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Post Rallies to Gorelick’s Defense
And gets it wrong.


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Andrew C. McCarthy

The Washington Post’s Tuesday editorial on, as the editors there call it, “Mr. Ashcroft’s Smear,” is a transparent effort to help close ranks around beleaguered Commissioner Jamie Gorelick, the former Clinton-administration deputy attorney general whose conflict of interest has riven the 9/11 Commission. For the most part, it adopts wholesale the talking points Gorelick herself ran with in an op-ed that the Post published on Sunday. Though disingenuous, even taken at face value, the editorial actually supports the case for recusal.

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With knee-jerk predictability, the Post finds that the real culprit in this drama is not Gorelick but rather the Left’s all-purpose piñata, John Ashcroft, the sitting attorney general who testified last week about how harmful to national security the information wall Gorelick designed was. The Post flays Ashcroft for “smear[ing]” Gorelick by declassifying a March 1995 memorandum she wrote, which, in the context of then-ongoing terrorism prosecutions, laid the groundwork for what would, four months later, become a more globally applicable wall.

Ashcroft’s revelation of a memo Gorelick incontestably authored is, as the Post chooses to see it, a “smear” because that memo has not previously been portrayed as significant by DOJ–it “is not even mentioned,” the Post intones, “in the history of impaired information-sharing that Mr. Ashcroft’s department gave to the special court that finally lifted the barriers after Sept. 11, 2001.” This is a frivolous complaint.

First, while extremely significant when written, the memo was effectively superseded in July 1995 when the Justice Department’s leadership (principally including Gorelick) adopted procedures formally applying the wall to the entire frontier of intelligence and law enforcement. By the time DOJ was called on to argue its case before the FISA Court of Review seven years later, at issue were the July 1995 procedures, not the paper trail leading up to those procedures. That paper trail, naturally, is a lot more extensive than Gorelick’s March 1995 memo (and should no doubt, given where we are now, be searchingly reviewed).

Now, however, Gorelick’s March 1995 memo is highly relevant to unfolding the thought process that generated intelligence lapse, the key issue being probed by the 9/11 Commission. In it, Gorelick explicitly asserted that the precautionary measures she sought to install, which ultimately became the wall, “go beyond what is legally required…[to] prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation” (Emphasis added).

What this means is straightforward. In 1995, the Justice Department had a choice: It could either maximally promote national security by freeing agents to investigate aggressively to the very limits of what federal law allowed, or it could short national security by compelling agents to be less thorough in order to promote civil liberties for suspected terrorists and increase the chances of prevailing when indicted terrorists inevitably sought to have damning FISA evidence suppressed. (The government is always in a better position when it can impress a federal judge that it has been “reasonable”–i.e., less aggressive than the law permits it to be.) The simple fact, so clear now but not sufficiently recognized then, is that what is good for national security is often not good for terrorism prosecutions, and hard choices have to be made between public safety and favorable litigation posture. Gorelick and others chose the latter. It was the wrong choice, and it goes to the heart of the commission’s inquiry.

The Gorelick memo thus also puts the lie to a disingenuous claim first posited in Gorelick’s Sunday op-ed and now dutifully repeated in the Post’s editorial. As the Post’s revisionist history tells it, blaming Gorelick for the wall is “absurd” because the best authority on the subject, the FISA Court of Review, has placed “the wall’s origin as ’sometime in the 1980s–the exact moment is shrouded in historical mist.’” Thus, so the story goes, all Gorelick really did in 1995 was codify what federal case law already mandated. Indeed, in the Post’s dizzying spin, Gorelick is the hero of the piece–an “advocate of increased collaboration between spies and cops, not greater separation.” Talk about “absurd.”

To begin with, the Post’s excerpting from the FISA Court of Review’s opinion is sleight of hand. When the Court described a development of FISA law as having occurred at some nebulous point in the 1980’s, it was not referring to “the wall’s origin.” The Court was very clear that the wall originated in 1995–on Gorelick’s purposeful watch. Simply stated, what happened in the 1980s was that FISA came to be interpreted as requiring the government, before being permitted to use FISA evidence in ordinary criminal cases, to prove that the “primary purpose” of its investigation had been to collect national-security intelligence, not develop a criminal case. This, as the court held in 2002, was a flawed interpretation of FISA–but that is beside the point. For present purposes, what’s relevant is that in FISA’s 17-history prior to 1995, it had never been held or thought that compliance with the “primary purpose” doctrine required formally walling off criminal investigators from intelligence investigators lest courts conclude FISA was being abused.

That was Gorelick’s innovation. Before that, the agents were permitted to communicate and the government guarded against the theoretical (but not empirical) possibility that FISA might be misused by careful oversight over requests to use FISA (just as DOJ exercises careful oversight over requests by agents to use criminal wiretapping authority, requests by prosecutors to charge RICO offenses, and similarly sensitive law-enforcement decisions).

Consequently, the July 1995 DOJ procedures were not, as Gorelick and the Post would like to have it, a mere codification of something the law already required. Indeed, it would have been a strange use of valuable DOJ time to go through the exercise of drawing up regulations that were already being followed–especially when DOJ had a special unit (the Office of Intelligence and Policy Review) policing FISA use, and when drawing up unnecessary regulations simply gives defense attorneys something else to complain about the government purportedly violating.

The 1995 procedures, to the contrary, were a new and radical development: an institutional barrier to intelligence pooling and analysis designed to avoid not merely actual violations of primary purpose but instead the slightest appearance of such violations. By definition, when a restrictive standard strives to blunt airy accusations of impropriety as opposed to concrete violations of law, it must proscribe a broad swath of agent behavior–in this case, information sharing–that is actually permissible under law. That, as the Court of Review held, is what the 1995 procedures did. To describe their principal author as an “advocate of greater collaboration” is to hallucinate. Handcuffing agents, as these procedures did, may make some sense in certain categories of law enforcement–regulatory areas where public safety is not at risk and aggressive policing might intimidate innocent people from engaging in lawful behavior. To have done so in the realm of national security, however, was irresponsible.

The wall aside, the Post is quite correct when it observes that Gorelick did a lot of good for counterterrorism. In fact, its description of her laurels does not do her justice. Gorelick is among those who should be thanked, as the Post recounts, for expanding FISA to include physical search authorization. (Intelligence from the searches was similarly limited by the wall.) But the Post neglects to mention her important role in the 1996 Antiterrorism and Effective Death Penalty Act, which: ushered in an array of new terrorism crimes to bolster what had been a woefully inadequate enforcement environment; homed in on the menace of terrorism financing; and severely ratcheted up penalties for terrorism crimes across the board. While the Clinton administration is justly criticized for myopically regarding terrorism as a law enforcement matter, Gorelick performed exemplary public service in ensuring that agents and prosecutors were given some needed tools to fight their part of the battle.

But all this simply means that Gorelick has an important story to tell about the counterterrorism landscape of pre-9/11 America–and that she should tell it as a witness. As the Post points out, the Ashcroft Justice Department failed to dismantle the FISA wall prior to 9/11. That’s a large part of why Ashcroft, quite properly, was summoned as a witness. Gorelick’s testimony about why the wall was built is at least as important as Ashcroft’s about why it was maintained. Moreover, despite being a commissioner who is supposed to be impartial and reserve judgment until all the facts are in, Gorelick, startlingly, used her op-ed as a forum to accuse the attorney general of giving inaccurate testimony. This makes manifest not only that she should be a witness, subject to cross-examination, to back up her allegations, but that she has an interest in the outcome of the commission’s work and a powerful personal motive to steer its direction.

Finally, the Post levels more persuasive criticism when it complains about the late timing of calls for Gorelick’s recusal. President Bush announced the creation of the commission at the end of 2002, and Gorelick was named to the panel shortly afterwards. Of course, in the first instance, it was for Gorelick herself–well aware of what was involved–either to decline the invitation to serve or to withdraw the moment it became obvious that recusal was the appropriate course. When she failed to do that, however, those in government (myself then-included), those in the media, those on the commission, and the many others who had reason to know what a monumental conflict she had should have spoken up. Naïve hope that the commission would be a constructive bipartisan exercise instead of the willful political theater into which it has descended, failure to pay much attention to the hearings until recent weeks, and reluctance to endure the inevitable torrent of attacks that were sure to follow any public protest about participation by a well-connected member of the Democratic establishment, may explain but they do not excuse the delay.

Nevertheless, the fact remains that we have arrived at this point, and the conflict–whatever it may have looked like in theory many months ago–has in practice quaked a fault line that fatally compromises the integrity of the commission’s process. The Post blithely sloughs this off when it says that the commission, as designed, anticipated a “measure of conflict” that was deemed acceptable in order to have the benefit of these ten commissioners’ expertise. But, whatever that “measure” was, it clearly never meant all conflict of any degree. Henry Kissinger, for example, was chased away over a theoretical conflict that was nowhere near the dimension of the colossal burden Gorelick carries.

Under the circumstances as they exist, we can have either of two things: (a) nine commissioners, access to all essential witnesses, and no interested witness shaping the commission’s findings; or (b) ten commissioners, no access to a pivotal witness, and the commission’s hearings and final report tainted by a self-interested participant who even now is making public, unsworn allegations. No matter how we have traveled to this point, that is not a difficult choice.

Andrew C. McCarthy, a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor.



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