Gorelick Spins

September 11 Commission member Jamie Gorelick is desperately trying to run from her own record with this editorial piece from The Wasington Post. She says:

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.

Yet here’s what her own memo says:

Because the counterintelligence investigation will involve the use of surveillance techniques authorized under the Foreign Intelligence Surveillance Act (FISA) against targets that, in some instances, has been subject to surveillance under Title III, and because it will involve some of the same sources and targets as the criminal investigation, we believe that it is prudent to establish a set of instructions that will clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which will go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards that would apply in a criminal investigation. (Emphasis mine)

So in other words, her arguments that FISA created the wall are at best a half truth – FISA may have created a separation, but Gorelick herself created a policy that specifically went beyond the FISA limits. Then Gorelick continues to spin:

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.

Except the memo’s text clearly says the exact opposite – instead of facilitating information sharing, the memo clearly states that there is to be a separation of criminal and intelligence investigations.

In other words, Gorelick is lying through her teeth. Her memo makes it clear that she was not trying to expand communication between counterintelligence and law enforcement but ensure that counterintelligence information wouldn’t contaminate the criminal case against the bombers in the first World Trade Center. Now, if you accept that there’s no major legal difference between Tony Soprano and Osama bin Laden that’s a prudent strategy. However, in the post-September 11 era, it’s simply foolish. Despite Gorelick’s spin, it is clear that her policies went beyond what were necessary to create a wall between counterintelligence and law enforcement – a wall that allowed evidence on the September 11 hijackers to not reach those who could have acted upon it.