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April 13, 2004

Ashcroft Slams 9/11 Commission By Declassifying Panelist's 1995 Memo

UPDATE (4/14): House Leader Calls For Gorelick Resignation

By J.M. Berger

Attorney General John Ashcroft fired a sharp attack at the independent commission investigating the September 11 attacks by unexpectedly declassifying a memo authored by a commission member, once again throwing the spotlight on conflicts of interest among members of the supposedly impartial panel.

While the media spotlight Tuesday focused on the day's extensive criticism of Ashcroft, the Bush Justice Department and the FBI, Ashcroft read excerpts from a newly declassified memo authored by commission member Jamie Gorelick, a former deputy attorney general with the Clinton Administration. According to Ashcroft, the memo illustrated the bureaucratic and legal obstacles faced by the Justice Department operating under guidelines written by the Clinton Administration.

On Wednesday, the chairman of the House Judiciary Committee, Wisconsin Republican Jim Sensenbrenner, called on Gorelick to resign from the commission.

"Scrutiny of this policy lies at the heart of the commission's work," AP quoted Sensenbrenner as saying. "Ms. Gorelick has an inherent conflict of interest as the author of this memo and as a government official at the center of the events in questions."

Declassified Gorelick Memo From 1995 (PDF)

Full Text of Ashcroft's Statement

According to Ashcroft, the memo illustrated the bureaucratic and legal obstacles faced by the Justice Department operating under guidelines written by the Clinton Administration.

The memo was given to the panel after Ashcroft's opening remarks. Ashcroft declassified the memo specifically for the occasion of his testimony and described its contents in his opening remarks, as part of a detailed attack on Clinton administration policies on counterterrorism and law enforcement.

Previous complaints about conflicts of interest have dogged the commission. Families of the September 11 victims have complained about Philip Zelikow, the commission's executive director, who received briefings on al Qaeda as a member of the Bush Administration and who co-authored a 1995 book with National Security Adviser Condoleezza Rice.

Gorelick has also been a lightning rod for criticism on the basis of such conflicts. As deputy attorney general under Janet Reno, Gorelick recused herself from questioning Reno after her testimony earlier Tuesday. Gorelick did not recuse herself from questioning Ashcroft after the disclosure of the memo. The panel largely ignored the memo during the hearing.

"The basic architecture for the wall in the 1995 Guidelines was contained in a classified memorandum entitled 'Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations,' " Ashcroft testified.

"The memorandum ordered FBI Director Louis Freeh and others, quote: 'We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations,' " Ashcroft's prepared testimony continued. " 'These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation.' "

Ashcroft's prepared testimony continued: "This memorandum established a wall separating the criminal and intelligence investigations following the 1993 World Trade Center attack, the largest international terrorism attack on American soil prior to September 11.Although you understand the debilitating impact of the wall, I cannot imagine that the Commission knew about this memorandum, so I have declassified it for you and the public to review. Full disclosure compels me to inform you that its author is a member of this Commission."

While the disclosure did highlight one of several conflicts of interest that the 9/11 Commission faces, it also shed light on a badly constructed government system of national security classifications, in which hundreds of thousands of pages of material are restricted every year. Though these restrictions are made purportedly on the basis of national security, material is frequently disclosed when deemed politically expedient and classified when deemed politically damaging, allowing abuses of the system while simultaneously concealing the existence of the abuse itself.

Neither the Gorelick memo disclosed today, nor the Aug. 6, 2001, Presidential Daily Briefing disclosed over the weekend appear to contain material that was justifiably denied to the public even using an extremely generous definition of the national interest. No harm has apparently been done to the nation by either disclosure, however there are very clear political motivations which could and did dictate the circumstances of their disclosure.

Ironically, while excerpts read in the session sounded damaging, the memo taken as a whole seems to emphasize counterintelligence and the prevention of terrorist attacks over simple prosecution, which could be read as undercutting one of the most frequent criticisms of both the Bush and Clinton administrations prior to September 11.

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