The disclosure that Jamie Gorelick, a member of the September 11 commission, was personally responsible for instituting a key obstacle to cooperation between law enforcement and intelligence operations before the terrorist attacks raises disturbing questions about the integrity of the commission itself. Ms. Gorelick should not be cross-examining witnesses; instead, she should be required to testify about her own behavior under oath. Specifically, commission members need to ask her about a 1995 directive she wrote that made it more difficult for the FBI to locate two of the September 11 hijackers who had already entered the country by the summer of 2001.
On Tuesday, Attorney General John Ashcroft declassified a four-page directive sent by Ms. Gorelick (the No. 2 official in the Clinton Justice Department) on March 4, 1995, to FBI Director Louis Freeh and Mary Jo White, the New York-based U.S. attorney investigating the 1993 World Trade Center bombing. In the memo, Ms. Gorelick ordered Mr. Freeh and Ms. White to follow information-sharing procedures that "go beyond what is legally required," in order to avoid "any risk of creating an unwarranted appearance" that the Justice Department was using Foreign Intelligence Surveillance Act (FISA) warrants, instead of ordinary criminal investigative procedures, in an effort to undermine the civil liberties of terrorism suspects.
At issue was the oft-noted wall of separation that prevented counterterrorism agents and federal prosecutors from communicating with one another prior to September 11. Information collected under special FISA warrants, which do not require a probable cause, was generally not to be shared with personnel responsible for enforcing federal criminal laws -- where probable cause must be demonstrated for a warrant to be issued. As lawyers David Rivkin and Lee Casey noted on our Op-Ed page yesterday, the practical effect of the wall was that counterintelligence information was generally kept away from law enforcement personnel who were investigating al Qaeda activities. But Ms. Gorelick's memo clearly indicated that the Clinton administration had decided as a matter of policy to go even beyond the law's already stringent requirements in order to further choke off information sharing.
As Mr. Ashcroft noted during his testimony before the September 11 commission, all of this had a devastating effect into the investigation of al Qaeda operations in this country in the summer of 2001. For example, in late August, when the CIA told the FBI that Khalid Almidhar and Nawaf Alhazmi had entered the country, FBI investigators refused to permit criminal investigators with considerable knowledge about the most recent al Qaeda attack to join the manhunt. Also, a criminal search warrant to examine the computer of Zacarias Moussaoui, whose interest in flying aircraft had attracted attention, was rejected because FBI officials were afraid of breaching the wall.
Ms. Gorelick has been among the most partisan and aggressive Democratic panel members in questioning the anti-terror efforts of the Bush administration. The nation deserves a full accounting from Ms. Gorelick of why the Clinton administration felt it necessary to go the extra mile in order to hamper the capability of law enforcement and intelligence agents to talk to one another. If Ms. Gorelick fails to provide this, her actions would bring into serious doubt the credibility of the commission.
By Douglas Holtz-Eakin
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