I have filed a new FOIA request for four NSA documents. The documents relate to restrictions on the dissemination of NSA information inside the FBI. The restrictions were implemented in December 1999 because of the surveillance of three US persons somehow linked to Osama bin Laden outside the US by the NSA during the Millennium alert. Had the surveillance been inside the US, a warrant would have been obtained under the Foreign Intelligence Surveillance Act (FISA) and the information would have been covered by the 1995 procedures (a.k.a. “the Wall”). These procedures regulated the passage of information between intelligence agents in the FBI and criminal prosecutors (as well as criminal investigators at the FBI).
The DoJ asked the NSA to put a caveat on the reports of this surveillance saying that if an intelligence investigator wanted to share it with a criminal prosecutor (or criminal agent at the FBI), then he had to get permission to pass it over the wall. The NSA then said it couldn’t do this, because it would take too long for it to figure out what information came from where. So it put caveats on all its bin Laden-related reports, making it harder for criminal prosecutors and criminal FBI agents to get access to NSA information about bin Laden and his little helpers.
This was fairly important because the NSA was intercepting calls between Pentagon hijackers Khalid Almihdhar, Nawaf Alhazmi and an al-Qaeda communications hub in Yemen (where Almihdhar lived with his wife and kids when not away on jihad) while the FBI’s Cole bombing team was getting interested in them. Had the Cole investigators had access to the NSA’s reporting, they might have been able to find the hijackers in the US and prevent the attacks.
So did the NSA really need to put caveats on all its bin Laden-related reports and cut off criminal investigators at the FBI?
The four documents I have asked for are mentioned in the endnotes (n38 on p. 474 and n71 on p. 537) to the 9/11 Commission Report and are:
(1) NSA email, William L. to Karen C., “distribution restrictions,” Dec. 10, 1999;
(2) NSA email, William L. to Anthony L., “doj restrictions,” Dec. 20, 1999;
(3) NSA email, William L. to Brian C. ,”dissemination of terrorism reporting,” Dec. 29, 1999.
(4) NSA memo, Ann D. to others, “Reporting Guidance,” Dec. 30, 1999.