From this morning’s Commission Staff Statement No. 9 on “Law Enforcement, Counterterrorism, and Intelligence Collection in the United States Prior to 9/11″:
[For the FBI, a] core challenge was a legal issue that became a management challenge as well. Certain provisions of federal law had been interpreted to limit communication between agents conducting intelligence investigations and the criminal prosecution units of the Department of Justice. This was done so that the broad powers for gathering intelligence would not be seized upon by prosecutors trying to make a criminal case. The separation of intelligence from criminal investigations became known as the “wall.” 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 foreign counterintelligence investigation that “reasonably indicate a significant federal crime has been, is being, or may be committed.” The procedures, however, prohibited the prosecutors from “directing or controlling” the intelligence investigation.
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. Despite additional guidance on information sharing issued by Attorney General Reno in February 2000 and by Deputy Attorney General Larry Thompson in August 2001, the wall remained a source of considerable frustration and concern within the Justice Department. Justice Department prosecutors and FBI criminal agents were responsible for large criminal cases, like the Embassy bombings. The intelligence side of the FBI, though, had the legal tools that were essential for domestic intelligence work, such as FISA surveillance. In this environment, domestic counterterrorism efforts were impaired.
* * *
The “wall” between criminal and intelligence investigations apparently caused agents to be less aggressive than they might otherwise have been in pursuing Foreign Intelligence Surveillance Act (FISA) surveillance powers in counterterrorism investigations. Moreover, the FISA approval process involved multiple levels of review, which also discouraged agents from using such surveillance. Many agents also told us that the process for getting FISA packages approved at FBI Headquarters and the Department of Justice was incredibly lengthy and inefficient. Several FBI agents added that, prior to 9/11, FISA-derived intelligence information was not fully exploited but was collected primarily to justify continuing the surveillance.