The Politics of Sharing Information
The various attacks around the world were addressed through our existing justice system. We did not have simple laws regarding domestic intelligence which meant that we had little legal power in collecting information. The Foreign Intelligence Surveillance Act, the establishment of Omnibus Crime Control and Safe Streets Act of 1968, and many other regulations and complex laws governed domestic intelligence collection.
|
"Exchange of information collected by foreign and domestic agencies was determined by a strict set of rules that was (perhaps somewhat incorrectly) interpreted as forbidding pure “intelligence” information from being collected for law enforcement purposes, and – conversely – made it difficult to share criminal justice-derived information with other agencies."
Michael Chertoff, secretary of the US Department of Homeland Security, 2004 to 2009
HistoryThe failure to share information prior to 9/11 was not an anomaly. Law enforcement and intelligence information was not routinely shared and and different regulations regarding the division of work truly prevented agencies from working with each others. These regulations were rooted from pre World War II practices in the National Security Act of 1947, which required the Central intelligence agency to “have no police, subpoena,or law enforcement powers or internal security functions.”
With even more regulation in the 1970s due to domestic intelligence during the Vietnam War, Congress investigated and enacted legislation. In 1978, Congress passed the Foreign Intelligence Surveillance Act. |
"The major failures leading up to the attack stemmed most directly from poor information coordination among the U.S.’s fifteen separate intelligence agencies and a failure to imagine and prepare for unseen terrorist tactics like the hijacking and weaponization of airliners."
|
The Foreign Intelligence Surveillance Act of 1978:
Law which determined the procedure for the collection of intelligence between residents The law does not apply outside the United States.
"It authorized the government to gather intelligence on agents of foreign powers with less stringent requirements than those required for surveillance of domestic criminals. The courts interpreted FISA as requiring that gathering foreign intelligence be the "primary purpose" of the surveillance of the foreign agent." |
Omnibus Crime Control and Safe Streets Act of 1968:
|
Many provisions of the federal laws at the times before the 9/11 attacks were interpreted differently. They were seen as limiting the ability of government officials to communicate with other investigators and departments. They also sharply limited the ability to share terrorist related information. This created a metaphorical wall between the different government officials in charge of gathering such information, leading to many delays in finding out key facts.
The courts interpreted FISA as requiring that gathering foreign intelligence be the "primary purpose" of the surveillance of the foreign agent. This worked well during the Cold War for gathering intelligence on spies under diplomatic cover in the United States. or recruits from the United States. Both were "agents of a foreign power" and intelligence for other countries was generally a "primary purpose of surveillance"
|
However, with the growth in technology and a change in the workings of terrorist groups, these rules did not work well. It was difficult to determine if terrorists were agents for another country and the government had a hard time dividing up work between agencies to pursue these terrorists. Basically, there could only be one purpose - either foreign intelligence, or gathering criminal evidence; and the lines were very confusing and blurred.
|
Former Department of Homeland Security secretary Michael Chertoff speaks about the difficulties of pre- 9/11 law in a Chatham House video.
"One of considerable significance, with which many in the law enforcement have struggled for many years, is this: under what circumstances may a FCI investigation in which a FISA wiretap is used be maintained when the most dramatic and practical use of the information obtained from the wire is evidence of a crime. Since virtually immediately after its being signed into law, the majority of the FCI and foreign intelligence (FI) communities viewed FISA as being subject to the requirement that the primary purpose behind the use of wiretaps or searches executed under its authority be for the acquisition of FCI or FI. Conversely, the belief was that FISA could not be used as an investigative tool if the primary purpose of the investigation was, for example, the criminal prosecution of the target, even if the criminal prosecution would be for the crime of espionage."
James G. McAdams, III ; Senior Legal Instructor
Along with the difficulties of transmitting information and deciphering what was important and what was not; we had poor coordination between the different agencies of our government.
"Almost all assessments of the attacks of September 11, 2001, have concluded that U.S. intelligence and law enforcement agencies had failed to share information that might have provided advance warning of the plot. This realization led Congress to approve provisions in the USA PATRIOT Act (P.L. 107-56) and subsequent
legislation that removed barriers to information sharing between intelligence and law enforcement agencies, and mandated exchanges of information relating to terrorist threats."
Summary of CRS Report For Congress:Sharing Law Enforcement and Intelligence Information: The Congressional Role; Richard A. Best Jr.