Commissioner Gorelick, as deputy attorney general — the number two official in the Department of Justice — for three years beginning in 1994, was an architect of the government's self-imposed procedural wall, intentionally erected to prevent intelligence agents from pooling information with their law-enforcement counterparts. That is not partisan carping. That is a matter of objective fact. That wall was not only a deliberate and unnecessary impediment to information sharing; it bred a culture of intelligence dysfunction. It told national-security agents in the field that there were other values, higher interests, that transcended connecting the dots and getting it right.
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Committed to the bitter end to the law-enforcement mindset, and overwrought at the mere possibility of violating the ill-conceived "primary purpose" test, DOJ made matters significantly worse. It imposed severe procedural barriers against competent intelligence gathering. As described by the FISA Court of Review in 2002:
[T]he 1995 Procedures limited contacts between the FBI and [DOJ's] Criminal Division in cases where FISA surveillance or searches were being conducted by the FBI for foreign intelligence (FI) or foreign counterintelligence (FCI) purposes. . . . The procedures state that "the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division's directing or controlling the FI or FCI investigation toward law enforcement objectives." 1995 Procedures at 2, 6 (emphasis added). Although these procedures provided for significant information sharing and coordination between criminal and FI or FCI investigations, based at least in part on the "directing or controlling" language, they eventually came to be narrowly interpreted within the Department of Justice, and most particularly by [the Justice Department's Office of Intelligence Policy Review (OIPR)], as requiring OIPR to act as a "wall" to prevent the FBI intelligence officials from communicating with the Criminal Division regarding ongoing FI or FCI investigations. . . . Thus, the focus became the nature of the underlying investigation, rather than the general purpose of the surveillance. Once prosecution of the target was being considered, the procedures, as interpreted by OIPR in light of the case law, prevented the Criminal Division from providing any meaningful advice to the FBI.
It is important here to remember that most FBI agents are not practicing lawyers. Yes, as the Review Court noted, the regulations left some daylight for cooperation between criminal and intelligence agents. In practice, however, things were much worse: Agents basically understood that criminal and intelligence investigators were not allowed to compare notes, period. That is, the problem is not simply the wide range of perfectly appropriate communications that the regulations expressly prohibited, but is magnified by the ethos the regulations instilled: While justifying communications required a series of mental gymnastics, the agents knew that they could not get in trouble if they just avoided communications entirely.
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..Stewart Baker, general counsel of the National Security Agency in the early years of the Clinton administration. In a courageous and forthright account published by Slate in December 2003, and aptly entitled "Wall Nuts," Baker surmises that "on Sept. 11, 2001, that wall probably cost us 3,000 American lives."
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Baker recounts that an FBI intelligence agent who was trying to find the two terrorists during summer 2001, asked for help from the law-enforcement side of the house and was turned down flat by headquarters. The agent's responsive pre-9/11 e-mail, quoted by Baker, is chilling: "[S]ome day someone will die — and wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.' Let's hope the [lawyers who gave the advice] will stand behind their decisions then, especially since the biggest threat to us now, UBL [Usama Bin Laden], is getting the most 'protection.'
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Andrew C. McCarthy is a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others. While he consults part-time with the Defense Department, the opinions expressed herein are strictly his own.
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