system in place on September 11 was destined to fail...."

What's more, Mr. Ashcroft noted, the wall did not mysteriously arise: "Someone built this wall." That someone was largely the Democrats, who enshrined Vietnam-era paranoia about alleged FBI domestic spying abuses by enacting the 1978 Foreign Intelligence Surveillance Act (FISA).

Mr. Ashcroft pointed out that the wall was raised even higher in the mid-1990s, in the midst of what was then one of the most important antiterror investigations in American history--into the 1993 World Trade Center bombing. On Tuesday the Attorney General declassified and read from a March 4, 1995, memo in which Jamie Gorelick--then Deputy Attorney General and now 9/11 Commissioner--instructed then-FBI Director Louis Freeh and United States Attorney Mary Jo White that for the sake of "appearances" they would be required to adhere to an interpretation of the wall far stricter than the law required....

The memo is a clear indication that there was pressure then for more intelligence sharing. Ms. Gorelick's response is an unequivocal "no":

"We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation" (emphases added).

In case anyone was in doubt, Janet Reno herself affirmed the policy several months later in a July 19, 1995, memo that we have unearthed. In it, the then-Attorney General instructs all U.S. Attorneys about avoiding "the appearance" of overlap between intelligence-related activities and law-enforcement operations.

Gorelick's Wall has been blamed by many for the refusal to allow the data-mining Pentagon unit Able Danger to alert the FBI to the existence of an al-Qaeda cell operating in Brooklyn in August 2000... a cell that contained a certain person-of-interest named Mohammed Atta, along with three other eventual 9/11 hijackers. Many, including myself, have speculated that if that warning had been given, and if the FBI had taken it seriously and investigated, they might have broken up the cell a year before 9/11 -- and the attack might never have happened.

Jamie Gorelick has gotten a lot of blocking from her fellow 9/11-Commission teammates. Former Sen. Slade Gorton, for example, made the point, during his appearance on Michael Medved's radio show Wednesday, that the decision not to allow Able Danger to alert the FBI was not made by the Justice Department, where Gorelick then worked, but by "DoD lawyers." This has been taken as strong evidence exonerating Gorelick from any responsibility for this ghastly and foolish decision.

Enter vnjagvet. He first alerted me to a fascinating connection, which can be found on the 9/11 Commission's Website:

Prior to joining Fannie Mae in May 1997, Gorelick was deputy attorney general of the United States, a position she assumed in March 1994. From May 1993 until she joined the Justice Department, Gorelick served as general counsel of the Department of Defense.

As general counsel to the DoD, Gorelick was the top lawyer in the department (the position requires Senate confirmation). Recall that Janet Reno, Gorelick's soon-to-be boss, was attorney general during this entire time, and that Gorelick herself was the protege of none other than Hillary Clinton.

Warning, Speculation Alert!

It does not require very much imagination to suppose that Janet Reno had similar ideas about the required separation of intelligence and criminal investigation in 1994 as she did in 1995... hence, it is not much of a stretch at all to conclude that Jamie Gorelick would likely have the same attitude -- for career viability, if for no other reason. (And it seems logical that if she did not, she would not have been picked for such a political, mission-critical job as deputy attorney general less than a year later.)

So if, in fact, while Gorelick served as the top lawyer in the Pentagon, she had the same attitude towards sharing data between the intelligence and criminal divisions as she did a couple of years later, she would certainly have made crystal clear to her subordinates, the DoD lawyers, "which way the wind blows."

Then, after a scant ten months, she is given a huge promotion; and she quickly puts out an official memo reinforcing Gorelick's Wall... a memo swiftly reaffirmed by the AG in her own memo four months later. I believe the lawyers in the Department of Defense could be excused for believing that Gorelick's Wall was still very much in effect, even six years after she herself had moved on, first to Justice, then Fannie Mae. After all, Janet Reno was still attorney general; and Bill Clinton was still president.

So the Gorton defense of Gorelick starts to look mighty slim. It seems very likely (to me, at least) that Gorelick was just as responsible for erecting an informal wall among the DoD lawyers as she was for erecting a formal, written wall of separation at the Department of Justice a couple of years later.

And that puts her right back squarely in the responsibility crosshairs of the Able Danger scandal. Jamie Gorelick needs to be called as a sworn witness before any Congressional inquiry into the recent revelations about the 9/11 attack: the American people need to know what wall she erected -- and when she first erected it.

UPDATE FROM ED AND BUMP: I'm getting plenty of e-mail based on the releases at Media Matters and Think Progress about how the Gorelick memo only applied to the Department of Justice and not the Department of Defense. That's true as far as it goes, but the critics who have called on CQ to retract our statements of Gorelick's responsibility miss one important point: the Gorelick memo restricted the FBI from using intelligence data in domestic law-enforcement just as much as it prohibited it from sharing law-enforcement data with intelligence services. The wall runs in both directions, and the Army obviously does not have a law-enforcement agency with which to share Able Danger or any other intelligence information. Either it would go to the FBI or nowhere at all, and as Gorelick and Reno made clear, the FBI could not coordinate with intelligence services, inside or outside the DoJ. If one reads the 9/11 Commission's own report, as I noted yesterday, that's certainly how Gorelick's wall was understood by the FBI agents themselves.

Not only that, but as Dafydd alludes above [and as CQ readers Robert Crawford, vnjagvet and Barnestormer discussed in comments on another thread earlier today], Gorelick represented offical White House policy at both the DoD and DoJ. Those standards which she implemented would have been clearly understood as administration policy -- an administration that had communicated its mistrust of intelligence services in the past. Her role as a political appointee in both departments would make that crystal clear to the attorneys who had to decide whether to move forward with coordination. And the message that the Clinton White House clearly sent to all law-enforcement and intelligence services was that compliance with the law was insufficient; they wanted to avoid the least appearance of impropriety, at the expense of national security.

As Dafydd says, the issue should have been thoroughly investigated by the Commission, and Gorelick should have been a witness and not a panel member. The policy belonged to the Clinton Administration, but she was the instrument by which it was implemented.

UPDATE II: Here's the only relevant reference to this in the Commission report:

In July 1995, Attorney General Reno issued formal procedures aimed at managing information sharing between Justice Department prosecutors and the FBI.They were developed in a working group led by the Justice Departments Executive Office of National Security, overseen by Deputy Attorney General Jamie Gorelick.33 These procedureswhile requiring the sharing of intelligence information with prosecutorsregulated the manner in which such information could be shared from the intelligence side of the house to the criminal side.

These procedures were almost immediately misunderstood and misapplied. As a result, there was far less information sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the departments procedures. Over time the procedures came to be referred to as the wall.

So what did the Clinton administration and Jamie Gorelick do to fix the problem? The report remains silent on this, as does Jamie S. Gorelick. She should have testified in the public hearings on the steps taken to identify the effects of the Clinton policy of hypersensitivity and to correct them. Instead, she hid out on the panel, and the report gives no mention whatsoever after page 79 about Gorelick until the footnotes.

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Posted by Dafydd at August 19, 2005 12:15 PM

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