I have filed a new FOIA request for a DoJ memo regarding caveats on sharing NSA intelligence with the FBI. The memo is mentioned in endnote 38 on page 474 of the 9/11 Commission Report, as “DOJ memo, Reno to Freeh, E.O. 12333 authorized surveillance of a suspected al Qaeda operative, Dec. 24, 1999.” It is a source for the following paragraph in the report (pp. 79-80):
There were other legal limitations. Both prosecutors and FBI agents argued that they were barred by court rules from sharing grand jury information, even though the prohibition applied only to that small fraction that had been presented to a grand jury, and even that prohibition had exceptions. But as interpreted by FBI field offices, this prohibition could conceivably apply to much of the information unearthed in an investigation. There were also restrictions, arising from executive order, on the commingling of domestic information with foreign intelligence. Finally the NSA began putting caveats on its Bin Ladin-related reports that required prior approval before sharing their contents with criminal investigators and prosecutors. These developments further blocked the arteries of information sharing. 38
The whole endnote explains something of the caveats’ history:
In December 1999, NSA began placing caveats on all of its Bin Ladin reports that precluded sharing of any of the reports’ contents with criminal prosecutors or FBI agents investigating criminal matters without first obtaining [the Office of Intelligence Policy and Review’s] permission. These caveats were initially created at the direction of Attorney General Reno and applied solely to reports of information gathered from three specific surveillances she had authorized. Because NSA decided it was administratively too difficult to determine whether particular reports derived from the specific surveillances authorized by the attorney general, NSA decided to place this caveat on all its terrorism-related reports. In November 2000, in response to direction from the FISA Court, NSA modified these caveats to require that consent for sharing the information with prosecutors or criminal agents be obtained from NSA’s Customer Needs and Delivery Services group. See DOJ memo, Reno to Freeh, E.O. 12333 authorized surveillance of a suspected al Qaeda operative, Dec. 24, 1999; NSA email,William L. to Brian C.,”dissemination of terrorism reporting,” Dec. 29, 1999; NSA memo, Ann D. to others,”Reporting Guidance,” Dec. 30. 1999; Intelligence report, Nov. 6, 2000. See also discussion of the history of the NSA caveats in the notes to Chapter 8.
I have also applied for the NSA e-mails cited as sources for this, and as I previously wrote:
[Putting caveats on all the reports] was fairly important because the NSA was intercepting calls between Pentagon hijackers Khalid Almihdhar and 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 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?
I am hoping that the memo will provide some insight into how the caveats got put on everything.