It wasn't the Gorelick Wall?

Clarice Feldman
A just-declassified monograph written for the 9/11 Commission would have us believe the Clinton-era "Gorelick wall" between police and intelligence can't be blamed. Oh really? Steven Aftergood's Secrecy News alerts us to the release of a previously unreleased analysis of the effect of the Gorelick wall on intelligence sharing before 9/11:

The rise of "the wall" between intelligence and law enforcement personnel that impeded the sharing of information within the U.S. government prior to September 11, 2001 was critically examined in a detailed monograph (pdf) that was prepared in 2004 for the 9/11 Commission.  It is the only one of four staff monographs that had not previously been released.  It was finally declassified and disclosed earlier this month.

In April 2004, Attorney General John Ashcroft testified (pdf) that the failure to properly share threat information in the summer of 2001 could be attributed to Justice Department policy memoranda that were issued in 1995 by the Clinton Administration.  That is an erroneous oversimplification, the staff monograph contends:  "A review of the facts... demonstrates that the Attorney General's testimony did not fairly and accurately reflect" the meaning or relevance of those 1995 policy documents.  For one thing, those policies did not even apply to CIA and NSA information, which could have been shared with law enforcement without any procedural obstacles.

But if Attorney General Ashcroft was misinformed, he was not alone.  The 1995 procedures governing information sharing between law enforcement and intelligence "were widely misunderstood and misapplied" resulting in "far less information sharing and coordination... than was allowed."  In fact, "everyone was confused about the rules governing the sharing and use of information gather in intelligence channels."

"The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand," the 35-page monograph concludes.  "Simply put, there was no legal reason why the information could not have been shared."

The prevailing confusion was exacerbated by numerous complicating circumstances, the monograph explains.  The Foreign Intelligence Surveillance Court was growing impatient with the FBI because of repeated errors in applications for surveillance.  Justice Department officials were uncomfortable requesting intelligence surveillance of persons and facilities related to Osama bin Laden since there was already a criminal investigation against bin Laden underway, which normally would have preempted FISA surveillance.  Officials were reluctant to turn to the FISA Court of Review for clarification of their concerns since one of the judges on the court had expressed doubts about the constitutionality of FISA in the first place.  And so on.  Although not mentioned in the monograph, it probably didn't help that public interest critics in the 1990s (myself included) were accusing the FISA Court of serving as a "rubber stamp" and indiscriminately approving requests for intelligence surveillance.

In the end, the monograph implicitly suggests that if the law was not the problem, then changing the law may not be the solution.  The document, which had been classified Secret, was released with some small though questionable redactions.  See "Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations," 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004.

Color me skeptical. In any event, if the people charged with the day to day administration of these complicated issues all misinterpreted the memo per Ms. Grewe, than the memo and the memo writer were not up to the task. For another, as I recall it, the prosecution and the FBI had information about the perpetrators of the World Trade Center bombing which they were barred by the wall memo from sharing with the CIA. (It was, in sum, the other way around. Domestic researchers couldn't tell those who had access to overseas intelligence and intelligence assets because of the Gorelick Wall.)

Laurie Mylroie adds:

Bravo, Clarice! You're absolutely right! The Gorelick memo was specifically about the 1993 World Trade Center bombing (a point that most people miss for some reason) and it was not misunderstood.  The Clinton administration did not want any proper intelligence investigation of that bombing (or the attacks that followed.)

But the specific context of the Gorelick memo is a bit misstated.  The Gorelick memo was written in response to a request from the US Attorney in the SDNY (Southern District of New York), which prosecuted the World Trade Center bombers in one trial and was in the process of prosecuting the Shaykh Omar (blind shaykh) crew in a second trial, which was ongoing at the time of White's request.

At that point, Ramzi Yousef, mastermind of the WTC bombing, had just been arrested after a failed second plot in the Philippines that targeted US airliners (Manila Air Plot.)  Yousef was to stand trial for the WTC bombing and the Manila Air Plot.

White asked permission to do an intelligence investigation into the WTC bombing -- and Gorelick told her no.  She should stick to the criminal investigation/prosecution and other people would do the intelligence investigation in order to keep the two separate.  White protested, asserting that it was an artificial distinction.

The WTC bombing investigation was a huge, complex investigation.  The immediate consequence of Gorelick's "no" was that the information from the WTC bombing investigation--which involves a lot of confusing, murky data, including phone records, passports, interviews, etc.--would have gone into the hands of people who knew nothing about the subject, and it would have been difficult for them to make much sense of it (the intended effect, I believe.)

A just-declassified monograph written for the 9/11 Commission would have us believe the Clinton-era "Gorelick wall" between police and intelligence can't be blamed. Oh really? Steven Aftergood's Secrecy News alerts us to the release of a previously unreleased analysis of the effect of the Gorelick wall on intelligence sharing before 9/11:

The rise of "the wall" between intelligence and law enforcement personnel that impeded the sharing of information within the U.S. government prior to September 11, 2001 was critically examined in a detailed monograph (pdf) that was prepared in 2004 for the 9/11 Commission.  It is the only one of four staff monographs that had not previously been released.  It was finally declassified and disclosed earlier this month.

In April 2004, Attorney General John Ashcroft testified (pdf) that the failure to properly share threat information in the summer of 2001 could be attributed to Justice Department policy memoranda that were issued in 1995 by the Clinton Administration.  That is an erroneous oversimplification, the staff monograph contends:  "A review of the facts... demonstrates that the Attorney General's testimony did not fairly and accurately reflect" the meaning or relevance of those 1995 policy documents.  For one thing, those policies did not even apply to CIA and NSA information, which could have been shared with law enforcement without any procedural obstacles.

But if Attorney General Ashcroft was misinformed, he was not alone.  The 1995 procedures governing information sharing between law enforcement and intelligence "were widely misunderstood and misapplied" resulting in "far less information sharing and coordination... than was allowed."  In fact, "everyone was confused about the rules governing the sharing and use of information gather in intelligence channels."

"The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand," the 35-page monograph concludes.  "Simply put, there was no legal reason why the information could not have been shared."

The prevailing confusion was exacerbated by numerous complicating circumstances, the monograph explains.  The Foreign Intelligence Surveillance Court was growing impatient with the FBI because of repeated errors in applications for surveillance.  Justice Department officials were uncomfortable requesting intelligence surveillance of persons and facilities related to Osama bin Laden since there was already a criminal investigation against bin Laden underway, which normally would have preempted FISA surveillance.  Officials were reluctant to turn to the FISA Court of Review for clarification of their concerns since one of the judges on the court had expressed doubts about the constitutionality of FISA in the first place.  And so on.  Although not mentioned in the monograph, it probably didn't help that public interest critics in the 1990s (myself included) were accusing the FISA Court of serving as a "rubber stamp" and indiscriminately approving requests for intelligence surveillance.

In the end, the monograph implicitly suggests that if the law was not the problem, then changing the law may not be the solution.  The document, which had been classified Secret, was released with some small though questionable redactions.  See "Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations," 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004.

Color me skeptical. In any event, if the people charged with the day to day administration of these complicated issues all misinterpreted the memo per Ms. Grewe, than the memo and the memo writer were not up to the task. For another, as I recall it, the prosecution and the FBI had information about the perpetrators of the World Trade Center bombing which they were barred by the wall memo from sharing with the CIA. (It was, in sum, the other way around. Domestic researchers couldn't tell those who had access to overseas intelligence and intelligence assets because of the Gorelick Wall.)

Laurie Mylroie adds:

Bravo, Clarice! You're absolutely right! The Gorelick memo was specifically about the 1993 World Trade Center bombing (a point that most people miss for some reason) and it was not misunderstood.  The Clinton administration did not want any proper intelligence investigation of that bombing (or the attacks that followed.)

But the specific context of the Gorelick memo is a bit misstated.  The Gorelick memo was written in response to a request from the US Attorney in the SDNY (Southern District of New York), which prosecuted the World Trade Center bombers in one trial and was in the process of prosecuting the Shaykh Omar (blind shaykh) crew in a second trial, which was ongoing at the time of White's request.

At that point, Ramzi Yousef, mastermind of the WTC bombing, had just been arrested after a failed second plot in the Philippines that targeted US airliners (Manila Air Plot.)  Yousef was to stand trial for the WTC bombing and the Manila Air Plot.

White asked permission to do an intelligence investigation into the WTC bombing -- and Gorelick told her no.  She should stick to the criminal investigation/prosecution and other people would do the intelligence investigation in order to keep the two separate.  White protested, asserting that it was an artificial distinction.

The WTC bombing investigation was a huge, complex investigation.  The immediate consequence of Gorelick's "no" was that the information from the WTC bombing investigation--which involves a lot of confusing, murky data, including phone records, passports, interviews, etc.--would have gone into the hands of people who knew nothing about the subject, and it would have been difficult for them to make much sense of it (the intended effect, I believe.)