The uproar over 9/11 Commissioner Jamie Gorelick’s very simple and very blatant conflict of interest appears, predictably, to be quelling. The New York Times, quoting an anonymous commission member, reliably concluded not that her 1995 memorandum was a smoking gun of intelligence lapse, but rather that John Ashcroft had “politicized” the proceedings by bringing it up. This after commission Republicans curiously leapt to Gorelick’s defense, first warning us to stay out of their business (Chairman Kean), and then slandering as “baloney” (John Lehman) and “garbage” (Slade Gorton) good-faith criticism of a delegitimizing process in which a key witness is also a commissioner actively steering the direction of the panel’s public hearings and final report.
Meanwhile, Gorelick’s allies from the old Clinton war room mobilized as they always so skillfully do. With the help of compliant media friends, they’ve managed to dissect the obvious into a maze of miniature, obscure, and disingenuous legalisms that take so much airtime to untangle any hope for clarity is lost. The talking points are out: “So, you must also be saying that Justice Scalia should recuse himself from the case involving Vice President Cheney?” “Wasn’t this ‘wall’ really in effect since the 1970s?” “Didn’t the 1995 Gorelick memo simply codify existing law?” “Don’t many of the commissioners have some involvement in facts the commission is examining?”
The people who ask these questions know full well that they are misleading. Gorelick’s conflict has nothing remotely to do with having a social relationship with litigant in a matter in which she is otherwise uninvolved. What was in effect since the 1970s was FISA (the Foreign Intelligence Surveillance Act), not the wall Gorelick and others placed between criminal and intelligence investigators in 1995. Far from codifying (flawed) existing law, Gorelick’s memo itself explicitly says the barriers it was erecting went “beyond what is legally required.” And some of the other commissioners have some tangential involvement in the facts (e.g., some of them, while in Congress, voted on measures that have come up in the hearings), but only Gorelick was mired in the salient issue of intelligence failure.
But the babble over these arcane points will probably provide Gorelick just the cloudy cover she needs to hang on. And even if the strategy falters, she has yet another ace in the hole.
To see why this is so, one need only go to the commission’s website, where valuable information about the panel’s rules and make-up is found. The commission advertises itself as “bipartisan” and “independent.” It further showcases that it has carefully considered the matter of conflicts and developed guidelines for resolving them. Upon close reading, however, these guidelines are woefully inadequate and undermine the notion that the commission is actually bipartisan in all-important particulars.
First, the conflict guidelines fail to anticipate what has happened here. The commission’s main reason for existing is to examine comprehensively the nation’s state of preparedness prior to the attacks. This, by definition, implicates what our national counterterrorism structure was, and whether it led to intelligence breakdowns that hindered any chance we might have had to prevent the suicide hijackings. Gorelick’s conflict lies in the fact that she was a principal designer of the obstruction to competent intelligence analysis that was still intact on 9/11. That is, her involvement is basic. If this were a trial, and you were the lawyer tasked to prove the architecture of U.S. counterterrorism policy leading up to the hijacking attacks, she would not be a throw-in; she would be one of your most essential witnesses.
The commission’s recusal rules, however, do not comprehend so fundamental a conflict of interest. They don’t conceive that there could be any big-ticket item–like intelligence failure itself–so central to the investigation that a commissioner’s involvement in it must be disqualifying lest the panel is to be reduced to a kangaroo court conducting a made-for-TV show trial. Instead, the rules assume that the investigation may be atomized into innumerable parts, none any more probative than any other. Under this nutty all-issues-are-created-equal approach, the part about the erection of structural barriers that prevented information about the hijackers from being pooled by investigators is no more significant than, say, the part about the security of airplane cockpit doors.
Having thus removed any sense of the commission’s cumulative purpose, and, indeed, any commonsense prioritizing of the investigation’s parts, the rules call for commissioners to recuse themselves only if a particular part involves either “work they performed in prior government service” or matters in which they have a financial interest. Bizarrely, even close personal connections to a witness do not disqualify a commissioner from examining that witness; the commissioner is merely advised that she “should not play a primary role in the commission interview of that person.” Under these rules, Sammy the Bull would have qualified to be a commissioner on a panel investigating the Gambino Family as long he recused himself from the parts about his own murders and made sure to let the one of his capos have the “primary role” when it came time to interview John Gotti.
But hold on a second, you say, what about that thing about “the work they performed while in government service”?–since the wall separating intelligence and criminal investigators was work Gorelick performed in government service, and that’s the issue the 9/11 Commission is really all about, shouldn’t that be interpreted to mean she must be disqualified as a commissioner? And even if that’s not the only way to construe that recusal provision, wouldn’t it make sense for some objective authority figure to say: “we have a manifest conflict here that the recusal rules didn’t anticipate but which has to be disqualifying if the commission’s findings are to be free of taint?”
The answer to both those questions is: Yes…in theory. The recusal rules do make provision for gray areas and unanticipated conflict situations. It is here, however, that bipartisanship takes a holiday.
Under the commission’s rules, “[q]uestions about the application of these [recusal] principles in specific cases will be resolved by the Commission’s General Counsel.” Now, those who set up the commission took great pains to ensure its membership was an even split of Republicans and Democrats; and the commission’s staff, too, is a studiously bipartisan mix. But, alas, there is only one general counsel, and he is–surprise!–a Democrat who, like Gorelick, was a high-ranking Clinton operative. Their careers, in fact, are a study in overlap.
The general counsel is Daniel Marcus, and, as the commission’s website details, his Democratic roots run deep, and prominent. In the Carter adminstration, he was a lawyer for executive-branch agencies, including a term as general counsel of the Agriculture Department. After that, Marcus was for many years, until 1998, a partner–and ultimately part of the management committee–at the Washington law firm of Wilmer, Cutler & Pickering. That is the firm at which Gorelick became a partner in 2003. Marcus had left the firm by then, in 1998 to be precise. That was when, during the high pitch of the impeachment scandal, President Clinton made him senior counsel in the White House Counsel’s Office–an entity, you may recall, whose sense of the defensible when it came to behavior by public officials was somewhat elastic.
By the next year, 1999, Clinton had survived. The Reno Justice Department, however, had experienced the turnover of high-level officials that is common in a two-term administration. Gorelick, for example, had left after three years as deputy attorney general in mid-1997 (to become vice chair at Fannie Mae). To fill some of the voids, Clinton dispatched none other than Daniel Marcus to Justice, where he served until the end of the administration, eventually as Reno’s associate attorney general. Both the wall and Clinton’s law-enforcement-first approach to terrorism continued to be fully in effect throughout that time–which was, of course, the interim between the bombings of our two embassies in east Africa and the bombing of the U.S.S. Cole.
I would not hold my breath waiting for Marcus to tell Gorelick that her conflict is disqualifying. The politics of this commission don’t line up that way, and increasingly it appears that politics is a lot of what this is all about.
Analyzing the intelligence failures attendant to 9/11 is a twofold process. First, the counterterror system designed during the Clinton administration, which was at the helm for eight years while we were under attack by militant Islam, was a prescription for disaster: reducing counterterrorism to a strict law enforcement matter, putting the Justice Department in charge of it, and institutionalizing, as official government policy, a wall that forbade criminal and intelligence investigators from pooling information. Second, that counterterror system was largely maintained by the Bush administration during the eight-month run-up to the attacks. As to the latter, Bush officials have been aggressively questioned for actions they took, or failed to take, between January and September 2001, including the failure to tear down Gorelick’s wall prior to 9/11. This is entirely appropriate. Indeed, it is essential if the commission is to be at all a useful exercise in helping us avoid future 9/11s.
But for a sizable faction of the commission, that exercise is not what this is about. It is, instead, about myopic focus on the eight Bush months as if the preceding eight Clinton years had never happened. The fact that Gorelick was chosen by Minority Leader Tom Daschle to be on the commission threw down a gauntlet. It said: It’s perfectly fine to appoint to the commission someone who was in the thick of the Clinton counterterror strategy because we’re not interested in exploring that. Yes, even three years after his Oval Office exit, the frantic efforts to shape Clinton’s legacy proceed apace.
But the 9/11 attacks are an inseparable part of that legacy. The politicizing and the conflict shenanigans won’t change that. Given the way the wind is blowing, though, maybe it would be better just to stop complaining. Maybe, far from removing Gorelick, it’s better to let her be the very face of the 9/11 Commission. That way, when what is threatening to be a skewed revisionist history is published as the commission’s final report, there won’t be a lot of mystery about why.
–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.