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Gorelick's Wall
The Commissioner belongs in the witness chair.

Thursday, April 15, 2004 12:01 a.m. EDT

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?