The Corner

Re: Update On Uh Oh

I do not believe the public already knew about the December 1995 memo referred to in this morning’s NYPost article. What Attorney General Ashcroft declassified after his commission testimony back in April 2004 was the paper trail that led up to the wall procedures being instituted by the Clinton Justice Department in July 1995. These included memos from Mary Jo White that expressed similar objections that were less dire in tone, including, for example, this memo to AG Reno:

You have asked whether I am generally comfortable with the instructions. It is hard to be totally comfortable with instructions to the FBI prohibiting contacts with the United States Attorney’s Offices when such prohibitions are not legally required. . . . Our experience has been that the FBI labels of an investigation as intelligence or law enforcement can be quite arbitrary depending on the personnel involved and that the most effective way to combat terrorism is with as few labels and walls as possible so that wherever permissible, the right and left hands are communicating.

The December 1995 memo described in the NYPost this morning is different. It is, essentially, an evaluation of the wall procedures after six months of life under them. As Deborah Orin notes, “White wrote the memo after her earlier pleas against the ‘wall’ [i.e., the ones the public had already heard about before today] were rejected. She enlisted the help of her ‘Bomb II Team’ — prosecutors working on terror bombings like the 1993 Twin Towers attack.”

For what it’s worth, the so-called “Bomb II Team” is the one I led (the Blind Sheik case was the second trial to arise out of the 1993 WTC bombing; hence, we were called “Bomb II” and the team on the first trial (of the four bombers) was “Bomb I.”

As Orin elaborates, the Bomb II team “gave six pages of detailed reasons why it was a mistake to create too much of a wall between intelligence and prosecutions. White forwarded that analysis to Gorelick and added her own notes on the Clinton-era decision ‘to keep prosecutors in the dark about intelligence investigations.’” These added notes are the subject of today’s story, and I do not think their substance has been part of the public record until today.

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