Domestic Intelligence,
the "Wall," and the 9/11 Commission
The 9/11 Commission
hearings have highlighted intelligence failures by the FBI and CIA before
September 11. On April 13, 2004, Attorney General Ashcroft told the Commission
that the "wall" between law enforcement and intelligence was
responsible for those failures and that the Patriot Act is responsible for breaking
down that wall. Neither claim is correct.
For an analysis of the
history of the "wall" and the problem of information-sharing between
the FBI and CIA, see the new article:
· "Domestic Intelligence and Civil Liberties" by Kate Martin, SAIS Review, Volume 24, Number 1, Winter-Spring 2004
The article also demonstrates why proposals for a new domestic intelligence agency modeled on Britain's MI5 are ill-advised on
both effectiveness and civil liberties grounds, and outlines a counter-terrorism approach that would facilitate information sharing
while safeguarding civil liberties.
The "wall" metaphor is shorthand for the recognition that separate authorities govern law enforcement and foreign intelligence
investigations against Americans. Those authorities were written following the Church Committee's report of widespread
political spying and other abuses by the FBI and CIA. From the beginning those authorities recognized that international terrorism
was both a law enforcement and intelligence matter and provided for sharing information between the two communities. The
9/11 failures to share information cannot be laid at the feet of the law.
The rules for foreign intelligence--as opposed to criminal-- surveillance and investigations in the United States are found primarily
in three sources:
While
the Attorney General dramatically announced at the April 13 hearing that he was
declassifying the document that created the "wall," written by
Commissioner Gorelick in March of 1995, who was then Deputy Attorney General,
the separation between law enforcement and intelligence existed long before
that date. The Gorelick memo was simply an implementation of more general
procedures, which have been public before now, and which were embraced by
Ashcroft's Justice Department as late as August 6, 2001.
Department
of Justice Documents on Information-Sharing Between Law Enforcement and
Intelligence:
- Memorandum from Deputy AG Gorelick regarding Instructions on Separation of Certain
Foreign Counterintelligence and Criminal Investigations, March 1995. This
is the document declassified by Ashcroft on April 13, 2004.
- Memorandum from Principle Associate Deputy AG Gary
Grindler and Associate Deputy AG Jonathan Schwartz recommending that
the Attorney General Authorize Certain Measures Regarding Intelligence
Matters, January 18, 2000
- Memorandum from Michael Woods, Office of FBI General
Counsel, outlining the procedures for the
submission of affidavits to the Foreign Intelligence Surveillance Court by
FBI agents, April 5, 2001 (Woods Procedures) This memo approves the
1995 procedures with only minor modifications.
- Memorandum from Deputy AG Larry Thompson regarding Intelligence Sharing, August 6,
2001
- Memorandum from Attorney General John Ashcroft
regarding Intelligence Sharing
Procedures for Foreign Intelligence and Foreign Counterintelligence
Investigations Conducted by the FBI, March 6, 2002
Justice Department legal opinions permitted the sharing of even the most sensitive grand jury information:
For more background on sharing intelligence and law enforcement information, see:
For more information, please contact the Center at 202.721.5650 or cnss@gwu.edu.