May 03, 2004

"The Wall", Gorelick & 9/11 "Readers will recall that in his testimony Attorney General Ashcroft declassified a March 1995 memo written by 9/11 Commissioner Jamie Gorelick--then Deputy Attorney General--instructing federal prosecutors and the FBI director to go "beyond what the law requires" in limiting their cooperation. Ms. Gorelick has since responded that she played only a subordinate role in setting this policy, and was only implementing settled law in any case. But the newly released memos appear to contradict Ms. Gorelick on both counts, further strengthening the case for having her resolve the issue in testimony and under oath.

A key piece of evidence is a June 13, 1995 memo to Attorney General Janet Reno from Mary Jo White, then U.S. Attorney and lead World Trade Center bombing prosecutor, and a recipient of the March memo Mr. Ashcroft referenced: "You have also asked whether I am generally comfortable with the instructions. It is hard to be totally comfortable with instructions to the FBI prohibiting contact with the United States Attorney's Offices when such prohibitions are not legally required."

Ms. White added: "Our experience has been that the FBI labels of an investigation as intelligence or law enforcement can be quite arbitrary depending upon the personnel involved and that the most effective way to combat terrorism is with as few labels and walls as possible so that wherever permissible, the right and left hands are communicating" (emphases added).

Then Ms. White asked for a number of changes to the proposed guidelines, most of which Gorelick subordinate Michael Vatis recommends rejecting in a June 19 memo to Ms. Reno. That memo is accompanied by a handwritten note from Ms. Gorelick saying that she concurs.

Or to sum up the exchange: The principal U.S. terrorism prosecutor was trying to tell her boss that she foresaw a real problem with the new and "not legally required" wall policy, but Ms. Reno--again delegating that policy to Ms. Gorelick--largely rebuffed her concerns.

Commission Chairman Tom Kean has thus far been a staunch defender of Ms. Gorelick's refusal to testify. Perhaps he can explain how all of the above squares with Ms. Gorelick's recent remarks on CNN that "The wall was a creature of statute. It's existed since the mid-1980s. And while it's too lengthy to go into, basically the policy that was put out in the mid-'90s, which I didn't sign, wasn't my policy by the way, it was the Attorney General's policy . . ."

We've never expected much from this Commission, but the stonewalling is getting ridiculous. Everyone knows the wall contributed to serious pre-9/11 lapses, such as the FBI's failure to search "20th Hijacker" Zacarias Moussaoui's hard drive following his arrest on immigration violations in August 2001. Yet the Commissioners are treating reasonable requests that they explore the wall fully as some sort of affront.

U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald summed up the core issue last October in testimony to Congress: "I was on a prosecution team in New York that began a criminal investigation of Osama bin Laden in early 1996. . . . We could talk to local police officers. We could talk to other U.S. government agencies. We could talk to foreign police officers. Even foreign intelligence personnel. . . . But there was one group of people we were not permitted to talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to a parallel intelligence investigation of Osama bin Laden and al Qaeda. We could not learn what information they had gathered. That was 'the wall.' "

That's also what the 9/11 Commissioners now seem determined to ignore. How long will they continue protecting their colleague at the cost of their own credibility? More WSJ OPIONON. Posted by Greg Ransom | TrackBack