Fingers Point at an Intelligence ‘Wall’

The scapegoat emerging from the Sept. 11 commission inquiry isn’t an elected official or agency but an obscure government policy that came to be known as “the wall.”

On Tuesday, as FBI, CIA and Justice Department officials continued to point the finger of blame at one another, they all seemed to agree that the wall was the overarching villain. Atty. Gen. John Ashcroft, for one, described it as “the single greatest structural cause for Sept. 11.”

The wall -- the long-standing rule prohibiting criminal investigators and intelligence agents from sharing information with each other -- has since been significantly lowered in a series of post-Sept. 11 reforms.

Whether that wall is dismantled completely -- or the FBI itself is dismantled by having its intelligence function taken away -- is fast becoming a central focus of the commission’s independent investigation.

As President Bush alluded to in his news conference Tuesday night, it is not just the future makeup of the FBI that will be affected by the commission’s findings, which are to be released July 26. The commission members say they are sufficiently troubled by intelligence-gathering efforts of the FBI and CIA that they might recommend wholesale changes in the U.S. intelligence-gathering apparatus.

Central to that determination, several commissioners said Tuesday, is whether the wall really made the terrorist attacks possible, or if it has been a convenient excuse used by the FBI and CIA to cover up far deeper institutional shortcomings.

If the commission decides the former, several members said, they would probably vote to allow FBI Director Robert S. Mueller III to continue his aggressive efforts to re-engineer the bureau as a domestic intelligence-gathering agency at the heart of the effort to protect the U.S. from terrorist attacks.

Otherwise, the bipartisan panel may call on the Bush administration and Congress to wrest domestic intelligence-gathering efforts from the FBI and give it to the Department of Homeland Security or some new and independent agency.

On Tuesday, former FBI Director Louis J. Freeh acknowledged problems in the use and interpretation of the wall, not only by his agents but by the CIA and the Justice Department.

But Freeh said the FBI should be allowed to continue its reform efforts, and that setting up a separate domestic intelligence agency would take a decade to implement, create more bureaucracy and perhaps lead to a police state that intrudes on the lives of citizens.

“A lot of the good work of this commission has been to identify the barriers that existed, and still exist, between intelligence and law enforcement,” Freeh said. “Standing up a separate intelligence agency will just increase those barriers. And if you thought the wall was a big one, that’s a fortress, in my view, and will make for a very ineffective counter-terrorism program, and I think expose the country to dangers.”

Testimony on Tuesday by Freeh, former Atty. Gen. Janet Reno and other law enforcement and intelligence officials underscored the pluses, the minuses and most of all the complexities of the wall.

The wall dates to the 1978 Foreign Intelligence Surveillance Act, written to protect citizens from overreaching federal agencies -- the CIA and FBI alike -- that might be tempted to use the particularly invasive investigative powers granted for certain intelligence-gathering operations in a far broader array of domestic criminal cases.

Those powers include special wiretaps and searches that are approved by a secret panel of judges in cases in which the country’s national security is deemed to be at stake, as well as investigations into terrorism conducted overseas by CIA agents, who operate under far fewer restrictions than FBI agents operating domestically.

Over time, the wall unduly restricted the flow of information, in part because of an overly narrow interpretation of the law by the Justice Department, the FBI and the CIA, a report by the Sept. 11 panel staff concluded Tuesday.

For example, before Sept. 11, FBI agents and Justice Department prosecutors took the lead role in most major counter-terrorism cases, traveling the world and investigating such criminal cases as the bombings of two U.S. Embassies in Africa in 1998 and the strike against the destroyer Cole in Yemen in 2000.

But even though those cases involved operatives from the Al Qaeda terrorist network, the wall prohibited FBI officials working on the criminal prosecutions from receiving information from FBI and CIA agents gathering other Al Qaeda intelligence.

The staff noted that as early as 1995, Reno instituted procedures aimed at forcing those various agencies to share more information -- particularly if intelligence-gathering efforts uncovered evidence that a significant federal crime “has been, is being, or may be committed.”

Reno issued additional guidelines in February 2000 urging more information sharing, as did Ashcroft’s deputy, Larry Thompson, in August 2001, according to the staff report. Even so, the report concludes, “The wall remained a source of considerable frustration and concern.”

After the Sept. 11 attacks, the restrictions were weakened significantly after Ashcroft, a majority of Congress and others concluded that the wall had hampered counter-terrorism efforts. Today FBI and CIA agents and federal prosecutors are encouraged to share as much information as possible.

On Tuesday, Ashcroft, former CIA counter-terrorism director J. Cofer Black and others said the wall had been responsible for many of the institutional failures of the FBI and CIA that left the country vulnerable to the Sept. 11 attacks.

Had it not been there, they said, the FBI might have gotten better intelligence from overseas and from its agents in the United States, and possibly apprehended two of the hijackers as they lived in San Diego in the summer of 2001.

But Reno said the commission needed to focus on significant reforms of the FBI, CIA and Justice Department. She said the wall was never overly restrictive, just interpreted incorrectly all these years. “There [were] simply no walls or restrictions on sharing the vast majority of counter-terrorism information,” Reno told the commissioners.