Wednesday, August 17, 2005

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.


At 1:18 PM, August 17, 2005, Anonymous Anonymous said...

When I try to follow the link to the McCarthy article, I get Not Found. If I cut the initial, the remainder works. Sorry if this isn't a problem for others. Thanks, Neo. Tim

At 1:38 PM, August 17, 2005, Anonymous Anonymous said...

Fixed, anon. Thanks for the tip.

I've noticed this is a new problem since I've been using a different browser to set up my blog entries--some of the links go wrong when it's posted. I'll try to be more aware of the problem.

At 1:59 PM, August 17, 2005, Anonymous Anonymous said...

This is an intersting blog you have. I am finding the same acusations of myself, this is especially bad for me (I am Arab American). I live in New England as well, in New Haven of all places, with the whole liberal uni types on the hunt for a "neo-con" or "zionist" (how funny you know?). I think I will link you on my blog.


At 3:13 PM, August 17, 2005, Blogger Dymphna said...

neo nc--

This is an excellent and well-researched history of the problem as it exists in the present.

What is of interest,too, is the American character, which basically resists the cloak-and-dagger part of states' affairs. We are the antithesis of Michiavelli in our characterological make-up; in our ambivalence we end up tripping over our shoelaces and looking like incompetents.

When you read some of the founding fathers with their idealistic belief in the Enlightment philosophy evenutating (ugly word, they wouldn't have used it) in the withering away of the need for "secrets" you get a visceral feel for the origins of our ineptitude...

Thanks for the work you did here. A real service.

At 3:46 PM, August 17, 2005, Blogger cakreiz said...

A wonderfully accurate historical post. You're right about the long and winding road. I remember the Church Committee (a reaction to Watergate, which was a reaction to Vietnam). I thought Church overreacted in tying the hands of our intelligence services. Turns out that instinct was correct. The 9/11 Commission should have focused on this artifical logjam. Instead, it chose politics over substance and tried to make a sacrifical lamb out of Condi Rice.

At 4:36 PM, August 17, 2005, Blogger cakreiz said...

For good and bad, it amazes me how Vietnam continues to be the template and the touchstone for modern American politics. If you want to understand who and where we are, go back to 1968 or so.

At 5:21 PM, August 17, 2005, Anonymous Anonymous said...

The 9/11 Commission's unwillingness to investigate Able Danger was based upon a pre-established Atta timeline. Had the 9/11 Commission further investigated this intellegence information they may have discovered Atta's relationship to an Al Qaida cell in Germany which itself was connected to Iraq.

For me this is one of many disturbing aspects of the 9/11 Commission's failings. Such failure to fully investigate, particularily during an election year, is what has fueled the "Bush Lied", "no connection between 9/11 and Iraq", "bring the troops home now" fiasco with which the American public is deluged.

This screams neon red, Washington power players playing the with American public and, when all is said and done, will most likely end the Democrat Party as we know it.

At 6:05 PM, August 17, 2005, Blogger tarpon said...

Excellent history and intersting extrapolation. But I wonder if there wasn't some intevening event that caused the wall to be raised higher.

Wasn't Jamie Gorelick in the legal heirarchy of the Pentagon before moving to Justice? Did she have some knowledge of what some spooks were up to? You do think we were monitoring China real close -- be a fool to not be.

This brings me to this fascinating story ...

It could be just speculation, it's easy to do when someone mentions Clinton, but it could be true.

If it were tre, it sure would explain a lot of the guilty behavior showing up of late.

At 6:25 PM, August 17, 2005, Blogger David Foster said...

This all seems to be a side effect of a belief which has increasing currency: If anything bad happens, it must be the fault of some American in a position of power.

I am reminded of the French member of Parliament in 1940 who, when his district was bombed by the Germans, shook his fist and denounced..the French government.

France 1940, USA Today?"

At 7:55 PM, August 17, 2005, Anonymous Anonymous said...

The political source for the firewall between the CIA and the FBI goes back much further than the Vietnam war, with its psychological roots in people who were rationally frightened of being found out, because they wanted to destroy the U.S.A., and in people who were irrationally frightened because they were only good-hearted fellow-travelers, and had no idea of how deadly the struggle was in many parts of the world.

Once again, Horowitz’s “Radical Son” best gives the flavor of both the parents of, and those Vietnam-era red-diaper babies whose inherited distaste for traditional American society led them to viciously attack it, whose antinomianism gave them all the excuses they needed for enjoying its benefits, and who were street-smart enough to not want to be found out, and to build legal defenses.

If it took 9/11 to make neo-neocon’s generation rethink their history and politics, their liberal parents’ generation might have been even duller and slower to respond.

Those, like me, who were young adults during and shortly after WWII, might read Thomas Fleming’s “The New Dealer’s War” to gain insight as to why Senator McCarthy’s charges so frightened those who worked with ill-intentions, and even those of us liberals (sensu Harry Truman) who were unwitting fellow-travelers, vaguely worried we might be thought guilty, too, at the same time we were honestly outraged to be told to sign “loyalty oaths.” Isn’t “denial” the first step in dealing with unwelcome facts?

“Denial” includes constructing attitudes and laws that not only protect the deservingly-outraged, the guilty-feeling, but also the truly dangerous.

At 8:30 PM, August 17, 2005, Blogger goesh said...

With the potential for a biochemical or nuclear attack we certainly don't want our intelligence agencies to remain gutted and castrated. I wonder how far al qaidah would have gotten in Afghanistan with developing some chemical agents? I recall the labratory our forces discovered where they had been experimenting with dogs and there were suspicions they have experimented with humans as well. It certainly is the time to 'unleash' the intelligence community and give considerable leeway to black ops and other assorted 'wetwork'.

At 10:51 PM, August 17, 2005, Blogger goesh said...

Any spooks or former spooks here?
I'm just curious if the intelligence community has a small section of staff somewhere that just sits around dreaming up means and methods of attack that could be employed against us. The devil's advocate group if you will. I certainly know what I would do if I were a terrorist wanting to attack the US again.

At 1:15 AM, August 18, 2005, Anonymous Anonymous said...

"Any spooks or former spooks here?"

Haha, no I wish. Am unemployeed about 2 years and have had trouble getting a job. Worked at a govt lab in high performance computing research and my refusal to move from east Tennessee has been a pain (not really the hot bed of that type of work, outside of Oak Ridge where I used to work). There are only two things I would move for - "spook" work or weapons design, but alas not much chance of that (but if any are reading - I'm available :) )

"I'm just curious if the intelligence community has a small section of staff somewhere that just sits around dreaming up means and methods of attack that could be employed against us. The devil's advocate group if you will. I certainly know what I would do if I were a terrorist wanting to attack the US again."

Of course they do, I've worked in computer security some and you *always* have such a thing. Even if you do not have people dedicated to that there is a general pervasive idea of "Everyone think of how we can break things". Not only that but when some of those plans become public (so that we know they do) there is something of a media backlash: "The govt has plans to invade Canada" - of course they do, that's their job. I would be worried if they didn't have plans to do so - I fully expect Canada to have plans for us doing so and thier retaliation. Doesn't mean on a scale of 1-100 of probablity it rates anything other than a 1, but it still has to be considered.

They have contigency plans for everything they can think of, though even that doesn't cover everything (say a 9/11 scenario on 9/10, though they did have some similar ideas). Unfortunatly part of the problem in the last few decades is the idea that not only do we not need too, but that it is counterproductive (and is expressed ideas such as the so called firewall). The idea that entertaining the idea makes it possible, no reality makes it possible and the idea allows us to conteract it before it happens.

I don't know to what extent it was curbed, but I would highly wager that post 9/11 even the "1"'s on the former scale are explored, even if they were not before.

At 5:06 AM, August 18, 2005, Anonymous Anonymous said...

Bears crap in the woods, scorpions sting, and bureaucrats refuse to ever place themselves in possible danger, however remote. It’s the nature of the beast. Are the new and startling allegations accurate concerning the Able Danger controversy? I am, at this moment in time, not quite sure who to believe. Still, I have no doubt whatsoever that a culture existed in the intelligence community which would have allowed such a disaster to occur. This is not even slightly debatable.

Bureaucrats tend to play it safe. When in doubt, they are encouraged to interpret the rules even more severely than explicitly demanded. There is no dogma more strictly adhered to by your long term government employee then “cover your ass, do nothing to jeopardize your career. You only have few more years before you start collecting your retirement benefits.” In other words, the wall is already high----and the bureaucrats will inevitably make it even higher. The fear of unwittingly stumbling into trouble becomes an obsessive concern. What about defending the country? This is never, at a gut level, the number one priority to the bureaucratic mindset. At the very best, it might be a secondary priority.

At 8:00 AM, August 18, 2005, Blogger tarpon said...

goesh -- yes.

At 9:20 AM, August 18, 2005, Blogger cakreiz said...

dave: you're certainly right about bureaucrats; no argument there. But removing walls between agencies creates a new climate that will be helpful. We'll always have cravenly desk jockies. But rewarding information-sharing and proaction changes the tone and the climate that these folks work in. It can't hurt.

At 3:21 PM, August 18, 2005, Anonymous Anonymous said...

I think it’s too early to tell exactly what the fallout will be from Able Danger. Probably the 9/11 Commission was not very effective because of a lot of reasons, one of which was the obvious goal of some of its members to try to embarrass the Bush administration. One only has to read Ben-Veniste & Bob Kerry’s hostile questioning of Condoleezza Rice to get a feeling for this. Rice wouldn’t let them do it & I get a sense from the transcripts of her testimony of a quick-witted & very intelligent mind that was more than a match for their attempts to muddy the record. To them it must have smelled of those golden bygone days of Watergate. How ironic that the Commission’s partisan politics tinted myopia may prove more damaging to Clinton than to Bush.

At 9:12 PM, August 18, 2005, Blogger Akv said...

I think part of the reason for ignoring Able Danger(if this did happen) is the whole sticky issue of domestic intelligence gathering. The CIA isn't allowed to do it. The FBI needs probable cause and can only do it within reasonable bounds. I also believe that this is partially the reason why there is the "firewall". Able Danger using public information(or at least a majority of information accessible to the public) did essentially what the USAPatritot act has allowed Homeland Security and other departments to do now.

At 8:59 AM, August 19, 2005, Blogger cakreiz said...

Neocon- as aside. I commented above about the continuing impact of Vietnam on our politics, cultural and diplomacy. I asked a friend of mine about it. His theory was simple: moments of shame, defeat and embarrassment are much more definitional than victories. If true, the Civil War would have more impact on the South than the North (which is probably true).

At 2:20 PM, August 19, 2005, Blogger Baron Bodissey said...

I lay the blame for the whole mess, ultimately, on Richard Nixon. Probably no one after WWII did more damage than he did to conservatism and constitutional government.

Mind you, it took two to tango, because the press was out to get him. It's amazing that 30 years later the deadly consequences of all that appalling behavior are still unfolding.

At 11:12 PM, August 19, 2005, Blogger Jack said...

"This is an intersting blog you have. I am finding the same acusations of myself, this is especially bad for me (I am Arab American). I live in New England as well, in New Haven of all places, with the whole liberal uni types on the hunt for a "neo-con" or "zionist" (how funny you know?). I think I will link you on my blog.


God, I love the net.


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