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By Heather Mac Donald
CIA director George Tenet warned recently that the threat from al Qaeda is as high as it was before 9/11. Unfortunately, there is another parallel to the pre-9/11 environment: Clinton-era guidelines that had paralyzed the county's intelligence agencies by 2001 - and still govern our anti-terrorism efforts.
The Bush administration is fighting to revoke those guidelines in the most important anti-terror litigation since 9/11. The outcome of that case will determine whether the United States will have the intelligence capacity to defeat al Qaeda.
Osama bin Laden couldn't have drafted better rules for ensuring that his operatives could plan in peace than intelligence guidelines drafted in 1995 by then-Attorney General Janet Reno and immediately dubbed "the Wall." It is by now a truism that terrorism will be foiled only by unfettered information-sharing and collaboration. The Wall guaranteed the opposite.
Let's say FBI agents Dell and Simpson both work in New York City's FBI office. Agent Dell has a wiretap on Mahmoud, a Yemeni in Brooklyn, suspected of connections to an al Qaeda cell. Agent Simpson is working the criminal case against the al Qaeda bombing of USS Cole in Yemen.
In a rational world, Dell and Simpson would talk to each other about their investigations, for each agent possesses knowledge that may help the other. In a recent tapped phone conversation, for example, Mahmoud had mentioned a dying swan and several names that Dell doesn't recognize. Unbeknownst to Dell, Simpson is familiar with Mahmoud's code and had come across one of the named people several years ago. If the two agents collaborated, both their cases would advance immeasurably.
THAT is not the world of the Wall, however. Per the Wall, Dell and Simpson can't talk to each other. Only if Dell obtains permission from layer upon layer of FBI and Justice Department bureaucracy may he show Mahmoud's phone conversation to Simpson. Even if permission is granted, Dell and Simpson may discuss the wiretap only in the presence of a bureaucrat "chaperone," to insure that Simpson does not advise Dell how to improve the Brooklyn cell investigation.
The Reno guidelines erect another wall between counterterrorism agents and prosecutors. Even though some U.S. attorneys had developed valuable knowledge about al Qaeda, they are not allowed to talk to intelligence investigators except under tightly-controlled supervision, following lengthy bureaucratic vetting.
Even then, they are prohibited from suggesting strategies to improve the government's chances of locking away terrorists for life. Mary Jo White, former New York U.S. Attorney and the most seasoned al Qaeda prosecutor before 9/11, observes: "The walls are the single greatest danger we have blocking our ability to obtain and act on [terrorist] information."
This deadly system for squelching knowledge grew out of a 1978 law passed in the high season of post-Watergate grandstanding. The Foreign Intelligence Surveillance Act (FISA) put national security under the aegis of judges for the first time in history. Under FISA, the president and FBI can wiretap foreign spies or terrorists and their American collaborators only if granted permission from a specially created court - the FISA court.
NO sooner had FISA passed than civil libertarian zealots started braying for more restrictions on our intelligence capacity. They argued that power-mad prosecutors would hijack FISA to wiretap garden-variety domestic criminals.
This argument was ludicrous: FISA's probable-cause standards defining who could be surveilled make such a scenario impossible.
No matter. To avert a wholly non-existent threat, an artificial distinction developed between intelligence and criminal anti-terror investigations. FISA could be used to gather "pure" foreign intelligence information, the thinking went, but not to learn about an al Qaeda plot to blow up the Brooklyn Bridge, if the government's potential goal was to prosecute the plotters.
This distinction is nonsense. Terrorism is a crime, so any intelligence investigation of terrorism is also a criminal investigation. Prosecution disables terrorists and should be regarded as a legitimate purpose of a FISA tap. Criminal agents and prosecutors should be involved in terrorist investigations from Day One, since their knowledge may provide the crucial missing link in a case.
The Wall took these absurd distinctions to their insane conclusion. The ink had barely dried on the Reno guidelines before America's anti-terror operations suffered a nervous breakdown. Not only did information-sharing stop almost completely, but Justice Department bureaucrats, in full risk-averse mode, started imposing ever higher probable-cause standards on wiretap requests before they would even ap- proach the FISA court for approval.
The practical result? "We absolutely were unable to check people out," angrily recalls James Kallstrom, former head of the FBI's New York office.
But the worst was still to come. In November 2000, the chief judge of the FISA court, Royce Lamberth, blasted the FBI for 75 trivial breaches of the Wall. The Reno Justice Department, it turned out, was unable to abide by the Reno Wall. The "violations" consisted of minor disseminations of FISA information to criminal anti-terror agents, and failures to disclose that FISA suspects were also being investigated for crimes.
After the court's temper tantrum, the Justice Department went into shock and hunkered down completely. The Wall went even higher. Surveillance requests were strangled under miles of red tape.
Fast forward to August 2001. Coleen Rowley and her FBI agents in Minneapolis were furiously banging their fists against the Wall. They desperately sought permission from FBI headquarters to request a search warrant for one Zacarias Moussaoui, an incompetent and highly suspicious flight student associated with Islamic fundamentalists. FBI bureaucrats, however, still petrified by the Lamberth outburst, quashed the warrant inquiry on grounds far more stringent than FISA itself requires.
HAD the Minneapolis agents searched Moussaoui's effects, they would have found leads to two of the 9/11 hijackers and the Hamburg cell that planned the 9/11 attacks.
A day after shutting down the Moussaoui investigation, the same bureaucrats rejected a New York FBI agent's frantic plea to join an 11th-hour search for Khalid Almihdar, an al Qaeda operative at loose in the country.
The agent and his men were on the wrong side of the Wall: They were anti-terror criminal investigators, and Almihdar was not yet under investigation for a crime. Almihdar was never found. Thirteen days later, he commandeered American Airlines Flight 77 into the Pentagon.
RATHER than expose this sorry history, the elite press has shamelessly distorted it. In May 2002, Coleen Rowley complained to FBI Director Robert Mueller about the Wall's crippling effect on the Moussaoui investigation. The media instantly turned her into a feminist heroine, who had courageously blown the whistle against a male bastion of Republican incompetence (a k a. the FBI).
But when Attorney General John Ashcroft tried to tear down the Wall later this year - just what Rowley was demanding - the intelligentsia saw only impending tyranny.
Ashcroft had submitted to the FISA court proposed new FISA guidelines that would allow full information-sharing among the nation's anti-terror forces. Judge Lamberth starchily rejected the revised guidelines - hardly surprising, since the architect of the Wall guidelines in the Clinton administration now advises the FISA court on legal matters.
When Lamberth's opinion leaked this August, the anti-Ashcroft media machine let out a whoop and ramped into high gear.
ACCORDING to opinion-makers, the United States had just avoided becoming a police state. Coleen Rowley was out of sight and out of mind. The media howled over the 75 Wall violations, disclosed for the first time in the Lamberth opinion, while only sporadically pointing out, and then only sotto voce, that those violations had all occurred on President Clinton's watch.
The opinion elites pulled off an impressive sleight-of-hand: They argued that the Wall was the only thing standing between liberty and Mr. Ashcroft's jackboots, without ever letting on what it was.
The Justice Department has appealed the FISA court's rejection of the proposed anti-Wall guidelines. If the department loses on appeal, Congress must act immediately to tear down the Wall. America cannot afford to let hothouse legalisms drag down its counterterrorism capacity any longer.
Many of the "intelligence failures" for which the press has so gleefully criticized the Bush administration were in fact mandated by the Wall and other crippling restrictions. Nearly 40 years of liberal intellectual hegemony over national security issues have left the country terrifyingly vulnerable to real enemies, not imagined ones like President Bush and John Ashcroft.
Heather Mac Donald is the author of "The Burden of Bad Ideas." Adapted from the Autumn issue of City Journal, where Mac Donald is a contributing editor.
©2002 New York Post
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