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Context of 'Early 1980s: FBI Encounters Problems Passing Intelligence Information to Criminal Prosecutors, ‘Wall’ Arises'

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Due to apparent problems with the use of intelligence information in criminal proceedings, a set of procedures that later becomes known as the “wall” begins to take shape. The FBI, which performs both criminal and counterintelligence functions, normally obtains two types of warrants: criminal warrants and warrants under the recently passed Foreign Intelligence Surveillance Act (FISA). FISA warrants are thought to be easier to obtain, as the FBI only has to show that there is probable cause to believe the subject is a foreign power or an agent of one. Sometimes a case begins as an intelligence investigation, but results in a criminal prosecution. In court the defense can then argue that the government has abused FISA and obtained evidence by improperly using the lower standard, so any evidence obtained under FISA should not be allowed in court. Although the government can use information it happens to obtain under a FISA warrant for a criminal prosecution, if the purpose of obtaining information under a FISA warrant is for a criminal prosecution, this is in violation of the Fourth Amendment’s prohibition against warrantless searches. To combat this apparent problem, the special FISA Court decides that for a warrant under FISA to be granted, collecting intelligence information must be the primary purpose, although such information can be used in a criminal investigation provided the criminal investigation does not become the primary purpose of the surveillance or search. As a result of these procedures, when the FBI is conducting an intelligence investigation and uncovers evidence of criminal activity, it no longer consults local United States Attorneys’ Offices, but prosecutors within the Justice Department’s Criminal Division. The prosecutors then decide when the local attorney’s office should become involved. [US Department of Justice, 11/2004, pp. 21-24 pdf file] The wall will be extended in the 1990s (see July 19, 1995) and will be much criticized before and after 9/11 (see July 1999 and April 13, 2004).

Entity Tags: Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, US Department of Justice, Foreign Intelligence Surveillance Court

Timeline Tags: Complete 911 Timeline

Deputy Attorney General Jamie Gorelick issues a memo establishing procedures to regulate prosecutors’ and criminal investigators’ access to intelligence information generated in the wake of the 1993 WTC bombing cases (see February 26, 1993). These new procedures effectively extend the so-called “wall” that arose in the early 1980s. During the criminal investigation of the bombing, the FBI came across counterintelligence information related to Islamic extremists operating inside the United States, so it began an intelligence investigation. The new procedures are established because the Justice Department does not want to be perceived as using warrants issued under the Foreign Intelligence Surveillance Act (FISA), which are thought to be easier to obtain than criminal warrants, to further the criminal investigations, because this might possibly lead to problems in court (see Early 1980s). In the memo, Gorelick, who will later be a 9/11 Commissioner (see December 16, 2002), acknowledges that the procedures go “beyond what is legally required.” [US Department of Justice, 11/2004, pp. 28 pdf file; Lance, 2006, pp. 549-550] A similar set of controversial procedures is issued later covering all intelligence investigations (see July 19, 1995). However, Andrew McCarthy, one of the WTC prosecutors cut off from the information, will later say this policy is “excessively prohibitive” and “virtually guaranteed intelligence failure” in the fight against terrorism. McCarthy will also note that there already are procedures in place to prevent the misuse of FISA-derived evidence. [National Review, 4/19/2004]

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

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

Following the issuance of the “wall” memo, which established procedures to regulate the flow of information from intelligence investigations by the FBI to local criminal prosecutors (see July 19, 1995), an additional information sharing “wall” is erected inside the FBI. After 9/11, the Justice Department’s Office of Inspector General will find, “Although it is unclear exactly when this ‘wall’ within the FBI began, [it was] sometime between 1995 and 1997.” This additional wall segregates FBI intelligence investigations from FBI criminal investigations and restricts the flow of information from agents on intelligence investigations to agents on criminal investigations, because of problems that may occur if the flow is not regulated (see Early 1980s). If an intelligence agent wants to “pass information over the wall” to a criminal agent, he should get approval from one of his superiors, either locally or at FBI headquarters. A description of wall procedures comes to be commonplace in all warrant requests filed under the Foreign Intelligence Surveillance Act (FISA). [US Department of Justice, 11/2004, pp. 30-32 pdf file] However, FBI agents often ignore these restrictions and over a hundred cases where information is shared without permission between intelligence and criminal FBI agents will later be uncovered (see Summer-October 2000 and March 2001).

Entity Tags: Federal Bureau of Investigation, Foreign Intelligence Surveillance Act, US Department of Justice

Timeline Tags: Complete 911 Timeline

The Justice Department’s Office of Inspector General issues a report into the FBI’s use of intelligence information in an investigation into campaign finance, and this report is critical of the “wall”. The “wall” regulates the passage of some information from FBI intelligence investigations to criminal FBI agents and prosecutors, to ensure such information can legitimately be used in court (see Early 1980s). After the procedures were formalized (see July 19, 1995), the FBI drastically reduced its consultations with Justice Department attorneys about intelligence investigations, because any consultation with such attorneys could result in an intelligence warrant not being granted, as it may lead authorities reviewing a warrant application to conclude that the warrant was really being sought for a criminal investigation, not an intelligence investigation. The result is that the FBI does not ask for input from prosecutors until it is ready to close an intelligence investigation and “go criminal.” The campaign finance report finds that FBI failed to disclose some information from intelligence investigations not only to Congress and the Attorney General, but also to its own Director, Louis Freeh. The “wall” procedures are found to be vague and ineffective, as well as misunderstood and often misapplied. [US Department of Justice, 11/2004, pp. 32-33 pdf file] The “wall” procedures are also criticized by other reports (see May 2000).

Entity Tags: Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, US Department of Justice

Timeline Tags: Complete 911 Timeline

A Justice Department report into the handling of the Wen Ho Lee investigation attacks the “wall” procedures. The “wall” regulates the passage of some information from FBI intelligence investigations to criminal FBI agents and prosecutors, to ensure such information can legitimately be used in court (see Early 1980s). After the procedures were formalized (see July 19, 1995), they were criticized in a 1999 Justice Department report (see July 1999). The Wen Ho Lee report finds that additional requirements imposed by the Office of Intelligence Policy and Review (OIPR) at the Justice Department (see (Late 1995-1997)) that hamper consultations between agents on intelligence investigations and attorneys at the Justice Department’s Criminal Division are actually in contravention of the procedures specified in the original 1995 memo. The report states, “It is clear from interviews… that, in any investigation where [the Foreign Intelligence Surveillance Act (FISA)] is employed or even remotely hoped for (and FISA coverage is always hoped for), the Criminal Division is considered radioactive by both the FBI and the OIPR.” It also says that the FBI’s deputy director has told agents that contacting prosecutors without the OIPR’s permission is a “career stopper.” Another report, published in July 2001, finds that some improvements have been made in this area, but recommends further steps. [US Department of Justice, 11/2004, pp. 33-36 pdf file]

Entity Tags: US Department of Justice, Federal Bureau of Investigation, Foreign Intelligence Surveillance Act

Timeline Tags: Complete 911 Timeline

Steve Bongardt, an FBI criminal agent investigating the bombing of the USS Cole, receives an e-mail from FBI headquarters asking the FBI’s New York office to start looking for future 9/11 hijacker Khalid Almihdhar under an intelligence investigation, but is forced to delete it following an argument with headquarters. The e-mail was not addressed to Bongardt, but forwarded to him by a supervisor, possibly in error. However, Bongardt calls Dina Corsi, the headquarters agent who wrote the e-mail, and expresses his surprise at the information contained in it, saying: “Dina, you got to be kidding me! Almihdhar is in the country?” He tells her the search should be conducted as a criminal investigation, not an intelligence investigation. Corsi incorrectly replies that the “wall” prevents the search from being carried out by criminal agents (see Early 1980s and July 19, 1995), as the investigation requires intelligence from the NSA that criminal agents cannot have, and she forces Bongardt to delete the e-mail from his computer (see August 29, 2001). [9/11 Commission, 7/24/2004, pp. 271; US Department of Justice, 11/2004, pp. 304 pdf file; Wright, 2006, pp. 353]

Entity Tags: Usama bin Laden Unit (FBI), Steve Bongardt, Dina Corsi, FBI New York Field Office, FBI Headquarters, Khalid Almihdhar

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

The FBI opens an intelligence investigation to find future 9/11 hijacker Khalid Almihdhar, despite protests from the FBI New York field office that FBI headquarters has wrongly insisted on an intelligence investigation, when a criminal investigation would be more appropriate and have a better chance of finding him. The Justice Department’s office of inspector general will later conclude that “the designation of the Almihdhar matter as an intelligence investigation, as opposed to a criminal investigation, undermined the priority of any effort to locate Almihdhar.” Upon learning of the decision, Steve Bongardt, an investigator working on the USS Cole bombing investigation, writes to headquarters agent Dina Corsi to express his frustration. He points out that she is unable to produce any solid documentary evidence to support her view of the “wall,” a mechanism that restricts the passage of some intelligence information to criminal agents at the FBI (see Early 1980s and July 19, 1995), and that her interpretation of the “wall” is at odds with the purpose for which it was established. He adds: “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 [Justice Department’s] National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, UBL [Osama bin Laden], is getting the most ‘protection.’” [US Congress, 9/20/2002; New York Times, 9/21/2002; US Department of Justice, 11/2004, pp. 307-9 pdf file; New Yorker, 7/10/2006 pdf file] Both the Justice Department’s office of inspector general and the 9/11 Commission will later back Bongardt and say the investigation should have been a criminal investigation, as the “wall” procedures did not apply. The inspector general will comment that Bongardt “was correct that the wall had been created to deal with the handling of only [Foreign Intelligence Surveillance Act] information and that there was no legal barrier to a criminal agent being present for an interview with Almihdhar if it occurred in the intelligence investigation.” [US Department of Justice, 11/2004, pp. 351 pdf file] The 9/11 Commission will remark that Corsi “misunderstood” the wall and that, “Simply put, there was no legal reason why the information [Corsi] possessed could not have been shared with [Bongardt].” It will conclude: “It is now clear that everyone involved was confused about the rules governing the sharing and use of information gathered in intelligence channels. Because Almihdhar was being sought for his possible connection to or knowledge of the Cole bombing, he could be investigated or tracked under the existing Cole criminal case. No new criminal case was needed for the criminal agent to begin searching for [him]. And as the NSA had approved the passage of its information to the criminal agent, he could have conducted a search using all available information. As a result of this confusion, the criminal agents who were knowledgeable about al-Qaeda and experienced with criminal investigative techniques, including finding suspects and possible criminal charges, were thus excluded from the search.” [9/11 Commission, 7/24/2004, pp. 271, 539]

Entity Tags: Osama bin Laden, Steve Bongardt, Usama bin Laden Unit (FBI), Office of the Inspector General (DOJ), National Commision on Terrorist Attacks, Foreign Intelligence Surveillance Act, Dina Corsi, FBI Headquarters, Khalid Almihdhar, FBI New York Field Office

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Attorney General John Ashcroft before the 9/11 Commission.Attorney General John Ashcroft before the 9/11 Commission. [Source: Associated Press]Attorney General John Ashcroft testifies publicly before the 9/11 Commission. Due to information leaked to the public about Ashcroft’s apparently poor performance and lack of interest in terrorism before the attacks (see Spring 2001, July 12, 2001, and September 10, 2001), in the words of author Philip Shenon, “Everybody expect[s] it to be a difficult day for Ashcroft—maybe the day that mark[s] the end of his tenure as George Bush’s attorney general.” Executing a strategy designed in advance by the Justice Department’s leadership, instead of defending his record, Ashcroft goes on the offensive against the Commission. First, Ashcroft withholds from the Commission a copy of his written statement, although all other witnesses provide this. Then, when his testimony starts, he blames the problems dealing with terrorist threats on information-sharing regulations set up by former Deputy Attorney General Jamie Gorelick, now a 9/11 commissioner. [Shenon, 2008, pp. 325-327]
Ashcroft Exaggerates Effect of Gorelick Memo - He comments: “The single greatest structural cause for September 11 was the ‘wall’ that segregated criminal investigators and intelligence agents. Government erected this ‘wall.’ Government buttressed this ‘wall.’ And before September 11, government was blinded by this ‘wall.’” The wall was a set of procedures that regulated the passage of information from FBI intelligence agents to FBI criminal agents and prosecutors to ensure that information obtained using warrants under the Foreign Intelligence Surveillance Act (FISA) would not be thrown out from criminal cases (see July 19, 1995). Ashcroft says that the wall impeded the investigation of Zacarias Moussaoui and that a “warrant was rejected because FBI officials feared breaching the ‘wall.’” (Note: two applications to search Moussaoui’s belongings were prepared. The first was not submitted because it was thought to be “shaky” (see August 21, 2001). The second warrant application was prepared as a part of an intelligence investigation under the Foreign Intelligence Surveillance Act, so it was not affected by the “wall” (see August 28, 2001)). According to Ashcroft, the wall also impeded the search for hijackers Khalid Almihdhar and Nawaf Alhazmi because criminal investigators were not allowed to join in. However, the 9/11 Commission will find that they could legally have helped, but were prevented from doing so by FBI headquarters (see August 29, 2001). Ashcroft asserts that 9/11 commissioner Jamie Gorelick was responsible for the wall. He cites a document he just declassified that had been written by Gorelick to deal with the two 1993 World Trade Center bombing cases (see March 4, 1995). That document becomes known as the “wall memo.” However, this memo only governed the two WTC cases; all other cases were governed by a different, but similar memo written by Attorney General Janet Reno a few months later (see July 19, 1995). [9/11 Commission, 4/13/2004]
Commission's Response - 9/11 Commission Chairman Thomas Kean and Vice Chairman Lee Hamilton will say that the “attorney general’s claim was overstated,” and that the two 1995 memos only codified a set of procedures that already existed (see Early 1980s). During questioning, Republican 9/11 commissioner Slade Gorton points out that Ashcroft’s deputy reaffirmed the procedures in an August 2001 memo that stated, “The 1995 procedures remain in effect today” (see August 6, 2001). [Kean and Hamilton, 2006, pp. 194-6] Ashcroft’s accusation against Gorelick produces an immediate public response. Commissioner Bob Kerrey (D-NE) will say: “Ashcroft was still speaking, and the e-mails were already coming in. The e-mails said things like, ‘You traitor, you should be ashamed of yourself for having somebody like Gorelick on the 9/11 Commission.’ I could see that this was a setup.” [Shenon, 2008, pp. 329]
Falsely Claims No Clinton Program to Kill Bin Laden - Ashcroft also claims there was no program to kill Osama bin Laden before 9/11, saying, “Let me be clear: my thorough review revealed no covert action program to kill bin Laden.” However, the 9/11 Commission has already found a memorandum of notification signed by President Clinton in 1998 after the African embassy bombings that allowed CIA assets to kill bin Laden, and two commissioners, Fred Fielding and Richard Ben-Veniste, point this out to Ashcroft. [9/11 Commission, 4/13/2004; 9/11 Commission, 7/24/2004, pp. 132, 485]
Attack Brings Commission Together - Paradoxically, the effect of Ashcroft’s attack is to bring the Commission—made up of five Democrats and five Republicans—together. Shenon will comment, “The Republicans were just as angry as the Democrats over what Ashcroft had done, maybe angrier.” Commissioner Slade Gorton (R-WA) will add, “There was universal outrage on the part of all 10 people.” [Shenon, 2008, pp. 332]

Entity Tags: Thomas Kean, Zacarias Moussaoui, Slade Gorton, Philip Shenon, Lee Hamilton, Khalid Almihdhar, 9/11 Commission, Bob Kerrey, Foreign Intelligence Surveillance Act, Fred F. Fielding, John Ashcroft, Nawaf Alhazmi, Richard Ben-Veniste

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

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