Gorelick Should Have Gone:

The todo about Able Danger and what the FBI should or should not have known about Mohammad Atta has increased scrutiny of the 9/11 Commission report and renewed the debate over the "wall" between law enforcement and anti-terrorism efforts (see, e.g., here and here). Time will tell whether there is anything to the Able Danger story -- and whether or not the "wall" inhibited information shargin -- but it is clearer than ever that Jamie Gorelick should not have served on the 9/11 Commission. Whether or not she deserves credit or blame for the "wall" and other Clinton Administration policies, her presence on the commission undermines its credibility, and provides undo fodder for political partisans and conspiracy theorists. This is a point I made last year (see here and here). As I wrote last May:

the issue is not whether Ms. Gorelick made reasonable decisions as a Justice Department official. I have no interest in seeing the 9/11 Commission's work devolve into partisan finger-pointing about which administration is most at fault. Many people, in multiple administrations, made decisions that -- it can be seen in hindsight -- were in error. These people should be testifying before the 9/11 Commission, not participating on it. For this reason, and this reason along, Ms. Gorelick has no place on the Commission. Unless the Commissioners recognize this fact, the Commission will not fulfill its mandate of producing a neutral and credible report on the policy failures that led to 9/11.

Goober (mail):
Time will tell whether there is anything to the Able Danger story ....

Except so far the best evidence is that there's not! Furthermore, it's not merely speculative to suggest that the so-called Gorelick wall could have been responsible for a failure to share evidence (which, again, the evidence suggests there never was), but also contrary to the terms of the rule itself, which didn't apply to military intelligence. And furthermore, the series of procedures constituting the so-called wall wasn't the sole invention of Gorelick, and dated back at least to the first Bush administration.

So, please, let me get this straight: A failure to share information, which likely never happened, purportedly because of a rule that wouldn't have prevented it anyway, and which wasn't even the sole creation of Jamie Gorelick, is sufficient reason to have kept Gorelick off the 9/11 panel, because her membership "provides undo fodder for political partisans and conspiracy theorists."

I don't think, if you're being honest, you have any problem with Ms. Gorelick. It sounds like you have a problem with these "political partisans and conspiracy theorists." If only you'd stop linking to them....
8.22.2005 1:11pm
Juan Non-Volokh (mail) (www):
You should read the prior posts (to which I link), as I explain the reasons why Gorelick should have gone in more detail. Gorelick played a role in maintaining, if not establishing, a policy that affected pre-9/11 anti-terror efforts. People who are neither partisans nor conspiracy theorists (e.g. Mary Jo White and Andy McCarthy) believe her policies had a negative impact, others disagree. Whichever side has the better of the argument, Gorelick should have been a witness before the commission, not a member of it.
8.22.2005 1:16pm
Goober (mail):
My bad. I will check them out.
8.22.2005 1:33pm
Goober (mail):
First, I assume you meant to say Professor Lindgren explains in more detail, rather than that you explain in more detail.

Second, after quickly reading them, I have to say I find the earlier posts a little unconvincing, and frankly they sound like typical lawyer-hating hyperbole. I have no especial expertise, and it's possible that things really are as bad as suggested. But words like "palsied" make me suspicious. Especially since Gorelick has been the paranoid right's bete noir for quite a while now, I think the proper attitude towards more of the same is a healthy skepticism. (Even Powerline admitted they shouldn't have jumped on the Able Danger story.)

Third, whether or not "maintaining, if not establishing" a policy should be sufficient basis for disqualification (query---what counts as "maintaining"? merely serving under the policy without actively criticizing it? should every federal law enforcement official during the relevant years be DQ'd?), that's only one-third of the problem with these charges against Gorelick. There's still the dual infirmity that (a) Atta's name probably wasn't actually withheld, and (b) the so-called Gorelick wall didn't even affect military intelligence!

Fourth, and finally.... It seems to me the fault of "political partisans and conspiracy theorists," as you put it, that such questions arise, if they are in fact unjustified (as I believe them to be). It seems a curious conclusion that irresponsible allegations could be construed as the fault of the person who is the target of the allegations, rather than those who make them. And I find it uncomfortably curious that your reasoning would conclude, from the premise that paranoid conspiracists are making unfounded allegations that Gorelick shouldn't have been a member of the 9/11 commission, exactly what the conspiracists are whispering, that Gorelick shouldn't have been a member of the 9/11 commission! That is, I find it hard to distinguish your argument from theirs, when you both conclude with the same recommendation.
8.22.2005 1:52pm
Michelle Dulak Thomson (mail):
Goober, I think JN-V was referring to his own previous posts, to which there are links in the body of the current one, following the words "This is a point I made last year."
8.22.2005 2:18pm
AppSocRes (mail):
Groelick was an appointed, senior-level, administrator who participated at the highest levels in defining and interpreting intelligence policies in the two administrations prior to 9/11. These policies had a significant impact in how the US law enforcement and intelligence communities perceived and responded to the threats posed by Osama bin Laden, Al Q'aida, and other terrorist individuals and organizations. I do not see how Groelick could possibly evaluate her participation in these policy decisions and the decisions themselves in anb objective manner.

Furthermore, Groelick was an inside player in an administration that was and remains notorious for "circling the wagons" and covering up mistakes, ethical lapses, and crimes. These are more than adequate reasons why she should have been a witness before rather than a member of the 9/11 commission. Certainly she was the least distinguished panel member.

The closest analogy I can think of to including Groelick on this panel would have been to include Ed Meese as a participant in the follow-up investigations of Watergate.
8.22.2005 2:23pm
Shelby (mail):
I haven't followed the Able Danger story, but when the 9/11 Commission was active I agreed with arguments that Gorelick had no business being on it. The Commission's writ obviously included exploring who knew what, when they knew it, and what they did with it. Someone heavily involved in crafting, administering and enforcing the intel policies at issue shouldn't afterwards be in a position to pass judgment on how well those policies worked. There's just too much room for self-serving and ass-covering, reducing the value of the Commission's conclusions.

I think I've just restated JN-V's argument, but I'm too lazy busy to go re-read his earlier posts.
8.22.2005 2:26pm
Can someone explain to me the precise causal connection between Jamie Gorelick and "the wall"? I think most people agree that "the wall" as it existed in the 1990s was on balance a bad idea, and that the Patriot Act improved matters. But I'm not entirely sure why some appear to see Jamie Gorelick as personally responsible for the wall as it existed. Is the idea that her name was on a memo about it, and therefore that she is responsible? Or was she was known to be a particularly strong proponent of it?
8.22.2005 2:28pm
Goober (mail):
Thanks, Michelle. I feel rather foolish.
8.22.2005 2:34pm
Jim O'Sullivn (mail) (www):
OrinKerr: It is my recollection that, although the courts had ordered something like the "wall" to exist as long as 60 years ago, Gorelick was assigned to raise it, and authored a memo in which she boasted tha she had created a structure higher than the law requires. I'm sure someone after me can provide more detail.
8.22.2005 2:46pm
Juan Non (mail) (www):
Orin --

Gorelick's relationship to the "wall" is in some dispute (something which, I think, reinforces my point). What is not disputed is that she helped develop the 1995 guidelines and signed a memo governing information sharing in two high-profile terror cases that, by its own terms, imposed limits beyond those legally required at the time.

Gorelick described her involvement in this WPost op-ed (the publication of which prompted my first post on this subject last year). For a more critical view, I recommend this piece by Andy McCarthy. I should make clear that my intent is not to cast aspersions on Gorelick's actions as a Justice Department official. Her decisions may well have been reasonable given what was known at the time. Rather, insofar as her actions were to be assessed by the commission, my argument is that she should have been a witness rather than a commissioner. This would have facilitated the commission's work and enhanced the credibility of the commission's report.
8.22.2005 2:47pm
Gene Vilensky (mail) (www):

There had been some statutory requirements that Congress enacted to prevent the CIA and the DIA from collecting domestic intelligence. In a memo she sent to US Attorney Mary Jo White, Gorelick said that she was going to go beyond what the statutory requirements were in order to guarantee that there isn't even an appearance of impropriety. It seems as though while some hindering of information-sharing was caused by statutory incompetence, Gorelick went above and beyond the call of duty to prevent the various intelligence agencies from sharing info. Apparently she is also responsible for a culture over at Defense that caused these problems to happen. Before she went over to justice, between 1993 and 1994, she was the general counsel for the DoD. So, I assume that she was involved in clarifying the info-sharing policy not just for info flowing between FBI and CIA, but also info flowing between FBI and DIA.
8.22.2005 2:53pm
Anderson (mail) (www):
My own recollection is that the "above &beyond" practices were already in effect and that Gorelick's memo simply continued the status quo.

At any rate, the notion that Gorelick's being on the Commission had some negative effect is a mysterious one to me. Precisely because she *was* on the Comm'n, we have all heard enough about "the Wall" to think of Gorelick, not Pink Floyd or Checkpoint Charlie, when we hear that term now.

N.b. that Gorelick recused herself from this part of the 9/11 Report; ch. 3, n.33. The following notes &supporting text are of great interest.
8.22.2005 3:17pm
WAW (mail):
Something that has not been mentioned in the various Able Danger posts here and elsewhere is the influence of Berlin Democratic Club v. Rumsfeld, 140 F.Supp. 144 (D.D.C. 1976) on military intelligence work. The case arose out of unauthorized Army surveillance of American civilians involved in various overseas organizations. The upshot of the case was a broad consent decree requiring the Army to cease and desist all such intelligence gathering activities and to conduct a world-wide search of its files to discover and destroy any retained information. In the decades since, Berlin Democratic Club has been an ever present shadow hovering over the DoD intelligence agencies. Pentagon lawyers are not big risk takers and will generally advise policy makers to steer a wide bearth around potential trouble. Jamie Gorelick, as both DoD GC and AAG no doubt felt constrained by the spectre of Berlin Democratic Club and well as by FISA. The same would be true of the SOCOM JAGs who allegedly scuttled the meetings with the FBI. Of course, this doesn't mean that Able Danger violated the Berlin Democratic Club consent decree, or any other law or policy. It merely means that lawyers acting with an abundance of caution (over abundance?) sought to avoid revealing the existence of a program that may have appeared, at first blush, to have similarities with Berlin Democratic Club. What little is known of Able Danger leads me to believe there are important differences between it and the operations that spawned the BDC litigation. Furthermore, if the SOCOM or DoD lawyers really thought Able Danger conflicted with the BDC consent decree, they should have taken steps to make sure and shut it down if it did. Bottom line is that Jamie Gorelick was part of a system that needed to be examined by the 9/11 Commission and her testimony, not her participation as a Commissioner, would have served the Nation's interest much better.
8.22.2005 3:39pm
Anand H (mail):
Looking over the mission of the 9/11 commission, it was "mandated to provide recommendations designed to guard against future attacks". Developing recommendations is a matter of balancing benefits and costs. Hopefully, as someone who had recommended the "wall" be created in the first place, Gorelick might have been one of the few people who would be committed to argue that some separation of intelligence should exist, a perspective that I think is essential (though the final recommendations could be to reduce the height of the wall or remove it altogether).
Good decisions, in an uncertain world, sometimes lead to bad results. Bad decisions simply do so with higher probability. The idea that anyone who has taken a decision that with hindsight seems bad is "corrupted", "tainted" etc. - whether applied to Rumsfeld or Gorelick, is simply wrong.
8.22.2005 4:28pm
Juan Non-Volokh (mail) (www):
Aanand H. --

You are selectively quoting the purpose of the Commission. As it states on the Commission's website:
The National Commission on Terrorist Attacks Upon the United States, an independent, bipartisan commission created by congressional legislation and the signature of President George W. Bush in late 2002, is chartered to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. The Commission is also mandated to provide recommendations designed to guard against future attacks. (emphasis added)
The problem is Gorelick's participation in preparing the account of what led to the report. Again, my point is not to criticize her past policy judgments -- or even to suggest that limitations on inforamtion sharing are unjustified. Rather, it is that someone who was intimately involved in making controversial pre-9/11 anti-terrorism policy judgments should not be tasked with analyzing such efforts for the purpose of producing the definitive official account of what went wrong.
8.22.2005 4:44pm
Anderson (mail) (www):
someone who was intimately involved in making controversial pre-9/11 anti-terrorism policy judgments should not be tasked with analyzing such efforts for the purpose of producing the definitive official account of what went wrong.

Okay, JNV, but again, she recused herself from that portion of the 9/11 Comm'n's work. Do you think that the Comm'n is lying?
8.22.2005 5:06pm
Bruce Hayden (mail) (www):
I agree with JNV. My first problem with Ms. Gorelick's participation in the 9/11 Commission is what she alluded to in a memo: the appearance of impropriety. It has the appearance of the fox being in charge of the hen house. Because there is a real possibility that the "Wall", including her Wall memos, may have had some impact on the intelligence failure that resulted in 9/11, the Commission's failure to really investigate this facet of the history of the failure is suspect. Did they not investigate this because they truly felt that it wasn't relevant? Did they not comment on it because she was a member of the Commission? Did she somehow, in the closed meetings, divert attention away from her role? We don't know. And because we don't know, we are left with the suspicion that the 9/11 Commission conclusions were to some extent politically motivated. As I said, we don't know, but it is that justifiable suspicion that is at the root of the appearance of impropriety.

Secondly, she is well known as a Clinton partisan. She held a succession of very influental positions in the Clinton administration, more than one of which may have affected our ability to detect 9/11. So, again, there is the (IMHO justified) suspicion that she acted more as someone tasked with protecting the Clinton legacy than as an neutral factfinder. She, along with Ben-Veniste, didn't help this appearance by appearing more as a prosecutor than a neutral when Bush Administration members were being questioned, but not utilizing nearly the same level of zeal when questioning her old Clinton Administration cohorts. So, in the end, her participation on the 9/11 Commission looks more like she was there to protect Clinton and his legacy than to actually find out the truth. Again, this is appearances, which may actually diverge from reality.
8.22.2005 5:11pm
Bruce Hayden (mail) (www):

But would recusal of that one matter really obviate the appearance of impropriety? Could her mere presence on the Commission have affected its investigation into this area? I don't think we know, and that is the problem.
8.22.2005 5:14pm
Anderson (mail) (www):
Bruce, anything's possible, but compare the Comm'n to an en banc circuit court. One judge might recuse due to some issue. Would we suspect that the remainder of the court might be mysteriously influenced in the recused judge's favor, so that they shouldn't hear the case either?

In fact, whereas the judges work together often &thus have some investment in each other's feelings, the Comm'n was an ad hoc body whose members, AFAIK, had no commitments to one another.

So your point, while not beyond possibility, seems a bit forced to me.
8.22.2005 5:28pm
Juan Non-Volokh (mail) (www):
Anderson --

First, as I noted in my first post on this subject, I was inclined to think a suitably broad recusal would have been sufficient. Then Gorelick took to the pages of the Washington Post to defend (and some would say misrepresent) her actions at Justice. At that point, the appearance of a major conflict of interest was, in my mind, too large for a recusal to be sufficient.

Second, I think the recusal was unduly narrow. She obviously had a stake in the Commission's assessment of responsibility for the nation's vulnerabilities. A broader recusal would have been preferable.

In hindsight, it's clear to me that Gorelick should have declined the invitation to serve on the Commission once she realized the scope of its responsibilities. I realize that folks in D.C. rarely turn down such high-profile appointments, but (again in hindsight) that would have been the best course.
8.22.2005 5:33pm
Rob Crocker (mail):

I think the point is that simply recusing herself from that area is in fact a huge disservice to the Commission. She should have been on the other side in the witness chair being grilled about her thoughts that led up to the memo expanding and/or codifying the "Wall".

After watching Gorelick et. al. trying to play gotcha with Dr. Rice and the infamous PDB the credibility of the commission went downhill fast.

If that PDB was supposed to be so important wouldn't a document saying "we're going beyond the statutory requirements" be equally so and the author deserve their own time in the hot seat?
8.22.2005 5:33pm
Anderson (mail) (www):
Thanks for the response, JNV. Looking over your posts, I don't see any indication of actual bias in the Comm'n's results due to Gorelick's participation. Is there any, to your mind? Or to put it another way, are we debating Gorelick's ethics/prudence, or her effect on the Report?

The fact that Gorelick was able to give Rice a hard time makes no similar impression on me as it did on Rob. A 4th grader could have made Rice look bad. Sometimes facts are facts.
8.22.2005 5:42pm
The Commission did not just soft-pedal any effects that "the wall" would have had on the failure to detect the 9/11 plot, but it also very specifically placed blame for these intelligence failures elsewhere in the intelligence gathering and analysis parts of government. And made very specific recommendations to reorganize various structures within various intelligence agencies, many of which have already been enacted into law. If the Commission, motivated by butt-covering blame-shifting, has succeeded in damaging intelligence operations which weren't broken in order to protect policies which are, then it would be hard to overstate the seriousness of this. And, no, recusing herself from "the wall" discussion while not recusing herself from the putting-blame-on-everything-but-the-wall discussions is laughably inadequate.

cathy :-)
8.22.2005 5:46pm
Anderson (mail) (www):
Cathy, I didn't see any "softpedaling"; plainly we had different reactions to the Report.

If the Commission, motivated by butt-covering blame-shifting ...

Again, this implies that 9 commissioners were swayed by some alleged need to cover Gorelick's butt, as it were. This is just wildly implausible.

I can see that she might should have stayed off the Comm'n, but I don't yet see any harm from her service on it; any alleged minimizing of the Wall, etc. was surely more than countered by the very lively discussions that her service on the Comm'n sparked.
8.22.2005 6:00pm
Shelby (mail):
I think the main problem with Gorelick remaining on the Commission is not that she plainly tainted the results, but that she had ample opportunity (as well as possible or probable motive) to do so and we have no way of knowing whether or not she did. Thus, the utility of the Commission's report is substantially diminished.
8.22.2005 6:27pm
Anderson (mail) (www):
not that she plainly tainted the results, but that she had ample opportunity (as well as possible or probable motive) to do so and we have no way of knowing whether or not she did

I don't see how Gorelick was clever enough to deceive 9 other commissioners &their staffs, but if she was, then we need to put her powers to use!

Really, it's hard for me to see how this is anything but conspiracy-theory talk, without some evidence. Did anyone working for the Comm'n come out afterwards &complain that Gorelick tampered with evidence or conclusions?
8.22.2005 6:53pm
Shelby (mail):

Certainly the other members of the Commission knew about Gorelick's background. To what extent did they defer to her expertise about issues she'd worked on? They'd be unlikely to cross-examine her contributions in the same way they would a witness.

I don't think Gorelick should be prosecuted or anything; I just think it was irresponsible to have her on the commission because it raises reasonable doubts about the functioning of the commission. If you don't think those doubts are "reasonable," well, many of us without a partisan axe to grind think they are.
8.22.2005 7:09pm
Anderson (mail) (www):
Doh! My partisan axe! Forgot to pick it up from the grinder's! Thanks for reminding me!
8.22.2005 7:34pm
dick thompson (mail):
I think that the fact that the "wall" was so central to whether info could be shared was so much a part of the problems with the intelligence gathering pre-9/11 should of itself mean that the author of the "wall" should most certainly be a witness to why it was so important to keep the two parts separate and what affect that might have had on the findings based on the intelligence available to each part of the intelligence community. A simple recusal IMNSHO would not be sufficient in this case. It would be like having a commission on the National Archives chaired by Sandy Berger and having him recuse himself when it came to camera angles.
8.22.2005 8:05pm
Anand H (mail):
Juan N-V,
I wasn't suggesting that the recommendations were mandate, sorry if it came across that way. All I needed was to show that it was part of the mandate, and one for which Gorelick's participation seems uniquely important.
Someone on the panel had to be able to say "I know that there are costs to keeping a "wall", but even though this might mean we have a n% chance of y size attack, we need to take it because the benefits of taking that chance are x". Post 9/11, not a lot of people would be able to say that.
Now, I agree it's important to figure out just what happened before 9/11, but I think in terms of the impact it makes, the recommendations of the commission are more important.
8.22.2005 9:58pm
Juan Non-Volokh (mail) (www):
Anand H. --

I agree that Gorelick had many important insights for the commission -- insights that she could (and should) have shared as a witness.

Anderson --

I don't think Shelby was accusing you of having a partisan axe to grind. Rather, I read Shelby's post as suggesting that one does not need to have a partisan axe to feel that Gorelick's presence on the commission created the appearance of a conflict of interest, thereby undermining the commission.
8.22.2005 11:43pm
Gene Vilensky (mail) (www):

Would you have been ok with having Stephen Hadley (Rice's deputy before she went to State) on the 9/11 Commission? I think that if that had happened, people would have been livid and rightly so. The point is that people whose policies may have been responsible for the intelligence breakdown should not have served on the Commission. Period.

Oh, and from what I recall, the only reason that The Wall memo ever surfaced is because Ashcroft brought it up in his testimony. If he had never brought it up, it never would have surfaced and would have never caused her to recuse herself for any part of the report because she would never (and didn't) have to testify. I could be wrong about the Ashcroft thing though, but that is my recollection of the events. If someone has better info, I'd appreciate it.
8.23.2005 1:25am
Gene Vilensky (mail) (www):
To those who say that the "above and beyond" requirement existed before Gorelick came along and she was merely repeating department policy, why were Mary Jo White and Andy McCarthy so adamantly opposed to this policy only after Gorelick wrote the memo. Mary Jo White was probably the important US Attorney in the country. Andy McCarthy was no slouch (or partisan hack) either. It seems as though the memo should not have come as a surprise if the policy had been in place. It also seems as though neither McCarthy nor White would have any incentive to single Gorelick out for blame. Remember, White is a lifelong Democrat. Not sure if McCarthy is or not, but he's certainly no partisan hack.
8.23.2005 1:28am