Whitewashing the "Wall" (9/11 Commission Report)

The FBI had different tools for law enforcement and intelligence. For criminal matters, it could apply for and use traditional criminal warrants. For intelligence matters involving international terrorism, however, the rules were different. For many years the attorney general could authorize surveillance of foreign powers and agents of foreign powers without any court review, but in 1978 Congress passed the Foreign Intelligence Surveillance Act.

This law regulated intelligence collection directed at foreign powers and agents of foreign powers in the United States. In addition to requiring court review of proposed surveillance (and later, physical searches), the 1978 act was interpreted by the courts to require that a search be approved only if its “primary purpose” was to obtain foreign intelligence information. In other words, the authorities of the FISA law could not be used to circumvent traditional criminal warrant requirements.

The Justice Department interpreted these rulings as saying that criminal prosecutors could be briefed on FISA information but could not direct or control its collection.

Throughout the 1980s and early 1990s, Justice prosecutors had informal arrangements for obtaining information gathered in the FISA process, the understanding being that they would not improperly exploit that process for their criminal cases. Whether the FBI shared with prosecutors information pertinent to possible criminal investigations was left solely to the judgment of the FBI.

But the prosecution of Aldrich Ames for espionage in 1994 revived concerns about the prosecutors’ role in intelligence investigations.The Department of Justice’s Office of Intelligence Policy and Review (OIPR) is responsible for reviewing and presenting all FISA applications to the FISA Court. It worried that because of the numerous prior consultations between FBI agents and prosecutors, the judge might rule that the FISA warrants had been misused. If that had happened, Ames might have escaped conviction. Richard Scruggs, the acting head of OIPR, complained to Attorney General Janet Reno about the lack of information-sharing controls. On his own,he began imposing information sharing procedures for FISA material. The Office of Intelligence Policy and Review became the gatekeeper for the flow of FISA information to criminal prosecutors.

In July 1995, Attorney General Reno issued formal procedures aimed at managing information sharing between Justice Department prosecutors and the FBI. They were developed in a working group led by the Justice Department’s Executive Office of National Security, overseen by Deputy Attorney General Jamie Gorelick. These procedures—while requiring the sharing of intelligence information with prosecutors—regulated the manner in which such information could be shared from the intelligence side of the house to the criminal side. These procedures were almost immediately misunderstood and misapplied. As a result, there was far less information sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the department’s procedures. Over time the procedures came to be referred to as “the wall.” The term “the wall” is misleading, however, because several factors led to a series of barriers to information sharing that developed.

The Office of Intelligence Policy and Review became the sole gatekeeper for passing information to the Criminal Division. Though Attorney General Reno’s procedures did not include such a provision, the Office assumed the role anyway, arguing that its position reflected the concerns of Judge Royce Lamberth, then chief judge of the Foreign Intelligence Surveillance Court. The Office threatened that if it could not regulate the flow of information to criminal prosecutors, it would no longer present the FBI’s warrant requests to the FISA Court. The information flow withered.

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. We will describe some of the unfortunate consequences of these accumulated institutional beliefs and practices in chapter 8.

There were other legal limitations. Both prosecutors and FBI agents argued that they were barred by court rules from sharing grand jury information, even though the prohibition applied only to that small fraction that had been presented to a grand jury, and even that prohibition had exceptions. But as interpreted by FBI field offices, this prohibition could conceivably apply to much of the information unearthed in an investigation. There were also restrictions, arising from executive order, on the commingling of domestic information with foreign intelligence.

Finally the NSA began putting caveats on its Bin Ladin–related reports that required prior approval before sharing their contents with criminal investigators and prosecutors. These developments further blocked the arteries of information sharing.

No leadership. No reponsibility for the consequences of their policies. No review that orders were implemented properly. La-dee-da. La-dee-da. Move on. Nothing to see here.

Counter-terrorism was not the goal of the Clinton Justice Department as they interpreted it. Their primary job, it seems, was convicting terrorists even though counter-terrorism was mandated by Congress to be their responsibility.

It just slipped through the cracks. It's just institutional sloppiness. Tell it to the 3000 families, who had loved ones killed, because of their gross malfeasance.

I've managed to read about a quarter of the 911 Report thus far.

I'm amazed that this unbelievably partisan group was able to write something as strong as this is.

Far from whitewashing things, it was very clear in stating the difficulties everywhere in the pre-911 world. Their recommendations appear well thought out, and will likely be easily implemented despite the cries of some of the ACLU crowd.

Nobody can interpret it as being anti-Bush, or as saying that President Bush has been acting improperly with respect to terrorism. They as much as state that we must have a preemptive posture against all of them, and specifically against radical Islamists, in every way, and wherever they reside.

It is possible to interpret it as quite critical of Clinton. One wonders what they might have said had Berger not lifted several copies of the early draft report of the Millennium incident. I suspect he succeeded in his intent by his theft, though.

UNANIMOUS CONSENT by this panel without even a dissenting footnote by one of them. Clearly what they heard behind closed doors was very powerful indeed, and completely squashed those who might have been Bush's critics.

I'm amazed that this unbelievably partisan group was able to write something as strong as this is.

Sure, but how many Americans will ever read even the Executive Summary? (And I haven't gotten to that yet, myself.) 90% of those civilians who know anything about the report, know only the Democrat disinformation campaign via Dick Clarke, the New York Times, Alphabet News, and their academic and educational comrades. And so you have this bizarro world report, and the real world propaganda that continues to contradict it.

Likewise, you have the Millennium After-Action Review, written by Dick Clarke, which shows how poorly the Clinton Administration prepared for the Millennium Plot, and which was stolen by Sandy Berger, and then you have Clarke's statements in his book, his 911 Commission testimony, and his ABC News commentary all contradicting what he wrote in the stolen, suppressed After-Action Review.

Nicholas Stix, What was in Sandy Berger's Underwear?

Thanks for posting this, but I don't see the whitewashing.

The report confines itself here to detailing what happened, and makes a complicated process understandable.

The blame for "the wall' can happen later. First I want to know what happened.

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