- The Washington Times - Wednesday, August 17, 2005

Defending the September 11 commission

The criticisms of the September 11 commission and, in particular, my commission colleague Jamie Gorelick, are unfounded (“Blinks and winks on Able Danger,” Commentary, Tuesday, and “Able Danger’s hidden hand,” Commentary, Monday). The commission asked the Defense Department for all documents relating to the Able Danger military intelligence program. None of those that the Defense Department supplied us mentioned Mohamed Atta.

The one witness who did name Atta came to our staff shortly before the commission’s report went to the printer. He said he thought he had seen something showing Atta in Brooklyn early in 2000. We knew, in fact, that Atta first arrived in the United States in June 2000 with a visa. For this and other reasons, the witness simply was not credible on this subject.

Additionally, the assertion that the commission failed to report on this program to protect Ms. Gorelick is ridiculous. She had nothing to do with any “wall” between law enforcement and our intelligence agencies. The 1995 Department of Justice guidelines at issue were internal to the Justice Department and were not even sent to any other agency. The guidelines had no effect on the Department of Defense and certainly did not prohibit it from communicating with the FBI, the CIA or anyone else.

Congress created the walls that were in place before September 11 — such as the National Security Act’s prohibition on U.S. intelligence agency spying on Americans and the Posse Comitatus Act — that have nothing to do with the Department of Justice memo. The Defense Department’s own directives on sharing such information date from the 1980s. It is not clear that those laws would have prohibited sharing information in this instance.

The fact is that the Justice Department guidelines sought to encourage sharing in a way that was consistent with the Foreign Intelligence Surveillance Act, or FISA. FISA enabled the government to conduct surveillance for foreign intelligence purposes under a lesser standard than typical criminal surveillance. To keep this power in check, the courts prohibited the use of intelligence wiretaps unless their “primary purpose” was intelligence gathering rather than criminal prosecution.

Then-Attorney General John Ashcroft’s department reissued and reaffirmed those guidelines in 2001, before September 11.

Even when the Patriot Act eliminated the “primary purpose” test, it took an appellate court ruling to permit the Justice Department to change those rules.

So attributing these procedures to Ms. Gorelick is wrong. If the Ashcroft Justice Department couldn’t eliminate them with a stroke of a pen, Ms. Gorelick could not have created them with the stroke of a pen, either.


September 11 commission member

Former U.S. senator

Of counsel, Preston Gates Ellis LLP


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