Inquiring minds want to know

I want to know why John Ashcroft is not in the dock for lying.

In a pre-emptive strike, which of course the media slavishly reiterated, he declared that all intelligence failures leading up to 9/11, every last little one of them, were the Clinton administration's fault.

"We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies," he said. "Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions and starved for basic information technology."

He also made a point of referring to the fact that Jamie Gorelick, a member of the Commission, was involved in the drafting of the "wall" he was attacking.

This is utter bull. In 1978, Congress enacted the Foreign Intelligence Surveillance Act. Much desired by federal law enforcement, it allowed investigators to obtain special warrants for wiretaps, searches, and other forms of covert surveillance in "national security" or "intelligence" investigations even in the absence of evidence of any criminal activity. All agents had to do was "certify" that the target was somehow connected to "a foreign power."

If such investigations yielded information about criminal activities, it could be used as evidence in a prosecution just like that obtained by a conventional criminal investigation warrant. Because of the obvious potential for abuse - calling what is actually a criminal investigation (or a politically-motivated fishing expedition) an "intelligence" case in order to avoid having to meet the higher standard - courts began to apply a "primary purpose" test to criminal prosecutions arising about of FISA investigations. That is, in order to use evidence gained in an FISA case in a criminal prosecution, prosecutors had to be able to show that the primary purpose of that FISA surveillance was in fact gathering intelligence. If they couldn't, they couldn't use the evidence.

In 1995, then-Deputy Attorney General Jamie Gorelick was involved in a memo providing guidance on procedures to federal agents. Part of that memo urged them to be aware of the difference between FISA and criminal investigations and to be sure to avoid the fact or the appearance of turning the former into the latter - because if they didn't, it could screw up potential prosecutions. Put another way, agents were being told by prosecutors to make sure that FISA cases from which they got information met the "primary purpose" test because "tainted evidence" could kill an entire case.

Far from erecting some kind of arbitrary "wall," the memo "provided for significant information sharing and coordination between criminal and FI or FCI investigations," in the words of an FISA Review Court finding from 2002.

However, what did happen is that the bureaucracy, flopping into CYA mode, started to get into disputes about what could and couldn't be shared. This was a concern for a 9/11 Commission staff report, which

reported Tuesday that an effort to locate eventual 9/11 hijackers Nawaf Alhazmi and Khalid Almihdhar in late August 2001 failed, hampered by disputes over how widely agents could share information and a failure of coordination.

However, in her testimony, Janet Reno said

she did not know of any legal reason the FBI could not share with other agencies information it had about Almihdhar and Alhazmi. ...

And [former FBI Director Louis] Freeh said he recalled "extremely close cooperation" between his agency and the CIA in terrorist investigations.

Freeh, it should be remembered, is someone with no love for the Clinton administration.

In short, the "wall," to the extent it existed at all, was a figment of some bureaucrats' imaginations, not a creation of the law, Jamie Gorelick, or anyone else.

Ashcroft lied.

(Sidebar: A fair amount of the info above about FISA and the memo in question came from an article by Andrew McCarthy, a former chief assistant US attorney. The piece was actually a poorly-concealed attack on Gorelick and Richard Clarke - from the preceding you can tell how lame it was - which was published by National Review Online on the same day that Ashcroft was blaming Gorelick before the Commission, timing which I sure of course obviously how could it be otherwise was purely serendipitous. McCarthy's article is here, my comments on it can be seen here.)

But getting back to Mr. Burntfarm, lying is hardly new to him; this wasn't even the only (or the most obvious) example in his sworn testimony.

Two witnesses - Thomas Pickard, who was acting FBI Director in the summer of 2001, and FBI counterterrorism chief Dale Watson - testified that Ruinedland had shown little if any interest in terrorism or threats of terrorist actions in the months leading up to 9/11.

Pickard said that "in late June and through July, he met with Attorney General Ashcroft once a week," the report says. "He told us that though he initially briefed the attorney general regarding these threats, after two such briefings the attorney general told him he did not want to hear this information anymore." ...

In addition, FBI counterterrorism chief Dale Watson "told us that he almost fell out of his chair" when Ashcroft outlined his budget priorities in May 2001, because the list made no mention of counterterrorism, the commission reported earlier Tuesday....

Pickard confirmed the latter point as well.

In fact, counterterrorism had been listed as the FBI's top priority for the previous three years. But DOJ's May 10, 2001 budget proposal for Fiscal 2002-03 replaced that with reducing gun violence and drug trafficking. Counterterrorism did not make the list. (This, by the way, was exactly one day after Deademberyard told a federal hearing that his highest priority was to "protect citizens from terrorist attacks.")

So here we have two witnesses and the DOJ's own budget request saying terrorism was being downplayed and that Charredfield was basically uninterested in it.

That assessment is buttressed by the fact that

[c]urrent and former F.B.I. officials said that in the months before the Sept. 11 attacks, Mr. Ashcroft weighed whether to approve an elaborate counterterrorism plan that had been conceived with the support of his Clinton administration predecessor, Attorney General Janet Reno.

The plan, known by the code name MAX CAP 05, or Maximum Capacity by 2005, had been assembled by Mr. Watson, the bureau's former counterterror chief, with the help of outside consultants and called for a huge build-up in the F.B.I.'s counterterrorism operations.

On Aug. 20, they said, Mr. Pickard, the acting F.B.I. director, was told by Mr. Ashcroft and his then-deputy at the Justice Department, Robert S. Mueller III, that the budget increases had been rejected.

So reports Tuesday's New York Times)

So what does Turnedtotoastspace say to the Commission? Does he 'fess up or at least offer a mea culpa, a "if we'd only known more" defense? Of course not. First he had DOJ mount

an aggressive, last-minute effort on Monday to persuade the commission to rewrite the parts of the report dealing with Mr. Ashcroft, describing them as one-sided and unfair to him.

Then he had his PR flacks insist that he was all over terrorism, asking "over and over again if there was any evidence of a domestic threat, and he was told over and over again that there was no evidence of one." Hilariously, this same flack, one Mark Corallo,

said that Mr. Ashcroft had not seen the top-secret intelligence briefing report that was presented to President Bush on Aug. 6, 2001, and that referred to an active presence of Al Qaeda in the United States. But Mr. Corallo said the memo would not have made a difference, since it listed "no specific threats" that needed to be addressed.

Apparently, "Bin Laden Determined to Attack in the US" did not amount to any kind of "evidence of a domestic threat."

As for Ashcroft (sorry, out of synonyms), to hear him tell it, everyone else is a bold-faced liar. Of course counterterrorism was his absolutely bar none highest priority. Why, he "reversed" Clinton's "failed" policies. He got no briefing from Clinton's people about terrorism either during or after the transition. Not only did he "never" tell Pickard he didn't want to hear about terrorism, he actually "interrogated" him about it. He didn't turn down budget requests, he advised the counterterrorism people to ask for more! Reno lied. Pickard lied. Watson lied. His own budget lied. And everything is Clinton's - and Jamie Gorelick's - fault. In fact, to hear him tell it, there was no one on the face of this good green Earth more dedicated to fighting, more laser-focused on, terrorism than John Ascorrupt - Asscrack - Ashcroft.

I repeat: Why isn't he in the dock?

Footnote One, The Laughs Just Keep on Coming Dept.: This is from AP's coverage of the hearings:

The panel's report quoted Pickard as saying Ashcroft told him in the summer of 2001 that "he did not want to hear" additional information about possible attacks, and the former FBI acting director confirmed that in his testimony.

But Ashcroft denied it forcefully.

"I did never say to him that I did not want to hear about terrorism," he said, removing his glasses for emphasis.

Oh my gosh! He took off his glasses! Then it must be the truth!

Footnote Two: The Daily Misleader has more on earlier Ashcroft lies, with citations.