This is a partial transcript from "Hannity & Colmes", April 15, 2004, that has been edited for clarity.
ALAN COLMES, CO-HOST: Questions about one of the members of the 9/11 commission (search). Democrat Jamie Gorelick (search) was the No. 2 person in the Clinton Justice Department under Janet Reno. Now, some say she should step down because some of the work she did is now being looked at by the commission. Should she?
With us now is Jeff Connaughton from former special assistant counsel to the president under Clinton and former chief U.S. attorney Andrew McCarthy. Good to have you with us.
Let me go to you first. Should Antonin Scalia (search) step down because he's got a conflict with the fact that he's looking at a case with Vice President Cheney with whom he's a friend.
ANDY MCCARTHY, FORMER CHIEF ASSISTANT U.S. ATTORNEY: There are all kinds of conflicts. We have to go to the core of what the fact finding's about, versus the ones that are attendant.
COLMES: She's recused herself now a couple of times on certain issues. Isn't that enough?
MCCARTHY: No, she needs to recuse herself in terms of what the issues are that are crucial that she's involved in. There's no more crucial issue in the 9/11 hearings than intelligence lapses.
COLMES: You're saying she should be a member and she should resign?
MCCARTHY: Yes, I think she's -- and I should say she's a gifted lawyer. She's a fine public servant. She has a lot to say that would be important for the commission to hear, but it shouldn't be...
COLMES: Mr. Connaughton, if that's the standard by which we're going, I guess everybody's got to resign from this commission, right?
JEFF CONNAUGHTON, FORMER ASSISTANT TO COUNSEL TO PRESIDENT: Well, certainly Jamie Gorelick should not resign because the policy that Attorney General Ashcroft sort of threw down like a gauntlet predates the Clinton administration as the reviewing court made clear. It was begun in the 1980's, as Mr. McCarthy's articles have acknowledged.
And what Attorney General Ashcroft did not say is that his own department considered and reaffirmed the very policy about which he is now complaining on August 6, 2001, just one month prior to the attacks.
HANNITY: All right. Let me go to you, Jeff, if I can.
Here's Jamie Gorelick. Now, one of the chief things they're looking at in this commission is the lack of coordination between the FBI (search) and the CIA (search), which we think is one of the major structural failures that led to 9/11.
And what we now know, thanks to John Ashcroft and not this commission, is that the lack of coordination was not by accident. It was not by ignorance. It resulted from a directive by the former deputy attorney general of the United States.
And that person's name is Jamie Gorelick, one of 10 commissioners in this particular case. She's influencing the course of the investigation. She's influencing the findings of the investigation. It is just a ridiculous conflict of interest, and why you are defending her position on here is frankly beyond the pale.
She should not be there. She should be sworn in and start answering questions as to why she put forward this directive. Isn't that true?
CONNAUGHTON: As I was saying, the policy was begun in the 1980's as the reviewing court made clear, and Attorney General Ashcroft did not tell you that his own department affirmed that policy...
HANNITY: Did she or did she not write this memo, this directive? Yes or no, she wrote it?
CONNAUGHTON: She codified a policy that was directed by...
HANNITY: Codified it, extended it beyond what the courts even said was necessary. Isn't that true, sir?
CONNAUGHTON: No, it's not true.
HANNITY: Yes, it is true.
CONNAUGHTON: No, it's not true. What was going on, as Mr. McCarthy makes plain in his article, is that people were over-interpreting and misinterpreting the policy, both under the Clinton administration and the Bush administration because the courts were sticklers about this.
HANNITY: Let me go to Andrew. Andrew, this conflict of interest, this goes to the heart of the vulnerability of 9/11.
MCCARTHY: It goes to the core issue of what the commission is about.
HANNITY: She ought to be sworn in.
MCCARTHY: That's my view.
HANNITY: And put under oath.
MCCARTHY: Let me just react to what Mr. Connaughton said, because you can confuse issues, which people have done here. The policy that was in effect that he 's talking about from the '70s is the FISA law.
What Jamie Gorelick and the Reno Justice Department put in was an excessive barrier on top of that, which was a wall, which meant that I, as the U.S. attorney could talk to al Qaeda...
HANNITY: But you couldn't talk...
MCCARTHY: But I couldn't talk to the FBI counter intelligence.
COLMES: Isn't it true, Mr. McCarthy, that this wall existed in the '80s, existing before Gorelick.
MCCARTHY: No. Absolutely not true.
COLMES: And, Jeff, are you saying...
MCCARTHY: Just flatly wrong.
COLMES: Somebody is not giving us accurate information. Did the wall exist or did it not exist, Jeff, before Gorelick?
CONNAUGHTON: I've read your article, Mr. McCarthy. You acknowledge that the court said that the Justice Department began interpreting the statute this way in the 1980's.
MCCARTHY: No. What the Justice Department did in the 1980's was interpret that there was a primary purpose test. What the Gorelick guidelines did was put a wall on top of the primary...
COLMES: Did Gorelick raise that bar, Jeff?
CONNAUGHTON: Here is what McCarthy says in his article. That it is not so much...
COLMES: Did she raise the bar?
CONNAUGHTON: It was not so much the policy, it was the ethos in the FBI surrounding the policy. In other words, they were misinterpreting it, and you can't blame that on the author of the memo.
COLMES: Isn't it true, Mr. McCarthy, isn't it true that the Ashcroft Justice Department signed on to this very same memo?
MCCARTHY: That means they should be -- they should be...
COLMES: They codified it as well.
MCCARTHY: Right. So they should be questioned about it as witnesses. They shouldn't be -- How would you feel about John Ashcroft (search) as a commissioner?
COLMES: How about the fact that John Lehman (search) served -- John Lehman served with many of the people who are being questioned. Should he recuse himself?
MCCARTHY: It's not about every single conflict of interest. It's about what the core of the 9/11 commission is about, which is intelligence lapses.
COLMES: Is that...
MCCARTHY: She is the architect of a system that assured intelligence failures.
COLMES: That's the key there. The fact that she's not the architect. She took something that was already in existence. She codified it, and then that was also again codified by this administration. To call her the architect, that's just not accurate.
MCCARTHY: That's just wrong. That's not what she did.
COLMES: Jeff, what about that?
CONNAUGHTON: Take the Moussaoui case, for example. I mean, the charge there is that the FBI turned down and the field agents' request to seek a warrant to look at the computer of Mr. Moussaoui. And the policy absolutely does not prevent that. Yet, it was misinterpreted because the FBI got it wrong.
HANNITY: I agree with Zell Miller. Ultimately, this is going to harm the country for unintended consequences and energize our enemies and demoralize our troops, as he said.
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