Discussing the possibility that the Obama Justice Department could prosecute Bush administration officials who authorized torture, Bill O'Reilly falsely claimed during the April 22 edition of Fox News' The O'Reilly Factor that "[Attorney General] Eric Holder and [former Attorney General] Janet Reno put the wall up between the FBI and the CIA, which led to the 9-11 attacks. If anybody should be prosecuted it's him. ... Holder is your guy." In fact, the 1995 Justice Department memo and guidelines to which O'Reilly referred only addressed communications among divisions within DOJ, clarifying longtime unwritten restrictions on the sharing of information between the FBI's intelligence arm and DOJ's criminal division. They had no impact on communications between the FBI and the CIA, the Department of Defense, or any other agencies. O'Reilly should know this; when he previously adopted the “wall” falsehood, 9-11 Commission member and former Sen. Slade Gorton (R-WA) told O'Reilly that the policies in question made “no limitation on any intelligence agency sharing anything with any other intelligence agency at all.”

As Media Matters for America noted, on the August 22, 2005, edition of The O'Reilly Factor, O'Reilly falsely claimed that former deputy Attorney General Jamie Gorelick's “involvement in building a symbolic wall between U.S. intelligence agencies and those investigating criminal activity” aided in creating “mass confusion among the agencies that are supposed to protect us” before the 9-11 terrorist attacks. O'Reilly also declared, "[W]hat I know to be true is that there was a tremendous amount of confusion, from 1995 onward after this crazy act that Janet Reno for some reason in her office made everybody aware of, that intelligence sources overseas were not to brief criminal investigators like the FBI." Gorton responded in part by saying that "[t]here was no limitation on any intelligence agency sharing anything" and that “nothing Jamie Gorelick wrote had the slightest impact on the Department of Defense or its willingness or ability to share intelligence information with other intelligence agencies.” Gorton also noted that the purported “wall” predated Gorelick and Reno and was actually “created by laws sponsored by the Church Committee back in the 1970s” and “went all the way through until after 9-11 was over.”

Former Attorney General John Ashcroft noted in his testimony before the 9-11 Commission on April 13, 2004, that the Gorelick memo provided the “basic architecture” for the 1995 guidelines established by Reno that formalized rules for intelligence sharing that were already in place. But, as the 1995 guidelines clearly state, the Gorelick memo and the guidelines applied only to intelligence sharing “between the FBI and the Criminal Division” within the Justice Department, not “between the FBI and the CIA”:

SUBJECT: Procedures for Contacts Between the FBI [intelligence/counterintelligence functions] and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations

The procedures contained herein, unless otherwise specified by the Attorney General, apply to foreign intelligence (FI) and foreign counterintelligence (FCI) investigations conducted by the FBI, including investigations related to espionage and foreign and international terrorism. The purpose of these procedures is to ensure that FI and FCI investigations are conducted lawfully, and that the Department's criminal and intelligence/counterintelligence functions are properly coordinated.

While repeating the “wall” falsehood, O'Reilly also falsely claimed that “Holder was second in command to Janet Reno” at the time the “wall” was created. In fact, Holder did not replace Gorelick as deputy attorney general until 1997 -- two years after the Justice Department issued the 1995 memo and guidelines that conservatives claim created the “wall.”

From the April 22 edition of Fox News' The O'Reilly Factor:

ELLIS HENICAN (Fox News political analyst and Newsday columnist): I am on the side of doing something very simple here. Let's have an investigation. Let it be --

O'REILLY: Headed by whom?

HENICAN: Let it be -- let the Justice Department decide about the crimes that were committed here.

O'REILLY: Oh, Holder? You want Holder in charge of that?

HENICAN: Let the -- let the facts be gathered here. And let the facts lead. Why are you scared of the facts?

O'REILLY: Hold it. Do you know --

HENICAN: Why won't you let us gather the facts --

O'REILLY: -- Eric Holder is?

HENICAN: -- and take them where they lead?

O'REILLY: Do you know who Eric Holder is?

HENICAN: He's the attorney general of the United States.

O'REILLY: Do you know what he did?

HENICAN: And professionals in that office are going to make this decision, not Eric Holder.

O'REILLY: OK. Now, you listen to me.

HENICAN: Professionals in this office. That's the facts, O'Reilly.

O'REILLY: You listen to me. Eric Holder was second in command to Janet Reno. Eric Holder and Janet Reno --

HENICAN: Well --

O'REILLY: -- put the wall up between the FBI and the CIA --

HENICAN: And you -- and you didn't --

O'REILLY: -- which led to the 9-11 attacks.

HENICAN: And you were happy -- and you were happy --

O'REILLY: If anybody should be prosecuted --

HENICAN: You were happy when Gonzales was making --

O'REILLY: -- it's him.

HENICAN: You were happy when Gonzales was making these decisions. Here's the reality: Why don't we do this in this country? Let's handle this the way we handle everything, which is to allow the professionals in the Justice Department to conduct a proper investigation.

O'REILLY: The professionals in the Justice Department.

HENICAN: You stay away from the politics, though. You quit meddling --

O'REILLY: Holder is your guy.

HENICAN: You quit meddling in the politics, and you let the facts speak for themselves. If this --

O'REILLY: This -- Holder --

HENICAN: If this is illegal, I want people to go to jail.

O'REILLY: Holder is not qualified to do this. And -- hey --

HENICAN: Well, he's the attorney general of the United States.

O'REILLY: -- here's the deal.

HENICAN: He was approved.

O'REILLY: If Obama does this, it is the end --

HENICAN: No.

O'REILLY: -- of the Obama presidency.

HENICAN: No, you don't like it. I understand that.

O'REILLY: No, it's the end.

HENICAN: You don't agree with it. I get that.

O'REILLY: And if he gets hit -- if we get hit after he does this --

HENICAN: Oh, you know what?

O'REILLY: -- over.

HENICAN: You know what? Why are you so insistent on politicizing this? Why don't we let the professionals --

O'REILLY: I'm politicizing this?

HENICAN: Why -- yes. Why don't we let the professionals --

O'REILLY: Leahy is the guy calling for it; MoveOn and Soros.

HENICAN: We've got -- we've got politicians on both sides of it yelping. But you're a man who ought to have some values that we share.

O'REILLY: I do.