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Ashcroft blames intelligence sharing wall { April 14 2004 }

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April 14, 2004
Rule Created Legal 'Wall' to Sharing Information

WASHINGTON, April 13 On Tuesday, witnesses and commissioners pondered the role of "the wall" in the Sept. 11 attacks.

Attorney General John Ashcroft told the 9/11 commission that "the wall," a legal barrier in the government preventing intelligence investigators from sharing information with criminal investigators, was the most important structural impediment to preventing the attacks.

The wall, which has since been demolished by a special appeals court ruling, was part of a body of law that was little known to the public. It involved secret testimony and decisions by a special federal court that ruled on the requests of government investigators to install wiretaps or other listening devices on people suspected of being involved in espionage. The 1978 law that created the court, known as the Foreign Intelligence Surveillance Act, set a lower threshold for counterintelligence agents to obtain permission for secret surveillance of espionage suspects than was required for investigators in criminal cases.

To prevent criminal investigators from using the intelligence act to seek warrants, officials and courts gradually created a rule keeping the two spheres largely separate. It was known in the government as the wall.

Applications for criminal warrants must comply with the Fourth Amendment's proscriptions against intrusive searches and required an official declaration that there was "probable cause" to believe a crime had occurred. By contrast, the intelligence surveillance law required only a showing that there was probable cause that the subject was the agent of a foreign power.

Much of this little-known legal debate became public in November 2002 when a special federal appeals court ruled that the wall had been destroyed by the counterterrorism law called the USA Patriot Act, which was enacted after the Sept. 11 attacks. But the court added a stunning observation, saying that even without the counterterrorism law, the wall had never been necessary and that courts and Justice Department officials had misinterpreted the law for more than 20 years.

"Effective counterintelligence, as we have learned, requires the wholehearted cooperation of all the government's personnel who can be brought to the task," the court wrote. "A standard which punishes such cooperation could well be thought dangerous to national security."

In his Tuesday testimony, Mr. Ashcroft pointedly blamed one of the commission members, Jamie S. Gorelick, for enacting the wall. Ms. Gorelick was the deputy attorney general in the Clinton administration who signed regulations in 1995 enforcing the wall.

"In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required," Mr. Ashcroft said, adding that the wall specifically impeded investigations into two of the terrorists who hijacked aircraft on Sept. 11.

Confusion over how to interpret the wall also figured in the dispute of why the F.B.I. refused the request of its agent Colleen Rowley to seek a court authorization to explore the computer of Zacarias Moussaoui, who was arrested in August 2001 on immigration violations. Inspection of the computer would have disclosed information showing that Islamic extremists were taking flight lessons in the United States.

"Somebody built this wall," he said, citing Ms. Gorelick's 1995 secret memorandum.

"Although you understand the debilitating impacts of the wall, I cannot imagine that the commission knew about this memorandum. So I have had it declassified for you and the public to review. Full disclosure compels me to inform you that the author of this memorandum is a member of the commission," a reference to Ms. Gorelick.

The appeals court that demolished the wall said, however, that it had been erected earlier and was only codified by Ms. Gorelick.

The court also said that it was "quite puzzling that the Justice Department, at some point during the 1980's, began to read the statute as" requiring a separation of the two fields of counterintelligence and criminal search warrants.

In her questioning of Mr. Ashcroft, Ms. Gorelick did not refer to the issue of her 1995 memorandum. But Slade Gorton, a former Republican senator from Washington, challenged Mr. Ashcroft, noting that the deputy attorney general under Mr. Ashcroft renewed the 1995 guidelines. Mr. Gorton said the Bush Justice Department ratified those guidelines, saying in its own secret memorandum on Aug. 6, 2001, that "the 1995 procedures remain in effect today."

Copyright 2004 The New York Times Company

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