The Gorelick Problem

Attorney General John Ashcroft came out swinging in testimony before the 9-11 Commission on Tuesday. “In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required,” he said. “The 1995 Guidelines and the procedures developed around them imposed draconian barriers to communications between the law enforcement and intelligence communities. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system destined to fail.”

But Ashcroft’s bombshell wasn’t his description of the Clinton Administration’s policies, which have been discussed by previous witnesses. “Somebody built this wall,” Ashcroft told the commissioners, and then went on to accuse one of the commission’s own.

“The basic architecture for the wall . . . was contained in a classified memorandum entitled ‘Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations,'” said Ashcroft. “Full disclosure compels me to inform you that its author is a member of this Commission.” Ashcroft was referring to Jamie Gorelick, who served as Deputy Attorney General in the Clinton Administration.

From the beginning, Gorelick’s appointment to the 9/11 Commission was problematic. She served not only as Attorney General Janet Reno’s deputy but also as general counsel at the Department of Defense, jobs which put her at the heart of the Clinton Administration’s anti-terrorism efforts. Her actions, as well as those of her superiors, are among the subjects this commission is tasked to review. How can she be expected to be impartial when it comes to evaluating her superiors, much less herself?

The memo Gorelick wrote has now been declassified and offers a window into the role she played in obstructing effective intelligence gathering and sharing during the Clinton Administration. The memo grew out of the Justice Department’s prosecution of the 1993 terrorist attack on the World Trade Center — the act that apparently gave Osama bin Laden the idea to try again in 2001.

“During the course of those investigations,” wrote Gorelick in 1995, “significant counterintelligence information has been developed related to the activities and plans of agents of foreign powers operating in this country and overseas, including previously unknown connections between separate terrorist groups.” But Gorelick wanted to make sure that the left hand didn’t know what the right was doing. “(W)e believe that it is prudent to establish a set of instructions that will clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA (Foreign Intelligence Surveillance Act) is being used to avoid procedural safeguards which would apply in a criminal investigation.”

The problem, of course, is that the inability to share information is precisely what hampered federal agents in tracking down the 9-11 hijackers. As Attorney General Ashcroft testified, this artificial wall impeded the investigation into Zacarias Moussaoui, the so-called 20th hijacker, who was arrested prior to the 9-11 attack, as well as Khalid al-Midhar and Nawaf al-Hazmi, both of whom were identified by the CIA as suspected terrorists possibly in the United States prior to their participation in those terrible attacks. “Because of the wall, FBI Headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join in the hunt for the suspected terrorists,” Ashcroft told the commission.

“At the time, a frustrated FBI investigator wrote Headquarters,” said Ashcroft, “quote, ‘Whatever has happened to this — someday someone will die — and wall or not — the public will not understand why . . .'”

Jamie Gorelick should step down from the commission at once. If she fails to do so on her own, her fellow commissioners should ask her to step aside. Her role as the architect of a policy that hampered the work of federal agents to track down suspected terrorists makes her unfit to pass judgment on the alleged failures of others.