Sept. 11 Commission member Jamie Gorelick wrote a 1995 memo that established a "wall" between the criminal and intelligence divisions, hindering the ability of the U.S. government to detect the Sept. 11, 2001, plot, according to testimony today by Attorney General John Ashcroft.
The document by Gorelick [pdf file], who served as deputy attorney general under President Clinton, helped establish the "single greatest structural cause" for Sept. 11, which was "the wall that segregated criminal investigators and intelligence agents," Ashcroft said in his prepared statement.
Gorelick was a Democratic appointee to the commission probing how the government handled the threat to terrorism leading to the 9-11 attacks.
"Government erected this wall," Ashcroft said. "Government buttressed this wall. And before September 11, government was blinded by this wall."
The attorney general, who declassified the document for the commission, said he believed panel members were not aware of it, even though it was written by one of their own.
"Although you understand the debilitating impact of the wall, I cannot imagine that the commission knew about this memorandum, so I have declassified it for you and the public to review," he said. "Full disclosure compels me to inform you that its author is a member of this commission."
The memo, entitled "Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations," contained orders to FBI Director Louis Freeh and others.
It said: "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."
Ashcroft said that by 2000, "the Justice Department was so addicted to the wall, it actually opposed legislation to lower the wall. Finally, the USA Patriot Act tore down this wall between our intelligence and law enforcement personnel in 2001. And when the Patriot Act was challenged, the FISA Court of Review upheld the law, ruling that the 1995 guidelines were required by neither the Constitution nor the law."
Ashcroft insisted that had he known a terrorist attack was imminent in 2001, he would have "unloaded our full arsenal of weaponry against it – despite the inevitable criticism."
"But the simple fact of September 11 is this: We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies."
Ashcroft said U.S. agents "were isolated by government-imposed walls, handcuffed by government-imposed restrictions, and starved for basic information technology. The old national intelligence system in place on September 11 was destined to fail."
Legal group wants Gorelick to step down
The Landmark Legal Foundation, a national public interest law firm, has formally requested that Gorelick step down from the commission because she is "hopelessly conflicted" in her role as a member.
The group, headed by Mark Levin, contends there are "numerous issues about which she has knowledge" resulting from her service as deputy attorney general from 1994 to 1997.
As the second most powerful Justice official, Landmark notes, Gorelick oversaw the management, budget and policy objectives of the department, including the FBI, which are a key focus of the commission.
Gorelick recused herself from testimony today by former FBI Director Louis Freeh, but Landmark said this is no substitute for her testimony.
"Moreover, as a commission member," the group said, "Ms. Gorelick will have input into the commission's findings, including those related to areas involving her past role. If Ms. Gorelick does not immediately step aside, many in the public will undoubtedly conclude that the commission's work has been compromised."
As an example, Landmark quotes former Chief Assistant United States Attorney Andrew C. McCarthy, who said Gorelick was "an architect of the government's self-imposed procedural wall, intentionally erected to prevent intelligence agents from pooling information with their law-enforcement counterparts."
McCarthy stated in a National Review column Gorelick was "committed to the bitter end to the law enforcement mindset" of addressing terrorism.
Writing in National Review Online, Ethan Wallison, notes during questioning of National Security Advisor Condoleezza Rice, Gorelick pointed to a report from 2001 that indicated, in her own words, that "we have big systemic problems. The FBI doesn't work the way it should, and it doesn't communicate with the intelligence community."
In the ensuing dialogue, however, Rice apparently implicated Gorelick in the allegation.
Gorelick: Now, you have said that your policy review was meant to be comprehensive. You took your time because you wanted to get at the hard issues and have a hard-hitting, comprehensive policy. And yet there is nothing in [the policy review] about the vast domestic landscape that we were all warned needed so much attention. Can you give me the answer to the question why?
Rice: I would ask the following. We were there for 233 days. There had been a recognition for a number of years before – after the '93 [World Trade Center] bombing, and certainly after the [thwarted] millennium [attack in Los Angeles] – that there were challenges inside the United States, and that there were challenges concerning our domestic agencies and the challenges concerning the FBI and the CIA. We were in office 233 days. It's absolutely the case that we did not begin structural reform at the FBI.