A Cautious Man
July 22, 2004
 
The Weak Lies and Cold Walls You Embrace
The 9/11 Commission's Report was issued today. For now, I'll let wiser folks comment on the implications of its conclusions. I just flipped through it to find out what it says about a topic I've commented on before - "The Wall" separating criminal from intelligence investigations. Attorney General John Ashcroft sought to make Commissioner Jamie Gorelick solely responsible for this. In its report issued today, "without dissent", the Commission all but labels Mr. Ashcroft a liar.

Mr. Ashcroft testified in April and described the "wall" separating investigatory functions:
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. ... 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.

In that testimony, while stating "I have sworn to tell the whole truth, and I intend to fulfill this obligation", Mr. Ashcroft declassified and publicly disclosed a single document, which he described as follows:
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." ... 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.
This was Attorney General Ashcroft's attempt to pin blame on Commission member Jamie Gorelick. As I mentioned in my April post on this issue, not only did this subject Ms. Gorelick to harrassment and threats, but it was contrary to the findings of a GAO study issued in the Summer of 2001. I suggested that Mr. Ashcroft be called to account.

Despite Mr. Ashcroft's attempt to shift blame onto Ms. Gorelick and away from himself, the Commission notes at page 210:
Ashcroft had also inherited an ongoing debate on whether and how to modify the 1995 procedures governing intelligence sharing between the FBI and the Justice Department’s Criminal Division. But in August 2001, Ashcroft’s deputy, Larry Thompson, issued a memorandum reaffirming the 1995 procedures with the clarification that evidence of “any federal felony” was to be immediately reported by the FBI to the Criminal Division.The 1995 procedures remained in effect until after 9/11.

As explained by the Commission, the problem was not the 1995 memo, but the way in which its procedures were misunderstood - a misunderstanding which was aggravated by the Ashcroft Justice Department's continuation of what it misunderstood to be the proper procedures. As stated on page 79 of the Report:
The 1995 procedures dealt only with sharing between agents and criminal prosecutors, not between two kinds of FBI agents, those working on intelligence matters and those working on criminal matters. But pressure from the Office of Intelligence Policy Review, FBI leadership, and the FISA Court built barriers between agents—even agents serving on the same squads. FBI Deputy Director Bryant reinforced the Office’s caution by informing agents that too much information sharing could be a career stopper.Agents in the field began to believe—incorrectly—that no FISA information could be shared with agents working on criminal investigations.

This perception evolved into the still more exaggerated belief that the FBI could not share any intelligence information with criminal investigators, even if no FISA procedures had been used. Thus, relevant information from the National Security Agency and the CIA often failed to make its way to criminal investigators. Separate reviews in 1999, 2000, and 2001 concluded independently that information sharing was not occurring, and that the intent of the 1995 procedures was ignored routinely.

This is markedly different from the story told by Attorney General Ashcroft, who publicly disclosed the 1995 memo, and concealed later decisions made by his office. The 9/11 Commission's Report addresses this, not directly in the text, but in footnote 83 to a different chapter, Chapter 8:
Attorney General Ashcroft testified to us that this and similar information-sharing issues arose from Attorney General Reno’s 1995 guidelines, discussed in chapter 3, and specifically from a March 1995 memorandum of then Deputy Attorney General Jamie Gorelick. John Ashcroft testimony, Apr. 13, 2004; DOJ memo, Gorelick to White, “Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations,” Mar. 4, 1995.

We believe the Attorney General’s testimony does not fairly or accurately reflect the significance of the 1995 documents and their relevance to the 2001 discussions. Whatever the merits of the March 1995 Gorelick memorandum and the subsequent July 1995 Attorney General procedures on information sharing, they did not apply to the information the analyst decided she could not share with the criminal agent ... Also, the 1995 procedures did not govern whether information could be shared between intelligence and criminal agents within the FBI, a separation that the Bureau did not begin making formally until long after the procedures were in place.The 1995 procedures governed only the sharing of information with criminal prosecutors.
Attorney General Ashcroft presented his characterization of the significance of the 1995 memo, and ignored later actions by his Justice Department, while stating, "I have sworn to tell the whole truth".  There may be some disagreement about whether he did that.

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