Ashcroft knew

The official responsible for the most dramatic failures of Sept. 11 turns out to be the attorney general. His sweeping anti-terror measures in recent months were a fig leaf to cover naked incompetence.

Published May 23, 2002 11:37PM (EDT)

Why won't the questions go away? Why does the Watergate question, slyly invoked over the weekend by Sen. Joseph Lieberman, D-Conn. -- "What did the president know and when did he know it" -- resonate with such persistence?

On one level, you've got to feel for those Bush administration officials suddenly squeezed between victims' families, Congress and the press. After all, the Sept. 11 hijackings represented as shrewdly organized a criminal conspiracy as any on record. Mohammed Atta and his low-tech co-conspirators quite literally flew beneath the radar of a national security bureaucracy obsessed with high-tech gizmos and satellite missile defenses. The specifics of the martyrdom operation were closely held by an intimate circle tight and tiny enough to defy penetration by the most determined intelligence service.

And yet the questions escalate. Partly, perhaps, it's just emotional: Something in us recoils at the thought that a handful of individuals could so radically upend our safe and prosperous society, turn history on its ear. Just as it is oddly reassuring to believe that weaselly Lee Harvey Oswald could not have killed President Kennedy alone, so we yearn for proof that Bush, the FBI, the CIA -- some national parent-surrogate -- must have known, had to have known about the Sept. 11 attacks, even if they failed to do anything about it.

In addition, the Bush administration -- long before Sept. 11 obsessed with secrecy and evasion of public scrutiny -- is not helping its own case. In the last few days the White House strategy has been to intimidate critics with 100-percent-certain predictions of future terrorism. This only after the previous strategy -- persistently, misleadingly changing the subject -- led to the most embarrassing statement from any national security advisor since Al Haig declared himself president: Condoleezza Rice's "explanation" that in August the president was briefed only about "hijacking in the traditional sense." Could there be a more evasive non-denial denial -- or a statement more offensive to common sense? Were the president and his national security advisor really claiming that "hijacking in the traditional sense" didn't merit an even minimal brush-up of the nation's notoriously appalling air-travel security, for instance warning airlines to secure their cockpit doors?

I will admit to a more-than-general interest in the unfolding story of who knew what and what might have been done. Civil libertarians like myself took a lot of lumps after Sept. 11 for our longstanding suspicion of government abuses unleashed in the name of fighting terror. In June 2000 in Salon, I had written critically of an anti-terrorism commission that proposed massive surveillance of foreign students in the U.S. and ending restrictions on the CIA. Based partly on congressional testimony by then-FBI Director Louis Freeh that downplayed the terrorist threat, I called the commission's proposals "a con job," a phrase that right-wing pundits and Webaholics have relished rubbing in my face since Sept. 11. I am assured by Salon's editors that the e-mails still arrive daily.

Yes, I'll certainly plead guilty to ignorance about the risk from Osama bin Laden's sectarian mafia. I welcome Bush, Cheney and Rice to the pre-9/11 fools' paradise. We've all had a lot to learn.

But looking closely at the past week's revelations, it strikes me that we may have learned some dangerously wrong lessons from the attacks. Yes, there was a failure -- but what, exactly, was it?

After Sept. 11, you'll recall, Attorney General Ashcroft rushed to Capitol Hill with a hodgepodge of legislation to grant the FBI, INS and federal prosecutors powers to spy, jail and interrogate far greater than in any past war or national emergency. The attacks happened, we were repeatedly told, because the FBI and CIA were hamstrung by liberal reformers back in the '70s. You'll remember the secret detention of more than 1,000 immigrants -- 98 of them still in jail -- and the wholesale interrogations of Muslim immigrant communities. Only such sweeping measures, Ashcroft and a parade of administration officials insisted, could prevent another Sept. 11.

But the revelations of the past week suggest that the FBI & Co. needed fewer new powers than we were told. With existing authority, FBI agents in Minnesota arrested Zacharias Moussaoui -- but the bureaucracy declined to provide a search warrant, also available under existing authority, for his computer hard drive. With existing authority, Phoenix FBI agent Ken Williams did a quick, low-tech round of interviews with Arab flight school students and wrote his famous memo on the potential for air terror attacks inside the U.S. -- but the Justice Department bureaucracy sat on it. With existing authority, the FAA was notified about Moussaoui's arrest and decided not to pass word on to airlines, as the Wall Street Journal reported. Last week National Security Advisor Rice detailed a steady and accurate flow of intelligence on al-Qaida from our own agencies and European allies all through the summer before the attacks, including the possibility of a suicide bombing at the G-8 summit. On and on.

The problem wasn't that the feds lacked "intelligence." They -- like a lot of us -- lacked perspective, a very different matter.

And given what we now know, which of the "solutions" rushed to passage by Ashcroft in the days after Sept. 11 -- and sought for years by the antiterrorism lobby -- would actually have made a difference? Eavesdropping without a warrant, secret anti-terrorism courts, black-bag jobs? Eviscerating the Freedom of Information Act? Putting the CIA back in the assassination business (intensely promoted in the days after Sept. 11 by former CIA director James Woolsey and other administration surrogates)?

In fact, this week's revelations suggest that an administration obsessed with high-tech and cloak-and-dagger "defense" failed to understand that effective public safety is about the mundane. Any one of a number of routine law enforcement procedures might -- might -- have made a difference before Sept. 11: a memo passed up the chain of command, a phone call to the airlines. So might a more careful scrutiny of our border control policies, like the quick and easy visas routinely granted to Saudis, the one nation in the world most responsible for funding al-Qaida and nurturing Islamic fundamentalism.

In retrospect, the single official responsible for the most dramatic failures of Sept. 11 turns out to be none other than Attorney General Ashcroft himself. Ashcroft has kept an uncharacteristically a low profile in recent days, and no wonder. No bureaucracies have ever looked more fatally entangled in red tape than the FBI and INS, both of whose bucks stop at the attorney general's desk. And if news accounts are accurate, shortly after Sept. 11 Ashcroft learned of Phoenix FBI agent Williams' prescient investigation but kept that crucial, embarrassing information from both president and public. Instead, he rushed forward the massively repressive USA-Patriot Act and immigrant sweeps, knowing that such measures were a fig leaf to cover naked incompetence.

So the who-knew scandal is more than anything bad news for the attorney general. All the more so because -- though most of the press has not noticed -- Ashcroft's post-Sept. 11 security policy has been taking it on the chin from another direction: the courts.

Just a few weeks ago, a federal judge in New Jersey bluntly ordered Ashcroft's Justice Department to release the names of secretly held detainees. In Michigan, a federal judge slammed Ashcroft's lawyers for trying to keep secret deportation proceedings against a Lebanese man they claim ran a terrorist-affiliated charity. In Brooklyn, yet another judge charged Justice with abusing grand jury laws by "unlawfully detaining" a Jordanian man as a material witness. "If the government has probable cause to believe that a person has committed a crime, it may arrest that person," wrote Judge Shira Sheindlin. "But since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury."

Seen in this light, the truly scandalous nature of the who-knew coverup becomes clear. Who knew? Ashcroft knew. Each time the attorney general went to Congress, insisting that only broader domestic spying and detention laws could make the country safer, he knew the truth: that in the weeks before Sept. 11, the White House and FBI, already well-equipped with intelligence and investigative tools, dropped the ball. But for months after the attacks Ashcroft helped cover up the government's embarrassing lapses while aggressively pursuing a dubious domestic security agenda which courts are only now beginning to question. If the performance of Ashcroft's agencies before Sept. 11 has shaken public confidence in our national security apparatus, the attorney general's actions since then have done more to damage the rule of law than to protect us from further terrorism.

By Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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