Three times during his tenure as Deputy Attorney General, Eric Holder was made fully aware that intelligence sharing with the Criminal Division was not taking place. As the officer in charge of day-to-day operations at the Department of Justice, his lack of due diligence ensured that the ‘Wall’ between the intelligence and criminal divisions of the FBI that Jamie Gorelick had built would remain in place for the foreseeable future. The ‘Wall’ stood as the Clinton administration and intelligence community saw the rising threat of al Qaeda, Ramzi Yousef prosecuted for making the bomb used in the 1993 attack upon the World Trade Center and “Bojinka” plot to bomb American jetliners, and our embassies in Africa attacked in 1998.
Despite being well informed in 1997 of the problem, Mr. Holder allowed the very working group he had formulated to not make a single serious recommendation; then he disbanded the group without action:
In June 1996, a memorandum was drafted for the Attorney General to issue emphasizing that contacts between intelligence and criminal agents were not prohibited. (Appendix D, Tab 28) This draft memorandum (961) was never issued, however. (McAdams 7/16/99) By September 1997, according to Daniel S. Seikaly, Director of the Executive Office for National Security (“EONS”), the Director of the FBI had complained to the Attorney General that, despite the July 1995 memorandum, OIPR was preventing the FBI from contacting the Criminal Division. (962) (Seikaly 4/4/00) According to a memorandum Seikaly wrote at the time, the Attorney General was “anxious” to see the problem resolved. (Appendix D, Tab 37) Deputy Attorney General Holder instructed Seikaly to convene a working group consisting of representatives from OIPR, the FBI, and the Criminal Division to address the issue. (Appendix D, Tab 37; Seikaly 4/4/00)) Seikaly concluded that the Attorney General’s memorandum was not being followed, indeed that both OIPR and the FBI “were ignoring the procedures out of an abundance of caution.” (Appendix D, Tab 45) One suggestion was “simply to ask the Attorney General to … reassert the validity of the Procedures,” (id) but there was some sentiment that it would be inappropriate for the Attorney General to issue a memorandum that essentially said “And we really mean it this time.” (Seikaly 4/4/00) In the end, the working group was disbanded without recommendation and no significant action was taken. [emphasis added mine] — Bellows Report, page 722, (pdf reader required)
As stated in Chapter 3 of the 9/11 Commission Report, in both 1999 and 2000, “[S]eparate reviews concluded independently that information sharing was not occurring, and that the intent of the 1995 procedures was ignored routinely,” yet again, Holder took no action.
By the time Holder was DAG, the effects of Jamie Gorelick’s memorandum were fully entrenched, everyone was “misinterpreting” the rules. It’s true that Gorelick chaired the Working Group and she wrote that they “went beyond what the law requires,” but also affecting the interpretation of the rules was the Intelligence side, Criminal side culture/rivalry.
A fellow 9/11 family member emailed today and wrote:
What makes it all relevant today is the obsessive concern for the rules which are aimed at protecting the civil rights of criminal defendants. That’s what the ‘Wall’ was. All this talk about “fighting the war on terror while retaining our core values” … like we’re giving up our souls if we don’t protect the rights of terrorists and, in the case of the ‘Wall’, they were wrong. They weren’t protecting anybody’s “core values” — they were risk averse, career-protecting, turf-protecting, know-it-all lawyers, and their vanity about being morally superior for protecting the so-called rights of defendants helped get 3,000 people killed. I don’t know that Holder is any more responsible than Gorelick, or even as much as her; she wrote the 1995 memo.
I differ slightly. DAG Eric Holder saw far more evidence of the ‘Wall’ than did his predecessor DAG Jamie Gorelick — on his watch and within his lane — just as the lights began blinking al Qaeda blood red on his control panel.
Michelle Malkin reported today that even Arlen Specter, my Senator, has announced that he will support Eric Holder’s nomination for Attorney General.
Yesterday, I was told that the staff looked at questions of the ‘Wall’ while vetting Eric Holder’s nomination but no one seems to have tied the 9/11 Commission Report to the Bellows Report. Lacking that, minority members of the Judiciary Committee instead concentrated on concerns about his involvement in the Marc Rich and FALN pardons.
To date, what has been withheld from public view is the 9/11 Commission’s Staff Monograph on the ‘Wall’ — it exists, as I confirmed on January 15, 2009.
In line with a 2004 six to three decision (one not present) by the 9/11 Commission, the release of their reviewed, unclassified, and non-sensitive records of their investigative work was set for January 2, 2009 or “soon thereafter.” On January 14, 2009 those records began to be made public, to little fanfare as CNN and USAToday did brief, boring articles about them. (See the second FAQs answer.)
Click here: That is the main page of the newly released information that went online on January 14, 2009 — the day before Holder’s hearings began. Before changing pages, note two main things: 1) a link to Memorandums for Record (MFR) which are summaries of the 1200+ interviews the Commission and their staff conducted, and 2) a Staff Monograph on the Four Flights and Civil Aviation Security (first and second releases). The second release is the same staff monograph with less redactions. That they make no mention of the last staff monograph, the one on the ‘Wall’, greatly disturbs me.
Now, click on the ‘Memorandums for the Record (MFR)’, then on ‘Affiliation’ to sort them, and scan down to those categorized as ‘Department of Justice.’ You will see that [there] are viewable summaries for Ashcroft, Castello, Gorelick (latest is 2004-01-13, and adds to previous MFRs), Nahmias, Reno, Reynolds, Townsend, and Vatis, plus eight that are “pending.” Those released are all interesting yet the ones for Ashcroft, Reno, Gorelick, and Townsend set off bells. Beyond the fact that there is a glaring difference in the tone and summary of Ashcroft’s interview compared to Reno and Townsend, Gorelick did a lot of blame shifting back then, in 2004, and just two weeks ago in response to a Wall Street Journal editorial that was highly critical of Dawn Johnsen being nominated to head the Office of Legal Counsel. She continues to pass the full dollar’s worth of that buck elsewhere:
Your editorial page continues to get the facts wrong here, so I suggest you look at the memo itself and what has been written by independent observers about it. After my memo was declassified by Attorney General John Ashcroft — who mischaracterized it and its history in order to deflect criticism of his pre-9/11 inattention to the threat of terrorism [emphasis added mine] — it was reviewed by the 9/11 Commission itself (from which I recused myself on this point) and by others, such as David Kris and J. Douglas Wilson in “National Security Investigations and Prosecutions,” Section 10:7, at 10-15.
Proof that this was the institutional view of the department — not my view or Attorney General Reno’s view — is found in the reiteration of this policy by Attorney General Ashcroft’s own deputy in August 2001, [emphasis added mine] just one month before 9/11. He too concluded that if the department didn’t want to lose a critical national security tool that had been provided by Congress, it had to assure the court that prosecutors seeking a criminal indictment did not use FISA or direct or control the FBI’s use of FISA warrants. Indeed, even after the Patriot Act changed the law in 2002 to eliminate the primary purpose test, the FISA court reimposed the 1995 policy.
Ms. Gorelick complained too much, as if she wanted to draw attention to herself, then slap Ashcroft with all the blame just prior to Eric Holder and Dawn Johnsen coming up for nomination. (The latter was acting head of the Office of Legal Counsel from 1997 to 1998 in Clinton’s White House.)
What has me most intrigued is 1) 4 1/2 years after the Commission and you’ll note that many of those MFRs are still pending review, 2) eight of the DoJ’s MFR’s are still pending even though if you read the ones for Reno, Gorelick, and Townsend you’ll see Richard Scruggs was important to talk to about the ‘Wall’. They surely wanted to interview him as he was the Counsel of Intelligence Policy Review, Office of Intelligence Policy and Review, when the protocol that became the ‘Wall’ was created. Then there is this, from the 9/11 Commission Report, page 78 (Chapter 3):
But the prosecution of Aldrich Ames for espionage in 1994 revived concerns about the prosecutors’ role in intelligence investigations.The Department of Justice’s Office of Intelligence Policy and Review (OIPR) is responsible for reviewing and presenting all FISA applications to the FISA Court. It worried that because of the numerous prior consultations between FBI agents and prosecutors, the judge might rule that the FISA warrants had been misused. If that had happened, Ames might have escaped conviction. Richard Scruggs, the acting head of OIPR, complained to Attorney General Janet Reno about the lack of information-sharing controls. On his own,he began imposing information sharing procedures for FISA material. The Office of Intelligence Policy and Review became the gatekeeper for the flow of FISA information to criminal prosecutors.32 [32. Bellows Report, pp. 712, 713, and 714, n. 947, appendix D tabs 2, 3; Richard Scruggs interview (May 26, 2004); Larry Parkinson interview (Feb. 24, 2004). Because OIPR had ultimate authority to decide what was presented to the FISA Court, it wielded extraordinary power in the FISA process.]
In addition, this is from the last page of the 9/11 Commission’s MFR summarizing the interview of Jamie Gorelick:
The Attorney General’s procedures provided that any disputes regarding information sharing to be brought to the Deputy Attorney General. Gorelick said by the time she and Vatis had left, no one had brought any disputes to them for resolution. She said the FBI just took its instructions form OIPR. When Eric Holder took over as Deputy Attorney General he turned the issue over to Dan Seikaly. Gorelick did not know whether any disputes were presented to Seikaly.
If there had been no complaints on Jamie Gorelick’s watch about the ‘Wall’, then why was, “In June 1996, a memorandum … drafted for the Attorney General to issue emphasizing that contacts between intelligence and criminal agents were not prohibited.”?
After all that, do you think that Eric Holder should have been interviewed by the 9/11 Commission and questioned [about the Wall] by the Senate Judiciary Committee during his AG nomination hearings?
I suspect (but have no evidence) that Eric Holder and Dawn Johnsen were interviewed by the Commission and are among the eight DoJ summaries that are still pending. Surely, Richard Scruggs and Daniel Seikaly were interviewed and very likely mentioned Holder (and perhaps Johnsen) within those eight pending summaries.
On January 15, 2009, I called the Legislative Archive yet obviously the person I spoke with was not at liberty to tell me the names of those eight pending DoJ summaries. Not wishing to get stonewalled, I did not ask that question, and that decision paid off richly. In the course of our conversation over my minor question, I asked if that (about Civil Aviation) was the last staff monograph and the person thought it was. He took my phone number and called me back 10 minutes later with an answer to one minor question. Then, unexpectedly, he called me back 30 minutes later to say there remained one item that had not even been scheduled for review, a Staff Monograph on The Wall. It had not been totally redacted. For some reason, most likely MFRs still pending review, it was not released but what explains why it was not even mentioned?
When I spoke with someone on the Senate Judiciary Committee staff, they said with the Committee vote on Holder scheduled for Wednesday, it is too late to ask him about this in either direct questioning or in writing.
I wonder what more detailed, perhaps even actionable intelligence might have been in that August 6, 2001 PDB had only DAG Holder dropped the ‘Wall’ instead of the ball in 1997, 1999, and 2000.