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not be shared with criminal agents.This was incorrect. DOJ Inspector General interviews of Jane, July 16, 2003;
Nov. 4, 2002.
82. FBI emails between Steve B. and Jane, re: NSLU Response, Aug. 29, 2001.While the agent expressed his
frustration with the situation to "Jane," he made no effort to press the matter further by discussing his concerns
with either his supervisor or the chief division counsel in New York.
83.Attorney General Ashcroft testified to us that this and similar information-sharing issues arose from Attor-
ney General Reno's 1995 guidelines, discussed in chapter 3, and specifically from a March 1995 memorandum of
then Deputy Attorney General Jamie Gorelick. John Ashcroft testimony, Apr. 13, 2004; DOJ memo, Gorelick to
White, "Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations," Mar. 4,
1995.
We believe the Attorney General's testimony does not fairly or accurately reflect the significance of the 1995
documents and their relevance to the 2001 discussions.Whatever the merits of the March 1995 Gorelick memo-
randum and the subsequent July 1995 Attorney General procedures on information sharing, they did not apply to
the information the analyst decided she could not share with the criminal agent. As discussed earlier, the reason
"Jane" decided she could not share information was because the initial information on Mihdhar had been analyzed
by the NSA.This reason was unrelated to either of the 1995 documents.The Gorelick memorandum applied to
two particular criminal cases, neither of which was involved in the summer 2001 information-sharing discussions.
As the FBI agent observed in his email, Part A of the 1995 procedures applied only to information obtained pur-
suant to a FISA warrant. None of the Mihdhar material was FISA information.There was an exemption for the
Southern District of New York from Part B of the 1995 procedures, so they did not apply. Also, the 1995 proce-
dures did not govern whether information could be shared between intelligence and criminal agents within the
FBI, a separation that the Bureau did not begin making formally until long after the procedures were in place.The
1995 procedures governed only the sharing of information with criminal prosecutors. Even in that situation, the
restriction obliged running the information through the OIPR screen.
What had happened, as we discussed in chapter 3, was a growing battle within the Justice Department during
the 1990s, and between parts of Justice and the FISA Court, over the scope of OIPR's screening function and the
propriety of using FISA-derived information in criminal matters.The FISA Court's concern with FBI sloppiness
in its FISA applications also began to take a toll: the court began designating itself as the gatekeeper for the shar-
ing of intelligence information; the FBI was required to separately designate criminal and intelligence agents; and
the court banned one supervisory FBI agent from appearing before it. By late 2000, these factors had culminated
in a set of complex rules and a widening set of beliefs--a bureaucratic culture--that discouraged FBI agents from
even seeking to share intelligence information. Neither Attorney General acted to resolve the conflicting views
within the Justice Department. Nor did they challenge the strict interpretation of the FISA statute set forth by the
FISA Court and OIPR. Indeed, this strict interpretation remained in effect until the USA PATRIOT Act was passed
after 9/11.
Simply put, there was no legal reason why the information the analyst possessed could not have been shared
with the criminal agent. On August 27,"Jane" requested the NSA's permission to share the information with the
criminal agents, but she intended for the information only to help the criminal agents in their ongoing Cole inves-
tigation. She still did not believe they could be involved in the intelligence investigation even if the NSA permit-
ted the information to be shared. DOJ IG 9/11 Report, July 2, 2004, p. 339. The next day the NSA notified its
representative at FBI headquarters that it had approved the passage of the information to the criminal agents. NSC
email, Carlene C. to Richard K.,"Response to FBI Sanitization Request,"Aug. 28, 2001.Thus,"Jane" had permis-
sion to share the information with the criminal agent prior to their August 29 emails.
84. DOJ Inspector General interview of Robert F., Dec. 18, 2002; FBI electronic communication, Los Ange-
les lead, Sept. 10, 2001.
85. Hazmi and Mihdhar used their true names to obtain California driver's licenses and open New Jersey bank
accounts. Hazmi also had a car registered and had been listed in the San Diego telephone book. Searches of read-
ily available databases could have unearthed the driver's licenses, the car registration, and the telephone listing. A
search on the car registration would have unearthed a license check by the South Hackensack Police Department
that would have led to information placing Hazmi in the area and placing Mihdhar at a local hotel for a week in
early July 2001.The hijackers actively used the New Jersey bank accounts, through ATM, debit card, and cash trans-
actions, until September 10. Among other things, they used their debit cards to pay for hotel rooms; and Hazmi
used his card on August 27 to purchase tickets on Flight 77 for himself and his brother (and fellow hijacker), Salem
al Hazmi.These transactions could have helped locate them if the FBI had obtained the bank records in time.There
would have been no easy means, however, to determine the existence of these accounts, and obtaining bank coop-
eration pre-9/11 might have been problematic.The most likely means of successfully finding the men in the short
time available was one not often used pre-9/11 for suspected terrorists: an FBI BOLO (be on the lookout) com-
bined with a media campaign.This alone might have delayed or disrupted the plot, even if the men had not been
physically located before September 11. But this would have been considered only if the FBI believed that they
were about to carry out an imminent attack. No one at the FBI--or any other agency--believed that at the time.
NOTES TO CHAPTER 8
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