Politics: J'accuse!

[Tyrone Slothrop]

from Sunday's WaPo:

The Truth About 'the Wall'

By Jamie S. Gorelick
Sunday, April 18, 2004; Page B07


The commission investigating the attacks of Sept. 11, 2001, has a critical dual mission to fulfill -- to help our nation understand how the worst assault on our homeland since Pearl Harbor could have occurred and to outline reforms to prevent new acts of terrorism. Under the leadership of former governor Tom Kean and former congressman Lee Hamilton, the commission has acted with professionalism and skill. Its hearings and the reports it has released have been highly informative, if often disturbing. Sept. 11 united this country in shock and grief; the lessons from it must be learned in a spirit of unity, not of partisan rancor.

At last week's hearing, Attorney General John Ashcroft, facing criticism, asserted that "the single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents" and that I built that wall through a March 1995 memo. This is simply not true.

First, I did not invent the "wall," which is not a wall but a set of procedures implementing a 1978 statute (the Foreign Intelligence Surveillance Act, or FISA) and federal court decisions interpreting it. In a nutshell, that law, as the courts read it, said intelligence investigators could conduct electronic surveillance in the United States against foreign targets under a more lenient standard than is required in ordinary criminal cases, but only if the "primary purpose" of the surveillance were foreign intelligence rather than a criminal prosecution.

Second, according to the FISA Court of Review, it was the justice departments under Presidents Ronald Reagan and George H.W. Bush in the 1980s that began to read the statute as limiting the department's ability to obtain FISA orders if it intended to bring a criminal prosecution. The practice of prohibiting prosecutors from directing intelligence investigations was first put in place in those years as well. Then, in July 1995, Attorney General Janet Reno issued written guidelines that spelled out the steps FBI intelligence agents and criminal investigators and prosecutors needed to follow when sharing information. The point was to preserve the ability of prosecutors to use information collected by intelligence agents.

Third, Mr. Ashcroft's own deputy attorney general, Larry Thompson, formally reaffirmed the 1995 guidelines in an Aug. 6, 2001, memo addressed to the FBI and the Justice Department. Ashcroft has charged that the guidelines hampered the department's ability to pursue terrorists Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi in August 2001, but his own department had endorsed those guidelines at the pivotal time.

Fourth, the memo I wrote in March 1995 -- which concerns information-sharing in two particular cases, including the original World Trade Center bombing -- permits freer coordination between intelligence and criminal investigators than was subsequently permitted by the 1995 guidelines or the 2001 Thompson memo. The purpose of my memo was to resolve a problem presented to me: facilitating investigations on both the intelligence side and criminal side at the same time. My memo directed agents on both sides to share information -- and, in particular, directed one agent to work on both the criminal and intelligence investigations -- to ensure the flow of information "over the wall." We set up special procedures because of the extraordinary circumstances and the necessity to prevent a court from throwing out any conviction in those cases. Had my memo been in place in August 2001 -- when, as Ashcroft said, FBI officials rejected a criminal warrant of Moussaoui because they feared "breaching the wall" -- it would have allowed those agents to obtain a criminal warrant without fear of jeopardizing an intelligence investigation.

Fifth, nothing in the 1995 guidelines prevented the sharing of information between criminal and intelligence investigators. Indeed, the guidelines require that FBI foreign intelligence agents share information with criminal investigators and prosecutors whenever they uncover facts suggesting that a crime has been or may be committed. The guidelines did set forth procedures, but those procedures implemented court decisions and, as noted, were reaffirmed by the Ashcroft Justice Department.

The Patriot Act, enacted after 9/11, together with an unprecedented appeal to the Foreign Intelligence Surveillance Court of Review, paved the way for the Justice Department to permit largely unrestricted information-sharing between intelligence and criminal investigators because the law changed the legal standard that had given rise to the guidelines in the first place. The Patriot Act says that electronic surveillance can be conducted in the United States against foreign threats as long as a "significant purpose" -- rather than the "primary purpose" -- is to obtain foreign intelligence.

This history has all been well-rehearsed in publicly available briefs, opinions and reports, all available to the 9/11 commission. I have -- consistent with the policy applied to all commissioners -- recused myself from any consideration of my actions or of the department while I was there. My fellow commissioners have spoken for themselves in rejecting the call by a few partisans that I step aside based upon false premises. I have worked hard to help the American public understand what happened on Sept. 11. I intend -- with my brethren on the commission -- to finish the job.

The writer is a member of the 9/11 commission and was deputy attorney general in the Clinton administration from March 1994 through March 1997.

[bilmore]

Originally posted by Tyrone_Slothrop
The Truth About 'the Wall'

Well, as long as she says it's okay . . . .

[Not Me]

Originally posted by Tyrone_Slothrop
[Jamie Gorelick minimizing her role in the structural failures that led to 9/11]

This article makes it painstakingly clear why she shouldn't be on the Commission. The commissioners should be about finding out objective information to prepare a report that will help the US to do as much as possible to prevent future terrorist attacks.

This article makes clear that her goal is to minimize her own culpability and makes it even more clear that she has a Grand Canyon sized conflict of interest and should not be on the 9/11 Commission.

[Tyrone Slothrop]

Originally posted by bilmore
Well, as long as she says it's okay . . . .

Fortunately the commissioners seem to be thinking about substance just a little but more than you can or care to.

[Not Me]

Originally posted by Tyrone_Slothrop
Fortunately the commissioners seem to be thinking about substance just a little but more than you can or care to.

Ty - explain why she doesn't have a conflict of interest please. That article made it clear that she has an agenda regarding minimizing her culpability relating to the structural problems that impeded our intelligence organizations pre-9/11.

If she were an ethical person she would resign on her own.

[Tyrone Slothrop]

Originally posted by Not Me
Ty - explain why she doesn't have a conflict of interest please. That article made it clear that she has an agenda regarding minimizing her culpability relating to the structural problems that impeded our intelligence organizations pre-9/11.

If she were an ethical person she would resign on her own.

"I have -- consistent with the policy applied to all commissioners -- recused myself from any consideration of my actions or of the department while I was there."

What part of this do you not understand? When judges have a conflict of interest, they recuse themselves from a case, but do not step down from the bench. Admittedly, the analogy is imperfect, but get a grip.

[Skeks in the city]

Originally posted by Tyrone_Slothrop

Fortunately the commissioners seem to be thinking about substance just a little but more than you can or care to.

Come off it. Whatever else you say about Dubya's administration, he's right that the country wasn't on a war footing prior to 9/11. The libertarians on the right and the criminal rights activists on the left would not have tolerated giving a governmental agency sweeping powers to fight terrorism in the US. They like the nonsense that followed after the Church commission; they don't like a muscular policy of assasinations, both domestic and foreign, and both of citizens and foreign nationals. Allowing terrorists to hide behind the fact that they happen to work for a non-governmental organization rather than a government is pure foolishness. The FBI's approach to terrorists as criminals was idiocy, but they were forced into that by the libertarians and criminal rights activists.

[Not Me]

Originally posted by Tyrone_Slothrop
"I have -- consistent with the policy applied to all commissioners -- recused myself from any consideration of my actions or of the department while I was there."

What part of this do you not understand? When judges have a conflict of interest, they recuse themselves from a case, but do not step down from the bench. Admittedly, the analogy is imperfect, but get a grip.

Yes, that is far from a perfect analogy. A judge cannot just recuse him or herself from only a portion of a case and then preside over the rest of the case, which is more analogous to what Gorelick is saying.

I think her presence on the Commission will make other commissioners less willing to be forthright about assigning culpability to her should they think she deserve it. It is much harder to assign culpability to your co-member on the commission than it is to assign it to a witness you aren't interacting with on a regular basis. You get a grip. It is a fucking joke to leave her on the Commission.

[Shape Shifter]

Originally posted by Not Me

Why are you only commenting on the conflict issue? Afraid to address the substance?

[Tyrone Slothrop]

Originally posted by Skeks in the city
Whatever else you say about Dubya's administration, he's right that the country wasn't on a war footing prior to 9/11.

Yes.

The libertarians on the right and the criminal rights activists on the left would not have tolerated giving a governmental agency sweeping powers to fight terrorism in the US. They like the nonsense that followed after the Church commission; they don't like a muscular policy of assasinations, both domestic and foreign, and both of citizens and foreign nationals.

We had plenty of power. You and I and the others on this board, we talk a lot about legal rights because we're lawyers, but that's not where the action is.

Allowing terrorists to hide behind the fact that they happen to work for a non-governmental organization rather than a government is pure foolishness.

?

The FBI's approach to terrorists as criminals was idiocy, but they were forced into that by the libertarians and criminal rights activists.

Here's where you and I disagree. The FBI has so much wrong with it that whatever such constraints they were operating under are almost completely inconsequential. But the FBI trots this stuff out for CYA. The FBI is used to not having to answer to anyone, and the internal culture places a premium on solving crimes, not preventing them.

[Not Me]

Originally posted by Skeks in the city
Whatever else you say about Dubya's administration, he's right that the country wasn't on a war footing prior to 9/11. . . . The FBI's approach to terrorists as criminals was idiocy, but they were forced into that by the libertarians and criminal rights activists.

I agree that pre-9/11 many, many people in this country would have been opposed to invading Afghanistan pre-emptively or treating US citizens as enemy combatants. But did you read Gorelick's memo that I posted a couple of days ago? She openly admits that her Wall went beyond what the law required. That is a quote of hers in her memo. She said that she was doing that to avoid even the appearance of impropriety.

She gave greater importance to avoiding the appearance of impropriety than she did to the safety of America.

edited to remove extra "Originally posted by" line -- T.S.

[Not Me]

Originally posted by Shape Shifter
Why are you only commenting on the conflict issue? Afraid to address the substance?

I have been addressing the substance of this for several days. Do a search for my posts on this topic and enjoy your read.

[Shape Shifter]

Originally posted by Not Me
She gave greater importance to avoiding the appearance of impropriety than she did to the safety of America.

edited to remove extra "Originally posted by" line -- T.S.

And that's why she's on the commission? This is the biggest canard since polygamy.

[Not Me]

Originally posted by Shape Shifter
And that's why she's on the commission?

Huh? It is why she should be OFF the commission.

[Skeks in the city]

Originally posted by Skeks

Allowing terrorists to hide behind the fact that they happen to work for a non-governmental organization rather than a government is pure foolishness.

Originally posted by Tyrone_Slothrop

?

Some libertarians and criminal rights activists believe that terrorists should be dealt with like criminals. That terrorists (especially terrorists that happen to be US citizens) should have the full protections of Article III courts and the like. That is pure and utter nonsense. Terrorists are agents of non-governmental entities that are committed to extreme violence against the US are as dangerous as governments that have declared war against the US. Article III protections should not apply; standard protections for citizens under the Bill of Rights should not apply. Treating terrorists like criminals encourages violent opponents of the US to work out of non-governmental organizations rather than governmental organizations. Terrorists should have no more protections than foreign troops, and presumably even less because in some ways they harder to find and stop.

Originally posted by Tyrone_Slothrop

The FBI has so much wrong with it that whatever such constraints they were operating under are almost completely inconsequential. But the FBI trots this stuff out for CYA. The FBI is used to not having to answer to anyone, and the internal culture places a premium on solving crimes, not preventing them.

That's because of the libertarians and criminal rights activists. You all have skewed the FBI's incentives. Who among you will allow the FBI to assassinate terrorists leaders (citizens and non-citizens) with as little red tape as Israeli intelligence faces? Who among you will allow the FBI to seize terrorists (citizens and non-citizens), hold them secretly, and use lies, psychological torture, and some physical discomfort to debrief them -- all of which Israeli intelligence does? Not many, I assure you. More than before 9-11, but still not many.