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


Independence in Eastern Europe

The Monday Commentary column “Trading with China” makes a point using an analogy that is not entirely true. Independence in Eastern Europe did not arise “out of small, sporadic protests … throughout Eastern Europe” — at least not all of Eastern Europe. It wasn’t nearly that easy.

The Solidarity movement of Poland waged a large-scale 10-year struggle against Soviet domination that included massive worker rebellions, the imposition of martial law, the threat of general strikes and Soviet military maneuvers that appeared to be in preparation for imminent invasion.

When the Poles elected a non-Communist majority in their Parliament in 1989, violating the Soviet rule that the Communist Party must have a monopoly on political power, the Soviets had to decide whether to mount an invasion that could well be opposed by the Polish military or to accept that the Communist Party could be forced from power in their satellite countries.

It is true that once it became clear that the Soviets would not enforce the so-called Brezhnev Doctrine (which called for the invasion of any Communist country that overthrew Communist rule), other East European countries, including Hungary, East Germany and later Czechoslovakia, gained their freedom through “small, sporadic protests.” However, what made that possible was the Poles’ concerted, long-term and extremely risky resistance, which forced the Soviets to abandon the Brezhnev Doctrine.



The asbestos-litigation trust fund

With reference to the Aug. 8 editorial “The asbestos mess,” we certainly agree with your characterization of the asbestos litigation crisis. It is, indeed, a mess.

Your editorial is correct in supporting passage of asbestos-trust-fund legislation as the most appropriate remedy. The pending trust fund bill offers the best means to ensure fair and timely compensation to deserving asbestos victims and to remove the cloud of uncertainty that undermines the future of thousands of companies with asbestos liability.

It’s important to note that the concern you voice that frivolous and specious claims may overwhelm the trust fund and leave taxpayers on the hook has been addressed appropriately in the FAIR (Fairness in Asbestos Injury Resolution) Act. The size of the fund and the establishment of rigorous medical criteria for claims are among the key issues the Senate Judiciary Committee addressed in drafting the bill that is pending on the Senate calendar. Negotiations are continuing to further strengthen the long-term viability of the trust fund.

The asbestos-litigation nightmare has gone on far too long, to the detriment of victims and the American economy. Congress is at the threshold of a legislative solution, and the magnitude of the problem demands that the job be completed.


Financial Institutions for

Asbestos Reform


Self-determination in Iraq

Kudos to Alan Topol and the editors of The Washington Times for having the courage to tell the straight truth about Iraq: “Fissure into separate Shiite, Sunni, and Kurdish entities is inevitable” (“The disintegration of Iraq,” Op-Ed, Tuesday). Mr. Topol is spot-on that the disintegration of Iraq “will be fraught with peril,” but he overlooked a fresh opportunity.

In No. 12 of his Fourteen Points, President Wilson, flush with victory in the “war to make the world safe for Democracy,” championed self-determination for the peoples of the defunct Ottoman Empire, including the province of Iraq. Wilson recognized that people would only practice democracy within borders they drew for themselves. Unfortunately, British bureaucrats drew the borders, creating the geographic fiction of Iraq and uniting three peoples that shared nothing but centuries of enmity. This divide-and-conquer strategy was meant to help the British retain control of resource-rich Iraq, just as dividing Hindu against Muslim sustained control of British India.

Better late than never — Iraq will dissolve, just as that other failed political-science experiment of Versailles, Yugoslavia, dissolved. Though our allies from Old Europe object to occupying Iraq, they would be more than willing to don blue helmets to protect the peace along the new international borders separating the three distinct peoples of Iraq. Finally safe within the borders they drew for themselves, those peoples would for the first time be afforded the historic opportunity to choose democracy.


Hettenhausen, Germany

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