Profile: Andrew McCarthy
Andrew McCarthy was a participant or observer in the following events:
Andrew McCarthy. [Source: Front Page Magazine]In December 1994, defense attorney Roger Stavis is preparing to defend his client El Sayyid Nosair in the upcoming landmarks trial. He discovers the top secret US military training manuals found in Nosair’s house and begins investigating Ali Mohamed, the US soldier (and double agent) who stole the manuals and gave them to Nosair. Stavis wants to defend Nosair on the basis that since Nosair was trained by Mohamed, who worked for the CIA and US military, the US government should share culpability for Nosair’s crimes. He writes up a subpoena for Mohamed. Stravis later recalls, “I wanted him. And I tried everything to find him.” But Mohamed has disappeared and not even his wife in California knows where he is. However, US intelligence is secretly monitoring him (see Autumn 1993) and they know he is in Kenya. An FBI agent calls him there and tells him to come back to be interviewed. Mohamed immediately returns to the US and on December 9 he is interviewed by FBI agent Harlan Bell and Assistant US Attorney Andrew McCarthy, one of the prosecutors for the upcoming trial (see December 9, 1994). Mohamed stays in touch after the interview, for instance talking to McCarthy on the phone on December 22. But when the trial starts on January 30, 1995, Stavis is told that Mohamed cannot be found and never responded to the subpoena. In 1999, Ibrahim El-Gabrowny, Nosair’s cousin, will find himself in a jail cell next to Mohamed. El-Gabrowny will later allege that he asked why Mohamed never showed up in court to support Nosair. Mohamed supposedly responds that he did get the subpoena, but that McCarthy advised him to ignore it and not testify and that McCarthy would cover up for him. Had Mohamed testified, McCarthy would have had a more difficult time getting a conviction, and the revelations of Mohamed’s ties to the CIA, FBI, and US military would have been highly embarrassing. Author Peter Lance will later note also that had Mohamed testified in the high profile trial, he would have become too well known to continue working as an informant and double agent. [Lance, 2006, pp. 171-178]
Prosecutors in the “Landmarks” bombing trial want to speak with Ali Mohamed. FBI agents, working through an intermediary, track him to an al-Qaeda safe house in Nairobi. Mohamed will later testify in US court, “In late 1994, I received a call from an FBI agent who wanted to speak to me about the upcoming trial of United States vs. Abdul Rahman. I flew back to the United States, spoke to the FBI, but didn’t disclose everything that I knew.” [Washington File, 5/15/2001; Wall Street Journal, 11/26/2001; 9/11 Commission, 6/16/2004] FBI agent Harlan Bell conducts the interview in the presence of Assistant US Attorney Andrew McCarthy, a prosecutor for the upcoming trial. Mohamed tells them
that he is working in Kenya in the scuba diving business (when in fact he is helping the al-Qaeda cell there). He also says that he went to Pakistan in 1991 to help bin Laden move from Afghanistan to Sudan (see Summer 1991). Despite admitting this tie to bin Laden, there are no apparent repercussions for Mohamed, aside from his name appearing on the trial’s unindicted conconsipirators list (see February 1995). [Lance, 2006, pp. 173-174] He will not appear at the trial, and it has been alleged McCarthy told Mohamed to ignore a subpoena and not testify (see December 1994-January 1995). Mohamed will later recall that after the interview, “I reported on my meeting with the FBI to [al-Qaeda leader Mohammed Atef] and was told not to return to Nairobi.” [Washington File, 5/15/2001]
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 ; 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]
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 ] 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]
Because of concerns that al-Qaeda will launch attacks during the millennium celebrations (see Early December 1999, December 15-31, 1999 and December 14, 1999), the Justice Department and the Foreign Intelligence Surveillance Court alter the set of procedures known as the “wall,” which governs the sharing of intelligence inside the FBI and between the FBI and prosecutors. As a result of these changes, it becomes easier for the FBI to obtain wiretap warrants from the court, so the court itself becomes the wall with the authority to determine what information can be released to prosecutors. [Foreign Intelligence Surveillance Court, 5/17/2002; US Department of Justice, 11/2004, pp. 32, 149, 194 ] Nonetheless, US attorney Patrick Fitzgerald, working with the I-49 squad on al-Qaeda cases at the time, will later complain about the lack of information prosecutors receive around the millennium, “Criminal prosecutors received information only in part and with lag time so as not to breach the ‘wall’. The persons who determined what could be shared with the prosecutors were on the other side of the ‘wall,’ making their best guess as to what would be helpful. This was no way to defend our country from imminent attack.” [US Congress, 10/21/2003] Fellow attorney Andrew McCarthy will say this change was not that unusual, and that the “wall” “could be raised or lowered based on Justice’s perception of the threat environment at any given time.” [National Review, 4/13/2004]
Three of the men convicted for the World Trade Center bombing (see February 26, 1993)—Mohammed Salameh, Mahmud Abouhalima, and Nidal Ayyad—are allowed to write about 90 letters from inside the Supermax prison in Florence, Colorado, encouraging fellow extremists around the world. Some of the letters are sent to Morocco and some to a militant cell in Spain. In one, addressed to cell leader Mohamed Achraf, who will be arrested in late 2004 for attempting to blow up the National Justice Building in Madrid (see July-October 18, 2004), Salameh writes, “Oh, God, make us live with happiness. Make us die as martyrs. May we be united on the day of judgment.” Other recipients have links to the 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004). One of Salameh’s letters, in which he calls Osama bin Laden “the hero of my generation,” is published in a newspaper in July 2002, but this does not result in any new security attempts to stop other letters. The letters urge readers to “terminate the infidels” because “Muslims don’t have any option other than jihad.” Former prosecutor Andrew McCarthy wonders, “He was exhorting acts of terrorism and helping recruit would-be terrorists for the jihad from inside an American prison.” Terrorism specialist Hedieth Mirahmadi says the letters would have been especially useful for recruitment because the convicted bombers have “a power that the average person or the average imam in a mosque doesn’t have.” Attorney General Alberto Gonzales will later comment, “I was surprised. Didn’t seem to make any sense to me and I’m sure the average American would have to wonder, ‘How could this happen?’” Staff at the prison noticed the letters were unmonitored and complained in 2003, but it apparently took management several months to impose a tighter regime. [MSNBC, 3/1/2005; MSNBC, 3/9/2005]
9/11 Commissioner Jamie Gorelick is attacked for her role in extending the ‘wall’. [Source: Associated Press / Charles Dharapak]Attorney General John Ashcroft’s testimony before the 9/11 Commission (see April 13, 2004) sparks a wave of attacks against 9/11 Commissioner Jamie Gorelick, who was Deputy Attorney General during the Clinton administration. In 1995 Gorelick played a leading role in extending the “wall,” a set of procedures that regulated the passage of information from FBI intelligence agents to FBI criminal agents and prosecutors (see March 4, 1995 and July 19, 1995). Ashcroft calls the wall “the single greatest structural cause for September 11.” The attacks include:
On April 14 James Sensenbrenner, chairman of the House Judiciary Committee, calls on Gorelick to resign because of her “crippling conflict of interest.” He says “the public cannot help but ask legitimate questions about her motives” and argues that the commission will be “fatally damaged” if she continues. Other Republican congresspersons repeat this call;
On April 16 House Majority Leader Tom Delay writes to Commission Chairman Tom Kean saying Gorelick has a conflict of interest and accusing the commission of “partisan mudslinging, circus-atmosphere pyrotechnics, and gotcha-style questioning,” as well as undermining the war effort and endangering the troops;
Criticism of Gorelick also appears in several media publications, including the New York Times, New York Post, National Review, Washington Times, and Wall Street Journal. For example, an op-ed piece published in the New York Times by former terrorism commissioners Juliette Kayyem and Wayne Downing says the commissioners are talking too much and should “shut up.” [National Review, 4/13/2004; National Review, 4/19/2004; Kean and Hamilton, 2006, pp. 200-203]
On April 22 Senator Christopher Boyd and ten other Republican senators write to the commission calling on Gorelick to testify in public;
On April 26 Congressman Lamar Smith and 74 other Republicans write to Gorelick demanding answers to five questions about her time as deputy attorney general;
On April 28 the Justice Department declassifies other memos signed by Gorelick;
In addition to hate mail, Gorelick receives a bomb threat, requiring a bomb disposal squad to search her home.
Commission Chairmen Tom Kean and Lee Hamilton will call this an “onslaught” and say her critics used the wall “as a tool to bludgeon Jamie Gorelick, implicate the Clinton administration, and undermine the credibility of the commission before we had even issued our report.” Gorelick offers to resign, but the other commissioners support her and she writes a piece for the Washington Post defending herself. [Washington Post, 4/18/2004; Kean and Hamilton, 2006, pp. 200-205] When the commission meets President Bush and Vice President Cheney at the end of the month (see April 29, 2004), Bush tells Kean and Hamilton he does not approve of memos being declassified and posted on the Justice Department’s website. At this point, the commissioners realize “the controversy over Jamie Gorelick’s service on the commission was largely behind us.” That afternoon, the White House publicly expresses the president’s disappointment over the memos and the effort to discredit Gorelick loses momentum. [Kean and Hamilton, 2006, pp. 208, 210]
Entity Tags: Lee Hamilton, Wayne Downing, Lamar Smith, Thomas Kean, Juliette Kayyem, Jamie Gorelick, James Sensenbrenner, Andrew McCarthy, John Ashcroft, Christopher Boyd, George W. Bush, Foreign Intelligence Surveillance Act, Tom DeLay
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
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