An exchange between an FBI agent and the agency's headquarters, made public last week, shows that even before Sept. 11, the barrier between intelligence and law enforcement investigations-a barrier designed to protect civil liberties-got in the way of efforts to protect Americans from terrorists.
The conflict between civil liberties and investigator powers has sparked debates about lifting limits on federal law enforcement agents and intelligence officers and about eliminating gaps between agencies and functions that terrorists exploit to avoid capture.
The conflict also raises questions about how to best reorganize Cold War-focused federal functions to combat terrorism.
On Aug. 29, 2001, officials at FBI headquarters told an FBI agent in New York that he could not track down a suspected al Qaeda associate who, less than two weeks later, was one of the Sept. 11 hijackers.
In an email to the agent, made public at a congressional hearing Friday, headquarters personnel said the wall between U.S. intelligence and law enforcement functions prevented the FBI agent from using information on the al Qaeda suspect, Khalid al-Mihdhar, which was drawn from intelligence sources.
"This case, in its entirety, is based on [intelligence]," the FBI headquarters Aug. 29 e-mail said, citing a recommendation by the bureau's National Security Law Unit. "If at such time as information is developed indicating the existence of a substantial federal crime, that information will be passed over the wall according to the proper procedures and turned over for follow-up criminal investigation."
The agent, who was involved in the investigation of the October 2000 bombing of the USS Cole, suspected that al-Mihdhar had previously met with a Cole suspect and had now entered the United States.
In an Aug. 29 e-mail response, the agent told FBI headquarters personnel: "Someday someone will die-and wall or not-the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.' Let's hope the [FBI's] National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, [Osama bin Laden], is getting the most 'protection.'"
FBI headquarters personnel responded in another e-mail: "These are the rules. NSLU does not make them up."
Khalid al-Mihdhar was on American Airlines Flight 77, which crashed into the Pentagon.
The congressional hearing Friday, a joint meeting of the Senate and House intelligence committees, was the third in an ongoing series of public hearings into intelligence failures leading up to Sept. 11. The New York agent who protested the FBI's interpretation of the law enforcement-intelligence wall testified at the hearing behind a screen that protected his identity, as did a CIA officer involved in al Qaeda investigations.
Also testifying was Eleanor Hill, the former Defense Department inspector general who is heading up the two committees' investigation of pre-Sept. 11 events. Hill said walls between law enforcement and intelligence also exist to protect intelligence sources and methods from being revealed in court.
"The existence of two categories of surveillance rules and the perceived need to keep them discrete raises practical problems in managing an investigation that straddles the divide as counterintelligence and counterterrorism investigations often do," Hill said.
The New York FBI agent said some managers and employees in the law enforcement and intelligence agencies use "the wall" to protect turf and advance their careers. He also said that either FBI headquarters personnel or the CIA should have passed information about al-Mihdhar to the New York agents when they requested information.
"I hope these proceedings are the time to break down the barriers and change the system which makes it difficult for all of us, whether we work at FBI HQ or in the field, at the FBI or elsewhere, to have and be able to act on the information that we need to do our jobs," the New York agent said.
Gregory Treverton, a former intelligence official in the Clinton administration, argued in the September issue of Government Executive that the FBI and CIA haven't cooperated well in the past because Americans didn't want them to. For example, Congress placed limitations on cooperation in response to abuses revealed during Senate intelligence committee hearings in the mid-1970s headed by then-Sen. Frank Church, D-Idaho.
But the Cold War lines between intelligence and law enforcement, domestic and foreign and even public and private don't apply as easily to counterterrorism efforts, Treverton argued.
At the hearing Friday, several witnesses and members of Congress said the law enforcement-intelligence wall may have grown to be more of a barrier than lawmakers had intended.
"The restrictions of intelligence agencies and foreign services in the sharing of information within our agency limited the free flow of information," said Michael Rolince, the FBI's special agent in charge of the Washington field office. "In terrorism cases, this became so complex and convoluted that in some FBI field offices agents perceived 'walls' where none actually existed."
Several senators said investigations by the intelligence committees were necessary to identify barriers and make organizational changes so that officials could be held responsible for their actions. "If we're really going to break down walls, real or imaginary, we've got to have accountability," said Sen. Carl Levin, D-Mich.
Because of the walls, however, the New York FBI agent didn't find out where al-Mihdhar was until the afternoon of Sept. 11, when FBI officials on a conference call shared the names of the hijackers.