9/11 Intel Failure and Janet Reno’s “Wall” Policy (the REAL Reason we failed to prevent 9-11)

A long-ish read, but I’ve linked Coleen Rowley’s memo regarding the FBI/Justice Dept.’s disastrous mishandling of the 20th hijacker, Moussaoui, with the Janet Reno/Clinton Justice Department rules which effectively prevented the US from doing any intelligence work. If blame is to be laid, here is where it deserves to be laid.

http://www.city-journal.org/html/12_4_why_the_fbi.html City Journal, Autumn 2002

The greatest obstacle to domestic security in the war on terror is the worldview of the liberal elites. No sooner had the Twin Towers fallen than the press and an army of advocacy groups were on the hunt for victims—not of Muslim fanaticism but of American bigotry. The liberal commentariat has denounced every commonsensical measure to protect the country the Bush administration has proposed as an eruption of racism or tyranny. But the elite ideology began its corrosive work long before 9/11. For three decades, the liberal establishment, fixated on preventing a highly unlikely repeat of Watergate-era abuses, has encumbered America’s intelligence and national security capacities with increasingly crippling procedural inhibitions, culminating in domestic intelligence restrictions promulgated by the Clinton administration in 1995. As long as the elites continue to act as if America’s biggest enemy is not al-Qaida but the country’s own allegedly repressive and bigoted instincts, the nation’s defense against terror at home will proceed at half throttle.

In August 2001, mere weeks before the greatest mass murder of civilians in U.S. history, the Justice Department squelched two prescient efforts to avert the attacks. In Minneapolis, FBI agents frantically sought permission to search the possessions of one Zacarias Moussaoui, a bumbling, suspicious flight student and a colleague of Islamic fundamentalists. In New York, another FBI agent no less frantically sought clearance to throw his squad into an 11th-hour search for Khalid Almihdar, an al-Qaida operative at large in the country. Justice Department bureaucrats refused both requests on absurd grounds. In the case of the New York agent, for example, they argued that because he was a criminal investigator, not an intelligence investigator, his participation in the manhunt for Almihdar could violate Almihdar’s rights: the al-Qaida agent was wanted not as an ordinary felon but as a terrorist.

The refusals may have had enormous consequences. Had the Minneapolis agents searched Moussaoui’s effects, they would have found leads to two of the 9/11 terrorists and to the Hamburg al-Qaida cell that planned the attack. Had the FBI been able to find Almihdar, it would have apprehended the pilot who crashed American Airlines Flight 77 into the Pentagon. Instead, the plot hurtled on undisturbed to its gruesome climax.

The media have portrayed both episodes as “intelligence failures,” “communication failures,” or the failings of individual managers to “connect the dots.” They were not. Each of these lost opportunities was the foreseeable outcome of senseless terror-fighting restrictions put into place by Attorney General Janet Reno in 1995. Good luck finding any hint of the decisive role of the Clinton Justice Department in press accounts of the Moussaoui and Almihdar affairs, however.

The 1995 Reno guidelines, though the craziest development in intelligence law to date, are not unprecedented. They are the culmination of three decades of liberal grandstanding around intelligence-gathering and use. For most of the twentieth century, Congress, courts, and legal scholars agreed that the president had plenary authority to investigate and disarm threats to the national security. If the FBI suspected a Russian attach&#eacute; in Washington of passing nuclear secrets to the Soviet Union, for example, the Bureau could tap his phone without needing permission from a judge. Judges were not competent to make national security decisions, as an unusually self-effacing court explained in 1980, because they lacked “mastery of diplomacy and military affairs.” The Fourth Amendment’s warrant requirement, legal opinion held, was intended to protect citizens against unreasonable government intrusion in domestic crime investigations, not where the survival of the nation itself was at stake.

In the 1970s, however, the courts and Congress changed their minds, signaling a new adversarial attitude toward executive power, born of 1960s anti-war protests and the Watergate revelations. Congressional hearings on a rash of excessively zealous FBI and CIA domestic investigations sent a clear message: the American government, not its enemies, was the real threat to the American people.

In response, Congress saddled the investigation of foreign threats with complex procedural and judicial restraints for the first time in history. Under the 1978 Foreign Intelligence Surveillance Act (FISA), the president (acting through the FBI) would need a judicial warrant to surveil foreign spies and terrorists and their American collaborators on American soil. The new law defined who could be surveilled and under what circumstances, and it created two new Justice Department bodies to monitor that surveillance: the FISA court, composed of sitting federal judges, which issues surveillance warrants (needing renewal every 90 days); and the gatekeeper Office of Intelligence Policy and Review (OIPR), which screens surveillance requests from FBI field offices and then argues them before the court. Problems surfaced immediately. FBI agents complained that FISA created a Catch-22 situation: in order to meet the statutory requirements for obtaining a surveillance order, you needed to show that your target was a probable spy with anti-American designs—part of the information that the wiretap was intended to obtain. In 1982, a Senate Select Committee reported that FISA had “enmeshed intelligence in procedures wholly inappropriate to it.” They hadn’t seen nuthin’ yet. Per the infallible rule of bureaucratic accumulation, FISA would trigger an explosion of obtuse procedural distinctions that would harm America’s ability to obtain, and act swiftly upon, intelligence information.

One of the most vexing consequences of FISA was the requirement, imposed over time by federal courts and Justice Department officials themselves, that FBI agents continuously evaluate what their “purpose” was in conducting foreign intelligence surveillance. As long as their purpose remained gathering information on suspected spies and terrorists for its own sake—to learn about the extent of a terror cell, say, or to use in covert operations like infiltration—the FISA wiretap could continue. But if the agents concluded that the suspects had committed a crime that the government should prosecute, they had to shut down the FISA wiretap, often prematurely.

In the late 1980s, for example, agents working for Oliver Revell, the FBI’s Associate Deputy Director of Investigations, were monitoring followers of Palestinian terrorist Abu Nidal. A microphone installed in the home of a cell member in St. Louis recorded the parents’ murder of their daughter for becoming too Americanized. In order to prosecute the murder case, the Bureau had to close down the FISA surveillance, before agents had figured out the extent of the Abu Nidal cell. Civil libertarian zealots sparked this nonsensical practice. They argued that because the probable-cause standards for a FISA wiretap were in some cases lower than the requirements for an ordinary criminal wiretap, power-mad prosecutors would gin up specious FISA requests in order to obtain criminal evidence in violation of constitutional standards. Therefore, they said, the Justice Department must draw a bright line between the gathering of foreign intelligence information for intelligence purposes, on the one hand, and for criminal investigation and prosecutorial purposes, on the other. These arguments don’t withstand scrutiny. A FISA wiretap order is essentially a judicial warrant within the meaning of the Fourth Amendment. As Kenneth Bass III, the first director of the OIPR, argued recently before the Senate Judiciary Committee, if the FISA court has issued the surveillance order properly—to obtain information about the agents of a foreign power—the fruits of that order should be available for any national security use, including prosecution. Since acts of terrorism and conspiracy to commit terrorism are themselves crimes, the distinction between a “pure” foreign intelligence wiretap and a “criminal” wiretap, where terrorism is concerned, is nonsensical.

Moreover, contrary to civil libertarian hyperventilating, FISA’s probable-cause standards for surveilling U.S. citizens and permanent resident aliens are almost indistinguishable from traditional criminal wiretap standards. To get a FISA order for a citizen or resident alien suspected of terrorism, the government must establish that he is an agent of a foreign power and is knowingly engaged in international terrorism or spying—in other words, committing a felony, just as for an ordinary criminal wiretap.

But absurdity is no bar to realization in the airless world of civil libertarian absolutism. To prevent the wholly fantastical abuse of FISA power by criminal investigators and prosecutors, a set of inhibitions gradually developed to regulate contacts among FBI agents who were gathering intelligence under a FISA order, FBI agents who may be investigating an already committed terrorist crime, and federal prosecutors.

Those inhibitions reached their peak destructiveness with Attorney General Reno’s “Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations,” issued in July 1995. Immediately dubbed “the Wall,” the 1995 guidelines erected a mind-boggling and ultimately lethal set of impediments to cooperation among all relevant anti-terrorist personnel.

Let’s say—and this is a purely hypothetical example—that David Dell, an agent in the New York FBI office, has a FISA wiretap on Abdul Muhammad, an Islamic fundamentalist Yemeni affiliated with a suspected al-Qaida support cell in Brooklyn. Muhammad is not yet tied to any crime or criminal conspiracy; Dell is surveilling him to determine the extent of al-Qaida strength in New York. In a phone conversation with a fellow Yemeni in Pakistan, Muhammad mentions a dying swan and several Muslim names that Dell does not recognize. Several desks away in the FBI’s downtown office, Sam Simpson is investigating the al-Qaida bombing of the USS Cole in Yemen in 2000. Simpson also worked on the al-Qaida bombings of two U.S. embassies in East Africa in 1998, for which he traveled to Yemen and Kenya to execute warrants.

In a sane system, Dell and Simpson would be able to talk to each other about their cases, for although Dell doesn’t recognize the names and swan references in Abdul’s recent conversation, Simpson came across some of the named men while he was in Kenya and recognizes the code that Abdul is using. The content of the Abdul intercept would help Simpson’s criminal case, and Simpson’s knowledge of the code and identities of the men would help Dell map out the extent and possible goals of the Brooklyn cell. And if Dell interviews Muhammad, in a sane world Simpson would be in on the interview, since he might recognize the significance of some of Muhammad’s replies in a way that Dell could not, and he would then be able to press Muhammad immediately for further information. Simpson might even suggest to Dell that he expand his surveillance to a grocer in Brooklyn, suspected of running an informal credit scheme, or hawallah, that may have sent money to the USS Cole conspirators.

That reasonable (and, to repeat, entirely hypothetical) scenario is not the world of the Wall. Under the Wall, Dell and Simpson may not talk to each other, because Dell is receiving FISA information, and Simpson is working on a criminal case against terrorists. If Dell wants to pass any information to Simpson “over the Wall,” he first has to get permission from FBI headquarters in Washington, which then notifies the OIPR. If permission is granted, which is by no means certain, someone from the OIPR has either to come from Washington to New York or monitor all further communications between Dell and Simpson over the phone. This bureaucratic Rube Goldberg machine radically chills communication, of course; but the deeper problem is that without Simpson’s expertise, Dell may not even recognize the significance of the information he is receiving, and so it may not even occur to him to request a Wall bypass. And as far as Simpson’s offering suggestions to Dell about other targets that would strengthen both their investigations, forget about it. The insanities of the Wall don’t end here. Even if Dell and Simpson are working on the same case, they cannot review raw intelligence intercepts—recorded phone conversations among terrorists, for example—in their entirety, lest Simpson start suggesting better avenues of investigation. Instead, a high-ranking FBI official reviews the intercept and segregates the bits that are appropriate for each to see. But no third-party bureaucrat can possibly have the ground-level knowledge necessary to understand the potential significance to each investigator of the various bits. Nevertheless, in a climax of perverse logic, the more important the terror case, the more stringently policed is the segregation of intelligence intercepts.

Analogous to the Wall between FBI agents working in intelligence and those working on criminal cases was another wall, between the FBI and prosecutors, who also are barred from bringing their accumulated knowledge to bear on all intelligence information. According to Kenneth Bass, who helped draft FISA for the Carter administration, none of these Reno-mandated restrictions reflects the law’s original intent. “The Wall is absolutely ludicrous,” he says. “It is not in the national interest.”

No sooner had the ink dried on the Wall guidelines than America’s anti-terror operations suffered a nervous breakdown. Collaboration broke down almost completely. Says Mary Jo White, former New York U.S. attorney and the most seasoned al-Qaida prosecutor before 9/11: “The walls are the single greatest danger we have blocking our ability to obtain and act on [terrorist] information.” Although the Wall only governs information-sharing, every other FISA-regulated procedure became entangled in red tape after the Reno edict. In 2000, the National Commission on Terrorism reported that the OIPR was imposing impossibly high and statutorily unjustified probable-cause standards. For example, to surveil someone who is neither a citizen nor a permanent resident alien, FISA requires showing that he is a member of a foreign terrorist organization. This is tough enough. But the OIPR started requiring evidence of a crime or specific knowledge of a group’s homicidal intentions before taking the request to the FISA court, and ignored the target’s past activities in determining probable cause. A worried Senate Select Committee on Intelligence reported in 2000 that the OIPR was taking months scrutinizing FISA applications from the field, even though the nation’s safety depended on swift action against terrorist threats.

The practical effect? “We absolutely were unable to check people out,” reports James Kallstrom, former head of the FBI’s New York office, in anger. “How can you have a proactive agency that protects citizens, if, in order to even start an investigation, you have to show that someone is a member of a known terrorist organization, with the wherewithal to carry out an attack and the intention to do so?”

Intelligence agents thought that things could not get much worse. They were wrong. In November 2000, the chief judge of the FISA court, Royce Lamberth, blasted the Bureau and one of its most respected agents for trivial violations of the Wall. The Reno Justice Department, it had turned out, was unable to abide by the Reno Wall. In September 2000, the Clinton administration had notified the FISA court that there had been over 75 breaches of the Wall since its inception. These included such violations as: disseminations of FISA intelligence to terrorist criminal squads in the FBI’s New York field office and to the U.S. attorney’s office in the Southern District of New York without court permission; a claim in a wiretap application that the target was not under criminal investigation for terrorism when in fact he was; and misstatements about the existence of a Wall in one particular FBI office between intelligence and criminal squads, when actually all the agents were on the same squad, and a supervisor overseeing both investigations screened the raw intelligence intercepts.

The reasonable response to such revelations is: Big deal. None of these Wall breaches violated anyone’s rights; they represent the most technical of infractions. But the FISA court went berserk at these supposed insults to its authority. It excoriated the FBI’s lead Hamas investigator, Michael Resnick, for innocuous omissions in his FISA requests and forbade him from ever appearing before it again. It ruled that from then on, every last communication between intelligence agents and law-enforcement officials required its approval. In recoil, the FBI and Justice Department hunkered down completely. FBI headquarters and the OIPR, already a crippling drag on terrorist investigations, became paralyzing weights. Recalls Mary Jo White: “The walls went higher. Nothing could have been worse.” It was as if the Wall had become covered with concertina wire and broken glass, says Kallstrom. Morale plummeted. Agents in the New York bureau put signs on their desks saying: “You may not talk to me.”

Fast-forward to August 2001. Coleen Rowley and other FBI agents in her Minneapolis office were furiously banging their fists against the Wall. A Minneapolis agent had flagged Zacarias Moussaoui as a possible terrorist threat, after a local flight school disclosed that Moussaoui had been acting strangely and had paid cash (nearly $7,000) for simulator training. The Minneapolis office learned from the French Intelligence Service that Moussaoui, now in custody on an INS violation, had connections to radical Islamic groups. Desperate to search Moussaoui’s computer and possessions, the agents sought permission from FBI central headquarters to ask the OIPR to seek a warrant, as per Wall procedures.

They met only resistance. Finally, on August 28, 2001, the FBI’s National Security Law Unit (NSLU)—incredibly, yet another bureaucratic gatekeeper that stymies counterintelligence operations—pronounced that there was insufficient evidence of Moussaoui’s connection specifically to al-Qaida to justify a FISA search. FISA required no such showing: the French Intelligence Services’ linking of Moussaoui to Islamic radical groups in general was sufficient. The NSLU had imported a new, non-mandated roadblock into the act in the mania of risk-aversion that had gripped the agency after the Lamberth outburst. The investigation was over—until September 11, when FBI headquarters decided that maybe it ought to look into that computer after all.

Astoundingly, on August 29, 2001, the day after the National Security Law Unit killed the Moussaoui investigation that would have led to two 9/11 hijackers and to the Hamburg cell that planned the attack, it cited the Wall to rebuff as well a New York agent’s urgent pleas to let him and his subordinates help track down al-Qaida member Khalid Almihdar. According to the Bureau’s paranoid Wall interpretation, because the New York agent was working criminal cases against terrorists, and Almihdar had not been indicted for a crime, the agent and his men could not cooperate with the intell agents searching for Almihdar.

Immediately after the NSLU’s prohibition, the agent sent an angry e-mail to FBI headquarters: “Someday someone will die—and wall or not—the public will not understand why we were not . . . throwing every resource” at terrorists.

On September 11, when his office received the passenger manifests of the four hijacked flights, the agent shouted: “This is the same Almihdar we’ve been talking about for three months.” In a parody of bureaucratic buck-passing, his supervisor responded: “We did everything by the book.”

One cannot understand America’s failure to prevent 9/11 without understanding the history of the Wall. But rather than exposing the truth, America’s opinion elites have failed even to grasp it. In place of relentless investigation and tough-minded analysis, they have adopted a series of mutually contradictory attitudes about intelligence law determined by one goal only: discrediting the current Republican administration.

In May 2002, Minneapolis agent Coleen Rowley released a memo she had written to FBI director Robert Mueller, complaining of the Wall and its role in blocking her office’s attempts to search Zacarias Moussaoui’s computer and possessions. Had a search request been granted, Rowley speculated, some part of the 9/11 plot might have been foiled.

The media and anti-law-enforcement lobby could not have leaped quicker to turn Rowley into a feminist heroine who had the guts to expose the Bush administration’s failures. “Courageous whistleblower” was the—quite accurate—epithet of choice. But against whom did Rowley blow her whistle? Columnist Maureen Dowd, the New York Times’s most knee-jerk feminist and reliable Republican baiter, didn’t need to do any hard reporting to know.

Calling Rowley a “woman of ingenuity and integrity in [a] macho organization,” Dowd contrasts her to the lazy and dull-witted FBI men, who were too “inept, obstructionist, arrogant, antiquated, bloated and turf-conscious—and timid about racial profiling” (no, that last phrase is not a typo) to prevent the 9/11 attacks.

None of these newly minted aggressive law-enforcement types bothered to explicate the all-controlling role of the Clinton Wall in producing the Bureau’s ingrained risk-aversion. Too onerous, no doubt, to read through the mountains of reports necessary to uncover its existence and trace its tragic legacy. Instead, the suddenly gung ho press portrayed the Moussaoui struggle in an ahistorical vacuum, as the product of incomprehensible Republican foot-dragging on national security.

But look what happens next. In August 2002, the news breaks that Attorney General John Ashcroft has submitted a request to the FISA court to rescind the 1995 Wall guidelines. Having just lionized Rowley for her assault on the Wall, the media turn around and demonize Ashcroft for his assault on the Wall. This latest gyration—impelled by a mixture of ignorance and hypocrisy—proceeded as follows:

Last March, the Justice Department asked the FISA court to approve new FISA guidelines that would tear down the Wall, allowing full cooperation between criminal investigators, prosecutors, and intelligence agents in international terrorism cases. The department forcefully argued that such cooperation was mandated by the USA Patriot Act, which Congress passed in the wake of 9/11 to improve the nation’s intelligence capacity. That meant, if the department was right, that both the executive and the legislative branches demanded the rescinding of guidelines promulgated by Janet Reno’s edict.

In May, the FISA court starchily rejected the Justice Department’s proposed new guidelines. This result is not surprising: a leading Clinton administration architect of the Wall, Allen Kornblum, now advises the court on legal matters, and the new guidelines would strip the court of its fearsome power.

Ordinarily, all FISA proceedings are secret. The court broke with tradition, however, and grandiosely released its May 2002 opinion in August. The anti-Ashcroft media machine ramped into high gear. According to opinion makers, the country had just narrowly avoided becoming a police state, deterring at the last minute the megalomaniacal efforts of Attorney General Ashcroft to crush American freedom under his jackboots. Coleen Rowley was out of sight and out of mind. The media howled over the 75 Wall violations, criticized in the Court’s opinion, while only sporadically pointing out, and then only sotto voce, that those violations had all occurred on Clinton’s watch.

In a typical display of liberal self-righteousness, Jeffrey Rosen, legal-affairs editor of The New Republic and professor at George Washington Law School, warned in the Washington Post that the proposed new FISA guidelines would “resurrect the specter of domestic surveillance by the FBI that Congress specifically ruled out in the 1970s.” This is nonsense. FISA’s strict probable-cause standards for U.S. citizens and the act’s exacting procedural requirements for obtaining a surveillance order are, for better or worse, light years from the pre-FISA era, when the executive could conduct warrantless national security surveillance.

As in the Rowley affair, none of the reinvigorated defenders of American liberty bothered actually to explain the Wall and its fatal consequences. This silence guaranteed that the public could have absolutely no understanding of what was at stake in Ashcroft’s proposal, leaving the commentariat free to mischaracterize it at will. But criticizing the Wall revisions without disclosing the specific problems that those revisions aimed to correct is like criticizing America’s recent war on the Taliban without mentioning 9/11.

If 1960s-vintage paranoia about the imminent American police state created the intelligence paralysis leading up to 9/11, another key component of the elite worldview has dragged down every commonsensical effort to improve national security since the attacks. That is the belief that America stands ever ready to oppress people of color. Scarcely a homeland security proposal has emerged from the Bush administration that the opinion elites have not portrayed as an eruption of bigotry or tyranny.

After 9/11, the FBI investigated hundreds of thousands of terrorist tips and ultimately picked up a mere 1,200 men, mostly illegal immigrants, for questioning. The government detained some for weeks or sometimes months, checking out their backgrounds, before deporting or releasing them.

The vast majority of the men were Muslim. And any investigation of Islamic terror cells worth its salt will turn up . . . Muslims! But so charged and distorted has the debate about policing and race become over the last decade that it is now professional suicide to say that, in hunting Islamic terrorists, one is going to look for and find Muslims.

It is a misnomer to call such an inevitable practice “racial profiling,” as the term is commonly used. “Racial profiling,” as the elites imagine it, takes place when police play the odds about crimes that all groups commit, but at different rates. Looking for Muslims for participation in Muslim jihad is not playing the odds; it is following an ironclad tautology—Usama bin Ladin’s very definition of what it means to be a warrior for jihad.

Nevertheless, anti-police and Arab advocates have co-opted the poisonous discourse about racial profiling to tar all rational law-enforcement efforts against Islamic terrorism as an outgrowth of blind prejudice. Thus, the New York Times reported ominously that the post-9/11 detentions showed signs of “profiling.” According to this stupendous illogic, a non-biased investigation of Islamic terrorism would detain proportionate samples of Catholics, Protestants, Jews, and Hindus.

If the FBI and police have to defend themselves against charges of bigotry whenever they investigate or arrest Muslims on suspicion of Islamic terrorism, it’s going to be quite difficult, to say the least, to fight Islamic terrorism. But that is precisely what investigators are up against. When three of the 1,200 detainees were indicted in Detroit this August for operating a terrorist support cell that was infiltrating the Detroit International Airport, local Muslim leaders denounced the indictments as just another instance of racist stereotyping. “There is a feeling in our community of being a victim, which is a painful experience after September 11,” complained Mohamad Elahi, imam of the Dearborn Heights mosque.

Complaints of bias also greeted the arrest of members of another alleged terrorist cell in upstate New York, indicted this September. “This is a crime of terror by the FBI on the people of Lackawanna,” explained a protester outside the courthouse where the six men were being charged.

Cracking down on the crimes that make terrorism possible, above all identity fraud, also risks charges of discrimination. This August, the government charged 14 Detroit-area men, including six physicians, with providing phony documents to immigrants. “Is the government only targeting Arab-American doctors?” asked Imad Hamad of the American-Arab Anti-Discrimination Committee. “We truly wonder about the timing of it.” In the strange logic of these advocates, the defendants, arrested and indicted for serious crimes, were more sinned against than sinning.

This inflamed sense of grievance now leads Muslim spokesmen to equate minor inconveniences—such as being questioned at an airport—with major rights abuses. Sayed Moustafa al-Qazwini, imam of the Irvine, California, chapter of the Islamic Educational Center of Orange County, exemplifies the disjuncture between the actual Muslim experience in America after 9/11 and the rhetoric used to describe it. A courteous, round-faced man, with a short dark beard and rimless glasses, who casually drops the names of Condoleezza Rice and George W. Bush, al-Qazwini has flown 20 times since September 2001, both domestically and abroad, and he has been searched only once. Yet of that one time, he asks heatedly: “Why did they turn me into an animal and deal with me in a disgraceful manner, just because my passport was Iraqi?” The “disgrace” consisted in being interrogated for half an hour about his mosque and whether the congregation was Sunni or Shia.

Al-Qazwini is not willing to cut security personnel any slack. “They should have common sense that not all Iraqis are terrorists,” he asserts. But in 95 percent of his flights, they assumed just that. To expect to fly search-free 100 percent of the time is ludicrous, given the enemy status of Iraq. Nor were the questions asked of him inappropriate, given the role of imams in breeding jihad.

If occasional interrogation before flying is now the equivalent of being “turned into an animal,” it’s hard to see how America can go forward with any rational security measures. But such hyperbole is now standard. A cartoon in Islamic Discourse magazine, a publication of the Islamic Educational Center of Orange County, shows two doors at an airline gate. The word “White” has been crossed out and “American” written in its stead on one; the word “Colored” has been replaced with “Arab-American” on the other. By no stretch of the imagination are post-9/11 security measures remotely close to Jim Crow laws, but Arab advocacy groups have masterfully usurped the mantle of black victimhood to put anti-terror efforts on the constant defensive.

It would be refreshing (if unprecedented in contemporary American culture) if Arab-Americans and other Muslims stepped outside their sense of grievance to grasp the larger interests of the country. But al-Qazwini, for one, continues to see the security issue only in personal terms: it’s okay if other people get searched for no reason at all, but he or his family shouldn’t be. He was happy that a blond woman was searched on his last flight. “I now know that the security agents are open-minded,” he says. But he is incensed that his own parents were searched before a flight to London. “This has nothing to do with security,” he fumes, “but it’s because some Mexican guy has been brainwashed by the media telling him: ‘When you find these people, search them, regardless of age or stature.’ Let’s have some standards!” Most Americans would agree.

One can’t blame al-Qazwini for his views. When our national leaders are unwilling even to name the enemy correctly, it’s no wonder that the advocates and the media have stepped into the breach with victimology. In speech after speech, President Bush refuses to identify our nemesis as “Islamic terrorism,” preferring instead the vaguer “terrorism,” a generality that won’t offend any religious or ethnic group.

Not giving offense now seems equal in importance to protecting the nation. Following the president’s lead, Transportation Secretary Norman Mineta, in his now-infamous 60 Minutes interview, said he would “hope” that a 70-year-old white woman from Vero Beach, Florida, and a young Muslim male from Jersey City would receive the same level of scrutiny when boarding an airplane. And, alas, they do.

Such security procedures have a strong symbolic purpose: to show that our hearts are pure and that we have never ever drawn any inferences from the fact that every anti-American terrorist since 1987—with the exception of Timothy McVeigh—has been Islamic.

President Bush could have put an end to such charades had he explained to the nation that, because Usama bin Ladin has called on all Muslims, not all Protestants or Jews, to kill Americans wherever they find them, we would have to give a little more scrutiny to people from certain parts of the world who seek to enter the country or assume high-security positions. These are minor inconveniences compared with the catastrophe that we are trying to avert, he could have said, and we ask for the patience and understanding of people subjected to greater inquiries about their purposes. Of course such measures do not imply that we think that all Middle Easterners, North Africans, or Muslims are terrorists, but until someone comes up with a method of identifying to a man each individual terrorist, a method that is neither over- nor under-inclusive, we will have to use cruder screening mechanisms.

In the absence of such a public explanation, the elites and the advocates continue to turn every reasonable security measure into another cause for grievance. Last fall, the Justice Department sought to interview about 5,000 young men from Middle Eastern and other terror-breeding countries who had entered the U.S. on short-term visas over the last two years, as had all the 9/11 hijackers. The interviews were voluntary, innocuous, and could be refused without consequence. Every civil liberties and Arab advocacy group rose up against the plan, portraying it, in the words of Islamic Discourse magazine, as “another wave of threats to our civil liberties.” The message: Every Muslim in America should feel offended. Why not an alternative message: This is not a problem. If you can help out the government in any way to prevent further attacks, please do so.

The fear of giving offense also hampers needed changes in immigration policy. American and foreign intelligence still cannot identify Islamic terrorists very well, or understand fully how they communicate with one another, activate sleeper cells, or channel funding for operations. If we were serious about preventing more terrorists coming to our soil, we would impose a moratorium on immigration and visitor visas from the countries most likely to export terrorism, until our intelligence services were capable of detecting our enemies. We would suspend the student-visa program until we had a foolproof system in place for tracking foreign students.

Instead, we have taken half-measures that do not provide any assurance of safety. But those half-measures have generated just as much outcry as real measures would have. Both the New York Times and the Washington Post have bemoaned the fact that the State Department is taking longer than usual to process student visas from Middle Eastern and other terror-sponsoring countries. The resulting delays, warns the Times, are “generating widespread hostility” among Muslim men. Perhaps the Times has forgotten a far more lethal “hostility” among Muslim men that killed 3,000 people on 9/11.

The Justice Department has proposed putting the names of visa violators who have absconded following a deportation order into national criminal databases, so that if a police officer comes across an absconder in the course of a routine stop, he can arrest him. Yet even this baby step toward border enforcement—in a reasonable world, all visa violators, not just deportation evaders, would be listed—has produced the usual denunciations. National Public Radio even broadcast a comparison of the absconder program to the detention of Japanese-Americans during World War II.

But what do you know—the opinion elites are just as hypocritically opportunistic when it comes to charges of profiling as they are regarding intelligence issues. Having worked themselves into a lather after 9/11 over the possibility that the Justice Department might use Middle Eastern or Muslim heritage as a factor in anti-terrorism investigations, they turned on a dime when doing so offered them a chance to beat up on the Bush Justice Department.

In May 2001, Phoenix FBI agent Kenneth Williams wrote his supervisors that al-Qaida members might be training in U.S. flight schools. He had been observing several Islamists enrolled in an Arizona aviation academy, one of whom had told him that he considered the U.S. government and military legitimate targets of Islam. Another man who attracted Williams’s suspicion, it was later discovered, had associated with 9/11 hijacker Hani Hanjour and may have screened other al-Qaida pilots. In his memo, Agent Williams requested that the Bureau check out other Middle Eastern flight students for al-Qaida ties.

It is not hard to guess why the FBI ignored Williams’s request. Had word leaked out that the Bureau was investigating Muslim aviation trainees, the nation’s newspapers, networks, and advocates would have burst forth in one mighty roar of “Racism!” For the previous five years, the only law-enforcement topic that had consistently interested the press was the charge that the police were bigots.

So when the Williams memo surfaced in May 2002, the media, the victims’ lobby, and the legal professoriat berated Williams for his prejudices, right? Wrong: they lionized him for his prescience. Nadine Strossen, president of the ACLU, the organization that has done more than any other to make “racial profiling” the equivalent of “genocide,” wins the prize for the most blatant hypocrisy. “It surprises me that the FBI was worried about racial profiling criticism,” she cooed on National Public Radio. “The Phoenix flight-school memo was good policing.” The ACLU should have fired her on the spot for betraying everything it has argued for the last five years.

The New York Times nearly equals Strossen in shameless self-contradiction. It editorialized that the FBI’s “fumbling” of the Arizona terrorist warning constituted an “egregious failure.” Never mind that before May 2001, and continuing to this day, the Times has been the nation’s most powerful voice berating the police for what it charged was their use of race and ethnicity in investigatory stops.

Such little moments of clarity, even if motivated by bad faith, have been rare since 9/11. The time is past for preening fantasies aimed at boosting the elites’ self-image as a bulwark against imagined American injustice. Yet the guardians of politically correct opinion have held on to their fondest fictions, despite their destructive effects on national security.

The power of the elites’ nonsensical ideology should never be underestimated. In the field of counterterrorism, the elites crippled intelligence-gathering not only by the legal restrictions that they sponsored. They accomplished something subtler but equally dangerous: they broke the agencies’ zeal to protect the country. The fuel for people who work in national security is not money but morale, observes James Kallstrom, former head of the FBI’s New York office.

“When you destroy that, people give up,” he says. “The notion that people who come to work every day to protect the country are raked over the coals because they shared terrorist information with criminal investigators is mind-boggling,” Kallstrom observes wearily. “We’ve been frozen in our tracks for decades by extremely vocal people who represent less than 0.01 percent of the country, but who have created totally risk-averse bureaucracies in the FBI, CIA, and the military.”

Here’s a modest proposal that would improve our domestic security by 100 percent: if the elite war on the war on terror continues, we should all just stop listening.

I feel at this point that I have to put my concerns in writing concerning the important topic of the FBI's response to evidence of terrorist activity in the United States prior to September 11th. The issues are fundamentally ones of INTEGRITY and go to the heart of the FBI's law enforcement mission and mandate. Moreover, at this critical juncture in fashioning future policy to promote the most effective handling of ongoing and future threats to United States citizens' security, it is of absolute importance that an unbiased, completely accurate picture emerge of the FBI's current investigative and management strengths and failures.

To get to the point, I have deep concerns that a delicate and subtle shading/skewing of facts by you and others at the highest levels of FBI management has occurred and is occurring. The term "cover up" would be too strong a characterization which is why I am attempting to carefully (and perhaps over laboriously) choose my words here. I base my concerns on my relatively small, peripheral but unique role in the Moussaoui investigation in the Minneapolis Division prior to, during and after September 11th and my analysis of the comments I have heard both inside the FBI (originating, I believe, from you and other high levels of management) as well as your Congressional testimony and public comments.

I feel that certain facts, including the following, have, up to now, been omitted, downplayed, glossed over and/or mis-characterized in an effort to avoid or minimize personal and/or institutional embarrassment on the part of the FBI and/or perhaps even for improper political reasons:

1) The Minneapolis agents who responded to the call about Moussaoui's flight training identified him as a terrorist threat from a very early point. The decision to take him into custody on August 15, 2001, on the INS "overstay" charge was a deliberate one to counter that threat and was based on the agents' reasonable suspicions. While it can be said that Moussaoui's overstay status was fortuitous, because it allowed for him to be taken into immediate custody and prevented him receiving any more flight training, it was certainly not something the INS coincidentally undertook of their own volition. I base this on the conversation I had when the agents called me at home late on the evening Moussaoui was taken into custody to confer and ask for legal advice about their next course of action. The INS agent was assigned to the FBI's Joint Terrorism Task Force and was therefore working in tandem with FBI agents.

2) As the Minneapolis agents' reasonable suspicions quickly ripened into probable cause, which, at the latest, occurred within days of Moussaoui's arrest when the French Intelligence Service confirmed his affiliations with radical fundamentalist Islamic groups and activities connected to Osama Bin Laden, they became desperate to search the computer lap top that had been taken from Moussaoui as well as conduct a more thorough search of his personal effects. The agents in particular believed that Moussaoui signaled he had something to hide in the way he refused to allow them to search his computer.

3) The Minneapolis agents' initial thought was to obtain a criminal search warrant, but in order to do so, they needed to get FBI Headquarters' (FBIHQ's) approval in order to ask for DOJ OIPR's approval to contact the United States Attorney's Office in Minnesota. Prior to and even after receipt of information provided by the French, FBIHQ personnel disputed with the Minneapolis agents the existence of probable cause to believe that a criminal violation had occurred/was occurring. As such, FBIHQ personnel refused to contact OIPR to attempt to get the authority. While reasonable minds may differ as to whether probable cause existed prior to receipt of the French intelligence information, it was certainly established after that point and became even greater with successive, more detailed information from the French and other intelligence sources. The two possible criminal violations initially identified by Minneapolis Agents were violations of Title 18 United States Code Section 2332b (Acts of terrorism transcending national boundaries, which, notably, includes "creating a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States") and Section 32 (Destruction of aircraft or aircraft facilities). It is important to note that the actual search warrant obtained on September 11th was based on probable cause of a violation of Section 32.1 Notably also, the actual search warrant obtained on September 11th did not include the French intelligence information. Therefore, the only main difference between the information being submitted to FBIHQ from an early date which HQ personnel continued to deem insufficient and the actual criminal search warrant which a federal district judge signed and approved on September 11th, was the fact that, by the time the actual warrant was obtained, suspected terrorists were known to have highjacked planes which they then deliberately crashed into the World Trade Center and the Pentagon. To say then, as has been iterated numerous times, that probable cause did not exist until after the disasterous event occurred, is really to acknowledge that the missing piece of probable cause was only the FBI's (FBIHQ's) failure to appreciate that such an event could occur. The probable cause did not otherwise improve or change. When we went to the United States Attorney's Office that morning of September 11th, in the first hour after the attack, we used a disk containing the same information that had already been provided to FBIHQ; then we quickly added Paragraph 19 which was the little we knew from news reports of the actual attacks that morning. The problem with chalking this all up to the "20-20 hindsight is perfect" problem, (which I, as all attorneys who have been involved in deadly force training or the defense of various lawsuits are fully appreciative of), is that this is not a case of everyone in the FBI failing to appreciate the potential consequences. It is obvious, from my firsthand knowledge of the events and the detailed documentation that exists, that the agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and his possible co-conspirators even prior to September 11th. Even without knowledge of the Phoenix communication (and any number of other additional intelligence communications that FBIHQ personnel were privy to in their central coordination roles), the Minneapolis agents appreciated the risk. So I think it's very hard for the FBI to offer the "20-20 hindsight" justification for its failure to act! Also intertwined with my reluctance in this case to accept the "20-20 hindsight" rationale is first-hand knowledge that I have of statements made on September 11th, after the first attacks on the World Trade Center had already occurred, made telephonically by the FBI Supervisory Special Agent (SSA) who was the one most involved in the Moussaoui matter and who, up to that point, seemed to have been consistently, almost deliberately thwarting the Minneapolis FBI agents' efforts (see number 5). Even after the attacks had begun, the SSA in question was still attempting to block the search of Moussaoui's computer, characterizing the World Trade Center attacks as a mere coincidence with Misseapolis' prior suspicions about Moussaoui.2

4) In one of my peripheral roles on the Moussaoui matter, I answered an e-mail message on August 22, 2001, from an attorney at the National Security Law Unit (NSLU). Of course, with (ever important!) 20-20 hindsight, I now wish I had taken more time and care to compose my response. When asked by NSLU for my "assessment of (our) chances of getting a criminal warrant to search Moussaoui's computer", I answered, "Although I think there's a decent chance of being able to get a judge to sign a criminal search warrant, our USAO seems to have an even higher standard much of the time, so rather than risk it, I advised that they should try the other route." Leaked news accounts which said the Minneapolis Legal Counsel (referring to me) concurred with the FBIHQ that probable cause was lacking to search Moussaoui's computer are in error. (or possibly the leak was deliberately skewed in this fashion?) What I meant by this pithy e-mail response, was that although I thought probable cause existed ("probable cause" meaning that the proposition has to be more likely than not, or if quantified, a 51% likelihood), I thought our United States Attorney's Office, (for a lot of reasons including just to play it safe) in regularly requiring much more than probable cause before approving affidavits, (maybe, if quantified, 75%-80% probability and sometimes even higher), and depending on the actual AUSA who would be assigned, might turn us down. As a tactical choice, I therefore thought it would be better to pursue the "other route" (the FISA search warrant) first, the reason being that there is a common perception, which for lack of a better term, I'll call the "smell test" which has arisen that if the FBI can't do something through straight-up criminal methods, it will then resort to using less-demanding intelligence methods. Of course this isn't true, but I think the perception still exists. So, by this line of reasoning, I was afraid that if we first attempted to go criminal and failed to convince an AUSA, we wouldn't pass the "smell test" in subsequently seeking a FISA. I thought our best chances therefore lay in first seeking the FISA. Both of the factors that influenced my thinking are areas arguably in need of improvement: requiring an excessively high standard of probable cause in terrorism cases and getting rid of the "smell test" perception. It could even be argued that FBI agents, especially in terrorism cases where time is of the essence, should be allowed to go directly to federal judges to have their probable cause reviewed for arrests or searches without having to gain the USAO's approval.4

5) The fact is that key FBIHQ personnel whose job it was to assist and coordinate with field division agents on terrorism investigations and the obtaining and use of FISA searches (and who theoretically were privy to many more sources of intelligence information than field division agents), continued to, almost inexplicably,5 throw up roadblocks and undermine Minneapolis' by-now desperate efforts to obtain a FISA search warrant, long after the French intelligence service provided its information and probable cause became clear. HQ personnel brought up almost ridiculous questions in their apparent efforts to undermine the probable cause.6 In all of their conversations and correspondence, HQ personnel never disclosed to the Minneapolis agents that the Phoenix Division had, only approximately three weeks earlier, warned of Al Qaeda operatives in flight schools seeking flight training for terrorist purposes! Nor did FBIHQ personnel do much to disseminate the information about Moussaoui to other appropriate intelligence/law enforcement authorities. When, in a desperate 11th hour measure to bypass the FBIHQ roadblock, the Minneapolis Division undertook to directly notify the CIA's Counter Terrorist Center (CTC), FBIHQ personnel actually chastised the Minneapolis agents for making the direct notification without their approval!

6 ) Eventually on August 28, 2001, after a series of e-mails between Minneapolis and FBIHQ, which suggest that the FBIHQ SSA deliberately further undercut the FISA effort by not adding the further intelligence information which he had promised to add that supported Moussaoui's foreign power connection and making several changes in the wording of the information that had been provided by the Minneapolis Agent, the Minneapolis agents were notified that the NSLU Unit Chief did not think there was sufficient evidence of Moussaoui's connection to a foreign power. Minneapolis personnel are, to this date, unaware of the specifics of the verbal presentations by the FBIHQ SSA to NSLU or whether anyone in NSLU ever was afforded the opportunity to actually read for him/herself all of the information on Moussaoui that had been gathered by the Minneapolis Division and the French intelligence service. Obviously verbal presentations are far more susceptible to mis-characterization and error. The e-mail communications between Minneapolis and FBIHQ, however, speak for themselves and there are far better witnesses than me who can provide their first hand knowledge of these events characterized in one Minneapolis agent's e-mail as FBIHQ is "setting this up for failure." My only comment is that the process of allowing the FBI supervisors to make changes in affidavits is itself fundamentally wrong, just as, in the follow-up to FBI Laboratory Whistleblower Frederic Whitehurst's allegations, this process was revealed to be wrong in the context of writing up laboratory results. With the Whitehurst allegations, this process of allowing supervisors to re-write portions of laboratory reports, was found to provide opportunities for over-zealous supervisors to skew the results in favor of the prosecution. In the Moussaoui case, it was the opposite -- the process allowed the Headquarters Supervisor to downplay the significance of the information thus far collected in order to get out of the work of having to see the FISA application through or possibly to avoid taking what he may have perceived as an unnecessary career risk.7 I understand that the failures of the FBIHQ personnel involved in the Moussaoui matter are also being officially excused because they were too busy with other investigations, the Cole bombing and other important terrorism matters, but the Supervisor's taking of the time to read each word of the information submitted by Minneapolis and then substitute his own choice of wording belies to some extent the notion that he was too busy. As an FBI division legal advisor for 12 years (and an FBI agent for over 21 years), I can state that an affidavit is better and will tend to be more accurate when the affiant has first hand information of all the information he/she must attest to. Of necessity, agents must continually rely upon information from confidential sources, third parties and other law enforcement officers in drafting affidavits, but the repeating of information from others greatly adds to the opportunities for factual discrepancies and errors to arise. To the extent that we can minimize the opportunity for this type of error to arise by simply not allowing unnecessary re-writes by supervisory staff, it ought to be done. (I'm not talking, of course, about mere grammatical corrections, but changes of some substance as apparently occurred with the Moussaoui information which had to be, for lack of a better term, "filtered" through FBIHQ before any action, whether to seek a criminal or a FISA warrant, could be taken.) Even after September 11th, the fear was great on the part of Minneapolis Division personnel that the same FBIHQ personnel would continue their "filtering" with respect to the Moussaoui investigation, and now with the added incentive of preventing their prior mistakes from coming to light. For this reason, for weeks, Minneapolis prefaced all outgoing communications (ECs) in the PENTTBOM investigation with a summary of the information about Moussaoui. We just wanted to make sure the information got to the proper prosecutive authorities and was not further suppressed! This fear was probably irrational but was nonetheless understandable in light of the Minneapolis agents' prior experiences and frustrations involving FBIHQ. (The redundant preface information regarding Moussaoui on otherwise unrelative PENTTBOM communications has ended up adding to criminal discovery issues, but this is the reason it was done.)

7) Although the last thing the FBI or the country needs now is a witch hunt, I do find it odd that (to my knowledge) no inquiry whatsoever was launched of the relevant FBIHQ personnel's actions a long time ago. Despite FBI leaders' full knowledge of all the items mentioned herein (and probably more that I'm unaware of), the SSA, his unit chief, and other involved HQ personnel were allowed to stay in their positions and, what's worse, occupy critical positions in the FBI's SIOC Command Center post September 11th. (The SSA in question actually received a promotion some months afterward!) It's true we all make mistakes and I'm not suggesting that HQ personnel in question ought to be burned at the stake, but, we all need to be held accountable for serious mistakes. I'm relatively certain that if it appeared that a lowly field office agent had committed such errors of judgment, the FBI's OPR would have been notified to investigate and the agent would have, at the least, been quickly reassigned. I'm afraid the FBI's failure to submit this matter to OPR (and to the IOB) gives further impetus to the notion (raised previously by many in the FBI) of a double standard which results in those of lower rank being investigated more aggressively and dealt with more harshly for misconduct while the misconduct of those at the top is often overlooked or results in minor disciplinary action. From all appearances, this double standard may also apply between those at FBIHQ and those in the field.

8) The last official "fact" that I take issue with is not really a fact, but an opinion, and a completely unsupported opinion at that. In the day or two following September 11th, you, Director Mueller, made the statement to the effect that if the FBI had only had any advance warning of the attacks, we (meaning the FBI), may have been able to take some action to prevent the tragedy. Fearing that this statement could easily come back to haunt the FBI upon revelation of the information that had been developed pre-September 11th about Moussaoui, I and others in the Minneapolis Office, immediately sought to reach your office through an assortment of higher level FBIHQ contacts, in order to quickly make you aware of the background of the Moussaoui investigation and forewarn you so that your public statements could be accordingly modified. When such statements from you and other FBI officials continued, we thought that somehow you had not received the message and we made further efforts. Finally when similar comments were made weeks later, in Assistant Director Caruso's congressional testimony in response to the first public leaks about Moussaoui we faced the sad realization that the remarks indicated someone, possibly with your approval, had decided to circle the wagons at FBIHQ in an apparent effort to protect the FBI from embarrassment and the relevant FBI officials from scrutiny. Everything I have seen and heard about the FBI's official stance and the FBI's internal preparations in anticipation of further congressional inquiry, had, unfortunately, confirmed my worst suspicions in this regard. After the details began to emerge concerning the pre-September 11th investigation of Moussaoui, and subsequently with the recent release of the information about the Phoenix EC, your statement has changed. The official statement is now to the effect that even if the FBI had followed up on the Phoenix lead to conduct checks of flight schools and the Minneapolis request to search Moussaoui's personal effects and laptop, nothing would have changed and such actions certainly could not have prevented the terrorist attacks and resulting loss of life. With all due respect, this statement is as bad as the first! It is also quite at odds with the earlier statement (which I'm surprised has not already been pointed out by those in the media!) I don't know how you or anyone at FBI Headquarters, no matter how much genius or prescience you may possess, could so blithely make this affirmation without anything to back the opinion up than your stature as FBI Director. The truth is, as with most predictions into the future, no one will ever know what impact, if any, the FBI's following up on those requests, would have had. Although I agree that it's very doubtful that the full scope of the tragedy could have been prevented, it's at least possible we could have gotten lucky and uncovered one or two more of the terrorists in flight training prior to September 11th, just as Moussaoui was discovered, after making contact with his flight instructors. It is certainly not beyond the realm of imagination to hypothesize that Moussaoui's fortuitous arrest alone, even if he merely was the 20th hijacker, allowed the hero passengers of Flight 93 to overcome their terrorist hijackers and thus spare more lives on the ground. And even greater casualties, possibly of our Nation's highest government officials, may have been prevented if Al Qaeda intended for Moussaoui to pilot an entirely different aircraft. There is, therefore at least some chance that discovery of other terrorist pilots prior to September 11th may have limited the September 11th attacks and resulting loss of life. Although your conclusion otherwise has to be very reassuring for some in the FBI to hear being repeated so often (as if saying it's so may make it so), I think your statements demonstrate a rush to judgment to protect the FBI at all costs. I think the only fair response to this type of question would be that no one can pretend to know one way or another.

Mr. Director, I hope my observations can be taken in a constructive vein. They are from the heart and intended to be completely apolitical. Hopefully, with our nation's security on the line, you and our nation's other elected and appointed officials can rise above the petty politics that often plague other discussions and do the right thing. You do have some good ideas for change in the FBI but I think you have also not been completely honest about some of the true reasons for the FBI's pre-September 11th failures. Until we come clean and deal with the root causes, the Department of Justice will continue to experience problems fighting terrorism and fighting crime in general.

I have used the "we" term repeatedly herin to indicate facts about others in the Minneapolis Office at critical times, but none of the opinions expressed herin can be attributed to anyone but myself. I know that those who know me would probably describe me as, by nature, overly opinionated and sometimes not as discreet as I should be. Certainly some of the above remarks may be interpreted as falling into that category, but I really do not intend anything as a personal criticism of you or anyone else in the FBI, to include the FBIHQ personnel who I believe were remiss and mishandled their duties with regard to the Moussaoui investigation. Truly my only purpose is to try to provide the facts within my purview so that an accurate assessment can be obtained and we can learn from our mistakes. I have pointed out a few of the things that I think should be looked at but there are many, many more.8 An honest acknowledgment of the FBI's mistakes in this and other cases should not lead to increasing the Headquarters bureaucracy and approval levels of investigative actions as the answer. Most often, field office agents and field office management on the scene will be better suited to the timely and effective solution of crimes and, in some lucky instances, to the effective prevention of crimes, including terrorism incidents. The relatively quick solving of the recent mailbox pipe-bombing incidents which resulted in no serious injuries to anyone are a good example of effective field office work (actually several field offices working together) and there are hundreds of other examples. Although FBIHQ personnel have, no doubt, been of immeasurable assistance to the field over the years, I'm hard pressed to think of any case which has been solved by FBIHQ personnel and I can name several that have been screwed up! Decision-making is inherently more effective and timely when decentralized instead of concentrated.

Your plans for an FBI Headquarters' "Super Squad" simply fly in the face of an honest appraisal of the FBI's pre-September 11th failures. The Phoenix, Minneapolis and Paris Legal Attache Offices reacted remarkably exhibiting keen perception and prioritization skills regarding the terrorist threats they uncovered or were made aware of pre-September 11th. The same cannot be said for the FBI Headquarters' bureaucracy and you want to expand that?!

Should we put the counterterrorism unit chief and SSA who previously handled the Moussaoui matter in charge of the new "Super Squad"?! You are also apparently disregarding the fact the Joint Terrorism Task Forces (JTTFs), operating out of field divisions for years, (the first and chief one being New York City's JTTF), have successfully handled numerous terrorism investigations and, in some instances, successfully prevented acts of terrorism. There's no denying the need for more and better intelligence and intelligence management, but you should think carefully about how much gate keeping power should be entrusted with any HQ entity. If we are indeed in a "war", shouldn't the Generals be on the battlefield instead of sitting in a spot removed from the action while still attempting to call the shots?

I have been an FBI agent for over 21 years and, for what it's worth, have never received any form of disciplinary action throughout my career. From the 5th grade, when I first wrote the FBI and received the "100 Facts about the FBI" pamphlet, this job has been my dream. I feel that my career in the FBI has been somewhat exemplary, having entered on duty at a time when there was only a small percentage of female Special Agents. I have also been lucky to have had four children during my time in the FBI and am the sole breadwinner of a family of six. Due to the frankness with which I have expressed myself and my deep feelings on these issues, (which is only because I feel I have a somewhat unique, inside perspective of the Moussaoui matter, the gravity of the events of September 11th and the current seriousness of the FBI's and United States' ongoing efforts in the "war against terrorism"), I hope my continued employment with the FBI is not somehow placed in jeopardy. I have never written to an FBI Director in my life before on any topic. Although I would hope it is not necessary, I would therefore wish to take advantage of the federal "Whistleblower Protection" provisions by so characterizing my remarks.

1) And both of the violations originally cited in vain by the Minneapolis agents disputing the issue with FBIHQ personnel are among those on which Moussaoui is currently indicted.

2) Just minutes after I saw the first news of the World Trade Center attack(s), I was standing outside the office of Minneapolis ASAC M. Chris Briesse waiting for him to finish with a phone call, when he received a call on another line from this SSA. Since I figured I knew what the call may be about and wanted to ask, in light of the unfolding events and the apparent urgency of the situation, if we should now immediately attempt to obtain a criminal search warrant for Moussaoui's laptop and personal property, I took the call. I said something to the effect that, in light of what had just happened in New York, it would have to be the "hugest coincidence" at this point if Moussaoui was not involved with the terrorists. The SSA stated something to the effect that I had used the right term, "coincidence" and that this was probably all just a coincidence and we were to do nothing in Minneapolis until we got their (HQ's) permission because we might "screw up" something else going on elsewhere in the country.

4) Certainly Rule 41 of the Federal Rules of Criminal Procedure which begins, "Upon the request of a federal law enforcement officer or an attorney for the government" does not contain this requirement. Although the practice that has evolved is that FBI agents must secure prior approval for any search or arrest from the United States Attorneys Office, the Federal Rule governing Search and Seizure clearly envisions law enforcement officers applying, on their own, for search warrants.

5) During the early aftermath of September 11th, when I happened to be recounting the pre-September 11th events concerning the Moussaoui investigation to other FBI personnel in other divisions or in FBIHQ, almost everyone's first question was "Why?--Why would an FBI agent(s) deliberately sabotage a case? (I know I shouldn't be flippant about this, but jokes were actually made that the key FBIHQ personnel had to be spies or moles, like Robert Hansen, who were actually working for Osama Bin Laden to have so undercut Minneapolis' effort.) Our best real guess, however, is that, in most cases avoidance of all "unnecessary" actions/decisions by FBIHQ managers (and maybe to some extent field managers as well) has, in recent years, been seen as the safest FBI career course. Numerous high-ranking FBI officials who have made decisions or have taken actions which, in hindsight, turned out to be mistaken or just turned out badly (i.e. Ruby Ridge, Waco, etc.) have seen their careers plummet and end. This has in turn resulted in a climate of fear which has chilled aggressive FBI law enforcement action/decisions. In a large hierarchal bureaucracy such as the FBI, with the requirement for numerous superiors approvals/oversight, the premium on career-enhancement, and interjecting a chilling factor brought on by recent extreme public and congressional criticism/oversight, and I think you will see at least the makings of the most likely explanation. Another factor not to be underestimated probably explains the SSA and other FBIHQ personnel's reluctance to act. And so far, I have heard no FBI official even allude to this problem-- which is that FBI Headquarters is staffed with a number of short term careerists* who, like the SSA in question, must only serve an 18 month-just-time-to-get-your-ticket-punched minimum. It's no wonder why very little expertise can be acquired by a Headquarters unit! (And no wonder why FBIHQ is mired in mediocrity! -- that maybe a little strong, but it would definitely be fair to say that there is unevenness in competency among Headquarters personnel.) (It's also a well known fact that the FBI Agents Association has complained for years about the disincentives facing those entering the FBI management career path which results in very few of the FBI's best and brightest choosing to go into management. Instead the ranks of FBI management are filled with many who were failures as street agents. Along these lines, let me ask the question, why has it suddenly become necessary for the Director to "handpick" the FBI management?) It's quite conceivable that many of the HQ personnel who so vigorously disputed Moussaoui's ability/predisposition to fly a plane into a building were simply unaware of all the various incidents and reports worldwide of Al Qaeda terrorists attempting or plotting to do so.

*By the way, just in the event you did not know, let me furnish you the Webster's definition of "careerism - - the policy or practice of advancing one's career often at the cost of one's integrity". Maybe that sums up the whole problem!

6) For example, at one point, the Supervisory Special Agent at FBIHQ posited that the French information could be worthless because it only identified Zacarias Moussaoui by name and he, the SSA, didn't know how many people by that name existed in France. A Minneapolis agent attempted to surmount that problem by quickly phoning the FBI's legal Attache (Legat) in Paris, France, so that a check could be made of the French telephone directories. Although the Legat in France did not have access to all of the French telephone directories, he was able to quickly ascertain that there was only one listed in the Paris directory. It is not known if this sufficiently answered the question, for the SSA continued to find new reasons to stall.

7) Another factor that cannot be underestimated as to the HQ Supervisor's apparent reluctance to do anything was/is the ever present risk of being "written up" for an Intelligence Oversight Board (IOB) "error." In the year(s) preceding the September 11th acts of terrorism, numerous alleged IOB violations on the part of FBI personnel had to be submitted to the FBI's Office of Professional Responsibility (OPR) as well as the IOB. I believe the chilling effect upon all levels of FBI agents assigned to intelligence matters and their manager hampered us from aggressive investigation of terrorists. Since one generally only runs the risk of IOB violations when one does something, the safer course is to do nothing. Ironically, in this case, a potentially huge IOB violation arguably occurred due to FBIHQ's failure to act, that is, FBIHQ's failure to inform the Department of Justice Criminal Division of Moussaoui's potential criminal violations (which, as I've already said, were quickly identified in Minneapolis as violations of Title 18 United States Code Section 2332b [Acts of terrorism transcending national boundaries] and Section 32 [Destruction of aircraft or aircraft facilities]). This failure would seem to run clearly afoul of the Attorney General directive contained in the "1995 Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations" which mandatorily require the FBI to notify the Criminal Division when "facts or circumstances are developed" in an FI or FCI investigation "that reasonably indicate that a significant federal crime has been, is being, or may be committed." I believe that Minneapolis agents actually brought this point to FBIHQ's attention on August 22, 2001, but HQ personnel apparently ignored the directive, ostensibly due to their opinion of the lack of probable cause. But the issue of whether HQ personnel deliberately undercut the probable cause can be sidestepped at this point because the Directive does not require probable cause. It requires only a "reasonable indication" which is defined as "substantially lower than probable cause." Given that the Minneapolis Division had accumulated far more than "a mere hunch" (which the directive would deem as insufficient), the information ought to have, at least, been passed on to the "Core Group" created to assess whether the information needed to be further disseminated to the Criminal Division. However, (and I don't know for sure), but to date, I have never heard that any potential violation of this directive has been submitted to the IOB or to the FBI's OPR. It should also be noted that when making determinations of whether items need to be submitted to the IOB, it is my understanding that NSLU normally used/uses a broad approach, erring, when in doubt, on the side of submitting potential violations.

8) For starters, if prevention rather than prosecution is to be our new main goal, (an objective I totally agree with), we need more guidance on when we can apply the Quarles "public safety" exception to Miranda's 5th Amendment requirements. We were prevented from even attempting to question Moussaoui on the day of the attacks when, in theory, he could have possessed further information about other co-conspirators.} (Apparently no government attorney believes there is a "public safety" exception in a situation like this?!)

The Clintonian FBIA top FBI official delivered what appears to be intentionally deceptive testimony to Congress about Zacarias Moussaoui.

In her indictment of the FBI's handling of alleged 20th hijacker Zacarias Moussaoui, Minneapolis FBI counsel Coleen Rowley accuses top bureau management of trying to cover the FBI's bureaucratic backside. But it may be much worse than that. A look at testimony about the Moussaoui case given to Congress by a top FBI official last October suggests the FBI's statements were so carefully worded that they appeared intended to deceive lawmakers. Recent press accounts have focused on Rowley's anger at statements made by FBI Director Robert Mueller in the aftermath of the September 11 terrorist attacks. "You, Director Mueller, made the statement to the effect that if the FBI had only had any advance warning of the attacks, we (meaning the FBI) may have been able to take some action to prevent the tragedy," Rowley wrote in her May 21 memo to Mueller. Angered by such statements — Rowley knew that agents in Minneapolis had clues that Moussaoui was involved in something suspicious — Rowley writes that she feared Mueller's words "could easily come back to haunt the FBI upon revelation of the information that had been developed pre-September 11 about Moussaoui." Accordingly, Rowley and others tried to contact top-level FBI officials to make sure they knew all about the Moussaoui investigation.

But what really appears to have angered Rowley, however, were statements made later by the FBI's deputy assistant director for counterterrorism, James T. Caruso, who also suggested that the FBI had no clues prior to September 11. "When similar comments were made weeks later, in Assistant Director Caruso's congressional testimony in response to the first public leaks about Moussaoui," Rowley writes, "we faced the sad realization that the remarks indicated someone, possibly with your [Mueller's] approval, had decided to circle the wagons at FBI Headquarters in an apparent effort to protect the FBI from embarrassment and the relevant FBI officials from scrutiny."

A look at Caruso's testimony before the House Intelligence Committee's Homeland Defense Subcommittee last October 3 suggests that the FBI's desire to "circle the wagons" included making statements that, if taken on their face, could well have misled Congress about what happened in the Moussaoui case. This is what Caruso said: The media has focused on an individual in Minneapolis who has been detained since August 17 on Immigration charges. It has been suggested that this individual, Zacarias Moussaoui, was training to be the fifth hijacker on the flight that crashed into Pennsylvania. Media accounts also suggest that the FBI did not actively investigate Moussaoui until after the September 11 attacks. The FBI conducted vigorous investigation of Moussaoui upon learning of his detention in mid-August to include seizing his computer, contacting foreign officials for additional information and seeking a number of authorities under the Foreign Intelligence Surveillance Act, FISA, to conduct further investigation. In addition, information about Moussaoui was shared throughout the intelligence community prior to September 11. Although the Department of Justice and the FBI agreed there was insufficient evidence to establish that Moussaoui was an agent of a foreign power or terrorists group as required by the FISA warrant, the FBI pursued all reasonable and lawful investigative steps since mid-August.

Caruso said the FBI did three things: 1) it seized Moussaoui's computer, 2) it sought information from foreign officials, and 3) it sought "a number of authorities" under FISA. Two of those claims appear to be seriously misleading. In the first instance, while the FBI did seize Moussaoui's computer, agents were not able to examine its contents without a warrant (in fact, the computer was not examined before September 11). On the issue of a warrant, the FBI did not seek either a court warrant or a warrant from the special FISA court to search the computer, as Caruso suggested when he said the FBI sought "a number of authorities" under FISA. Instead, according to Rowley, the Minnesota agents' requests for a FISA warrant were stopped inside the FBI bureaucracy. (One part of Caruso's testimony appears to be accurate: The FBI did seek information from foreign-intelligence sources, although it was the Minnesota agents, not headquarters.) Finally, on the question of whether the Moussaoui information was "shared throughout the intelligence community," as Caruso said, Rowley writes that when Minneapolis agents tried to tell the CIA about Moussaoui, they were "chastised" by FBI headquarters. In an interview with National Review Online, an FBI spokesman defended Caruso's testimony as accurate, saying the FBI did indeed seize Moussaoui's computer (although agents did not examine its contents). As for the FISA warrant, the spokesman said only that "there is a series of approvals" involved before a case is turned over to a FISA court, and that "what happened is all subject to review right now."

WASHINGTON – The FBI supervisor who allegedly hamstrung the pre-Sept. 11 Minneapolis investigation into the alleged 20th hijacker has been transferred to a position where bureau sources say he'll actually have more authority.

Michael Maltbie, the FBI supervisory special agent accused of blocking field agents from obtaining a warrant to search Zacarias Moussaoui's computer, has been moved out of the counterterrorism division at bureau headquarters to the Cleveland office, where he'll work as a field supervisor, sources say.

"That's really a promotion," a bureau veteran told WorldNetDaily, "because a field supervisor is a big notch over a headquarters supervisor."

"He'll actually be directing investigations, rather than twiddling his thumbs half the time," he explained. FBI spokesman Bill Carter told WorldNetDaily that the bureau will not be opening an internal investigation into complaints about the Minneapolis investigation. That means Maltbie's conduct and that of his boss, David Frasca, the FBI's Radical Fundamentalists unit chief, as well as their section chief, will not be reviewed by the FBI's Office of Professional Responsibility, the bureau's version of internal affairs.

Instead, Carter said FBI Director Robert Mueller will wait for the results of the investigation by the Justice Department's inspector general into FBI whistleblower-agent Coleen Rowley's charges before taking any possible "administrative action."

Frasca led headquarters' allegedly inept supervision of the Minneapolis field office's probe of Moussaoui in August. Rowley and other field agents were tipped off by a flight-school instructor that Moussaoui was interested only in steering planes, and not taking off or landing. Other evidence confirmed agents' suspicions he was part of a possible terrorist plot.

Another FBI whistleblower, Phoenix agent Kenneth J. Williams, sent a July 10 memo to Frasca warning that Osama bin Laden's followers might be training for terrorist operations at U.S. flight schools. Frasca claims he never saw the letter, which was not shared with the Minneapolis office.

A former senior FBI official told WorldNetDaily that Frasca came to the counterterrorism division from criminal investigations and lacked the intelligence background to effectively handle the al-Qaida probe. "He had no great appreciation for analysis and intelligence," he said.

Mueller refuses to name the dozen or so officials who handled the Phoenix memo at headquarters, but admits they erred in failing to report it up the chain of command. Thomas Pickard was acting FBI director at the time. No matter how culpable Maltbie and Fracas may be in dropping the ball, "there's no way those two guys should take the hit alone," a retired special agent in charge of one of FBI's 56 field offices said in a WorldNetDaily interview.

By transferring Maltbie, he added, "headquarters is already starting to push down responsibility for this screw-up as low as possible – just as they do whenever things go wrong."

Monday, May 27, 2002 2:02 a.m. EDT Press Touts Moussaoui Memo to Scapegoat Bush FBI

Has FBI Director Robert Mueller become the media's 9-11 scapegoat for ignoring warnings beginning last Aug. 16 about "20th hijacker" Zacarias Moussaoui?

The press certainly seems to delight in the prospect of turning the Bush appointee into a 9-11 heavy - while never mentioning the fact that Mueller wasn't even sworn in as the nation's top cop till Sept. 4.

Still, Minneapolis FBI agent Coleen Rowley, whose 13-page letter taking her superiors to task for the bureau's bungling of the Moussaoui case, has all fingers pointed in Mueller's direction.

Nowhere in her controversial letter (or at least the edited version published Sunday by Time.com) does she note that Mueller was on the job for exactly one week when Moussaoui's suspected co-conspirators hijacked four airliners and slammed three of them into the World Trade Center and Pentagon.

In fact, from June 21 to Sept. 3 - the period when most of the missed Moussaoui signals materialized - the FBI was headed up by acting director Thomas Pickard. He, not Mueller, would have been in charge at the time Rowley says FBI headquarters stymied her efforts to sound the alarm.

Before that, Clinton appointee Louie Freeh presided for nine years over the bureau's culture of careerism that Rowley complains further frustrated her efforts. Still, nowhere does Pickard's or Freeh's name turn up in her entire 13-page screed.

Instead, Rowley wastes no time zeroing in on Mueller, accusing him of having "omitted, downplayed, glossed over and/or mischaracterized" her office's Moussaoui probe. "I have deep concerns," she tells the FBI director in the letter she hand-delivered to Capitol Hill last week, "that a delicate shading/ skewing of facts by you and others at the highest levels of FBI management has occurred and is occurring."

Despite her accusatory tone, the 9-11 whistle-blower claims her only goal is reform of the bureau's flawed bureaucracy.

"Mr. Director, I hope my observations can be taken in a constructive vein," Rowley explains. "They are from the heart and intended to be completely apolitical." But in the next breath she offers what sounds like a thinly veiled slap at the Bush administration:

"Hopefully, with our nation's security on the line, you and our nation's other elected and appointed officials can rise above the petty politics that often plague other discussions and do the right thing."

At one point, for instance, she recommends that FBI officials who botched the Moussaoui case should be disciplined.

"It's true we all make mistakes and I'm not suggesting that HQ personnel in question ought to be burned at the stake," Rowley tells Mueller. "But, we all need to be held accountable for serious mistakes.

"I'm relatively certain that if it appeared that a lowly field office agent had committed such errors of judgment, the FBI's OPR would have been notified to investigate and the agent would have, at the least, been quickly reassigned."

Later on, however, the FBI whistle-blower complains that past accountability enforced against incompetent agency officials has created "a climate of fear" within the bureau.

"Numerous high-ranking FBI officials who have made decisions or have taken actions which, in hindsight, turned out to be mistaken or just turned out badly [i.e. Ruby Ridge, Waco, etc.] have seen their careers plummet and end," she protests.

"This has in turn resulted in a climate of fear which has chilled aggressive FBI law enforcement action/decisions." Whatever agent Rowley's intentions, a press corps increasingly interested in blaming Bush for 9-11 is already working hard to turn her into a media darling. Here's a snippet from Time's gushing depiction of the Minneapolis FBI agent.

"She is the kind of person who always does what is right when nobody's watching," says one friend. "That is why she came out."

She's also described as "a highly disciplined professional, opinionated, principled and supremely devoted to her job."

Senate Majority Leader Daschle, Time reports, is already planning to use agent Rowely's memo to re-ignite flagging interest in his proposal for an independent commission to probe Bush administration 9-11 intelligence failures.

If agent Rowley has as much integrity as her friend suggests, she'll be careful not to let the Democrats and their media friends turn her into a political pawn.

Yeah before 9/11 a flight instructor calling the FBI to report suspicious arabs was likely to be sent to sensitivity training, and the FBI of course would put the report in the circular file. How dare anybody criticize the INS diversity policy forced down our throats since the 60s. Arabs are "just like us" etc.

9/11 was a wake up call, unfortunately, the Government has hit the snooze button. We'll be hit again, for sure.

3 posted on 04/12/2004 6:51:18 AM PDT by Ole Okie (John F'n Kerry: "Just a gigolo, everywhere I go, people know the part I'm playing...")

Good points...
AND under Janet Rhino the FBI would have been directed to investigate the flight instructor for his 'obvious ties to right-wing militia groups', which as we all know (because she/'it' and Willard said so) were the REAL threat to America back then.

/semi-sarcasm 'off'

4 posted on 04/12/2004 6:51:50 AM PDT by Condor51 ("Diplomacy without arms is like music without instruments." -- Frederick the Great)

Thank you for posting about the 1995 Clinton DOJ guidelines, FISA, etc.

I and a few others have posted replies referencing this with nary a response. The mainstream hints at it and I have never heard it mentioned on talk radio.

Seems important to me. Perhaps it's being ignored because it can be traced back to Congress and virtually everybody in Washington?

5 posted on 04/12/2004 7:11:25 AM PDT by WilliamofCarmichael (Benedict Arnold was a hero for both sides in the same war, too!)

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.