CHURCH CHICKENS COME HOME TO ROOST:

What About the Wall?: Commissioner Gorelick is not the right person to probe intelligence lapses. (Andrew C. McCarthy, 4/13/04, National Review)

For those of us who were in the trenches of the struggle against militant Islam beginning in the early 1990s, it is jarring to hear, of all people, Jamie Gorelick — now a member of the 9/11 Commission — hectoring government officials about their asserted failure to perceive how essential it is that the right pieces of intelligence get into the right hands. Equally bracing is to read the account of Gorelick's star witness, former counterterrorism coordinator Richard Clarke — that hero of the last 15 minutes — who bemoans how, even though he "had asked to know if a sparrow fell from a tree" during the summer 2001, the FBI and CIA nonetheless failed to stitch together disconnected bits of information about al Qaeda operatives and flight schools.

No one in his right mind could say that intelligence breakdowns related to 9/11 are not worth exploring. At issue, though, is the proper explorer. One would have hoped the appearance of objectivity, never mind the reality, would be the 9/11 Commission's guiding compass. Instead, the panel is beset by a gargantuan conflict of interest — and it's starting to show.

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. It set them up to fail. To hear Gorelick lecture witnesses about intelligence lapses is breathtaking.

Not that the agencies function any better under Republican presidents--though Bill Casey's freelance operations were effective--but the hostility of Democrats to the entire notion of the intelligence services is another sorry remnant of the 70s.

MORE (via Tom Corcoran):
Ashcroft: Clinton Neutered FBI (ContraCostaTimes.com, April 14, 2004)

Attorney General John Ashcroft's statement prepared for the Sept. 11 commission, provided by the commission: [...]

The single greatest structural cause for Sept. 11 was the wall that segregated criminal investigators and intelligence agents. Government erected this wall. Government buttressed this wall. And before Sept. 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 the days before Sept. 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.

When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI headquarters refused to allow criminal investigators who knew the most about the most recent al-Qaida attack to join the hunt for the suspected terrorists.

At that time, a frustrated FBI investigator wrote headquarters, quote, "Whatever has happened to this - someday 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 national security law unit will stand behind their decision then, especially since the biggest threat to us, UBL, is getting the most protection."

FBI headquarters responded, quote: "We are all frustrated with this issue. ... These are the rules. NSLU does not make them up."

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 Sept. 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.

By 2000, the Justice Department was so addicted to the wall, it actually opposed legislation to lower the wall. Finally, the USA Patriot Act tore down this wall between our intelligence and law enforcement personnel in 2001. And when the Patriot Act was challenged, the FISA Court of Review upheld the law, ruling that the 1995 guidelines were required by neither the Constitution nor the law.

Posted by Orrin Judd at April 14, 2004 7:50 AM