Due to apparent problems with the use of intelligence information in criminal proceedings, a set of procedures that later becomes known as the “wall” begins to take shape. The FBI, which performs both criminal and counterintelligence functions, normally obtains two types of warrants: criminal warrants and warrants under the recently passed Foreign Intelligence Surveillance Act (FISA). FISA warrants are thought to be easier to obtain, as the FBI only has to show that there is probable cause to believe the subject is a foreign power or an agent of one. Sometimes a case begins as an intelligence investigation, but results in a criminal prosecution. In court the defense can then argue that the government has abused FISA and obtained evidence by improperly using the lower standard, so any evidence obtained under FISA should not be allowed in court. Although the government can use information it happens to obtain under a FISA warrant for a criminal prosecution, if the purpose of obtaining information under a FISA warrant is for a criminal prosecution, this is in violation of the Fourth Amendment’s prohibition against warrantless searches. To combat this apparent problem, the special FISA Court decides that for a warrant under FISA to be granted, collecting intelligence information must be the primary purpose, although such information can be used in a criminal investigation provided the criminal investigation does not become the primary purpose of the surveillance or search. As a result of these procedures, when the FBI is conducting an intelligence investigation and uncovers evidence of criminal activity, it no longer consults local United States Attorneys’ Offices, but prosecutors within the Justice Department’s Criminal Division. The prosecutors then decide when the local attorney’s office should become involved. [US Department of Justice, 11/2004, pp. 21-24 
] The wall will be extended in the 1990s (see July 19, 1995) and will be much criticized before and after 9/11 (see July 1999 and April 13, 2004).
March 4, 1995: Deputy Attorney General Extends ‘Wall’ for WTC Bombing Cases
Deputy Attorney General Jamie Gorelick issues a memo establishing procedures to regulate prosecutors’ and criminal investigators’ access to intelligence information generated in the wake of the 1993 WTC bombing cases (see February 26, 1993). These new procedures effectively extend the so-called “wall” that arose in the early 1980s. During the criminal investigation of the bombing, the FBI came across counterintelligence information related to Islamic extremists operating inside the United States, so it began an intelligence investigation. The new procedures are established because the Justice Department does not want to be perceived as using warrants issued under the Foreign Intelligence Surveillance Act (FISA), which are thought to be easier to obtain than criminal warrants, to further the criminal investigations, because this might possibly lead to problems in court (see Early 1980s). In the memo, Gorelick, who will later be a 9/11 Commissioner (see December 16, 2002), acknowledges that the procedures go “beyond what is legally required.” [US Department of Justice, 11/2004, pp. 28 ; Lance, 2006, pp. 549-550] A similar set of controversial procedures is issued later covering all intelligence investigations (see July 19, 1995). However, Andrew McCarthy, one of the WTC prosecutors cut off from the information, will later say this policy is “excessively prohibitive” and “virtually guaranteed intelligence failure” in the fight against terrorism. McCarthy will also note that there already are procedures in place to prevent the misuse of FISA-derived evidence. [National Review, 4/19/2004]
July 19, 1995: ’Wall’ Memo Cuts Criminal Investigators Off from Intelligence Information
The Justice Department issues the “wall” memo, a later heavily criticized memo that establishes procedures to regulate the flow of information from FBI intelligence investigations to criminal investigators and prosecutors. Such procedures already exist, but this “wall” is now formalized and extended. The memo is signed by Attorney General Janet Reno, but is based on a similar one recently issued by Deputy Attorney General Jamie Gorelick governing the 1993 WTC bombing cases (see March 4, 1995). The wall exists to prevent defendants from successfully arguing in court that information gathered under a warrant issued under the Foreign Intelligence Surveillance Act (FISA) should not be used in a criminal prosecution, as the standard for obtaining a FISA warrant is considered to be lower than that for obtaining a criminal search warrant (see Early 1980s). Such arguments are usually unsuccessful, according to the Justice Department’s Office of Legal Counsel, which believes that courts are showing “great deference” to the government when such challenges are made. The procedures, which now apply to all intelligence investigations regardless of whether or not a FISA warrant has been issued, state that the FBI must consult the Justice Department’s Criminal Division, not local United States Attorneys’ offices, about intelligence investigations when it is considering starting a parallel criminal investigation, and that it must do so when there is reasonable indication of a significant federal crime. This means that FBI headquarters has veto power over whether a field office can contact a local prosecutor about an intelligence investigation. However, Criminal Division prosecutors should only be consulted and cannot control an investigation. [Office of the Attorney General, 7/19/1995; US Department of Justice, 11/2004, pp. 25-30 ] These procedures will be implemented in such a way that even greater restrictions are placed on information sharing (see (Late 1995-1997)), although a partial exception will be created for the Southern District of New York, which handles a lot of terrorism work (see August 29, 1997). The procedures will also be much criticized for the way they are implemented in the FBI (see July 1999). The increased barriers to information sharing often mean that the FBI monitors terrorists as before, but the information does not get passed to criminal investigators, so the cells carry on operating in the US and the FBI carries on monitoring them. For example, the FBI monitors a Florida-based cell that funds and recruits for jihad throughout the world for nearly a decade before it is rolled up (see (October 1993-November 2001)). Some money raised by terrorism financiers in the US goes to Bosnia, where the US has a policy of enabling covert support for the Muslim side in the civil war (see April 27, 1994). Prosecutor Andrew McCarthy will later call the wall a “rudimentary blunder,” and say that it “was not only a deliberate and unnecessary impediment to information sharing; it bred a culture of intelligence dysfunction.” [National Review, 4/13/2004] John Ashcroft, Attorney General in the Bush Administration (see April 13, 2004), will say that “Government buttressed this ‘wall’,” and will call it the “single greatest structural cause for September 11.” [9/11 Commission, 4/13/2004]
Late 1995-1997: Additional Restrictions Placed on Sharing of Intelligence inside FBI
Following the issuance of the “wall” memo, which established procedures to regulate the flow of information from intelligence investigations by the FBI to local criminal prosecutors (see July 19, 1995), an additional information sharing “wall” is erected inside the FBI. After 9/11, the Justice Department’s Office of Inspector General will find, “Although it is unclear exactly when this ‘wall’ within the FBI began, [it was] sometime between 1995 and 1997.” This additional wall segregates FBI intelligence investigations from FBI criminal investigations and restricts the flow of information from agents on intelligence investigations to agents on criminal investigations, because of problems that may occur if the flow is not regulated (see Early 1980s). If an intelligence agent wants to “pass information over the wall” to a criminal agent, he should get approval from one of his superiors, either locally or at FBI headquarters. A description of wall procedures comes to be commonplace in all warrant requests filed under the Foreign Intelligence Surveillance Act (FISA). [US Department of Justice, 11/2004, pp. 30-32 ] However, FBI agents often ignore these restrictions and over a hundred cases where information is shared without permission between intelligence and criminal FBI agents will later be uncovered (see Summer-October 2000 and March 2001).
August 29, 1997: Attorney’s Office Wins Partial Exception from ‘Wall’ Procedures
Mary Jo White, US Attorney for the Southern District of New York, which handles a lot of terrorism investigations, complains about the “wall” procedures regulating the passage of intelligence information to US attorneys and criminal agents at the FBI. The rules were recently formalized (see July 19, 1995), but she says that the 1995 procedures are building “unnecessary and counterproductive walls that inhibit rather than promote our ultimate objectives [and that] we must face the reality that the way we are proceeding now is inherently and in actuality very dangerous.” Following her complaints, an exception is created for the Southern District of New York Attorneys’ Office. The office works with the FBI’s I-49 squad, which handles international terrorism matters (see January 1996 and Late 1998-Early 2002). The FBI can now notify this office of evidence of a crime directly, without consulting the Justice Department. Once this is done, the office would then contact two units in the Justice Department, the Criminal Division and the Office of Intelligence Policy and Review. [US Department of Justice, 11/2004, pp. 29 ]
July 1999: Campaign Finance Report Criticizes ‘Wall’ Procedures
The Justice Department’s Office of Inspector General issues a report into the FBI’s use of intelligence information in an investigation into campaign finance, and this report is critical of the “wall”. The “wall” regulates the passage of some information from FBI intelligence investigations to criminal FBI agents and prosecutors, to ensure such information can legitimately be used in court (see Early 1980s). After the procedures were formalized (see July 19, 1995), the FBI drastically reduced its consultations with Justice Department attorneys about intelligence investigations, because any consultation with such attorneys could result in an intelligence warrant not being granted, as it may lead authorities reviewing a warrant application to conclude that the warrant was really being sought for a criminal investigation, not an intelligence investigation. The result is that the FBI does not ask for input from prosecutors until it is ready to close an intelligence investigation and “go criminal.” The campaign finance report finds that FBI failed to disclose some information from intelligence investigations not only to Congress and the Attorney General, but also to its own Director, Louis Freeh. The “wall” procedures are found to be vague and ineffective, as well as misunderstood and often misapplied. [US Department of Justice, 11/2004, pp. 32-33 ] The “wall” procedures are also criticized by other reports (see May 2000).
Late 1999-Early 2000: ’Wall’ Procedures Altered for Expected Millennium Attacks
Because of concerns that al-Qaeda will launch attacks during the millennium celebrations (see Early December 1999, December 15-31, 1999 and December 14, 1999), the Justice Department and the Foreign Intelligence Surveillance Court alter the set of procedures known as the “wall,” which governs the sharing of intelligence inside the FBI and between the FBI and prosecutors. As a result of these changes, it becomes easier for the FBI to obtain wiretap warrants from the court, so the court itself becomes the wall with the authority to determine what information can be released to prosecutors. [Foreign Intelligence Surveillance Court, 5/17/2002; US Department of Justice, 11/2004, pp. 32, 149, 194 ] Nonetheless, US attorney Patrick Fitzgerald, working with the I-49 squad on al-Qaeda cases at the time, will later complain about the lack of information prosecutors receive around the millennium, “Criminal prosecutors received information only in part and with lag time so as not to breach the ‘wall’. The persons who determined what could be shared with the prosecutors were on the other side of the ‘wall,’ making their best guess as to what would be helpful. This was no way to defend our country from imminent attack.” [US Congress, 10/21/2003] Fellow attorney Andrew McCarthy will say this change was not that unusual, and that the “wall” “could be raised or lowered based on Justice’s perception of the threat environment at any given time.” [National Review, 4/13/2004]
March 2000: FBI Agent Apparently Destroys Al-Qaeda E-Mail Intercepts
The FBI obtains a wiretap warrant to seize al-Qaeda-related e-mails under the Foreign Intelligence Surveillance Act (FISA), but experimental software malfunctions and an angry FBI agent is said to destroy all the e-mails collected. The Carnivore software, which was installed in Denver, collects e-mails not only from the target, but also from other people. The FBI technician is reportedly so upset when he discovers e-mails from people whose communications the FBI has no authorization to collect that he apparently deletes everything the FBI has gathered, including the e-mails from the target. However, the article that first reports this deletion also says the opposite: “A Justice Department official, speaking on condition of anonymity, said Tuesday night that the e-mails were not destroyed.” In either case, the Office of Intelligence Policy and Review (OIPR) at FBI headquarters, which deals with FISA warrants, is then informed and expresses its surprise it was not told the software was experimental before the warrant was issued. An FBI official will comment: “To state that [an OIPR official] is unhappy with [the FBI’s International Terrorism Operations Section] and the [Usama bin Laden] Unit would be an understatement of incredible proportions.” As the target’s e-mails have been destroyed in the FBI system, the FBI then wants a physical search warrant under FISA to go and collect the e-mails from the carrier. However, the OIPR insists on an explanation for the error before this can happen, and also demands an explanation for the problem, so the special FISA court can be notified. [Federal Bureau of Investigation, 4/5/2000; Associated Press, 5/28/2002] It is not known who was being monitored, though there are potential al-Qaeda Denver connections: in 1994, a bin Laden front began routing communications through Denver (see 1994), and a passport was stolen there in 1995 from a man who was later confused with one of the 9/11 hijackers (see 1995).
May 2000: ’Wall’ Procedures Criticized by Another Report
A Justice Department report into the handling of the Wen Ho Lee investigation attacks the “wall” procedures. The “wall” regulates the passage of some information from FBI intelligence investigations to criminal FBI agents and prosecutors, to ensure such information can legitimately be used in court (see Early 1980s). After the procedures were formalized (see July 19, 1995), they were criticized in a 1999 Justice Department report (see July 1999). The Wen Ho Lee report finds that additional requirements imposed by the Office of Intelligence Policy and Review (OIPR) at the Justice Department (see (Late 1995-1997)) that hamper consultations between agents on intelligence investigations and attorneys at the Justice Department’s Criminal Division are actually in contravention of the procedures specified in the original 1995 memo. The report states, “It is clear from interviews… that, in any investigation where [the Foreign Intelligence Surveillance Act (FISA)] is employed or even remotely hoped for (and FISA coverage is always hoped for), the Criminal Division is considered radioactive by both the FBI and the OIPR.” It also says that the FBI’s deputy director has told agents that contacting prosecutors without the OIPR’s permission is a “career stopper.” Another report, published in July 2001, finds that some improvements have been made in this area, but recommends further steps. [US Department of Justice, 11/2004, pp. 33-36 ]
Summer-October 2000: Al-Qaeda Counterterrorism Squad Found to be Illegally Sharing Information with Prosecutors
The Justice Department’s Office of Intelligence Policy and Review (OIPR), which helps obtain warrants under the Foreign Intelligence Surveillance Act (FISA), discovers errors in several al-Qaeda related FISA applications under a counterterrorist program called “Catcher’s Mitt.” The OIPR verbally notifies the FISA Court of the errors, which are mostly in affidavits submitted by supervisory special agents at field offices. Then, in September and October 2000, the OIPR submits two pleadings to the court regarding approximately 75-100 applications with errors starting in July 1997. Many of the errors concern misleading statements about the nature of collaboration between criminal and intelligence agents. Most of these applications stated that the FBI New York field office, where the I-49 squad focusing on al-Qaeda was based (see January 1996 and Late 1998-Early 2002), had separate teams of agents handling criminal and intelligence investigations. But in actual fact the I-49 agents intermingled with criminal agents working on intelligence cases and intelligence agents working on criminal cases. Therefore, contrary to what the FISA Court has been told, agents working on a criminal investigation have had unrestricted access to information from a parallel intelligence investigation—a violation of the so-called “wall,” the set of bureaucratic procedures designed to separate criminal and intelligence investigations (see July 19, 1995). [Newsweek, 5/27/2002; Newsweek, 3/29/2004; US Department of Justice, 11/2004, pp. 36-37 ] The information about al-Qaeda in these cases is also shared with assistant US attorneys without FISA permission being sought or granted first. Other errors include the FBI director wrongly asserting that the target of a FISA application was not under criminal investigation, omissions of material facts about a prior relationship between the FBI and a target, and an interview of a target by an assistant US attorney. [Foreign Intelligence Surveillance Court, 5/17/2002] This leads the FISA Court to impose new requirements regarding the “wall” (see October 2000). Similar problems will be found in FISA applications for surveillance of Hamas operatives (see March 2001).
