Running Head: The Wall

The Wall

Bryan Munn
ISSA: 3301 Context, Culture, and Intelligence: The International Dimension
Brian Gellman
September 19, 2018
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“We had a lot of people strongly opposed to what we did. We had a lot of trouble getting

access to documents and to people…So there were all kinds of reasons we thought we were set

up to fail.”

- Lee Hamilton, Vice Chairman, 9/11 Commission

The world today, as bad as it may sound, is fairly safe. The United States hasn’t seen a

large scale attack in years and US citizens are beginning to really focus on privacy from the gov-

ernment. As privacy increases, oversight among our law enforcement and intelligence agencies

follows the trend. Oversight is great at keeping powerful agencies and individuals in check, but

too much of it can lead to devastating results.

Church and Pike Committee

Prior to 1974, the executive branch of government had full control of covert and clandes-

tine operations with the assumption that they had all of the answers and could make the best de-

cisions based on the national security needs of the nation. President Nixon can be blamed for not

only the Watergate scandal but in relation to this, changing the course of intelligence for years to

come. The Watergate scandal showed how flawed the system was and introduced a new set of

oversight to combat the issues within the intelligence community (IC). This started with the pass-

ing of the Hughes-Ryan Act in 1974 which required the president to gain approval from the six

Congressional committees for the use of the Central Intelligence Agencies (CIA) covert opera-

tions (Wagenen 2007). This was just a small part of what was to come as the Senate Select Com-

mittee to Study Governmental Operation with Respect to Intelligence activities (Church Com-

mittee) was established in 1975. The initial focus of the Church Committee was domestic sur-
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veillance and they had a daunting task at hand which was to investigate the nation’s most secre-

tive agencies and present a report on any wrongdoings they found (Langston 2015). With the

Church Committee established to investigate domestic issues, in the same year, the Pike Com-

mittee was born to bring oversight to the CIA, Federal Bureau of Investigation (FBI), and the

National Security Agency (NSA). The establishing of these two committees were much needed

at the time due to the abuses of the Executive Branch, but what they did is was paint the IC as at

best criminals, and at worst, direct threats to the constitution. Following the findings of both

committees, massive oversight and laws were implemented to prevent another disastrous past.

Following these two major moves in oversite were even more smaller, but still important policies

that passed including the Classified Information Act of 1980 which was enacted to put more

rules on how classified information was to be used and the Intelligence Authorization Act

(Michalec 2003). With all of this oversight came with it implications that some argue led to the

attacks on 9/11.

Oversight Implications

One of the most devastating result of the Pike and Church Committees was the barriers it

put in place when intelligence agencies are dealing with foreign entities who engage or have pre-

viously engaged in harmful acts. This could be as simple as not being able to work with a former

mafia member. This CIA was most impacted by these stipulations and even had a Inspector Gen-

eral’s office established within the agency which they were required to share their information

with (Knott 2009). The results of this was a CIA who was scared to take part in any operations

that had even the slightest possibility for controversy. Avoiding this controversy prior to 9/11

meant a focus by both the CIA and FBI more on technology to gather intelligence rather than hu-

man intelligence (HUMINT). With all of this oversight comes with it also a constantly battling
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legislative and executive branch who often have opposing views and ideas. This leaves the IC

stuck in the middle and always trying to please the two different parties rather than stick to the

mission at hand. The result of this is intelligence decision be made by members of congress who

are not educated and qualified to do so. As members of Congress, this is not their job and as a

result they do not spend the time needed to truly understand the issues and cultures that the prob-

lems are related to, especially those which are vastly different than theirs, such as the Middle

Eastern countries. Instead of focusing on the intelligence and the problem, they are more focused

on what will make them look the best in the eyes of the American people and what will help

push their agenda more. Staying up to date and current with the ever changing environment of

the U.S. adversaries requires time and dedication. With congress becoming more involved in in-

telligence matters after the 1070s, comes with it a larger propensity for leaks. One normally

would not link oversight and leaks together, but this has indeed happened. The Intelligence Au-

thorization Act requires the IC to report “significant anticipated activities…and specific activities

that have major foreign policy implications.” (Cumming 2006) to congress. It is interesting that

leaks really didn’t start showing themselves until after the 1970s when oversight really took off

and required congress to be briefed on sensitive, covert information. These leaks can not only

undermine operations but more importantly could risk the lives of U.S. citizens.

What Went Wrong

The FBI counterterrorism unit during the 90s was a mess even with the monetary backing. For

example, the budget tripled in the mid-1990s, but so much of their efforts were focus on drug op-

erations rather than anti-terrorism. Agents were inadequate trained, resources were not dedicated

to counter-terrorism, and they lacked translation needs which led to a massive backlog of un-
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translated intercepts (Kean and Hamilton 2004). This combined with not enough HUMINT re-

ally played a large role in the failures that led to the attacks, but arguable the largest factor was

the oversite. The 9/11 Commission Report and many others talk about the “wall” that prevented

interagency communication. One disastrous result of this was Khalid al-Mihdhar and Nawaf al

Hazmi, two of the terrorists who flew the planes in to the Twin Towers, were living a normal life

in the United States without fear of pursuit. James Burch (2007) discusses in his report saying

the FBI knew that al-Mihdhar and Hazmi were on the watch list but because of this “wall”, the

two terrorist were able to live under their real names in American and even held a California

Identity Card. This wall, prevented the communication and cooperation between the domestic

criminal investigators and foreign intelligence. In his article discussing the wall, Stewart Baker,

Former Assistant Secretary for Policy at the Department of Homeland Security, quotes a disturb-

ing instance where the al-Mihdhar and al-Hazmi could have been caught. In August 2001, a fed-

eral intelligence agent in New York was looking for the two, but didn’t have the proper computer

access to track them down so he reached out to the criminal investigators within the FBI where

he was promptly turned down. Taking legal advice, the FBI refused to comingle its criminal

agents with foreign intelligence agents and sent the following email to the New York intelligence

agent: “If al-Midhar is located, the interview must be conducted by an intel agent. A criminal

agent CAN NOT be present at the interview. This case, in its entirety, is based on intel. If at such

time as information is developed indicating the existence of a substantial federal crime, that in-

formation will be passed over the wall according to the proper procedures and turned over for

follow-up criminal investigation.” (Baker 2003). The IC had these guys, but were so worried

about violating the laws of oversight and crossing the wall that was meant to protect Americans,

but instead led to the death of thousands.

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Change

A lot was learned following the attacks on 9/11 and much of the focus was put on this

theoretical “wall” that led to the intelligence failures prior. The USA Patriot Act, although con-

troversial, was brought in to take down the wall. Prior to the act, government agencies had to

prove whether or not the purpose of surveillance was to gather foreign intelligence. In turn, the

Department of Justice (DOJ) turned this into standard practice hence limiting the cooperation be-

tween intelligence investigators and criminal ones. Along came Section 218 of the Patriot Act

which amended the Foreign Intelligence Surveillance Act (FISA) and removed many of the

blockades that prevented the collection of foreign intelligence. More changes came with Section

504 which allowed foreign intelligence officers to “consult with federal law enforcement officers

to coordinate efforts to investigate or protect against sabotage or international terrorism by a for-

eign power…” (OLR 2001). With all of the good things that came out of the Patriot Act, many

also would argue that there major negatives as well. One example of this is how the new avenues

for information collection are being used more for drug operations than counterterror. If this is

the case, we can’t forget that this was the case during the 1990s when the FBI was using most of

its funds for operations like this rather than counterterror. Now, this is not to say that it has

reached that point, but it is something that should be a area of concern. The IC loves to collect

information on not only foreign suspects, but US citizens as well. Take for instance the NSA’s

Utah Data Center in Bluffdale. This is one of the first facilities know in the world that is esti-

mated to be able to store a yottabyte of data, that is one thousand trillion gigabytes (NSA 2017).

Understandably so, American citizens should be concerned with policies like the Patriot Act.

However, they are critical and necessary in order to provide the tools for the IC to keep U.S. na-
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tional security at its highest. The key is to use these “privileges” not only legally, but more im-

portant ethically to prevent the breach of law abiding citizens’ rights and liberties or the over-

sight is sure to come back.

Concluding Thoughts

As Americans, we have the privilege of living in arguably the greatest country in the

world. Being one of the greatest superpowers, opens the country up to a risk of constant terror

attacks as these organizations look to make a point. Prior to 9/11, not a lot of focus was put on

anti-terror and the focus that was applied tended to be poor. Even more dangerous was the high

level of oversight within the IC that prevented extremely important conversations and coopera-

tion between agencies. This oversight was not recent and had been going on since the mid-late

70s. These, combined with other problems, led to a successful attack on the Twin Towers, the

Pentagon, and another air liner crashing into a field. Following the attacks, the American People

demanded more security and thus the Patriot Act was born. The Patriot Act has made leaps and

bounds in taking down the “wall” between interagency communication, but it has its problems.

The most glaring is intrusion on privacy rights which has been a problem in recent years. As

American citizens go through another relatively safe year, it is easy to forget the attacks on 9/11.

We must be aware of our privacy and protect it, but at the same time understand that part of that

must be given up to ensure the IC can do their job effectively. It is a game where no one answer

is right nor wrong. However, what we don’t want is the wall of oversight to continually increase

again and it taking another attack like those on September 11th to take it back down.
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Works Cited

Baker, Stewart. 2003. "Wall Nuts: The Wall Between Intelligence and Law Enforcement is
Killing Us." Slate.

Burch, James. 2007. "A Domesti Intelligence Agency for the United States? A Comparitive
Analyssi of Domestic Intelligence Agencies and Their Implicatinos for Homeland
Security." Homeland Secuirty Affairs.

Cumming, Alfred. 2006. "Statutor Procedures Under Which Congress Is To Be Informed of U.S.
Intelligence Activities, Including Covert Actions." Congressional Research Service.

Hamilton, Thomas H. Kean and Lee. 2004. "The 9/11 Commission Report." National
Commission on Terrorist Attacks Upon the United States.

Knott, Stephen F. 2009. "Congressional Oversight and the Crippling of the CIA." Columbian
College of Arts and Sciences.

Langston, Marc B. 2015. "Rediscovering Congressional Intelligene Oversight: Is Another

Church Committe Possible Without Frank Church?" Texas A&M Law Review.

Michalec, Mitchell J. 2003. "The Classified Infomration Protection Act: Killing the Messenger
or Killing the Message." Clevland State Law Review.

NSA. 2017. "Utah Data Center." Domestic Surveillance Directorate.

OLR. 2001. "Summary of Federal "USA Patriot Act"." OLR Research Report.

Wagenen, James S. Van. 2007. "A Review of Congressional Oversight: Critics and Defenders."
Center for the Study of Intelligence.