Senate report: FBI still unprepared

A bipartisan report says the agency is still too cautious in dealing with terror suspects -- and has promoted the agents who bungled the Moussaoui case.

Published March 4, 2003 12:22AM (EST)

Whether we're talking about a nightclub sound manager warning that pyrotechnic displays might cause a concert to turn into a disaster, a NASA safety engineer expressing concern that the Space Shuttle Columbia might break apart two days before it blew up, or two former senators trying to get the president to pay attention to their January 2001 report on a pending terrorist attack, you might think by now we would pay a little more heed to alarms sounded by expert sources.

But a recent warning alarm about the continued ineptitude of the Federal Bureau of Investigation, sounded by a bipartisan group of senators last week, went almost entirely unheard. The questions raised were grave, focusing not only on what the FBI did wrong before 9/11, but also on the fact that those same mistakes, systemic problems and incompetent FBI executives continue to plague the bureau, leaving the country vulnerable to another terrorist attack.

"There is a real question as to whether the FBI is capable of carrying out counterintelligence to protect the citizens of the United States," Sen. Arlen Specter, R-Penn., said, acknowledging "anger and frustration" in his tone. "Sept. 11 might well have been prevented" had the FBI done its job properly, he said. "What are they doing now to prevent another 9/11?"

Specter was one of three senators on the Judiciary Committee who, on Tuesday, Feb. 25, at the Senate Radio/TV Gallery, said that the FBI still didn't have its house in order, almost a year and a half after Sept. 11. Sen. Charles Grassley of Iowa and Specter -- the No. 2 and No. 3 ranking Republicans on the Judiciary Committee -- and Sen. Patrick Leahy of Vermont, the ranking Democrat, issued an interim report.

Its chief criticism: that FBI officials as high-ranking as the director were ignorant of the surveillance law, and were still applying a too-stringent standard for those FBI agents seeking warrants to watch individuals under suspicion.

They also proposed legislation to ensure greater congressional oversight of the FBI's surveillance powers.

Disconcertingly, FBI sources contacted by Salon backed the report. "It's an important report," the FBI's Minneapolis bureau chief, whistleblower Coleen Rowley, told Salon. "Unfortunately, it's not getting as much attention as it deserves." The FBI still needs "to address its inherent endemic problems," says Time Magazine's 2002 Person of the Year. And as the Senate report indicates, much of that improvement has yet to take place.

"They're right on point," seconds former FBI special agent John Vincent, who retired last December after 27 years in the bureau and who reviewed the interim report for Salon. "Everything they said was correct."

A very early draft of the report was leaked to the New York Times last August, at a time when only Specter was involved. A less comprehensive version, the report didn't directly criticize FBI director Robert Mueller III, name specific FBI brass allegedly at fault, or specifically address how the FBI was misunderstanding the applicable surveillance law. This report does. Though all members of the Judiciary Committee were invited to participate in the drafting the report, only Grassley and Leahy did so. The committee chairman, Sen. Orrin Hatch, R-Utah, issued a letter protesting the report's findings.

Referring to an FBI field report from Phoenix about suspicious individuals taking flight training courses, and the stymied Minneapolis investigation of Zacarias Moussaoui, Specter said that "it was evident that had this trail been followed, along with other evidence, that the tragedy of Sept. 11 might well have been avoided." After all, Specter said, the warrant that Rowley sought to search Moussaoui's computer -- which was not granted until after the terrorist attacks -- would have revealed "a veritable blueprint" for the events of that horrible Tuesday morning.

The three senators charged key members of the law enforcement organization with negligence, incompetence and ignorance. "I hate to say this," Leahy said, "but we found that the FBI is ill-equipped" to conduct surveillance on those in the United States possibly plotting terrorist acts on behalf of foreign powers. The senators' complaints focused around implementation of warrants under the Foreign Intelligence Surveillance Act. Passed in 1978 to prevent Communist espionage, and expanded in the USA PATRIOT Act to prevent further terrorist attacks, FISA allows the government to conduct surveillance on foreign nationals and U.S. citizens acting as foreign agents.

The senators said FBI brass in Washington, D.C., imposed too harsh an evidence standard before applying for FISA warrants.

In the past, the senators said, a FISA application usually needed to show a reasonable basis to believe that an individual is engaged in criminal conduct. But the FBI for years has been acting as if the standard is a higher one, requiring "probable cause," meaning that it is more likely than not that the person will engage in some malfeasance. Sen. Richard Shelby, R-Ala., chairman of the Senate's Select Committee on Intelligence, clearly agrees with the three senators on this matter. A few months ago, Shelby said that Justice Department attorneys used "a hyperrestrictive and legally unnecessary approach to FISA applications."

The Justice Department immediately dismissed the report as being "old news," inaccurate, unfair, unofficial and the views of a minority on the committee.

"The Justice Department has fully addressed the FISA problems that occurred almost entirely prior to this administration," Justice Department spokeswoman Barbara Comstock said, referring to 75 error-filled FISA warrants filed in 2000 and 2001 -- a matter that was only a small part of the report's focus. (For this story, the FBI referred questions to the Department of Justice, which referred a reporter to Comstock's written statement.)

In rejecting the senators' report, Comstock also quoted Judge Royce Lamberth, the former presiding judge of the FISA court, in support of her claim that all was well at the Justice Department. Lamberth said, "We consistently find the [FISA] applications 'well-scrubbed' by the attorney general and his staff before they are presented to us," and that "the process is working. It is working in part because the attorney general is conscientiously doing his job, as is his staff."

But many in law enforcement view Lamberth as being too cautious in his views of what surveillance is permitted under FISA -- precisely the mind-set that has made FBI brass in Washington, D.C., so uncooperative and unwilling to help agents in the field, intelligence sources say. Citing Lamberth as supportive of the FBI's current view of FISA would be like citing Mark McGwire in support of Major League Baseball's policy on performance-enhancing dietary supplements.

Because of all these problems, the three senators proposed the Domestic Surveillance Oversight Act of 2003, requiring that every act of surveillance be reported to the House and Senate Judiciary committees. All three senators expressed concern that the Justice Department and FBI had not been responsive or cooperative with their oversight inquiries. "The FBI and the Justice Department seem to make it an adversarial process," Grassley said.

Since the bill would mandate public accounting of the broad details -- though not specifics -- of the number of individuals subjected to surveillance under FISA and the number of times FISA information is used for law enforcement purposes, civil libertarians applauded it.

"There's a lot of concern in this country that, especially with the USA PATRIOT Act, FISA has become a massive tool for secret surveillance," Timothy H. Edgar, legislative counsel of the American Civil Liberties Union, told Salon. "One way to assuage those concerns -- or show that they're true -- is to have more reporting." While the secret nature of foreign surveillance may be understandable, Edgar says that "certainly some basic information about how many people are under surveillance or what rules are used to issue a FISA warrant wouldn't be national security issues."

The ACLU's support of the bill is curious, however, in that Specter, Grassley and Leahy spent so much time talking about the FBI enforcing too high a standard for granting warrants. Is that something the ACLU would support? "It depends," Edgar says. "If it's bureaucratic intransigence, we're not for that." Edgar also sees such problems as ultimately eroding civil liberties since "if the government is not using the powers it has effectively against persons suspected of terrorism, that encourages the Congress to grant it more authority."

Rowley agrees that "greater oversight is needed."

"And obviously, right now, we're not only in a climate of terrorism but we're adding onto it a war," she told Salon. "So all of these issues, if anything, have grown, so the need for oversight has grown as well."

On Tuesday, senators said that during their "what went wrong?" hearings last summer, it was clear that key FBI attorneys and Mueller still didn't know the correct standard -- that they were still thinking the burden of evidence is higher than the law provides, still maintaining a too-harsh standard before they would attempt to obtain a FISA warrant.

This is even more troubling since the Justice Department and FBI headquarters developed an attitude of priding themselves on never having a FISA warrant application rejected by the FISA court, as if overcautiousness was a badge of honor. This has been apparent at least since Attorney General Janet Reno appointed a review team to look at FBI bungling of the Wen Ho Lee case. Assistant U.S. Attorney Randy Bellows concluded that the Justice Department and FBI had been too conservative when applying for FISA warrants in the Lee case. Bellows called their record of only having had one FISA application rejected "unseemly" and "proof of error rather than proof of excellence."

Numerous expert sources told Salon that the problem began during the administration of President Clinton under Attorney General Janet Reno, but that it still exists. "The FBI doesn't need the broad powers given to us in the PATRIOT Act," former agent Vincent says. All they need is for the FBI executives back in Washington to apply the actual law. "They always applied too high a standard."

Specter seemed perhaps most chagrined at the fact that even though "director Mueller did not appear to know the [FISA] standard" in a June 6, 2002, hearing, when FBI attorneys were questioned in a closed hearing more than a month later, on July 10, they too remained misinformed. Not one of these had even heard of Illinois vs. Gates, the relevant 1983 Supreme Court decision about that matter.

The interim report also indicates that last June, Mueller indicated that from then on he wanted to be informed every time a request for a FISA warrant was denied. The weekend after that declaration, however, "the FBI lawyer whom it most directly affected claimed to know nothing about the new 'policy' beyond what he had read in the newspaper."

When Mueller is next called before the Senate, "He's going to have a lot of questions to answer," Specter promised.

The senators didn't express much confidence that anything had changed since last summer. A Sept. 13 memo FBI brass wrote to clarify the FISA standard for all agents was, Specter said, "virtually unintelligible." The curmudgeonly former district attorney of Philadelphia said that he feared that this misunderstanding of FISA law had meant a delay in the arrest of Sami al-Arian. Al-Arian is the former University of Southern Florida computer sciences professor accused two weeks ago of conspiracy to murder more than 100 Israelis and Americans in suicide attacks as leader of the terrorist organization Palestinian Islamic Jihad. "I wonder how many files there are like al-Arian's?" he asked.

In her famous May 21, 2002, memo to Mueller, Rowley faulted a number of higher-ups at the FBI headquarters in Washington with obstructing her ability to get a FISA warrant to search Moussaoui's computer. Their job "was to assist and coordinate with field division agents on terrorism investigations and the obtaining and use of FISA searches," Rowley wrote, but instead they decided to "throw up roadblocks and undermine Minneapolis' by-now desperate efforts to obtain a FISA search warrant."

"This is not theoretical criticism," Specter said, citing Rowley's experience. Rowley felt that the threshold for a FISA warrant had been more than met as soon as the "French Intelligence Service confirmed his affiliations with radical fundamentalist Islamic groups and activities connected to Osama Bin Laden," she wrote in her memo. Moreover, unbeknownst to Rowley, three weeks earlier FBI headquarters had received the so-called July 10, 2001, Phoenix memo from FBI agent Kenneth Williams, which noted that bin Laden supporters had been "attending civil aviation universities/colleges in Arizona."

Some have argued that the FBI was merely complying with FISA law. "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," Ronald Kessler, author of "The Bureau: The Secret History of the FBI," told Salon last May. The National Security Law Unit of the FBI told Rowley that Moussaoui had to be a member of a "recognized" international terrorist organization in order to meet FISA requirements.

But the senators argue that the statute in no way requires that the terrorist group be an identified and State Department-recognized organization. All that is needed to qualify as "a group engaged in international terrorism or activities in preparation therefore," the senators argue in their report, is that there is a substantial chance that Moussaoui was planning a terrorist attack with a "group," meaning at least two people total.

But using the latter, faulty, standard, the FBI brass, led by Marion "Spike" Bowman, chief of the National Security Law Unit, ruled that there wasn't enough "probable cause" to justify a FISA warrant. That changed, of course, on the morning of Sept. 11, illustrating that -- as Rowley wrote in her memo -- "the missing piece of probable cause was only the FBI's (FBIHQ's) failure to appreciate that such an event could occur. The probable cause did not otherwise improve or change."

Incredibly, in Des Moines, Iowa, on Jan. 10, Mueller awarded Bowman with a presidential citation and cash bonus of approximately 25 percent of his salary.

"The lesson at the FBI still is if you mess up, do something wrong, you get promoted, you get an award," Grassley said Tuesday.

Former agent Vincent agrees. "I think that says it all," Vincent tells Salon about the Bowman citation. He goes on to tell about a recent inspection at the FBI's Chicago field office, where Vincent served until his December retirement, where an assistant special agent in charge received a poor rating. Not long afterward, that ASAC was promoted and became a special charge in a different city. "That's how the FBI works now," Vincent says.

Grassley agrees. "I can't think of a single person being held accountable anywhere in government for what went on and what went wrong prior to Sept. 11," he said. "It seems that nobody in government makes any mistakes anymore." At the press conference he cited as examples not only Bowman, "who got a big award and a cash bonus," but five others:

1. Supervisory special agent Michael Maltbie, who not only concluded there wasn't enough information to go forward with Rowley's FISA application, but removed certain information from her request before presenting it to the National Security Law Unit. Maltbie "got a transfer to Cleveland" where he'll be a field supervisor, Grassley said.

2. David Frasca, head of the FBI's Radical Fundamentalist Unit, to whom the Phoenix memo was addressed, though he didn't see it until after Sept. 11. Frasca is "still at headquarters," Grassley said.

3. Van Harp and Charles Matthews, whom Grassley described as two of the "senior FBI officers who committed misconduct then lied about it and covered up" matters related to the Ruby Ridge fiasco.

4. And Robert Jordan, the assistant director of the FBI's Office of Professional Responsibility, whom Grassley called "petty" and whom the Justice Department's Office of Inspector General accused of having given "a clear impression of retaliation" against unit chief John Roberts, who was critical of the FBI on CBS's "60 Minutes."

In broad terms, many of these same complaints were raised in a report issued last December by Shelby. "The pattern of dysfunction compels us to consider radical reform at the FBI," Shelby wrote.

But little seems to have changed since then. Former agent Vincent is pessimistic about the possibilities of solving the bureau's problems. "Is it possible for the FBI to change its culture? No," he said. "Somewhere along the line everything got flipped around."

By Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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