WASHINGTON, April 13 (UPI) -- Attorney General John Ashcroft, leading an administration counterattack Tuesday against its critics on the Sept. 11 Commission, accused one of them of being the author of what he called "the single greatest structural cause for Sept. 11" -- a legal barrier between criminal prosecutions and intelligence investigations.
In a move that one GOP commissioner called "tactically brilliant," Justice Department officials surprised a public hearing of the commission by handing out copies of a newly declassified top secret memo written during the Clinton presidency by then-deputy attorney general and current commission member Jamie Gorelick. Ashcroft said the memo provided the "basic architecture" for a "debilitating" wall separating intelligence gathering from law enforcement, which has been roundly and widely criticized as an impediment to effective counter-terrorist strategy.
But a senior commission official, speaking on condition of anonymity, said that the memo related to only one particular case and was quickly superceded by a set of guidelines issued in 1995 by Attorney General Janet Reno.
Asked what relevance to the broad picture of policy the memo might have, the official replied "almost none."
The principles underlying the so-called wall between intelligence and law enforcement are simple: In the absence of a probable cause requirement and other constitutional safeguards in intelligence gathering inquiries, it was considered important that they be separated from criminal investigations to make sure that they were not run merely as a way to get around legal and constitutional restrictions on the latter.
"The origins and facts about the wall are not disputed," said the official, pointing out that both administrations had followed essentially the same policy on this matter prior to Sept. 11. The 1995 guidelines were "restated and clarified" by the new Bush administration in August 2001. In his testimony, Ashcroft argued that the August 2001 policy had been "a step in the direction of lowering the wall," but the official said the commission had concluded that any "modifications (of the policy in 2001) were modest."
The official said the commission had neither been advised of the Justice Department's declassification, nor known about the memo prior to its release. But he added that he was not surprised to learn that Gorelick had been involved in looking at such issues when she was in the Justice Department. "We knew that as deputy attorney general she was involved in all of the intelligence and national security issues," the official said.
Asked for his reaction to the surprise release of the document, which commission members had to ask for copies of after Ashcroft referred to it in his testimony, GOP commissioner and Reagan-era Navy Secretary John F. Lehman said, "We used to say in the Navy, 'Offense is the best defense,'" adding that he thought the manner of the memo's release was "tactically brilliant."
Indeed, although the memo is unlikely to persuade anyone not already convinced of Gorelick's alleged culpable negligence, it did succeed in focusing the attention of the news media on one of the messages about Sept. 11 that the administration has tried repeatedly to get across. Both Ashcroft, and national security adviser Condoleezza Rice in her testimony last week, pounded home the same basic idea: Structural and legal impediments to effective investigation and disruption of terrorist threats were much more significant than any failures of leadership or attention in the White House or Justice Department in allowing the Sept. 11 plot to succeed.
Ashcroft's spin offensive -- he was also the first of the commission's many witnesses to accompany his written testimony with a release trumpeting his and the president's achievements in the war on terror -- capped a weekend during which Democrats and other critics of the administration sought to suggest that the attorney general would face tough questioning about the disconnect between his public statement to a May 2001 congressional hearing that there was no greater priority for the Justice Department than fighting terrorism, and guidelines issued the following day by his office to help officials develop their budget requests for 2003, which concentrated on drugs and gun violence and did not mention terrorism at all.
In any event, the threatened exchanges about the budget were something of a damp squib, and Ashcroft -- saying he would "let our money do the talking" -- said his budget increased funding for counter-terrorism by 72 percent more than it increased it for drug interdiction or anti-violence programs.
The memo's dramatic release provided a distraction -- welcome, perhaps, for some -- from what was otherwise an unexceptional hearing, dominated by a restatement of the well-known failings of the FBI prior to the attacks.
The bureau's counter-terrorism efforts were hampered by a lack of resources, obsolete information technology and management systems, legal barriers to intelligence sharing and a prosecution-oriented mindset suited to conventional crime rather than the disruption of terrorist plots, commission investigators said in a staff statement.
The commission chairman, former New Jersey GOP Thomas H. Kean, called it an "indictment of the FBI."
Officials countered that they had been underfunded and overworked.
Former FBI Director Louis J. Freeh said he went "begging and screaming" to Congress for funds to fix the bureau's problems, and pointed out that, despite being designated the lead agency for the task, the FBI only received 3.5 percent of the federal government's counter-terrorism funding.
Despite this, Freeh told the panel, "Before Sept. 11, most of the information that was residing in the United States government with respect to al-Qaida came from FBI investigations, not from intelligence operations."
The commission's vice chairman, former Democratic Indiana congressman Lee H. Hamilton, also pointed out that between 1993, when the bureau made the terrorist threat one of its highest priorities in the wake of the World Trade Center bombing, and 2001, the resources the FBI devoted to counter-terrorism trebled.
Yet, by Sept. 11, 2001, still only 6 percent of the FBI's personnel was allocated to counter-terrorism -- less than half those working on the war against drugs -- and these few were often diverted to work on non-terror criminal cases like bank robberies, the staff statement said.
The statement and other evidence at the hearing about the pre-Sept. 11 FBI painted a picture of a senior management trying to ride herd on a decentralized organization, crippled by outdated and obsolete information technology, unable to share or analyze intelligence even internally, and facing a strategic choice between continuing to fight the war on drugs and other conventional crimes or shifting to a more proactive stance against the threat of terrorism.
In 1999, the FBI established a separate counter-terrorism division, and by the summer of 2000 its first head, Dale Watson, had developed a strategy for maximizing the bureau's capacity in this area. After a year of fruitlessly attempting to get the strategy implemented -- he told commission staff it "was the hardest thing he had ever done in his life" -- Watson decided that the FBI needed to make a strategic shift, essentially turning over the lead role in the war on drugs to the Drug Enforcement Agency, if it was to free up sufficient resources to effectively fight terrorism.
But even had terrorism been made a priority, the agency's effectiveness would have been limited by its inability to effectively centralize, analyze and disseminate information it had collected in the course of criminal investigations.
Analysts were so poorly trained, said the report, that a 1999 assessment found two-thirds of them were "not qualified to perform analytical duties, and field offices were using their analysts to do data entry and answer phones."
Moreover, the bureau's information management and computer systems, installed in 1995, used 1980s technology that was already obsolete.
Clinton-era Attorney General Janet Reno told the commission that these problems were her primary concern about the FBI. "I kept finding evidence we didn't know we had," she told the panel.
Finally, in late 2000, the bureau got approval for a three-year program to install a new IT system called Trilogy.
The installation of Trilogy has still not been completed.
But the most pungent criticism of the FBI to emerge from the hearing was the law-enforcement mentality, which Freeh admitted handicapped its fight against terrorism.
"We were using grand jury subpoenas and arrest warrants to fight an enemy that was using missiles and suicide boats to attack our warships," he told the panel, referring to the October 2000 attack on the USS Cole.
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