Did the FBI blow the Moussaoui probe?

A Minneapolis whistleblower says she should have been given a warrant to wiretap the French terror suspect, but experts say she hasn't proved her case yet.

Published May 30, 2002 12:49AM (EDT)

Coleen Rowley's memo to FBI Director Robert Mueller has become a media blockbuster, seeming to provide the smoking gun that proves FBI incompetence in the months before Sept. 11. In the memo, Rowley, chief counsel in the FBI's Minneapolis field office, blasts top FBI officials for "throw[ing] up roadblocks and undermin[ing] Minneapolis' by-now desperate efforts to obtain a FISA [Foreign Intelligence Surveillance Act] search warrant" to tap so-called 20th hijacker Zacarias Moussaoui's phone and search his computer.

According to Rowley, Minneapolis agents "identified [Moussaoui] as a terrorist threat from a very early point," a conviction confirmed by French intelligence about his "affiliations with radical fundamentalist Islamic groups and activities connected to Osama bin Laden." Yet the FBI never even took the Minneapolis FISA request to the Department of Justice, the first stop before going to the secret intelligence court where FISA warrants are granted.

Critics of the FBI say the Rowley letter shows the bureau impeded the diligence of its Minneapolis office and blocked its efforts to get the warrant it sought, instead of facilitating them. And yet a chorus of skeptics from across the political spectrum is raising questions about some of Rowley's claims. They say that from the evidence in the public record, at least, it's unclear that Rowley had enough information to make her case for a FISA warrant.

Even Ronald Kessler, author of "The Bureau: The Secret History of the FBI" and a harsh critic of what he depicts as its timidity and laziness under former FBI director Louis Freeh, says that from what he knows of the available data, the Minneapolis information and French intelligence probably weren't sufficient to get a FISA warrant.

"Under FISA, you're supposed to show that a person is either working for a foreign government or a terrorist group. The French just said he was a radical fundamentalist," he said. In fact, there are differing accounts of exactly what French intelligence shared with the United States. Last week Jean-Charles Brisard, coauthor of "Bin Laden: The Forbidden Truth," told Salon that French officials shared evidence that Moussaoui trained at al-Qaida camps in Afghanistan, but American intelligence officials have not confirmed that report.

The evidence laid out in Rowley's memo "does not contain the type of information that is normally the basis of a FISA application," says Jonathan Turley, a professor of constitutional law at George Washington University who has worked for the National Security Agency and appeared before the FISA court. "An agent's hunch, no matter how reasoned it may be, lacks the type of factual foundation to take the extreme step of a FISA search." After all, he says, the case against Chinese-American scientist Wen Ho Lee was based on a similar hunch with a comparable amount of evidence.

In fact, while she doesn't mention the Lee debacle, Rowley's letter attributes FBI timidity in the Moussaoui case to a "climate of fear" resulting from a series of bureau blunders, including Ruby Ridge and Waco. And critics like Kessler say the FBI was hampered by political correctness in investigating al-Qaida: for example (by a policy that Kessler says was PC run amok) of not allowing agents to follow Muslim suspects into mosques.

"Bureaucracies are inherently chilling," adds Kenneth C. Bass III, counsel for intelligence policy in the Department of Justice from 1979 until 1981. "The bureau has been stung very badly in the last few years in a variety of areas. Wen Ho Lee is one. Ruby Ridge is another. Every time that happens, there are calls for reorganization coupled with a hesitancy from some quarters."

Yet in this case, he says, "there is no evidence that anybody didn't do their job with the best judgment in all the circumstances that were presented to them." He suggests that in an office like Minnesota that rarely deals with suspected terrorists, a case like Moussaoui's is bound to seem unique and urgent, but "by the time it gets to Washington it's one of many."

"My suspicion, without having seen any of the raw information, is that none of the intelligence that was before headquarters at the time, if looked at individually or collectively, would scream out 'terrorist agent,'" he says.

Of course, it clearly screamed out "terrorist agent" to Rowley, which is part of the reason her memo argues that agents should be able to circumvent headquarters "and go directly to federal judges." Yet even after Sept. 11, some say we don't want to make FISA warrants easier to get than they already are.

For one thing, the FISA court circumvents almost all constitutional privileges. People subject to FISA warrants aren't notified of the evidence presented against them or even that searches have been carried out. "The FISA court represents an inherent danger to a democratic system. It's antithetical to most of our basic and fundamental principles," says Turley.

Gregory Nojeim, the associate director and chief legislative counsel of the ACLU's national office in Washington, foresees dire consequences if FISA standards are further slackened. "The FBI operates under very permissive investigative guidelines and statutes," he says. "The USA Patriot Act relaxed those statutes even further. To relax them even more is to risk a return to the days when Richard Nixon claimed the power to wiretap his political opponents without judicial oversight for reasons of national security."

So while Rowley's letter certainly merits attention by congressional investigators, her argument that she should have been given a FISA warrant isn't quite such a slam-dunk. Had the FBI collated all the al-Qaida-related intelligence it was receiving -- from the Minneapolis office, from French intelligence, and from Phoenix, where FBI agent Kenneth Williams clearly had a hunch worth following up about Middle Eastern men at American flight schools -- the collective intelligence probably would have merited a FISA warrant to step up surveillance of Moussaoui. In that respect, Turley says, "there is certainly a basis for charging negligence." And if it turns out that Dave Frasca, the supervisor of the bureau's Radical Fundamentalist Unit, knew of the Phoenix memo when he handled Rowley's FISA request, there will be more reason for finger-pointing.

But Turley insists the FBI wasn't negligent for refusing to proceed with a warrant application based solely on the information Rowley provided. In the wake of Sept. 11, of course, many Americans might wish the Minneapolis agent had been listened to. But changing the law to give Rowley more freedom would give the rest of us less freedom, Turley says. "You have to preserve some minimal standards even under the FISA process. Presumably our liberties are the thing we're trying to safeguard from external threat. It's hardly a solution to sacrifice those liberties in the process of their protection."

By Michelle Goldberg

Michelle Goldberg is a frequent contributor to Salon and the author of "Kingdom Coming: The Rise of Christian Nationalism" (WW Norton).

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