Memo to NY Post , et al: So-called Gorelick “wall” could not have been responsible for military failure to share alleged Atta intel

In the past week, conservative media -- including two New York Post columnists and two Post editorials -- have falsely suggested that information obtained by military intelligence purportedly identifying lead 9-11 hijacker Mohammed Atta may have been withheld from law enforcement officials because of a 1995 memo written by then-Clinton deputy attorney general Jamie Gorelick. But the Gorelick memo and ensuing guidelines, which conservatives claim created a “wall” between intelligence agencies and law enforcement officials, had nothing to do with military intelligence -- those documents addressed communications only among divisions within the Department of Justice. Moreover, as Media Matters for America has previously noted, the “wall” that conservatives accuse Gorelick of enacting had been operative well before Gorelick -- or Clinton -- took office.

While the truth remains unclear, Rep. Curt Weldon (R-PA) and Lt. Col. Anthony Shaffer have recently suggested that Shaffer's classified military intelligence unit Able Danger identified Atta more than a year before the September 11, 2001, terrorist attacks but was unable to relay that information to the FBI.

But if Able Danger did in fact identify Atta, the Gorelick memo and the subsequent 1995 Clinton administration guidelines based on it did not prevent the group from sharing that information with intelligence agencies or law enforcement officials. As former Attorney General John Ashcroft noted in his testimony before the 9-11 Commission, the Gorelick memo provided the “basic architecture” for the 1995 guidelines established by then-Attorney General Janet Reno that formalized rules for intelligence sharing that were already in place. But, as the 1995 guidelines clearly state, the Gorelick memo and the guidelines applied only to intelligence sharing “between the FBI and the Criminal Division” within the Justice Department, not a military unit established by the Defense Department:

SUBJECT: Procedures for Contacts Between the FBI [intelligence/counterintelligence functions] and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations

The procedures contained herein, unless otherwise specified by the Attorney General, apply to foreign intelligence (FI) and foreign counterintelligence (FCI) investigations conducted by the FBI, including investigations related to espionage and foreign and international terrorism. The purpose of these procedures is to ensure that FI and FCI investigations are conducted lawfully, and that the Department's criminal and intelligence/counterintelligence functions are properly coordinated.

9-11 Commission executive director Philip Zelikow also clearly noted during the commission's hearings that the “wall” applied only to the Justice Department: “Over time, the wall requirement came to be interpreted by the Justice Department, and particularly the Foreign Intelligence Surveillance Court, as imposing an increasingly stringent barrier to communications between FBI intelligence agents and criminal prosecutors.”

As is evident from the language of the Gorelick memo itself, it didn't apply to Able Danger. But in response to growing misinformation on the topic in The Washington Times, former Republican senator Slade Gorton, a 9-11 Commission member, specifically addressed and debunked the theory that Gorelick's memo prevented intelligence sharing about Atta in an August 18 letter to the editor in the Times:

The one witness who did name Atta came to our staff shortly before the commission's report went to the printer. He said he thought he had seen something showing Atta in Brooklyn early in 2000. We knew, in fact, that Atta first arrived in the United States in June 2000 with a visa. For this and other reasons, the witness simply was not credible on this subject.

Additionally, the assertion that the commission failed to report on this program to protect Ms. Gorelick is ridiculous. She had nothing to do with any “wall” between law enforcement and our intelligence agencies. The 1995 Department of Justice guidelines at issue were internal to the Justice Department and were not even sent to any other agency. The guidelines had no effect on the Department of Defense and certainly did not prohibit it from communicating with the FBI, the CIA or anyone else.

Some online commentators also observed that Gorelick's memo could not have blocked intelligence sharing by Able Danger. For example,'s Mickey Kaus noted on August 16 that “the 'wall' codified in Gorelick's famous 1995 memo didn't apply to the Pentagon, only to the FBI.” Even John Hinderaker of the conservative weblog Power Line similarly documented on August 17:

Gorelick's memo is limited in scope; it limits the prosecutors' ability to get information from the FBI's counterintelligence division. It would not have covered the situation at issue in Able Danger, that is, information gathered by military intelligence.

Hinderaker notwithstanding, numerous other conservatives led by two New York Post columnists and the newspaper's editorial board have falsely blamed the Gorelick memo for preventing Able Danger from sharing purported information about Atta. For example:

• New York Post editorial: [I]t's becoming clear that the commission's failure to delve into Able Danger has less to do with the unit's credibility than it does with protecting commission member Jamie Gorelick. Gorelick, then a deputy attorney general under Clinton, put into place the “wall of separation” that precluded sharing intelligence on terrorists with law-enforcement agencies. [“9/11 Omissions, Cont'd,” 8/18/05]

• New York Post editorial: As a deputy attorney general in the Clinton administration, Gorelick wrote the infamous order creating a “wall of separation” that precluded intelligence on terrorists from being shared with law-enforcement agencies - the very “wall” that kept Able Danger from passing along the information it had uncovered on Mohammed Atta. [“The 9/11 Omission Commission,” 8/15/05]

• New York Post Washington bureau chief Deborah Orin: Questions about the “wall” recently arose in regard to possible warnings from Able Danger, a pre-9/11 military-intelligence program. [Column, 8/17/05]

• New York Post columnist John Podhoretz: With nothing more to go on than Shaffer's name and his statement, I think it's appropriate to remain skeptical. Since we have heard that the list Shaffer tried to forward to the FBI contained 60 names, it is legitimate to question whether his memory and the memory perhaps of other Able Danger folks has been enhanced by knowledge learned later on -- whether the otherwise obscure name of “Mohammed Atta” might have become part of their recollections after the fact because it became so famous.

Which is to say, Shaffer isn't lying, and he isn't a scoundrel. He's someone who ran afoul of the hyperlegal mindset that kept the intelligence “wall” growing ever higher until it became a hiding place for Al Qaeda.

And that, once again, brings us back to ... Jamie Gorelick. 9/11 Commissioner. And the architect of the growing “wall” -- the same “wall” that the 9/11 Commission all but ignored, surely in deference to its walking-conflict-of-interest commissioner Gorelick." [National Review Online post, 8/16/05]

• Fox News host Bill O'Reilly: [I]t is now clear that Army intelligence had identified Mohammed Atta as a dangerous terrorist more than a year before Atta led the 9/11 attack. An Army group called Able Danger got the information, but did not pass it along to the FBI and tell the bureau that Atta was actually inside the USA.

Why? Because of a policy instituted by Attorney General Janet Reno and her deputy Jamie Gorelick. The women erroneously believed that potential criminal activity could not be pinpointed by any U.S. military intelligence operation. That's insane.

Now, longtime Factor viewers will remember that I called Janet Reno the worst attorney general in history because the woman simply refused to aggressively pursue wrongdoing and was a political player, not a law enforcement officer in my opinion.

As for Miss Gorelick, who also served on the 9/11 Commission, she obviously made an enormous mistake. If she had done the right thing, 9/11 could have been prevented. [Fox News' The O'Reilly Factor, 8/17/05]

• Nationally syndicated radio host Rush Limbaugh: [T]his Pentagon source is a lawyer. Well he's not, he's a Defense Department intelligence official. And he's saying that it was the lawyers in the Pentagon who, well, of course that makes sense. That makes sense to me because it was the lawyers and essentially the Justice Department who created all this, these walls that prevented the exchange of information. And there's no denying the wall existed. And there's no denying that this Able Danger unit knew of Atta in the country. And there's no denying they couldn't tell anybody. [The Rush Limbaugh Show, 8/16/05]

• Pittsburgh Post-Gazette national security writer Jack Kelly: Able Danger was a military intelligence unit set up by Special Operations Command in 1999. A year before the 9/11 attacks, Able Danger identified hijack leader Mohamed Atta and the other members of his cell. But Clinton administration officials stopped them -- three times -- from sharing this information with the FBI.

The problem was the order Clinton Deputy Attorney General Jamie Gorelick made forbidding intelligence operatives from sharing information with criminal investigators (Gorelick later served as a 9/11 commission member). [Column, 8/14/05; reprinted in The Washington Times, 8/15/05]

The Gorelick memo's procedures and the subsequent 1995 guidelines were not intended to prevent intelligence sharing -- the memo specifically noted that “the counterintelligence investigation may result in the incidental collection of information relevant to possible future criminal prosecutions.” Rather, as the memo noted, it was intended as “a set of instructions” for intelligence sharing that would encourage more cooperation by alleviating concerns about improper coordination between law enforcement officials, who faced greater limits on their investigative abilities, and intelligence agencies, which worked under less restrictive intelligence gathering procedures. As Zelikow noted in the 9-11 Commission hearings:

ZELIKOW: New procedures issued by Attorney General Reno in 1995 required the FBI to notify prosecutors when facts and circumstances are developed in a foreign intelligence or counterintelligence investigation that reasonably indicate a significant federal crime has been, is being or may be committed. The procedures, however, prohibited the prosecutors from, quote, “directing or controlling,” close quote, the intelligence investigation.

As Media Matters has noted, even Ashcroft acknowledged that it was actually a “culture” that developed from the memo, not the memo itself, that severely restrained intelligence sharing.