Thomas H. Kean, Chair
Lee H. Hamilton, Vice Chair
National Commission on Terrorist Attacks Upon the United States
301 7th Street, SW
Washington, DC 20407
Dear Messrs. Kean and Hamilton:
Landmark Legal Foundation, a national public interest law firm that specializes in government accountability, formally requests that the National Commission on Terrorist Attacks Upon the United States ("Commission") request that Ms. Jamie S. Gorelick step aside as a Commission member. Ms. Gorelick is hopelessly conflicted in her role as a Commission member, given the numerous issues about which she has knowledge resulting from her service as Deputy Attorney General of the United States from 1994 to 1997.
As Deputy Attorney General, Ms. Gorelick oversaw the management, budget and policy objectives of the United States Department of Justice, including the Federal Bureau of Investigation ("FBI"). The Department of Justice's and FBI's pre-9/11 activities and functions are a key focus of the Commission, for which Ms. Gorelick should be providing testimony as a material witness. Ms. Gorelick's recusal in questioning former FBI Director Louis Freeh is no substitute for her testimony. Moreover, as a Commission member, Ms. Gorelick will have input into the Commission's findings, including those related to areas involving her past role. If Ms. Gorelick does not immediately step aside, many in the public will undoubtedly conclude that the Commission's work has been compromised.
The Commission knows best what matters Ms. Gorelick was directly involved in as Deputy Attorney General. However, here are a few examples that warrant Ms. Gorelick stepping aside.
Former Chief Assistant United States Attorney Andrew C. McCarthy led the 1995 terrorism prosecution of Sheik Omar Abdel Rahman, among others. Writing in National Review Online, he states:
Additionally, Mr. McCarthy states:
Commissioner Gorelick, as deputy attorney general - the number two official in the Department of Justice - for three years beginning in 1994, was an architect of the government's self-imposed procedural wall, intentionally erected to prevent intelligence agents from pooling information with their law-enforcement counterparts.
But the Justice Department, with Deputy Attorney General Jamie Gorelick in the thick of important policy decisions, did not see it that way. Committed to the bitter end to the law enforcement mindset, and overwrought at the mere possibility of violating the ill-conceived 'primary purpose' test, DOJ made matters significantly worse. It imposed severe procedural barriers against competent intelligence gathering. As described by the FIFSA Court of Review in 2002:
[T]he 1995 Procedures limited contacts between the FBI and [DOJ's] Criminal Division in cases where FISA surveillance or searches were being conducted by the FBI for foreign intelligence (FI) or foreign counterintelligence (FCI) purposes.. ..The procedures state that "the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division's directing or controlling the FI or FCI investigation toward law enforcement objectives.' 1995 Procedures at 2, 6 (emphasis added). Although these procedures provided for significant information sharing and coordination between criminal and FI or FCI investigations, based at least in part on the 'directing or controlling language, they eventually came to be narrowly interpreted within the Department of Justice, and most particularly by [the Justice Department's Office of Intelligence Policy Review (OIPR)], as requiring OIPR to act as a 'wall' to prevent the FBI intelligence officials from communicating with the Criminal Division regarding ongoing FI or FCI investigations? Thus, the focus became t