Wednesday, April 14, 2004

As was thoroughly predictable in this election year, the September 11 commission’s hearings and surrounding commentary have rapidly degenerated into an exercise in monumental finger-pointing.

Hoping to undermine President Bush’s national security credentials, many Democrats, and a large chunk of the media, have sought to exonerate the Clinton administration, which failed to deal with al Qaeda over its eight years in office. Their claim is that, unlike the incoming Bush administration, Clinton officials had at least appreciated the strategic predicament al Qaeda presented. They agonized about it, held many long meetings devoted to the subject and tried to push a recalcitrant and ossified national security bureaucracy “to shake the trees,” in Richard A. Clarke’s vernacular.

Leaving aside the question of whether the quality of one’s statecraft should be judged by the same emphatic criteria as personal relationships, rather than by the actual policy outcomes, a just-declassified Clinton-era memo delivers a devastating blow to these arguments. It suggests that the Clinton administration viewed the al Qaeda threat in sufficiently benign terms to give up voluntarily key governmental tools that could have been brought to bear on the problem.

By now, even casual observers must be sufficiently well-versed in the legal, bureaucratic and policy milieu associated with pre-September 11 U.S. counterterrorism efforts to recognize that one important problem, perhaps the most important, was the failure of various government agencies to share critical intelligence information — information that might have allowed someone to begin “connecting the dots.”

To some extent, this failure may be attributed to human error, bureaucratic rivalries and the dissimilar institutional cultures involved. However, the most important obstacle to effective information sharing was driven by legal imperatives. In particular, at the time, information collected pursuant to special warrants issued under the Foreign Intelligence Surveillance Act (FISA), which does not require a “probable cause” finding, could not be generally shared with the personnel responsible for enforcing federal criminal statutes, creating a deliberate “wall of separation.” This rule has now been fundamentally altered, based, in particular, on a decision of the special FISA court of appeals. It found that, even absent a probable cause showing, there was a substantial constitutional equivalence between the overall FISA scheme and Fourth Amendment requirements governing criminal investigations.

In its time, however, this wall of separation meant that counterintelligence information developed about al Qaeda and other groups was deliberately kept from the law enforcement personnel who were investigating al Qaeda’s activities. Only when the informtion clearly and definitively suggested the existence of a significant federal crime could the material be shared between the counterintelligence and law enforcement sections of the Justice Department and FBI.

Needless to say, intelligence rarely comes in neatly wrapped packages, and counterintelligence personnel are not as practiced in spotting patterns of criminal wrongdoing as career prosecutors.

To be fair, of course, this wall of separation did not originate during the Clinton administration. At the same time, Clinton officials took measures to bolster that barrier, as was spectacularly revealed earlier this week by the release of a declassified memo, authored by the then-Deputy Attorney General Jamie Gorelick, now a member of the September 11 commission. The document, dated March 4, 1995, was addressed to Mary Jo White, the New York-based U.S. attorney investigating the first World Trade Center bombing and related matters, and to FBI Director Louis Freeh. It indicates, in clear and precise terms, that the Clinton administration had decided, purely as a matter of policy, to go beyond what they believed to be the law’s minimum requirements and to adopt an even more stringent wall of separation between counterintelligence and law enforcement officials, further choking anti-terror information sharing. In a key sentence of the March 4 memorandum, Ms. Gorelick instructed Ms. White and Mr. Freeh to follow information-sharing procedures “which go beyond what is legally required,” so as to avoid “any risk of creating an unwarranted appearance” that the Justice Department was using FISA warrants, instead of normal criminal investigative techniques, as a means of short circuiting civil-liberties protections.

Ms. Gorelick’s March memo was followed, on July 19, 1995, by a directive from Attorney General Janet Reno, this time addressed to all U.S. attorneys and the head of the Justice Department’s criminal division, conveying and reinforcing the same message.

At the time, of course, all of this no doubt appeared to make sense, as a means of showing robust support for civil liberties. In the very cold light of a post-September 11 day, however, the reflection is somewhat different. Surely both Ms. Gorelick and Miss Reno recognized that the FISA wall of separation impaired the efficiency of U.S. government counterterror efforts. A discretionary policy decision to go an extra mile in strengthening this wall clearly suggests that the Clinton administration was no more attuned to the very real and growing threat posed by al Qaeda than its Bush administration successors may have been in their first few months, and was perhaps substantially less so. To paraphrase Mr. Clarke, they were effectively instructing their subordinates not to even dare shake the trees.

Messrs. Rivkin and Casey are partners in the Washington, D.C. office of Baker & Hostetler LLP, and served in the Justice Department under Presidents Reagan and George H.W. Bush.

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