Politics & Policy

The Patriot Act Without Tears

Understanding a mythologized law.

EDITOR’S NOTE: This piece is the cover story in the June 14, 2004, issue of National Review.

It was mid-August 2001, the last desperate days before the 9/11 terrorist attacks. Desperate, that is, for an alert agent of the FBI’s Foreign Counterintelligence Division (FCI); much of the rest of America, and certainly much of the rest of its government, blithely carried on, content to assume, despite the number and increasing ferocity of terrorist attacks dating back nearly nine years, that national security was little more than an everyday criminal-justice issue.

Since 1995, a “wall” had been erected, presumptively barring communications between FCI agents and their counterparts in law enforcement–the FBI’s criminal agents and the assistant U.S. attorneys who collectively, after a string of successful prosecutions through the 1990s, had become the government’s best resource for information about the threat of militant Islam. This wall was not required by law; it was imposed as policy. Justice Department lawyers, elevating litigation risk over national security, designed it to forestall accusations that the federal government had used its intelligence-eavesdropping authority to build criminal cases.

This FCI agent collided, head-on, with the wall; and strewn in the wreckage was the last, best hope of stopping 9/11. Putting disconnected clues together, the agent had deduced that two Qaeda operatives, Khalid al-Midhar and Nawaf al-Hazmi, had probably gotten into the U.S. Alarmed, he pleaded with the FBI’s criminal division to help him hunt down the terrorists–but they refused: For agents to fuse their information and efforts would be a transgression against the wall. The prescient agent rued that, one day soon, people would die in the face of this paralyzing roadblock. Al-Midhar and al-Hazmi remained undetected until they plunged Flight 77 into the Pentagon on 9/11.

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