Mr. Ashcroft: Tear Down that Wall

The "9/11 Commission" is undertaking some of the most critical tasks in the war on terror. These 5 republicans and 5 democrats have, for the most part, placed country over party in undertaking the crucial job of determining what went wrong in the months and years leading up to 9/11. Nothing in the Commission's final report will bring back those we lost that day, but it is imperative that the Commission over turn every stone to see if we can learn anything that may help prevent another disaster of that proportion.

In the last few weeks the Commission's work has clearly bruised some egos - both democrat and republican. But, some have been able to put their egos aside for the good of the nation. Others, however, have shown a willingness to put political survival ahead of the Commission's efforts.

Case in point is Attorney General John Ashcroft.
(note- as a current DOJ employee it is important to note that I write here as a private citizen and my views expressed here are solely my own and do not represent the views of the DOJ)

Already scorned by the Commission and testimony from key witnesses, the man whose job is to search for truth and justice came to the stand and demonstrated that his primary aims on that day were self-preservation and to undermine the Commission's credibility.

With amazing temerity, the Attorney General took the stand and, instead of putting ego and partisanship aside for the good of the nation, Attorney General Ashcroft unleashed an offensive against a respected Commission member temporarily disrupting the Commission's fact-finding mission.

Witness after witness, democrat and republicans alike, have consistently concluded that no single problem could have been addressed in time to unquestionably stop the 9/11 disaster. But, the Attorney General, in amazing arrogance contradicted the bipartisan consensus established up to that point by trumpeting that he had found THE cause for our failure to prevent Osama Bin Laden's attack on DC and New York City.

In what can only be described as kabuki political theater, and bad kabuki theater I might add, the AG summoned his inner drama queen and proclaimed that THE cause for the 9/11 letdown was a so-called "legal wall" built up to prevent intelligence investigators from sharing information with criminal investigators. The AG's soliloquy continued on with the declaration: "Somebody built this wall. ... Full disclosure compels me to inform you that the author of this memorandum is a member of the Commission." Then with self-congratulatory smugness, the AG whipped out a 1995 legal memorandum penned by Commission Member Jamie Gorelick when she was Deputy Attorney General in the Justice Department, which described "the wall" and set forth restrictions on information sharing between intelligence and criminal investigators. Ashcroft called memo "the single greatest structural cause for the September 11th problem.'' In short, Ashcroft's show and tell act attempted to blame Gorelick for 9/11.

Unimpressed, Republicans on the Commission trashed the AG's performance. Commissioner Slade Gorton, a former Republican senator from Washington, rebuked Ashcroft by noting, the Bush Justice Department, led by Ashcroft, actually ratified the existence of "the wall," by noting in its own secret memorandum on August 6, 2001, that "the 1995 procedures remain in effect today." Republican John Lehman, former Navy secretary under President Reagan, also defended Gorelick. "Jamie Gorelick has made a very good contribution and she's one of the really savvy, nonpartisan of the bipartisan members," Lehman said. Chairman Thomas Kean, the former Republican governor of New Jersey, state that in his mind, Gorelick, is "one of the finest members of the commission, one of the hardest working members of the commission and, by the way, one of the most nonpartisan and bipartisan members of the commission." Kean went further and rebuked calls for Gorelick's resignation from the commission saying "people ought to stay out of our business." Kudos to these Commissioners for not being blinded by the AG's stage show. Of course, demonstrating that to some party comes before country, Kean is now being attacked by the right wing slime machine for simply telling the truth.

As Attorney General, with a large staff of learned legal minds, surely Mr. Ashcroft knew, or should have known - and absolutely could have known with a wee bit of research - that in 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA established a secret intelligence court and relaxed the standard Fourth Amendment rule requiring "probable cause" when the government sought search warrants for the "primary purpose" of gathering foreign intelligence. Over the next several years, officials and courts gradually fashioned the "wall" keeping these two spheres largely separate. Indeed, the AG should know that this wall existed during the Reagan Administration and the First Bush Administration. He should know because his own Justice Department eventually - after 9/11 - sought a ruling from a special appeals court that helped eliminate the wall. In that very ruling, the Court, specifically noted that: "It is quite puzzling that the Justice Department, at some point during the 1980s [i.e. the Reagan years], began to read the statute as limiting the department's ability to obtain FISA orders if it intended to prosecute the targeted agents, even for foreign intelligence crimes."

Surely, someone on the AG's staff read the court's opinion? Surely, someone on his staff could have informed the AG that Ms. Gorelick did not serve in the Justice Department in the 1980s. Someone let him down. We certainly can't expect the AG to know all this publically available information himself, right? Wrong. Mr. Ashcroft is a shrewd man. The only reasonable conclusion that can be reached, given all the legal staff at his disposal and his own wealth of knowledge, is that the AG omitted this relevant history of "the wall" from his testimony in a partisan attempt to discredit Ms. Gorelick.

Such a silly stunt is both juvenile and disappointing. Perhaps Mr. Ashcroft should tear down the partisan wall dividing his duty to serve the public and his desire to serve himself and his party. Indeed, all witnesses should check their egos and partisanship at the door and let the Commission do its job. The American people are not well served by these types of antics and attempts at obfuscation. Luckily, in this instance, we had Mssrs. Kean, Lehman, and Gorton to set the record straight since the AG was obviously unwilling to do so himself.