Attorney General John Ashcroft’s testimony to the 9/11 Commission was obviously overshadowed by Bush’s press conference last night. That’s a shame. Ashcroft’s disingenuous buck-passing and revisionist history-telling warrants plenty of attention of its own.
As head of the Justice Department, Ashcroft has plenty of explaining to do. After all, Ashcroft was cutting funding for counterterrorism in his budget before 9/11 and cut the FBI’s counterterrorism funding immediately after 9/11. The former FBI director has even said that Ashcroft rejected a plea for an extra $58 million to combat al Qaeda in the summer of 2001.
Ashcroft artfully dodged all of his previous positions and pre-9/11 decisions — employing a “deny everything” tack — and instead placed all of the blame on the Clinton administration.
“We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies,” Ashcroft said.
Let’s see, “nearly a decade.” What would that be, about eight years before 9/11? I wonder who he could have been talking about?
Ashcroft also identified the source of the government’s inability to see our enemies — the “wall.” Unfortunately, he didn’t explain it very well.
The wall that Ashcroft kept referring to, and apparently blamed Clinton for, was, as the New York Times explained, a “legal barrier in the government preventing intelligence investigators from sharing information with criminal investigators.”
The wall, which has since been demolished by a special appeals court ruling, was part of a body of law that was little known to the public. It involved secret testimony and decisions by a special federal court that ruled on the requests of government investigators to install wiretaps or other listening devices on people suspected of being involved in espionage. The 1978 law that created the court, known as the Foreign Intelligence Surveillance Act, set a lower threshold for counterintelligence agents to obtain permission for secret surveillance of espionage suspects than was required for investigators in criminal cases.
To prevent criminal investigators from using the intelligence act to seek warrants, officials and courts gradually created a rule keeping the two spheres largely separate. It was known in the government as the wall.
As for whether Clinton is to blame for said wall, you might notice that Bill was still in Arkansas in 1978.
Ashcroft noted, however, that when an appeals court struck down the wall, the court ruled that it was largely a mistake all along — that the wall never really existed, it was based on a misreading of the law.
Ashcroft insisted that this mistake started in 1995, under you know who.
“In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required,” Mr. Ashcroft said, adding that the wall specifically impeded investigations into two of the terrorists who hijacked aircraft on Sept. 11.
Ashcroft was mistaken, however, on at least two levels.
One, the misinterpretation didn’t start under Clinton, it started under Reagan.
The court also said that it was “quite puzzling that the Justice Department, at some point during the 1980’s, began to read the statute as” requiring a separation of the two fields of counterintelligence and criminal search warrants.
Two, as the Center for American Progress noted, Ashcroft, far from condemning this legal barrier, used to think it was a great idea.
* In testimony before the Senate on counterterrorism policy on May 9, 2001, the attorney general praised the collaborative efforts of intelligence and law enforcement officers in preventing attacks and apprehending terrorists. He said, “To enable effective use of the intelligence collected on terrorists under FISA (the Foreign Intelligence Surveillance Act) and the Executive Order (#12333), the attorney general also approves the passage of such intelligence to authorities in a position to prevent the planning, movement, or other actions of terrorists.”
* As the New York Times reports, nothing should have prevented the FBI from pursuing two hot terrorism leads from its field offices in the summer of 2001: a request to investigate the possible penetration of U.S. flights schools by al Qaeda from the Phoenix office, and the arrest of a suspected terrorist at a U.S. flight school near Minneapolis.
* Nothing should have prevented the CIA from informing the State Department, the INS, or the FBI that two of the hijackers were known al Qaeda operatives, had attended a meeting of al Qaeda planners in Malaysia in January 2000, then traveled to and from the United States.
So, what Ashcroft right about anything? Doesn’t look like it.