THE COMMISSION’S questioning of Ashcroft was awkward, if only because the commission did not have its own copy of the 1995 memo that the attorney general was now suggesting was a major cause of the government’s failure to prevent 9/11.
“Could we have it?” Jim Thompson, the Republican commissioner who would be Ashcroft’s first questioner, asked with exasperation.
“We’ll be glad to provide it to the commission,” Ashcroft replied unhelpfully.
Thompson turned his attention instead to Tom Pickard’s damning allegation. “Acting Director Pickard testified this afternoon that he briefed you twice on al-Qaeda and Osama bin Laden, and when he sought to do so again, you told him you didn’t need to hear from him again. Can you comment on that, please?” he asked.
Ashcroft denied Pickard’s account, insisting that he “never” gave such a direction to the FBI to stop briefing him. “I care greatly about the safety and security of the American people and was very interested in terrorism,” he insisted.
The next Republican questioner was Gorton. He was furious, and he was determined to show—on behalf of his friend Gorelick—how unfair Ashcroft’s attack on her was.
The commission’s staff and several of the commissioners knew all about the larger controversy over “the wall.” As Ashcroft had read out his prepared testimony, the staff had tried frantically to gather documents to help rebut his attack on Gorelick. They found a valuable Justice Department memo dated August 6, 2001, a month before the attacks, in which Deputy Attorney General Larry Thompson, Ashcroft’s number two, had made an explicit order to keep the 1995 regulations in place. On Ashcroft’s behalf, Thompson had effectively endorsed Gorelick’s rules. Gorton was given a copy a few minutes before he questioned Ashcroft.
Gorton glowered at Ashcroft. “I have here a memorandum dated August 6, from Larry Thompson, the fifth line of which reads, ‘The 1995 procedures remain in effect today,’ ” Gorton said. Ashcroft’s Justice Department had had most of 2001 to tear down the wall. So, Gordon asked, “If that wall was so disabling, why was it not destroyed during the course of those eight months?”
Ashcroft insisted that the full Thompson memo had indeed made some changes in the handling of evidence that lowered Gorelick’s “wall.” Thompson’s memo was no endorsement of Gorelick’s rules, he suggested, not convincingly.
Gorton kept pressing. “But it was after August 6, 2001, that Moussaoui was picked up and the decision was made in the FBI that you couldn’t get a warrant to search his computer,” he reminded Ashcroft. So if Thompson had made changes in the procedures “those changes must not have been very significant.”
Ashcroft mostly ducked the point. He said the August 2001 memo would not have applied to Moussaoui because it was meant to deal with clear-up criminal cases, not the sort of immigration charges brought against Moussaoui. But wasn’t Moussaoui’s exactly the sort of case that should have prompted the Justice Department to want to lower the wall before 9/11? Gorton ran out of time to follow up.
ASHCROFT’S CONSERVATIVE supporters on Capitol Hill were ready to help. Within minutes of his testimony, congressional Republicans had rushed to television cameras and issued press releases demanding Gorelick’s resignation from the commission.
The commission had another public hearing scheduled for the next day. In the middle of it, Representative James Sensenbrenner of Wisconsin, the fiery chairman of the House Judiciary Committee, put out a statement to reporters that “Commissioner Gorelick is in the unfair position of trying to address the key issue before the commission when her own actions are central to the events at hand.” He continued: “I believe the commission’s work and independence will be fatally damaged by her continued participation as a commissioner.”
Gorelick got news of Sensenbrenner’s attack as she sat on the dais. Distraught, she left the hearing room to call Tom Daschle, the Senate Democratic leader, to ask for his help in answering the GOP onslaught. She had never faced criticism like this in her career; she was frightened by it.
Tom Kean followed her out of the hearing room, saw her on the phone, and asked her what she was doing.
“I’m calling Daschle,” she said.
Kean tried to comfort her. “You don’t need them to help,” he said. “You need us to help you. We’ll take care of it.”
After the hearings, the commissioners gathered in a private room behind the dais. Kean and Hamilton had made it a practice to hold a news conference after each set of hearings, and this seemed to offer the best chance for the commission to step forward to defend Gorelick. The Republicans were just as angry as the Democrats over what Ashcroft had done, maybe angrier.
“There was universal outrage on the part of all ten people,” Gorton remembered. “The outcome of Ashcroft’s statement was that Jamie Gorelick got nine older brothers.” The five Republicans considered whether they should go out together in front of the cameras to defend Gorelick. But Kean and Hamilton decided it was best that the two of them do it alone.
Asked at the news conference about Sensenbrenner’s call for Gorelick’s resignation, Kean responded with a comment that came across as flip and insulting to the House Judiciary Committee chairman.
“It’s sort of a silly thing—silly statement, I thought,” Kean said. “Commissioner Gorelick has followed the same rules that every other commissioner has had. She’s recused herself from everything that had to do with any action she had. Many members of the commission have served in the government. That’s why they’re so good and they’re so expert in doing their job. They already have knowledge of these areas.”
He continued: “She is in my mind one of the finest members of the commission, one of the hardest-working members of the commission, and, by the way, one of the most nonpartisan and bipartisan members of the commission. So people ought to stay out of our business.”
Kean walked away from the podium hoping he had calmed the situation with such a vigorous defense of Gorelick. He figured this would blow over. He was wrong.
THERE WAS no joy among Ashcroft’s aides as they left the Senate hearing room after the testimony. But there was relief that the attorney general had survived the ordeal.
The White House—the president in particular—had been given advance warning about Ashcroft’s testimony. During his intelligence briefing in the Oval Office with FBI director Robert Mueller that morning, Ashcroft had offered Bush a brief summary of what he was planning to say to the commission at the afternoon hearing; he’d mentioned the Gorelick memo. It was not clear that Bush understood all the implications of what his attorney general was about to do. After the hearing, Ashcroft’s office received calls of congratulation from the White House. Alberto Gonzales in particular was reported to be thrilled. His aides called the attorney general’s office to report that the White House counsel had watched the hearing on television and was so overjoyed at Ashcroft’s attacks on Gorelick that he stood up from his desk and started giving high fives to others in the office.
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OFFICES OF THE LAW FIRM OF WILMER CUTLER & PICKERING
Washington, D.C.
APRIL 2004
The two weeks after John Ashcroft’s testimony had been a nightmare for Jamie Gorelick. Ashcroft’s attacks were the choicest red meat to congressional Republicans and others who had been looking for months for some way to undermine the commission’s credibility. The conservative editorial boards of the New York Post, the Washington Times, and The Wall Street Journal took up the campaign against Gorelick. “Where is the outrage?” the Journal asked in an editorial under the headline GORELICK MUST GO. The editorial suggested that the White House would be within its rights to withhold all cooperation from the commission until Gorelick resigned. “From any reasonably objective point of view, the Gorelick memo has to count as by far the biggest news story so far out of the 9/11 hearings,” the editorial said. Rush Limbaugh made her the daily target of his radio show. “Who are these Clinton people?” Limbaugh asked the day after Ashcroft’s testi
mony. “Gorelick? Clinton? They are sixties relics. These are people who grew up hating the FBI. These are people who gave police officers the name ‘pigs.’ ”
On Capitol Hill, Majority Leader Tom DeLay and House Judiciary Committee chairman James Sensenbrenner took the lead in the Republican assault on Gorelick. A day after Sensenbrenner’s public call for Gorelick’s resignation, DeLay made a broader attack on the investigation, sending a letter to Tom Kean that accused the commission of “partisan mudslinging, circus-atmosphere pyrotechnics and gotcha-style questioning.” The letter, which noted the “growing concern about the recent revelations” concerning Gorelick, was quickly released to reporters by DeLay’s office. With the sort of unsubtle rhetoric that had earned him the nickname “the Hammer,” DeLay accused the commission of putting American troops at risk in Iraq and Afghanistan. The commission’s tactics “serve as dangerous distractions from the global war on terror,” he said. “They undermine our national unity and insult the troops now in harm’s way, to say nothing of those who have already given their lives in this conflict.”
Even if he felt under siege from fellow Republicans, Kean had to laugh at the way Representative Jack Kingston, a Georgia Republican, phrased his insult: “The September 11 commission is a reunion of political has-beens who haven’t had face time since Seinfeld was a weekly show.”
Gorelick could find no humor in any of it, especially after the death threats. The first was phoned in only minutes after Ashcroft stood up from the witness table. Several of the threats were taken seriously by the FBI; the police in her neighborhood in suburban Montgomery County, Maryland, posted armed officers and a bomb-sniffing dog outside her home. Wilmer Cutler, her law firm, offered to hire private guards to keep watch at her office; she declined. The profanity-strewn hate mail received at her office was “ugly, gross stuff.”
The worst moment for Gorelick came when she got a frantic call from her housekeeper, who was in tears. Someone had just called the family’s home and asked if Gorelick’s two children were there; the caller seemed to know that Gorelick had two young children. The housekeeper, not recognizing the voice on the line, said yes. “Well, tell that bitch that I’m going to wait until she and her husband and her kids are all in the house and then blow it up,” the caller said calmly before hanging up the phone. (The call was later traced by police to a pay phone in the Jamaica Plains suburb of Boston; the caller was never identified.) Gorelick called her husband, a pediatrician at Georgetown University Hospital, to rush home (the hospital was much closer to the house) to get the children out “before the bomb goes off.”
This sort of personal attack was something new—and, she admitted, terrifying—to Gorelick, arguably the most successful woman lawyer of her generation in Washington. She was a graduate of Radcliffe and Harvard Law School, and her glittering career path included stops at the Pentagon, where she had been the Defense Department’s general counsel; the Justice Department, where she had been Janet Reno’s top deputy; Wilmer Cutler, one of Washington’s most prestigious law firms, where she was reported to be a seven-figure partner; and now the September 11 commission.
At fifty-three, Gorelick was the definition of a Washington insider, a lawyer who had traveled again and again through the city’s revolving door of public and private jobs. In the government, her skills as a legal tactician and problem solver impressed everyone from the gruff, cigar-chomping generals she had worked with at the Pentagon to President Clinton. She had a winning personal style that mixed hard-as-nails lawyering with an almost maternal concern for her opponents in a negotiation. Other commissioners later recalled how Gorelick had rushed up to put her arm around George Tenet, the former CIA director, as Tenet left the witness table after a day of brutal questioning at one of the commission’s public hearings.
Gorelick had brought order to the chaos at the Justice Department in Clinton’s second term, forcing the sometimes dithering Janet Reno to set priorities for the department. Reno came to appreciate the orderliness of her deputy’s mind; Gorelick was a habitual list maker, a fact that was reflected in her speaking style. Even in casual conversation, Gorelick spoke as if she were reading from a well-written legal brief.
If there was criticism of Gorelick, it was that her political views could shift with the prevailing winds of Washington, that ambition sometimes trumped principle. She was savaged by liberal groups for having drafted the Pentagon’s “don’t ask, don’t tell” policy; gay rights activists and civil liberties groups saw the policy as a sellout given President Clinton’s campaign pledge to allow gays into the military. The attacks stung Gorelick, whose father, a Russian immigrant, and mother, a first-generation American, were committed to liberal causes in the 1950s and 1960s and took young Jamie along to civil rights demonstrations and peace marches as a child.
She had tasted scandal once before, after it was revealed that Fannie Mae, the quasi-public mortgage finance company where she worked as vice chair after leaving the Justice Department in 1997, was accused of cooking its books to produce large bonuses for its executives; Gorelick herself had received millions of dollars in bonuses. Gorelick was never accused of involvement in the wrongdoing, although she dropped any reference to Fannie Mae from her résumé on her law firm’s website for a time.
Gorelick was widely seen as a natural candidate to replace Ashcroft as attorney general if John Kerry defeated Bush in the November election. Her membership on the September 11 commission, and her polished performance when questioning witnesses during the panel’s early public hearings, had burnished her credentials for high appointment in a Kerry administration.
But after Ashcroft’s testimony, all of that seemed at risk. “This was a very scary time,” she said later. “People were whipped up into a frenzy.”
Kean and Hamilton’s initial efforts to defend her had obviously not stopped the attacks. She decided that she would have to try to defend herself, turning to television news shows and to a classic Washington forum for a public official under siege: the op-ed page of The Washington Post. Her op-ed article, entitled “The Truth Behind the Wall,” argued that the point of the 1995 memo was to create procedures to encourage information sharing within the Justice Department, not to shut it down. “I did not invent the ‘wall,’ ” she wrote. “I have worked hard to help the American people understand what happened on Sept. 11,” she wrote. “I intend, with my brethren on the commission, to finish the job.”
But if anything, the attacks grew worse in the days that followed the op-ed, and Gorelick began to draft a resignation letter in her head.
Kean wondered if Ashcroft knew, if he cared, about the “lunacy” that he had unleashed. He responded to Tom DeLay in a letter in which he wrote that the commission’s public deliberations might be “pointed, but no more than in the Congress itself—out of debate and discussion, we are convinced, better policies emerge.” He also answered DeLay’s suggestion that the commission was somehow undermining the morale of American troops. Through an aggressive investigation, the commission was upholding the “tradition of freedom that our troops around the world defend, and we salute them,” Kean said.
Still, Kean feared that Ashcroft and his right-wing allies on Capitol Hill might soon get what they wanted: the commission’s collapse in partisan sniping.
There was one bit of good news, Kean thought. The ten commissioners were unified in their defense of Gorelick, the Republicans seemingly even more outraged than the Democrats about Ashcroft’s attacks. And their eagerness to defend Gorelick had helped them put aside almost all of the divisiveness of the Clarke and Rice hearings. Kean wondered if the commission’s newfound unity would be enough to save it given how fierce the attacks had become. People are really out to destroy us, Kean thought to himself.
LUCKILY FOR the commission and for Gorelick, Ashcroft was about to overplay his hand, and he would do it on the eve of the commission’s long-awaited interview with Bush and Cheney.
On April 28, the day before the Oval Office meeting
, Kean and Hamilton joined several of the other commissioners on a trip to Tampa to tour the headquarters of the United States Central Command, which was overseeing combat operations in Afghanistan and Iraq. On a military plane on the trip home to Washington, the commissioners began to plot their next steps to try to end the furor over Gorelick.
She and some of the others were taken aback by a recommendation from Hamilton, always the conciliator, to dispatch Gorelick to Capitol Hill to defend herself to the Republicans and try to make peace.
“You’ve got to be respectful” to men like DeLay and Sensenbrenner, she remembered Hamilton advising the other commissioners. “No matter how much you disagree with them, sometimes you do something you don’t like. Maybe we should send Jamie up to talk with them.”
Gorton, as angry as any of the Republicans on the commission about the attacks on Gorelick, shot back. “That’s the craziest thing I’ve ever heard of,” he told Hamilton. To Gorton, Hamilton was suggesting appeasement to the malicious congressional Republicans who had stirred this up. The congressional critics, he said, “are not men of goodwill.” He told Gorelick, “Don’t listen to Lee.”
As the plane landed back in Washington, Gorelick’s BlackBerry went off with an urgent message. Ashcroft had done it again: He had just released a new batch of counterterrorism memos from her Justice Department files and posted them on the department’s website. Some of the documents, which had not previously been turned over to the commission, bore her handwritten notes.
Gorelick knew this meant another venomous burst of attacks. Kean and Hamilton recalled that she offered to resign before rushing from the plane to drive home.
“I don’t remember what words I used,” she said later; she could not recall if she had actually threatened to quit the commission at that moment. “But I left in a huff. I just couldn’t stomach this anymore. I just said, ‘This is yours to fix.’ ”
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