A Cautious Man
April 19, 2004
Close Inspection of Who's Telling Who Lies
Apologies in advance, for the long post which follows. I get a little carried away with some long quotes from source documents. But, I really do think that John Ashcroft should be called to account, and asked to explain how his sworn testimony differs from the facts contained in a General Accounting Office (GAO) report from the summer of 2001.

The consequences of Attorney General Ashcroft's reckless disregard for the truth, took a serious turn in the past few days. As noted in a post below, from las Thursday, after Mr. Ashcroft sought (falsely) to assign blame to 9-11 Commissioner Jamie Gorelick for "erecting" a "wall" in 1995, which prevented intelligence officials from communicating with law enforcement personnel, there were a lot of shrill attacks directed at Ms. Gorelick. The latest reports now indicate: "Jamie Gorelick, a member of the commission investigating the terrorist attacks of September 11, 2001, said Saturday that she received death threats this week after a number of conservatives alleged that her former work in the Justice Department may have contributed to failures leading to the attacks." So, with your indulgence, we will briefly review how Ms. Gorelick responded to Mr. Ashcroft's accusations. Then, we will look at a GAO report from 2001, which shows that Mr. Ashcroft's claims are false. Finally, we will revisit Mr. Ashcroft's sworn testimony, which loses all credibility in light of the facts, and can be seen as a craven attempt to deflect blame, resulting in threats against a 9-11 Commission member.

First, Ms. Gorelick has provided a detailed refutation of Ashcroft's allegations. In a piece published this weekend, "The Truth About 'the Wall'", she touches on the fact that it was Ashcroft's Justice Department, in 2001, which took steps to increase implementation of the "wall" (and which, quite possibly, misunderstood the whole point of it) :
[T]he memo I wrote in March 1995 -- which concerns information-sharing in two particular cases, including the original World Trade Center bombing -- permits freer coordination between intelligence and criminal investigators than was subsequently permitted by the 1995 guidelines or the 2001 Thompson memo. The purpose of my memo was to resolve a problem presented to me: facilitating investigations on both the intelligence side and criminal side at the same time. My memo directed agents on both sides to share information -- and, in particular, directed one agent to work on both the criminal and intelligence investigations -- to ensure the flow of information "over the wall." We set up special procedures because of the extraordinary circumstances and the necessity to prevent a court from throwing out any conviction in those cases. Had my memo been in place in August 2001 -- when, as Ashcroft said, FBI officials rejected a criminal warrant of Moussaoui because they feared "breaching the wall" -- it would have allowed those agents to obtain a criminal warrant without fear of jeopardizing an intelligence investigation.

[N]othing in the 1995 guidelines prevented the sharing of information between criminal and intelligence investigators. Indeed, the guidelines require that FBI foreign intelligence agents share information with criminal investigators and prosecutors whenever they uncover facts suggesting that a crime has been or may be committed. The guidelines did set forth procedures, but those procedures implemented court decisions and, as noted, were reaffirmed by the Ashcroft Justice Department.
Now, should you just rely on Ms. Gorelick? Well, you don't have to, since you can also read a 2001 GAO report (link is a .PDF) on the effectiveness of the "wall". It turns out, the reason for the report and investigation was a concern that the FBI was not following the 1995 procedures. As recounted in the GAO report, there was a "core group" of officials who monitored how the FBI managed the flow of information, and which could give guidance on specific cases. There apparently was concern that procedures designed to protect criminal investigations were not being followed. But, not to worry, the Ashcroft people had taken over the job. As explained in the 2001 GAO report:
In April 2001, the acting Deputy Attorney General decided to reconstitute the core group and to give it a broader role for overseeing coordination issues. The core group, similar to the prior core group, is comprised of several officials from the Office of Deputy Attorney General, an official representing the Office of Intelligence Policy and Review, and the Assistant Directors of the FBI's National Security and Counterterrorism Divisions. Whereas the previous core group's role was to decide which of the FBI's most critical cases met the requirements of the Attorney General's coordination procedures and needed to be coordinated with the Criminal Division, the new core group's role is broader.

According to an Associate Deputy Attorney General and core group member, the new group is to be responsible for deciding whether particular FBI investigations meet the requirements of the coordination procedures and to identify for the Attorney General's attention any cases involving extraordinary situations where compliance with the guidelines requires the Attorney General's consideration. According to the Associate Deputy Attorney General, the FBI is to bring to the core group's attention any investigation in which it is not clear that the Attorney General's procedures have been triggered. For example, during an FBI investigation should it not be clear whether a criminal violation should be considered a significant federal crime, as indicated in the procedures, the FBI is to bring the matter to the core group for resolution. Thus, this is a much broader scope of responsibility than the prior core group's which only considered the need for coordination in those critical cases that were judgmentally selected by the FBI. Furthermore, the core group also is to be responsible for identifying for the Attorney General's attention those extraordinary situations where the FBI believes there may be good reason not to notify the Criminal Division. For extraordinary situations, the Associate Deputy Attorney General opined that it was expected that the number of such questions brought to the core group would be extremely few.

In written comments on a draft of this report, the Acting Assistant Attorney General for Administration responding for Justice responded that on two of our recommendations, the Department has taken full or partial action. Concerning our recommendation to institutionalize OIPR's [the Office of Intelligence Policy and Review in the Justice Department] role and responsibilities for ensuring compliance with the Attorney General's coordination procedures, the Acting Counsel for Intelligence Policy on June 12, 2001, issued a memorandum to all OIPR staff. That memorandum formally articulated OIPR's policy of notifying the FBI and the Criminal Division whenever OIPR attorneys identify foreign counterintelligence investigations that meet the requirements established by the Attorney General for coordination. We believe this policy should help perpetuate OIPR's mechanism for ensuring compliance with the 1995 coordination procedures beyond any changes in OIPR management.
Basically, the Ashcroft Justice Department took steps to monitor and enforce a policy, which was partly based on the 1995 memo, but also based on prior court decisions, and later modifications of the policy. In light of these facts, Mr. Ashcroft's testimony (link is a .PDF), in which he claims that Ms. Gorelick's memo is the sole source of the policy, appears desparate, craven and false. Ignoring the facts about his own actions, he testified as follows:
But the simple fact of September 11 is this: we did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies. Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions, and starved for basic information technology. The old national intelligence system in place on September 11 was destined to fail. This Commission can serve a noble purpose. Your responsibility is to examine the root causes of September 11 and to help the United States prevent another terrorist attack. Your duty is solemn and sobering. But I, too, have a duty today. I have sworn to tell the whole truth, and I intend to fulfill this obligation.
That last sentence may come back to haunt him. But, to continue -
The single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents. Government erected this wall. Government buttressed this wall. And before September 11, government was blinded by this wall. In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required. The 1995 Guidelines and the procedures developed around them imposed draconian barriers to communications between the law enforcement and intelligence communities. The wall "effectively excluded" prosecutors from intelligence investigations. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system destined to fail.
Now, as noted above, not only does Ms. Gorelick point out that she did not "erect" the wall (and in fact, she was trying to implement procedures to make sure that any "wall" did not inhibit investigations), but the GAO report demonstrates that Mr. Ashcroft is the one who strengthened it. Nevertheless, Mr. Ashcroft stated in his sworn testimony:
But somebody did make these rules. Someone built this wall. The basic architecture for the wall in the 1995 Guidelines was contained in a classified memorandum entitled "Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations." The memorandum ordered FBI Director Louis Freeh and others, quote: "We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation." This memorandum established a wall separating the criminal and intelligence investigations following the 1993 World Trade Center attack, the largest international terrorism attack on American soil prior to September 11. Although you understand the debilitating impact of the wall, I cannot imagine that the Commission knew about this memorandum, so I have declassified it for you and the public to review. Full disclosure compels me to inform you that its author is a member of this Commission.
So, Attorney General Ashcroft, solely in the interest of full disclosure, declassifies a 1995 document, while neglecting to tell the Commission about refinements to the policy in 2000, or his own strengthening of the wall in April of 2001. And, in so doing, unleashed the attack dogs on Ms. Gorelick.

I don't think it's inappropriate to suggest that Mr. Ashcroft's veracity in this matter should be more closely examined.



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