The remarkable letter from Special Agent Coleen Rowley to FBI Director Robert Mueller was motivated by her disgust with officials at FBI headquarters, who refused to seek a warrant to search Zacarias Moussaoui’s computer and personal effects. Rowley and others at the FBI’s Minneapolis field office suspected that Moussaoui was planning to hijack an airliner, but the only way they could get a search warrant was to invoke the Foreign Intelligence Surveillance Act (FISA). FISA warrants permit wiretapping, computer surveillance and physical searches of suspected spies or terrorists who have not been charged with a crime.
Rowley’s letter has generated a renewed debate over the restraints imposed on the FBI in the 1970’s. The Washington Times has called for discarding restrictions on the FBI’s ability to conduct surveillance on suspected terrorists. Stuart Taylor of the National Journal agrees, asserting that the main reason Moussaoui’s computer was not searched “was the stringency of the FISA Act of 1978.” Taylor wrote that the act imposes “so substantial a burden of proof” that none of the clues now emerging would have passed muster with the FISA court.
In truth, however, the court has rarely turned down an application for a FISA warrant. In 1997, for example, the court rejected exactly one application out of the 749 that it received. It would seem then that the FBI’s failure in the Moussaoui case may stem less from the language of the law than its interpretation and implementation by the FBI and the Justice Department.
In many respects, the Bureau’s handling of the Moussaoui case resembles its failures in the Wen Ho Lee spy case. During recent Congressional testimony, Sen. Arlen Specter (R-PA) reminded top Bureau officials that the Lee case had exposed significant flaws in the handling of such matters by the FBI and the Justice Department. For example, the Lee case was never a priority for the Albuquerque FBI office to which it was assigned. Finding spies was fourth on a list of four office priorities, and the Lee case was on the bottom of the fourth priority list. The Los Angeles Times has reported that counter-terrorism was fifth on a similar priorities list at the Phoenix field office. Organized crime, drugs, white-collar crime and Indian reservation crime all had higher priority. Special Agent Kenneth Williams, who wrote the Phoenix memo suggesting that the number of Middle Eastern males training at U.S. flight schools deserved investigation, is a highly regarded counter-terrorism expert, but he was repeatedly assigned to other cases.
The similarities in the failures to obtain FISA warrants for searches of Wen Ho Lee and Moussaoui are also striking. In the Lee case, these have been documented by Congress and an extensive internal government review whose findings were published in what is commonly known as the Bellows Report. The findings of these inquiries have been largely ignored by the national media. One major finding held that, in a critical case directly affecting U.S. national security, the FBI was unable to obtain permission to conduct electronic surveillance on Lee or examine his computers.
The Bureau’s efforts were thwarted by the Justice Department on the grounds that it had not demonstrated sufficient probable cause. But the Bellows Report concluded, after dozens of interviews of Justice and FBI officials, that the FBI had assembled enough information to show probable cause that Lee was an agent of a foreign power and that a FISA court would have approved the request. Legislation sponsored by Sen. Specter was passed to fix this problem, but it did not prevent a reoccurrence of these failures.
Coleen Rowley asserted that by August 17, the Minneapolis FBI field office had concluded that Moussaoui represented a “terrorist threat.” She said his arrest by the Immigration and Naturalization Service on August 15 was hardly a coincidence. She implied that it was done at the FBI’s request to prevent Moussaoui from fleeing or committing terrorist acts. She said that French intelligence had confirmed that Moussaoui was affiliated with radical fundamentalist Islamist groups and activities connected to Osama bin Laden.
In the Judiciary Committee hearing that took testimony from Ms. Rowley and Director Mueller about the Moussaoui case, Mueller told Senator Orrin Hatch, (R-Utah), that once a connection was made to a terrorist group like al Qaeda, obtaining a FISA warrant was no problem. But it remained a problem for Michael Maltbie and David Frasca, the two headquarters bureaucrats who had to approve the request. Maltbie wanted to know how many Zacarias Moussaouis lived in France. Only one was listed in the Paris telephone directory. Rowley accused Maltbie of withholding information like Special Agent Williams’ Phoenix memo and rewriting the application, which in her view, “set this up for failure.”
Testifying in closed session, David Frasca, Maltbie’s unit chief, told congressional aides that he had not seen the Phoenix memo until after 9/11and that Rowley hadn’t asked him for help in overcoming Maltbie’s objections. Maltbie was transferred out of Washington before he could be called to testify. Rowley chalked it all up to rampant “careerism,” a culture that emphasizes risk avoidance, and fears of a violation that might spark an Intelligence Oversight Board investigation or referral to the FBI’s Office of Professional Responsibility. She said that such fears have had a “chilling effect” on intelligence and terrorist investigations. The bureaucratic difficulties encountered when the Minneapolis field office tried to obtain search warrants on Moussaoui were far greater than any supposed obstacles imposed by legislation written in the late 1970s and modified in 1994.
An application for a FISA warrant may be initiated by any “federal officer.” FBI agents prepare a Letterhead Memorandum (LHM) setting forth facts that will demonstrate to a FISA Court that there is probable cause to believe that the target of the proposed surveillance is an agent of a foreign power. The drafter can call upon all FBI resources to provide information and data for the LHM, but these may be limited. Mueller has testified that the Bureau’s computer system can’t respond to a search involving more than one term. Specifically, he said the current system could not handle a query “aviation schools,” which is so incredible that it casts doubt on his credibility. The definitions in the law are broad enough to cover terrorists and international terrorist organizations like al Qaeda.
Legislative history and case law are used to establish a working definition of probable cause: “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him?there is a fair probability that contraband or evidence of a crime will be found in a particular place.” With regard to the object of surveillance, the act covers a person whose activities “involve or may involve a violation of the criminal statutes of the United States.” Probability has not been quantified, although experts have spoken of 51% being sufficient to establish probable cause when seeking a warrant. Many believed that the desired probability rose to 75-80% in the Reno Justice Department.
The LHM (Letterhead Memorandum) goes to the FBI’s National Security Law Unit for review and then passes on to Justice’s Office of Intelligence Policy and Review (OIPR). Attorneys in this office, usually career bureaucrats, transform it into a formal FISA application. The application is reviewed by the attorneys’ supervisors and eventually by the office director, who is also the Counsel for Intelligence Policy, responsible for advising the Attorney General on all matters relating to national security.
The application goes back to the FBI Director who must then certify that the application is for the purpose of collecting foreign intelligence. The Attorney General forwards the application to the FISA court, which then issues its ruling in accordance with security procedures established by the Attorney General, the FBI Director, and the Director of Central Intelligence. This is to protect intelligence information, which is often used to show probable cause, but it also gives rise to suspicions about a “secret court.” The process can involve weeks and in some cases months of deliberations between OIPR and the FBI.
From 1984 to October 1993, Mary C. Lawton was the Justice Department’s Counsel for Intelligence, in charge of the OIPR, the critical node in the FISA process. During her tenure, she occasionally rejected efforts by the FBI to obtain FISA warrants, but once an application left her office it was never turned down by the FISA court. Lawton also permitted the FBI to work with Justice’s Criminal Division to ensure that it did nothing that would hinder any eventual prosecution. A former agent who worked with her says Lawton had a razor-sharp legal mind, particularly with regard to national security. Agents knew that once she approved it, the final application would sail through the FISA court.
In 1993, Lawton died suddenly and was replaced by Richard Scruggs, an attorney from the Miami U.S. Attorney’s Office who followed Janet Reno to Washington. Scruggs’ first assignment for Reno had been to write the Justice Department’s report on Waco in 1993. A former FBI agent says that Scruggs was “an absolutely strange choice” as he had no background in national security issues. He was new to the business and lacked ties to the FBI’s National Security Division and Justice’s Criminal Division. Simultaneously, Director Freeh was dismantling the FBI’s counterintelligence capabilities. The China section was especially hard hit. Experienced China counterintelligence specialists like Ray Wickman and T. Van Majors had retired or sought reassignment to field offices. Consequently, the National Security Division lost the expertise built up over the years of working with OIPR and preparing FISA applications.
Scruggs was criticized by Ronald Kessler in his book The Bureau: The Secret History of the FBI, for using this issue as a pretext to increase his status with Reno and expand his staff and budget. Scruggs erected barriers between the FBI and Justice’s Criminal Division and threatened to reject automatically any FBI attempt to obtain a FISA warrant should the Bureau violate his rules. In this fashion, the FBI was deprived of advice and assistance from the Justice Department’s Criminal Division in espionage or terrorist cases.
The U.S. Attorney for the Southern District of New York complained about the negative effect of Scruggs’ new guidelines on closely related counterintelligence and criminal investigations involving terrorist groups in that district. A special exemption was issued for the Southern District, but OIPR continued to hold out the threat of rejecting FISA applications to prevent the FBI from contacting the Criminal Division.
In 1997, the FBI tried to obtain a FISA order for electronic surveillance of Wen Ho Lee’s telephone calls and computer usage. Lee had already been the subject of two FBI investigations and a third had been opened in 1996 in connection with suspicions that China had obtained design secrets about the W-88 thermonuclear warhead. Lee had recently invited a graduate student from the Peoples’ Republic of China to assist in classified work involving the nation’s nuclear weapons computer codes. When Lee’s colleagues protested the classified nature of the work, he simply changed the topic for the graduate student’s summer study. FBI officials suspected that Lee might use the student to pass along computer codes and other secrets to the PRC and sought to monitor communications between them.
The OIPR, where Scruggs had been replaced by Gerald Schroeder, rejected the FBI’s request. The Bellows Report repeatedly alleged that the OIPR had made a fetish of its perfect track record in the FISA Court and had become “overly conservative” in its approach in order to sustain that record. Martin Bowman, with the FBI’s Office of General Counsel, told the investigators that there was “absolutely no doubt at all that OIPR has set [the probable cause] standard too high.” This had led to a “general lack of aggressiveness” as the office seemed to shy away from applications that might be turned down by the FISA court.
This approach to a case that involved the putative theft of the most sensitive U.S. nuclear weapons secrets raised concerns among the Bellows team that the office was applying “too conservative an approach to routine applications as well.” Although the Bellows investigative team did not test that observation, it seems likely that OIPR’s approach under Reno dampened the aggressiveness and enthusiasm of at least some FBI agents when confronted with FISA opportunities. In effect, the FBI was self-deterred once it realized that OIPR would reject any application that was too close to the line.
This is exactly what happened with the Lee application. FBI officials admit that the Lee LHM was not as strong as other applications, but the Bellows Report cites the FBI’s “inexplicable” omission of some critical information. It was also true that the Bureau withheld intelligence information from the LHM due to “sources and methods” concerns. The report is silent on how much of this may be attributed to the declining quality of the agents in the China section at that time. But FBI officials up to and including former Director Louis Freeh agreed that the application met the probable cause standard and that others had been approved “on less information.”
Although OIPR attorney Dave Ryan prepared the application, the key player in the rejection was Allan Kornblum, OIPR’s Deputy Counsel for Operations. He testified that he was shocked when he first read the Bureau’s draft, but he then proceeded to throw up a series of ever-higher obstacles to OIPR’s approval. The Bureau provided eight separate inputs of additional information to OIPR, but Kornblum nevertheless continued to find the application insufficient. The most significant reason Kornblum gave to reject it was revealed in a December 2001 Senate Judiciary Committee report. That report quotes an internal FBI memo as saying, “On 8-12-97 Mr. Allan Kornblum of OIPR advised that he could not send our [FBI] application forward for these reasons. We had not shown that the subjects were the ones who passed the W-88 [design information] to the PRC, and that we had little to show that they were presently engaged in clandestine intelligence activities.”
The Senate report concludes that Kornblum was applying a standard appropriate to establishing guilt in a courtroom, but not to establishing probable cause to obtain a FISA warrant. Kornblum is viewed as an experienced career attorney, but one more “political” and “attuned to the front office” than his colleagues. In this case, Kornblum may have been playing to Schroeder’s “very restrictive definition of probable cause.” He is now a clerk at the FISA court.
Given the potential magnitude of this case, it is surprising that Reno never reviewed the application herself nor did Freeh ever appeal the decision to her directly. Some have attributed this to the deteriorating relationship between Freeh and Reno and between the FBI and Justice. A senior FBI official intervened with Reno, but she delegated a review of the application to an assistant who upheld OIPR’s decision and never bothered to report his finding back to her. In closed testimony before the Judiciary Committee in 1999, Reno showed herself to be unfamiliar with the requirements of the FISA statute, verifying the perception that she lacked interest in national security matters.
In its 2001 report, the Judiciary Committee determined that the Attorney General and the Department of Justice failed to follow the standards of the Supreme Court that the requirements for “domestic surveillance may be less precise than that directed against more conventional types of crime.” Both the Bellows Report and the Judiciary report found this to be one of the most significant mistakes in a case littered with errors. The Bellows Report concluded, “The final draft FISA application [redacted] on its face, established probable cause to believe that Wen Ho Lee was an agent of a foreign power, that is to say, a United States Person currently engaged in clandestine intelligence gathering activities for or on behalf of the PRC which activities might involve violations of the criminal laws of the United States and that his wife, Sylvia Lee, aided, abetted or conspired in such activities. Given what the FBI and OIPR knew at the time, it should have resulted in the submission of a FISA application and the issuance of a FISA order.”
Why OIPR rejected the FBI’s efforts in the Lee case remains a mystery. In closed hearings in 1999, Kornblum could only repeat his original objections to the FBI’s application. In one such hearing, Senator Fred Thompson asked an FBI agent to read aloud the factors in its original Letterhead Memorandum that the agent believed constituted probable cause.
After he finished, Thompson asked Frances Fargo Townsend, the new Counsel for Intelligence Policy, if she still believed that this did not constitute probable cause. After she and her OIPR entourage said, “yes,” Thompson observed that they must be the only ones in the room who thought so, at which point he took a poll. In a hearing room filled with Senators and congressional aides from both sides of the aisle, no one agreed with Townsend. She then expressed her bewilderment at all the fuss, saying, “What’s the big deal? The warhead information was stolen in 1988, it’s long gone now.”
When the FBI finally got around to searching Lee’s computers and office in 1999, nearly four years after it first started investigating him, agents discovered that he had constructed his own personal library of nuclear weapons secrets by removing classified file markings and moving these files onto an unprotected computer system highly vulnerable to outside penetration. Beginning in 1993, and again in 1994 and 1997, Lee loaded these files onto as many as twenty or more portable computer tapes. While the FBI sought and failed to obtain a FISA warrant in 1997, Lee was making a tape that recorded the latest and most sensitive secret details on modifications to the W-88 thermonuclear warhead. Known as Tape N, it was never recovered.
Similarly, after the 9/11 tragedy, FBI Headquarters relented and permitted the Minneapolis field office to search Zacarias Moussaoui’s computer and a duffel bag containing his personal possessions. According to the criminal indictment agents found the following items: two knives; binoculars; flight manuals for the Boeing 747 Model 400; a flight simulator computer program; fighting gloves and shin guards; a paper referring to a handheld Global Positioning System receiver; a camcorder; and software that could be used to review pilot procedures for the Boeing 747 Model 400 and a hand-held aviation radio.
What was most revealing was a notebook listing two telephone numbers in Germany and the name Ahad Sabet, letters indicating Moussaoui was a marketing consultant in the United States and Europe for Infocus Tech, and a computer disk containing information related to crop dusting. Upon investigation, agents determined that Ahad Sabet was an alias for Ramzi Bin al-Shibh, a roommate of Mohammed Atta in Hamburg, Germany, when both lived there in 1998 and 1999. These two formed an al Qaeda terrorist cell in Hamburg beginning in 1998. An Ahad Sabet wired money to the 9/11 co-conspirators on a number of occasions over 2000 and 2001.
He also tried to enroll in flight school in Florida in 2000, but was denied a visa. He tried three more times to enter the U.S. but was denied visas each time. On one visa application, he listed the telephone number in Germany that Moussaoui had in his pos-session when he was arrested. Moussaoui made several calls to a number in Dusseldorf, Germany. Shortly thereafter Ahad Sabet received two wire transfers from the United Arab Emirates, which he promptly forwarded to Moussaoui, who was then in Oklahoma. Moussaoui used the money to attend the Pan Am International Flight Academy in Minneapolis, where he trained on a simulator for a Boeing 747 Model 400.
Infocus Tech is a fictitious Malaysian-based front company set up by Yazid Sufaat. Sufaat hosted a January 2000 meeting in Kuala Lumpur of al Qaeda terrorists and met with Moussaoui there in October 2000. The FBI also learned that Moussaoui had been present in an al Qaeda training camp in Afghanistan in 1998. In addition to the computer disk containing information on crop dusting, the FBI learned that Moussaoui had inquired about starting a crop dusting company in Norman, Oklahoma just after he left flight school there. Had this information been available to the FBI before 9/11, agents might have been about to connect enough dots to disrupt the terrorist’s plans.
There is nothing intrinsically wrong with the FISA regulations, especially as modified and updated by recent legislation. The problem, as always, is in the implementation and execution of congressional mandates. One Washington lesson that the Bush administration appears to have forgotten is “personnel is policy.” President Bush and his team underestimated the damage done by Clinton, Reno, and Freeh to our national security defenses at the Department of Justice and the FBI. Special Agent Coleen Rowley’s letter to Director Mueller was a wake-up call, but it is not yet clear that it was comprehended.
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