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Fritz Feds

Sunday, April 18, 2004

Gorelick makes the case for her resignation

Not on purpose, of course, but pretty powerfully anyway. Commissioner Gorelick writes this op-ed in today's Washington Post to defend herself, but she is inadvertantly is making my point about why she should resign. I argued yesterday that the real reason Gorelick needs to resign is to make the 9-11 Commission appear to be a credible fact-finding body rather than a political witch-hunt. Gorelick agrees that this is very important.

Take it away, Commissioner:

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.

The problem is that we appear to have a double standard when it is okay to retain a Commissioner whose actions should be the subject of the investigation simply because that Commissioner was part of an administration that is not up for re-election in 2004. This double standard sends precisely the message that the Commission is about "partisan rancor" not about learning lessons "in a spirit of unity."

But Gorelick only sees partisan rancor coming from one direction:

At last week's hearing, Attorney General John Ashcroft, facing criticism, asserted that "the single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents" and that I built that wall through a March 1995 memo. This is simply not true.

Apparently we are just supposed to take her word from the Washington Post and that will be the end of it. No need for investigation here. These are not the memos you are looking for:

First, I did not invent the "wall," which is not a wall but a set of procedures implementing a 1978 statute (the Foreign Intelligence Surveillance Act, or FISA) and federal court decisions interpreting it....

Second, according to the FISA Court of Review, it was the justice departments under Presidents Ronald Reagan and George H.W. Bush in the 1980s that began to read the statute as limiting the department's ability to obtain FISA orders if it intended to bring a criminal prosecution....

Third, Mr. Ashcroft's own deputy attorney general, Larry Thompson, formally reaffirmed the 1995 guidelines in an Aug. 6, 2001, memo addressed to the FBI and the Justice Department. Ashcroft has charged that the guidelines hampered the department's ability to pursue terrorists Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi in August 2001, but his own department had endorsed those guidelines at the pivotal time.

Fourth, the memo I wrote in March 1995 -- which concerns information-sharing in two particular cases, including the original World Trade Center bombing -- permits freer coordination between intelligence and criminal investigators than was subsequently permitted by the 1995 guidelines or the 2001 Thompson memo. The purpose of my memo was to resolve a problem presented to me: facilitating investigations on both the intelligence side and criminal side at the same time. 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.

Fifth, nothing in the 1995 guidelines prevented the sharing of information between criminal and intelligence investigators.

There is plenty of room for disagreement with Gorelick on the substance here, as you can see from Power Line and Captain Ed. But, as Hugh Hewitt points out:

Gorelick may be telling the truth. She may be lying. But she cannot be the judge of the matter, nor one of ten judges. If she stays on the Commission, don't bother me with reports on what it concludes now or in the future. Can you say "cover-up?"

Gorelick is not listening:

This history has all been well-rehearsed in publicly available briefs, opinions and reports, all available to the 9/11 commission. I have -- consistent with the policy applied to all commissioners -- recused myself from any consideration of my actions or of the department while I was there. My fellow commissioners have spoken for themselves in rejecting the call by a few partisans that I step aside based upon false premises. I have worked hard to help the American public understand what happened on Sept. 11. I intend -- with my brethren on the commission -- to finish the job.

So she is willing to concede that this history, of which she admits she played an integral part, is part of what is before the Commission. That should itself be enough to show that she should not be on the Commission.

She explicitly argues in her fourth point above that her memo was a substantive policy change. So if it is okay for her to be a member of the Commission, why not Larry Thompson or John Ashcroft? How can Gorelick or her defenders answer that question in a way that does not reveal the 9-11 Commission to be an exercise in political finger-pointing?

UPDATE: Michael Graham is making a similar point over at the Corner.


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