SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 53
June 17, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

9/11, INFO SHARING AND "THE WALL"

The rise of "the wall" between intelligence and law enforcement personnel that impeded the sharing of information within the U.S. government prior to September 11, 2001 was critically examined in a detailed monograph that was prepared in 2004 for the 9/11 Commission. It is the only one of four staff monographs that had not previously been released. It was finally declassified and disclosed earlier this month.

In April 2004, Attorney General John Ashcroft testified that the failure to properly share threat information in the summer of 2001 could be attributed to Justice Department policy memoranda that were issued in 1995 by the Clinton Administration. That is an erroneous oversimplification, the staff monograph contends: "A review of the facts... demonstrates that the Attorney General's testimony did not fairly and accurately reflect" the meaning or relevance of those 1995 policy documents. For one thing, those policies did not even apply to CIA and NSA information, which could have been shared with law enforcement without any procedural hurdles.

But if Attorney General Ashcroft was misinformed, he was not alone. The 1995 procedures governing information sharing between law enforcement and intelligence "were widely misunderstood and misapplied" resulting in "far less information sharing and coordination... than was allowed." In fact, "everyone was confused about the rules governing the sharing and use of information gather in intelligence channels."

"The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand," the 35-page monograph concludes. "Simply put, there was no legal reason why the information could not have been shared."

The prevailing confusion was exacerbated by numerous complicating circumstances, the monograph explains. The Foreign Intelligence Surveillance Court was growing impatient with the FBI because of repeated errors in applications for surveillance. Justice Department officials were uncomfortable requesting intelligence surveillance of persons and facilities related to Osama bin Laden since there was already a criminal investigation against bin Laden underway, which normally would have preempted FISA surveillance. Officials were reluctant to turn to the FISA Court of Review for clarification of their concerns since one of the judges on the court had expressed doubts about the constitutionality of FISA in the first place. And so on. Although not mentioned in the monograph, it probably didn't help that public interest critics in the 1990s (myself included) were accusing the FISA Court of serving as a "rubber stamp" and indiscriminately approving requests for intelligence surveillance.

In the end, the monograph implicitly suggests that if the law was not the problem, then changing the law may not be the solution. The document, which had been classified Secret, was released with some small though questionable redactions. See "Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations," 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004:

2008 DNI BRIEFING: QUESTIONS FOR THE RECORD

For the first time in several years, the Senate Select Committee on Intelligence has once again published unclassified responses from the Director of National Intelligence to questions for the record arising from the DNI's annual threat briefing to Congress. In the past, such formal responses to Congress have offered an unexpected wealth of information and updated intelligence.

Unfortunately, the latest answers were transmitted to the Committee in May 2008 and not published until May 2009, so to a large extent they are stale, have been overtaken by events, or are of limited historical interest. But in some cases, they present pithy statements of official policy or otherwise interesting interpretations of events:

See the DNI responses to questions for the record from the February 5, 2008 hearing on Current and Projected National Security Threats to the United States, transmitted to the Senate Intelligence Committee May 2, 2008:

ENERGY SECRETARY CHU EMBRACES FOIA POLICY

The controversial idea of the "unitary executive" which holds that all executive power is vested in the President of the United States may be a coherent legal theory. But in reality, things don't happen within the executive branch simply because the President commands them. In practice, what we have is a "fragmentary executive" the efficacy of which is entirely dependent on the competence and the good faith of thousands of officials who must consciously choose to implement the declared policies of the Administration.

With that in mind, it is noteworthy that the Secretary of Energy, Steven Chu, reiterated and endorsed the President's Freedom of Information Act policy in a memorandum to senior Energy Department officials this month.

"All DOE employees have the responsibility to ensure the success of the agency's FOIA program," Secretary Chu wrote. "We can no longer use competing agency priorities and insufficient technological support as a basis for not responding to requests expeditiously. DOE employees should no longer view FOIA as an additional duty. It is your responsibility to ensure that FOIA requests are responded to in a timely manner."

"I want to make it clear that DOE will adhere to the President's and Attorney General's guidance," Secretary Chu concluded. See "Freedom of Information Act," memorandum for heads of departmental elements from Energy Secretary Steven Chu, June 5, 2009 (thanks to nukewatch.org):

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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