David Schuler, over at The Glittering Eye, has some thoughts about what's really wrong with the 9-11 commission: Too many damn lawyers.
It's been my experience in life that people tend to do what they're trained to do. When confronted with a medical problem we wouldn't be surprised if a surgeon looked for a surgical solution or an internist looked for a non-surgical solution. Why should we be surprised if lawyers view an investigation from the viewpoint of advocacy or prosecution?
I think he's fundamentally correct: the problem with the 9-11 commission may in part be partisanship. It's also, however, in part the fact that most of the commissioners are trained as advocates, not investigators. I remember watching Richard Ben-Veniste's exchanges with Professor Rice and thinking "my, this is a textbook cross-examination: keep the witness off balance, get the answer you want and move on, never allow a speech, and, at all times, control the witness. She'll get plenty of chances to explain herself when her lawyer re-directs."
Too bad that the 9-11 commission is not a trial. Too bad a cross examination is exactly what we don't need.
On a related matter, I agree with whichever conspirator is writing today as "Juan Non-Volokh" that the time has come for Ms. Gorelick to leave the 9-11 commission.
Why should Gorelick leave the commision? Because Asscroft and DeLay attacked her like rabid wolverines and because she's had death threats? Because Rush doesn't approve?
Bah. If Kean and the rest of the GOP Commission members want her to stay, she should stay.* I'm tired of inbred far-right weasels bullying the rest of the country, hiding behing Cross and Flag when called on it.
*And they do.
Posted by: JKC | April 19, 2004 at 01:39 PM
Why should Gorelick leave the commision? Because Asscroft and DeLay attacked her like rabid wolverines and because she's had death threats? Because Rush doesn't approve?
Because her Op-Ed in the Washington post directly challenged the testimony of Ashcroft as inaccurate. By so doing, she's effectively made herself a witness before the Commission. It is an impossible conflict of interest to both serve on the 9-11 Commission and be a witness before the 9-11 Commission.
Put it this way: It's well-established that a lawyer who is a fact witness -- e.g., actually saw a slip-and-fall that caused the law suit -- cannot represent a party in litigation arising from the slip-and-fall. Among other things, his testimony as a witness is highly suspect. The same rule should apply here.
Posted by: von | April 19, 2004 at 02:27 PM
I'll buy your legal argument, von. (I have to- I'm not a lawyer.)
But Gorelick's not the first to sum up Ashcroft's performance as "Liar, liar, pants on fire." And I had the bad luck to hear the AG's opening tirade... er, statement live on NPR.
First time I've ever wanted to reach through a radio and slap someone upside the head.
Posted by: JKC | April 19, 2004 at 03:31 PM
Gorelick says she's not deliberating on stuff that covers her. That's good enough for me, esp. given how nakedly partisan Ashcroft's attack was (G wrote a memo more hawkish than the policy approved pre-9/11 by the Bush AG).
On the RBV exchange with Rice, of course he was pushing her - she'd spent hours on-air pushing her case but he had a limited amount of time, and she was trying to give him the run-around. If he hadn't badgered her, we might think what she said about the 6 Aug PDB had something to do with reality.
Posted by: rilkefan | April 19, 2004 at 03:59 PM
I'll buy your legal argument, von. (I have to- I'm not a lawyer.)
It's not really a legal argument, JKC, so don't defer to me for that reason. Ratherm, I'm trying to make a common-sense argument by analogy to a legal rule of ethics. Bottom line: We don't want there to be even a suggestion of overlap between commissioners and witnesses.
If he hadn't badgered her, we might think what she said about the 6 Aug PDB had something to do with reality.
Don't get me wrong, Rilkefan -- I said RBV's cross-examination was textbook for a reason.
Posted by: von | April 19, 2004 at 04:41 PM
All in all, I'd say Gorelick should stay. The right-wing death threats certainly count as terrorism, if one follows Bush League rules.
And we don't want the terrorists winning now, do we?
Posted by: JKC | April 19, 2004 at 05:29 PM
von, I probably am taking you wrong, for which preemptive apologies, but it seems to me that your post blames the commission, whereas you should be blaming the admin's response to the commission. Recall Kean's description of Clinton's private testimony - "totally frank, totally honest and forthcoming". Imagine if all the witnesses had spoken in such a manner. Given that the admin was dragged to the table kicking and screaming, you'll have to ask me what color pony I want.
Posted by: rilkefan | April 19, 2004 at 05:30 PM
but it seems to me that your post blames the commission, whereas you should be blaming the admin's response to the commission.
I'm really not blaming either; I'm simply saying that I agree with the "Non-Volokh" that we've now come to a point that Gorelick has to go.
Posted by: von | April 19, 2004 at 07:49 PM