Several previous posts here have discussed Jamie Gorelick’s wall of separation between intelligence and law enforcement, enunciated by her now-infamous 1995 memo to U.S. Attorney Mary Jo White, FBI Director Louis Freeh, Assistant Attorney General for the Criminal Division Jo Ann Harris, and Justice Department Counsel for Intelligence Richard Scruggs, who also ran the Office of Intelligence Policy and Review.
As the OIPR may well have played a role in preventing the intelligence on Mohammed Atta and three other eventual 9/11 hijackers from reaching the FBI, and as this may be related to Bill Clinton’s China problem (as a number of commenters on past Able-Danger posts here have suggested), it’s worth taking a look at this agency and its chief counsel in 2000, Frances Fargo Townsend.
The counsel for intelligence at the Justice Department is also general counsel for the Office of Intelligence Policy and Review at the Department of Justice; Scruggs held this position in 1995 (though not in 2000). The OIPR is tasked with advising the attorney general on “all matters relating to the national security activities of the United States,” according to their website, as well as advising “the Central Intelligence Agency, the Federal Bureau of Investigation, and the Defense and State Departments, concerning questions of law, regulation, and guidelines as well as the legality of domestic and overseas intelligence operations.”
The OIPR’s primary, day-to-day task is to serve as the gatekeeper to the FISA court on behalf of the FBI and other investigators at the Justice Department. The Foreign Intelligence Surveillance Act of 1978 established guidelines for obtaining wiretaps, clandestine searches, and other investigative tools in cases involving national security, where intelligence agencies and law enforcement agencies might have to cooperate and in which classified materials that cannot be revealed in open court may be involved. The act also established the Foreign Intelligence Surveillance Court, commonly called the FISA court, which would meet in secret to consider applications for FISA warrants from the Justice Department; those warrants routinely passed through the OIPR, which rewrote them, could demand more information from the requesting group (often the FBI) — and ultimately had to decide whether to send them on as formal applications to the FISA court or reject them entirely without the court even seeing them.
In August 2002, Accuracy In Media (AIM) wrote a report about the May 21, 2002 letter by FBI Special Agent Coleen Rowley to FBI Director Robert Mueller, complaining about the roadblocks thrown up by the FBI and the Justice Department in Rowley’s 2001 investigation of Zacarias Moussaoui. AIM pinpointed the blame on the OIPR, which had repeatedly refused to attempt to obtain a warrant from the FISA court to search Moussaoui’s computer and other possessions. In that report, AIM detailed some of the history of the OIPR and chronicled its role in building the wall of separation, starting even before Jamie Gorelick moved to Justice.
(Curiously, Rowley, a lifelong Democrat, went down to Camp Cindy a couple of weeks ago to protest in support of Cindy Crawford’s call for immediate and unconditional surrender to Abu Musab al-Zarqawi. So it goes.)
The OIPR had long been a valuable asset to the Justice Department in obtaining warrants from the FISA court.
From 1984 to October 1993, Mary C. Lawton was the Justice Department’s Counsel for Intelligence, in charge of the OIPR, the critical node in the FISA process. During her tenure, she occasionally rejected efforts by the FBI to obtain FISA warrants, but once an application left her office it was never turned down by the FISA court. Lawton also permitted the FBI to work with Justice’s Criminal Division to ensure that it did nothing that would hinder any eventual prosecution. A former agent who worked with her says Lawton had a razor-sharp legal mind, particularly with regard to national security. Agents knew that once she approved it, the final application would sail through the FISA court.
But in 1993, Lawton died. This conveniently allowed Janet Reno to appoint Richard Scruggs, who she had brought to Washington from the U.S. Attorney’s office in Miami, as the Justice Department’s counsel for intelligence (hence general counsel for the OIPR).
Scruggs had no background whatsoever in national security, no connections with the FBI’s National Security Division, and no ties to the Criminal Division at Justice. I believe he was appointed to be a cat’s paw for Reno (a year later, Reno brought Jamie Gorelick over from the DoD to be her Deputy Attorney General, the second most powerful position in the department — I think for similar reasons). In 1993 — two years before Gorelick’s Wall — Scruggs himself added another layer to the FISA wall, refusing more often, and with flimsier reasons, to allow intelligence agencies to transfer data to criminal investigators.
The Chinese Connection
According to the AIM report,
Simultaneously [with the appointment of Scruggs in 1993], Director Freeh was dismantling the FBI’s counterintelligence capabilities. The China section was especially hard hit. Experienced China counterintelligence specialists like Ray Wickman and T. Van Majors had retired or sought reassignment to field offices. Consequently, the National Security Division lost the expertise built up over the years of working with OIPR and preparing FISA applications.
Scruggs was criticized by Ronald Kessler in his book The Bureau: The Secret History of the FBI, for using this issue as a pretext to increase his status with Reno and expand his staff and budget. Scruggs erected barriers between the FBI and Justice’s Criminal Division and threatened to reject automatically any FBI attempt to obtain a FISA warrant should the Bureau violate his rules. In this fashion, the FBI was deprived of advice and assistance from the Justice Department’s Criminal Division in espionage or terrorist cases. [emphasis added]
It is now generally conceded that the People’s Republic of China (which I hereafter call Red China, because I’m an old fogey who doesn’t like changing terms of long usage and perfect clarity) established a spy network of stunning breadth during the Clinton administration, primarily focusing on obtaining our most up-to-date nuclear technology and strategy. Of more controversy is why: the Right asserts, and the Left hotly denies that Clinton himself turned a blind eye to Chinese espionage because of the very large campaign contributions funneled into the Clinton war chest by the Peoples Liberation Army (PLA) and various intelligence agencies of Red China; the last estimate I saw indicated that the PLA eventually donated as much as $4 million to Clinton’s campaign and library funds and to the Democratic National Committee, channeled through various cutouts, including Maria Hsia, Johnny Chung, John Huang, and Charlie Trie.
The United States also changed its foreign policy with respect to Red China in several ways favorable to them during this period; for example, retracting our promise to defend Taiwan in the event of an attack by Red China, granting technology-transfer waivers to Loral Space and Communications and Hughes Electronic Corp. to share state-of-the-art launch technology with Red China, and attempting to sell the former U.S. Naval Base at Long Beach to COSCO, the China Ocean Shipping Company — a well-known front for the PLA. Much of this is detailed in Edward Timperlake and William C. Triplett II’s excellent book the Year of the Rat: How Bill Clinton Compromised U.S. Security for Chinese Cash, as well as in Bill Gertz’s Betrayal : How the Clinton Administration Undermined American Security. Each person can draw his own conclusions about any connection between these events.
But how does any of this relate to the wall of separation at Justice that prevented transmitting Able Danger intelligence to the FBI in 2000?
Starting in 1993, the FBI began investigating what they believed to be one of the most effective and damaging Chinese spies in the country: Dr. Wen Ho Lee, working on nuclear technology at Los Alamos National Laboratory. Lee was eventually charged with fifty-nine counts; but the case was botched, and all but one of the charges were dropped. Lee pled guilty to one count of “unlawfully retaining national defense information” and was sentenced to time served.
In 1997, the FBI wanted to search Wen Ho Lee’s computer accounts at Los Alamos, both those for classified information that he had access to and also his personal office computer, which was unsecured: the FBI believed that Lee was transferring highly classified technical documents from the classified computer to the unsecured, web-connected computer — whence, the government eventually alleged, the Red Chinese snatched them. None of this was proven at trial; in fact, at least some of the information seems not to have been accessible by Lee. But the FBI believed they needed to inspect Lee’s computers and wiretap his phone, and they sent a Letterhead Memorandum up the chain at Justice requesting a FISA warrant… which the OIPR had to decide whether or not to turn into a formal application to the FISA court.
In 1996 or 1997, Scruggs, a protege of Attorney General Janet Reno, left that position and was replaced by an interim acting counsel, Gerald Schroeder. It was Schroeder who rejected the FBI’s request, refusing to pass it along to the FISA court.
Under Scruggs, the OIPR had significantly expanded the wall of separation; after Scruggs left, Schroeder refused even to relay an FBI request for a FISA warrant to the FISA court to investigate potential Red Chinese espionage of critical nuclear technology. At this very same time, President Clinton was under investigation by members of Congress for cozying up to Red China in exchange for campaign cash… and Janet Reno was frantically stonewalling demands that she appoint a special counsel to investigate Clinton’s China connections.
There is no proof that Reno’s attempts to stifle investigation into Red Chinese penetration of the White House influenced the decision by the acting counsel for intelligence at the Department of Justice (who heads the OIPR) to put a lid on the investigation of suspected Red Chinese spy Wen Ho Lee. But certainly it was — I can’t resist — another brick in the wall of separation. By this point, it had become terribly difficult for OIPR to approve any connection at all between intelligence and law enforcement. As the AIM report put it:
Although OIPR attorney Dave Ryan prepared the application, the key player in the rejection was Allan Kornblum, OIPR’s Deputy Counsel for Operations. He testified that he was shocked when he first read the Bureau’s draft, but he then proceeded to throw up a series of ever-higher obstacles to OIPR’s approval….
The Senate report concludes that Kornblum was applying a standard appropriate to establishing guilt in a courtroom, but not to establishing probable cause to obtain a FISA warrant. Kornblum is viewed as an experienced career attorney, but one more “political” and “attuned to the front office” than his colleagues. In this case, Kornblum may have been playing to Schroeder’s “very restrictive definition of probable cause.”
Another way to put it is that by 1997, the OIPR had become gun-shy about any interaction at all between intelligence and law enforcement. On FISA warrants, it became more important to the OIPR under Schroeder to maintain its near perfect record of not being rejected by the court than it was to get vital intelligence to investigators and prosecutors. But vigorous enforcement of the wall seeped from the OIPR through every department, every field office, and every agent and employee of the Justice Department.
The stage had been set for the colossal failure of Able Danger.
Frances Fargo Townsend
Acting Counsel for Intelligence Schroeder left in 1998, and was replaced by the soon-to-be controversial Frances Fargo Townsend. Townsend — a Republican and former deputy to Rudolph Giuliani in the U.S. Attorney’s Office in New York City, but a very close friend of Attorney General Janet Reno nevertheless — was elevated to that position at Reno’s request; since Townsend was also the protege of then FBI Director Louis Freeh (another recipient of Gorelick’s memo), she was a shoe-in for the job heading OIPR.
U.S. News and World Report profiled Townsend last December. Although they did not discuss Able Danger, they did report on the feeling among nearly all of Townsend’s critics that she was too enamored of that wall of separation, and that she was just as conservative in applying for wiretapping and surveillance warrants from the FISA court as Schroeder and Scruggs had been.
Townsend found herself in the middle of that debate over how much of a “wall” should exist between intelligence-gatherers and prosecutors, and her tenure at OIPR remains controversial today. Many FBI agents say Townsend was crucial in obtaining FISA wiretaps, especially during the period of heightened terrorism concerns around the new millennium. But many prosecutors felt that Townsend was less than helpful in making sure the FBI shared wiretap data with lawyers at Main Justice when there was evidence of criminal activity. Townsend believed that the FISA court and its chief judge at the time, Royce Lamberth, would refuse to approve search warrants and wiretaps if they believed too much information sharing was going on and if prosecutors were controlling or directing the intelligence-gathering efforts….
Both the Government Accountability Office and the 9/11 commission have blamed OIPR in part for the government’s intelligence failures before the terrorist attacks. Sources say that OIPR’s narrow interpretation of FISA led to misunderstandings and overly cautious behavior by the FBI. As a result, in July and August of 2001, FBI intelligence analysts prohibited their own criminal-case agents from searching for two men on the government’s terrorist watch list who they knew had entered the United States. The men later proved to be two of the 19 hijackers.
In fact, under Townsend, the control by OIPR of all connections between intelligence and law enforcement became nearly absolute through what can only be called political extortion:
The 9/11 commission said OIPR had become the “sole gatekeeper” of FISA intelligence by arguing that “its position reflected the concerns” of Judge Lamberth. “The office threatened that if it could not regulate the flow of information to criminal prosecutors, it would no longer present the FBI’s warrant requests to the FISA court,” the report said. “The information flow withered.” [emphasis added]
And of course, less than three years into Townsend’s tenure, the Pentagon’s Able Danger team requested permission from the Department of Defense’s general counsel to share with the FBI intelligence information about an al-Qaeda cell in Brooklyn, a cell that included Mohammed Atta and three other soon-to-be 9/11 hijackers. Again, there is no absolute proof that the DoD lawyers contacted the OIPR; but that would be the regular source they would use to get Justice Department advice on the legality of such sharing. And assuming they did, the decision would ultimately fall to Frances Fargo Townsend: she would have to make the call.
Her personal history, as well as that of her office under two previous general counsels, and of the entire Justice Department under Janet Reno, makes perfectly clear that Townsend’s natural inclination under such circumstances would be to “just say no.” Indeed, by that time, the DoD lawyers (possibly still operating under Jamie Gorelick’s own tenure as general counsel for the Defense Department and her later memo at Justice) might not even have bothered asking, since they already knew what the answer would be.
Thus, in the end, the Able Danger catastrophe, like death and taxes, was predestined.
The Great Wall of China
Critics of the almost obsessive focus on Jamie Gorelick’s role in the Able Danger fiasco, which may have prevented the breakup of Mohammed Atta’s al-Qaeda cell in Brooklyn and the quashing of the 9/11 attacks, are right in one sense: Gorelick was not alone. Gorelick’s mentor, Janet Reno, had other agents: Richard Scruggs, Gerald Schroeder, and Frances Townsend were all close associates of the attorney general; and Louis Freeh became close to Reno, as well. All followed the same trail blazed by the boss, President William Jefferson Clinton.
All six of these individuals (seven, counting the president himself) were true believers in building that wall higher and higher. I suspect that OIPR’s fear of being rejected by the FISA court and Clinton’s well-known loathing of defense and disdain for intelligence gathering in general combined into a “perfect storm.” The intelligence side would simply not even be allowed to talk to the criminal investigation side. The wall of separation became a veritable Great Wall of China, completely segregating intelligence gathering at the CIA, DIA, Naval Intelligence, the National Security Divison of the FBI, and yes, the Able Danger data-mining operation from the criminal investigators and prosecutors under the Department of Justice — including the FBI. Everybody on both sides of the wall contributed another brick or two.
That same Great Wall also imprisoned the federal criminal-justice system itself: they were isolated, sequestered, and kept in the dark about the great and terrible events swirling around the country (and the world) from 1993 right up to when the hammer fell on September 11th… and even beyond, until Congress enacted the USA PATRIOT Act a month later.
In another sense, though, the critics are dead wrong: it is worth focusing on Gorelick because she wrote the clearest (though not the first) directive expanding the Great Wall — and because she was subsequently foisted upon the 9/11 Commission by the Democrats in a crass and blatant (and ultimately successful) attempt to ensure that none of this would come out in the commission’s final report.
In this case, success may not have a thousand fathers, but it surely has at least seven progenitors.