Able Danger and the firewall: getting some perspective
The Able Danger controversy has been brewing for some time now, with swirling speculation about Jamie Gorelick, the 9/11 Commission, and the role of Sandy Berger in a possible coverup. Then it kind of simmered down. Right now it's in a holding pattern while we await either further revelations of wrongdoing, or a debunking of the whole brouhaha.
Austin Bay, for example, has this recent post on the current ambiguous state of affairs, and asks President Bush to make a statement and perhaps call for an investigation. Dr. Sanity, who has been hot on the case from the beginning, has an excellent roundup of recent posts around the blogosphere on the topic.
But whatever did or did not happen with the 9/11 Commission and Able Danger, there are some basic issues underlying it that I think have been insufficiently aired. These issues have to do with the origins and rationale for the firewall between the CIA and the FBI that was alleged to have blocked effective action on the intelligence received about Atta.
The way some write about it, it seems almost as though the firewall in question was just something Gorelick got into her pretty little head one bright morning and decided to implement, apropos of nothing. But in fact that firewall was only the culmination of a long and winding road towards the blocking and limiting of intelligence gathering--a path that, retraced, leads us straight back to those familiar and formative watershed events: the Vietnam War and Watergate.
Clinton and Gorelick were neither the originators nor even the main players in setting up the impediments that may have led to the ignoring of the Atta data. They were merely the latest actors in a long line of intelligence-weakening efforts that go back about forty years. But before the Democrats in the crowd get too happy about that statement, let me just say that this doesn't mean the Democrats are exonerated. On the contrary; Democrats were major players all along in the campaign to set up roadblocks and obstacles, as well as ultimately firewalls, to the gathering and sharing of intelligence by the US government--although their goal was not so much the blocking of intelligence as the curbing of what they feared were overreaches by the government and possible intrusions into civil liberties.
In April of 2004, an amazingly instructive article on this subject appeared in Commentary, an exploration of how this turn of events came to be, and why. It is entitled "The intelligence mess: how it happened, what to do about it," and was written by Andrew C. McCarthy, the lawyer who prosecuted Sheik Rahman in the 1995 trial connected with the first World Trade Center bombing. Fortunately, I've been able to locate a full text of the article online, here. I can't recommend strongly enough that you read the whole thing.
It's hard to summarize, because it is so comprehensive and so dense with information; every word feels important. But here is my effort at a quick presentation of the most relevant points:
The antiwar movement that rose as a result of the Vietnam War had a distrust of American power and intelligence gathering and of agencies such as the CIA. The events of Watergate only "deepened the aversion," since the burglars included former intelligence officers, and Nixon also used the CIA to obstruct the work of the FBI in trying to investigate the break-in. Furthermore, the CIA was engaged in some domestic spying scandals and other acts considered excesses, such as attempts to assassinate foreign leaders (investigated by the Congressional Church Commission of the mid-70s). The upshot of all this was, among other things, a desire to limit the power of the executive branch of government and of intelligence-gathering, because the fear was that these entities, unchecked, could (and would) combine in corrupt ways to undermine our liberties.
What were the mechanisms by which these limits were applied? Congressional oversight, and rulings by federal courts. Previously, the executive branch had been trusted in manners of national security without much input from these branches; after Vietnam and Watergate, no more--Congress and the courts sought to keep the executive branch and the intelligence bureaus on a tight leash.
In addition, national security issues and intelligence-gathering began to be regarded as a form of law enforcement, especially when the activities took place domestically. It's well worth quoting from McCarthy's article on the difference between law enforcement and national security; his writing is incredibly lucid on these matters (and, coincidentally, Belmont Club touches on some of these issues in today's post, entitled "Law vs. War):
In the constitutional license given to executive action, a gaping chasm exists between the realms of law enforcement and national security. In law enforcement, as former U.S. Attorney General William P. Barr explained in congressional testimony last October, government seeks to discipline an errant member of the body politic who has allegedly violated its rules. That member, who may be a citizen, an immigrant with lawful status, or even, in certain situations, an illegal alien, is vested with rights and protections under the U.S. Constitution. Courts are imposed as a bulwark against suspect executive action; presumptions exist in favor of privacy and innocence; and defendants and other subjects of investigation enjoy the assistance of counsel, whose basic job is to thwart government efforts to obtain information. The line drawn here is that it is preferable for the government to fail than for an innocent person to be wrongly convicted or otherwise deprived of his rights.
Not so the realm of national security, where government confronts a host of sovereign states and sub-national entities (particularly terrorist organizations) claiming the right to use force. Here the executive is not enforcing American law against a suspected criminal but exercising national-defense powers to protect against external threats. Foreign hostile operatives acting from without and within are not vested with rights under the American Constitution. The galvanizing national concern in this realm is to defeat the enemy, and as Barr puts it, "preserve the very foundation of all our civil liberties." The line drawn here is that government cannot be permitted to fail.
But for quite a while the growing feeling was that the threat to liberties from overreaching by agencies such as the CIA and FBI as well as the power of the executive branch were more dangerous and more pressing than the national security issues involved. Simply put, these agencies were no longer trusted, and this loss of innocence on the part of the public, Congress, and the courts led to a series of curbs.
FISA, the Foreign Intelligence Surveillance Act, passed in 1978, was the mechanism by which these brakes were applied. Over the years, mainly through the mechanism of a federal FISA court whose main purpose was to oversee intelligence-gathering, the screws were tightened on these agencies by the mechanism of applying to national security issues many legal safeguards originally developed for dealing with law enforcement issues. To take just one example, the agency asking for a wiretap for national security reasons would now have to establish probable cause that the target was acutally the agent of a foreign power. From the article:
Previously, it would have been laughable to suggest that foreign enemy operatives had a right to conduct their perfidies in privacy—the Fourth Amendment prohibits only "unreasonable" searches, and there is nothing unreasonable about searching or recording people who threaten national security. (The federal courts have often recognized that the Constitution is not a suicide pact.) Now, such operatives became the beneficiaries of precisely such protection. Placing so severe a roadblock in the way of a crucial investigative technique necessarily meant both that the technique would be used less frequently (thereby reducing the quantity and quality of valuable intelligence) and that investigative resources would have to be diverted from intelligence-collection to the rigors of compliance with judicial procedures (which are cumbersome).
The restriction of powers then expanded over time, as the fear grew that intelligence agents might use FISA "as a pretext to investigate crimes for which they themselves lacked probable cause to secure a regular criminal wiretap." That fear governed many of the further restrictions that later came to be applied, and created among prosecutors:
a grave apprehension about "the appearance of impropriety"--a hidebound concept governing lawyer ethics that is perfectly nonsensical in the life-and-death-context of national security...Often, the result was weeks or more of delay, during which identified terrorists who happened also to be committing quotidian crimes went unmonitored while the government dithered over whether to employ FISA or the criminal wiretap law. The insanity reached its apex in 1995 with the "primary purpose" guidelines drafted by the Clinton administration: henceforth, a firewall would be placed between criminal and national-security agents, generally barring them even from communicating with one another.
So there you have it--the history of the Clinton/Gorelick firewall. It was simply an extreme extension of a trend that had been going on for decades, albeit an exceedlingly costly one. At the ourset, though, it probably seemed quite rational to those implementing it, especially since terrorism was being uniformly treated (by both parties, I might add) as primarily a law enforcement rather than a national security issue.
The article goes on to describe a host of other important developments--once again, I strongly urge you to read every single word. McCarthy describes, among other fascinating and illuminating topics, the myriad negative effects the firewall had on the fight against terrorists and terrorism, the origins of the separation of turf between the FBI and the CIA, the counterproductive and pernicious effects that trials of terrorists had on national security because of legal discovery rules, the decline of intelligence services themselves prior to 9/11, and suggestions for the future.
I cannot overestimate the way in which this article gave clarity to events and trends that had heretofore seemed very murky to me. So much so that when I learned that Gorelick, the so-called "architect" of the firewall, was on the 9/11 Commission, it was quite clear to me that she needed to recuse herself, and why. But it was also quite clear that Gorelick's firewall itself had only ensured that a long trend in US policy had finally reached its ultimate and shocking conclusion.
With the hindsight provided by the McCarthy article, the absurdity of events such as the following, described in this article in National Review, have an understandable historical context:
Able Danger analysts recommended the information [about Atta and associates] be passed on to the FBI so that the cell could be rounded up. Accounts in Government Security News, the New York Times, and the Associated Press indicate that Pentagon lawyers decided that anyone holding a green card (as it was believed the cell members did) had to be granted essentially the same legal protections as any U.S. citizen. Thus, the information Able Danger had gathered could not be shared with the FBI, the lawyers concluded. This is in keeping with “the wall” philosophy and policy established in 1995 by Assistant Attorney General Jamie Gorelick, in which intelligence and law enforcement were directed to go beyond what the law requires to keep intelligence-gathering and criminal law enforcement separated.
We do not know as yet whether or not the firewall prevented news of Atta from reaching those who could have prevented 9/11, and whether that fact was indeed received and covered up by the 9/11 Commission. If either or both of these events turn out to be the case, it would be a vile and terrible thing--but not, in the final analysis, a totally surprising one. In fact, it would seem almost inevitable, given the long history of ever-increasing curbs on US intelligence-gathering power--and the tendency of human beings to cover up, ignore, or excuse their own failures.