The Law is a Ass

The Weekly Standard ^ | June 10, 2002 | David Tell

[Quilla]

HEARINGS on the government's pre-September 11 counterterrorism efforts begin this week on Capitol Hill. These earliest sessions of the House and Senate intelligence committees will be conducted behind closed doors. But it is a fair bet which official lapses will principally occupy the panelists' attention, details of these missed opportunities having been front-page news for nearly a month. It is a fair bet, too, what federal agency will be subjected to the sharpest scrutiny, FBI Director Robert Mueller III himself having now very publicly lamented how the Bureau's Washington headquarters handled clues in its possession last summer. And it is a fair bet, finally, what basic conclusion everyone will eventually draw from this whole, inevitable exercise in congressional blame-apportionment. That conclusion has been all but formally drawn in advance.

Mueller, who believes FBI investigators must have broader procedural latitude if they are to acquire the information necessary to thwart future terrorist attacks, says last summer's acts of omission point "squarely at our analytical capacity," which is "not where it should be." The ACLU, which believes FBI investigators do not need additional authority, says the Bureau has "failed to analyze and act on relevant information" it already has. There is a wide spectrum of opinion about the nature of reforms to be adopted, in other words. But a remarkable consensus has emerged, at least, about the problem to be addressed. The FBI, everyone says, doesn't put two and two together very well.

This is no doubt true so far as it goes. Indeed, the complaint can and should fairly be extended beyond the Bureau to any number of other federal agencies--to the CIA, for example, whose counterterrorism programs have failed no less spectacularly. Undeniably, there is a great deal of fresh intelligence work to be done throughout our government.

But there is more. There are issues raised by last fall's events of vastly greater urgency than "analytical capacity"--or any other structural weakness so far acknowledged by either the executive branch or its most prominent critics. Indeed, the paramount question raised for the future by what we have learned of the FBI's "missteps" has gone almost completely unmentioned in the current "what went wrong" conversation. We are speaking here of American law and the social assumptions that underlie it.

Consider that list of September 11 "leads" the government is now said to have bungled. Two FBI field agents, one four years ago and the other last July, sent word up the chain that an unusual number of Middle Eastern men seemed to be taking lessons at U.S. flight schools; both agents had a hunch that the phenomenon might indicate planning for acts of terrorism. Last August 6, a CIA briefing warned President Bush of possible al Qaeda aircraft hijackings--based on a single British intelligence report from 1999. In mid-August, officials at a Minnesota flight school called the FBI's Minneapolis office to say that one of their students, Zacarias Moussaoui, was making them nervous. Local FBI agents found Moussaoui suspicious, too, and had him arrested on immigration charges--but were refused permission to search his laptop computer by their superiors in Washington. Also, at some point, the CIA apparently became aware that a so far unidentified foreign country was attempting to purchase flight simulators in violation of U.S. trade restrictions.

In retrospect it all appears obviously related. And, yes, a better FBI might have figured it out at the time. And, yes, from now on we must have that better FBI.

But ask yourself: Confronted with such actual clues as were available last summer, what precisely should even a better FBI have been expected to do about them? Superficially, the answer has seemed easiest in the case of Zacarias Moussaoui, since indicted for conspiracy in connection with the September 11 murders. Here we have a reactionary Islamicist violently opposed to the United States and all its works, a man whose behavior had closely mirrored that of Mohamed Atta and the other hijackers. Here we also have the always captivating story of a government whistle-blower, Special Agent Coleen Rowley, legal adviser to the Bureau's Minneapolis field office. Rowley's anguished May 21 letter to Mueller recounts how last August she and her colleagues developed "reasonable suspicions" that Moussaoui was a terrorist threat and soon received confirmation from French authorities that their suspect had previously traveled to South Asia--and was associated with people who were themselves associated with Osama bin Laden. Rowley thinks the early search that FBI headquarters blocked might have led investigators to Atta and the others before it was too late. And judging from his most recent public comments, Mueller himself now agrees that such a search should have been pursued.

This narrative is much too neat, though, for it takes no account of what the law actually says. And the law says that warrants for terrorism-related secret searches may issue only when the government can demonstrate "probable cause" to believe that its target "knowingly engages" or assists in terrorist activities--as a member or witting agent of a specifically identified terrorist organization. In close cases, there is room for subjective judgment about what practical requirements this "probable cause" standard entails. But in mid-August 2001, as it happens, Zacarias Moussaoui was not actually all that close a case.

We cannot but sympathize with Special Agent Rowley, and we share her regret--to put it mildly--that things didn't work out differently. Nevertheless, we cannot agree with her, as everyone else seems to, that it was self-evidently outrageous for FBI headquarters to conclude that her August search warrant request lacked "probable cause." Let's face it: In strictest legal terms, they never had much on Moussaoui. They had a vaguely disconcerting Muslim gentleman with an interest in airplanes who had overstayed his visa and who had once known people who knew other people thought to be involved in terrorism. And if the FBI, through Moussaoui, had somehow managed to identify, track down, and detain his alleged co-conspirators, then they would have had twenty such vaguely disconcerting Muslim gentlemen--and nothing more. Thousands of lives would thus have been saved, of course; it's just about the only conceivable way they could have been saved. But barring an extremely improbable confession from one of the conspirators, we would never even have learned that those thousands of lives were at risk in the first place.

In which case the New York Times and the ACLU and Amnesty International and all the rest of them would be bitterly complaining that John Ashcroft's Justice Department had, by its detentions of Atta and the others, effected an "erosion of civil liberties" in defiance of standing law and American tradition. We are not being speculative here. Since September 11, the FBI and the Immigration and Naturalization Service have detained more than a thousand Arab and Muslim aliens in this country--almost all of them for technical visa irregularities and on the basis of generalized suspicions no more or less substantial than those Coleen Rowley and her office-mates harbored against Zacarias Moussaoui. For doing this, Ashcroft and his department have been repeatedly condemned. Just this past Friday, the Times denounced Ashcroft--and raised another alarum about the "erosion of civil liberties"--simply because the attorney general had issued new procedural guidelines that will allow the FBI greater latitude to collect and monitor public information and public events in situations where there exists a "reasonable indication" of future terrorist activity.

Ashcroft's new guidelines, it bears pointing out, had they been in effect last August, would not have granted Coleen Rowley's wish. Quite the contrary, in preliminary investigations like the one her Minneapolis office was then conducting against Moussaoui, Justice's amended rules now "categorically prohibit...mail opening and electronic surveillance." In other words: "Probable cause," the legal doctrine that made the FBI balk last summer, still applies.

So the Justice Department is now being excoriated for not doing before September 11 exactly the same thing it has been excoriated for going ahead and doing--in watered-down form, at that--since September 11. And no one seems willing to acknowledge the inconsistency, much less acknowledge the possibility that even stiffer measures than what the FBI now proposes might be required.

There is an explanation for this. Americans are a freedom-loving people who have built elaborate rights-protections into our criminal law: requirements for individualized, substantiated suspicion and probable cause before detention, for instance. Americans are also a genial people who have in recent decades extended these protections, most of them, even to foreigners visiting from countries where civil liberties are nonexistent. "Everything changed" on September 11, we tell ourselves. But we have been reluctant to admit that it was true--that our laws and the basic national attitudes on which they rest must change, as well.

In particular, we have been reluctant to admit that our FBI and other national security agencies, in the near term at least, must remain on hair-trigger alert--and must be prepared and willing to detain, even by mistake--Arab and Muslim gentlemen from overseas whose behavior and ideas make us nervous. This is harsh reality, no doubt. But it is common sense, too. And failing to embrace it would involve a risk, hardly remote, that no one can responsibly contemplate. One September 11 is enough.