Jamie Gorelick's wall
The disclosure that Jamie Gorelick, a member of the September 11 commission, was personally responsible for instituting a key obstacle to cooperation between law enforcement and intelligence operations before the terrorist attacks raises disturbing questions about the integrity of the commission itself. Ms. Gorelick should not be cross-examining witnesses; instead, she should be required to testify about her own behavior under oath. Specifically, commission members need to ask her about a 1995 directive she wrote that made it more difficult for the FBI to locate two of the September 11 hijackers who had already entered the country by the summer of 2001.
On Tuesday, Attorney General John Ashcroft declassified a four-page directive sent by Ms. Gorelick (the No. 2 official in the Clinton Justice Department) on March 4, 1995, to FBI Director Louis Freeh and Mary Jo White, the New York-based U.S. attorney investigating the 1993 World Trade Center bombing. In the memo, Ms. Gorelick ordered Mr. Freeh and Ms. White to follow information-sharing procedures that "go beyond what is legally required," in order to avoid "any risk of creating an unwarranted appearance" that the Justice Department was using Foreign Intelligence Surveillance Act (FISA) warrants, instead of ordinary criminal investigative procedures, in an effort to undermine the civil liberties of terrorism suspects. (none)
At issue was the oft-noted wall of separation that prevented counterterrorism agents and federal prosecutors from communicating with one another prior to September 11. Information collected under special FISA warrants, which do not require a probable cause, was generally not to be shared with personnel responsible for enforcing federal criminal laws — where probable cause must be demonstrated for a warrant to be issued...
The Commissioner belongs in the witness chair.
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)...
The intelligence package that Congress approved this week includes a series of little-noticed measures that would broaden the government's power to conduct terrorism investigations, including provisions to loosen standards for FBI surveillance warrants and allow the Justice Department to more easily detain suspects without bail.
Other law-enforcement-related measures in the bill -- expected to be signed by President Bush next week -- include an expansion of the criteria that constitute "material support" to terrorist groups and the ability to share U.S. grand jury information with foreign governments in urgent terrorism cases.
These and other changes designed to strengthen federal counterterrorism programs have long been sought by the Bush administration and the Justice Department but have languished in Congress, in part because of opposition from civil liberties advocates...
Some of the changes were originally part of a legislative draft drawn up by Justice prosecutors in 2002 as a proposed expansion of the USA Patriot Act, administration and congressional officials said. The draft, leaked to the media and dubbed "Patriot II" by critics, was never introduced as a bill in its entirety. But portions were introduced as stand-alone legislation...