Last night I sought in “The second Gorelickian oration” to address the Washington Post’s editorial support of Jamie Gorelick and linked to Andrew McCarthy’s definitive refutation of Gorelick’s earlier Post op-ed.
Today McCarthy performs the same service on the Post’s editorial itself: “Post rallies to Gorelick’s defense.” Here’s a sample of the piece, all of which is mandatory reading. McCarthy begins the discussion with Gorelick’s March 1995 memo, referred to in his first point below:
First, while extremely significant when written, the memo was effectively superseded in July 1995 when the Justice Department’s leadership (principally including Gorelick) adopted procedures formally applying the wall to the entire frontier of intelligence and law enforcement. By the time DOJ was called on to argue its case before the FISA Court of Review seven years later, at issue were the July 1995 procedures, not the paper trail leading up to those procedures. That paper trail, naturally, is a lot more extensive than Gorelick’s March 1995 memo (and should no doubt, given where we are now, be searchingly reviewed).
Now, however, Gorelick’s March 1995 memo is highly relevant to unfolding the thought process that generated intelligence lapse, the key issue being probed by the 9/11 Commission. In it, Gorelick explicitly asserted that the precautionary measures she sought to install, which ultimately became the wall, “go beyond what is legally required…[to] prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation” (Emphasis added).
What this means is straightforward. In 1995, the Justice Department had a choice: It could either maximally promote national security by freeing agents to investigate aggressively to the very limits of what federal law allowed, or it could short national security by compelling agents to be less thorough in order to promote civil liberties for suspected terrorists and increase the chances of prevailing when indicted terrorists inevitably sought to have damning FISA evidence suppressed. (The government is always in a better position when it can impress a federal judge that it has been “reasonable”
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