Ashcroft's famed "Wall" that is to blame For 911 is BSMurky `wall' a scapegoat for 9/11 failures
Murky `wall' a scapegoat for 9/11 failures
But examination indicates barrier is misconstrued
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By Cam Simpson
Washington Bureau
April 15, 2004
WASHINGTON -- Under the glare of public scrutiny, it has become the most prominent scapegoat cited by current and former government officials appearing before the independent commission investigating the worst terrorist attacks in the nation's history.
Known simply but amorphously as "the wall," it has taken the blame for nearly everything that was wrong with a government that didn't properly share, analyze or investigate key terrorist-threat information before Sept. 11, 2001.
Yet the myriad barriers between intelligence and law-enforcement officials before the hijackings have been frequently misconstrued or oversimplified in testimony before the panel under "the wall" catchall, according to a review of commission, congressional, court and other public records.
Atty. Gen. John Ashcroft and other witnesses have portrayed the barriers as a single legal policy, but "the wall" also encompassed other statutes, feuding personalities, turf wars, technological problems, policy issues and outdated mind-sets that had nothing to do with legal strictures, experts and records from previous inquiries indicate.
Although laws have been changed since the attacks, some of the other barriers remain, according to testimony before the commission.
"It went beyond the law," Eleanor Hill, staff director for a joint House and Senate intelligence committees' investigation into the attacks, said in a telephone interview Wednesday. "Some of it was just agency turf, where they were reluctant to share information simply because it was within their agency."
The intelligence committees' report last year put it this way: "The wall is not a single barrier, but a series of restrictions between and within agencies constructed over 60 years as a result of legal, policy, institutional and personal factors."
Ashcroft on Tuesday sparked a firestorm when he blamed the architectural drawings for "the wall" on one person--Jamie Gorelick, a Democratic member of the very commission conducting the investigation.
Because of Ashcroft's testimony, Rep. James Sensenbrenner (R-Wis.) on Wednesday called for Gorelick, a deputy attorney general in the Clinton administration, to resign from the commission.
Gorelick rejected that suggestion, as did the panel's chairman, Thomas Kean.
Gorelick has formally removed herself from discussions about matters she was personally involved in, Kean noted, adding, "She is, in my mind, one of the finest members of the commission. . . . So people ought to stay out of our business."
Ashcroft's testimony covered just one of the many barriers that existed within the legal realm. And his version of that one piece of "the wall's" history does not appear to be substantiated by an unprecedented legal opinion issued after Justice Department lawyers argued the case less than two years ago.
Ashcroft described legal restrictions that barred criminal and intelligence investigators from sharing some information from wiretaps or searches authorized by a secretive Washington court under a 1978 law called the Foreign Intelligence Surveillance Act. That court is commonly known as the FISA court.
He called it the "single greatest structural cause for the Sept. 11 problem," adding later that the "government was blinded by this wall" prior to the attacks.
Ashcroft also testified that "somebody did make these rules. Someone built this wall." He then declassified an undated, internal Justice Department memorandum apparently written in 1994 by Gorelick while she was Janet Reno's deputy.
The memo details FISA restrictions emerging from a 1994 New York prosecution of a terror cell later linked to Al Qaeda. It was followed by guidelines adopted by Reno in 1995.
Although they both tried to ease intelligence sharing, Reno and Ashcroft left the rules intact until after Sept. 11.
Following the attacks, Ashcroft's lawyers argued before a top-secret appellate court, which was meeting for the first time, that the 1978 law had been misconstrued for years and that any restrictions had been removed by the USA Patriot Act passed after Sept. 11.
The court traced "the wall's" genesis to a federal appeals court ruling in 1980--not to Gorelick's memo. The opinion referred to the 1980 decision repeatedly, saying several other appeals courts built on it with equally faulty reasoning.
The court also said that "it is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute" as limiting the crossover between intelligence and criminal cases.
More often than not, the view of "the wall" as a legal requirement was simply an excuse for agencies not to give up their own secrets, according to a supplement to the intelligence committees' report issued by Sen. Richard Shelby (R-Ala.) .
"For years, it was routine FBI and DOJ practice to respond to virtually any Intelligence Community requests for information with the answer that [the rule] prevented any response," Shelby's report said.
It also cited two National Security Council veterans who described the rule as "the bulwark of an institutional culture," adding: "It is one of the bureau's foremost tools for maintaining the independence that the FBI views as its birthright."
In its discussion of legal strictures behind "the wall," the congressional intelligence report also cited the 1947 National Security Act, which created the CIA and barred it from domestic security functions.
And, according to Hill, the most dramatic example of a failure of information-sharing between intelligence and law enforcement had nothing to do with the FISA law or any similar restriction.
Until it was too late, the CIA in 2000 and 2001 failed to notify the FBI or any domestic agency that two Al Qaeda operatives were in the U.S. They would become hijackers on Sept. 11 and were believed to have played crucial roles in the conspiracy.
Even when information about the men was passed to the FBI in late August 2001, only one agent in New York pushed for a full criminal investigation to hunt them down. But FBI supervisors said no, citing "the wall"--not because the tip was developed out of a FISA case, but because it came from the CIA.
"Whatever has happened to this, someday someone will die and, wall or not, the public will not understand why we were not more effective at throwing every resource we had at certain problems," the agent wrote in an e-mail message.
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Building walls
The 9/11 commission hearings have described several barriers to
counterterrorism efforts in addition to "the wall" between the
FBI's law-enforcement and intelligence-collection arms.
WALL ONE:
INSIDE THE FBI
The commission found that strict procedures meant to protect civil liberties during FBI surveillance impaired efforts.
- Foreign Intelligence Surveillance Act (FISA)
A 1978 federal law provides a special court to grant FBI search
warrants and wiretap orders for national security investigations.
The FISA court requires that the surveillance target be foreign,
such as a terrorist or an agent.
- Built-in protections
FBI investigations unrelated to national security need federal
court approval for surveillance and must show that this will
uncover evidence of a crime.
- More privacy protections
To further protect Americans from being the subject of secret
surveillance by way of the FISA court, the Justice Department
limited communication between the FBI's intelligence-gathering
and enforcement arms.
WALL TWO:
CIA-FBI INTELLIGENCE SHARING
A commission report cited CIA concerns that information shared with the FBI might be disclosed in a trial, thus impairing timely sharing of intelligence.
How the wall played out
In 2000 the CIA knew that two Al Qaeda operatives were in
the U.S. but didn't inform an FBI intelligence agent until
late August 2001. That agent's request for help from FBI
enforcement was rejected. The terrorists would become two
of the Sept. 11 hijackers.
Sources: ACLU, 9/11 commission staff report
No. 9, American Bar Association
Chicago Tribune
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