Full Version: Conflict of Interest?
In yesterday's hearings before the 9/11 commission, Attorney General John Ashcroft revealed a de-classified memo written by Jamie Gorelick, then Deputy Attorney General, that placed a "wall" between intelligence gathering and criminal investigations by the Justice Department into terrorist activities. Jamie Gorelick is also a member of the 9/11 commission and it would appear that this document (in PDF format, hope I got the link correct) would place Ms. Gorelick in a position of a direct conflict of interest with the mission of the 9/11 commission. Congressman Sensenbrenner, chairman of the House Judiciary Committee apparently agrees having released this statement. From this statement......
The question for debate is.... (Drumroll, Mike)
Should Jamie Gorelick resign from the 9/11 commission?
QUOTE
"The Commission's Guidelines on Recusals state, 'Commissioners and staff will recuse themselves from investigating work they performed in prior government service.' Commissioner Gorelick's memo directing a policy that 'go(es) beyond what is legally required' indicates that her judgment and actions as the Deputy Attorney General in the Reno Justice Department are very much in question before the Commission. Indeed Attorney General Ashcroft called this DOJ policy, 'the single greatest structural cause for September 11 ... (and) embraced flawed legal reasoning.' Commissioner Gorelick is in the unfair position of trying to address the key issue before the Commission when her own actions are central to the events at issue. The public cannot help but ask legitimate questions about her motives.
The question for debate is.... (Drumroll, Mike)
Should Jamie Gorelick resign from the 9/11 commission?
While I am a big fan of having people take their ethical responsibilities, I would think an expert commission on this issue would have areas of conflict of interest.
If the appropriate thing to do for this individual is to resign than I say so be it.
If the appropriate thing to do is to recuse herself from an investigation of things that she was personally involved in or has a good reason to point blame in order to clear her name, she should recuse herself from an aspect of the investigation.
Don't they have some type of review, referee, or rules committee they can go to on this issue?
I just don't know the procedures for that so ....
It seems appropriate that a level of recusal is necessary here.
If the appropriate thing to do for this individual is to resign than I say so be it.
If the appropriate thing to do is to recuse herself from an investigation of things that she was personally involved in or has a good reason to point blame in order to clear her name, she should recuse herself from an aspect of the investigation.
Don't they have some type of review, referee, or rules committee they can go to on this issue?
I just don't know the procedures for that so ....
It seems appropriate that a level of recusal is necessary here.
As she did recuse herself from asking several people she worked with questions just like any of the other commissioners have done thru out this proceeding. So no she should not recuse herself.
Should Jamie Gorelick resign from the 9/11 commission?
The guideline, "'Commissioners and staff will recuse themselves from investigating work they performed in prior government service," indicates members should recuse themselves whether it is perceived they had a positive or negative impact on 9/11. It appears Gorelick wanted to avoid the chance of evidence being dismissed or cases overruled on a technicality (paragraphs 1 and 2, pages 1 and 2 in the memo, respectively), in reference to the United States v. Rahman appeal. Rahman and his merry band of co-conspirators were convicted and sentenced in 1995, appealed in 1997. I didn't see a date on the memo. I assume she handed it out after 1995.
My question would be at the time were either the FBI or Justice Department surveiling and/or gathering information on the 9/11 highjackers? If that's not the case I don't know how her memo prohibited Ashcroft from breaking down the "structural cause." In any case, her complicity is clear. For better or worse she should recuse herself, as these are guidelines, and testify if called.
On a side note why the bloody hell can't I look up the Ashcroft transcript? Was it a private hearing?
Edit: Just read Cadman's post. I was wondering about that myself. If that's the case and she recused herself when Reno took the stand, and the 9/11 highjackers weren't the subject of the FBI/DoJ surveillance when the memo was released or shortly thereafter, then she shouldn't recuse. Aquilla, do you have a link to the transcript?
The guideline, "'Commissioners and staff will recuse themselves from investigating work they performed in prior government service," indicates members should recuse themselves whether it is perceived they had a positive or negative impact on 9/11. It appears Gorelick wanted to avoid the chance of evidence being dismissed or cases overruled on a technicality (paragraphs 1 and 2, pages 1 and 2 in the memo, respectively), in reference to the United States v. Rahman appeal. Rahman and his merry band of co-conspirators were convicted and sentenced in 1995, appealed in 1997. I didn't see a date on the memo. I assume she handed it out after 1995.
My question would be at the time were either the FBI or Justice Department surveiling and/or gathering information on the 9/11 highjackers? If that's not the case I don't know how her memo prohibited Ashcroft from breaking down the "structural cause." In any case, her complicity is clear. For better or worse she should recuse herself, as these are guidelines, and testify if called.
On a side note why the bloody hell can't I look up the Ashcroft transcript? Was it a private hearing?
Edit: Just read Cadman's post. I was wondering about that myself. If that's the case and she recused herself when Reno took the stand, and the 9/11 highjackers weren't the subject of the FBI/DoJ surveillance when the memo was released or shortly thereafter, then she shouldn't recuse. Aquilla, do you have a link to the transcript?
QUOTE
If that's the case [snip]
Never mind. It is:
QUOTE
Thomas Kean, the Republican chairman of the panel, dismissed Sensenbrenner's request as "silly," noting Gorelick had recused herself from everything related to her previous role in the government.
"She is in my mind, one of the finest members of the commission, one of the hardest-working members of the commission, and, by the way, one of the most nonpartisan and bipartisan members of the commission," Kean said. "So people ought to stay out of our business."
-- Republican lawmaker urges 9/11 panelist to quit (CNN)
"She is in my mind, one of the finest members of the commission, one of the hardest-working members of the commission, and, by the way, one of the most nonpartisan and bipartisan members of the commission," Kean said. "So people ought to stay out of our business."
-- Republican lawmaker urges 9/11 panelist to quit (CNN)
Should Jamie Gorelick resign from the 9/11 commission?
No, I don't think so at all. She didn't build this "wall". That was done back in 1978, and codified throughout the 80's. The law, as written was basically this:
Applications for criminal warrants must comply with the Fourth Amendment's proscriptions against intrusive and illegal searches and requires an official declaration that there is "probable cause" to believe a crime had occurred.
In other words, you cannot get a warrant under the criminal investigation side to tap phones, hack and read computer hard drives, search homes, etc., without probable cause that a crime has already been committed, or is likely to occur in the immediate future. In addition, information gathered contrary to these rules, gets that evidence thrown out of court.
The intelligence surveillance law requires only a showing that there is probable cause that the subject is the agent of a foreign power. This law allows all sorts of information and evidence collection, that may turn out to be useful in tracking terrorists, and stopping future plots, that still may not be legally used in a court of law, because of the way the information was collected.
The 1978 law, at least the way everyone read it, was that you had to have this "wall" built up, to prevent possible illegal sharing of intelligence information to criminal investigators, that they would not ordinarily be privy to, under any of their investigations.
The 1995 memo, as I read it, was to make absolutely certain that intelligence agency information that could taint and/or dismiss cases against Yousef and Rahman were not interjected into their criminal investigations and trial evidence. They wanted to make sure these two guys didn't get away on a technicality.
That's not to say that evidence gleaned legally by the intelligence agencies could not be used against them. Points 3, 4, 5 and 6 in the memo, point to specific procedures to be followed in compiling information, and moving it up to an agency head for deciding what would be allowable. For instance, here is section 5:
NOTE: Paragraphs and Acronym names added by me for clarity of reading.
Anyway, to make a long post even longer, Gorlick did not, as Ashcroft would like everyone to believe, build this wall. He even helped to keep it in place, until after 9/11. Committee member Slade Gorton, a former Republican senator from Washington, challenged Mr. Ashcroft's assertions that this was Gorlick's fault, noting that the deputy attorney general under Mr. Ashcroft renewed the 1995 guidelines. Mr. Gorton said the Bush Justice Department ratified those guidelines, saying in its own secret memorandum on Aug. 6, 2001, that "the 1995 procedures remain in effect today."
In testimony, Ashcroft made the point that the rules that created this "wall" were eliminated by the USA Patriot Act. Hmm, weren't these the same kinds of laws that Clinton wanted passed in his anit-terrorism bill, in 1996? The Republican congress refused to include these measures then, saying that they would "intrude on privacy rights".
Also, it seems the administration has recently sought to change the direction of the panel’s findings, which according to a draft report, will be heavily critical of the FBI, the Justice Department and Attorney General Ashcroft. Yesterday’s New York Times reported that the Justice Department, “had mounted an aggressive, last-minute effort on Monday to persuade the commission to rewrite the parts of the report.”
That story was followed up today, by Attorney General Ashcroft’s personal attack on Jaime Gorlick, an attack that was shamelessly followed up by Republican Congressman James Sensenbrenner.
Make no mistake, Sensenbrenner’s criticism is as much an attempt to politicize the work of the commission in order to deflect criticism from the Bush Administration, as much as clammoring for Coni Rice's appearance was an attempt by Democrats to blame the Bush Administration.
But even more troubling to me in all of this, is the administration's quick trigger-finger in declassifying reports, memos, and the like that purport to refute allegations made against one of their own. At the same time they are decidedly slow to pull the trigger (if they pull it at all) in declassifying material that could show them to have made a mistake.
They have done this now to at least four persons, either former or current employees that have failed to tow the Bush line. If the point of the commission is to find the truth, then let's declassify all of the information that we can, and not use it to selectively attack someone's character.
No, I don't think so at all. She didn't build this "wall". That was done back in 1978, and codified throughout the 80's. The law, as written was basically this:
Applications for criminal warrants must comply with the Fourth Amendment's proscriptions against intrusive and illegal searches and requires an official declaration that there is "probable cause" to believe a crime had occurred.
In other words, you cannot get a warrant under the criminal investigation side to tap phones, hack and read computer hard drives, search homes, etc., without probable cause that a crime has already been committed, or is likely to occur in the immediate future. In addition, information gathered contrary to these rules, gets that evidence thrown out of court.
The intelligence surveillance law requires only a showing that there is probable cause that the subject is the agent of a foreign power. This law allows all sorts of information and evidence collection, that may turn out to be useful in tracking terrorists, and stopping future plots, that still may not be legally used in a court of law, because of the way the information was collected.
The 1978 law, at least the way everyone read it, was that you had to have this "wall" built up, to prevent possible illegal sharing of intelligence information to criminal investigators, that they would not ordinarily be privy to, under any of their investigations.
The 1995 memo, as I read it, was to make absolutely certain that intelligence agency information that could taint and/or dismiss cases against Yousef and Rahman were not interjected into their criminal investigations and trial evidence. They wanted to make sure these two guys didn't get away on a technicality.
That's not to say that evidence gleaned legally by the intelligence agencies could not be used against them. Points 3, 4, 5 and 6 in the memo, point to specific procedures to be followed in compiling information, and moving it up to an agency head for deciding what would be allowable. For instance, here is section 5:
NOTE: Paragraphs and Acronym names added by me for clarity of reading.
QUOTE
(redacted) FBI memoranda and investigative reports, including 302's from (redacted), will be prepared as follows:
All information relating to the aforementioned indicted cases and investigations, including the obstruction case, will be segregated into separate reports which will be provided to the US Attorney's Office (USAO), Office of Intelligence Policy and Review (OIPR), and the Criminal Division.
All foreign counterintellingence information (including all counterintelligence relating to future terrorist activities) will be in classified reports which will not be provided to either the criminal agents, the USAO, or the Criminal Division, without FBI Headquarters and OIPR concurrence.
The FBI agent responsible for handling the (redacted) will remain in the on-going trial of "United States v. Rahman", but will otherwise be assigned to the foreign counterintelligence investigation, and report to foreign counterintelligence supervisors.
All information relating to the aforementioned indicted cases and investigations, including the obstruction case, will be segregated into separate reports which will be provided to the US Attorney's Office (USAO), Office of Intelligence Policy and Review (OIPR), and the Criminal Division.
All foreign counterintellingence information (including all counterintelligence relating to future terrorist activities) will be in classified reports which will not be provided to either the criminal agents, the USAO, or the Criminal Division, without FBI Headquarters and OIPR concurrence.
The FBI agent responsible for handling the (redacted) will remain in the on-going trial of "United States v. Rahman", but will otherwise be assigned to the foreign counterintelligence investigation, and report to foreign counterintelligence supervisors.
Anyway, to make a long post even longer, Gorlick did not, as Ashcroft would like everyone to believe, build this wall. He even helped to keep it in place, until after 9/11. Committee member Slade Gorton, a former Republican senator from Washington, challenged Mr. Ashcroft's assertions that this was Gorlick's fault, noting that the deputy attorney general under Mr. Ashcroft renewed the 1995 guidelines. Mr. Gorton said the Bush Justice Department ratified those guidelines, saying in its own secret memorandum on Aug. 6, 2001, that "the 1995 procedures remain in effect today."
In testimony, Ashcroft made the point that the rules that created this "wall" were eliminated by the USA Patriot Act. Hmm, weren't these the same kinds of laws that Clinton wanted passed in his anit-terrorism bill, in 1996? The Republican congress refused to include these measures then, saying that they would "intrude on privacy rights".
Also, it seems the administration has recently sought to change the direction of the panel’s findings, which according to a draft report, will be heavily critical of the FBI, the Justice Department and Attorney General Ashcroft. Yesterday’s New York Times reported that the Justice Department, “had mounted an aggressive, last-minute effort on Monday to persuade the commission to rewrite the parts of the report.”
That story was followed up today, by Attorney General Ashcroft’s personal attack on Jaime Gorlick, an attack that was shamelessly followed up by Republican Congressman James Sensenbrenner.
Make no mistake, Sensenbrenner’s criticism is as much an attempt to politicize the work of the commission in order to deflect criticism from the Bush Administration, as much as clammoring for Coni Rice's appearance was an attempt by Democrats to blame the Bush Administration.
But even more troubling to me in all of this, is the administration's quick trigger-finger in declassifying reports, memos, and the like that purport to refute allegations made against one of their own. At the same time they are decidedly slow to pull the trigger (if they pull it at all) in declassifying material that could show them to have made a mistake.
They have done this now to at least four persons, either former or current employees that have failed to tow the Bush line. If the point of the commission is to find the truth, then let's declassify all of the information that we can, and not use it to selectively attack someone's character.
Should Jamie Gorelick resign from the 9/11 commission?
If things were the way they should be...there shouldnt be one politician on the commission at all. In all seriousness, what do the politicians know about terrorist threats and intelligence reports? The panel should have been made up of retired intelligence men and women who have experience in the issues that were to be discussed. That would have kept out the partisan politics out of the situation all together.
With that being said, I do not think that Gorelick should resign from the commission because that would obviously solve nothing. She made a mistake, Clinton made mistakes, Bush made mistakes, the FBI made mistakes...hell the list goes on. What Gorelick did was utterly foolish. The "wall" that was built makes absolutely no sence whether we were in peace time or war time. The terrorists were responsible for the attacks and thats the bottom line. Maybe Gorelick and others aided Al Queda but the fact still remains.
If things were the way they should be...there shouldnt be one politician on the commission at all. In all seriousness, what do the politicians know about terrorist threats and intelligence reports? The panel should have been made up of retired intelligence men and women who have experience in the issues that were to be discussed. That would have kept out the partisan politics out of the situation all together.
With that being said, I do not think that Gorelick should resign from the commission because that would obviously solve nothing. She made a mistake, Clinton made mistakes, Bush made mistakes, the FBI made mistakes...hell the list goes on. What Gorelick did was utterly foolish. The "wall" that was built makes absolutely no sence whether we were in peace time or war time. The terrorists were responsible for the attacks and thats the bottom line. Maybe Gorelick and others aided Al Queda but the fact still remains.
There's no conflict of interest here. There's only partisan politics being played by the Bush Administration trying to muddy the waters and blunt the effectiveness of the 9/11 Commission. The same commission they never wanted established in the first place.
Ashcroft released the memo by Gorelick during his appearance before the panel as part of his effort to place blame upon the Clinton Administration.
WASHINGTON - House Judiciary Committee Chairman Jim Sensenbrenner called for Jamie Gorelick to resign from the Sept. 11 commission Wednesday, citing a memo she wrote as a deputy attorney general on separating counterintelligence from criminal investigations.
Gorelick, a Democrat, said she would not resign and indicated the Wisconsin lawmaker may be looking for a way to silence her.
"When you ask hard questions of people who are in office, they take offense," she said.
The chairman of the bipartisan commission, former New Jersey Gov. Tom Kean, backed her up, telling reporters, "People ought to stay out of our business."
Gorelick is a Democrat, while Sensenbrenner - like Kean - is a Republican.
Among the members of the commission is Slade Gorton, a former Senator who served at the same time as Ashcroft. Should he have recused himself from the questioning of a fellow colleague?
It's awfully strange that the same Adminstration that fought tool and claw to keep the August 6, 2001, PDB away from the American public is now digging up a memo from 1996 in a clumsy attempt to smear Gorelick and muddy the waters.
The funny thing is according to Fred Kaplan in Slate, the commission treated Ashcroft with kid gloves to avoid appearing partisan!
http://slate.msn.com/id/2098783/
Not that it matters to those whom are opposed to the public officials actually having to explain their actions or inactions TO the public.
Ashcroft released the memo by Gorelick during his appearance before the panel as part of his effort to place blame upon the Clinton Administration.
WASHINGTON - House Judiciary Committee Chairman Jim Sensenbrenner called for Jamie Gorelick to resign from the Sept. 11 commission Wednesday, citing a memo she wrote as a deputy attorney general on separating counterintelligence from criminal investigations.
Gorelick, a Democrat, said she would not resign and indicated the Wisconsin lawmaker may be looking for a way to silence her.
"When you ask hard questions of people who are in office, they take offense," she said.
The chairman of the bipartisan commission, former New Jersey Gov. Tom Kean, backed her up, telling reporters, "People ought to stay out of our business."
Gorelick is a Democrat, while Sensenbrenner - like Kean - is a Republican.
Among the members of the commission is Slade Gorton, a former Senator who served at the same time as Ashcroft. Should he have recused himself from the questioning of a fellow colleague?
It's awfully strange that the same Adminstration that fought tool and claw to keep the August 6, 2001, PDB away from the American public is now digging up a memo from 1996 in a clumsy attempt to smear Gorelick and muddy the waters.
The funny thing is according to Fred Kaplan in Slate, the commission treated Ashcroft with kid gloves to avoid appearing partisan!
http://slate.msn.com/id/2098783/
Not that it matters to those whom are opposed to the public officials actually having to explain their actions or inactions TO the public.
Conflict of Interest? Should Jamie Gorelick resign from the 9/11 commission?
No, she has recused herself when there was a conflict of interest during other testimonies. I think she is an asset to the panel and other than one Republican calling for her resignation and another Republican saying "some people should stay out of our business"...so it ended up a washout on partisanship. Of course, our esteemed opponents on the other side of the aisle are above trying to muddy the waters so to speak.
No, she has recused herself when there was a conflict of interest during other testimonies. I think she is an asset to the panel and other than one Republican calling for her resignation and another Republican saying "some people should stay out of our business"...so it ended up a washout on partisanship. Of course, our esteemed opponents on the other side of the aisle are above trying to muddy the waters so to speak.
I haven't been able to locate the transcript of Ashcroft's testimony, it usually takes a couple of days for those things to make it onto the Internet. When I find it, I'll put a link to it here. As far as the charges of politics and smearing being leveled here, I would respond that one only has to read the referenced memo to understand why it was released after having been "sanitized". It is strong evidence of the culture and mindset that existed within the Justice Department in the days prior to 9/11. In her memo, Ms Gorelick even states that the wall she was putting up between intelligence operations and law enforcement operations was beyond what was required by law. I found that particularly interesting in light of Janet Reno's claim that she knew of no law that required that sort of wall. Ms. Reno may be right, but thanks to Ms Gorelick's memo, it was established policy within the Department of Justice.
As these hearings have progressed, it has become clear that much of what was wrong with the system was that agencies of the US Government involved in intelligence gathering and law enforcement weren't working together and sharing information with each other. We saw that in the Moussaui (sp?) case in Minnesota where requests for search warrants to search his computer hard drive were turned down by the Justice Department and FBI agents who went to the CIA for help with the case were reprimanded by their superiors in Washington. This, I believe was symptomatic of the problem of the system and the culture that existed on 9/11. Ms. Gorelick was a part of that culture. Indeed, as this memo demonstrates, she was a decision-maker enforcing this culture. She surely knew that before the 9/11 commission hearings even began and she has said nothing about that. I find it particularly troubling that she, a highly capable lawyer would not understand that she had a direct conflict of interest with the subjects faced by the 9/11 commission. She never should have agreed to sit on the commission and perhaps should have suggested that she testify before it instead. I'm not accusing her of breaking any laws here or of any subterfuge, but I do question her judgement and I fear any findings by this commission will be tainted by her presence on the commission.
As far as Governor Kean's response to Congressman Sensenbrenner's concerns which went along the lines of "mind your own business" are concerned. That disturbs me as well. Governor Kean, for your information, the functioning of your panel IS Congress' business. Congress created your panel, defined your charter, tasked you and has ultimate oversight responsibility for your operations and actions. Your dismissive statement was way out of line, Governor Kean, way out of line.
As these hearings have progressed, it has become clear that much of what was wrong with the system was that agencies of the US Government involved in intelligence gathering and law enforcement weren't working together and sharing information with each other. We saw that in the Moussaui (sp?) case in Minnesota where requests for search warrants to search his computer hard drive were turned down by the Justice Department and FBI agents who went to the CIA for help with the case were reprimanded by their superiors in Washington. This, I believe was symptomatic of the problem of the system and the culture that existed on 9/11. Ms. Gorelick was a part of that culture. Indeed, as this memo demonstrates, she was a decision-maker enforcing this culture. She surely knew that before the 9/11 commission hearings even began and she has said nothing about that. I find it particularly troubling that she, a highly capable lawyer would not understand that she had a direct conflict of interest with the subjects faced by the 9/11 commission. She never should have agreed to sit on the commission and perhaps should have suggested that she testify before it instead. I'm not accusing her of breaking any laws here or of any subterfuge, but I do question her judgement and I fear any findings by this commission will be tainted by her presence on the commission.
As far as Governor Kean's response to Congressman Sensenbrenner's concerns which went along the lines of "mind your own business" are concerned. That disturbs me as well. Governor Kean, for your information, the functioning of your panel IS Congress' business. Congress created your panel, defined your charter, tasked you and has ultimate oversight responsibility for your operations and actions. Your dismissive statement was way out of line, Governor Kean, way out of line.
QUOTE
I found that particularly interesting in light of Janet Reno's claim that she knew of no law that required that sort of wall. Ms. Reno may be right, but thanks to Ms Gorelick's memo, it was established policy within the Department of Justice.
-- Aquilla
-- Aquilla
NiteGuy did a decent job of addressing this extra wall. I don't want to bungle Gorelick's memo with further guessing on my part, so I won't address it. However I still don't understand why Ashcroft could not have torn that wall down and dismantled this culture if he was so inclined, especially if he was aware of the memo before 9/11. Perhaps even he didn't feel it was necessary.
QUOTE
I find it particularly troubling that she, a highly capable lawyer would not understand that she had a direct conflict of interest with the subjects faced by the 9/11 commission. She never should have agreed to sit on the commission and perhaps should have suggested that she testify before it instead. I'm not accusing her of breaking any laws here or of any subterfuge, but I do question her judgement and I fear any findings by this commission will be tainted by her presence on the commission.
Ben-Veniste, Gorelick, and Thompson recused during hearings. I think Zelikow abstained from questioning Rice as well (I'm short for time today), or should have:
QUOTE
Zelikow will be guiding an investigation that presumably will scrutinize the actions of Rice, his friend and co-author. And given the Administration's penchant for secrecy, it's reasonable to assume that the commission will sooner or later clash with the White House over access to secret information, perhaps the records of Rice's NSC. The White House, for instance, has previously refused to disclose information on at least two key briefings that Bush and his national security aides received before 9/11. Can Zelikow, a Bush I and Bush II appointee, go toe to toe with his former colleague if a battle ensues? "It concerns me," says one commission official. "Rice is one of the key people we need to independently evaluate and talk to." And Push remarks, "I'm not crazy that Philip Zelikow has such a close relationship to Rice and other people the commission is investigating."
-- Old Hands on Deck for 9/11 Investigation
-- Old Hands on Deck for 9/11 Investigation
Should these people resign as well?
Here is a link to the transcripts from the day Ashcroft testified. The Washington Post requires registration but its free.
The potential for conflict of interest from many of those sitting on the commission is probably significant, especially given the broad nature of the inquiry taking place. Gorelick, I believe, has recognized those moments where such potential conflicts exist and sat out accordingly.
Rather than calling it an outright conflict of interest, I would say there are brief opportunities for conflict which have been managed appropriately. If it seemed like that conflict had an ability to impact the findings of the commission, then Gorelick should step down. That does not seem to be the case at this time, however.
Doc
The potential for conflict of interest from many of those sitting on the commission is probably significant, especially given the broad nature of the inquiry taking place. Gorelick, I believe, has recognized those moments where such potential conflicts exist and sat out accordingly.
Rather than calling it an outright conflict of interest, I would say there are brief opportunities for conflict which have been managed appropriately. If it seemed like that conflict had an ability to impact the findings of the commission, then Gorelick should step down. That does not seem to be the case at this time, however.
Doc
QUOTE(Aquilla @ Apr 15 2004, 12:18 AM)
As these hearings have progressed, it has become clear that much of what was wrong with the system was that agencies of the US Government involved in intelligence gathering and law enforcement weren't working together and sharing information with each other. We saw that in the Moussaui (sp?) case in Minnesota where requests for search warrants to search his computer hard drive were turned down by the Justice Department and FBI agents who went to the CIA for help with the case were reprimanded by their superiors in Washington. This, I believe was symptomatic of the problem of the system and the culture that existed on 9/11. Ms. Gorelick was a part of that culture. Indeed, as this memo demonstrates, she was a decision-maker enforcing this culture. She surely knew that before the 9/11 commission hearings even began and she has said nothing about that. I find it particularly troubling that she, a highly capable lawyer would not understand that she had a direct conflict of interest with the subjects faced by the 9/11 commission. She never should have agreed to sit on the commission and perhaps should have suggested that she testify before it instead. I'm not accusing her of breaking any laws here or of any subterfuge, but I do question her judgement and I fear any findings by this commission will be tainted by her presence on the commission.
Aquilla, perhaps a little history is in order to put some of this into perspective.
Part of the reason the search warrants for Moussaui's computer files was rejected by the Justice Department, was that they, and the FBI had just been slapped hard by the FISA court. If you may recall, the court charged that the FBI had lied on at least 75 prior occasions, to obtain warrants for counter-intelligence wiretaps and searches, where the information was then improperly interjected into criminal trials. Trials that were ultimately either dismissed, or forced into re-trials because of the improperly obtained evidence.
Most of these improper investigations were conducted during the Clinton years, and I recall quite clearly the hue-and-cry on the right and left, accusing the Clinton Justice Department of violating the rights of citizens through illegal searches. I was one of those complaining about it at the time. Of course, this was in late 2000 and early 2001, before 9/11 and the Patriot Act.
Also, please note historically, when the Gorelick memo was produced. March 1995, a month before the Oklahoma City Bombing. At that time, the concern was in not having the Yousef and Rahman trials contaminated by improperly obtained wiretap and physical evidence.
Heck, up until February of 1995, the FISA warrants could only apply to wiretaps anyway. It wasn't until Clinton signed an executive order at that time, that allowed for the collection of physical searches under FISA.
So, it wasn't just a culture of separation, it was codified in law by the FISA courts, as far back as 1978. Ms. Gorelick's memo was re-inforcing that law to make sure that two terrorists were actually prosecuted, and put away, legally. And this is what Ashcroft is complaining about? That she wanted terrorists to go to prison?
Besides, as I pointed out in my prior post, Ashcroft should have nothing to say about this now, considering his own office upheld the previous administrations rulings of procedure on this law. Proof of that can be found in this memoranda, dated Aug 6th of 2001.
QUOTE
This memorandum clarifies current Department of Justice policy governing intelligence sharing, and establishes new policy. On July 19, 1995, the Attorney General adopted Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations. The 1995 Procedures remain in effect today. On January 21, 2000, the Attorney General adopted additional measures regarding intelligence sharing in response to the Interim Recommendations proposed by Special Litigation Counsel Randy Bellows (Interim Measures). The Interim Measures also remain in effect today. The purpose of this memorandum is to restate and clarify certain important requirements imposed by the 1995 Procedures and Interim Measures, and to establish certain additional requirements. This memorandum does not discuss all of the current requirements, and the fact that a particular requirement is not discussed here does not mean that it is no longer in effect.
So, it appears that, at least up until 9/11, and the passage of the USA Patriot Act, that the current Justice Department had no major problem with the laws and polices as they were currently written. The "culture" was just as alive and well under the Bush II administration as it was under Reagan, Bush I, and Clinton. In fact, in Ashcroft's answer to his first major question in front of the commission, he admits as much, and contradicts, his own statement about Ms. Gorelick being "resposible" for "the wall".
QUOTE
THOMPSON: OK. While they're searching for that, let me ask some questions, and let's start with this walls business.
Let me read you one paragraph from the prepared statement of your predecessor General Reno that I asked her about this morning, and then ask for your comment on it.
She said, "there are simply no walls or restrictions on sharing the vast majority of counterterrorism information. There are no legal restrictions at all on the ability of members of the intelligence community to share intelligence information with each other.
"With respect to sharing between intelligence investigators and criminal investigators, information learned as a result of a physical surveillance or from a confidential informant can be legally shared without restriction.
"While there were restrictions placed on information gathered by criminal investigators as a result of grand jury investigations or Title 3 wiretaps, in practice they did not prove to be a serious impediment, since there was very little significant information that could not be shared."
THOMPSON: When you took office, sir, in 2001, was that your understanding of the wall?
ASHCROFT: No. I believe that the understanding of the wall that was prevalent in the Justice Department and among attorneys was that individuals who shared information from a criminal file or from an intelligence file to a criminal file might be subject to serious discipline. And the memorandum of which I spoke, which was crafted in 1995, specifically indicated that it was based on an understanding at that time held that the law would not countenance certain exchanges. I believe it was a mistaken impression of the law which was later corrected by the rulings of the FISA court of appeals.
But if you look through the history of what happened just in the cases surrounding 9/11, time after time you find individuals being advised by their superiors that they could not or should not be involved in activity because such involvement would breach the wall.
I cited both the Mihdhar and Hazmi cases together with the Moussaoui case, each case where advice was given to individuals who wanted to be more active in their pursuit of individuals, that they should restrain themselves in their pursuits because of the wall.
So it's my clear belief that the wall itself developed this culture which restrained in a substantial way the exchange of information in the intelligence and law enforcement communities.
The Bellows report, which was part of some recommendations following the Wen Ho Lee case, indicated that it was part of the culture at the FBI that if one made a mistake and shared information that was later deemed to be inappropriate, it was called a "career- ender," so that the risk of a person sharing information improperly was at least known in the culture of the law enforcement community to be a very substantial risk and that individuals should shy away from sharing.
ASHCROFT: Now, let me just say that when we enacted the Patriot Act, we did so believing that this culture needed to have a clear signal that the wall did not and should not inhibit this kind of cooperation. The Patriot Act did take down the wall.
Later on, one of the courts, the FISA court, reasserted that the wall was not really effectively lowered by the Patriot Act, and I made a decision to appeal that decision. The appeal from the lower FISA court's ruling is what finally established the legal principle that the wall, as a matter of fact, is of little or no effect now.
Let me read you one paragraph from the prepared statement of your predecessor General Reno that I asked her about this morning, and then ask for your comment on it.
She said, "there are simply no walls or restrictions on sharing the vast majority of counterterrorism information. There are no legal restrictions at all on the ability of members of the intelligence community to share intelligence information with each other.
"With respect to sharing between intelligence investigators and criminal investigators, information learned as a result of a physical surveillance or from a confidential informant can be legally shared without restriction.
"While there were restrictions placed on information gathered by criminal investigators as a result of grand jury investigations or Title 3 wiretaps, in practice they did not prove to be a serious impediment, since there was very little significant information that could not be shared."
THOMPSON: When you took office, sir, in 2001, was that your understanding of the wall?
ASHCROFT: No. I believe that the understanding of the wall that was prevalent in the Justice Department and among attorneys was that individuals who shared information from a criminal file or from an intelligence file to a criminal file might be subject to serious discipline. And the memorandum of which I spoke, which was crafted in 1995, specifically indicated that it was based on an understanding at that time held that the law would not countenance certain exchanges. I believe it was a mistaken impression of the law which was later corrected by the rulings of the FISA court of appeals.
But if you look through the history of what happened just in the cases surrounding 9/11, time after time you find individuals being advised by their superiors that they could not or should not be involved in activity because such involvement would breach the wall.
I cited both the Mihdhar and Hazmi cases together with the Moussaoui case, each case where advice was given to individuals who wanted to be more active in their pursuit of individuals, that they should restrain themselves in their pursuits because of the wall.
So it's my clear belief that the wall itself developed this culture which restrained in a substantial way the exchange of information in the intelligence and law enforcement communities.
The Bellows report, which was part of some recommendations following the Wen Ho Lee case, indicated that it was part of the culture at the FBI that if one made a mistake and shared information that was later deemed to be inappropriate, it was called a "career- ender," so that the risk of a person sharing information improperly was at least known in the culture of the law enforcement community to be a very substantial risk and that individuals should shy away from sharing.
ASHCROFT: Now, let me just say that when we enacted the Patriot Act, we did so believing that this culture needed to have a clear signal that the wall did not and should not inhibit this kind of cooperation. The Patriot Act did take down the wall.
Later on, one of the courts, the FISA court, reasserted that the wall was not really effectively lowered by the Patriot Act, and I made a decision to appeal that decision. The appeal from the lower FISA court's ruling is what finally established the legal principle that the wall, as a matter of fact, is of little or no effect now.
I find that Attorney General John Ashcroft is exhibiting poor leadership in this instance. Blaming the prior administration, and one particular person for things that happen "on his watch" is not acceptable. It's blatant grandstanding for political purposes. Particularly, when he concurs with that person's and that administration's policies, until something goes wrong.
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