The todo about Able Danger and what the FBI should or should not have known about Mohammad Atta has increased scrutiny of the 9/11 Commission report and renewed the debate over the "wall" between law enforcement and anti-terrorism efforts (see, e.g., here and here). Time will tell whether there is anything to the Able Danger story -- and whether or not the "wall" inhibited information shargin -- but it is clearer than ever that Jamie Gorelick should not have served on the 9/11 Commission. Whether or not she deserves credit or blame for the "wall" and other Clinton Administration policies, her presence on the commission undermines its credibility, and provides undo fodder for political partisans and conspiracy theorists. This is a point I made last year (see here and here). As I wrote last May:
the issue is not whether Ms. Gorelick made reasonable decisions as a Justice Department official. I have no interest in seeing the 9/11 Commission's work devolve into partisan finger-pointing about which administration is most at fault. Many people, in multiple administrations, made decisions that -- it can be seen in hindsight -- were in error. These people should be testifying before the 9/11 Commission, not participating on it. For this reason, and this reason along, Ms. Gorelick has no place on the Commission. Unless the Commissioners recognize this fact, the Commission will not fulfill its mandate of producing a neutral and credible report on the policy failures that led to 9/11.
Related Posts (on one page):
- Gorelick Should Have Gone:
- The Intelligence Wall and the Culture of the Wall.--
- Did Lawyers Hinder Bin Laden Capture?--
Except so far the best evidence is that there's not! Furthermore, it's not merely speculative to suggest that the so-called Gorelick wall could have been responsible for a failure to share evidence (which, again, the evidence suggests there never was), but also contrary to the terms of the rule itself, which didn't apply to military intelligence. And furthermore, the series of procedures constituting the so-called wall wasn't the sole invention of Gorelick, and dated back at least to the first Bush administration.
So, please, let me get this straight: A failure to share information, which likely never happened, purportedly because of a rule that wouldn't have prevented it anyway, and which wasn't even the sole creation of Jamie Gorelick, is sufficient reason to have kept Gorelick off the 9/11 panel, because her membership "provides undo fodder for political partisans and conspiracy theorists."
I don't think, if you're being honest, you have any problem with Ms. Gorelick. It sounds like you have a problem with these "political partisans and conspiracy theorists." If only you'd stop linking to them....
Second, after quickly reading them, I have to say I find the earlier posts a little unconvincing, and frankly they sound like typical lawyer-hating hyperbole. I have no especial expertise, and it's possible that things really are as bad as suggested. But words like "palsied" make me suspicious. Especially since Gorelick has been the paranoid right's bete noir for quite a while now, I think the proper attitude towards more of the same is a healthy skepticism. (Even Powerline admitted they shouldn't have jumped on the Able Danger story.)
Third, whether or not "maintaining, if not establishing" a policy should be sufficient basis for disqualification (query---what counts as "maintaining"? merely serving under the policy without actively criticizing it? should every federal law enforcement official during the relevant years be DQ'd?), that's only one-third of the problem with these charges against Gorelick. There's still the dual infirmity that (a) Atta's name probably wasn't actually withheld, and (b) the so-called Gorelick wall didn't even affect military intelligence!
Fourth, and finally.... It seems to me the fault of "political partisans and conspiracy theorists," as you put it, that such questions arise, if they are in fact unjustified (as I believe them to be). It seems a curious conclusion that irresponsible allegations could be construed as the fault of the person who is the target of the allegations, rather than those who make them. And I find it uncomfortably curious that your reasoning would conclude, from the premise that paranoid conspiracists are making unfounded allegations that Gorelick shouldn't have been a member of the 9/11 commission, exactly what the conspiracists are whispering, that Gorelick shouldn't have been a member of the 9/11 commission! That is, I find it hard to distinguish your argument from theirs, when you both conclude with the same recommendation.
Furthermore, Groelick was an inside player in an administration that was and remains notorious for "circling the wagons" and covering up mistakes, ethical lapses, and crimes. These are more than adequate reasons why she should have been a witness before rather than a member of the 9/11 commission. Certainly she was the least distinguished panel member.
The closest analogy I can think of to including Groelick on this panel would have been to include Ed Meese as a participant in the follow-up investigations of Watergate.
I think I've just restated JN-V's argument, but I'm too
lazybusy to go re-read his earlier posts.Gorelick's relationship to the "wall" is in some dispute (something which, I think, reinforces my point). What is not disputed is that she helped develop the 1995 guidelines and signed a memo governing information sharing in two high-profile terror cases that, by its own terms, imposed limits beyond those legally required at the time.
Gorelick described her involvement in this WPost op-ed (the publication of which prompted my first post on this subject last year). For a more critical view, I recommend this piece by Andy McCarthy. I should make clear that my intent is not to cast aspersions on Gorelick's actions as a Justice Department official. Her decisions may well have been reasonable given what was known at the time. Rather, insofar as her actions were to be assessed by the commission, my argument is that she should have been a witness rather than a commissioner. This would have facilitated the commission's work and enhanced the credibility of the commission's report.
There had been some statutory requirements that Congress enacted to prevent the CIA and the DIA from collecting domestic intelligence. In a memo she sent to US Attorney Mary Jo White, Gorelick said that she was going to go beyond what the statutory requirements were in order to guarantee that there isn't even an appearance of impropriety. It seems as though while some hindering of information-sharing was caused by statutory incompetence, Gorelick went above and beyond the call of duty to prevent the various intelligence agencies from sharing info. Apparently she is also responsible for a culture over at Defense that caused these problems to happen. Before she went over to justice, between 1993 and 1994, she was the general counsel for the DoD. So, I assume that she was involved in clarifying the info-sharing policy not just for info flowing between FBI and CIA, but also info flowing between FBI and DIA.
At any rate, the notion that Gorelick's being on the Commission had some negative effect is a mysterious one to me. Precisely because she *was* on the Comm'n, we have all heard enough about "the Wall" to think of Gorelick, not Pink Floyd or Checkpoint Charlie, when we hear that term now.
N.b. that Gorelick recused herself from this part of the 9/11 Report; ch. 3, n.33. The following notes &supporting text are of great interest.
Good decisions, in an uncertain world, sometimes lead to bad results. Bad decisions simply do so with higher probability. The idea that anyone who has taken a decision that with hindsight seems bad is "corrupted", "tainted" etc. - whether applied to Rumsfeld or Gorelick, is simply wrong.
You are selectively quoting the purpose of the Commission. As it states on the Commission's website:The problem is Gorelick's participation in preparing the account of what led to the report. Again, my point is not to criticize her past policy judgments -- or even to suggest that limitations on inforamtion sharing are unjustified. Rather, it is that someone who was intimately involved in making controversial pre-9/11 anti-terrorism policy judgments should not be tasked with analyzing such efforts for the purpose of producing the definitive official account of what went wrong.
Okay, JNV, but again, she recused herself from that portion of the 9/11 Comm'n's work. Do you think that the Comm'n is lying?
Secondly, she is well known as a Clinton partisan. She held a succession of very influental positions in the Clinton administration, more than one of which may have affected our ability to detect 9/11. So, again, there is the (IMHO justified) suspicion that she acted more as someone tasked with protecting the Clinton legacy than as an neutral factfinder. She, along with Ben-Veniste, didn't help this appearance by appearing more as a prosecutor than a neutral when Bush Administration members were being questioned, but not utilizing nearly the same level of zeal when questioning her old Clinton Administration cohorts. So, in the end, her participation on the 9/11 Commission looks more like she was there to protect Clinton and his legacy than to actually find out the truth. Again, this is appearances, which may actually diverge from reality.
But would recusal of that one matter really obviate the appearance of impropriety? Could her mere presence on the Commission have affected its investigation into this area? I don't think we know, and that is the problem.
In fact, whereas the judges work together often &thus have some investment in each other's feelings, the Comm'n was an ad hoc body whose members, AFAIK, had no commitments to one another.
So your point, while not beyond possibility, seems a bit forced to me.
First, as I noted in my first post on this subject, I was inclined to think a suitably broad recusal would have been sufficient. Then Gorelick took to the pages of the Washington Post to defend (and some would say misrepresent) her actions at Justice. At that point, the appearance of a major conflict of interest was, in my mind, too large for a recusal to be sufficient.
Second, I think the recusal was unduly narrow. She obviously had a stake in the Commission's assessment of responsibility for the nation's vulnerabilities. A broader recusal would have been preferable.
In hindsight, it's clear to me that Gorelick should have declined the invitation to serve on the Commission once she realized the scope of its responsibilities. I realize that folks in D.C. rarely turn down such high-profile appointments, but (again in hindsight) that would have been the best course.
I think the point is that simply recusing herself from that area is in fact a huge disservice to the Commission. She should have been on the other side in the witness chair being grilled about her thoughts that led up to the memo expanding and/or codifying the "Wall".
After watching Gorelick et. al. trying to play gotcha with Dr. Rice and the infamous PDB the credibility of the commission went downhill fast.
If that PDB was supposed to be so important wouldn't a document saying "we're going beyond the statutory requirements" be equally so and the author deserve their own time in the hot seat?
The fact that Gorelick was able to give Rice a hard time makes no similar impression on me as it did on Rob. A 4th grader could have made Rice look bad. Sometimes facts are facts.
cathy :-)
If the Commission, motivated by butt-covering blame-shifting ...
Again, this implies that 9 commissioners were swayed by some alleged need to cover Gorelick's butt, as it were. This is just wildly implausible.
I can see that she might should have stayed off the Comm'n, but I don't yet see any harm from her service on it; any alleged minimizing of the Wall, etc. was surely more than countered by the very lively discussions that her service on the Comm'n sparked.
I don't see how Gorelick was clever enough to deceive 9 other commissioners &their staffs, but if she was, then we need to put her powers to use!
Really, it's hard for me to see how this is anything but conspiracy-theory talk, without some evidence. Did anyone working for the Comm'n come out afterwards &complain that Gorelick tampered with evidence or conclusions?
Certainly the other members of the Commission knew about Gorelick's background. To what extent did they defer to her expertise about issues she'd worked on? They'd be unlikely to cross-examine her contributions in the same way they would a witness.
I don't think Gorelick should be prosecuted or anything; I just think it was irresponsible to have her on the commission because it raises reasonable doubts about the functioning of the commission. If you don't think those doubts are "reasonable," well, many of us without a partisan axe to grind think they are.
I wasn't suggesting that the recommendations were mandate, sorry if it came across that way. All I needed was to show that it was part of the mandate, and one for which Gorelick's participation seems uniquely important.
Someone on the panel had to be able to say "I know that there are costs to keeping a "wall", but even though this might mean we have a n% chance of y size attack, we need to take it because the benefits of taking that chance are x". Post 9/11, not a lot of people would be able to say that.
Now, I agree it's important to figure out just what happened before 9/11, but I think in terms of the impact it makes, the recommendations of the commission are more important.
I agree that Gorelick had many important insights for the commission -- insights that she could (and should) have shared as a witness.
Anderson --
I don't think Shelby was accusing you of having a partisan axe to grind. Rather, I read Shelby's post as suggesting that one does not need to have a partisan axe to feel that Gorelick's presence on the commission created the appearance of a conflict of interest, thereby undermining the commission.
Would you have been ok with having Stephen Hadley (Rice's deputy before she went to State) on the 9/11 Commission? I think that if that had happened, people would have been livid and rightly so. The point is that people whose policies may have been responsible for the intelligence breakdown should not have served on the Commission. Period.
Oh, and from what I recall, the only reason that The Wall memo ever surfaced is because Ashcroft brought it up in his testimony. If he had never brought it up, it never would have surfaced and would have never caused her to recuse herself for any part of the report because she would never (and didn't) have to testify. I could be wrong about the Ashcroft thing though, but that is my recollection of the events. If someone has better info, I'd appreciate it.