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By Paul Rosenzweig, Ph.D., The George Washington University Law SchoolTerrorist Investigations Before 9/11

As the 9/11 Commission states, in December 1999, the NSA picked up the movements of Khalid al-Mihdhar, an individual then identified as Nawaf Mihdhar, which linked him to a terrorist facility in the Middle East.

Mihdhar was tracked to Kuala Lumpur, where he met with other then-unidentified individuals. Some photographs were taken of these men on the streets of Kuala Lumpur. The surveillance trailed off when three of them moved on to Bangkok on January 8, 2000. Those pictures became relevant to the FBIs pre-attack criminal investigation in July 2001.

Unfortunately, as the 9/11 Commission found, the NSA reports contained caveats that their contents could not be shared with criminal investigators without the Office of Intelligence Policy Reviews (OIPRs) permission.

Therefore, an FBI intelligence analyst who reviewed the material concluded she could not pass the information contained in these reports to the FBI. She neither asked OIPR for permission to share the reports, nor did she explain to the agents anything about the caveats, only that she could not share the information due to a wall.

And what was this wall? In October 1978, President Jimmy Carter signed into law the FISA legislation that established a new framework for American policy, mandating a strict separation of the CIA and the FBI. In effect, the Congress erected a wall between intelligence gathering and law enforcement.

This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on The Great Courses Plus.

The creation of the wall, and rules governing it, erected a compliance culture within the FBI, where failure to follow procedure could result in adverse personnel actions.

The failures of 9/11 were less about statutory language and more about human fears, hesitations, an abundance of caution and the inability of bureaucratic organizations to adapt to discrete circumstances.

Even more than a wall, the law created a spacea dangerous voidbetween the governments criminal and intelligence sides of the house.

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In late September 2001, the executive branch sent to the Congress a draft legislation proposing changes to FISAs certification requirement for electronic surveillance and physical search applications. In the area of foreign intelligence collection, the prescribed change was from the purpose to a purpose.

Associate Deputy Attorney General David Kris testified at a September 24, 2001, hearing on the legislation that the animating purpose of the change was to bring the two sides together; allow for a single unified, cohesive response; and avoid splintering and fragmentation.

Even then, some civil libertarians expressed concern. Critics of the legislation thought that simply requiring that foreign intelligence be a purpose of the collection was too big a blank check for the government to make use of FISA.

As a compromise, the proposed law was changed from the purpose to a significant purpose.

The FISA Court of Review, as an appeals court for the FISA Court itself, summarized the new standard.

It said that the FISA Court should not deny an application if ordinary crimes were inextricably intertwined with foreign intelligence crimes.

So long as foreign intelligence was a realistic option, using the relaxed FISA procedures was acceptable. On the other hand, the review court said the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.

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What all of this demonstrates is the cyclical nature of legislative and judicial branch oversight of national security activities over the course of U.S. history.

The pendulum swings back and forth, over and over again. The CIA, the FBI, and later, the NSA undertook extensive surveillance of Americans during the 1940s, 50s, and 60s. These activities were largely unregulated, hence the response by the legislative and judicial branches was to impose controls.

Congress passed Title III, mandating judicial pre-approval of electronic surveillance; then the Supreme Court decided the Keith Case in 1972, interpreting Title III to extend to domestic security investigations; and then Congress passed FISA in 1978, bringing surveillance activities aimed at foreign intelligence collection under judicial review as well.

A comparable cycle occurred after 9/11. The Bush Administration took the position that the Patriot Act of October 2001 authorized it to frequently task the NSA to conduct warrantless surveillance. Then came public backlash and, later, somewhat greater restrictions.

For now, we can end with a better understanding of why so many voices in the intelligence community were convinced that the government needed to share intelligence information more widely than it had before the 9/11 attacks.

We cannot prove a counterfactual premise that had the FBI possessed the information it was not allowed, the terror attacks would have been averted. But that is our suspicion and so, just like in Berlin a generation earlier, the wall had to come down.

Before 9/11, intelligence was sometimes shared in inappropriate manners like using evidence collected illegally for a criminal case which would lead to the evidence being thrown out.

Before 9/11, the FBI feared using evidence or even asking for authorization. They began being very cautious when it came to handling evidence and this led to criminal and intelligence institutions cooperating less than ever.

After 9/11, many changes were introduced in the system but when it came to FISA, the Congress acted very quickly. They proposed changes to the legislation so as to cover its weak points like when it came to certification requirements for surveillance and physical search.

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