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Context of 'October 21, 2003: Patrick Fitzgerald Blames ‘Wall’ for Intelligence Problems'

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Bomb damage in underground levels of the WTC in 1993.Bomb damage in underground levels of the WTC in 1993. [Source: Najlah Feanny/ Corbis]An attempt to topple the World Trade Center fails, but six people are killed and over 1000 are injured in the misfired blast. An FBI explosives expert later states that, “If they had found the exact architectural Achilles’ heel or if the bomb had been a little bit bigger, not much more, 500 pounds more, I think it would have brought her down.” Ramzi Yousef, who has close ties to bin Laden, organizes the attempt. [Village Voice, 3/30/1993; US Congress, 2/24/1998] The New York Times later reports on Emad Salem, an undercover agent who will be the key government witness in the trial against Yousef. Salem testifies that the FBI knew about the attack beforehand and told him they would thwart it by substituting a harmless powder for the explosives. However, an FBI supervisor called off this plan, and the bombing was not stopped. [New York Times, 10/28/1993] Other suspects were ineptly investigated before the bombing as early as 1990. Several of the bombers were trained by the CIA to fight in the Afghan war, and the CIA later concludes, in internal documents, that it was “partly culpable” for this bombing (see January 24, 1994). [Independent, 11/1/1998] 9/11 mastermind Khalid Shaikh Mohammed is an uncle of Yousef and also has a role in the WTC bombing (see March 20, 1993). [Independent, 6/6/2002; Los Angeles Times, 9/1/2002] One of the attackers even leaves a message which will later be found by investigators, stating, “Next time, it will be very precise.” [Associated Press, 9/30/2001]

Entity Tags: World Trade Center, Ramzi Yousef, Khalid Shaikh Mohammed, Federal Bureau of Investigation, Emad Salem, Osama bin Laden, Central Intelligence Agency

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

A Boston Globe article publicly exposes Ali Mohamed, calling him “a shadowy individual described by defense attorneys as a key figure in the largest terrorism trial in US history.” The trial is the prosecution of Sheikh Omar Abdul-Rahman and others for the 1993 “Landmarks” bombing plot (see June 24, 1993). The Globe article notes that Mohamed was in the US Special Forces and connects him to both Abdul-Rahman’s radical militant group and the CIA. A senior US official claims that Mohamed’s “presence in the country is the result of an action initiated by [the CIA].” The article further states, “Senior officials say Mohamed, who is of Egyptian origin, benefited from a little known visa-waiver program that allows the CIA and other security agencies to bring valuable agents into the country, bypassing the usual immigration formalities. Intelligence sources say that waivers are controlled by the CIA’s Department of Operations, the clandestine side of the agency, and have been used ‘sparingly’ in recent years. Waivers are generally used to bring into the country people who have served the agency in sensitive positions overseas. They come here, an intelligence officer said, because they fear for their lives, have been promised asylum in return for cooperation, or need to be debriefed after an operation.” According to the article, “Mohamed dropped out of sight several years ago, and his whereabouts remain unknown.” But in fact, the FBI interviewed him three months earlier and remains aware of his whereabouts (see December 9, 1994). Mohamed will continue to work with al-Qaeda despite this exposure. [Boston Globe, 2/3/1995]

Entity Tags: Central Intelligence Agency, Omar Abdul-Rahman, Ali Mohamed

Timeline Tags: Complete 911 Timeline

Attorney General Janet Reno, who signed the 1995 Procedures memo.Attorney General Janet Reno, who signed the 1995 Procedures memo. [Source: US Department of Justice]The Justice Department issues the “wall” memo, a later heavily criticized memo that establishes procedures to regulate the flow of information from FBI intelligence investigations to criminal investigators and prosecutors. Such procedures already exist, but this “wall” is now formalized and extended. The memo is signed by Attorney General Janet Reno, but is based on a similar one recently issued by Deputy Attorney General Jamie Gorelick governing the 1993 WTC bombing cases (see March 4, 1995). The wall exists to prevent defendants from successfully arguing in court that information gathered under a warrant issued under the Foreign Intelligence Surveillance Act (FISA) should not be used in a criminal prosecution, as the standard for obtaining a FISA warrant is considered to be lower than that for obtaining a criminal search warrant (see Early 1980s). Such arguments are usually unsuccessful, according to the Justice Department’s Office of Legal Counsel, which believes that courts are showing “great deference” to the government when such challenges are made. The procedures, which now apply to all intelligence investigations regardless of whether or not a FISA warrant has been issued, state that the FBI must consult the Justice Department’s Criminal Division, not local United States Attorneys’ offices, about intelligence investigations when it is considering starting a parallel criminal investigation, and that it must do so when there is reasonable indication of a significant federal crime. This means that FBI headquarters has veto power over whether a field office can contact a local prosecutor about an intelligence investigation. However, Criminal Division prosecutors should only be consulted and cannot control an investigation. [Office of the Attorney General, 7/19/1995; US Department of Justice, 11/2004, pp. 25-30 pdf file] These procedures will be implemented in such a way that even greater restrictions are placed on information sharing (see (Late 1995-1997)), although a partial exception will be created for the Southern District of New York, which handles a lot of terrorism work (see August 29, 1997). The procedures will also be much criticized for the way they are implemented in the FBI (see July 1999). The increased barriers to information sharing often mean that the FBI monitors terrorists as before, but the information does not get passed to criminal investigators, so the cells carry on operating in the US and the FBI carries on monitoring them. For example, the FBI monitors a Florida-based cell that funds and recruits for jihad throughout the world for nearly a decade before it is rolled up (see (October 1993-November 2001)). Some money raised by terrorism financiers in the US goes to Bosnia, where the US has a policy of enabling covert support for the Muslim side in the civil war (see April 27, 1994). Prosecutor Andrew McCarthy will later call the wall a “rudimentary blunder,” and say that it “was not only a deliberate and unnecessary impediment to information sharing; it bred a culture of intelligence dysfunction.” [National Review, 4/13/2004] John Ashcroft, Attorney General in the Bush Administration (see April 13, 2004), will say that “Government buttressed this ‘wall’,” and will call it the “single greatest structural cause for September 11.” [9/11 Commission, 4/13/2004]

Entity Tags: US Department of Justice, John Ashcroft, Jamie Gorelick, Janet Reno, Federal Bureau of Investigation, Foreign Intelligence Surveillance Act, Andrew McCarthy

Timeline Tags: Complete 911 Timeline

The Texas tire store where El-Hage worked in 1997.The Texas tire store where El-Hage worked in 1997. [Source: CNN]In August 1997, US intelligence raids the home of Wadih El-Hage, bin Laden’s former personal secretary and a US citizen (see August 21, 1997). With his cover blown, El-Hage decides to return to the US. Arriving at a New York City airport on September 23, he is served with a subpoena to testify before a grand jury the next day. He testifies for several hours and is questioned extensively. [United State of America v. Usama Bin Laden, et al., Day 36, 4/30/2001] US prosecutor Patrick Fitzgerald will later claim that “El-Hage chose to lie repeatedly to the grand jury, but even in his lies he provided some information of potential use to the intelligence community—including potential leads” to the location of his confederates and wanted missing files. [New York Times, 1/9/1999; US Congress, 10/21/2003] But after this, El-Hage is not arrested. He moves back to Texas, where he had lived in the early 1990s, and works in a tire store. [Arizona Republic, 9/28/2001] In October 1997, he is interviewed by agents in Texas [United State of America v. Usama Bin Laden, et al., Day 28, 4/12/2001] , and then left alone until August 1998 when he will be interrogated again shortly after the bombings in Kenya and Tanzania (see 10:35-10:39 a.m., August 7, 1998). He is ultimately arrested and found guilty for his role in those bombings.

Entity Tags: Wadih El-Hage, Patrick J. Fitzgerald

Timeline Tags: Complete 911 Timeline

A 1997 FBI report on double agent Ali Mohamed states, “He knows, for example, that there are hundreds of ‘sleepers’ or ‘submarines’ in place who don’t fit neatly into the terrorist profile. These individuals don’t wear the traditional beards and don’t pray at the mosques.” [Raleigh News and Observer, 10/21/2001] This is very likely a reference to comments Mohamed made while having dinner with some FBI agents and US prosecutors on October 1997 (see October 1997). One attendee of that dinner, FBI agent Jack Cloonan, will recall a very similar comment Mohamed made then: “He said that he was in touch with hundreds of people he could call on in a moment’s notice that could be, quote, ‘operational,’ and wage jihad against the United States.” [Lance, 2006, pp. 274-276] If so, it is probable that other comments he made at the dinner were included in the FBI report as well, such as his comment that he loves and believes in bin Laden, the US is the enemy, and that he trained Somalis to kill US soldiers in 1993 (see October 1997). But the FBI still takes no action against him.

Entity Tags: Federal Bureau of Investigation, Al-Qaeda, Ali Mohamed, Osama bin Laden

Timeline Tags: Complete 911 Timeline

Patrick FitzgeraldPatrick Fitzgerald [Source: Publicity photo]Ali Mohamed is finally arrested after testifying at a grand jury hearing. The arrest is officially kept secret, but the media will report it one month later. [New York Times, 10/30/1998] Patrick Fitzgerald is on the prosecutor team that subpoenaed Mohamed to appear, but apparently he and the other prosecutors know very little about Mohamed. Fitzgerald blames this on a legal “wall” between intelligence gathering and criminal prosecution. He later will relate what happened on the day Mohamed testified: “Ali Mohamed lied in that grand jury proceeding and left the courthouse to go to his hotel, followed by FBI agents, but not under arrest. He had imminent plans to fly to Egypt. It was believed [by the prosecutors] at the time that Mohamed lied and that he was involved with the al-Qaeda network but Mohamed had not by then been tied to the [embassy] bombings. The decision had to be made at that moment whether to charge Mohamed with false statements. If not, Mohamed would leave the country. That difficult decision had to be made without knowing or reviewing the intelligence information on the other side of the ‘wall.’ It was ultimately decided to arrest Mohamed that night in his hotel room [and he was arrested]. [The prosecution] team got lucky but we never should have had to rely on luck. The prosecution team later obtained access to the intelligence information, including documents obtained from an earlier search of Mohamed’s home by the intelligence team on the other side of ‘the wall.’ Those documents included direct written communications with al-Qaeda members and a library of al-Qaeda training materials that would have made the decision far less difficult. (We could only obtain that access after the arrest with the specific permission of the Attorney General of the United States, based upon the fact that we had obligations to provide the defendant with discovery materials and because the intelligence investigation of Mohamed had effectively ended.)… Mohamed [later] stated that had he not been arrested on that day in September 1998, he had intended to travel to Afghanistan to rejoin Osama bin Laden. Thus, while the right decision to arrest was made partly in the dark, the ‘wall’ could easily have caused a different decision that September evening that would have allowed a key player in the al-Qaeda network to escape justice for the embassy bombing in Kenya and rejoin Osama bin Laden in a cave in Afghanistan, instead of going to federal prison.” [US Congress, 10/21/2003] Mohamed’s associate Khaled Abu el-Dahab, now living in Egypt, wil hear of Mohamed’s arrest and attempt to leave the country, but will be arrested in October 1998. He will be put on trial there and sentenced to 15 years in prison (see 1999). [San Francisco Chronicle, 11/21/2001]

Entity Tags: Ali Mohamed, Federal Bureau of Investigation, Khaled Abu el-Dahab, Patrick J. Fitzgerald

Timeline Tags: Complete 911 Timeline

Earlier in December, the CIA estimated that al-Qaeda would launch between five and 15 attacks against American targets around the world over the New Year’s weekend, and that several targets would likely be inside the US (see December 8, 1999). Since late 1999, there has been intelligence that targets in Washington and New York would be attacked at this time. [US Congress, 9/18/2002] There in fact are a number of planned attacks, including bomb attacks on the Boston and Los Angeles airports (see December 14, 1999 and December 15-31, 1999), a hotel in Jordan (see November 30, 1999), and a naval ship in Yemen (see January 3, 2000). However, all of the attacks are foiled, thanks to alerts and luck. [Washington Post, 1/20/2002]

Entity Tags: Central Intelligence Agency, Al-Qaeda, Osama bin Laden

Timeline Tags: Complete 911 Timeline

Prosecutor Patrick Fitzgerald testifies before the Senate Committee on the Judiciary about post-9/11 legislative changes, and says that the removal of the “wall” was a significant step forward for US counterintelligence. The wall was a set of procedures which regulated the passage of intelligence information within the FBI and from the FBI to prosecutors (see July 19, 1995). Fitzgerald says the removal of the wall represented “the single greatest change that could be made to protect our country.” He cites four cases that he says are examples of how the wall and other such obstacles have hampered counterterrorism efforts:
bullet The arrest of Ali Mohamed. Fitzgerald claims it would have been “far less difficult” to arrest al-Qaeda operative Ali Mohamed for his involvement in the attacks on US embassies in East Africa (see September 10, 1998) had it not been for the wall. [US Congress, 10/21/2003] However, author Peter Lance will point out, “But Fitzgerald neglected to tell the senators that… prosecutors and FBI agents had been monitoring the bombing cell members for two years or that they’d had multiple face-to-face meetings with Mohamed himself.” Mohamed, who was called a “key figure” in the Day of Terror plot in the US press in early 1995 (see February 3, 1995), had actually met Fitzgerald a year before the arrest and told him that he had trained bin Laden’s bodyguards, lived in bin Laden’s house, loved and believed in bin Laden, and that he didn’t need a fatwa to attack the US, as it was obvious the US was the enemy (see After October 1997). [Lance, 2006, pp. 274-6, 299-300]
bullet The Day of Terror conspiracy. After the partial success of the World Trade Center bombing (see February 26, 1993), the conspirators planned to attack other targets in New York, but were arrested by the FBI, which had penetrated their cell. All of the arrested plotters were successfully convicted. However, Fitzgerald tells the committee, “Prosecutors were in the dark about the details of the plot until very late in the day.” [US Congress, 10/21/2003; Lance, 2006, pp. 118-9]
bullet The Millennium Alert. Fitzgerald says that in 1999, investigations into suspected millennium plots were hampered because “criminal prosecutors received information only in part and with lag time so as not to breach the wall.” All attacks planned for the millennium failed, including one plot to bomb the Los Angeles airport (see December 31, 1999-January 1, 2000).
bullet Sharing Wadih El-Hage’s grand jury interview. In 1997, Al-Qaeda operative El-Hage provided information about bin Laden and his associates to a grand jury. Fitzgerald wanted to pass some of this information along to intelligence investigators (see September 24, 1997) but was unable to because grand jury information cannot be shared with intelligence investigators. To get around this restriction, an FBI agent had to get El-Hage to repeat the information outside the grand jury room. (Note: this example is not directly related to the “wall” under the Foreign Intelligence Surveillance Act, but rather to a similar obstacle governing the passage of information in the opposite direction—from criminal agents to intelligence agents). [US Congress, 10/21/2003]

Entity Tags: Senate Judiciary Committee, Patrick J. Fitzgerald, Federal Bureau of Investigation, Ali Mohamed, Foreign Intelligence Surveillance Act, Peter Lance

Timeline Tags: Complete 911 Timeline

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