Man Without Qualities

Saturday, April 24, 2004

Commission Rot: Duck Soup At The Times

The Wall Street Journal analysis demonstrating how preposterous, even scandalous, Jamie Gorelick's service on the 9-11 Commission has become is completely correct:

Ms. Gorelick ... claims she can judge everyone else as a Commissioner because her now famous 1995 memo was no big deal and merely codified existing procedures. Even if we grant her this point, which many others dispute, shouldn't she be required to explain it under oath? What gives her an Olympian exemption?

No serious person on either side of the aisle doubts that the "wall" of separation between intelligence agents and criminal investigators that was memorialized in her memo was a problem. Everyone also now agrees that poor intelligence sharing was one of the key reasons U.S. authorities failed to detect the September 11 plot. We can think of several questions for Ms. Gorelick that would prove far more illuminating than anything that emerged from the Condoleezza Rice show. Such as:

--- Ms. Gorelick, you write in the Washington Post that you did not invent the wall, which you argue was just "a set of procedures implementing a 1978 statute (the Foreign Intelligence Surveillance Act, or FISA)." Yet your 1995 memo to the FBI and World Trade Center bombing prosecutor asked for procedures that "go beyond what is legally required." Is it possible to merely implement the law and at the same time go beyond what it requires?

--- Follow-up: Ms. Gorelick, no doubt you know that when the Ashcroft Justice Department finally challenged guidelines of the type you issued, the FISA Appeals Court agreed with your own 1995 assessment that those guidelines had never been necessary. In other words, the court said we didn't need the Patriot Act to permit greater intelligence sharing than your memo had allowed. Then why write a memo that imposed such restrictions?

These sentiments were succinctly echoed, for example, in a recent, single, lonely letter to the New York Times. But the Times itself has found no need to run an editorial making this clear and obvious point - which is being willfully ignored by Ms. Gorelick, the Commission and most of the liberal establishment.

Yet the New York Times is ultra-sensitive to judicial conflicts-of-interest where such sensitivity serves the political interests of the Times. Indeed, one recent Times editorial calls for Supreme Court to step in and review Justice Antonin Scalia's apparent decision not to recuse himself from Sierra Club's challenge to secrecy surrounding Vice Pres Dick Cheney's task force and formulation of Bush administration's energy policy; suggests overall reappraisal of what kinds of actions by justices are exemplary, borderline or unacceptable.

"Overall reappraisal" is it? That pretty much admits that Justice Scalia's duck hunting trip and subsequent non-recusal did not conflict with existing (non-reappraised) principles. Yet the Times was in conflict-of-interest overdrive on the matter! A separate Times editorial had called for Justice Scalia's recusal in this case on the grounds of the same non-existent "conflict." Yet a third Times op-ed item described a "judge, a seasoned court veteran, [who] sharply criticized Mr. Scalia's judgment, first in going on the trip, and accepting free rides on Air Force Two for himself and two relatives, and then in refusing to step aside when the case challenging the secrecy of Mr. Cheney's energy task force is heard." A fourth Times editorial had also savaged Justice Scalia's non-recusal and agreement to duck hunt. Then there was the inevitable Maureen Dowd quacking on the topic. And there was a completely bizarre Times op-ed by Yale Profs Ian Ayres and Barry Nalebuff pointing out that, of "many ethical questions" raised by Justice Anton Scalia's duck-hunting trip with Vice Pres Cheney, one is in his own memo explaining how he used only half of round-trip airline ticket to get back to Washington, in violation of airline fare rules (!), which supposedly suggests that Justice Scalia may have to recuse himself if an airline pricing case ever reaches Supreme Court. One editorial misstated the standard for judicial recusal, requiring a published correction. Then the Times found room for no fewer than six letters on the momentous duck-recusal issue. That was after the Times had already published yet another duck-recusal letter. And, of course, let's not forget the Times Week in Review recap.

That's fourteen (overtly) editorial items the Times chose to run on the non-existent conflict-of-interest "issues" raised by Justice Scalia's duck hunt. And that doesn't include the Times generally tendentious "reporting" on the great duck-hunt issue of our times! Read all about it here and here and here.

That's at least seventeen distinct items on this great matiere juridique du canard. There was no conflict of interest, at least without overall reappraisal of what kinds of actions by justices are exemplary, borderline or unacceptable (in the words of the Times). But who wants to spoil the fun at the Times?

But where a memorandum by a 9-11 Commission member becomes a central issue in the Commission's own investigation? Conflict? Conflict? That's a conflict? No, no - that's just "baggage." Don't bother the Times with such trivia. They're busy making more Duck Soup! In fact, the Times editorial policy on "conflicts of interest" looks more and more like that sceenplay.

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