Part of Ashcroft's Testimony before US Congress. April 2004

In 1995, the Justice Department designed a system that was destined to fail. In the days before Sept. 11, the wall specifically impeded the investigation of Zacarias Moussaoui, the investigation of Khalid al-Midhar and Nawaq Alhazmi. . . .

At that time, a frustrated F.B.I. investigator wrote headquarters, and I'm quoting: "Whatever has happened to this, someday somebody — someone will die. And wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems. Let's hope the National Security Law Unit will stand behind their decision then, especially since the biggest threat to us, U.B.L. [Usama bin Laden], is getting the most protection." F.B.I. headquarters responded, and I quote: "We're all frustrated with this issue. These are the rules. N.S.L.U. does not make them up."

But somebody did make these rules. Somebody built this wall. The basic architecture for the wall in the 1995 guidelines was contained in a classified memorandum entitled "Instructions for Separation of Certain Foreign Counterintelligence and Criminal Investigations." The memorandum ordered F.B.I. director Louis Freeh and others, "we believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited by continued criminal investigations."

These procedures, the memo went on to say, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA [Foreign Intelligence Surveillance Act] is being used to avoid procedural safeguards, which would apply in a criminal investigation. This memorandum laid the foundation for a wall separating the criminal and intelligence investigations, as a matter of fact established the wall following the 1993 World Trade Center attack, which at the time was the largest international terrorism attack on American soil, the largest prior to Sept. 11.

Although you understand the debilitating impact of the wall, I cannot imagine that the commission knew about this memorandum, so I have had it declassified for you and the public to review.

Full disclosure compels me to inform you that the author of this memorandum is a member of the commission. By 2000, the Justice Department was so addicted to the wall, it actually opposed legislation to lower the wall. Finally, the USA Patriot Act tore down this wall between our intelligence and law enforcement personnel in 2001.

END

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