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).
1984: US Agencies Keep US Senator in Dark about BCCI’s Criminal Activities
In 1984, Senator Paula Hawkins (R-FL) meets with Pakistani President Muhammad Zia ul-Haq in Pakistan. During the meeting, she mentions that she is concerned about a Pakistani bank that is laundering money out of the Cayman Islands. Her staff later clarifies to Zia that she was referring to BCCI (which technically is not a Pakistani bank, but almost all of its top officials are Pakistani). As a result, Abdur Sakhia, the top BCCI official in the US, meets with Hawkins in the US a short time later and assures her that BCCI is not laundering money out of the Cayman Islands. Then officials from the Justice Department, State Department, and the Drug Enforcement Administration (DEA) meet with Hawkins’s staffers and assure them that BCCI is not the subject of any investigation. Weeks later, the State Department formally notifies the Pakistani government that BCCI is not under investigation. As a result, Hawkins drops her brief interest in BCCI. However, by this time the State Department, Justice Department, and DEA have all been briefed by the CIA about BCCI’s many criminal activities. Apparently, this information is deliberately kept from the senator. [Beaty and Gwynne, 1993, pp. 324-325]
1984-1986: CIA Reveals BCCI’s Drug and Terrorist Links to Other US Agencies, but No Action Taken
The CIA sends a report on the Bank of Credit and Commerce International (BCCI) and its drug-related activities to other US government departments. It follows up with a report about BCCI’s links to notorious terrorists such as Abu Nidal, the most wanted man in the world at the time. Similar reports follow in 1986. However, the Justice Department, Treasury Department, and other departments keep silent about what they know and no action is taken against the bank. [US Congress, Senate, Committee on Foreign Relations, 12/1992; Cooley, 2002, pp. 93]
February 1988-December 1992: Justice Department Blocks Investigations into BCCI
Sen. John Kerry (D-MA) stumbles across the criminality of the Bank of Credit and Commerce International (BCCI) while investigating international drug trafficking as part of a congressional oversight committee. He soon starts a vigorous congressional investigation of BCCI, and New York district attorney Robert Morgenthau launches a vigorous investigation as well. [New York Times, 7/29/1991] However, Kerry’s and Morgenthau’s investigations are consistently stifled. Kerry will later say that, “with the key exception of the Federal Reserve, there was almost [no]… information or cooperation provided by other government agencies.” [US Congress, Senate, Committee on Foreign Relations, 12/1992] Kerry will later conclude that the Justice Department in particular went to great lengths to block his and Morgenthau’s investigations “through a variety of mechanisms, ranging from not making witnesses available, to not returning phone calls, to claiming that every aspect of the case was under investigation in a period when little, if anything was being done.” After the Bank of England shuts down BCCI in July 1991 (see July 5, 1991), making big headlines, Under Assistant Attorney General Robert Mueller takes over Justice Department efforts on BCCI and assigns many new attorneys to the case. But Kerry will ultimately conclude that the indictments the Justice Department brings forth against BCCI after that time were narrower and less detailed than those of Morgenthau’s, and often seemed to be in response to what Morgenthau was doing. [US Congress, 12/1992] Kerry submits his report on BCCI in December 1992, and after that investigations into BCCI peter out. President Bush will appoint Mueller to be director of the FBI shortly before 9/11 (see September 4, 2001).
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]
March 23, 1995: US Gives Up ‘Treasure Trove of Al-Qaeda Related Intelligence’
Osama bin Laden’s brother-in-law Mohammed Jamal Khalifa, who is being detained in the US, files a civil suit to have his possessions returned to him. These possessions, confiscated at the time of his arrest, include an address book and computer files linking him to Islamic militancy (see December 16, 1994-May 1995 and Late December 1994-April 1995). On this day, the Justice Department states that it has no objection to returning his possessions to him. Author Peter Lance will later call these possessions a “treasure trove of al-Qaeda related intelligence” that the US loses access to. While some or all of the material may have been copied, having the originals would increase their value in future trials. [Lance, 2006, pp. 162] Khalifa will be deported from the US with all his possessions in early May 1995 (see April 26-May 3, 1995).
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]
October 21, 1995: Clinton Launches Interagency Effort to Track Bin Laden’s Money; Effort Fizzles
President Clinton signs a classified presidential order “directing the Departments of Justice, State and Treasury, the National Security Council, the CIA, and other intelligence agencies to increase and integrate their efforts against international money laundering by terrorists and criminals.” The New York Times will later call this the first serious effort by the US government to track bin Laden’s businesses. However, according to the Times, “They failed.” William Wechsler, a National Security Council staff member during the Clinton administration, will say that the government agencies given the task suffered from “a lack of institutional knowledge, a lack of expertise… We could have been doing much more earlier. It didn’t happen.” [New York Times, 9/20/2001]
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).
1996: Vulgar Betrayal Investigation Launched
Vulgar Betrayal, the most significant US government investigation into terrorist financing before 9/11, is launched. This investigation grows out of investigations Chicago FBI agent Robert Wright had begun in 1993 (see After January 1993), and Wright appears to be the driving force behind Vulgar Betrayal. He later will say, “I named the case Vulgar Betrayal because of the many gross betrayals many Arab terrorists and their supporters” committed against the US, but the name will later prove to be bitterly ironic for him. Over a dozen FBI agents are assigned it and a grand jury is empanelled to hear evidence. Wright will be removed from the investigation in late 1999 (see August 3, 1999), and it will be completely shut down in early 2000 (see August 2000). [Federal News Service, 6/2/2003; Chicago Tribune, 8/22/2004; LA Weekly, 8/25/2004; Judicial Watch, 12/15/2004] The investigation will first identify suspected terrorism financier Yassin al-Qadi as a target in 1997, but it will run into many obstacles in investigating him and others. Assistant US attorney Mark Flessner, the lead prosecutor for Vulgar Betrayal, will later claim that supervisors at the Justice Department’s headquarters obstructed the investigation because it appeared to trace terrorism financing to important figures in Saudi Arabia, a key US ally. Wright will later state that had the leads into al-Qadi and others been fully investigated, “I believe the FBI could have identified other significant links to Osama bin Laden, links which may have been addressed to prevent future attacks against the United States by bin Laden and his terrorist trainees.” [Federal News Service, 6/2/2003; Chicago Tribune, 8/22/2004]
