April 19, 2004,
The grandstanding Richard Clarke having made apologies all the rage, one should expect that President Bush and National Security Adviser Condoleezza Rice will be getting one in the next day or two. Something like this:
Dear Mr. President and Dr. Rice:
If that note is not forthcoming, then someone's got some explaining to do about "The Truth About 'the Wall,'" Jamie Gorelick's remarkable Washington Post op-ed from Sunday, which purports to put to rest the nettlesome squawking about her untenable position as a commissioner judging the causes of pre-9/11 intelligence failure, a matter in which she was a key participant. Leaving aside, for a moment, how off-the-wall her account of the wall is, the fact that she well knows she needed to say something is the clearest indication yet that she belongs in the witness chair, not on the commissioners' bench.
Gorelick's op-ed intentionally raises five different points in her purported defense. Around them are sandwiched two others opening and closing salvos that she can't resist mentioning but avoids identifying as argument points because she is too smart not to know that they scream out for her recusal. I'll take them in the order in which she makes them.
1. Ashcroft is wrong. Gorelick starts by asserting that Attorney General John Ashcroft gave testimony that was "simply not true" when he claimed both that "the single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents[,]" and that Gorelick "built that wall through a March 1995 memo." In fact, Ashcroft's testimony was entirely true: The wall was a policy that virtually guaranteed intelligence failure, and the March 1995 memo was its first building block, a harbinger of the further institutionalizing of the wall that would come, from Gorelick, only a few months later. That, however, is beside the point.
When witnesses give differing accounts, it is left to an impartial arbiter not one of the witnesses to sort it out. Moreover, the commission's standard, announced to maximum preening effect only three weeks ago after Clarke's testimony spawned demands for Rice's testimony, is that essential witnesses, and particularly those who are in a position to clarify or refute the testimony of prior essential witnesses (i.e., the position Rice was in vis-à-vis Clarke), must testify under oath and in public. Not surprisingly, while brazenly accusing the attorney general of the United States of giving false testimony, Gorelick elides mention of the Clarke/Rice dust-up. But it did happen, and Gorelick was gleefully in the thick of it. Why is what's sauce for the goose not sauce for the commissioner?
2. "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." Gorelick did invent the wall. The wall was not a set of procedures implementing FISA as construed by federal decisional law. To quote Gorelick's 1995 memorandum (something she carefully avoids doing), the procedures her memorandum put in place "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.) As this rather straightforward English sentence illuminates, the wall exceeded the requirements of FISA and then-existing federal case law.
What the wall implemented was not the FISA statute as construed by the courts but rather Gorelick's overheated view of what would be useful to avoid being accused of misusing FISA. To be sure, it is often prudent for the government to hamstring itself beyond legal requirements; going-the-extra-mile improves the (already good) chances that courts will reject motions by defendants to suppress damaging evidence (like incriminating recorded conversations). It is, however, irresponsible for the government to hamstring itself when that means national security will be imperiled which is what happens when agents are forbidden from communicating with one another.
3. The prohibition on prosecutors directing intelligence investigations was in effect long before the 1995 guidelines issued by the Reno Justice Department. This is transparent misdirection. The government usually collects evidence of ordinary crimes under the criminal law, not FISA; but there is nothing inherently wrong with collecting evidence of ordinary crimes under FISA. The error that was made during the 1980s was FISA's certification requirement (which merely called for a representation that the government was seeking FISA-interception authority for the purpose of collecting national-security intelligence) was read as if it limited the government's ability to use FISA-derived evidence in ordinary criminal cases. The federal courts compounded this error by fashioning a "primary purpose" test which required the government, before it could use FISA evidence in a criminal case, to prove that it had been motivated to use FISA by national-security concerns i.e., that it hadn't used FISA as a pretext to conduct what was really a criminal investigation.
This was the state of play in 1995, when the Reno Justice Department with Gorelick pulling the laboring oar instituted the wall. Gorelick may be correct we'd have to hear her testify subject to cross-examination to be sure when she declares that "[t]he point [of the Reno guidelines] was to preserve the ability of prosecutors to use information collected by intelligence agents." (My own sense, for what little it may be worth, is that the point was to mollify civil-liberties activists and conspiracy theorists who trumped up baseless fears that the government would dishonestly use FISA authority to investigate people who were not national-security risks but I am not the person who wrote the guidelines, and we should probably give her the benefit of the doubt regarding her intentions. But good intentions hardly mean the actions they spawn will be sound.)
The wall generally forbidding intelligence agents from communicating with their criminal counterparts was a suicidally excessive way to ensure that what little information intelligence agents were permitted to pass would be admissible in court. This is the product of a mindset that insists, beyond all reason and common sense, that terrorism is just a law-enforcement problem. The object of a rational counterterrorism approach is to prevent mass murder from happening in the first place, not to improve your litigating posture for the indictment you return after thousands of people have been slaughtered.
4. The Ashcroft Justice Department failed to dismantle the wall prior to the 9/11 attacks. Yes, that's true. And it was dumb, which was why Ashcroft got grilled over it by Gorelick's fellow commissioners. But Gorelick's argument actually makes my point. If it was relevant, probative and highly material for the commission to probe why Ashcroft did not eradicate the wall when he had the chance in the months before 9/11, it is doubly relevant, probative, and highly material to probe why on earth Gorelick erected the wall in the first place.
5. Gorelick's March 1995 memo concerned only two cases and permitted "freer coordination between intelligence and criminal investigators than was subsequently permitted by the 1995 guidelines" and the Ashcroft Justice Department. So what? The fact is that Gorelick's 1995 memo was excessively prohibitive. Who cares if it was somewhat less excessively prohibitive than the July 1995 guidelines especially given that Gorelick was responsible for the 1995 guidelines (that were reaffirmed in 2001). If Gorelick is looking for a medal because she was, at least as she sees it, marginally less irresponsible in March 1995 than she was in July 1995, she should not hold her breath.
And her hyperventilating about acting to protect the two cases (including mine) from the threat of having convictions reversed is specious. By the time she penned her March 1995 memo, the first World Trade Center bombing prosecution had been over for a year and my case was in its third month of trial. The only conceivable threat to eventual convictions would have been (a) if the prosecutors and agents in my case had learned information about defense strategy by virtue of the government's continuing investigation of some of our indicted defendants for possible new crimes; or (b) if the continuing investigation had turned up exculpatory information about the defendants in my case and I had not been told about it so I could disclose it. Far from being unique to national-security matters, that situation is a commonplace when the government deals with violent organizations (which tend to obstruct justice and routinely plot to kill or influence witnesses, prosecutors, and/or jurors, thus requiring continuing investigations even as already indicted cases proceed).
To avoid constitutional problems in such a situation, the government regularly assigns a prosecutor and agent who are not involved in the already indicted case to vet information from the continuing investigation before it is permitted to be communicated to agents and prosecutors on the indicted case. This way, the team on the indicted case learns only what it is allowed to know (viz., evidence of new crimes the defendants have committed), but not what it should not know (viz., defense strategy information and incriminating admissions about the indicted case made without the consent of counsel); and the government maintains the ability to reveal any exculpatory information (as federal law requires). As Gorelick's 1995 memorandum recounts, the U.S. attorney in the Southern District of New York had already made sure that was done in my case long before Gorelick's memo. There was no need for Gorelick to do more; what she did served only to place additional, unnecessary barriers to information sharing which her memo, again, acknowledges were not required by existing law.
6. The July 1995 guidelines the wall did not really prevent information sharing and merely implemented court decisions. The guidelines did prevent information sharing that was their purpose. They literally permitted some information to be passed over the wall if intelligence agents realized that evidence they'd developed might prove the commission of a serious crime. Intelligence agents, however, were hardly in a position to come to such a realization with any confidence because the wall generally forbade them from coordinating with criminal agents. Thus, they were ill equipped to recognize the significance of information to which they were privy.
More importantly, the hyper-technical 1995 guidelines were so byzantine as to be inscrutable for non-lawyer agents in the field, who found it far easier to assume they weren't allowed to communicate with one another than to venture into Gorelick's labyrinth without benefit of Ariadne's golden cord. That is why, for example, the FBI's criminal division declined to assist its intelligence division in August 2001, when an astute agent was frantically trying to find Khalid al-Mihdhar and Nawaf al-Hazmi, the eventual suicide hijackers who steered Flight 77 into the Pentagon. Whether or not the wall procedures dictated that decision, the culture of dysfunction the procedures had fostered was by then firmly entrenched.
7. The relevant history regarding the wall is well known, Gorelick has recused herself from consideration of her own actions and those of the Justice Department while she was there, and her fellow commissioners have spoken up in her defense. This is offered as Gorelick's wind-up. If it is adopted as the new standard, the commission should stop wasting everyone's time and money right now. First, the relevant history of many aspects of the 9/11 investigation is extensively well documented; yet, the commission has insisted on calling witnesses despite the fact that our nation is at war and many of the witnesses have been taken away from their wartime responsibilities for hours (and sometimes days) to comply with commission requests for information and testimony. To this point, no witness has been permitted to get away with a curt "you don't need me you've already got enough information."
Second, Gorelick's conflict is not so tidy as to be solved by avoiding inquiry into her time in the Justice Department. If that were the case, John Ashcroft could have been a commissioner and just imagine the howling if someone had proposed that. Gorelick's conflict, central to the matter of intelligence lapse, goes to the heart of the commission's investigation. Whenever she asks a question on another subject even if she does it in good faith the public is entitled to wonder whether she is trying to shift blame or scrutiny away from herself. The legitimacy of the commission is thus critically undermined.
Finally, the support of Gorelick's fellow commissioners is irrelevant. Again, these are the same guys who were screaming for Rice three weeks ago, for no better reason than that Clarke had made allegations Rice was in a position to shed light on. Ashcroft has now made assertions far more central to the salient matter of institutional impediments to information sharing. That those same commissioners are not being consistent, that they are not calling for Gorelick to step down and be sworn as a witness, is inexplicable. I'm sure they have all bonded; I'm quite certain they admire and respect Gorelick's powerful mind and exemplary work ethic they'd be foolish not to. But imagine for a moment that Gorelick had not been appointed to serve on the commission. Is there anyone on the planet who doesn't think she'd have been subpoenaed to testify after her memorandum came to light during last week's proceedings? Is there anyone who thinks she could have avoided testifying under such circumstances by writing an op-ed?
Gorelick's "defense" merely underscores how inappropriate it is for her to sit in judgment as a commissioner. Obviously, she's hell-bent on staying. And so we watch as the commission slowly mutates from a potentially useful exercise, to a politicized teledrama, to a hopelessly suspect irrelevancy.
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.