Acts of commission

The current round of attacks on the 9/11 Commission were bound to happen, I suppose. It's unimaginable that there could be a report with any kind of objectivity at all that wouldn't be critical to some degree of the Bush administration. There was a reason, after all, that Bushco did everything it could to block the creation of the Commission until the clamor from several quarters, but especially from the survivors of 9/11 victims, became to loud to ignore, and there's a reason they've done so much to block it's effectiveness since. George is simply not a fellow who takes constructive criticism well.

The drumbeat right now is on the supposed partisanship of a Commission that's evenly divided on partisan lines, and on an accusation that they're operating too openly. The latter charge, highlighted in a front page article in the New York Times , is particularly comical in light of the sources the Times turned to for comment - a member (Gerald Ford) and staffer (Arlen Spector) for the infamous Warren Commission. Chris Nolan puts it succinctly in a post at BOPnews (and on her own blog). "That’s downright silly." she writes. "The Warren Commission did a better job than the Masons in spawning thousands of conspiracy theories."

The former point was expressed by Republican Senator Mitch McConnell, who opined that "become a political casualty of the electoral hunting season." His notion was amply, if colorfully, dismissed (in my admittedly partisan opinion) by Commissioner Bob Kerrey, who said "Mitch McConnell is the Republican whip of the Senate and he's accusing us of being too partisan? He can go to hell for all I'm concerned."

In fact, although the Commission is made up of human beings with histories and opinions, I've been generally impressed with most all of them. Although I took an oath of lifelong emnity toward the former Senator from Washington years ago, even Slade Vade...err...Gorton is coming across as a pretty reasonable sort in this context, most of the time. Wherever the various Commissioners came from, and whyever they were chosen for the task, they seem to take their charge of finding such truth as can be found and making the best recommendations possible in light of their findings seriously. Far more seriously, it seems, than some in Congress or anyone in the Administration.

The more distressing development, in my opinion, is the personal attack that's been launched against Commissioner Jamie Gorelick. I've generally found Gorelick to be well informed and tenacious, but typically fair. It's a view shared by the Republican co-Chair of the Commission, Tom Kean, who has characterized her as one of the Commission's "hardest working and most non-partisan" members. Of course, it's not suprising that neither hard work nor non-partisanship are qualities likely to impress the Bush administration, and it's thus not surprising that they set up Gorelick with a particularly underhanded ploy from one of their least scrupulous henchment, Attorney General John Ashcroft.

Josh Marshall offers a pop quiz. "A quick question," he asks. "In the last six weeks, how many documents has the Bush administration declassified for the exclusive and explicit purpose of attacking a political enemy?" I don't have the precise answer, but I know that it's a smear tactic that's been a Bushco specialty for a lot longer than six weeks. Kevin Drum offers a good example of an earlier instance, writing that "The classic case occurred in 2001 when Bush actually declassified part of a conversation between Bill Clinton and Israeli Prime Minister Ehud Barak that reflected poorly on Clinton but refused to declassify the rest of the conversation even when Clinton requested it."

In this case, Ashcroft suddenly declassified a memo written by Gorelick during her tenure as a Deputy Attorney General which outlined methods for enforcing the provisions of "The Wall," as the separation between criminal and intelligence sources at the Justice Department has become known. Ashcroft attempted to lay blame for the existence of the Wall at Gorelick's feet, and claimed that it was a main impediment to investigations that might have otherwise uncovered and perhaps forestalled the 9/11 attacks. It's a scurrilous charge, based on multiple lies.

As Dan Eggen and Walter Pincus reoport in the Washington Post , "The secret Foreign Intelligence Surveillance Court of Review, in a 2002 ruling, noted that the Justice Department had begun erecting the legal wall "during the 1980s," as an interpretation of the 1978 statute governing clandestine wiretaps." In other words, the Wall predated Gorelick's service at Justice, let alone the creation of the subject memo in 1995.

Perhaps even more to the point, "Ashcroft, at Tuesday's hearing, conceded under questioning by Commissioner Slade Gorton, a former Republican senator from Washington state, that his own deputy attorney general, Larry Thompson, had renewed the terms of the Gorelick memo in August 2001." (see, I told you ol' Slade was one of the good guys, at least in this context). If the Wall was such a monumental problem, why was the Ashcroft Justice Department integrating Gorelick's own interpretation and guidelines into their operation?

Perhaps it's because the Wall has a perfectly valid reason for being. One of the first priorities of the Justice Deparment, after all, should be the successful prosecution of federal criminals, and it's important that the investigation of federal crimes not become tainted with investigative material that might be very useful in an intelligence context, but might be inadmissable in a courtroom. To much cross pollination of criminal and intelligence might severly hamper the criminal side of the equation. There's a necessary balance. I'm not convinced Gorelick's analysis was ideal (and nearly ten years later, post 9/11, she may not be either), but it seemed to be good enough for Thompson and Ashcroft.

The whole point, then, would seem to be nothing more than a political smear against Gorelick, which was promptly picked up by House Judiciary Chairman Jim Sensenbrenner, who called for Gorelick's resignation, claiming that her authorship of the memo creates too profound a conflict of interest for her to remain in her post. It's an absurd proposition on its face. Gorelick has been scrupulous about recusing herself when the Commissions work strays into areas that she was involved in at Justice, but if the Commission is to make intelligent recommendations about maintaining or eliminating some kind of separation between criminal and intelligence matters in the future (and again, some kind of separation seems intuitively wise, at least in some cases), I would think that someone who has given serious attention to the subject in the past would be a more important, not a less qualified, voice in their deliberations.

Partisanship? Well, let's take a look at who the partisans are...John Ashcroft, Jim Sensenbrenner, Mitch McConnell...yep, we do have a partisan problem. And it's all Republican. And it's not on the Commission.

Is it November yet?