REVIEW & OUTLOOK
Gorelick Agonistes
Her refusal to resign taints the 9/11 Commission.
Jamie Gorelick has now issued her defense for staying on the September 11 Commission, and the usual media and Democratic suspects are rallying behind her. So let's put the issue as simply as possible: If Clinton-era Deputy Attorney General Jamie Gorelick were not already a Commission member, does anybody doubt that she would be called to testify before it?
The Commission is interviewing nearly every major law enforcement and defense figure in two Administrations, and surely a Deputy AG was one of them. More than that, Ms. Gorelick was the author of a memo that has now become central to the debate over what went wrong before 9/11 in the way the U.S. dealt with terror threats.
Yet Ms. Gorelick now claims she can judge everyone else as a Commissioner because her now famous 1995 memo was no big deal and merely codified existing procedures. Even if we grant her this point, which many others dispute, shouldn't she be required to explain it under oath? What gives her an Olympian exemption?
No serious person on either side of the aisle doubts that the "wall" of separation between intelligence agents and criminal investigators that was memorialized in her memo was a problem. Everyone also now agrees that poor intelligence sharing was one of the key reasons U.S. authorities failed to detect the September 11 plot. We can think of several questions for Ms. Gorelick that would prove far more illuminating than anything that emerged from the Condoleezza Rice show. Such as:
• Ms. Gorelick, you write in the Washington Post that you did not invent the wall, which you argue was just "a set of procedures implementing a 1978 statute (the Foreign Intelligence Surveillance Act, or FISA)." Yet your 1995 memo to the FBI and World Trade Center bombing prosecutor asked for procedures that "go beyond what is legally required." Is it possible to merely implement the law and at the same time go beyond what it requires?
• Follow-up: Ms. Gorelick, no doubt you know that when the Ashcroft Justice Department finally challenged guidelines of the type you issued, the FISA Appeals Court agreed with your own 1995 assessment that those guidelines had never been necessary. In other words, the court said we didn't need the Patriot Act to permit greater intelligence sharing than your memo had allowed. Then why write a memo that imposed such restrictions?
Far from being unnecessary, Ms. Gorelick's testimony goes to the heart of the U.S. government's 1990s' failure to get its antiterror act together. She is right that before 9/11 the Ashcroft Justice Department endorsed her "wall" policy, but so what? They were wrong too.
What is clear is that for some reason the nature and height of "the wall" underwent a qualitative change in the 1990s, as any investigator or prosecutor who dealt with it now says. Whereas previous interpretations of the FISA statute had limited the ability of prosecutors to produce certain intelligence in court, the new rules effectively prohibited people from communicating at all. There seems to have been destructive tension among Justice, the FBI, and the lower FISA court at the time of the 1995 memo, tension that may in the end explain Ms. Gorelick's behavior. But we won't have a clear picture until she and some of the other major players--including members of the FISA court--testify.
The 9/11 Commissioners are only undermining their own credibility in rallying to Ms. Gorelick's defense. Her conflict of interest can't be solved merely by recusing herself from discreet portions of the probe, since as a Commissioner she will still serve as judge and jury on everyone else in government. She should have recused herself entirely from even questioning John Ashcroft. We also take no comfort in Republican Orrin Hatch's endorsement, since one of Ms. Gorelick's former law partners represented him in the BCCI case and he whisked her through Senate confirmation in 1994.
The 9/11 Commission was supposed to be a fair-minded, non-partisan probe that would help our democratic government learn from its mistakes. Ms. Gorelick's failure to resign and testify herself in the face of a clear conflict of interest is reason enough for the American public to distrust its ultimate judgments.
