The Wall and the Least Dangerous Branch

Many of my posts have criticized privacy groups and their doctrines.  How come, some of you have asked?  Aren’t privacy advocates the Ewoks of the policy world — cute and cuddly and easy to like even when they’re on the other side?  After all, most of us share their overall goal.  We would all like more privacy.  We’re all a little uncomfortable with the new places that information technology is taking us.  What harm is there in measures to preserve a bit of the old, comfortable sense of privacy we had before the days of cheap data?

My problem is that I used to believe that too.  I even supported a wall between intelligence gathering and law enforcement because it seemed like a nice, rather harmless way to protect criminal defendants and perhaps the rest of us from the intrusive capabilities of the intelligence community.

As it turned out, though, the wall was anything but harmless in practice.  In fact, we’ve never counted how much harm it caused the US in August 2001, as we stumbled in the dark, trying to piece together the September 11 plot before disaster struck.  

Much of my work in government has been devoted to undoing the harm the wall caused.  But until I started researching it for my book, I had no idea how much it had contributed to 9/11.  In particular, I had not realized that the wall in its later stages was a creature of a special intelligence court, known as the FISA court, that was itself a civil liberties innovation of the Carter years.  I was astonished to discover how aggressively the FISA court had enforced the wall, and how that aggressive stance had distrorted the priorities of counterterrorism investigators.

The 9/11 Commission didn’t highlight this issue.  Perhaps in part it was political correctness; some of the commissioners were determined to show their “courage” by refusing to criticize civil liberties excesses.  A more immediate cause was Attorney General Ashcroft’s accusation that former Deputy Attorney General Jamie Gorelick had been a principal architect of the wall.  The accusation was in fact a bit unfair, my research showed; it also seems to have provoked the 9/11 Commission to unite behind Jamie Gorelick and to focus much of its research on proving that she wasn’t responsible for the wall.  That’s too bad, because the fight over Jamie Gorelick was a sideshow that obscured the real story of the wall.  

I have tried to tell what I see as the story of the wall in the book, using interviews and official sources (including some late-declassified 9/11 commission work).  I slipped from memoir to reportage because the wall played such a role in my government service — and because the story of the wall shows why I finally concluded that we can’t treat privacy and civil liberties doctrines as harmless good-government proposals.  In fact, those proposals have the potential to get a lot of Americans killed.  In the weeks before 9/11, it was these two civil liberties innovations that did the most to cripple our effort to catch the hijackers before the attack.  

So, the story of the wall is in a sense the heart of the book, and of my career in government.  The relevant chapter has been released on www.skatingonstilts.com, and I’ve excerpted a bit of the story below.

The FISA Court Stages a Coup

The issue came to a head in 1998. Al Qaeda’s bombing of two U.S. embassies in East Africa had put the Southern District’s latest criminal investigation of the group into overdrive. But it also put the wall front and center. As with other al Qaeda cases, the criminal investigation was practically inseparable from the ongoing intelligence monitoring.

So what rules would govern this investigation? The intelligence review office did not want to return to New York for another chest-bumping showdown over the wall. The prosecutors were winning. If the guidelines had to be reworked for the East Africa cases, the intelligence review office would go into battle with half the department arrayed against it.

Staring defeat in the face, the intelligence review office finally played its trump card—the FISA court.

Judge Lamberth remembers Kornblum suggesting that the guidelines be turned into FISA court orders. “He felt, and we agreed, that if you have rules, you should follow them,” says the judge.

The idea had understandable appeal from a civil liberties viewpoint, too. Unlike the attorney general, who was, after all, a prosecutor at heart, the court would be an honest broker. It could give the rights of defendants their due weight, without a conflict of interest and without yielding to the importunings of the prosecutors.

And so it was done. The FISA court simply annexed the attorney general’s guidelines, making the wall a matter of court order.

It was as simple as that; a quiet coup on the top floor of the Justice Department. From now on, the court would decide what was needed to prevent misuse of FISA taps, and the rules it settled on would simply be imposed as a condition on any antiterrorism wiretaps approved by the court.

For the prosecutors it was check and mate.

The FISA court had the department over a barrel. The government had to keep the wiretaps up; an attack could occur at any time, and the government could not afford to be deaf to the planning. If the department wanted the taps, it had to accept that the FISA court was making the rules.

In theory, this court order could have been appealed. There was a pretty good reason to think that the court’s action was inconsistent with the law. The Justice Department did at last appeal the wall orders in 2002, when the FISA court insisted on keeping them in place despite the investigative debacle they ultimately caused.

The department won easily. The review court was scathing in its assessment of the legal basis for the FISA court’s judicial coup, saying that the FISA court had “mistakenly categorized” the 1995 guidelines as statutorily required procedures “and then compelled the government to utilize a modified version of those procedures in a way that is clearly inconsistent with the statutory purpose.”

At the time, though, Justice didn’t utter a peep. The intelligence review lawyers had no interest in overturning their own bureaucratic triumph, and they controlled all appearances before the court. But even the prosecutors must have seen that an appeal would be a nightmare for Justice. The prosecutors would have had to ask the intelligence review office to assemble the first appellate review panel in FISA history, something that would not have been done quietly. The appeal would have turned into a major civil liberties cause célèbre.

The newspapers would have treated it as an effort by Justice to cut back on the protections for defendants created by criminal wiretap law. One can imagine the headlines turning the FISA court into an unlikely civil liberties hero: “Revolt of the Rubber Stamp Judges” might have been among the milder ones. Many in Congress as well would have seen the issue through a civil liberties lens, and hearings could have been expected, perhaps even legislation to write the wall into law. Civil liberties groups would have filed amicus briefs, as indeed they did in 2002. And, in the end, there was no certainty that the appeal would succeed, at least in the atmosphere that prevailed before 9/11. 

Once the applications had been signed and the opportunity for appeal had passed, the wall was law. Neither the attorney general nor the Sovereign District of New York could defy or modify a court order.

There was a new civil liberties sheriff in town.

For advocates of defendants’ rights, the court orders were a triumph. The wall was now far beyond the reach of the prosecutors. But salvaging the wall was only half the battle. The real key was making sure that the wall was enforced.

The FBI had been forced to accept the intelligence review office as the gatekeeper between its intelligence agents and the prosecutors, but how could the court be sure that the FBI itself was enforcing the wall between the intelligence and criminal teams that were both pursuing al Qaeda?

The members of each team were FBI agents and analysts, after all; it only made sense for them to pool information and resources. But that process could allow criminal investigation motives to infect the intelligence wiretaps. And that would lead to disaster in a later criminal trial. It would look as though the wall had been honored mainly in the breach.

This was no idle worry. FBI agents are tough, proud, and tribal. To them, the intelligence review office was just another Justice office full of lawyers who didn’t understand the street.

The agents pursuing al Qaeda shared a common bond, and they needed each other’s help. It was crazy, they must have thought, to deny information to each other. As long as investigative cooperation could slip cross the wall informally, from one agent to another, it would continue, no matter what the intelligence review office said. Bringing the FBI to heel would not be easy.

But now the civil libertarians had the FISA court in their corner.

“If you have rules, you should follow them,” Judge Lamberth believes. 

Soon the FBI would learn just how firmly he held that view. Several al Qaeda members had been arrested in the East Africa bombing cases, and by 2000, their trial in the Southern District of New York was drawing near. Patrick Fitzgerald was again at the center of the case.

As Fitzgerald prepared to defend the East Africa FISA intercepts against a suppression motion, he noticed something troubling. The FBI affidavits that led to the FISA orders had dutifully mirrored the FISA court’s new guidelines, affirming that there had been no contact between the FBI’s criminal and the intelligence teams.

But Fitzgerald knew the investigators, and he knew that wasn’t true. The FBI teams overlapped. 

This was a big problem. There was no evidence of deliberate misrepresentation. The affidavits had described the world that the intelligence lawyers thought existed. But, stuck behind the wall, they had evidently not pressed for the actual facts. And in the end, deliberately or not, the affidavits described a world that didn’t exist. 

It was a nightmare not just for the intelligence office but for the prosecutors. The Sovereign District was on center stage with this latest prosecution of al Qaeda; but its case was suddenly at risk because of problems with the FISA orders.

A suppression hearing loomed. The judge overseeing the criminal trial would have to be told of the  mistakes. And the judge would surely ask whether the FISA court had been told of the false statements.

According to Judge Lamberth, Fitzgerald eventually announced that the clock had run out; if the attorney general didn’t tell the FISA court about the error by the end of the day, Fitzgerald would have to disclose it himself.  

In a way, it was just what the intelligence review office had always feared. A prosecutor with a case to protect was suddenly claiming that defendants’ rights had been jeopardized by the FISA process and was forcing action that could disrupt the functioning of FISA. 

The Wrath of the Least Dangerous Branch

Not long after, Judge Lamberth got an unexpected call. 

It was Attorney General Reno.

—I’d like to come see you, she said. I need to tell you something.

—All right, Madam Attorney General, the judge replied, but I know you’ve got a busy schedule. Much more crowded than mine. I’d be happy to come see you.

—No, no, Reno said. My mama always told me that when you’re in trouble, you’re the one who goes to see the judge. And I’m in trouble. I’m going to come to you.

Taking a seat in the judge’s chambers a few hours later, the attorney general confessed to the errors. It was bad. As many as seventyfive orders had been affected by false affidavits.

Judge Lamberth was not a retiring sort of judge. When he thought the government was not living up to its obligations, the chief judge was relentless. In other cases, he has threatened to hold two Interior secretaries in contempt of court and accused federal officials of racism and bias.

Whether he was called a straight shooter or a loose cannon, everyone who appeared before him knew that Judge Lamberth was heavy artillery—especially when he thought he’d encountered government wrongdoing. He certainly brought out the big guns now. He demanded an investigation of the alleged failure to adhere to the wall. Justice’s Office of Professional Responsibility was assigned to track down any evidence that the agents who prepared the applications had committed misconduct.

Judge Lamberth was assisted in his work by a new legal adviser. Alan Kornblum had grown tired of his isolation at the intelligence review office and had joined the FISA court as its first clerk in decades. He brought with him the old, uncompromising OIPR view that the only way to preserve FISA’s value for intelligence gathering was to maintain a strict separation of criminal and intelligence functions.

So, while the affidavit errors were an embarrassment for OIPR as an office, it might in fact serve the office’s long-term strategic interests. This was a chance to make sure that the wall was enforced for real. At last even the FBI could be brought to heel.

The court and its new legal adviser set about constructing new enforcement mechanisms. In October, Judge Lamberth reinforced the court’s oversight of who got to see FISA wiretaps. From that point on, every agent who had access to FISA-derived intelligence would have to sign a special certification, promising that none of the information would be conveyed to criminal investigators without the FISA court’s permission.

The election of 2000 eventually brought George W. Bush to power and John Ashcroft to the attorney general’s suite, but this did nothing to diminish the FISA court’s clout or ambition. As a senator, the new attorney general had been notably supportive of civil liberties, playing to an antigovernment, libertarian strain of Republicanism that had grown strong in opposition to the Clinton administration’s centrist support for more law enforcement authority.

Attorney General Ashcroft had no interest in picking a civil-liberties fight at the start of his term. Quite the reverse.

According to published sources, Judge Lamberth met early with the new attorney general and gave him one piece of advice. If he wanted to mend fences with the FISA court, Townsend had to go.

She had lost the confidence of the court. Some say the problem was how close she was to the prosecutors, others that the affidavit fiasco had left her damaged.

Not long afterwards, Townsend got word from the attorney general.  Her services would no longer be needed. She departed, to head the intelligence office of the Coast Guard.

In early 2001, the FBI sat unknowing in a civil liberties bull’s-eye. Many of its field agents were still doing what they had always done—informally sharing information about terrorists. They had a job to do and inside the bureau, at least, sharing with other agents was part of getting the job done.

But the ground had shifted. The FBI had no allies. The judicial coup that incorporated the wall into the FISA court’s orders had forced the prosecutors to change sides in the fight over information sharing. Now the prosecutors were demanding that any assurances submitted to the FISA court be strictly accurate. So was the court.

And so was the intelligence review office. The assurances looked like boilerplate, but they had become deadly serious, especially for the agents who signed them.

How serious soon became clear. In early 2001, OIPR told Judge Lamberth that it had found another group of investigations where the FBI had not observed the wall. These investigations had nothing to do with al Qaeda, so the FBI teams at work on them had not been touched by Fitzgerald’s lash. Sharing across the wall had continued despite the flap in the Southern District. More than a dozen applications had been compromised by false assurances that the wall was in place.

It was the last straw for the FISA court—and for the FBI. The court would insist on an investigation, of course, but that would take months. Judge Lamberth’s term would end in a year, and he was determined to strictly enforce the civil liberties protections he had put in place.

The court’s rules had been broken, and someone was going to pay.

Now. Not months from now.

All seven members of the FISA court assembled and agreed. According to Judge Lamberth, one of the seven said, “If I discovered that an affiant in my court had made false statements, I wouldn’t spend too much time worrying about whether the false statement was negligent or deliberate. I’d bar him from the courtroom immediately. Why don’t we do that?”

It made sense to Judge Lamberth. On March 9, 2001, he sent a letter addressing the attorney general in the bluntest possible terms. 

“I was disturbed to learn this week that we now have another series of cases in which the FBI affidavits contain information that is not true,” he said.

The affidavits had been signed by a supervisory agent who was widely viewed as a rising star at the bureau. Not anymore.

At least not if the FISA court had anything to say about it. Effective immediately, Judge Lamberth declared, “the court will not accept any affidavits” from the agent. (The agent was later identified by the New York Times, but when I tracked him down, he asked me not to use his name in this book, and I’m honoring his request.)

Judge Lamberth also demanded that the intelligence review office “must immediately conduct an inquiry and verify the accuracy of the pleadings in these cases, and explain how such inaccurate information came to be presented to the court.”

In the end, Justice’s Office of Professional Responsibility expanded its investigation to include the FBI agent’s actions. Given the court’s harsh language, the investigation wasn’t likely to come out well for the agent.

OIPR had already decided that the statements were false. The only question seemed to be whether the agent had deceived the court negligently or deliberately. Sanctions could be imposed either way, and if worse came to worst, the agent was at risk of a felony prosecution for making false statements to a federal official. (In fact, years later, after the wall had been discredited by the 9/11 attacks, the investigators would find that the misstatements were simple negligence.)

“The agent was crushed,” Townsend remembers. The bureau thought the order would put an end to the agent’s career. So did the intelligence review office.

The effect on the FBI was immediate. It did all it could to undo the order. According to Judge Lamberth, “everyone was lobbying me to back off.”

The attorney general asked him to reconsider. Separately, FBI Director Louis Freeh “came over and begged me to rescind the order, everything under the sun that could be done about that order.” 

So did the head of FBI counterintelligence and other friends and colleagues of the agent. The disciplinary action was causing turmoil in the bureau.

But Lamberth simply dug in harder. He later told a reporter, “We never rescinded it. We enforced it. And we sent a message to the FBI.”

What message was the court sending? That the agents should “tell the truth” about enforcement of the wall, said Judge Lamberth. 

Maybe so.

But that wasn’t the message FBI agents heard.

What FBI agents heard was a little more pointed and a lot more frightening: Nothing was more likely to end their careers than failing to observe the wall. 

Caught between the prosecutors, the intelligence review office, and the FISA court, they had nowhere to hide. If they didn’t follow the civil liberties protections set out by the court to the letter, they would be punished, and harshly. Whether the mistake was negligent or intentional “didn’t really matter,” in Judge Lamberth’s words.

Even after that message had been sent, the court was determined to underline it. In April 2001 the court decided to put every supervisory agent with responsibility for an intelligence team on notice. Each one was required to sign the FISA applications filed by their offices. They had to confirm all of the facts that the applications set forth. Assistant U.S. attorneys were required to do the same.

With the lesson of the disciplined agent still reverberating through the institution, the new requirement was a reminder. What the FISA court had done to the first agent it was quite prepared to do to the rest of them. The new requirement forced every agent and every Justice official to double- and triple-check their compliance with the wall. Any error, any misstep could lead to sanctions.

In the confusion, with new players having to flyspeck the massive FISA applications and triple-check their compliance with the wall, the government began to miss deadlines for submitting wiretap applications. The offices just couldn’t process the bulky filings under the court’s new civil liberties standards fast enough. For the first time since FISA was enacted in 1978, FISA taps had to be dropped, not for substantive reasons but simply because the old orders had expired before new ones could be requested and approved. 

That meant lost coverage. Suddenly, known terrorists could make plans and exchange information without the government learning what was going on. The biggest impact, according to published reports, came in the cases that inspired the court to write the new protections—the investigations of al Qaeda.

As many as twenty al Qaeda wiretap orders were reportedly dropped in the year leading up to August 2001—just as preparations for the 9/11 attacks were reaching a crescendo. Honoring Osama bin Laden’s right to be free from unlawful criminal wiretaps was turning out to be costly. Enforcement of the wall was protecting his operatives from scrutiny at a critical time, just as preparations for the September 11 attacks were at their most intense. 

All through this period, the intelligence system was blinking red. Everyone feared and expected a spectacular al Qaeda attack. The director of Central Intelligence was urging greater effort to find out what al Qaeda was up to. Even the FISA court knew that something big was in the works.

But the FBI and other intelligence agencies had something more important to deal with. They were in the grip of a full-fledged bureaucratic panic. Law professors might call the judiciary “the least dangerous branch” of government; FBI agents had a different view. 

“FBI personnel involved in FISA matters feared the fate of the agent who had been barred,” says one declassified Joint Intelligence Committee report on the 9/11 attacks. FBI intelligence agents began to avoid even the most pedestrian contact with personnel in criminal components of the Bureau or DOJ [Department of Justice] because it could result in intensive scrutiny by [OIPR] and the FISA court.”

If a star agent could be held in contempt, it could happen to anyone, they believed. The personal certifications were a constant reminder of the peril faced by anyone investigating al Qaeda.

The wall was getting higher every month.

End Game

On August 22, an FBI analyst named Donna got a call that could have stopped the looming attacks cold. The call came from an FBI detailee at the CIA. The detailee had discovered that a major al Qaeda operative entered the United States in July. This couldn’t have been an accident. Something was up, and it was serious.

The last, and most promising, opportunity to halt the plot had opened up. Stopping it should not have been hard. Khalid al-Mihdhar had been living under his own name in California and could have been found there before September 11 if the bureau had moved quickly.

But Donna had a lot to do, and it wasn’t until August 28 that she sent an alert about al-Mihdhar, including a related NSA report, to the FBI’s New York office.

The NSA report was valuable, but it posed a complication. Less than a year earlier, NSA had begun adding a special “caveat” or legend on the face of reports derived from FISA wiretaps. The caveat said that information in it could not be shared with law enforcement unless special permission had been granted.

This rule, too, was part of the wall. NSA carried out fewer FISA wiretaps than the bureau, and it had always been more independent of the intelligence review office; still, it was dependent on both the office and the court. When those offices grew more demanding about policing the wall, NSA had to follow suit.

Donna wanted to stay within the rules set by the FISA court.  She therefore sent the alert only to her intelligence contact on the bin Laden squad.

But as if to underscore the risk of unauthorized sharing that the court had been fighting for over a year, the intelligence investigator sent the alert to his supervisor, who ignored the NSA’s caveat and sent the intelligence about terrorists in the United States to the entire criminal investigative team responsible for bin Laden. 

One of the squad members, a criminal investigator by the name of Scott, was immediately galvanized. The team investigating the Cole bombing was already up and running. It had resources and manpower. He wanted to put those resources to work right away to find al-Mihdhar.

Donna was alarmed. She knew a violation of the new rules when she saw it. She insisted that Scott destroy the alert. It should not have gone to him under the rules as she understood them.

But Scott was not deterred. Known terrorists had entered the country. This was too important to leave to an undermanned intelligence team.

He argued that his criminal investigators could devote more agents to the search. The criminal investigators, he said, could use grand jury subpoenas and other law enforcement tools that were far quicker than those available to the intelligence side of the Bureau. They had all the resources they needed inside the United States. The intelligence guys didn’t.

He was right. At this time, the FBI’s intelligence arm was notoriously underfunded and sometimes even disrespected by the rest of the bureau.

Even so, Donna insisted, the resources could not be used. The wall prevented the mixing of criminal and intelligence investigations.

Scott must have been the bravest or the most clueless agent in the bureau. He ignored Donna’s advice and kept pressing. 

Donna appealed to the FBI general counsel’s office for a ruling. That office knew the score. Its lawyers had seen the FISA court’s crusade to reinforce the wall up close. The FBI’s general counsel, Larry Parkinson, would later tell the 9/11 Commission staff that the disciplined agent’s fate was “‘a big deal’ for a lot of people.” It “spooked” them, and they “became less aggressive.”

Spooked the lawyers certainly were. They sided with Donna. Scott was out of line. He was risking a civil liberties scandal that would put his career and theirs in jeopardy. The search would have to be done by the thinly staffed intelligence arm of the bureau. Scott and his resources were off limits.

Even after this definitive ruling, Scott refused to go quietly. He protested in eerily prescient terms: “Someday someone will die—and wall or not—the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’ Let’s hope the [lawyers who gave the advice] will stand behind their decisions then, especially since the biggest threat to us now, UBL [Usama Bin (sic) Laden], is getting the most ‘protection.’ ”

From Washington, Scott’s fight to get criminal resources into the search for al-Mihdhar looks like an act of courage that borders on the foolhardy. He had already received intelligence in violation of the wall, and now he was kicking up a fuss, bringing in lawyers, drawing attention to the violation, and advertising his disagreement with the FISA court’s rules.

But in the end, one agent’s determination to do his job was not enough to overcome all the walls—the complex civil liberties rules, the harsh enforcement regime devised the intelligence review office and the FISA court, the lurking machinery of scandal.

Scott had nowhere left to go. He did what he was told. He left the job of finding al-Mihdhar to Donna and the understaffed FBI intelligence unit.

They were still looking when September 11 dawned, bright and crisp.