(From the diaries by susanhu.]
(cross-posted at dKos)
If anyone should know about FISA shortcomings, you’d think Coleen Rowley would be that person. But she has no problems with FISA itself, only with the way it was ignored by Ashcroft during 2001.
An op-ed in the Washington Post triggered a scathing LTE, but Coleen had more to say than would fit the format, so she asked me to blog her full response here, below the fold….
This last week, we learned President Bush secretly ordered the National Security Agency to conduct a domestic spy program that entails no judicial oversight. In defense of this controversial program, a number of Republicans rely upon the case of Zacarias Moussaoui as justification for Bush’s attack on our privacy and civil liberties.
Moussaoui is the only individual to be charged in connection with the 9-11 attacks and has pled guilty but is fighting the death penalty. He contends that he was not directly involved with the attacks on 9-11 but was instead to participate in a second-wave attack. He awaits a “death penalty phase” hearing. Although detained on immigration charges since August 16, 2001, the FBI failed to sufficiently investigate Moussaoui pre 9-11. If searches of his personal effects and laptop had been authorized, Moussaoui’s connections to the 9-11 hijackings may have emerged and it is possible that 9-11 could have been prevented.
Republican commentators such as William Kristol and Rush Limbaugh claim FISA procedures, and the legal impediments they impose, prevented FBI agents from acting. Consequently, they maintain President Bush is justified in abrogating FISA law to order the NSA to eavesdrop on Americans.
As legal counsel to the Minneapolis FBI Division and witness to the entire Moussaoui case, I can tell you that these assertions are not just factually wrong, they miss the real problems that existed within our intelligence gathering superstructure. I wrote a 13 page memo and testified before Congress on these very failures, yet some individuals continue to misapply and misrepresent what I said.
Myth #1: The Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of Moussaoui’s computer files.
No evidence whatsoever was presented at any time to the Justice Department of Moussaoui’s suspicious flight training and ties with terrorism. The Justice Department’s Office of Intelligence Policy and Review, which handles FISA matters, was never contacted. Furthermore, no contact was made either with criminal attorneys in the Department of Justice or with the U.S. Attorney’s Office. Therefore, no decision was ever made by Department of Justice personnel regarding the given evidence and its application to FISA or criminal standards.
In fact, the subsequent intelligence committees’ inquiry, Inspector General investigation, and 9-11 Commission all decided that a sufficient connection between Moussaoui and a foreign power (or international terrorist group) did exist to have satisfied the FISA standard. Likewise, criminal prosecutors advised (after the fact) that they would have proceeded forward to seek a search warrant of Moussaoui’s belongings based on the information known in August 2001.
As it turned out, faulty interpretations and widely-varying perceptions of FISA procedures, especially what the “FISA wall” entailed, played a big role in the FBI’s determination not to contact DOJ, and not to move forward until after the 9/11 attacks occurred. There was also the little problem that the FBI’s national security law unit lawyer had not actually read for himself the facts that Minneapolis agents had provided but, instead, had relied upon a short, verbal briefing by the first-line supervisor. When 9-11 happened, however, and it was painfully clear in hindsight that the FBI had botched it, this same lawyer’s (the lawyer who had not read it) pronouncement of insufficient probable cause served as a convenient blanket defense to protect all of the underlying governmental incompetence. My 2002 memo punched a hole in that blanket defense and led to some truth being unraveled.) The bottom line is that the FISA law itself was not the reason the FBI failed to inspect Moussaoui’s personal effects and computer files. Rather, the faulty interpretations and failure to share and analyze
intelligence sufficiently is what enabled Moussaoui to escape further investigation.
Myth #2: Rowley depicted the legal mechanism for security warrants under FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement.
It’s true that the “FISA wall” problem did play a role in preventing the effective sharing and analysis of information pre 9-11. But to the extent that the “FISA wall” issue was problematic, (and in fact, there is no denying it was a problem, even if it all turned out to be more a problem of misperception and faulty interpretations), it was remedied when the Patriot Act brought down the “wall” shortly after 9-11 that prevented effective sharing of national security intelligence with criminal investigators and/or criminal attorneys.
My original memo to FBI Director Mueller contained a description of “probable cause” as meaning more probable than not, or if quantified, a 51% likelihood. I believed that the information gathered in August 2001 about Moussaoui satisfied the probable cause standard because a federal district judge did, in fact, find ample probable cause to grant a criminal search warrant on September 11th, the day of the attacks. The only material additions were the 9-11 attacks. When I testified to the Senate Judiciary Committee in June, 2002, Senator (and former U.S. Attorney) Arlen Specter made sure I was aware that probable cause, as viewed in the Gates “totality of the circumstances” test, could be seen as even less than a 51% likelihood. The more expansive view of probable cause was subsequently incorporated into FBI General Counsel legal opinions, which means that the minimum threshold of probable cause is even lower than I, and other legal commentators, would have previously thought.
Myth #3: The FISA process is not quick or flexible enough to detect and thwart terrorists.
The FISA process has always been a secret process which contains effective emergency provisions. These emergency provisions allow the attorney general enormous power to authorize secret “emergency” electronic surveillance and searches before any court order is granted, or an application is made, for up to 72 hours. No application is even necessary if the surveillance is terminated before the 72 hour “emergency” period ends. In fact, Minneapolis agents were so convinced of the urgency of the situation involving Moussaoui that they requested use of this emergency provision, not the regular FISA process.
Unfortunately, this would have required Attorney General Ashcroft, who had just ranked terrorism as his lowest priority in early August 2001, to appreciate the danger and sign off on the “emergency.” And it would have required then FBI Acting Director Pickard to take the emergency request to Ashcroft after he (Ashcroft) had rebuked him (Pickard) earlier that summer, as Pickard testified to the 9-11 Commission, saying “he (Ashcroft) didn’t want to hear any more about terrorism.” Given these circumstances, FBI Headquarters quickly gave up on Minneapolis’ request to seek AG approval for use of this emergency provision.
But myths aside, Moussaoui did not escape inspection because the FISA law was not permissive enough. And with the further changes wrought by the Patriot Act, bringing down the FISA wall and making the FISA process even more permissive, it is certainly not a good argument for Bush to skirt the law now.
—Coleen Rowley
Coleen will read your feedback.
First, I’d like to say thank you for your service and all of your determined hard work to bring forth the truth. I’ve come to some understanding that folks can’t always speak as freely as we would like them to and I admire your attempts to change that.
I reread that memo the other day as it came up in a related research. That was the one written in 2002 or at least that’s the date on the edited version of the 13 page letter. I had stumbled on the GHWBush shrines of government agencies and SIOC in particular. In short, we’ve had the technology and intelligent people to minimize the risks presented by the threat of radical extremists except the ones that work within our own system. Once again, thanks for standing up with integrity against the manipulators.
May 21, 2002
I think the failures were at a high level and believe the American people will eventually have the answers whether we like them or not.
I noticed some details that I’m not sure have been the focus of attention before. Once again, it came from learning more about the history and financing of SIOC.
In reviewing testimony, especially from Freeh in 2000 appropriations requests/hearings, he hammers home the threat of cybercrime and the need for more money to fund prevention. It’s not limited to identity theft either. He stresses the use of computer technology to achieve terror network related goals.
Seems like Freeh was concerned about Cybercrime enough he would’ve been chomping to get to that laptop.
I also noticed the massive amounts of money for polygraphs to use routinely. Are they? Another curious mention in Mueller’s hearings was that Freeh brought in 2 from outside to be employees, one IBM and one CIA. Is that, or their performance, also fairly common knowledge?