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The Weblog at The View from the Core - Thu. 04/15/04 05:34:53 PM

An Accomplice Got Onto the Jury

Make her testify in public under oath.

As Attorney General John Ashcroft revealed the other day, 9-11 Commissioner Jamie Gorelick was one of the "contractors" who worked on setting up the "wall" between domestic criminal investigation and national-security investigation. In fact, she acted to strengthen that wall beyond what the law required.

That means her own actions are part of what is supposedly being investigated by the commission she sits on.

Does she need to resign? Hell, yes. Like, yesterday. Does she need to testify? Most certainly. And publicly. And under oath.

No. Wait. How would that fix the damage she has surely done already? Figure it out for yourself, Faithful Reader: why would an accomplice want to be on the jury if not to sabotage the trial? To wrongly acquit the guilty. Or to wrongly convict the innocent.

What has Gorelick done — behind the scenes and publicly, directly and indirectly, on her own or through others — what has she done to turn attention away from herself, her former boss (Janet Reno), and her former boss (Bill Clinton)?

Come on. What trial wouldn't be halted immediately, and a mistrial declared, were it discovered that an accomplice got onto the jury?

Doesn't the mere presence of Gorelick on the 9-11 Commission taint its very existence?

I don't often issue a call to action. But, please consider e-mailing, faxing, or phoning your senators and representative to tell them to demand that Gorelick remove herself, or be removed, from the 9-11 commission. At the very least.

JunkYardBlog has two blockbuster blogs about this: THE 9-11 COMMISSION IS COMPROMISED and 9/11 EMPEROR, THOMAS KEAN.

The New York Post publicizes another Gorelick conflict of interest, today.

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House Judiciary Committee Chairman James Sensenbrenner has demanded the resignation of Jamie Gorelick as a member of the federal 9/11 Commission.

Frankly, given her blatant conflicts of interest, she should never have been appointed in the first place.

One stunning Gorelick conflict emerged at Tuesday's public commission hearing: Attorney General John Ashcroft disclosed that in 1995, Gorelick — while deputy attorney general under Bill Clinton — wrote a memo ordering the FBI to separate counterintelligence work from criminal investigations.

As Ashcroft put it, this memo — which went beyond what federal law required — erected a legal wall between the FBI and CIA, creating "the single greatest structural cause for September 11."

So. How can someone who played a key role in the events under investigation possibly sit as one of the investigators?

Indeed, Gorelick has a proper role to play with the commission — as a witness, grilled under oath about her own actions.

And what was Commission Chairman Tom Kean's response to calls for Gorelick's dismissal or resignation?

"People ought to stay out of our business," he huffed.

Funny, but isn't the commission meant to be conducting the people's business?

As it turns out, the memo is just the tip of the iceberg concerning Gorelick's questionable fitness as a member of the panel.

That's because she's a litigation partner in one of Washington's most high-powered Democratic law firms — Wilmer, Cutler & Pickering.

And that firm represents Prince Mohammed al-Faisal al-Saud, a member of the Saudi royal family and director of a key Saudi financial agency, against a lawsuit filed by a coalition of 600 Sept. 11 families.

The lawsuit, filed by Families United to Bankrupt Terrorism, seeks "to cut off the pipeline that fueled the al Qaeda terrorists" — a pipeline in which the high-paying client represented by Gorelick's law firm reportedly played a central part.

The prince is chairman of Dar al-Maal al-Islami (DMI), which boasts $1 billion in assets.

One of its subsidiaries is the Al-Shamil Islamic Bank, whose directors include Osama bin Laden's half-brother and his brother-in-law.

According to congressional testimony last October by Jean-Charles Brisard, an international expert on terrorism financing, the Swiss-based DMI "is one of the central structures in Saudi Arabia's financing of international Islam," and is rooted in the House of Saud's "support for the radical Islamic cause."

DMI, according to published reports, was a major shareholder of a Bahamian Islamic bank that was shut down after Washington tabbed it a centerpiece of Osama bin Laden's financial network.

Though Gorelick may not be litigating the lawsuit, as a partner she profits from her firm's work for the Saudi prince.

Gorelick, who might have become attorney general in an Al Gore administration, could get that same job if John Kerry wins in November.

If all of this is not intolerable for a 9/11 commissioner, then there's no such thing as conflict of interest.

The blatant anti-Bush partisanship demonstrated by Richard Ben-Veniste and Bob Kerrey long ago brought disgrace upon the commission.

Now this.

What a sick, sad joke.

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Wa Ti runs an op-ed David Rivkin & Lee Casey, today.

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As was thoroughly predictable in this election year, the September 11 commission's hearings and surrounding commentary have rapidly degenerated into an exercise in monumental finger-pointing.

Hoping to undermine President Bush's national security credentials, many Democrats, and a large chunk of the media, have sought to exonerate the Clinton administration, which failed to deal with al Qaeda over its eight years in office. Their claim is that, unlike the incoming Bush administration, Clinton officials had at least appreciated the strategic predicament al Qaeda presented. They agonized about it, held many long meetings devoted to the subject and tried to push a recalcitrant and ossified national security bureaucracy "to shake the trees," in Richard A. Clarke's vernacular.

Leaving aside the question of whether the quality of one's statecraft should be judged by the same emphatic criteria as personal relationships, rather than by the actual policy outcomes, a just-declassified Clinton-era memo delivers a devastating blow to these arguments. It suggests that the Clinton administration viewed the al Qaeda threat in sufficiently benign terms to give up voluntarily key governmental tools that could have been brought to bear on the problem.

By now, even casual observers must be sufficiently well-versed in the legal, bureaucratic and policy milieu associated with pre-September 11 U.S. counterterrorism efforts to recognize that one important problem, perhaps the most important, was the failure of various government agencies to share critical intelligence information — information that might have allowed someone to begin "connecting the dots."

To some extent, this failure may be attributed to human error, bureaucratic rivalries and the dissimilar institutional cultures involved. However, the most important obstacle to effective information sharing was driven by legal imperatives. In particular, at the time, information collected pursuant to special warrants issued under the Foreign Intelligence Surveillance Act (FISA), which does not require a "probable cause" finding, could not be generally shared with the personnel responsible for enforcing federal criminal statutes, creating a deliberate "wall of separation." This rule has now been fundamentally altered, based, in particular, on a decision of the special FISA court of appeals. It found that, even absent a probable cause showing, there was a substantial constitutional equivalence between the overall FISA scheme and Fourth Amendment requirements governing criminal investigations.

In its time, however, this wall of separation meant that counterintelligence information developed about al Qaeda and other groups was deliberately kept from the law enforcement personnel who were investigating al Qaeda's activities. Only when the informtion clearly and definitively suggested the existence of a significant federal crime could the material be shared between the counterintelligence and law enforcement sections of the Justice Department and FBI.

Needless to say, intelligence rarely comes in neatly wrapped packages, and counterintelligence personnel are not as practiced in spotting patterns of criminal wrongdoing as career prosecutors.

To be fair, of course, this wall of separation did not originate during the Clinton administration. At the same time, Clinton officials took measures to bolster that barrier, as was spectacularly revealed earlier this week by the release of a declassified memo, authored by the then-Deputy Attorney General Jamie Gorelick, now a member of the September 11 commission. The document, dated March 4, 1995, was addressed to Mary Jo White, the New York-based U.S. attorney investigating the first World Trade Center bombing and related matters, and to FBI Director Louis Freeh. It indicates, in clear and precise terms, that the Clinton administration had decided, purely as a matter of policy, to go beyond what they believed to be the law's minimum requirements and to adopt an even more stringent wall of separation between counterintelligence and law enforcement officials, further choking anti-terror information sharing. In a key sentence of the March 4 memorandum, Ms. Gorelick instructed Ms. White and Mr. Freeh to follow information-sharing procedures "which go beyond what is legally required," so as to avoid "any risk of creating an unwarranted appearance" that the Justice Department was using FISA warrants, instead of normal criminal investigative techniques, as a means of short circuiting civil-liberties protections.

Ms. Gorelick's March memo was followed, on July 19, 1995, by a directive from Attorney General Janet Reno, this time addressed to all U.S. attorneys and the head of the Justice Department's criminal division, conveying and reinforcing the same message.

At the time, of course, all of this no doubt appeared to make sense, as a means of showing robust support for civil liberties. In the very cold light of a post-September 11 day, however, the reflection is somewhat different. Surely both Ms. Gorelick and Miss Reno recognized that the FISA wall of separation impaired the efficiency of U.S. government counterterror efforts. A discretionary policy decision to go an extra mile in strengthening this wall clearly suggests that the Clinton administration was no more attuned to the very real and growing threat posed by al Qaeda than its Bush administration successors may have been in their first few months, and was perhaps substantially less so. To paraphrase Mr. Clarke, they were effectively instructing their subordinates not to even dare shake the trees.

Messrs. Rivkin and Casey are partners in the Washington, D.C. office of Baker & Hostetler LLP, and served in the Justice Department under Presidents Reagan and George H.W. Bush.

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With a not-quite-so-conciliatory attitude, the Wall Street Journal provides some background about Clinton-administration shenanigans that just might be related to a desire for a great wall of China separation, today.

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We predicted Democrats would use the 9/11 Commission for partisan purposes, and that much of the press would oblige. But color us astonished that barely anyone appreciates the significance of the bombshell Attorney General John Ashcroft dropped on the hearings Tuesday. If Jamie Gorelick were a Republican, you can be sure our colleagues in the Fourth Estate would be leading the chorus of complaint that the Commission's objectivity has been fatally compromised by a member who was also one of the key personalities behind the failed antiterror policy that the Commission has under scrutiny. Where's the outrage?

At issue is the pre-Patriot Act "wall" that prevented communication between intelligence agents and criminal investigators — a wall, Mr. Ashcroft said, that meant "the old national intelligence system in place on September 11 was destined to fail." The Attorney General explained:

"In the days before September 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.

"When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join the hunt for the suspected terrorists.

"At that time, a frustrated FBI investigator wrote headquarters, quote, 'Whatever has happened to this — someday someone will die — and wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.'"

What's more, Mr. Ashcroft noted, the wall did not mysteriously arise: "Someone built this wall." That someone was largely the Democrats, who enshrined Vietnam-era paranoia about alleged FBI domestic spying abuses by enacting the 1978 Foreign Intelligence Surveillance Act (FISA).

Mr. Ashcroft pointed out that the wall was raised even higher in the mid-1990s, in the midst of what was then one of the most important antiterror investigations in American history — into the 1993 World Trade Center bombing. On Tuesday the Attorney General declassified and read from a March 4, 1995, memo in which Jamie Gorelick — then Deputy Attorney General and now 9/11 Commissioner — instructed then-FBI Director Louis Freeh and United States Attorney Mary Jo White that for the sake of "appearances" they would be required to adhere to an interpretation of the wall far stricter than the law required.

Ms. White was then the lead prosecutor in cases related to the Trade Center bombing. Ms. Gorelick explicitly references United States v. Yousef and United States v. Rahman — cases that might have greatly expanded our pre-9/11 understanding of al Qaeda had investigators been given a freer hand. The memo is a clear indication that there was pressure then for more intelligence sharing. Ms. Gorelick's response is an unequivocal "no":

"We believe that it is prudent to establish a set of instructions that will more 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 is being used to avoid procedural safeguards which would apply in a criminal investigation" (emphases added).

In case anyone was in doubt, Janet Reno herself affirmed the policy several months later in a July 19, 1995, memo that we have unearthed. In it, the then-Attorney General instructs all U.S. Attorneys about avoiding "the appearance" of overlap between intelligence-related activities and law-enforcement operations.

Recall, too, that during the time of Ms. Gorelick's 1995 memo, the issue causing the most tension between the Reno-Gorelick Justice Department and Director Freeh's FBI was not counterterrorism but widely reported allegations of contributions to the Clinton-Gore campaign from foreign sources, involving the likes of John Huang and Charlie Trie. Mr. Trie later told investigators that between 1994 and 1996 he raised some $1.2 million, much of it from foreign sources, whose identities were hidden by straw donors. Ms. Gorelick resigned as deputy attorney general in 1997 to become vice chairman of Fannie Mae.

From any reasonably objective point of view, the Gorelick memo has to count as by far the biggest news so far out of the 9/11 hearings. The Mary Jo White prosecutions and the 2001 Moussaoui arrest were among our best chances to uncover and unravel the al Qaeda network before it struck the homeland. But thanks in part to the Clinton Administration's concern with appearances and in part to its legacy, these investigations were hamstrung.

Ms. Gorelick — an aspirant to Attorney General under a President Kerry — now sits in judgment of the current Administration. This is what, if the principle has any meaning at all, people call a conflict of interest. Henry Kissinger was hounded off the Commission for far less. It's such a big conflict of interest that the White House could hardly be blamed if it decided to cease cooperation with the 9/11 Commission pending Ms. Gorelick's resignation and her testimony under oath as a witness into the mind of the Reno Justice Department. What exactly was the purpose of the wall?

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Whoa. Jaime Gorelick could have been attorney general in a Gore administration. And Jaime Gorelick could become attorney general in a Kerry administration.

There's a couple of thoughts to send chills racing down your spine.

Gorelick's memo of March 4, 1995, is here. The Corner helpfully blogs some background & and explanation, yesterday.

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Part of the reason that this is such a mess is that nothing DOJ assumed was required (and then proceeded to "go beyond") really was legally required. The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures. A wiretap is a "search and seizure" — it captures conversations. So what the Fourth Amendment minimally proscribes is unreasonable recording of conversations. If someone is plotting against national security (by terrorism or espionage), it is perfectly reasonable to record such a conversation, whether or not you have a court order permitting it.

The Constitution only sets the threshold of what the government may do or not do; Congress is empowered in many areas to pass laws that create further restrictions. In the criminal law, that was done by Title III (18 USC 2510 et seq), which generally forbids the government in an ordinary criminal investigations to tape record conversations unless the government has first gotten a wiretap order based on a showing of probable cause to believe a crime is being committed. That, however, did not affect national security wiretapping. National security wiretapping is part of the executive branch's defense powers, not its law enforcement powers (which are heavily regulated by the courts). Under the Constitution, courts do not have much if anything to do with national defense — under separation of powers principles, that is ceded to the executive branch.

In the Vietnam era and in Watergate, however, it emerged that presidents (most infamously, Nixon) had abused national defense powers. That is, under the guise of national security, he had intelligence agents spy on political enemies. In order to crack down on this abuse, Congress thought it would be prudent to subject to Court review the President's national defense power to tape record potential foreign enemy spies and terrorists. It passed a law called the Foreign Intelligence Surveillance Act (FISA) in 1978, which required intelligence agents to establish to the satisfaction of a special FISA Court that there was probable cause their target was an agent of a foreign power before recording could take place. There was probably a good argument that this was an unconstitutional intrusion on the President's national security power, but the political climate post-Watergate was not a good time to be making such arguments.

FISA, in addition to the probable cause showing, also required the executive branch to certify that it was seeking to use FISA for national security intelligence gathering purposes. The fear behind that requirement is that the government might use abuse its FISA authority. That is, in an ordinary criminal case where it did not have enough evidence to show probable cause that a crime was being committed, the government might pretend that it was doing a national security investigation under FISA just so it could get permission to record. This was a hypothetical and very silly fear: if an agent was inclined to be corrupt, it would be much easier and smarter just to make up evidence needed to establish probable cause for a regular criminal wiretap than to pretend the subject of his investigation was an agent of a foreign power; and, internally, the FBI and DOJ require a more rigorous approval process for a FISA wiretap than a criminal wiretap, so the chances of being caught would be greater.

No matter. The certification requirement was put in the statute. Soon, the government began to interpret as if it were not only a requirement to declare that the FISA wiretap was sought for intelligence (rather than criminal) purposes, but as if it actually prohibited the government from USING FISA recordings in criminal cases. It says no such thing — indeed, nothing in FISA prevents the government from using FISA recordings in criminal trials — which is important because terrorists commit lots of ordinary crimes, and prosecuting them is sometimes a very good way to stop them from blowing things up and to induce them to cooperate.

When the government started to act like there was something wrong with obtaining evidence of ordinary crimes by FISA, the federal courts naturally reacted by not only seeming to agree, but by going one better: they developed a "primary purpose" test — requiring the government to prove that its real reason for using FISA had been to conduct a national security investigation, not to build a criminal case. If the government could not prove this, the FISA intercepts could not be used as evidence.

Although it never actually happened that intercepts were suppressed, the “primary purpose” test is the law the Gorelick memo referred to when it talked about what was “legally required”. “Primary purpose” put the government in a bind: The government started to be afraid to investigate terrorists for criminal violations, because if you then also used FISA, the mere fact that you had done some criminal investigation would theoretically leave you vulnerable to the charge that you were using FISA to build the criminal case — not for the “primary purpose” of intelligence collection.

Government lawyers are usually cautious. By nature, they avoid going to the ultimate margins of what they are allowed to do. This helps them later on, when defendants claim that evidence should be suppressed, to impress the court that what they did must have been reasonable and permissible because it was less than the law would have allowed them to do. So the government put in safeguards, described in the memo, that were more hamstringing even than the primary purpose test. As the memo describes, the intelligence agents were basically not allowed to communicate with the criminal agents — they were supposed to investigate on totally separate tracks; that way, it was thought, there could be no suggestion that the FISA wiretaps had been used to build a criminal case.

In the end, this is all tragic. As the FISA Court of Review held in 2002, there was no problem with FISA intercepts being used to help criminal cases, the certification requirement was never meant to be a restriction on the use of FISA evidence, the “primary purpose” test was something that should never have been imposed by the courts, and the restrictive Justice Department safeguards — “the Wall” between criminal and intelligence agents — designed to avoid running afoul of primary purpose were utterly unnecessary. All the safeguards succeeded in doing is stopping agents from pooling information and connecting dots about people who were trying to kill us all.

Sorry this is so long and complicated, but something that takes 25 years to get this screwed up is bound to be long and complicated.

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Here is House Judiciary Committee Chairman James Sensenbrenner's call for Gorelick's resignation, yesterday.

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Yesterday [Tuesday, Apr. 13], a 1995 memo written by 9/11 Commission Member Jamie Gorelick, in her former role as the second in command at the Justice Department, revealed her actions in establishing the heightened 'wall' prohibiting the sharing of intelligence information and criminal information. Scrutiny of this policy lies at the heart of the Commission's work. Ms. Gorelick has an inherent conflict of interest as the author of this memo and as a government official at the center of the events in questions. Thus, I believe the Commission's work and independence will be fatally damaged by the continued participation of Ms. Gorelick as a Commissioner. Reluctantly, I have come to the conclusion that Ms. Gorelick should resign from this Commission.

The Commission's Guidelines on Recusals state, "Commissioners and staff will recuse themselves from investigating work they performed in prior government service." Commissioner Gorelick's memo directing a policy that "go[es] beyond what is legally required" indicates that her judgment and actions as the Deputy Attorney General in the Reno Justice Department are very much in question before the Commission. Indeed Attorney General Ashcroft called this DOJ policy, "the single greatest structural cause for September 11 ... [and] embraced flawed legal reasoning." Commissioner Gorelick is in the unfair position of trying to address the key issue before the Commission when her own actions are central to the events at issue. The public cannot help but ask legitimate questions about her motives.

While it is regrettable that this conflict had not come to light sooner, this Commission's work and forthcoming recommendations are too important to be questioned in this way, and may be devalued by Ms. Gorelick's continued participation as a Commissioner. Given Ms. Gorelick's work as the Deputy Attorney General under Janet Reno, Ms. Gorelick can be quite valuable to the Commission's work preparing "a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks." However, that contribution should come as a witness before the Commission — not as a member.

Key figures like former FBI Director Freeh, Director Mueller, Attorney General Ashcroft, former presidential adviser Richard Clarke, and National Security Advisor Condoleeza Rice have all testified before the Commission and would have rightly sparked indignation about a conflict of interest had these individuals also been members of the Commission. Testifying before the Commission is Ms. Gorelick's proper role, not sitting as a member of this independent commission.

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Meanwhile, the reaction at the New York Times, Los Angeles Times, ABC/CBS/NBC, and the rest of the Mainstream Media Branch of the Democratic Establishment can be summed up as follows: "Ho hum. Anybody seen John Kerry lately? And when is Bill Clinton's book coming out?" Partisan hypocrites.

Lane Core Jr. CIW P — Thu. 04/15/04 05:34:53 PM
Categorized as Most Notable & Political.


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