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The Appearance of Impropriety
Chairman Kean should understand his business before he tells America to butt out of it.


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Andrew C. McCarthy

Compared to unraveling the intricate web of factual, legal, and bureaucratic circumstances attendant to the 9/11 attacks, judging conflicts of interest is Sesame Street stuff. The 9/11 Commission is assessing the intelligence lapses that may have factored into the suicide hijackings; it has been revealed that, as Deputy Attorney General in 1995, Commissioner Jamie Gorelick was a key architect of an information “wall” that virtually guaranteed just the types of intelligence lapses that occurred. That’s a conflict, Q.E.D.

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If Chairman Tom Kean and the other 9/11 Commission members now rallying around Gorelick cannot grasp that straightforward equation, they’ve got no business taking on the complexities of international terrorism and intelligence overhaul.

Kean’s effrontery in decreeing, when pressed about Gorelick in an interview Wednesday, that “people ought to stay out of our business[,]” is so mind-blowing it’s difficult to decide where to begin. Let’s start with the most obvious: The work of the 9/11 Commission is America’s business; it is not the private aerie of its ten plugged-in appointees. America expects its tribunals to exude integrity, to be above crass suspicions that the fix is in or that decisions are being made based on something other than a dispassionate review of the relevant circumstances. A tribunal, like the 9/11 Commission, cannot achieve that standard of probity if it has, sitting as a judge, a person whose conduct is at the core of what must be judged.

This ain’t quantum physics. It’s elementary. Consequently, Kean’s obtuseness–like that of his fellow commissioner Slade Gorton, who so thoughtfully pronounced that criticisms of Gorelick’s status were “garbage”–makes the commission’s entire body of work suspect. Even Kean’s defense of Gorelick bespeaks a thorough-going ignorance about what is at issue. He says that she is among the hardest working and most bipartisan of all the commissioners; the first assertion is no doubt true, the second is dubious, but more importantly both are wholly beside the point.

Here, sports fans, is Conflicts 101: You rob a bank; as you are fleeing, there’s a woman at the door who sees you, but you point your gun at her, she ducks to the floor, and you skip around her and make your escape. You are arrested and brought to trial. When you get to the courtroom and glimpse up at the bench, who do you see wearing a black robe? Why, it’s the woman who witnessed the bank robbery. No way, you say–and you’d be right–the court will find you another judge because this one is an actor in the facts that are the subject matter of the case.

It doesn’t matter that the judge happens to be the hardest working, best, most accomplished jurist in the land. It doesn’t matter that she is so apolitical no one knows whether she even votes, let alone for whom. Most of all, it doesn’t matter that she may not have done anything wrong or anything to be ashamed of. Her conflict does not lie in her work ethic, her political views, or what we might think of her conduct. It is strictly a matter of perception. We have reason to think that she will render judgment based on what she saw in the bank that day rather than what gets presented in the courtroom; we have reason to think she may rule against you not on the merits of your legal arguments but because you pointed a gun at her. Of course, she may not actually do any of those inappropriate things; she may be the very epitome of rectitude. But even if she is, we will always wonder. And if we are left to wonder, the court’s rulings lack integrity and legitimacy. If you get convicted, we’ll think you might have been railroaded; if acquitted, we’ll think you may have intimidated the judge. But one way or the other, we will never be confident that we know what happened in the bank that day.

The situation, of course, is worse if we slightly tweak the scenario so that our judge is no longer just a mere witness who had the misfortune of being in the wrong place at the wrong time. Let’s now say that, as you were trying to flee the bank, the police had a good opportunity to catch you. But the woman/judge in the bank prevented them from doing so by grabbing an officer–not out of an intention to help you but because she was understandably frightened. You now are able to get out of the bank, and you kill a pedestrian as you speed away in a waiting car.

Now our judge’s conflict is even more profound. She is not merely an actor in the facts; she has actually done something, however innocently, that may have contributed to the damage. She now has a powerful motive to skew the fact-finding. We have to worry that she would use her position as judge to steer the trial away from any inquiry into how her actions may have led to the pedestrian’s death. The trial is now likely to veer into overblown recriminations about less salient matters, like whether the police were aggressive enough or whether the pedestrian was crossing the street against the traffic light when he was struck. Worse, the perversion of the fact-finding is so patent, and it draws so much outraged attention to the flawed process, that we begin to lose sight of the fact that the real culprit here is you, the bank robber/murderer, not the police, the pedestrian, or our unfortunate panicky judge.

This isn’t about whether Jamie Gorelick is partisan. The partisanship on the commission is depressing but inevitable. This body was consciously set up with five Republicans balancing five Democrats–it is “bipartisan” only in the sense that it was hoped the even split would balance out the predictable hijinks. No one was naïve enough to think we were getting ten Solomons.

Neither is this about whether Gorelick is a good, hard-working public servant and a superb lawyer. She is all those things. The wall that prevented intelligence agents from communicating effectively with criminal agents and prosecutors (who by 1995 had developed a considerable body of knowledge about militant Islamic terrorism) was a serious mistake. But it was made with good intentions, and Gorelick did not make it alone–far from it. There were plenty of people then, just as there continue–despite 9/11–to be plenty of people today, who are willing to risk national security because of the transcendent value they place on civil liberties, the rights of criminal suspects, and maximizing litigation posture in connection with a problem they regard as strictly a law enforcement issue. For my money, they don’t see that without national security all those things are empty aspirations. But that doesn’t mean they are bad people or that the values they venerate are unimportant. For Kean and Gorton to suggest that questioning the probity of the commission’s process is the equivalent of attacking a patently conflicted commissioner’s character is low-ball demagoguery.

Finally, Gorelick’s facile time defense, which Kean and the others have bought onto, is just lame–and is again grounds for concern about the commission’s comprehension of simple issues. Gorelick, who was Deputy AG from 1994 until 1997, figures the problem is solved if she recuses herself from questioning witnesses–such as former AG Janet Reno and former FBI Director Louis Freeh–with whom she served closely during those years. Conflicts, however, are not time-specific so much as they are issue-specific. If you and I are investigated for stock fraud in 1997 and you get indicted for fraud in connection with the same stock in 2000, I don’t get to be the judge in your case. I don’t get to say, “What does 1997 have to do with 2000?” The issue is: Do I have involvement in the business practices and knowledge about your intentions that are core issues of the trial. If I do, someone else ought to be the judge.

The temporal defense is especially troubling for an additional reason. What happened on September 11, 2001, is borne on directly by practices, like the wall, which produced the patchwork body of intelligence, and screwy methods for handling it, that were in effect when al Qaeda succeeded in killing 3,000 of us. It was irresponsible of Gorelick, knowing that, to accept the appointment under those circumstances. But more importantly, what does inviting her to serve her say about the commission and those who designed it? It says we are making a judgment that nothing terribly relevant to 9/11 happened much before the Bush administration came to power. Given that we are in a war, and the body count started in 1993, that is simply stunning. It smacks of politics over a search for truth.

Remember, moreover, those glory days of the Richard Clarke era–only two weeks ago? Recall the outcry after he testified? From the grandstanding commissioners themselves? “He has raised very serious issues of fact.” “Constitutional separation of powers be damned: The president must waive privilege and have National Security Advisor Condoleezza Rice testify publicly.” “We must have her testify out in the open to respond to Clarke’s immensely important charges.” Well, it sure looked to me like Attorney General Ashcroft raised some serious issues of fact this week when he slapped Gorelick’s 1995 memo on the table and said: This wall stopped agents from connecting the dots. I must have been out of the room when Chairman Kean and his brethren demanded that Gorelick step down as a member of the commission and testify under oath–not on Hardball–about these rather serious assertions. I don’t mean to bring up “garbage” or interfere with “our business,” but their silence has sure been deafening.

Most sadly ironic, do you know what the rationale for the wall was? Read Gorelick’s memo: It was to avoid the appearance of impropriety. It sacrificed national security in an effort to inoculate the government from a hypothetical, ill-conceived claim that national-security wiretapping power had been used as a pretext to build ordinary criminal cases. If the mere appearance of impropriety was a good enough reason as far as Gorelick was concerned in 1995 to gamble with American lives, why is it not a good enough reason in 2004 to promote the integrity of the 9/11 Commission by making sure its work is not tainted by a patent conflict of interest?

Andrew C. McCarthy is a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others. While he consults part-time with the Defense Department, the opinions expressed herein are strictly his own. McCarthy is also an NRO contributor.



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