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August 22, 2005
The Gorelick Wall Encompassed Defense, CIA, And State (Updated!)

One of the arguments at places like Think Progress and other sites which have made themselves the defenders of former Deputy AG Jamie Gorelick consists of pointing out that Gorelick didn't work at the DoD when she erected the "wall" separating intelligence and law enforcement operations. Therefore, they argue, she had no effect on the DIA's decision not to share information with the FBI. As I pointed out earlier, that argument fails for two reasons. The first is Gorelick's earlier assignment at the DoD as general counsel for ten months, during which one supposes she promulgated Bill Clinton's policies as the top attorney at Defense just as she did later at Justice. The second, and most obvious, is that as the number-two person at Justice, she still set policy for the FBI. Since sharing and cooperation require two parties to work together, her wall would have made any attempt to engage the FBI pointless.

Now William Tate at What's In The News points out another reason why the "wall" constrained Defense. Gorelick addressed her 1995 memo to several different people:

* Mary Jo White, US District Attorney, prosecuting the 1993 WTC bombing terrorists

* Louis Freeh, FBI Director

* Jo Ann Harris, Assistant Attorney General, Criminal Division (DoJ)

* Richard Scruggs, Chief Counsel, Office of Intelligence Policy and Review

This last addressee makes the connection to the Department of Defense that the Gorelick defenders claim didn't exist. As Tate points out and as the OIPR website makes clear, the DoD looked to the OIPR for legal opinions on anything having to do with the legality of their operations, especially in regard to those involving domestic targets:

The Office of Intelligence Policy and Review, under the direction of the Counsel for Intelligence Policy, is responsible for advising the Attorney General on all matters relating to the national security activities of the United States. The Office prepares and files all applications for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act of 1978, assists Government agencies by providing legal advice on matters of national security law and policy, and represents the Department of Justice on variety of interagency committees such as the National Counterintelligence Policy Board. The Office also comments on and coordinates other agencies' views regarding proposed legislation affecting intelligence matters.

The Office serves as adviser to the Attorney General and various client agencies, including the Central Intelligence Agency, the Federal Bureau of Investigation, and the Defense and State Departments, concerning questions of law, regulation, and guidelines as well as the legality of domestic and overseas intelligence operations.

The inclusion of Richard Scruggs, the lead counsel at the OIPR, intended to send the message that any advice given to the DoD, CIA, and State regarding the sharing of files had better fall in line with her new stated policy of going "beyond the law" to avoid any appearance of impropriety. Given that Gorelick held a high-profile position within Justice as a political appointee of Bill Clinton, this policy would rightly get attention as an official directive of the President's wishes. The one office that all of these intelligence agencies would consult in terms of sharing and coordination between themselves and law-enforcement operations would therefore have advised all agencies to follow the Gorelick Wall as a standard and as White House policy.

Given that kind of connection, it doesn't take much imagination to understand why all of these agencies became shy about even attempting to stretch the limits of the Gorelick policy.

The notion that Gorelick's memo had no effect outside the DoJ does not stand up to scrutiny at all, once the fact and intent of including Scruggs and the OIPR become known. This shows why Mary Jo White objected so strenuously to this memo and its implementation, and why she went out of her way to antagonize her bosses at the DoJ with a second and more heated memo predicting, correctly, that such a policy would leave America unprotected against the very people she had just successfully prosecuted.

It's bad enough that Gorelick erected that wall in 1995. It's ludicrous that four years after 9/11, people waste their time defending her and her participation in the 9/11 Commission as a panel member instead of a witness.

Addendum: Relating this to Able Danger, one can easily see why the Wall kept the DoD from pursuing an FBI investigation of the program's findings. The AD team would have asked for permission from DoD attorneys, as Col. Tony Shaffer has said was done three times, and all three times the attorneys denied the request. Either they already had great familiarity with Clinton's policies -- which probably was the case -- or they consulted with the OIPR and got the Gorelick policy from Scruggs and his team.

Scruggs, by the way, was no mere bystander in this issue. He pressed for stricter constraints on information sharing in 1994, after the prosecution of Aldrich Ames for espionage. He complained about the supposedly loose interpretations of FISA at the FBI and in the intel communities, and on his own began imposing his own "wall" even without direction to do so from Reno or Gorelick. This action gets Scruggs his only mention in the Commission report (page 78).

UPDATE II and BUMP TO TOP, 8/22: Welcome, Instapundit readers! Apparently, I'm getting some visibility over at Think Progress, because the mass e-mails have started again. They're pretty easy to spot -- they contain no argument whatsoever, just mindless regurgitation of the talking points of TP:

Provide evidence that the OIPR used Gorelicks 1995 memo to advise the Department of Defense.



Dear Sir,
Your argument re: Jamie Gorelick is an embarrassment and should be removed immediately. It is demonstrably false.

Sincerely Yours,
A Reader

Another "reader" named BigAl dropped a comment that was an exact duplicate of Mark's e-mail in an Air America comment thread. I'm bumping this to the top so that "readers" from TP can actually read what I've written on the subject. I'll simplify it a bit so that everyone understands it:

1. The OIPR answers to the DoJ and is tasked with providing legal advice not just to the DoJ, but the DoD, CIA, and the State Department on matters concerning the legality of intelligence work.

2. The Deputy AG (Gorelick) issued a policy statement directly to the OIPR in 1995 (the "wall" memo) dictating the policy regarding intelligence and coordination with law-enforcement agencies. The DoJ certainly dictated what the FBI could and could not do in any case, and the "wall" memo would have precluded them from coordinating with other agencies regardless of their own disposition -- and the FBI was the only national law-enforcement agency available for that kind of assistance.

3. The chief counsel of the OIPR, Richard Scruggs, had already implemented much the same policy in 1994 as Gorelick officially dictated in 1995 (which the 9/11 Commission itself points out).

If the denizens of Think Progress really cannot connect those dots, no amount of evidence will suffice to dent their dogmatic worldview. Slade Gorton can say whatever he likes, but in this case he is simply incorrect.

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Posted by Ed Morrissey at August 22, 2005 12:00 PM

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