Sen. Gorton's O'Reilly smackdown: “Nothing Jamie Gorelick wrote had the slightest impact on the Department of Defense or its willingness or ability to share intelligence”

On the August 22 edition of Fox News' The O'Reilly Factor, 9-11 commissioner and former senator Slade Gorton (R-WA) forcefully refuted host Bill O'Reilly's false accusations that former deputy attorney general Jamie Gorelick was responsible for purported intelligence failures leading up to the terrorist attacks of September 11, 2001.

O'Reilly falsely claimed that Gorelick's “involvement in building a symbolic wall between U.S. intelligence agencies and those investigating criminal activity” aided in creating “mass confusion among the agencies that are supposed to protect us” before the 9-11 terrorist attacks. That confusion, he suggested, was responsible for the purported failure on the part of Department of Defense officials to pass on to the FBI military intelligence purportedly identifying lead 9-11 hijacker Mohammed Atta.

O'Reilly's suggestion echoed a more specific accusation that he and other conservative commentators had previously made, that a 1995 policy instituted by Gorelick and former Attorney General Janet Reno prohibited the sharing of the purported Atta information. On the August 17 edition of The O'Reilly Factor, O'Reilly claimed Gorelick had made a “mistake” in building this so-called intelligence “wall,” adding, “If she had done the right thing, 9-11 could have been prevented.”

As Media Matters for America has noted, however, the 1995 memo and guidelines produced by the Department of Justice (DOJ) under Reno merely clarified longtime unwritten restrictions on the sharing of information between the FBI's intelligence arm and DOJ's criminal division. The 1995 documents had nothing to do with actions by the military or with the military's ability to share information with other intelligence agencies.

Gorton made this point unequivocally to O'Reilly. Responding to O'Reilly's repetition of the suggestion that Gorelick was somehow responsible for pre-9-11 intelligence failures, Gorton pointed out that “nothing Jamie Gorelick wrote had the slightest impact on the Department of Defense or its willingness or ability to share intelligence information with other intelligence agencies.” In addition, Gorton noted that the wall predated Gorelick and Reno and was actually “created by laws sponsored by the Church Committee [also known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities] back in the 1970s” and “went all the way through until after 9-11 was over.”

Gorton's correction of O'Reilly echoed an August 18 letter to The Washington Times, in which he wrote:

She [Gorelick] had nothing to do with any “wall” between law enforcement and our intelligence agencies. The 1995 Department of Justice guidelines at issue were internal to the Justice Department and were not even sent to any other agency. The guidelines had no effect on the Department of Defense and certainly did not prohibit it from communicating with the FBI, the CIA or anyone else.

From the August 22 edition of Fox News' The O'Reilly Factor:

O'REILLY: Which brings me to former assistant attorney general and 9-11 commissioner Jamie Gorelick. She says we're not telling you the truth about her involvement in building a symbolic wall between U.S. intelligence agencies and those investigating criminal activity. As you may know, former army intelligence officer Anthony Shaffer says his unit, called Able Danger, identified 9-11 hijacker Mohammed Atta as a threat but were prevented from passing on the information to the FBI.

[Video clip]

SHAFFER: To go back in history, back to 2000, yeah, we tried in the summer, fall timeframe, one, the special operations command lawyer said you can't look at this, they're here legally, pretend they don't exist.

O'REILLY: Now Ms. Gorelick says it wasn't her fault, that she was simply enforcing the 1978 Foreign Intelligence Surveillance Act. But U.S. Attorney General Mary Jo White [sic: White was a U.S. attorney] disagreed with Gorelick's aggressive posture on the act and wrote to Janet Reno in 1995, quote: “It's hard to be totally comfortable with instructions to the FBI prohibiting contact with the United States attorney's offices when such prohibitions are not legally required.” Bottom line -- mass confusion among the agencies that are supposed to protect us, confusion aided in part by Jamie Gorelick in my opinion, but I could be wrong. By the way, The Patriot Act knocked down that symbolic wall. And that's the memo.

Now for the top story tonight, Ms. Gorelick has declined to appear on this program, but joining us now from Seattle is former Senator Slade Gorton, who worked with Jamie Gorelick on the 9-11 Commission. So where am I going wrong here, senator?

GORTON: Well, in the first place, you're not going to have something that had anything to do with 9-11 unless there was some intelligence to share. And it's becoming more and more evident that there wasn't any intelligence to share.

O'REILLY: So you don't believe Shaffer?

GORTON: Shaffer?

O'REILLY: You think Shaffer's lying?

GORTON: Shaffer originally said that he told our staff in Afghanistan about Mohammed Atta. He didn't. There were four people there. None of them heard it. Since then, he has agreed that he did not do so .

O'REILLY: All right, well, wait, wait, wait --

GORTON: Now he says --

O'REILLY: Wait, wait --

GORTON: Now he says that he first learned about it from someone else --

O'REILLY: But, Senator, look --

GORTON: .-- in the defense agencies after 9-11. If he learned it after 9-11, how could he have wanted to turn it over to prosecutors in the year 2000?

O'REILLY: Senator, you just heard a sound bite from Colonel Shaffer that was recorded on Friday, three days ago, OK? He flat-out says -- and I don't know whether he's telling the truth or not. I don't know. How do I know? I wasn't there. But he flat-out says that his crew, Able Danger, brought information to the U.S. government that Mohammed Atta in the United States legally -- he came in on a visa, all right -- was a threat and was told to shut up, stuff it. Intelligence can't go over to the FBI so they could surveil him.

GORTON: Well --

O'REILLY: That's what the colonel's saying. And you're saying he's a liar?

GORTON: What we know on the 9-11 Commission is that he told us nothing about Mohammed Atta or anyone else in Afghanistan, but he did tell us about Able Danger. We followed up on Able Danger. We got records about Able Danger from the Department of Defense. It had nothing about Mohammed Atta in it.

O'REILLY: OK. And I believe you. I believe you.

GORTON: Since this has come out, the Defense Department --.

O'REILLY: They issued a statement saying they didn't know anything.

GORTON: -- has been scrambling to see if it has something.

O'REILLY: Absolutely.

GORTON: It has nothing. And as of today, it tells us that the civilian female, whom Colonel Shaffer has as a source, does not corroborate what he has to say.

O'REILLY: OK. And that's all true.

GORTON: There was nothing to share.

O'REILLY: The Defense Department said -- OK. And I believe you. I don't know if I believe the Defense Department or not. That's a bureaucracy. But I believe you. You're an honorable man. You're saying you didn't know. And I believe you. But what I know to be true is that there was a tremendous amount of confusion, from 1995 onward after this crazy act that Janet Reno for some reason in her office made everybody aware of, that intelligence sources overseas were not to brief criminal investigators like the FBI. We know they have an intelligence arm, the criminal investigators. If they got something, it was a violation of people's rights.


O'REILLY: Now you know that as well as I do.

GORTON: No, you have slightly misstated it, but the misstatement is a very important one. They were not to go to U.S. attorneys who were prosecuting cases. There was no limitation on any intelligence agency sharing anything with any other intelligence agency at all. And so if --

O'REILLY: So you think that subtlety was known by all of the investigators?

GORTON: Subtlety? It isn't a remote subtlety.

O'REILLY: I think it was a culture established by Attorney General Reno.


O'REILLY: That don't get involved.


O'REILLY: The overseas people doesn't get involved.

GORTON: There was a policy established by Congress and by judges that you couldn't use intelligence information gotten through one kind of -- you know -- of subpoena or wiretap in criminal prosecutions. It had nothing to do with sharing among agencies. And as you've rightly said, when it was finally taken down, you know, not by Ashcroft who just -- who went along completely with what Jamie Gorelick said, but by The Patriot Act --

O'REILLY: Right.

GORTON: -- that the court still tried to interfere with it until an appeals court finally ended that wall.


GORTON: And today, we aren't getting the kind of cooperation we ought to have.

O'REILLY: I think you and I agree on 90 percent of this issue, but there's one thing we disagree on. And if you think about it overnight, I think you might see my point of view here. I'll put forth where I think you're making your mistake. And then I'll give you the last word. There was a culture created when Janet Reno was attorney general. And we know this. She refused to investigate the Chinese contributions to our political campaigns; the Riyadi family; she refused to get involved with any kind of overseas intelligence, vis-a-vis people on U.S. soil. She flat-out wouldn't do it.

Jamie Gorelick was one of her top deputies who bought into this entirely. The message was sent: If you have stuff overseas, intelligence overseas, don't bother us with it. And I believe that firmly. Senator, I'll give you the last word, sir.

GORTON: We agree on a number of things. I'm no defender of Janet Reno as an attorney general. But what I'm telling you is that the wall was created by laws sponsored by the Church Committee back in the 1970s. And they went all the way through until after 9-11 was over. And that nothing Jamie Gorelick wrote had the slightest impact on the Department of Defense or its willingness or ability to share intelligence information with other intelligence agencies.

O'REILLY: All right. We'll let the audience decide, senator. Always a pleasure. If you see Ms. Gorelick, tell her she's welcome any time on this program. Thank you.