Accuracy in Media

On May 21, Coleen Rowley, general counsel of the FBI’s Minneapolis field office, sent a blunt letter to FBI Director Robert Mueller, with copies to the Senate Intelligence Committee. She charged that two officials in the FBI headquarters had blocked actions the Minneapolis field office proposed that might have led to the disruption of the 9/11 hijacking plans. The two officials have been identified as David Frasca, Chief of the Radical Fundamentalist Unit of the Counter-terrorism Division, and Michael Maltbie, a Supervisory Special Agent (SSA) in that unit. Maltbie was recently transferred to Cleveland. Rowley criticized Mueller for inaccurate statements he had made after 9/11, statements which he corrected on May 29, admitting that the available evidence might have “led us to the hijackers.” She also asked for whistleblower protection.

Mueller thanked her for her letter and assured her that her job was safe. Experienced whistleblowers say that such assurances have proven worthless in the past and predict that Ms. Rowley will fare no better. Her letter shows that she is the kind of employee the FBI needs. It is a unique historic document that exposes a monumental mistake, and it should be an example to others. Below are extensive excerpts from the letter, with her footnotes inserted in italics in the appropriate places. This required omitting her closing comments, which we will summarize in our Notes.

Dear Director Mueller:

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…. 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…choose my words here. I base my concerns on my… 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:

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….As the Minneapolis agents’ suspicions 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 laptop 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.

The Minneapolis agents’ initial thought was to obtain a criminal search warrant, but in order to do so, they needed to get FBI Headquarters’ (HQ’s) approval in order to ask for the Dept. of Justice Office of Intelligence Policy Review’s (OIPR) approval to contact the U.S. Attorney’s Office in Minnesota. Prior to and even after receipt of information provided by the French, HQ personnel disputed with the Minneapolis agents the existence of probable cause to believe that a criminal violation had occurred/was occurring. HQ 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 difference between the information being submitted to HQ 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 that probable cause did not exist until after the disastrous event occurred, is really to acknowledge that the missing piece of probable cause was only the HQ’s failure to appreciate that such an event could occur.

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 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 HQ personnel were privy to.), the Minneapolis agents appreciated the risk.

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. 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 Minneapolis’ prior suspicions about Moussaoui.

NOTE: 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.

Key HQ personnel whose job it was to assist and coordinate with field division agents on terrorism investigations and the obtaining and use of Foreign Intelligence Security Act (FISA) searches (and who theoretically were privy to many more sources of intelligence information than field division agents), continued to, almost inexplicably, 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. 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!

NOTE: 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 HQ, almost everyone’s first question was “Why?” Why would an FBI agent deliberately sabotage a case? (I know I shouldn’t be flippant about this, but jokes were actually made that the key HQ personnel had to be spies or moles, like Robert Hanssen, who were actually working for Osama Bin Laden to have so undercut Minneapolis’ effort.) Our best real guess is that, in most cases avoidance of all “unnecessary” actions/decisions by HQ 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) 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….

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 HQ is mired in mediocrity! That may be 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. It’s quite conceivable that many of the HQ personnel who so vigorously disputed Moussaoui’s ability or 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.

Nor did HQ 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 HQ roadblock, the Minneapolis Division undertook to directly notify the CIA’s Counter Terrorist Center (CTC), HQ personnel actually chastised the Minneapolis agents for making the direct notification without their approval!

NOTE: At one point, the Supervisory Special Agent at HQ 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.

On August 28, 2001… the Minneapolis agents were notified that the National Security Law Unit (NSLU) 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 HQ SSA to NSLU or whether anyone in NSLU ever was afforded the opportunity to actually read all of the information on Moussaoui that had been gathered by the Minneapolis Division and the French intelligence service….

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.

NOTE: The “1995 Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations” 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 HQ’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. To date, I have never heard that any potential violation of this directive has been submitted to the Intelligence Oversight Board or to the FBI’s Office of Professional Responsibility.

I understand that the failures of the HQ 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.

Even after September 11th, the fear was great on the part of Minneapolis Division personnel that the same HQ 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!

I do find it odd that (to my knowledge) no inquiry whatsoever was launched of the relevant HQ 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 (Michael Maltbie), his unit chief (David Frasca), and other involved HQ personnel were allowed to stay in their positions and, what’s worse, occupy critical positions in the FBI’s Strategic Information and Operations Center (SIOC) Command Center after September 11th. (The SSA in question actually received a promotion some months afterward!)

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 Office of Professional Responsibility (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 Intelligence Oversight Board) 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 HQ and those in the field.

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 HQ 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 HQ 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 electronic communication (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 other 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.

Sincerely,
Coleen M. Rowley Special Agent and Minneapolis Chief Division Counsel

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