Skip to comments.Able Danger, Gorelick and Suspending Disbelief
Posted on 10/20/2005 3:37:30 AM PDT by ovrtaxt
Life is always more complicated than wed like to believe. Here is the simple version of the story. General Henry H. Shelton, Chairman of the Joint Chiefs, created a black ops counter terrorism group in the Pentagon called, Able Danger. A year before Mohammad Atta and his fellow Muslim fanatics carried out their attacks on 09/11, Able Danger surfaced their existence and sought to make this information known to the FBI.
They were prevented from doing so because Pentagon lawyers relied on a memorandum-- written in 1995 by Deputy Attorney General Jamie Gorelick-- that built a wall of separation between domestic and foreign intelligence.
Gorelick served on the 09/11 Commission and was in a position to cover up her malfeasance, which in part explains why Able Dangers revelations about this event did not get into the report and why spokesmen for the Commission first denied and have now dismissed the validity of Able Dangers information.
Whats wrong with this picture?
The controlling legal authority on the distribution of information between the Pentagon and the FBI is not Jamie Gorelicks memorandum or any of a set of memoranda written during the Clinton years and often confused with the Gorelick memorandum but President Ronald Reagans Executive Order 12333.
As one might expect knowing that President Reagan signed this memorandum, rather than hinder cooperation between the Pentagon and the FBI, President Reagan mandated cooperation between military intelligence and the FBI (Section 1.11).
Besides, when intelligence officers discover information that is vital to national security, they have ways of getting around legal restrictions. Much the same way, intelligence organizations of nation states, even adversarial nation states, often create ad hoc and informal relationships to accomplish between themselves things of mutual interest that otherwise could not be accomplished.
So the picture as it is now developed expects us to accept that a group of Pentagon lawyers, with or without the participation of the Department of Justice, used not Executive Order 12333 to determine whether the Able Dangers information should go to the FBI but Jamie Gorelicks memorandum of 1995.
And given the significance of this information, none of the Able Danger team members or anyone else who had access to this information was capable of getting this information to the FBI, not even through an anonymous tip with a Middle Eastern accent.
Beyond the Executive Order, there is the matter of Laird v. Tatum (1972) in which the Supreme Court upheld the Armys right to spy on domestic groups.
Then there is the opinion of the District Court, in the Northern District of Illinois, in ACLU v. Westmoreland (1972) that also upheld that right.
So the Pentagon lawyers ignored the legal precedent, the controlling Executive Decree and instead relied on the Gorelick memorandum
But even the most cursory reading of the full Gorelick memorandum says none of the things that are attributed to it. If this is a smoking gun, the mirrors cant be far behind. I suspect that many people writing about the Gorelick memorandum have simply not read it and relied on the quotations culled by others.
Gorelicks memorandum refers to two cases, United States v. Rahman et. al. and United States v. Yousef, et. al., both in the Southern District of New York and related to the 1993 bombing of the World Trade Center. The memorandum is not a general policy statement. It is concerned with future surveillance under the Federal Intelligence Security Act (1978), and how that surveillance can be implemented and kept from contaminating the ongoing criminal investigation.
There was little doubt that whatever the outcome of these cases, they would be appealed, and that the defense attorneys would attempt to use the criminal process to get national security information, including information on government informants and their families.
Rahmans appeal to the Supreme Court was denied on January 10, 2000. Ramzi Yousef, Eyad Ismoil and Abdul Hakim Mura also appealed to the Supreme Court, challenging the jurisdiction of the United States, and this was denied on May 3, 2002.
The government successfully blocked the defenses legal attempts to gain access to national security information.
At the time Gorelick wrote her memorandum the government needed to expand its counter intelligence gathering but also to keep the new FISA- generated surveillance separate from the federal criminal investigations. Why? Because FISA courts act in secret and grant surveillance requests under a different standard than do criminal courts.
If a defense attorney can show that the FISA court was used as a ruse to circumvent the criminal justice standard, then the attorney can argue that the government violated his clients Fourth Amendment Rights.
Gorelicks oft quoted but apparently misunderstood reference to creating a procedure that would go beyond what was legally required refers only to the separation of FISA acquired surveillance from the specific on-going criminal investigation.
But even here, there is no total separation because the memorandum also creates a procedure for implementing proactive surveillance if the criminal justice investigation surfaced information that made such surveillance vital. And if exigent circumstances existed, even that procedure could be bypassed.
The bandied about walled off quote has nothing to do with even the separation of the two investigations, leading to additional corroboration that most people engaged in pounding on the Gorelick memorandum simply havent bothered to read it.
The walled off statement refers to an Assistant United States Attorney (AUSA), who is expressly tasked to be liaison between the criminal investigation and the national security investigation. His mission is twofold: First, to inform the criminal investigation if the national security surveillance surfaces information that a crime is going to be committed.
Second, to review such foreign intelligence information to ensure that evidence that might be exculpatory to any defendants currently under indictment is promptly considered for dissemination to criminal investigative personnel .
This is an intriguing legal maneuver because it anticipates that the defense will allege that there is exculpatory information in the FISA surveillance, and the defense needs to have access to it. The government will, of course, deny access, and the defense will allege it is impossible to obtain a fair trial
The government can now argue that it put into place well in advance a procedure to find and deliver exculpatory evidence.
Since the AUSA will have access to the FISA information and the federal criminal investigation, what would prevent him from corrupting the criminal investigation with FISA generated material?
Here is where the walled off term enters the discussion: That AUSA will continue to be walled off from participation in the on-going criminal investigations . Clearly, the memorandum walls off a specific person dealing with a specific set of cases, not a policy process.
This is hardly what has been portrayed in the near hysterical commentaries.
If Pentagon lawyers did rely on the Gorelick memorandum to prevent Able Danger from disseminating its information to the FBI, then we not only need to indict them for depraved indifference in the murder of three thousand of our fellow citizens; we need to immediately find out where they got their law degrees and have those recalled like a set of defective tires.
Abraham H. Miller is emeritus professor of political science, University of Cincinnati. He writes extensively on matters related to the United States intelligence community for academic and popular venues. He served three terms as chairman of the Intelligence Studies Section of the International Studies Association.
First I have heard of this Executive Order. Now, this article is from August, and much more info has surfaced since then about the actual legal resoning behind the communications, or lack thereof, between Able Danger and the FBI. The author seems to think that Gorelick's memo couldn't have had an effect on Able Danger. I can't recall which specific law was cited in the Senate hearing, but it wasn't the Gorelick memo specifically. Whatever it was, how could it have existed alongside this executive order?
From Northeast Intelligence Network:link at
In his research and evaluation of this matter, Sean Osborne has affirmed the long-term legal standing of Executive Order 12333 and how it heretofore has been completely ignored. The oversight functions of the Congress have also been virtually non-existent, at least to date.
Was there a coup d'etat of the Republic by some unelected judiciary or an invisible government at some point in the past 20 years? None that would be apparent to the public, which is the reason for the firm attachment to this issue as THE core issue regarding Project Able Danger and the unprecedented intelligence failure which resulted in the events of 9/11/2001. This failure clearly occurred during the mid-to-late 1990s, and by virtue of continuing to ignore those failures, continues even today.
Here are the facts: President Ronald Reagan issued Executive Order 12333 entitled "United States Intelligence Activities" on 4 December 1981.
Here is the historical data concerning this specific Executive Order:
Executive Order 12333
United States Intelligence Activities
# Signed: December 4, 1981
# Federal Register page and date: 46 FR 59941; December 8, 1981
# Amends: EO 12139, May 23, 1979
# Amended by: EO 13284, January 23, 2003; EO 13355, August 27, 2004
# Revokes: EO 12036, January 24, 1978
# See: EO 12564, September 15, 1986; Pub. L. 102-396 (106 Stat. 1910); EO 12829, January 6, 1993; EO 13231, October 16, 2001; EO 13283, January 21, 2003; EO 13354, August 27, 2004; EO 13356, August 27, 2004
E.O. 13284 Amended EO 12333 on 23 January 2003 with the establishment of the Department of Homeland Security and its insertion into United States Intelligence Activities, per Section 18. This EO did nothing to otherwise alter the legal effect to EO 12333.
E.O. 13355 Amended E.O. 12333 on 27 August 2004 which Strengthened Management of the Intelligence Community per its Section 2 and applied directly to E.O. 12333. This E.O. strengthened the legal provisions of E.O. 12333.
Therefore, there is no legal basis for the provisions of Executive Order 12333 to have been interfered with or blatantly ignored by Department of Justice or Department of Defense lawyers pursuant to the exchange of intelligence data between USSOCOM project Able danger and the Federal Bureau of Investigation.
Furthermore, E.O. 12333 mandated such collaboration and exchanges of data occur specifically between the DoD and the FBI when intelligence data was indicative of international terrorist activity occurred or was active within the territory of the United States.
I am sure some tech savvy freeper can research this.
I think it was the Church Commission you're thinking of.
In any case, Reagan signed Executive Order 12333 in 1981. Seems like that should have been the legal basis for the DOD lawyers to handle the Able Danger info. The fact that they didn't implicates a political motivation that superceded a commitment to national security.
Interesting reading here.
This from Wikipedia:
Fox News pundit Bill O'Reilly and others have asserted that the Able Danger intelligence was suppressed as a result of "the wall." During the 9/11 Commission hearings, then-Attorney General John Ashcroft alleged the wall was strengthened under the Clinton administration by Jamie Gorelick to prohibit sharing of terrorist intelligence within the federal government. 
This assertion was disputed by former senator Slade Gorton (R-WA), a member of the 9-11 Commission, who said, "nothing Jamie Gorelick wrote had the slightest impact on the Department of Defense or its willingness or ability to share intelligence information with other intelligence agencies." Gorton also asserted that "the wall" was a long-standing policy that had resulted from the Church committee in the 1970s, and that the policy only prohibits transfer of certain information from prosecutors to the intelligence services and never prohibited information flowing in the opposite direction.
The controversy is beginning to damage the credibility of the 9/11 Commission in areas outside of Able Danger as well. Columnist Mike Kelly has written that the 9/11 Commission's work is "under a cloud." 
It is interesting reading and thanks for the ping.
I am wondering how Ashcroft would respond to this author. Ashcroft blamed Gorelick's wall of separation memo as a primary reason that intelligence agencies didn't share information.
Whether over zealous attorneys mis-read that memo or not remains to be seen, but since Congress seems reluctant to investigate this matter, we probably won't ever know.
Gorelick enhanced the wall to make it ever more difficult to share intelligence information that would enhance national security.
Right. Reagan's Executive Order should have superceded the wall. Why it didn't in the minds of these lawyers is a very large question.
I was thinking the VERY same thing.
What's wrong with this picture is what's wrong with our nation: the Clinton Communists are ruling it.
Do you remember which law was cited by Erik Kleinsmith, the guy who claimed that he was the one who deleted the info? I think it was a statute that limited the retention of info on civilians to 90 days. This seems to be totally in opposition to the EO 12333.
It was the law that limited retention of information on "US persons" which he took pains to explain also included people here on visas. What the name of the law is, I'm afraid I don't remember.
No matter who first created a "wall" between intelligence agencies, the gargantuan stupidity of bureaucracy knows no bounds.
And 3000 people lost their lives.
Weird article. Yet another "expert" heard from. Where is any sense of anything but "know-it-all-ism" in his plaint?
In any case, here's the section of EO 12333 cited by the author:
And specifically this section:
(d) The foreign intelligence and counterintelligence elements of the Army, Navy, Air Force, and Marine Corps, whose responsibilities shall include:
(1) Collection, production and dissemination of military and military-related foreign intelligence and counterintelligence, and information on the foreign aspects of narcotics production and trafficking. When collection is conducted in response to national foreign intelligence requirements, it will be conducted in accordance with guidance from the Director of Central Intelligence. Collection of national foreign intelligence, not otherwise obtainable, outside the United States shall be coordinated with the CIA, and such collection within the United States shall be coordinated with the FBI;
(2) Conduct of counterintelligence activities outside the United States in coordination with the CIA, and within the United States in coordination with the FBI; and
(3) Monitoring of the development, procurement and management of tactical intelligence systems and equipment and conducting related research, development, and test and evaluation activities.
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