The Plank in His Own Eye

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At yesterday's 9/11 commission hearing, Attorney General John Ashcroft bitched and moaned about the rules separating intelligence and criminal investigations he inherited from the Clinton administration:

That memo, which Ashcroft said displayed "flawed legal reasoning," erected a wall between domestic intelligence and criminal investigations because [9/11 commission member and former Clinton administration deputy attorney general Jamie] Gorelick wrote that mixing the two types of probes could jeopardize prosecutors' chances for success.

Yet when challenged about why he didn't amend those rules (which was apparently within his, or at least the Bush administration's power), the Show Me Stater failed to show much of anything:

"If that wall was so disabling, why was it not destroyed in those eight months" between Bush's inauguration in January and the September attacks that killed about 3,000 people? [former Republican senator Slade] Gorton asked.

Ashcroft had little in the way of a response other than to say the Clinton-era rules were changing before the September attacks.

And going back to this retrospectively fascinating August 2002 Time story about administrative events leading up to the 9/11 attacks, Ashcroft comes across as equally useless (though both Clarke and Bush come out looking pretty good).

Update: I should add that George Tenet comes off looking useless too in the above.

Jean Bart's comment is interesting and is worth digging into. If policy changes were dictated by the courts, one wonders why Ashcroft didn't raise that point during his testimony.

I finally tracked down a Newsweek story I've been thinking about since Ashcroft's testimony. It's a May 27, 2002 piece titled "What Went Wrong?" and it includes this daming passage of our man Ashcroft:

Under Attorney General John Ashcroft, the department was being prodded back into its old law-and-order mind-set: violent crime, drugs, child porn. Counterterrorism, which had become a priority of the Clintonites (not that they did a better job of nailing bin Laden), seemed to be getting less attention. When FBI officials sought to add hundreds more counterintelligence agents, they got shot down even as Ashcroft began, quietly, to take a privately chartered jet for his own security reasons.

Whole thing here. It's a very useful overview of various fuck-ups and oversights by both Clinton and Bush administrations.

NEXT: Hostage Killed

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  1. Back in the Nixon Administration, someone with muscle pointed out that the Border Patrol, the Coast Guard, the Customs Department and the INS all have the same mandate. It made sense, the argument went, to merge operations, and every administration since Nixon’s has tried to force some kind of merge at one time or another. It wasn’t until 9/11, and one of the agencies sending visas to dead highjackers months after the fact, that any president could get enough leverage to begin to merge those agencies, and, once again, it was a full thirty years after the first push.

    So it doesn’t suprise me that Ashcroft couldn’t break walls down in the beaureau in as short a time as eight months.

    By the way, if breaking the wall down between the FBI and the CIA isn’t a good thing, then we need to be more vocal about it–right now. I am concerned, like many of you, that the current criticizm of the Administration for not breaking down such barriers will give Ashcroft the freedom, nay, a mandate to reform the FBI so that it can be used against US citizens the same way that the CIA is used against foreign enemies.

    I haven’t heard anyone in the government or the media yet say that he or she wants the government to protect our rights from foreign terrorists, of course, but not at such a price. Have they ALL forgotten the drill?

  2. This post has more on Gorelick, and the media silence associated with her. Do check it out.

  3. Jean Bart is correct that “The Wall” was created in large part by the FISA courts and that it existed long before the Clinton administration. Even post-9/11 and post-Patriot act the lower FISA courts were adding bricks to the wall until the higher court overruled them.

    But I think it a fair criticism that the Clinton administration did not view the wall as a significant problem and that they created administrative rules and an institutional culture that amplified the effects of FISA courts rulings. They certainly never tried to attack the wall legislatively.

    The Bush administration viewed the wall as a problem but at best they were merely chipping away at it. There is no evidence that pre-9/11 they were willing to spend the political capital necessary to demolish it.

    The failures that lead to 9/11 were structural ones of long standing. The entire polity failed to adapt to the threat of mass-casualty terrorism over many years.

  4. “I haven’t heard anyone in the government or the media yet say that he or she wants the government to protect our rights from foreign terrorists, of course, but not at such a price. Have they ALL forgotten the drill?”

    Okay, so, subsequent to posting, I listened to the commission testimony, and the subject of our civil rights was breached–Hurray! Later, I heard a radio commentator bring up the issue of a reformed FBI’s Counter Terrorism operations trampling over our civil rights–Hurrah!

    In both cases, however, the issue seemed to have been brought up solely for the purpose of saying that our rights being violated is a non-issue–BoooOOooo! (Did you get a load of those comments in front of the Commision? You know all FBI agents are TRAINED to believe in the Constitution, so there’s nothing to worry about!)

    Maybe the Supreme Court will save us. Eventually.

  5. I think there maybe a missed story here. In his testimony Ashcroft appears to conflate the Gorelick memo(PDF) with another memo issued by Janet Reno around the same time.

    The Gorelick memo, which Ashcroft quoted as being the administrative basis for the wall, appears to my reading to concern only FISA investigations related to the then ongoing prosecutions of the 1993 WTC bombing. Gorelick appears to have been concerned that FISA investigation could contaminate the criminal prosecution and laid out rules to prevent that from happening.

    The Reno memo is the general administrative memo that delineates the Wall and it is not really clear how far beyond the strictures of the court it went if it went beyond them at all.

    As evidence of a institutional legal outlook the Gorelick memo is revealing but it can’t be held forth as evidence of a formal policy.

    I think Ashcroft is pulling a fast one here.

  6. One of the reasons why the rule was not changed was due to court rulings which appear to have created the rule in the first place. The Clinton administration did not creat the rule de novo in other words.

    Please see:

    In re: Sealed Case No. 0-2-001, 02-002, Foreign Intelligence Surveillance Court of Review, 310 F.3d 717 (2002)

  7. Forget Nick Gillespie’s discussion about Condoleezza ( https://www.reason.com/links/links040704.shtml ) — I cling to the hope that Ashcroft might end up taking the fall. Just a dream, I suppose. But a pretty one.

  8. URL for the above cited case: http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

    You will find that the most pertinent material is in section II of the per curiam opinion.

  9. Also, you may want to look at the following:

    US v. US District Court (Keith), 407 US 297 (1972)

    and

    US v. Troung Dinh Hung 629 F.2d 908 (1980)

    The latter is from whence the “wall” is derived from as it relates to the Foreign Intelligence Surveillance Act (FISA) which the USA PATRIOT Act altered; the latter getting rid of the “wall.”

    Why Ashcroft did not mention these matters I cannot say; but I suspect it is due to a need to smear Clinton administration. Also, the Reagan and first Bush administration operated under this “wall” assumption.

  10. The “Keith” case is why FISA was enacted; see Justice Powell’s commentary at the end of the decsion.

  11. There are two basic problems here: First, the last two presidents have appointed attorneys general based on political interest group considerations rather than ability (Reno appeased “women”, Ashcroft the Christian right.) Second, the FBI serves no particular function, and thus ends up being used to serve the attorney general’s political agenda. If the FBI is going to be the nation’s top counterrorism agency, it can’t also be running off in search of porn, price-fixing cartels, and other private acts that offend the personal mores of DOJ lawyers.

  12. “If that wall was so disabling, why was it not destroyed in those eight months” between Bush’s inauguration in January and the September attacks that killed about 3,000 people? [former Republican senator Slade] Gorton asked.

    Ashcroft had little in the way of a response other than to say the Clinton-era rules were changing before the September attacks.

    Good Lord, how long do you think it would take to get the bureaucracy geared up to make these rule changes? Two years, at least, and that’s being pretty damn generous. And how, exactly, would that have prevented 9/11, considering that the plotters were already in place? Again, see Greg Easterbrook’s alternative history.

  13. Nick, am I the only person awestruck to hear a bunch of libertarians slamming Ashcroft for not breaking down the wall of separation between intelligence agencies and law enforcement agencies? You really want the NSA to be able to tell the SEC, the DEA, the FBI, the ATF, ICE, the Marshals, and maybe some local law enforcement about everything it hears??

    Surely you jest.

    In fact, I thought PATRIOT’s breaching of that wall was one of the reasons that really committed civil libertarians – you know, like the ACLU and a lot of folks around here – were willing to do whatever it takes to strangle PATRIOT in its crib.

    Jeeeeeebus. Next thing you know, you’ll be telling us that Section 215 of the Act hasn’t turned the country into a police state. Frankly, I’m stunned to find you’ve “evolved” on this point. Of course I’m only assuming you’ve evolved. If the real motivation behind slamming Ashcroft for failure to take down that wall is that it’s a good excuse to slam Ashcroft, well, then it will restore your reputation in my eyes.

    FYI, if the DOJ was observant of the Keith decision – which involved judge-made procedural law creating the “primary purposes test” – then it really did have to wait for Congress to take action to remedy the problem. No matter how nightmarishly powerful DOJ figures in our dreams, it is generally hesitant to try to overrule courts on its own.

  14. Thank God AG Ashcroft is protecting me from porn and drugs. Janet J.`s titty might break into my home one night and stuff drugs into my preparation H supply.

  15. “You really want the NSA to be able to tell the SEC, the DEA, the FBI, the ATF, ICE, the Marshals, and maybe some local law enforcement about everything it hears?”

    Tough question. Yes and no. I refered yesterday to “obsolete Republican Cold War mentality.” I’d have to characterize the implementation of this wall as obsolete bipartisan Cold War mentality. It was probably the right tool at the right time when the Church commission created it, but times have changed. On the other hand, it would have been nice if the need for modernization had been acted on prior to the panic following 9/11. This is a tricky matter, and the Patriot Act handled it with the all the nuance and thoughtfulness of…well, George Bush and John Ashcroft.

  16. Stephen Fetchit,

    I wasn’t saying the Ashcroft should have undermined legitimate controls on the sharing of government surveillance and law enforcement efforts. I was pointing to a moment in Ashcroft’s testimony where he was plainly implicating the preceding administration and yet had no good reason ready for why he didn’t adopt a different policy himself. As or more important, it’s clear that fighting terrorism was a low priority to Ashcroft, which is one more sign of his not being up to his job.

  17. Remember: if anything goes wrong in a Democratic administration, it’s the fault of the stupid Democrats in charge. If anything goes wrong in a Republican administration, it’s the fault of the stupid Democrats who used to be in charge.

    How many years old was Reagan’s presidency before he stopped blaiming Carter for everything?

  18. Jennifer, Jennifer, Jennifer…you should be ashamed of yourself. Everyone knows that the democrats are always to blame for everything. Oh wait, or is it the republicans? The point is that the administration in charge always blames the one that preceeded it. Get over yourself.

    However, I would argue that in this particular situation, it is necessary to drag the Clinton administration through the mud since it had 8 full years to deal with the terrorist threat and chose to throw a couple of missiles at it to make it go away and thought that was enough. Clearly it was not. The Bush administration on the other hand had what, 8 months? Hmmm, big difference.

    For anybody that is interested…an alumni from my undergrad works in one of the many counterterrorism units in DC. Following 9/11 he participated in a discussion in which alumni was invited to, to discuss the new issues that are of great concern to officials in DC regarding terrorism, like domestic attacks on power grids via the internet etc. He was very clear that during the Clinton administration counterterrorism was NOT a priority. Granted, he also said that they didn’t get much attention until after 9/11, so that would imply that they didn’t get a lot of attention from Bush either. All I’m saying is that this blame game is senseless. Clinton and Clarke are liars for stating that terrorism was a top priority under Clinton and all of you are jerks for thinking that a new administration, still in its infancy, should have been all knowing and single handedly prevented 9/11 by using the very methods that all of you bitch and moan about now, like profiling and the Patriot Act.

  19. I find it interesting that you focus on partisan bickering. Again, look up the citations I noted; you will find that this was hardly a “Clinton issue.”

  20. This evening on Hardball, Gorelick made the point Shannon Love describes above, that her memo was about making sure the prosecution of the 93 WTC bombers didn’t get tainted by FISA wiretaps on the defendants.

    She also pointed out that Moussaoui was being prosecuted for immigration violations, and that the DOJ could have decided to risk tainting that prosecution, because the crime was relatively minor, in order to investigate something bigger.

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