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OPINION:
If you want to know how dangerous President-elect Donald Trump’s nominee for FBI director would be, look no further than the evolution of the figurative wall that prevented the FBI from pursuing leads that might have uncovered the 9/11 plot.
Kash Patel, Mr. Trump’s pick to lead the bureau, wants to separate the counterterrorism and counterintelligence side of the FBI from the side that investigates criminal violations, effectively creating a wall similar to the one Attorney General Janet Reno imposed on the FBI.
The wall, which essentially paralyzed the nation’s effort to hunt down terrorists before they killed people, was the brainchild of Richard Scruggs, whom Reno hired as chief counsel of the Justice Department’s Office of Intelligence Policy and Review.
Mr. Scruggs’ misreading of the law that Reno blindly followed led to the creation of the wall that meant the FBI and CIA could not share information on terrorist plots and that even counterintelligence agents and criminal investigators within the FBI could not share information with each other.
Mr. Scruggs decided that when applications were going to be made for electronic surveillance in foreign counterintelligence or counterterrorism cases, information gathered to obtain intelligence could not be mixed with information that might be used for criminal prosecution.
The Foreign Intelligence Surveillance Act of 1978 established a court to hear requests for electronic intercepts in such cases. Until Mr. Scruggs came along, there had been no problem.
John L. Martin, who headed the Justice Department’s espionage section for 25 years, prosecuted 76 spies by properly distinguishing between the information developed for purposes of intelligence and that gathered for purposes of a criminal investigation. Under court rulings, so long as the “primary purpose” of the initial investigation was to gather intelligence, the evidence collected could be used to support a prosecution without any problem. No prosecution had ever been overturned on appeal.
Mr. Scruggs, however, said that to demonstrate that the primary purpose of an investigation was originally counterintelligence and not a prosecution, those who worked on the case initially should have no contact with prosecutors during their investigation.
Asked why he made an issue of contact between the FBI and Justice Department prosecutors given the record of success in espionage prosecutions, Mr. Scruggs told me for my book “The Secrets of the FBI” that a court had held that Justice acted “improperly” in the prosecution of Ronald Humphrey, an employee of the U.S. Information Agency, and David Truong, who turned over secret State Department documents from Mr. Humphrey to the North Vietnamese.
But Mr. Scruggs was wrong. That case, brought in early 1978, was before the enactment of FISA. It was, therefore, irrelevant. Moreover, an appeals court had upheld the convictions. Asked about that, Mr. Scruggs said he thought the case had occurred after FISA was passed. So Mr. Scruggs was responding to a nonexistent problem created by his own mistake.
Despite Mr. Scruggs’ misreading of the law, Reno and Deputy Attorney General Jamie Gorelick approved Mr. Scruggs’ memo requiring the separation of intelligence and criminal matters when making a FISA application. Mr. Scruggs’ staff at the Justice Department enforced his dictum by warning that FBI agents could be fired or even prosecuted for a felony if they overstepped.
Soon, the FBI and CIA overreacted to the warning and began separating information from criminal and intelligence sources even if no application was being made for a FISA warrant. Depending on the origin, FBI agents on the same squad were not allowed to share information with each other on the same case.
It was, said Arthur M. Cummings II, who was the FBI’s executive assistant director for national security, “insane.”
“In practice, the wall crippled our last best chance to catch the 9/11 hijackers before Sept. 11, 2001,” Stewart Baker, a former general counsel of the National Security Agency and former assistant secretary of homeland security, wrote in his book “Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism.”
Mr. Baker was referring to how the wall, which was eventually upended by the 2001 Patriot Act, imposed impediments to the FBI finding Khalid al-Mihdhar, one of the 9/11 hijackers, who was linked by address or data in reservation systems to 11 of the other hijackers.
Mr. Scruggs had a “blockage in his thinking, which was accepted by Janet Reno and Jamie Gorelick,” Mr. Martin says.
The reason we have not had a successful foreign terrorist attack since 9/11 is the FBI’s dual role as a law enforcement agency and a counterterrorism and counterintelligence agency working seamlessly together. Now, if he is confirmed as FBI director, Mr. Patel wants to replicate Reno’s blunder by creating his own wall separating the two sides, to the delight of our enemies.
• Ronald Kessler, a former Washington Post and Wall Street Journal investigative reporter, is the New York Times bestselling author of “The Secrets of the FBI.” His book “The FBI: Inside the World’s Most Powerful Law Enforcement Agency” led to the dismissal of William Sessions as FBI director.
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