Hiding Behind the Wall

The finger-pointing surrounding the Sept. 11, 2001, attacks has fallen to a new and depressing low. After a series of public hearings had captured the attention of the American people and had provided a rare look at the inner-workings of the executive branch, Attorney General John Ashcroft deliberately misled the 9/11 Commission and reduced the entire proceeding to political theater.

Ashcroft brought with him a classified memo that he had previously withheld from the commission in order to buttress his attempt to evade accountability. Even though it had been declassified a full four days prior to his appearance, he did not give the memo to either the commission staff or the commissioners before his testimony. He added, "Full disclosure compels me to inform you that its author is a member of this Commission."

Ashcroft claimed, "The simple fact of September 11 is this: we did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies… [the Clinton Justice Department had] imposed draconian barriers to communications between law enforcement and intelligence communities."

An examination of the facts clearly demonstrates why Ashcroft chose not to provide the commission either the de-classified memo or his prepared remarks in advance of his testimony: his assertion that this memo created a "wall" between criminal and intelligence investigations within the FBI is grossly inaccurate. The staff of the commission said a day later that it was a "red herring," and in its Nov. 18, 2002, decision, the Foreign Intelligence Surveillance Court of Review directly contradicted Ashcroft's version of events.

The Court of Review argued that the requirement to have some separation between criminal and intelligence investigations grew out of a 1980 case, United States v. Truong Dinh, not a 1995 memo. The Court pointed to the Reagan or Bush I administrations for when the Truong requirement took hold in the Department of Justice, "As we have noted, some time in the 1980s – the exact moment is shrouded in historical mist – the Department applied the Truong analysis to an interpretation of the FISA (Foreign Intelligence Surveillance Act) statute."

The Truong requirement for some separation between criminal and intelligence investigations does not mean complete isolation and the memo in question enhanced information sharing in a specific investigation. It arose out the need to preserve the integrity of the long and fruitful investigation into the 1993 World Trade Center bombing. The memo developed guidelines for the handling of evidence to ensure that information collected during the course of the investigation would be available to prosecutors at trial and intelligence agents working to prevent future attacks.

Hiding behind this "wall," Ashcroft sought to deflect the attention of the commission from his dismal stewardship of domestic counterterrorism policy. In the spring and summer 2001, he downgraded counterterrorism as a priority, clashed with FBI Director Louis Freeh and Acting Director Thomas Pickard on counterterrorism policy, and cut counterterrorism funding, even denying a personal appeal from Pickard.

Nothing should have prevented the FBI from pursuing several hot leads in 2001 that could have led to the disruption of the 9/11 plot. An FBI Special Agent in Phoenix requested a nation-wide investigation into possible penetration of U.S. flight schools by al Qaeda operatives, but it was never started. Perhaps the FBI could have been taken action when the Minneapolis Joint Terrorism Task Force actually arrested one of them at a flight school on Aug. 15, 2001. CIA Director George Tenet knew of this arrest shortly thereafter, but inexplicably Pickard did not until the afternoon of Sept. 11. The arrested man was later charged as the "20th hijacker."

Ashcroft's smokescreen also obscured the obvious: he was the attorney general for eight months prior to Sept. 11 and did nothing to change what he now describes as "draconian" restrictions. Not only did fail to change them, but as Commissioner Slade Gorton (R) observed, on Aug. 6, 2001, Ashcroft's Justice Department issued its first guidance on information sharing which reads, "The 1995 procedures remain in effect today."

We have seen these tactics from Ashcroft before. When faced with tough questions on his activities after the attacks, in December 2001 he callously charged that his critics "only aid terrorists – for they erode our national unity and diminish our resolve." When the Department of Justice Inspector General issued a report that vindicated many of those critics, his only response was that he had "no apologies."

Ashcroft's stunt now looks like another salvo in a coordinated campaign to discredit the work of the bi-partisan commission before it releases its report this summer. The White House repeatedly tried to stonewall the commission by refusing it key documents and testimony. In the wake of the hearings, Congressional Republicans have launched a vicious attack on its integrity with the bizarre accusation that its work somehow "endangers our troops."

Representative Jim Sensenbrenner (R-WI) has called for the resignation of one of the commissioners. That move was echoed by House Majority Leader Tom DeLay (R-TX), who added the irresponsible allegation that the commission is a "dangerous distraction from the global war on terror. They undermine our national unity and insult the troops now in harm's way, to say nothing of those who have already given their lives in this conflict."

This time, the American people deserve more.

Ken Gude is an analyst at the Center for American Progress.

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Ken Gude

Senior Fellow