Don't Blame 'The Wall' for Pre-9/11 Failures

April 25, 2004 by Bob Kearney, San Francisco Chronicle

During the past few weeks of hearings before the Sept. 11 commission, the Bush administration has relied heavily on one talking point in its campaign to extend expiring provisions of the USA Patriot Act.

Administration officials argue that because the 2001 counterterrorism law helped remove the wall between foreign intelligence-gathering and law enforcement, Congress should stand foursquare behind the entire act. President Bush, campaigning last week in Pennsylvania, invoked the wall as a reason to extend the act beyond the end of next year.

But dismantling the wall is one small part of the Patriot Act, which contains about a dozen far more radical expansions of federal authority that have ignited a firestorm of protest from Americans across the ideological spectrum. It may also be unnecessary because communication failures between our spies and cops may be more the result of human error and bureaucratic inertia than a legislative wall.

Legally, the wall has its origins in the abuses of the McCarthy and Watergate eras, when FBI, CIA and military intelligence agents used foreign intelligence-gathering as the justification for spying on and harassing political protesters and dissidents. After this pattern of abuse was revealed during the 1976 Church Committee hearings, Congress passed the Foreign Intelligence Surveillance Act in 1978.

The act was designed to give America's counter-intelligence and counterterrorism investigators -- our domestic spies and spy-hunters -- broad power to gather and analyze information about potential threats to national security, unfettered by constitutional constraints. It was intended to keep criminal investigators -- our federal detectives -- from using these foreign intelligence tools to sidestep the Fourth Amendment and other safeguards against government abuse of innocent people.

While Attorney General John Ashcroft argued in testimony to the Sept. 11 commission that "the single greatest structural cause for the Sept. 11 problem was the wall that segregated or separated criminal investigators and intelligence agents," this has yet to be shown. Indeed, it was breakdowns in information-sharing within the FBI that led to the Phoenix flight school and Zacarias Moussaoui debacles.

Furthermore, Ashcroft himself has admitted that the Foreign Intelligence Surveillance Act might not be the reason that the wall stood so high. The inhibition against information-sharing, he testified, was the result of "flawed legal reasoning, (which imposed) a series of restrictions on the FBI that went beyond what the law required."

In other words, the culprit was bad lawyering, not bad law. Former Attorney General Janet Reno made a similar point in her testimony before the Sept. 11 commission. She noted that no law kept the CIA from telling the FBI and State Department for 18 months that two Sept. 11 hijackers had entered the United States.

In fact, she told the commission that there were protocols, contained in memos written by her in 1995 and 2000, requiring the sharing of such information between the two agencies.

So why wasn't it shared? The CIA simply chose not to share with the FBI mainly, it seems, because the CIA felt that the FBI had no "need to know." Many experts cite this "need to know" way of operating, called compartmentalization, as the real reason why information is often held too close to the chest.

This modus operandi for foreign and domestic intelligence gatherers made sense during the Cold War, when double agents and Soviet moles were a huge security risk, but it could prove to be more of a hindrance in the fight against terrorism.

Even if a legislative fix for the wall were necessary, Congress and the federal agencies could accomplish it without allowing federal police to circumvent constitutional protections. They could fix the wall without relying on spy-hunting and spy-catching methods that require no criminal probable cause, no individual suspicion and no restrictions on how intelligence is used.

In other words, they could fix it without the most egregious provisions of the USA Patriot Act.

Sadly, President Bush, National Security Adviser Condoleezza Rice and Ashcroft continue to offer the Patriot Act as the silver bullet for our intelligence problems. In doing so, they distract public focus from serious problems in this law that are stirring up a growing chorus of complaints. Some examples:

• The Patriot Act defines domestic terrorism too broadly, which could result in direct action protesters from groups like Operation Rescue or Greenpeace being targeted as terrorists.
  
  
• It expands law enforcement's ability to obtain "sneak and peek" search warrants, which authorize federal agents to break into and search peoples' homes or offices without telling them for weeks or months afterward.
  
  
• It authorizes sweeping court orders allowing the FBI to access a wide array of highly personal information, including medical, financial, mental health and student records, with only minimal judicial oversight and no requirement that agents show any proof that the target is in fact a terrorist or spy.

The Patriot Act passed Congress just 45 days after the Sept. 11 attacks with only cursory debate and in the middle of the anthrax scare on Capitol Hill. Since then, more than 280 towns, cities, counties and states, encompassing more than 50 million Americans, have passed local government resolutions calling for a fresh look at the law.

Many of the strongest objections to the Patriot Act have come from the political right. Republican Newt Gingrich, former speaker of the House, wrote recently, "Congress must act now to rein in the Patriot Act." Many conservative organizations, including the American Conservative Union, the Eagle Forum and Gun Owners of America, have urged Congress to change the law.

In Congress, a bipartisan group of lawmakers is backing a modest but essential measure to do exactly that. The Security and Freedom Ensured, or SAFE, Act would:

• Require some individual suspicion before agents can gain access to Americans' medical, financial and other personal records even with a court order.
  
  
• Ensure that "sneak and peek" search warrants are issued only when absolutely necessary to protect lives or evidence or to prevent flight.
  
  
• Require notification of a "sneak and peak" search within seven days (notification now can be delayed indefinitely).
  
  
• Narrow the overly broad definition of terrorism to protect the right to dissent, and to prevent unnecessary terrorism prosecutions and convictions.

No provision in the SAFE Act would do anything to rebuild the wall.

Stopping terrorism does not mean sacrificing our civil liberties. Extension of the Patriot Act will only create another unfortunate wall -- one between the American people and their freedom.

Bob Kearney is associate director of the ACLU of Northern California.