Mr. Ashcroft's Smear

IN HIS TESTIMONY last week before the Sept. 11 commission, Attorney General John D. Ashcroft loosed a remarkable attack on Jamie S. Gorelick, a commission member who served as deputy attorney general during part of the Clinton administration. The "single greatest structural cause for the September 11th problem," Ashcroft said, "was the wall that segregated or separated criminal investigators and intelligence agents," and the "basic architecture for the wall . . . was contained in a classified memorandum" from 1995 -- which Mr. Ashcroft had conveniently declassified for the hearing. "Full disclosure," he said, "compels me to inform you that the author of this memorandum is a member of the commission" -- that is, Ms. Gorelick. Mr. Ashcroft's allegations, which triggered criticism and demands for her resignation from prominent Republicans, are grossly unfair.

When Ms. Gorelick was named to the commission, critics could have asked whether her Justice Department past should disqualify her from serving on a body that would, among other things, review aspects of her tenure. Yet few raised the concern then; it was understood that the commission would accept a measure of conflict, with Ms. Gorelick and other commissioners, in exchange for expertise. It's a bit late now to suggest that the trade was no good.

And blaming her for the "wall" is absurd in any event. The memo by Ms. Gorelick that Mr. Ashcroft branded as the culprit is not even mentioned in the history of impaired information-sharing that Mr. Ashcroft's department gave to the special court that finally lifted the barriers after Sept. 11, 2001. That court described the wall's origin as "sometime in the 1980s -- the exact moment is shrouded in historical mist." A set of procedures promulgated in 1995 codified the policy of keeping intelligence and law enforcement separate and significantly fortified the wall. But as the Justice Department's brief itself acknowledged, prosecutors knew long before those procedures were announced that they were not to direct intelligence activities or to use intelligence surveillance to develop criminal cases. And the Bush administration explicitly maintained the 1995 procedures before the Sept. 11 attacks. The wall was no individual's fault but a product of years of department practice, judicial opinions and supervision of intelligence surveillance by the Foreign Intelligence Surveillance Court.

In fact, Ms. Gorelick was an advocate of increased collaboration between spies and cops, not greater separation. She pushed to give the court power to authorize physical searches as well as electronic monitoring, and surveillance under the Foreign Intelligence Surveillance Act more than doubled during the Clinton administration. The department was criticized by civil libertarians and others on the left and right alike -- us included -- for the changes that she advanced.

Should she have done more? Neither the political climate nor the courts would have tolerated a dismantling of the wall, which was seen as an essential protection against the civil liberties abuses of the Watergate era. Even after Sept. 11 and the passage of the USA Patriot Act -- a central purpose of which was to facilitate the sharing of information -- the FISA court unanimously reaffirmed key restrictions. It took high-level action by all three branches of government, including an unprecedented appeal to a special review court that had never previously convened, to finally clarify that the wall was a kind of legal myth that never had quite the force that both the department and the lower FISA court had imagined. Pretending that such a deep-seated institutional problem was Ms. Gorelick's single-handed creation should have been beneath the attorney general.