Since it was first reported that information identifying lead 9-11 hijacker Mohammed Atta may have been withheld from law enforcement officials more than a year before the September 11, 2001, terrorist attacks, conservative media figures including the New York Post's Deborah Orin and radio host Rush Limbaugh have used the alleged incident to claim that a "wall" purportedly enacted -- or at least expanded -- under the Clinton administration blocked intelligence sharing that could have prevented the attacks. In his April 2004 testimony before the 9-11 Commission, former Attorney General John Ashcroft launched the false accusation by claiming that then-deputy attorney general Jamie Gorelick prevented critical information coordination leading up to the 9-11 attacks by issuing a memo in 1995 setting out the "wall's" restrictions.
In fact, the "wall" was established well before President Clinton took office; according to the 1995 memo itself, Gorelick intended to codify procedures for the sharing of information between intelligence agencies and law enforcement officials to make sure evidence gathered by such agencies would be admissible in criminal prosecutions. An August 14 report by Time magazine punctured holes in the Atta allegations themselves, noting among other things that Rep. Curt Weldon (R-PA) now acknowledges that he is "no longer certain" that Atta's name was on a chart Weldon claimed identified Atta prior to 9-11. But to the extent that pre-9-11 intelligence was not shared among agencies, the 9-11 Commission and even the Ashcroft-led Justice Department have determined that it was primarily a misapplication of the 1995 guidelines issued by the Clinton Justice Department, and not the guidelines themselves, that stifled intelligence sharing prior to 9-11.
The "wall" was built before the Clinton administration and retained by the Bush administration
Many conservatives have echoed Ashcroft's accusation that the Clinton administration was responsible for enacting the "wall." For example, New York Post Washington bureau chief Orin wrote in an August 12 column that a "prime reason" that law enforcement was not warned about Atta and three other 9-11 hijackers was that Gorelick "issued a 1995 order creating a 'wall' that blocked intelligence on terrorists from being shared with law enforcement." On August 11, Limbaugh for the third straight day blamed the Clinton administration for the "wall" on the nationally syndicated Rush Limbaugh Show:"[T]here have to be reasons why this wall was built. There have to be reasons why the Clinton Defense Department didn't want it known after the fact that they knew Mohamed Atta was in the country a year before 9-11." Limbaugh read the Orin article aloud on his August 12 program.
But the joint House and Senate intelligence committees' report of pre-September 11 intelligence failures assessed that the "wall" was "constructed over 60 years," and a 2002 ruling of the top-secret Foreign Intelligence Surveillance Court of Review found that the "wall" originated "at some point during the 1980s." Even the Ashcroft-led Justice Department recognized as much in a July 2004 report on the impact of the USA Patriot Act: "During the 1980s, the Department operated under a set of largely unwritten rules that limited to some degree information sharing between intelligence and law enforcement officials."
Further, the current Bush administration maintained the "wall" to at least the same extent that the Clinton administration did. A memo issued by Ashcroft's deputy attorney general Larry D. Thompson in August 2001 reauthorized the "wall" and even proposed expanding it by prescribing "additional requirements":
On July 19, 1995, the Attorney General adopted Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations (1995 Procedures). The 1995 Procedures remain in effect today. On January 21, 2000, the Attorney General adopted additional measures regarding intelligence sharing in response to the Interim Recommendations proposed by Special Litigation Counsel Randy Bellows (Interim Measures). The Interim Measures also remain in effect today. The purpose of this memorandum is to restate and clarify certain important requirements imposed by the 1995 Procedures and Interim Measures, and to establish certain additional requirements.
Misinterpretation of the memo -- not the memo itself -- prevented intelligence sharing
While Orin and Limbaugh blamed the Clinton administration for enacting the "wall," other conservatives took a more nuanced -- but still incorrect -- approach to Gorelick's role in developing the "wall." For example, while conceding on her weblog that Media Matters for America was correct in documenting Limbaugh's previous false claims that Gorelick enacted the "wall," right-wing pundit Michelle Malkin cited an April 14, 2004, Wall Street Journal editorial as evidence that "Gorelick bears responsibility too."
Adopting the argument Ashcroft made during his April 13, 2004, testimony before the 9-11 Committee, the Journal editorial asserted that "the wall was raised even higher in the mid-1990s" when Gorelick issued a March 4, 1995, memo that "instructed then-FBI Director Louis Freeh and United States Attorney Mary Jo White that for the sake of 'appearances' they would be required to adhere to an interpretation of the wall far stricter than the law required."
But the Journal's suggestion that Gorelick's memo established rules that prevented critical intelligence sharing is unfounded. Both the 9-11 Commission and Ashcroft's Justice Department have noted that if the "wall" further stymied intelligence sharing in the years following the Gorelick memo, it was due to a misinterpretation of the memo and the guidelines that it established. The 9-11 Commission wrote, "there was far less information sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the department's procedures," because the 1995 guidelines adopted from the Gorelick memo were "almost immediately misunderstood and misapplied." Similarly, in its report on the Patriot Act, the Ashcroft Justice Department determined that information sharing was "more limited in practice than was allowed in theory under the Department's procedures" because of "confusion about when sharing was permitted" and concern that "improper information sharing could end a career":
To be sure, the procedures were intended to permit a degree of interaction and information sharing between prosecutors and intelligence officers, while at the same time ensuring that the FBI would be able to obtain or continue FISA coverage and later use the fruits of that coverage in a criminal prosecution. Over time, however, coordination and information sharing between intelligence and law enforcement investigators became even more limited in practice than was allowed in theory under the Department's procedures. Due both to confusion about when sharing was permitted and to a perception that improper information sharing could end a career, a culture developed within the Department sharply limiting the exchange of information between intelligence and law enforcement officials.
While fielding questions from the 9-11 Commission, Ashcroft blamed the Gorelick memo for creating the "wall," but acknowledged (registration required) that it was actually a "culture" that developed from the memo, not the memo itself, that severely restrained intelligence sharing:
I believe that the understanding of the wall that was prevalent in the Justice Department and among attorneys was that individuals who shared information from a criminal file or from an intelligence file to a criminal file might be subject to serious discipline. And the [Gorelick] memorandum of which I spoke, which was crafted in 1995, specifically indicated that it was based on an understanding at that time held that the law would not countenance certain exchanges. I believe it was a mistaken impression of the law which was later corrected by the rulings of the FISA court of appeals.
So it's my clear belief that the wall itself developed this culture which restrained in a substantial way the exchange of information in the intelligence and law enforcement communities.
Ashcroft's claim that the Gorelick memo is responsible for the "culture" of the wall is apparently at odds with the Justice Department's report on the Patriot Act, which assessed that the "wall" was "a set of largely unwritten rules that limited to some degree information sharing" in the 1980's. But even Ashcroft himself acknowledged that this "culture" continued into the Bush administration until the September 11 attacks. As Ashcroft told the 9-11 Commission panel, it was not until the Patriot Act was passed in October 2001 that the "wall" was "take[n] down":
Now, let me just say that when we enacted the Patriot Act, we did so believing that this culture needed to have a clear signal that the wall did not and should not inhibit this kind of cooperation. The Patriot Act did take down the wall.
Gorelick memo likely intended to enhance intelligence sharing, not prevent it
While it is true that the Gorelick memo suggested a series of procedures that went "beyond what is legally required," it stated that those procedures were not intended to prevent intelligence sharing -- the memo specifically noted that "the counterintelligence investigation may result in the incidental collection of information relevant to possible future criminal prosecutions." Rather, as the memo noted, it was intended as "a set of instructions" for intelligence sharing that would encourage more cooperation by alleviating concerns about improper coordination between law enforcement officials, who faced greater limits on their investigative abilities, and intelligence agencies, which worked under less restrictive intelligence gathering procedures:
Because the counterintelligence investigation will involve the use of surveillance techniques authorized under the Foreign Intelligence Surveillance Act (FISA) against targets that, in some instances, had been subject to surveillance under Title III, and because it will involve some of the same sources and targets an the criminal investigation, we believe that it is prudent to establish a set of instructions that will 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.
According to Gorelick, the memo clarified the informal rules against intelligence sharing in order to enhance coordination between intelligence agencies and law enforcement officials. Gorelick has stated she was concerned that without formal rules, intelligence sharing would occur in improper ways that would invalidate criminal prosecutions, or that intelligence sharing would not occur at all. As she wrote in an April 18, 2004, op-ed in The Washington Post:
My memo directed agents on both sides to share information -- and, in particular, directed one agent to work on both the criminal and intelligence investigations -- to ensure the flow of information "over the wall." We set up special procedures because of the extraordinary circumstances and the necessity to prevent a court from throwing out any conviction in those cases."
Finally, the Journal's claim that Gorelick issued the memo "for the sake of 'appearances' " is a misrepresentation of what she said. As Gorelick noted in the memo, the procedures she outlined were not put forth out of a concern about public relations, but rather about how things appeared to a criminal court that might bar the admission of evidence because of how it was obtained: "These procedures ... will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards that would apply in a criminal investigation."