"Tear Down This Wall"
By Ryan Walsh (04/21/04)
According to its charter, the 9-11 Commission is to "prepare a full and complete account" (emphasis mine) of the circumstances preceding and surrounding the terrorist attacks of September 11, 2001. Last week, Attorney General John Ashcroft testified before the commission. During his testimony, he delivered this curt admission: "…the simple fact of September 11 is this: we did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies."
The "blinder" he is referring to is the so-called government-imposed "wall" that prevents intelligence agents from sharing information with law enforcement officials who are literally across the hall. In order to understand this "wall," one must understand its history, which stretches back to the Nixon era. Here’s some background.
Near the end of Vietnam and the beginning of Watergate, the Nixon Administration grossly abused its executive power by ordering the FBI and the CIA to spy on anti-war demonstrations and various political opponents. These actions were technically lawful but were executed in bad faith. In cases involving national security—unlike criminal cases—the executive department had the power to "spy" without judicial permission. After Nixon’s abuses were exposed, Congress erupted in furor and outrage. It immediately chartered two commissions—the Church and Pike Commissions—to discover a way to curb the executive branch’s power to search and wiretap without a court order.
The commissions made their recommendations, and Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978. This law required intelligence agents to report to a special FISA court for permission to tap a suspect’s phone, but the agents first had to convince the court that the suspect was working for a foreign power.
Soon the government worried that investigators would use FISA to compile information on criminal activity and pass it on to law enforcement agents to be used for criminal prosecution. The courts shared this concern and established the "primary purpose" test. According to prosecutor Andrew McCarthy, the test required "the government to prove that its real reason for using FISA had been to conduct a national security investigation, not to build a criminal case." Since terrorists routinely commit ordinary crimes—violations of immigration law, computer hacking, etc.—this limitation was particularly painful. Any contact between intelligence agents and law enforcement officials could now be legally questioned.
In 1995, the government solved this problem. The Clinton Justice Department simply prohibited intelligence and law enforcement agents from communicating with each other. The wall was erected further.
It’s worth noting the person responsible for this: Jamie Gorelick, who was Deputy Attorney General under Clinton, is one of the ten members of the 9-11 commission. Repeat the previous sentence ten times aloud and then try to tell me with a straight face that this commission is objective and impartial.
Here’s an example of the wall at work. On August 17, Zacarias Moussaoui, now infamously known as the "20th highjacker," was arrested on immigration charges. After the Minnesota FBI learned he was attending flight school, they immediately sought permission under FISA to search Moussaoui’s computer. They were denied since they supposedly failed to prove Moussaoui was "in preparation for…international terrorism." Whoops.
If they had been granted a court order to search his computer, they would have found that, oddly enough, Moussaui was studying the air currents over New York City. They might have also discovered information on his other terrorist buddies—all 19 of the hijackers.
The Patriot Act dismantled part of this "wall," but it’s time now to finish the job.
Congress, tear down this wall.
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