Dm B4 Gorelick Fdr- 2 Withdrawal Notices- Gorelick Memo- Commisson Emails W Press Clips- Correspondence W Congress Re Gorelick Conflicts Of Interest 320

Dan Marcus From:

Jonathan Stull

Sent:

Monday, May 03, 2004 8:30 AM

To:

Front Office

Cc:

Al Felzenberg

;

Subject: Gorelick Response An op-ed in today's NY Post from Rep. Lamar Smith and an editorial in todaty's WSJ again draw attention to Ms. Gorelick. I don't know if she or we are working on a response to Rep. Smith's letter, but it's apparent that the President's words haven't dampened the issue entirely. Rep. Smith's letter asked for a response by today, May 3. Commissioner's Crippling Conflicts LAMAR SMITH The New York Post Last week I released a letter signed by 75 members of Congress to 9/11 Commissioner Jamie Gorelick. We have serious concerns about her impartiality as a member of the National Commission on Terrorist Attacks Upon the United States. Since Attorney General John Ashcroft declassified her 1995 memo that placed her at the apex of counterterrorism planning in the Clinton White House, Commissioner Gorelick has: * Denied a conflict of interest; * Rejected a call to testify publicly before the commission; * Declined to recuse herself from questioning former subordinates; and * Refused to resign. The real question is: What serves the best interests of the American people and our homeland security? Those who signed my letter strongly believe a former member of the Clinton Justice Department cannot sit in judgment of policies she helped create. In her 1995 testimony as deputy attorney general before the Senate Select Committee on Intelligence, which has received little national attention, Gorelick said Attorney General Janet Reno "identified the need to have a better relationship between law enforcement and intelligence at the beginning of her administration. When I came over to be her deputy, she asked me to take this on as a special project." We have asked the commissioner what she did as the Justice Department point person to increase information sharing between intelligence and law enforcement. In that same testimony, Gorelick claimed that the Justice Department was developing an FBI Counterterrorism Center that would "establish a real-time analytical capability that will synthesize all-source intelligence ..." Unfortunately, such a FBI capability never was established FBI. Commissioner Gorelick should explain why. She also testified that "new methods to improve coordination and cooperation" between the FBI and CIA needed to be developed. Congress is not aware of any procedure, rule, or policy that increased coordination and cooperation. We have asked her to explain what she did at the time to rectify this problem. Perhaps Commissioner Gorelick's most alarming recent public statements on her Justice Department service came in an April 14 interview with CNN's Wolf Blitzer. Asked about her involvement in formulating a policy that made it much more difficult than the law required for the FBI and CIA to share information, she said "the policy

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Page 2 of3 that was put out in the mid-'90s, which I didn't sign, wasn't my policy by the way, it was the attorney general's policy." Commissioner Gorelick apparently wants the American people to believe, that she - as deputy attorney general with "special project" the responsibility for developing "a better relationship between law enforcement and intelligence" -had nothing to do with Attorney General Reno's July, 1995 policy. We have asked her to further explain this astonishing statement. I expect Commissioner Gorelick to fulfill her public duty to provide detailed answers to our questions. If she does not respond to our letter, then an ethical cloud will continue to hang over the commission that brings into question its independence and supposed non-partisanship. Rep. Lamar Smith (R-Texas) is a member of the House Judiciary Committee and the Select Committee on Homeland Security.

Gorelick's Stonewall The Wall Street Journal So President Bush and Vice President Cheney had their long-awaited sit-down with the 9/11 Commission last week - an event the Commissioners took so seriously that two of them walked out early citing prior commitments. Meanwhile, White House Spokesman Scott McClellan says the President disapproved of the Justice Department's release last week of further memos relating to the pre-Patriot Act "wall" between intelligence and law enforcement. Sigh. We hope Mr. Bush is merely trying to rise above the partisanship that has surrounded the Commission since its grandstanding over Richard Clarke and Condoleezza Rice. Because what John Ashcroft and his team have revealed about the wall is by far the most important thing to come out of the hearings so far. So long as the 9/11 Commissioners are refusing to probe this matter further for fear of damaging a colleague, someone has to look out for the public's right to know. Readers will recall that in his testimony Attorney General Ashcroft declassified a March 1995 memo written by 9/11 Commissioner Jamie Gorelick - then Deputy Attorney General ~ instructing federal prosecutors and the FBI director to go "beyond what the law requires" in limiting their cooperation. Ms. Gorelick has since responded that she played only a subordinate role in setting this policy, and was only implementing settled law in any case. But the newly released memos appear to contradict Ms. Gorelick on both counts, further strengthening the case for having her resolve the issue in testimony and under oath. A key piece of evidence is a June 13,1995 memo to Attorney General Janet Reno from Mary Jo White, then U.S. Attorney and lead World Trade Center bombing prosecutor, and a recipient of the March memo Mr. Ashcroft referenced: "You have also asked whether I am generally comfortable with the instructions. It is hard to be totally comfortable with instructions to the FBI prohibiting contact with the United States Attorney's Offices when such prohibitions are not legally required." Ms. White added: "Our experience has been that the FBI labels of an investigation as intelligence or law enforcement can be quite arbitrary depending upon the personnel involved and that the most effective way to combat terrorism is with as few labels and walls as possible so that wherever permissible, the right and left hands are communicating" (emphases added). Then Ms. White asked for a number of changes to the proposed guidelines, most of which Gorelick subordinate Michael Vatis recommends rejecting in a June 19 memo to Ms. Reno. That memo is accompanied by a handwritten note from Ms. Gorelick saying that she concurs. Or to sum up the exchange: The principal U.S. terrorism prosecutor was trying to tell her boss that she foresaw a real problem with the new and "not legally required" wall policy, but Ms. Reno -- again delegating that policy to Ms. Gorelick ~ largely rebuffed her concerns. Commission Chairman Tom Kean has thus far been a staunch defender of Ms. Gorelick's refusal to testify. Perhaps he can explain how all of the above squares with Ms. Gorelick's recent remarks on CNN that "The wall

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Page 3 of3 was a creature of statute. It's existed since the mid-1980s. And while it's too lengthy to go into, basically the policy that was put out in the mid-'90s, which I didn't sign, wasn't my policy by the way, it was the Attorney General's policy..." We've never expected much from this Commission, but the stonewalling is getting ridiculous. Everyone knows the wall contributed to serious pre-9/11 lapses, such as the FBI's failure to search "20th Hijacker" Zacarias Moussaoui's hard drive following his arrest on immigration violations in August 2001. Yet the Commissioners are treating reasonable requests that they explore the wall fully as some sort of affront. U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald summed up the core issue last October in testimony to Congress: "I was on a prosecution team in New York that began a criminal investigation of Osama bin Laden in early 1996.... We could talk to local police officers. We could talk to other U.S. government agencies. We could talk to foreign police officers. Even foreign intelligence personnel.... But there was one group of people we were not permitted to talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to a parallel intelligence investigation of Osama bin Laden and al Qaeda. We could not learn what information they had gathered. That was 'the wall.1" That's also what the 9/11 Commissioners now seem determined to ignore. How long will they continue protecting their colleague at the cost of their own credibility? Jonathan Stull Communications Assistant 9-11 Commission 202-401-1627 (office) 202-494-3538 (cell) 202-358-3124 (fax) [email protected] www.9-11 commission.gov

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CHRISTOPHER S. BOND MISSOURI COMMITTEES:

APPROPRIATIONS

United gtatts

SMALL BUSINESS ENVIRONMENT AND PUBLIC WORKS

WASHINGTON, DC 20510-2503

HEALTH, EDUCATION, LABOR. AND PENSIONS

INTELLIGENCE

Apnl 27,2004

Thomas Kean, Chairman

Lee H. Hamilton, Vice Chairman National Commission on Terrorist Attacks Upon the United States 301 7* Street, SW Washington, DC 20407 Dear Chairman Kean and Vice-Chairman Hamilton: Thank you for your timely response to our request to have former Deputy Attorney General Jamie Gorelick testify in public about her role in formulating policies and procedures at the Department of Justice with respect to the relationship between intelligence and law enforcement agencies. While we are certainly disappointed in your current decision to prevent Commissioner Gorelick from giving public testimony, we were particularly interested to learn that the Commission has, in fact, already received testimony from Commissioner Gorelick, although only in private, and we presume not under oath. You state in your letter: "We have interviewed in private over 1000 individuals, including officials past and present, and including Commissioner Gorelick." As part of your rationale for shielding the former Deputy Attorney General from public testimony you also state in your letter: "On the subject of Justice and FBI policies, we called former Attorney General Reno, Attorney General Ashcroft, and the past and present Directors of the FBI. We did not seek public testimony in these investigative hearings from former Deputy Attorney Generals Heymann, Gorelick, Holder or Thompson." However, we must call to your attention that on December 8, 2003 the former Deputy Attorney Genera) Thompson not only testified, and testified about the so-called "wall", but was also questioned by Commissioner Gorelick.

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As the record has already made clear, there are significant unresolved differences in the public statements of various individuals involved in this issue. For example: Attorney General Ashcroft: "The basic architecture for the wall in the 1995 guidelines was contained in a classified memorandum entitled "Instructions for Separation of Certain Foreign Counterintelligence and Criminal Investigations"...the author of this memorandum is a member of this Commission, (Testimony before the 9-11 Commission, April 13, 2004) Commissioner Gorelick: " I did not invent the wall..." (Washington Post opinion column April 18,2004)

Attorney General Ashcroft; "The single greatest structural cause for the September IIthproblem was the wall that segregated or separated criminal investigators and intelligence agents." "The 1995 guidelines and the procedures developed around them imposed draconian barriers, barriers between the law enforcement and intelligence communities". (Testimony before the 9-11 Commission, April 13, 2004) Commissioner Gorelick: ..."nothing in the 1995 guidelines prevented the sharing of information between criminal and intelligence investigators." (Washington Post opinion column April 18, 2004)

It is apparent to all who have reviewed these issues that the existence, expansion, and various attempts to reform the so-called "wall" were an on-going debate and struggle from the mid-1990s until after passage of the Patriot Act. The Commission has correctly identified as a core challenge to the development of a preventive counter-terrorism strategy the impediments limiting communications between agents conducting intelligence investigations and criminal investigative and prosecution units of the Department of Justice. Conflicting versions of who created the wall, how the wall was created, when it was created, and what dots were not connected because of it, all require that the Commission pursue fully the facts, We believe, as was the case of Dr. Rice, that public testimony by the decisionmakers best serves the Commission, the public, and ultimately Congress as we evaluate any recommendations you should make.

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Page 3 - National Commission on Terrorist Attacks As Commissioner Hamilton noted in reference to Dr. Rice, " there's another whole dimension here, and that dimension is the public dimension — and I think the American public would benefit from hearing Condi Rice testify under oath." (CNN.com March 29,2004) And, as Ms. Gorelick stated in an interview also discussing the importance of having the public testimony of National Security Advisor Rice, "she has a lot to contribute to the public understanding of what happened"; and "I think, and I think we all think, that it's important for her to make her statements in public". We believe these words are equally compelling in this case. Unless Ms. Gorelick provides public testimony, like other key officials have done, there will be a significant gap of knowledge as far as what the public will know about its government prior to 911. We urge you to reconsider your decision, Sincerely,

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Congress of tfje (Hntteb State* $BaSf)ington, JBC 20515 April 26, 2004 The Honorable Jamie Gorelick Commissioner National Commission on Terrorist Attacks Upon the United States 301 7th Street, SW Room 5 125 Washington, DC 20407 Dear Ms. Gorelick: Recent revelations about your involvement in the Clinton-Reno Justice Department's efforts in the war on terror raise serious concerns about whether you can review the circumstances and events leading up to September 1 1, 2001, in a fair and impartial manner. Furthermore, recent comments that you have made publicly seem inconsistent with testimony you gave before Congress in October 1995. Moreover, a review of the record indicates that there clearly were steps you and Attorney General Reno could have taken to better prepare the Federal Bureau of Investigation (FBI) and the Department of Justice (DOT) to meet the challenges of international terrorism. Because you have decided that your prior role as the point-person on counterterrorism efforts in the Clinton-Reno Justice Department does not raise a conflict and because there is no indication that the National Commission on Terrorist Attacks Upon the United States is prepared to call you as a witness to testify publicly about these important issues, we request that you respond to the following questions which will help the Congress and the American people understand some aspects of your involvement in counterterrorism issues during your tenure as Deputy Attorney General. 1)

In your October 25, 1995, testimony before the Senate Select Committee on Intelligence, you stated that Attorney General Reno "identified the need to have a better relationship between law enforcement and intelligence at the beginning of her administration. When I came over to be her Deputy, she asked me to take this on as a special project . . . ." What specifically did you do as the point person at the DOJ to facilitate information sharing between intelligence and law enforcement?

2)

During that same testimony, you testified that DOJ was developing an FBI Counterterrorism Center that would "establish a real-time analytical capability that will synthesize all-source intelligence____" We now know that such an intelligence analytic capability within the FBI was never established. Why did you and Attorney General Reno fail to establish this "real-time analytical capability within the FBI?"

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In your April 14,2004, interview with CNN's Wolf Blitzer, you disclaimed any responsibility for Attorney General Reno's July 19,1995, Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations ("... basically the policy that was put out in the mid nineties, which I didn't sign, wasn't my policy by the way, it was the attorney general's policy ")(emphasis added). A)

Would you have the American people believe that, as Deputy Attorney General, who had as her "special project" the responsibility for developing "a better relationship between law enforcement and intelligence," you had nothing to do with Attorney General Reno's July 19,1995 policy?

B)

What specifically was your involvement in the development of this July 19,1995 policy?

C)

Did you recommend to the Attorney General that she sign and issue this July 19, 1995 policy?

D)

Why did Attorney General Reno, while you served as her deputy, formalize, institutionalize, and heighten the wall preventing information sharing between law enforcement and intelligence officials?

In your April 18, 2004 Washington Post editorial, you indicated that you "did not invent the 'wall,' which is not a wall but a set of procedures implementing a 1978 statute (the Foreign Intelligence Surveillance Act, or FISA) and a federal court decisions interpreting it." You further indicated that "[t]he Patriot Act, enacted after 9/11, together with an unprecedented appeal to the Foreign Intelligence Surveillance Court of Review, paved the way for the Justice Department to permit largely unrestricted information-sharing between intelligence and criminal investigators because the law changed the legal standard that had given rise to the guidelines in the first place." However, in your October 1995 testimony before the Senate Select Committee on Intelligence testimony, you stated that "the inevitable intersection between the activities of intelligence and law enforcement agencies requires that we take steps to improve the cooperation and working relationships of the two communities, while staying mindful of their separate missions, authorities, and legal constraints." You further testified that "we do not think any changes in the law are needed at this time. We believe that the laws and Executive Orders governing the intelligence-law enforcement relationship are sufficiently expansive to allow a significant amount of information sharing and cooperation." A)

In retrospect, do you still believe that the laws and other rules in effect in 1995 were sufficient to allow and promote necessary information sharing between the intelligence and law enforcement community?

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Could you or should you have taken additional steps to facilitate information sharing between the intelligence and law-enforcement communities? Do you believe Congress was right when it broke down the wall with the Patriot Act to allow greater information sharing?

In that same testimony before the Senate Select Committee on Intelligence, you testified that "we must develop new methods to improve the coordination and cooperation between the two [law enforcement and intelligence] communities so that each is able to perform its functions as efficiently and effectively as possible, consistent with the Constitution and existing statutes and Executive Orders." You went on to state that "what we need to develop are clearer 'rules of the road' to maximize the permitted amount of information sharing and coordination...." A)

As the point person on these issues for the Clinton/Reno Justice Department, why didn't you "develop new methods to improve the coordination and cooperation between the two [law enforcement and intelligence] communities" and "establish 'clearer rules of the road' to maximize the permitted amount of information sharing and coordination"?

B)

Given that Attorney General Reno's Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations were promulgated in July 1995 and you testified in October 1995 about what steps needed to be taken prospectively (i.e. develop clearer "rules of the road"), what specific aspects of Attorney General Reno's procedures did you believe in October 1995 were in need of clarification? What steps did you take personally to clarify these rules of the road?

C) Given that you recognized and believed in October 1995 that "new methods to improve coordination and cooperation" needed to be developed, what aspects of any procedure, rule, or policy in place at that time inhibited such coordination and cooperation and what did you do to rectify this egregious problem? Thank you for your attention to these important questions. We look forward to receiving your full and complete responses no later than May 3, 2004.

Sincerely,

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Signatories: ToddAkin Joe Barton Judy Biggert Mike Bilirakis Marsha Blackburn Roy Blunt Henry Bonilla Kevin Brady Ginny Brown-Waite Michael Burgess Dan Burton Dave Camp Eric Cantor John Carter Steve Chabot Howard Coble John Culberson Duke Cunningham Lincoln Diaz-Balart Mario Diaz-Balart John Doolittle Phil English Tom Feeney J. Randy Forbes Trent Franks Rodney Frelinghuysen Elton Gallegly Bob Goodlatte Kay Granger Ralph Hall Melissa Hart Doc Hastings J. D. Hayworth Joel Hefley Jeb Hensarling Peter Hoekstra John Hostettler Johnny Isakson Steve King Jack Kingston Steven LaTourette Jerry Lewis Frank LoBiondo Frank Lucas

Donald Manzullo Jim McCrery John McHugh Candice Miller George Nethercutt, Jr. Randy Neugebauer Charlie Norwood Ron Paul Mike Pense George Radanovich Jim Ramstad Hal Rogers Dana Rohrabacher E. Clay Shaw, Jr. Pete Sessions Lamar Smith Mark Souder Cliff Stearns Tom Tancredo Lee Terry Mac Thornberry Pat Tiberi Todd Tihart James Walsh Jerry Weller D. Weldon C. Weldon Jerry Weller Ed Whitfield Roger Wicker Joe Wilson

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«OLnnnress nf the »-**«** States &j^/?ss/ * ' ' tfje llntten 20515 April 23, 2004

Chairman Thomas H. Kean National Commission on Terrorist Attacks Upon the United States 301 7th Street, SW Room 5125 Washington, DC 20407

Dear Chairman Kean, We are writing regarding the growing number of questions relating to Commissioner Gorelick's ability to serve as an impartial participant on this Commission. With the release of a recently declassified memo, in conjunction with testimony of Ms. Gorelick before various Congressional Committees in her role as Deputy Attorney General, we believe Ms. Gorelick should give testimony under oath, in public, to the Commission. The divide between the testimony of Attorney General Ashcroft and the policies set forth by Ms. Gorelick when she was Deputy Attorney General demands a full and public explanation. We believe this divide is near, if not central to, the Commission's deliberations. Further, in writing her editorial in the Washington Post, Ms. Gorelick has demonstrated that she is clearly not only unable to serve as a disinterested party, but that she has a personal self interest in the final outcome of this panel's report. Simply recusing herself from her activities will not suffice. Ms. Gorelick must step down. She must submit the policies she promulgated while at the Justice Department to the same scrutiny that other essential witnesses have faced. How can she comment on the failings of our intelligence and law enforcement communities if her policies influenced those failings? We created this commission to assess our weaknesses and to make recommendations. To that end, we need to continue the tough, honest questioning that has been the hallmark of these hearings. If Ms. Gorelick refuses to step aside and submit herself under oath to questioning, then the outcome of this commission must be looked at in a different light. Without her testimony, we would have to ask ourselves what we will not know from what now seems destined to be an incomplete record. Knowing what we now know about Ms. Gorelick's policies, we must demand she testify for them, if only to clear up the charges brought by Attorney General Ashcroft that her policies were to blame. There are many questions that remain to be answered. In short, why is Ms. Gorelick writing editorials when she should be testifying? Why will she not submit to the same questioning that the current Attorney General, and other current and former officials have? If the commission, or the press, or anyone in a

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position to object knew about Ms. Gorelick's memo, why was she permitted to join the commission— instead of the witness list? Did Ms. Gorelick actually heighten the "wall"? And if so, what impact, if any, did her policies have on 9/11? Ms. Gorelick must answer the growing number of relevant and technical questions, not in print, but under oath. Ms. Gorelick says she has made all relevant opinions and briefs available to the commission. However, the Commission would not accept this reply from sitting National Security Director Rice and they most definitely should not accept this excuse from one of their own. Ms. Gorelick clearly believes she is serving the country. If Ms. Gorelick truly believes, like others, she did everything she could to prevent a terrorist attack, she should be willing to testify in public. We look forward to your reply. Sincerely,

AON ON jv.

Thomas H. Kean CHAIR

Lee H. Hamilton VICE CHAIR Richard Ben-Veniste

April 23,2004

Senator Christopher S. Bond United States Senate Washington, #020510-2503

Fred F. Fielding Jamie S. Gorelick Slade Gorton Bob Kerrey John F. Lehman Timothy J. Roemer

Dear Sen; Thank you for your letter of April 22•>nd na. We appreciate your support for the work of the Commission. We agree with you about the importance of what our mandate requires: a "full and complete accounting" of the circumstances surrounding the attacks, and an investigation of relevant facts and circumstances, including "any relevant legislation, Executive order, regulation, plan, policy, practice, or procedure."

James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

We have interviewed in private over 1000 individuals, including officials past and present, and including Commissioner Gorelick. She brought valuable information to bear on the question both you and we seek to understand and address: the procedures affecting the relationship between criminal and intelligence investigations (the so-called "wall"). She provided us important background on this issue during her period as Deputy Attorney General (March 1994-March 1997). In our investigative hearings this year we have called as public witnesses the most senior accountable official for the topics in question. On the subject of Justice and FBI policies, we called former Attorney General Reno, Attorney General Ashcroft, and the past and present Directors of the FBI. We did not seek public testimony in these investigative hearings from former Deputy Attorneys General Heymann, Gorelick, Holder, or Thompson. We have sought and received private testimony from deputies if they served in the four years before 9/11. Apart from Deputy Attorney General Gorelick, who asked to be interviewed, we have not seen it necessary to interview Deputies from other Cabinet Departments who served solely in the first term of the Clinton Administration or in the administration of George H.W. Bush. In other words, we believe we have handled the issue of public testimony in a nonpartisan, consistent way. As you note, the Commission has spent a good deal of effort investigating the wall issue, and we believe we have a good understanding of its origins, development and the problems that ensued. Commissioner Gorelick, through her

301 7th Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-llcommission.gov

26 Federal Plaza Suite 13-100 New York, NY 10278 T 212.264.1505 F 212.264.1595

Senator Christopher S. Bond April 23, 2004 Page 2

interview, has helped to improve our understanding of the "wall" and the problems with it. She is of course recused from any aspect of the Commission's work that involves investigation or evaluation of this or any other aspect of her government service. We provide these details so that each of you can feel confident that the Commission is conducting its business with dispassionate professionalism. If you remain concerned, please give either of us a call. We would welcome the opportunity to address your questions. Putting Commissioner Gorelick on the public witness stand might satisfy some concerns at the expense of creating new ones. Singling her out for special treatment in either direction would undermine the very credibility you know we must protect. We believe we are still on course to present you and your colleagues with a strong and credible report. We look forward to working with you to win your support for the recommendations we will make. With best regards,

Thomas H. Kean Chair

cc:

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Lee H. Hamilton Vice Chair

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Saxby Chambliss Trent Lott

Conrad Burns Bob Bennett Pete Domenici Ted Stevens Mitch McConnell John Cornyn Norm Coleman Don Nickles

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CHRISTOPHER S. BOND MISSOURI

Bnitd States WASHINGTON, DC 20510-2503

April 22, 2004 Thomas H. Kean Chair Lcc H. Hamilton Vice Chair National Commission on Terrorist Attacks Upon the United States 301 7l" St., SW Washington, DC 20407 Dear Chairman Kcan and Vice-Chairman Hamilton: Among the purposes of the National Commission on Terrorist Attacks Upon the United States (Commission) is to deliver to the American people a full and complete accounting on the extent of our preparedness for the attacks. A stated function of the Commission is to investigate any relevant plan, policy or practice relating to intelligence and law enforcement agencies and identify, review and evaluate the lessons learned from the attacks regarding the structure of the federal government. To complete this mandate, it is imperative that Commissioner and ibrmcr Deputy Attorney General, Jamie Gorelick, testify before the Commission on her work while at the Department of Justice and her knowledge on the issue of policies on the relationship between intelligence and law enforcement agencies. In testimony before the United States Senate Committee on Intelligence, on October 25, 1995, then Deputy Attorney General Gorelick testified on the challenges facing the relationship between law enforcement and intelligence gathering functions of the federal government. Ms. Gorelick stated before the committee that at the direction of Attorney General Reno, she took on improving the relationship between law enforcement and intelligence as a "special project" to prepare the Justice Department to confront the emergence of transnational problems with profound implications for national security, such as terrorism. At the lime of the hearing, Ms. Gorelick stated she had been working for many months on a number of initiatives to address the inevitable intersection between the activities of intelligence and law enforcement agencies, including the difficult issue of sharing of information between the two. The Commission has correctly identified as a core challenge,to the US developing a preventive counter terrorism strategy the impediments limiting communication between agents conducting intelligence investigations and criminal investigative and prosecution units of the Department of Justice. As the staff report notes, "this separation of intelligence from criminal investigations has come to be known as the 'wall'". The report goes on to note, "the wall requirement came to be interpreted by the Justice Department and the Foreign Intelligence Surveillance Act court as imposing an increasingly stringent barrier to communications between

FBI intelligence agents and criminal prosecutors". In her testimony before the Intelligence Committee, Ms. Gorelick describes a deliberate, in-depth process of many months within the Justice Department to dissect this problem and formulate a response. In response, she describes a number of initiatives pursued by the Justice Department, including "an inter-community training plan for prosecutors, law enforcement agents and Intelligence Community personnel that will improve each community's understanding of the roles, missions and authorities for the other community". Justice also, it was noted, was developing "new procedures to improve law enforcement's ability to use foreign intelligence to shape policy and suggest topics for strategic foreign intelligence gathering". It is imperative the committee explore with Ms. Gorelick these many initiatives and procedures pursued at her direction and any analysis leading to their formulation. It will certainly advance the work of the Commission to determine if the initiatives permitted law enforcement to receive critical information with any regularity and if the inter-community program and other initiatives were successful in their goals. The Commission must also explore if the Justice Department's posture promoted enhanced national security by enabling agents on the criminal and intelligence side or if it limited terrorism prevention. If the policy proved to be limiting, the committee must examine upon what grounds the recommendations were made and the extent to which they were balanced against national security considerations. Commissioner Gorelick has made many important contributions to the fight against terrorists, including advocating additional crimes for terrorism and increased sentences for terrorist activities. Her anti-terrorism activities while at the Justice Department were extensive. As she noted before the committee, these are issues she had "been spending a lot of my time on at the direction of the Attorney General". Therefore, it is our firm belief that any committee report or recommendations will be incomplete without public testimony by Ms. Gorelick about her activities while serving as Deputy Attorney General. Thank you for your attention, we look forward to the Commission setting a date for the appearance. Sincerely,

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Dan Marcus From: Sent: To: Subject:

Jamie Gorelick Thursday, April 22, 2004 6:01 AM Al Felzenberg; Dan Marcus Fw: HereVs the Washington Times piece...

Importance:

High

Are we in the right place substantively on the scope of the recusal? with what we did on Philip's recusal?

Is this consistent

Sent from my BlackBerry Wireless Handheld Jamie Gorelick Wilmer Cutler Pickering LLP 2445 M Street, NW Washington, DC 20037 (202) 663-6500 Original Message From: myron marlin <[email protected]> To: Gorelick, Jamie <Jamie.GorelickQwilmer.com>; Moss, Randolph Sent: Thu Apr 22 01:24:50 2004 Subject: Here\'s the Washington Times piece... myron marlin has sent you an article from The Washington Times. myron marlin's comments: The article conveys a sense of surprise that Jamie will actually partake in the drafting of portions of the report. Geez. GORELICK ALLOWED TO DRAFT REPORT By Stephen Dinan and Charles Hurt THE WASHINGTON TIMES September 11 some Clinton final report while in the

commission member Jamie S. Gorelick, who recused herself from questioning administration officials last week, still can help draft parts of the board's on the "wall" between intelligence and law enforcement that she defended Clinton Justice Department.

Al Felzenberg, spokesman for the commission, said Ms. Gorelick's recusal applies to the time she was deputy attorney general at the Justice Department, so she is free to take part in the investigation and drafting of the report for anything that happened after she left. That, he said, includes the legal barrier known as "the wall," which prevented the sharing of information between law-enforcement and intelligence officials. "The wall as it existed after she left, the wall as it existed in the beginning of the Bush administration, she's perfectly free to ask questions about," Mr. Felzenberg said. Faced with her refusal to resign and what some of them have called a "circus" atmosphere at recent commission meetings, Republicans in the House, just back from a twoweek recess, are stepping up their criticism. At the weekly meeting of the House Republican Conference yesterday, Majority Leader Tom DeLay of Texas urged his colleagues to take the case to the public. And many of them already are doing that. "The commission findings need to have truth and credibility, and with her remaining on the commission, that will not be the end result," said Rep. Ginny Brown-Waite, Florida Republican. "For her to recuse herself on several issues still does not answer what I think most Americans want to know - and that is what she knows." 1

And Rep. Jack Kingston, Georgia Republican, said the commission's members haven't impressed anyone. "The commission is a reunion of political has-beens who haven't had face time since 'Seinfeld1 was a weekly show," he said. "In their scramble to make the evening news, they've turned this grave matter into a get-even-for-Monica investigation - a switch the American people see right through." Attorney General John Ashcroft last week released a memo that Ms. Gorelick wrote in 1995, which he said showed she was responsible for bolstering the wall, which he said was a critical problem that led to the September 11 terrorist attacks. Republicans in Congress immediately began calling for her to step down entirely. Ms. Gorelick, the panel's Republican chairman and its Democratic vice chairman have rejected those calls, saying her recusals are enough. "Commissioners should not be investigating or judging themselves. Nor, should they be looking back and judging any decisions that were made during their time in government by the agency where they worked. I plan to adhere to that policy," she said. The commission's policy calls on members and staff not to lead interviews of former supervisors or employees that they supervised. It also calls on them to recuse themselves when they have a financial interest at stake and "from investigating work they performed in prior government service." So far, Ms. Gorelick1s recusal publicly has meant not questioning her boss at the Justice Department from 1994 to 1997, former Attorney General Janet Reno, or former FBI Director Louis J. Freeh. Mr. Felzenberg said she probably will be able to help draft the report's recommendations concerning the "wall," although he said it's probably two months too early to address that question. "I don't see how a conflict, if it's not a financial nature, affects the future," he said. Mark R. Levin, president of the Landmark Legal Foundation, which called for Ms. Gorelick's resignation even before the most recent revelations, said that's not enough. "The fact that Jamie Gorelick recuses herself from a handful of cases doesn't remove her influence," he said. "No number of recusals - whether recusals from questioning witnesses or from subject areas - can save her from her conflict." And Andrew C. McCarthy, a former federal prosecutor who has written several articles critiquing Ms. Gorelick's role on the commission, said her conflict is more about what she was involved in than the time she was there. "Issues, I think, transcend time frames," he said. Rep. Peter Hoekstra, Michigan Republican, said he was surprised that Ms. Gorelick was on the commission in the first place because of her role in the Clinton administration. "Obviously, she's got a vested interest in this to make sure this commission clearly comes out and blames somebody in some organization other [than] - and some policies other than - the ones she was integral in formulating," he said. He said partisanship on the commission means members are in danger of squandering a chance to contribute to the discussion of domestic intelligence gathering and whether there should be a Cabinet-level position coordinating all intelligence. But key Democrats, asked to what extent she should recuse herself, said none at all. "Zero," said House Minority Whip Steny H. Hoyer, Maryland Democrat, and Senate Minority Leader Tom Daschle, South Dakota Democrat, said, "None."

"I don't think there is a member on there who hasn't made some statements about national security," Mr. Hoyer said. "And Ms. Gorelick is obviously a very capable individual. And her experience clearly adds something to the mix." Paul C. Light, a senior fellow in governance studies at the Brookings Institution, said at this point, she should participate in everything. "The decision to put her on the commission was the key decision. Once she's on the commission, I don't see why she shouldn't participate in all the decisions," Mr. Light said.

This article was mailed from The Washington Times (http:77www.washingtontimes.com/national720040422-121826-9517r.htm) For more great articles, visit us at http://www.washingtontimes.com Copyright (c) 2004 News World Communications, Inc. All rights reserved.

Inside Politics - The Washington Times: Inside Politics - April 21, 2004

Page 1

Conflicts galore Under the September 11 commission's rules, its general counsel decides whether a member such as Jamie S. Gorelick should recuse herself or be disqualified, Andrew C. McCarthy writes at National Review Online (www.nationalreview.com). "Now, those who set up the commission took great pains to ensure its membership was an even split of Republicans and Democrats; and the commission's staff, too, is a studiously bipartisan mix. But, alas, there is only one general counsel, and he is — surprise! — a Democrat who, like Gorelick, was a high-ranking Clinton operative. Their careers, in fact, are a study in overlap," says Mr. McCarthy, a former chief assistant U.S. attorney who prosecuted Sheik Omar Abdel Rahman and 11 others. "The general counsel is Daniel Marcus, and, as the commission's Web site details, his Democratic roots run deep and prominent... After that, Marcus was for many years, until 1998, a partner — and ultimately part of the management committee — at the Washington law firm of Wilmer, Cutler & Pickering. That is the firm at which Gorelick became a partner in 2003. "Marcus had left the firm by then, in 1998 to be precise. That was when, during the high pitch of the impeachment scandal, President Clinton made him senior counsel in the White House Counsel's Office — an entity, you may recall, whose sense of the defensible when it came to behavior by public officials was somewhat elastic. "By the next year, 1999, Clinton had survived. The [Janet] Reno Justice Department, however, had experienced the turnover of high-level officials that is common in a two-term administration. Gorelick, for example, had left after three years as deputy attorney general in mid-1997 (to become vice chair at Fannie Mae). To fill some of the voids, Clinton dispatched none other than Daniel Marcus to Justice, where he served until the end of the administration, eventually as Reno's associate attorney general." "I would not hold my breath waiting for Marcus to tell Gorelick that her conflict is disqualifying."

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WITHDRAWAL NOTICE RG: 148 Box: 00002 Series: Copies: 1

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ACCESS RESTRICTED The item identified below has been withdrawn from this file: Folder Title: [Jamie] Gorelick Document Date: 01-21-2004 Document Type: Memo of Conversation From: To: Subject:

Telephone Interview of Michael Vatis

In the review of this file this item was removed because access to it is restricted. Restrictions on records in the National Archives are stated in general and specific record group restriction statements which are available for examination.

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April 16,2004 Thomas H. Kean CHAIR

Lee H. Hamikon VICE CHAIR

Richard Ben-Veniste

The Honorable Tom DeLay Majority Leader U.S. House of Representatives H-107 The Capitol Washington, DC 20525-6502

Fred F. Fielding Jamie S. Gorelick Slade Gorton Bob Kerrey John F. Lehman TimothyJ. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

Dear Mr. Majority Leader: You and I are in complete agreement. The National Commission on Terrorist Attacks Upon the United States is dedicated to a full and complete accounting of the events surrounding the September 11 attacks. We are in full accord with your expressed view: "The commission's work is too important to be undermined by partisanship, self promotion, or conflicts of interest." The Commission has held public hearings because of our belief that the American people need to be brought into the discovery of the facts. The Commission can make a difference only if the American people understand our work and if they and their elected representatives decide, after review of our final report, to support our recommendations. At the urging of the families and others, the Commission has insisted on transparency. We recognize that not all Members supported the creation of the Commission. Our answer to our critics can only be the quality of our report. It is a hallmark of our great democracy that we can have open debate. Sometimes the public exchanges are pointed, but no more so than in the Congress itself. Out of debate and discussion, we are convinced, better policies will emerge. There is no other country in the world where the process of government is so open and accountable. There is no other country in the world that would allow an open investigation of this kind. It is for this reason that the Commission has such broad support among the American people. It is this tradition of freedom that our troops around the world defend, and we salute them. Our 10 Commissioners, five Republicans and five Democrats, have deep respect for each other. We seldom have votes; none of our votes have been cast on partisan lines. All of us are striving to achieve a set of recommendations that can win the support of all Commissioners. We are committed as well to the integrity of our work. The Commission has clear written guidelines on conflicts of interest. The guidelines state: Commissioners and staff will recuse themselves from investigating work they performed in prior government service. All Commissioners and staff adhere to these guidelines. TEL (202) 331-4060 FAX (202) 296-5545 www.9-11 rnmmksinn.cnv

The Honorable Tom DeLay April 16, 2004 Page 2

As you mention Commissioner Gorelick, we would like to inform you that she has complied fully with our recusal policy. As Deputy Attorney General from 1994 until early 1997, she was involved with a number of actions relating to the Justice Department's established policies, which had evolved in the 1980s, with respect to separating intelligence and criminal investigations. These include the memorandum cited in Attorney General Ashcroft's testimony, and the 1995 Attorney General Guidelines. These guidelines were reaffirmed in the Bush administration by Deputy Attorney General Thompson in August 2001 and remained in effect until the enactment of the USA PATRIOT Act, after 9/11. Commissioner Gorelick has recused herself from the Commission's work on any of her decisions or actions as Deputy Attorney General. We have profound respect for the Congress of the United States. My father served for twenty years in Congress; the Vice Chair served in Congress for thirty-four years. Nine Commissioners were appointed by Congress; four served in Congress. The authority for the Commission, its funds, and the extension of its existence for sixty days, came from the Congress. Our recommendations will require the support of the Congress. We have always welcomed the input we have received from Members of Congress of both parties. We are dedicated to continuing to work with you closely on our most important project—to fulfill our mandate and make America safer and more secure. As you state, "We are all in this together." When you or one of your colleagues have further thoughts, please pick up the phone, and let's talk about it. With best regards,

Thomas H. Kean Chair

WITH DRAWAL NOTICE RG: 148 Box: 00002 Series: Copies: 1

Folder: 0001 Document: 15 Dan Marcus Files Pages: 3

ACCESS RESTRICTED The item identified below has been withdrawn from this file: Folder Title: [Jamie] Gorelick Document Date: 01-09-2004 Document Type: Memo of Conversation From: To: Subject:

Telephone Interview of Commissioner Jamie Gorelick

In the review of this file this item was removed because access to it is restricted. Restrictions on records in the National Archives are stated in general and specific record group restriction statements which are available for examination.

NND: 221 Withdrawn: 02-25-2008

by:

RETRIEVAL #: 221 00002 0001 15

ILS. Department of Justice The Deputy Attorney General

Washington. D.C. 20530