Gorelick 'MemoGate': It Just Got Worse

In March of 1995, Louis Freeh, then FBI Director, and Mary Jo White, the New York U.S. attorney investigating the 1993 World Trade Center bombing, received a directive written by Jamie Gorelick, President Clinton’s number two official in the Justice Department. That directive—which has come to be known as the “wall of separation” memo—ordered Freeh and White to “go beyond what is legally required” in following information-sharing procedures between intelligence agencies and agencies charged with criminal investigations of suspected terrorists. At issue, seemingly, was a White House concern to avoid “any risk of creating an unwarranted appearance” that the civil liberties of terrorism suspects were being undermined.

As has come to light in the past few days, the Gorelick Memo seems to be at the heart of the non-passing of information discovered by a counter-terrorism military operation known as “Able Danger” to the FBI that Mohammed Atta and three of the other 9/11 hi-jackers had set up an al-Queda cell in Brooklyn, New York, as early as a year prior to the 9/11 attacks. Furthermore, the information that White House or Department of Defense attorneys denied “Able Danger’s” request to give that information to the FBI was furnished to staff members of the Sept. 11 Commission—of which Jamie Gorelick was a sitting member—as early as October of 2003. But that information was not given to Commission members then and does not appear in the Commission’s final report.

As has been reported in the New York Post today, by Deborah Orin, and quoted in a story on NewsMax.com (go here), Mary Jo White wrote to the Justice Department about the Gorelick directive, complaining, “It is hard to be totally comfortable with the instructions to the FBI prohibiting contact with the United States’ Attorneys Office when such prohibitions are not legally required.” According to Orin in the Post account, White was so frustrated that she sent a second memo excoriating the Gorelick “wall of separation” as “hinder[ing] law enforcement,” saying that its prohibitions “could cost lives.”

The questions now are why did Commission staffers not inform the Sept. 11 Commission members of “Able Danger’s” October 2003 report of prior knowledge of an al-Queda cell in Brooklyn, New York a year before the 9/11 attacks? Why is Mary Jo White’s testimony in the Sept. 11 Commission investigation not included in the Commission’s final report? And, finally, why was the Gorelick directive ever written in the first place?

An article from FrontPageMag.com from May of 2004 may shed some light on the reasons for the Gorelick directive (go here). The story suggests strongly that the Clinton Administration worked strenuously, in 1995, to re-organize the ways in which intelligence agencies like the CIA and FBI were allowed to communicate with each other and with U.S. Attorneys Offices investigating foreign and domestic espionage cases and that the Gorelick Memo itself is an outgrowth of policies erected under Clinton’s “Presidential Decision Directive 24”:

“In April [2004], CNSNews.com staff writer Scott Wheeler reported that a senior U.S. government official and three other sources claimed that the 1995 memo written by Jamie Gorelick, . . . created ‘a roadblock’ to the investigation of illegal Chinese donations to the Democratic National Committee. But the picture is much bigger than that. The Gorelick memo, which blocked intelligence agents from sharing information that could have halted the September 11 hijacking plot, was only the mortar in a much larger maze of bureaucratic walls whose creation Gorelick personally oversaw.”

That maze includes FBI and CIA investigations into the leaking and/or theft of sensitive missile and nuclear information to the Chinese even as illegal donations to the Democratic National Committee were being traced to Bill Clinton’s old Arkansas friend, Johnny Chung. The bureaucratic nightmare created by PDD 24 effectively stalled these investigations until safely after the 1996 Presidential Election, and led to, among others, Wen Ho Lee and the Los Alamos National Laboratory espionage case. As Mary Jo White wrote in her letter of protest regarding the Gorelick directive, PDD 24’s “instructions leave entirely to OIPR [Office of Intelligence and Policy Review] and the (Justice Department) Criminal Division when, if ever, to contact affected U.S. attorneys on investigations including terrorism and espionage.” And whom did Clinton appoint to head up the OIPR? An old friend of Janet Reno’s from Florida, Richard Scruggs. So, as FrontPageMag pointed out, “for the first time in the history of the Justice Department,” a political appointee was “put in charge of the Office of Intelligence and Policy Review (OIPR). OIPR is the Justice Department agency in charge of requesting wiretap and surveillance authority for criminal and intelligence investigations on behalf of investigative agencies from the Foreign Intelligence Surveillance Act (FISA) court.”

It must be noted that the Gorelick directive to Freeh and White explicitly mentions the FISA court and prohibits the sharing of information gathered by its investigative agencies with US Attorneys Offices.

The upshot of PDD 24 was that all investigations into espionage activity—including efforts by the CIA, FBI, and the United States Military counter-intelligence operations (like “Able Danger”)—were to be overseen and approved (or not approved) by political appointees that answered directly to a White House that had every reason prior to the 1996 Presidential Election for keeping those agencies from sharing information with each other or with US Attorneys Offices.

It looks like the non-sharing of the “Able Danger” information by staff members of the Sept. 11 Commission with Commission members themselves is much worse than simply an effort to shield Jamie Gorelick for some responsibility for the intelligence failures that, it is now clear, helped to make the 9/11 attacks possible. What is becoming increasingly obvious is that the Gorelick Memo itself was perhaps part of a much larger effort by the Clinton Administration to shield itself from investigations that would imply its complicity in the passing of sensitive military and nuclear intelligence to the Chinese in return for millions in illegal campaign donations in the run-up to the 1996 election.

PING to excerpt from 911 Commission report:

11.3 CAPABILITIES

Earlier chapters describe in detail the actions decided on by the Clinton and Bush administrations. Each president considered or authorized covert actions, a process that consumed considerable time--especially in the Clinton admin- istration--and achieved little success beyond the collection of intelligence.After the August 1998 missile strikes in Afghanistan, naval vessels remained on station in or near the region, prepared to fire cruise missiles.

General Hugh Shelton developed as many as 13 different strike options, and did not recommend any of them. The most extended debate on counterterrorism in the Bush administration before 9/11 had to do with missions for the unmanned Predator--whether to use it just to locate Bin Ladin or to wait until it was armed with a missile, so that it could find him and also attack him. Looking back, we are struck with the narrow and unimaginative menu of options for action offered to both President Clinton and President Bush.(((YEAH, AS UNIMAGINATIVE AS NOT INCLUDING POTENTIALLY VITAL INFORMATION LIKE ABLE DANGER BECAUSE IT "DIDN'T MESH" WITH YOUR PLANNED OUTCOMES))))

Before 9/11, the United States tried to solve the al Qaeda problem with the same government institutions and capabilities it had used in the last stages of the Cold War and its immediate aftermath.These capabilities were insufficient, but little was done to expand or reform them.

For covert action, of course, the White House depended on the Counterterrorist Center and the CIA's Directorate of Operations. Though some officers, particularly in the Bin Ladin unit, were eager for the mission, most were not. The higher management of the directorate was unenthusiastic.The CIA's capacity to conduct paramilitary operations with its own personnel was not large, and the Agency did not seek a large-scale general expansion of these capabilities before 9/11.

James Pavitt, the head of this directorate, remembered that covert action, promoted by the White House, had gotten the Clandestine Service into trouble in the past. He had no desire to see this happen again. He thought, not unreasonably, that a truly serious counterterrorism campaign against an enemy of this magnitude would be business primarily for the military, not the Clandestine Service.

As for the Department of Defense, some officers in the Joint Staff were keen to help. Some in the Special Operations Command have told us that they worked on plans for using Special Operations Forces in Afghanistan and that they hoped for action orders. JCS Chairman General Shelton and General Anthony Zinni at Central Command had a different view. Shelton felt that the August 1998 attacks had proved a waste of good ordnance and thereafter consistently opposed firing expensive Tomahawk missiles merely at "jungle gym" terrorist training infrastructure. In this view, he had complete support from Defense Secretary William Cohen. Shelton was prepared to plan other options, but he was also prepared to make perfectly clear his own strong doubts about the wisdom of any military action that risked U.S. lives unless the intelligence was "actionable."

The high price of keeping counterterrorism policy within the restricted circle of the Counterterrorism Security Group and the highest-level principals was nowhere more apparent than in the military establishment.After the August 1998 missile strike, other members of the JCS let the press know their unhappiness that, in conformity with the Goldwater-Nichols reforms, Shelton had been the only member of the JCS to be consulted. Although follow-on military options were briefed more widely, the vice director of operations on the Joint Staff commented to us that intelligence and planning documents relating to al Qaeda arrived in a ziplock red package and that many flag and general officers never had the clearances to see its contents.

At no point before 9/11 was the Department of Defense fully engaged in the mission of countering al Qaeda, though this was perhaps the most dangerous foreign enemy then threatening the United States.The Clinton adminis- tration effectively relied on the CIA to take the lead in preparing long-term offensive plans against an enemy sanctuary.The Bush administration adopted this approach, although its emerging new strategy envisioned some yet undefined further role for the military in addressing the problem.Within Defense, both Secretary Cohen and Secretary Donald Rumsfeld gave their principal attention to other challenges.

America's homeland defenders faced outward. NORAD itself was barely able to retain any alert bases. Its planning scenarios occasionally considered the danger of hijacked aircraft being guided to American targets, but only aircraft that were coming from overseas. We recognize that a costly change in NORAD's defense posture to deal with the danger of suicide hijackers, before such a threat had ever actually been realized, would have been a tough sell. But NORAD did not canvass available intelligence and try to make the case.

The most serious weaknesses in agency capabilities were in the domestic arena. In chapter 3 we discussed these institutions--the FBI, the Immigration and Naturalization Service, the FAA, and others.The major pre-9/11 effort to strengthen domestic agency capabilities came in 2000, as part of a millennium after-action review. President Clinton and his principal advisers paid considerable attention then to border security problems, but were not able to bring about significant improvements before leaving office.The NSC-led interagency process did not effectively bring along the leadership of the Justice and Transportation departments in an agenda for institutional change.

The FBI did not have the capability to link the collective knowledge of agents in the field to national priorities.The acting director of the FBI did not learn of his Bureau's hunt for two possible al Qaeda operatives in the United States or about his Bureau's arrest of an Islamic extremist taking flight training until September 11.The director of central intelligence knew about the FBI's Moussaoui investigation weeks before word of it made its way even to the FBI's own assistant director for counterterrorism.

Other agencies deferred to the FBI. In the August 6 PDB reporting to President Bush of 70 full-field investigations related to al Qaeda, news the President said he found heartening, the CIA had simply restated what the FBI had said. No one looked behind the curtain.

Report excerpt:

Though Secretary Albright made no secret of thinking the Taliban "despicable," the U.S. ambassador to the United Nations, Bill Richardson, led a delegation to South Asia--including Afghanistan--in April 1998. No U.S. official of such rank had been to Kabul in decades.Ambassador Richardson went primarily to urge negotiations to end the civil war.

In view of Bin Ladin's recent public call for all Muslims to kill Americans, Richardson asked the Taliban to expel Bin Ladin.They answered that they did not know his whereabouts. In any case, the Taliban said, Bin Ladin was not a threat to the United States.

In sum, in late 1997 and the spring of 1998, the lead U.S. agencies each pursued their own efforts against Bin Ladin.The CIA's Counterterrorist Center was developing a plan to capture and remove him from Afghanistan. Parts of the Justice Department were moving toward indicting Bin Ladin, making possible a criminal trial in a NewYork court.Meanwhile,the State Department was focused more on lessening Indo-Pakistani nuclear tensions, ending the Afghan civil war, and ameliorating the Taliban's human rights abuses than on driving out Bin Ladin. Another key actor, Marine General Anthony Zinni, the commander in chief of the U.S. Central Command, shared the State Department's view.

The CIA Develops a Capture Plan

Initially, the DCI's Counterterrorist Center and its Bin Ladin unit considered a plan to ambush Bin Ladin when he traveled between Kandahar, the Taliban capital where he sometimes stayed the night, and his primary residence at the time, Tar nak Farms. After the Afghan tribals reported that they had tried such an ambush and failed, the Center gave up on it, despite suspicions that the tribals' story might be fiction.Thereafter, the capture plan focused on a nighttime raid on Tarnak Farms.

A compound of about 80 concrete or mud-brick buildings surrounded by a 10-foot wall,Tarnak Farms was located in an isolated desert area on the outskirts of the Kandahar airport.

CIA officers were able to map the entire site, identifying the houses that belonged to Bin Ladin's wives and the one where Bin Ladin himself was most likely to sleep. Working with the tribals, they drew up plans for the raid. They ran two complete rehearsals in the United States during the fall of 1997. By early 1998, planners at the Counterterrorist Center were ready to come back to the White House to seek formal approval.

Tenet apparently walked National Security Advisor Sandy Berger through the basic plan on February 13. One group of tribals would subdue the guards, enter Tarnak Farms stealthily, grab Bin Ladin, take him to a desert site outside Kandahar, and turn him over to a second group.This second group of tribals would take him to a desert landing zone already tested in the 1997 Kansi capture. From there, a CIA plane would take him to New York, an Arab capital, or wherever he was to be arraigned.

Briefing papers prepared by the Counterterrorist Center acknowledged that hitches might develop. People might be killed, and Bin Ladin's sup- porters might retaliate, perhaps taking U.S. citizens in Kandahar hostage. But the briefing papers also noted that there was risk in not acting. "Sooner or later," they said, "Bin Ladin will attack U.S. interests, perhaps using WMD [weapons of mass destruction]."

Clarke's Counterterrorism Security Group reviewed the capture plan for Berger. Noting that the plan was in a "very early stage of development," the NSC staff then told the CIA planners to go ahead and, among other things, start drafting any legal documents that might be required to authorize the covert action.The CSG apparently stressed that the raid should target Bin Ladin himself, not the whole compound.

The CIA planners conducted their third complete rehearsal in March, and they again briefed the CSG. Clarke wrote Berger on March 7 that he saw the operation as "somewhat embryonic" and the CIA as "months away from doing anything."

"Mike" thought the capture plan was "the perfect operation." It required minimum infrastructure.The plan had now been modified so that the tribals would keep Bin Ladin in a hiding place for up to a month before turning him over to the United States--thereby increasing the chances of keeping the U.S. hand out of sight. "Mike" trusted the information from the Afghan network; it had been corroborated by other means, he told us.

The lead CIA officer in the field, Gary Schroen, also had confidence in the tribals. In a May 6 cable to CIA headquarters, he pronounced their planning "almost as professional and detailed . . . as would be done by any U.S. military special operations element." He and the other officers who had worked through the plan with the tribals judged it "about as good as it can be." (By that, Schroen explained, he meant that the chance of capturing or killing Bin Ladin was about 40 percent.)

Although the tribals thought they could pull off the raid, if the operation were approved by headquarters and the policymakers, Schroen wrote there was going to be a point when "we step back and keep our fingers crossed that the [tribals] prove as good (and as lucky) as they think they will be."

Military officers reviewed the capture plan and, according to "Mike," "found no showstoppers."The commander of Delta Force felt "uncomfortable" with having the tribals hold Bin Ladin captive for so long, and the commander of Joint Special Operations Forces, Lieutenant General Michael Canavan, was worried about the safety of the tribals inside Tarnak Farms. General Canavan said he had actually thought the operation too complicated for the CIA--"out of their league"--and an effort to get results "on the cheap." But a senior Joint Staff officer described the plan as "generally, not too much different than we might have come up with ourselves."

No one in the Pentagon, so far as we know, advised the CIA or the White House not to proceed.

In Washington, Berger expressed doubt about the dependability of the tribals. In his meeting with Tenet, Berger focused most, however, on the question of what was to be done with Bin Ladin if he were actually captured. He worried that the hard evidence against Bin Ladin was still skimpy and that there was a danger of snatching him and bringing him to the United States only to see him acquitted.

On May 18, CIA's managers reviewed a draft Memorandum of Notification (MON), a legal document authorizing the capture operation.A 1986 presidential finding had authorized worldwide covert action against terrorism and probably provided adequate authority. But mindful of the old "rogue elephant" charge, senior CIA managers may have wanted something on paper to show that they were not acting on their own.

Discussion of this memorandum brought to the surface an unease about paramilitary covert action that had become ingrained, at least among some CIA senior managers. James Pavitt, the assistant head of the Directorate of Opera- tions, expressed concern that people might get killed; it appears he thought the operation had at least a slight flavor of a plan for an assassination. Moreover, he calculated that it would cost several million dollars. He was not prepared to take that money "out of hide," and he did not want to go to all the necessary congressional committees to get special money.

Despite Pavitt's misgivings, the CIA leadership cleared the draft memorandum and sent it on to the National Security Council.

Counterterrorist Center officers briefed Attorney General Janet Reno and FBI Director Louis Freeh, telling them that the operation had about a 30 percent chance of success.The Center's chief,"Jeff," joined John O'Neill, the head of the FBI's New York Field Office, in briefing Mary Jo White, the U.S.Attorney for the Southern District of New York, and her staff.

Though "Jeff " also used the 30 percent success figure, he warned that someone would surely be killed in the operation.White's impression from the New York briefing was that the chances of capturing Bin Ladin alive were nil.

From May 20 to 24, the CIA ran a final, graded rehearsal of the operation, spread over three time zones, even bringing in personnel from the region.The FBI also participated. The rehearsal went well.

The Counterterrorist Center planned to brief cabinet-level principals and their deputies the following week, giving June 23 as the date for the raid, with Bin Ladin to be brought out of Afghanistan no later than July 23.27 On May 20, Director Tenet discussed the high risk of the operation with Berger and his deputies, warning that people might be killed, including Bin Ladin. Success was to be defined as the exfiltration of Bin Ladin out of Afghanistan. A meeting of principals was scheduled for May 29 to decide whether the operation should go ahead.

The principals did not meet. On May 29, "Jeff " informed "Mike" that he had just met with Tenet, Pavitt, and the chief of the Directorate's Near Eastern Division. The decision was made not to go ahead with the operation."Mike" cabled the field that he had been directed to "stand down on the operation for the time being." He had been told, he wrote, that cabinet-level officials thought the risk of civilian casualties--"collateral damage"--was too high. They were concerned about the tribals' safety, and had worried that "the purpose and nature of the operation would be subject to unavoidable misinterpretation and misrepresentation--and probably recriminations--in the event that Bin Ladin, despite our best intentions and efforts, did not survive."

Impressions vary as to who actually decided not to proceed with the operation. Clarke told us that the CSG saw the plan as flawed. He was said to have described it to a colleague on the NSC staff as "half-assed" and predicted that the principals would not approve it. "Jeff " thought the decision had been made at the cabinet level. Pavitt thought that it was Berger's doing, though perhaps on Tenet's advice. Tenet told us that given the recommendation of his chief operations officers, he alone had decided to "turn off " the operation. He had simply informed Berger, who had not pushed back. Berger's recollection was similar. He said the plan was never presented to the White House for a decision.

The CIA's senior management clearly did not think the plan would work. Tenet's deputy director of operations wrote to Berger a few weeks later that the CIA assessed the tribals' ability to capture Bin Ladin and deliver him to U.S. officials as low. But working-level CIA officers were disappointed. Before it was canceled, Schroen described it as the "best plan we are going to come up with to capture [Bin Ladin] while he is in Afghanistan and bring him to justice."

No capture plan before 9/11 ever again attained the same level of detail and preparation. The tribals' reported readiness to act diminished. And Bin Ladin's security precautions and defenses became more elaborate and formidable.

At this time, 9/11 was more than three years away. It was the duty of Tenet and the CIA leadership to balance the risks of inaction against jeopardizing the lives of their operatives and agents. And they had reason to worry about failure: millions of dollars down the drain; a shoot-out that could be seen as an assassination; and, if there were repercussions in Pakistan, perhaps a coup.

The decisions of the U.S. government in May 1998 were made, as Berger has put it, from the vantage point of the driver looking through a muddy windshield moving forward, not through a clean rearview mirror.

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