{"id":53218,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-admirable-openness-of-the-911-commission.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-admirable-openness-of-the-911-commission","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-admirable-openness-of-the-911-commission.html","title":{"rendered":"The Admirable Openness of the 911 Commission"},"content":{"rendered":"\n
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The Admirable Openness of the 9\/11 Commission:
Why Charges It Is Overly Politicized Are In Error<\/span><\/h1><\/td>\n <\/tr>\n

By JOHN W. DEAN<\/h2><\/a><\/td>\n <\/tr>\n

Friday, May. 07, 2004<\/td>\n\n <\/tr>\n <\/table>\n

A growing chorus of Republicans and members of the conservative media has charged that the 9\/11 Commission has improperly politicized its proceedings, and thus failed before even completing its work. From the floors of the U.S. House of Representatives and the U.S. Senate, to the editorial pages of the Wall Street Journal<\/i> (which has opposed the Commission’s investigation from the outset), there have been calls for resignation of a commissioner, charges of partisanship, and claims of excessive showboating by commission members.<\/p>

These claims, I believe, are entirely wrong. The 9\/11 Commission has gone to great lengths to be bipartisan, if not nonpartisan.<\/p>

It has been Republicans — not the Commission’s members — who have been engaging in partisanship and Beltway politics. In fact, it appears that Republicans and their surrogates are seeking to discredit the 9\/11 Commission’s report before it is issued, apparently fearing whatever it may say, given that this is a presidential election year.<\/p>

But to discredit this work is to do so at great cost– the expense of our failing to fully learn about the mistakes that were made before 9\/11, and recommendations of how best to correct them. <\/p> <\/b>

Richard Clarke Dropped the Political Bomb<\/p>

It was former White House counterterrorism chief Richard Clarke’s testimony that triggered much of the Republican anger. While Clarke was critical of both the Clinton and Bush Administrations, clearly he was harder on the Bush White House. And of course, it is Bush who is standing for reelection.<\/p>

George W. Bush seeks to portray himself as a “no fault” president — or, at least, one who is free of any mistakes he is capable of identifying or recalling. In addition, he has made his handling of terrorism a cornerstone of his reelection bid. As a result, it has become unthinkable for Bush to admit error — let alone apologize for failing to protect the American people, as Clarke himself has done.<\/p>

Under these circumstances, the Clarke criticism that Bush had “botched the response to 9\/11” clearly stung. And it prompted the Bush White House and its supporters to set out not only to discredit Clarke, but also (unjustly, I believe) to lodge charges of partisanship against the 9\/11 Commission itself.<\/p> <\/b>

The Commission Is Plainly Nonpartisan<\/p>

\n\nIt’s important to recall that it was President Bush himself who appointed former New Jersey Governor Thomas Kean as the chairman of the 9\/11 Commission. Kean, a Republican, grew up in Washington politics, when his father was a Republican Congressman in a town controlled by Democrats. <\/p>

Kean did not intend to — and did not — set a partisan tone in the Commission proceedings. To the contrary, he says of Washington today, “I’ve never seen it this bad. I don’t see how they get anything done. To me, Washington is not going to work unless you can restore some bipartisan cooperation.”<\/p>

That is exactly what he has done with the 9\/11 Commission. As Commission member and former U.S. Senator Slade Gorton explained on NPR’s “All Things Considered,” there is “one point we’re absolutely unanimous [on] at this stage, and that is that unless we come out with a unanimous report on the basics, on the facts leading up to 9\/11, our report is not going to be worth very much.”<\/p>

Although Richard Clarke had testified privately for many hours before the commission, Kean and the others were caught off guard by Clarke’s using his public testimony — proceeded by an aggressive attack on Bush and National Security Adviser Condoleezza Rice on “60 Minutes” — to promote his book. Not only did they not plan this move, they were surprised by it.<\/p>

As Governor Kean described it, Clarke “dropped a bomb into the middle of our hearings.” No question that Clarke’s testimony and book were explosive. But anyone who calls Clarke’s information partisan has not studied it, as I noted in a prior column<\/a>. <\/p>

Still, Clarke’s testimony and book set off an ongoing series of political charges and counter-charges, the yin and yang of ever more divisive Beltway politics.<\/p> <\/b>

Solicitor General Ted Olson’s Charges<\/p>

\t<\/p>

Solicitor General Ted Olson appeared on “Larry King Live” to complain about the conduct of the public hearings before the 9\/11 Commission. His remarks are representative of the growing chorus of Republican complaints about the Commission on this score. <\/p>

\t<\/p>

Olson, whose wife Barbara was on the plane that crashed into the Pentagon on 9\/11, attended the 9\/11 hearings the day Attorney General Ashcroft appeared to testify. Later, on Larry King’s show, Olson said, “some members of the commission have attempted to exploit [the hearings] for partisan purposes or for purposes that relate to their own opportunity to be in the spotlight, and I think that’s very destructive, it’s very unfortunate.”<\/p>

He continued, “everybody is out expressing opinions, the members of this commission seemed to have formed their opinions before they finished collecting the facts. They’re on television, they’re writing op-ed pieces, they’re being interviewed timeless — endlessly.” <\/p>

Olson made clear that he was not pointing his finger at the entire commission, however. “Now, I am not saying this about every one of them,” he clarified, “but there is a tendency to be partisan and there is a tendency to feel that they must be on television or in the newspapers explaining their own personal views all the time.” <\/p>

Indeed, it was clear whom, in particular, Olson was talking about: The 9\/11 Commission member who was going to follow him on Larry King, former Watergate Special Prosecutor and Washington attorney Richard Ben Veniste.<\/p>

In the hearings, Ben Veniste was asking administration officials some of the toughest questions. That did not sit well with Olson, and other Republicans — those who appreciated that Bush had done all he could to prevent the 9\/11 inquiry from ever taking place at all. <\/p> <\/b>

Commission Member Richard Ben Veniste’s Response to Olson’s Points<\/p>

While Olson did not name names, Ben Veniste plainly knew whom Olson was talking about. And — also without naming names — Ben Veniste (appearing by satellite) responded. <\/p>

Ben Veniste said that “[a]s far as the comments about being on television, our chairman [Thomas Kean] has asked us to do it. I’ve accepted about 10 percent of the requests that I’ve had. As you know, I’ve got a day job. I’m in the middle of a trial here in Camden County, New Jersey.” <\/p>

“So, we’re doing the best we can,” Ben Veniste continued. Then he explained the rationale of the Commission’s position: “You’ll remember that the criticisms of the Warren Commission was that it was opaque, nobody knew what was going on behind closed doors. With respect to the commission set up to investigate Pearl Harbor, that was a — that was a commission that failed. It didn’t get the facts out.” <\/p>

In short, the 9\/11 Commission made a policy decision to talk openly about the Commission’s work.. And the decision was a sensible one, informed by history they wanted to avoid the mistakes of two prior studies of events that had traumatized the nation. Thus, they held open hearings.<\/p> <\/b>

Ben Veniste’s Tough Questions Were More Than Merited<\/p>

Any charges that Ben Veniste, in particular, was being partisan in asking tough questions were unfair. To see why, consider that — as I have noted in a previous column — this is a notoriously secretive nature of the Bush Administration. While it says publicly that it wants the answers the 9\/11 Commission is seeking, privately it has done all that is within its power to kill the inquiry and make it as difficult as possible. <\/p>

For example, the White House should have volunteered the August 6, 2001 President’s Daily Briefing from the CIA about which Ben Veniste pressed Condoleezza Rice. Instead, without Ben Veniste’s questions, it would have been kept hidden. <\/p> <\/b>

Attorney General Ashcroft’s Attack On 9\/11 Commissioner Gorelick<\/p>

Meanwhile, the true and conspicuously partisan at the hearings was John Ashcroft.<\/p>

Ashcroft went before the Commission loaded for bear. He was in a defensive posture because stories had been circulating for months about his inattention to terrorism before 9\/11. And like the President, he too has great difficulty admitting error.<\/p>

Shortly before his appearance, Ashcroft arbitrarily declassified a 1995 memorandum written by 9\/11 Commission member Jamie Gorelick, who was then serving as the Deputy Attorney General. Gorelick’s memo reaffirmed the Department of Justice policy at the time regarding the separation of foreign and domestic intelligence gathering via electronic surveillance, and the use of such information. <\/p>

This separation was longstanding, and stemmed from the need to protect civil liberties. Domestic intelligence gathering must respect constitutional rights in a way foreign intelligence gathering to some extent does not. <\/p>

Many have argued that this separation was a reason 9\/11 was not prevented, and therefore that it must be broken down. The key point here is not who is right — but that Gorelick hardly invented a separation that long pre-existed not only her memo, but her tenure in the Clinton Administration. <\/p>

Yet Ashcroft — as pointed out in a report by CNBC Washington bureau chief Alan Murray reported in the Wall Street Journal–<\/i> suggested, quite ridiculously, that it was Gorelick who created this wall, in the 1995 memo. It was a cheap, inaccurate, and partisan shot. <\/p>

But Ashcroft’s attack accomplished what he wanted. House Judiciary Committee Chairman James Sensenbrenner called for Ms. Gorelick to resign, claiming her earlier position created a conflict on interest for continued participation with the 9\/11 Commission. Soon, no less than thirteen Republican Senators signed and sent a letter to the Commission demanding that Gorelick testify before her own Commission.<\/p>

Meanwhile, the Wall Street Journal<\/i> opined that “Ms. Gorelick’s failure to resign and testify herself in face of a clear conflict of interest is reason enough for the American people to distrust [the 9\/11 Commission’s] ultimate judgments.” What conflict of interest? Gorelick simply reaffirmed a longstanding, rights-protecting policy that 9\/11 only later cast into question; the Commission proceedings might cast doubt on the policy, but did not risk placing blame on Gorelick. <\/p>

Still, never missing an opportunity to stoke partisan coals, Texas Congressman Tom DeLay went to work. CNBC’s Alan Murray reports DeLay’s “stinging letter to Mr. Kean” that was critical of him for permitting “partisan mudslinging, circus atmosphere pyrotechnics, and gotcha-style questioning.” As Murray notes, DeLay “clearly wishes the commission had kept its hearings private, to avoid any danger of damaging the president’s re-election.”<\/p> <\/b>

Commission Member Jamie Gorelick’s Response<\/p>

\t<\/p>

Writing in The Washington Post<\/i>, Jamie Gorelick has effectively demolished Ashcroft’s (and his troops’) contentions. In her brief essay, she showed that Ashcroft’s claim that “the single greatest structural cause for September 11” was the wall built by her was “simply not true.”<\/p>

First, she pointed out she had not invented the “wall” and that this alleged wall was merely a set of Department procedures to implement the 1978 statute known as the Foreign Intelligence Surveillance Act (FISA), and federal court decisions interpreting it. The law itself dictated that electronic surveillance in the United States could be authorized under a more lenient standard than typical criminal cases only if the “primary purpose” was to gather foreign intelligence, rather than to further a criminal investigation.<\/p>

Second, Gorelick explained that the so-called wall was actually the result of the interpretations of FISA by the Justice Departments during the Reagan and George H.W. Bush administrations. Plainly, it was no Democratic invention — let alone one by Gorelick herself. <\/p>

Third, she noted that Ashcroft’s own Deputy Attorney General had “formally reaffirmed the 1995 guidelines in an Aug. 6, 2001 memo.”<\/p>

Fourth, Gorelick said the March 1995 memo she had written actually permitted “freer coordination between intelligence and criminal investigators” than in the standard finally adopted by Attorney General Janet Reno in July 1995, and by Ashcroft’s department in August 2001.<\/p>

Fifth, in fact, there was no wall in the guidelines. Rather, as Gorelick pointed out, nothing “prevented the sharing of information between criminal and intelligence investigators.” Instead the guidelines set forth procedures<\/u> to be followed, procedures that had been reaffirmed by Ashcroft’s own Department of Justice later.<\/p>

Finally, Gorelick explains that it took a change in the underlying FISA law — a change that was included in the USA Patriot Act — to change the procedures. And she added that as a member of the 9\/11 commission, she had recused herself from any matters relating to her days in at Justice Department. <\/p>

Gorelick did not say — although others on the commission have done so– that no other members of the Commission believed she had a conflict of interest, none thought that she should resign, or sought to have her to testify about this trumped up issue. <\/p> <\/b>

An Unusual Public Rebuke of Attorney General Ashcroft by President Bush<\/p>

\tAshcroft’s people then dug out a few further Gorelick memos, declassified them, and posted them on the DOJ website. At that point, even President Bush had had enough, and he did something he seldom has done: The President publicly rebuked his Attorney General. <\/p>

When Bush and Vice President Dick Cheney met with the 9\/11 Commission, the Los Angeles Times<\/i> (and other news sources) reported that Bush “expressed disappointment at his own Justice Department” for “improperly inject[ing] partisan politics into the work of the commission.” White House Press Secretary Scott McClellan confirmed the rebuke.<\/p>

Bush’s rebuke of Ashcroft is extraordinary for this administration, and it leaves no doubt about who is being partisan. <\/p> <\/b>

The 9\/11 Commission’s Admirable Policy Of Openness<\/p>

Fortunately, Governor Kean, and the others on the 9\/11 Commission have consistently operated above the partisan din of contemporary Washington. Kean told CNBC’s Alan Murray, “I’ve long believed that in government, the more open you are, the more transparent you are, the better.” Kean is not about to follow Tom DeLay’s close-the-doors-of-government mentality.<\/p>

Ben Veniste was wise to tell Larry King, “We’re determined not to make those mistakes [as the Warren Commission]. We’re going to be as open as we can.” In his words, one can hear echoes of the experience of the 9\/11 Commission’s Vice-Chairman, Lee Hamilton, who heads the prestigious Woodrow Wilson International Center for Scholars. <\/p>

Hamilton, when still serving as one of the most powerful members of Congress, was responsible for the enactment of the President John F. Kennedy Assassination Records Collection Act of 1992, which created the Assassination Records Review Board. Hamilton understands the consequences of secrecy.<\/p>

As the Review Board’s 1998 final report stated<\/a>, and as Hamilton had appreciated in earlier pushing the underlying legislation, “the Warren Commission’s secrecy had not only eroded confidence in its work,” but the government’s across the board refusal to release other records related to the Kennedy assassination ultimately “eroded confidence in the truthfulness of federal agencies in general and damaged their credibility.”<\/p>

While the 9\/11 Commission itself is determined not to make the mistakes of earlier inquiries into nation shattering experiences, the partisans taking cheap shots at this effort do themselves and the nation no favors with their efforts. Hopefully, they will let the Commission complete its work, stop firing their baseless salvos, and we can all judge the work of this study when it is finalized. <\/p> \n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\nJohn W. Dean, a FindLaw columnist, is a former counsel to the President.\n

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