davad70

Join Date 03/2001

The Truth About FISA & Zacarias Moussaoui

You might be surprised.

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There have been many people writing and talking recently regarding the the case of Zacarias Moussaoui. As a refresher;

Zacarias Moussaoui (born May 30, 1968) is a French terrorist of Moroccan descent involved in the conspiracy that resulted in the September 11, 2001 attacks. He was taken into custody by the Federal Bureau of Investigation in on August 16, 2001 after attending a flight school in Minnesota where an instructor expressed concerns about the abilities and motivations of his student. After the attacks unfolded, he was described as a possible "20th hijacker", though he maintained that he was uninvolved with that plan up until pleading guilty in April 2005 to charges brought against him. He is the only person in the United States to have been charged in connection with the September 11 attacks.

On August 16, 2001, Moussaoui was arrested by the FBI in Minnesota and charged with an immigration violation. Some agents worried that his flight training had violent intentions, so the Minnesota bureau tried to get permission to search his laptop computer, but they were turned down. Other materials he had when he was arrested included two knives, 747 flight manuals, a flight simulator computer program, fighting gloves and shin guards, and a computer disk with information about crop dusting.

Leading in that research was agent Coleen Rowley who made an explicit request for permission to search the personal rooms of Moussaoui. This request was first cut down by her boss Deputy General Counsel Marion "Spike" Bowman and later on rejected based upon FISA regulations (amended after 9/11 by Patriot Act, Bowman afterwards received a well paid bureau awards for "exceptional performance"). Several further attempts failed the very same way. As a result the chance of finding early evidence passed unused.

On the whole situation FBI watchdog Sen. Chuck Grassley, R-Iowa wrote to FBI Director Robert Mueller:

If the application for the FISA warrant had gone forward, agents would have found information in Moussaoui's belongings that linked him both to a major financier of the hijacking plot working out of Germany, and to a Malaysian al-Qaida boss who had met with at least two other hijackers while under surveillance by intelligence officials.

Link

Several conservative writers and pundits, including one blogger here at JU have recently implied that the blame for the FBI failure to secure a warrant for Moussaoui's laptop rests with the FISA court.

A blogger here at JU went so far as to offer the following;

So when the brouhaha came out about Bush wiretapping transatlantic calls, we had one judge "resign in protest". Or did he? Perhaps he resigned in shame, and just used an excuse to cover his own incompetence? And after you have been burned by a judge before, and are now trying to prevent the very thing that might have been prevented with a simple court order, why would anyone trust a bunch of pontificating self serving blow hards again? Link

On the January 4 broadcast of The Rush Limbaugh Show, Limbaugh joined a caller in denouncing the "federal judge" who allegedly barred the FBI from accessing Moussaoui's computer:

CALLER: Good afternoon, Rush. One of the things that I think stands out most and it's -- it's not being talked about: We cannot go back to the courts and -- and (inaudible) to get their approval. That would lead us to the 21st [sic] hijacker and we couldn't get into his laptop 'cause we were forbidden by a judge to get in that and, "Allah, welcome, here comes 9-11."

LIMBAUGH: Haha! That's a --

CALLER: 'Cause they could not get in there.

LIMBAUGH: -- you're talking about Zacarias Moussaoui.

CALLER: That is correct, and we were on -- we were barred by a federal judge from getting into his computer. So, that's the type of protection these Democrats, these demagogues in, --

LIMBAUGH: That's exactly right. That's the right to privacy that they're talking about.

CALLER: Yeah. And then the other thing --

LIMBAUGH: He was and that -- that is an excellent point because it was all -- that was raised by the Minneapolis FBI office, I think, after 9-11; [former FBI agent] Coleen Rowley was her name. But they had the guy's laptop and they wanted to get into it, wanted to connect the dots. Judge wouldn't let them do it. You know, that -- that actually -- it -- it -- great point. Why aren't -- why aren't some of these judges investigated and held to account for their secret decisions? Everybody else is out there getting mad at the president for what he's doing in secret, the NSA for doing what it's doing in secret, but how about these judges?

CALLER: That judge had no right --

LIMBAUGH: As -- as you said, that may very well have prevented us from thwarting the 9-11 hijackers if we could have gotten into Moussaoui's computer. All this talk about the great FISA court and how judges can do no wrong and need to be involved in the process; what's their record been when their inputs been used to influence our national security? That -- that is an excellent point.

Link

It is a fact that if a warrant had been obtained we would have obtained information which possibly could have helped prevent 9/11.

Sen. Chuck Grassley makes this case in a letter to FBI Director Robert Mueller;

If the application for the FISA warrant had gone forward, agents would have found information in Moussaoui's belongings that linked him both to a major financier of the hijacking plot working out of Germany, and to a Malaysian al-Qaida boss who had met with at least two other hijackers while under surveillance by intelligence officials. Link

The only problem I have with people blaming the FISA court is that a report by Senators Spector, Leahy, and Grassley found that the fault was with the FBI and not with FISA.

We found that key FBI personnel involved in the FISA process were not properly trained
to carry out their important duties. In addition, we found that the structural, management, and
resource problems plaguing the FBI in general contributed to the intelligence failures prior to the
9/11 attacks.

First, key FBI personnel responsible for protecting our country against terrorism did not
understand the law. The SSA at FBI Headquarters responsible for assembling the facts in
support of the Moussaoui FISA application testified before the Committee in a closed hearing
that he did not know that "probable cause" was the applicable legal standard for obtaining a
FISA warrant. In addition, he did not have a clear understanding of what the probable cause
standard meant. The SSA was not a lawyer, and he was relying on FBI lawyers for their
expertise on what constituted probable cause. In addition to not understanding the probable
cause standard, the SSA’s supervisor (the Unit Chief) responsible for reviewing FISA
applications did not have a proper understanding of the legal definition of the "agent of a foreign
power" requirement.19 Specifically, he was under the incorrect impression that the statute.
Second, the complaints contained in the Rowley letter about problems in the working
relationship between field offices and FBI Headquarters are more widespread. There must be a
dynamic relationship between Headquarters and field offices with Headquarters providing
direction to the efforts of agents in the field when required. At the same time, Headquarters
personnel should serve to support field agents, not to stifle initiative by field agents and hinder
the progress of significant cases. The FBI’s Minneapolis office was not alone in this complaint.
Our oversight also confirmed that agents from the FBI’s Phoenix office, whose investigation and
initiative resulted in the so-called "Phoenix Memorandum," warning about suspicious activity in
U.S. aviation schools, also found their initiative dampened by a non-responsive FBI
Headquarters.

So deficient was the FISA process that, according to at least one FBI supervisor, not only
were new applications not acted upon in a timely manner, but the surveillance of existing targets
of interest was often terminated, not because the facts no longer warranted surveillance, but
because the application for extending FISA surveillance could not be completed in a timely
manner. Thus, targets that represented a sufficient threat to national security that the Department
had sought, and a FISA Court judge had approved, a FISA warrant were allowed to break free of
surveillance for no reason other than the FBI and DOJ’s failure to complete and submit the
proper paper work. This failure is inexcusable.

Fifth, the FBI’s inability to properly analyze and disseminate information (even from and
between its own agents) rendered key information that it collected relatively useless. Had the
FBI put together the disparate strands of information that agents from around the country had
furnished to Headquarters before September 11, 2001, additional steps could certainly have been
taken to prevent the 9/11 attacks. So, while no one can say with certainty that the 9/11 attacks
could have been prevented, in our view, it is also beyond reasonable dispute that more could
have been done in the weeks before the attacks to try to prevent them.Fifth, the FBI’s inability to properly analyze and disseminate information (even from and
between its own agents) rendered key information that it collected relatively useless. Had the
FBI put together the disparate strands of information that agents from around the country had
furnished to Headquarters before September 11, 2001, additional steps could certainly have been
taken to prevent the 9/11 attacks. So, while no one can say with certainty that the 9/11 attacks
could have been prevented, in our view, it is also beyond reasonable dispute that more could
have been done in the weeks before the attacks to try to prevent them.Link

So in summary, it is clear that this investigation was botched...it just wasn't botched by FISA, as some would like for us to believe.

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Oops...sorry about the double paste at the end there.

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A very fine article.

Anti-FISA enthusiasts are prone to think that all judges are liberal and consequently protect even obvious suspects. What they really mean is that liberals are terrorist apologists. Such accusations lead to fascist leaning positions that tear down the even minimal protection of individual rights. A FISA judge in reality is to make sure innocent citizens are not violated by improbable cause; it has nothing to do with impeding the uncovering of terrorists.

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Good Article Davad.

If the FBI messed up with the investigation to the point that the FISA couldn't issue a warrant, that is on the FBI, I agree.

What I wonder is why Moussaoui is being treated as a criminal in the first place. He came to this country for the perpose of waging war against the U.S. That doesn't make him a criminal, that makes him an enemy during wartime.

I'm still not sure why our system of defense allows us to defend the Constitution in other countries, but not in our own. Why does a wartime enemy who chooses to make our nation the battlefield deserve any more "rights" than an enemy in overseas battlefields?

Yeah, I've asked the question before, but your article shows more evidence of why we shouldn't be granting Constitutional Rights to our enemies.

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Island Dog

Join Date 06/2003

+1047

Judge wouldn't let them do it.

Thanks.

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That doesn't make him a criminal, that makes him an enemy during wartime.

But the war hadn't officially started yet... he was apprehended and released in August 2001, and the perceived threat was not there at the time.
Hindsight is 20/20, my friends.

it just wasn't botched by FISA, as some would like for us to believe.

your article shows more evidence of why we shouldn't be granting Constitutional Rights to our enemies.

I agree. This article seems to say "hang the juris prudence". It's more on the side of the prevention of terrorism rather than due process. You seem to be saying that the FBI should have gone around FISA and cracked the laptop on the grounds of the existing warrant. I hope I am not misunderstanding you.

Are you saying the ends justify the means?

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You seem to be saying that the FBI should have gone around FISA and cracked the laptop on the grounds of the existing warrant. I hope I am not misunderstanding you.

No, what I'm saying is that if the FBI had the proper level of knowledge back then, they would have realized that they had more than enough cause to obtain the warrant they wanted. In addition, if they were skeptical about whether they had enough, a better understanding of FISA would have shown them that could have just went ahead and cracked the laptop and then obtained the warrant afterwards, as is allowed by FISA. The report issued by Specter and the other senators afterwards clarified some of the definitions that apparently "confused" the FBI. But even if the law was too difficult for them to understand, that fault lies with Congress and not with the court itself.

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No comment Dr. Guy?

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That doesn't make him a criminal, that makes him an enemy during wartime.

Good point.

a better understanding of FISA would have shown them that could have just went ahead and cracked the laptop and then obtained the warrant afterwards, as is allowed by FISA.

ANother good point.

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Daiwa

Join Date 07/2001

+350

If you will recall, there was a "culture of avoidance" in the FBI that was pervasive at the time, reinforced by the, as it turned out misguided, emphasis on "heightening the wall" between the domestic & foreign intelligence agencies even more than the law strictly required (Gorelick doctrine). The mindset was such that there was almost no incentive to aggressive prying for fear of private or public reprimand for having overstepped murky bounds, particularly when potentially stepping onto the CIA's turf. After Ruby Ridge & Waco, one can understand, if not condone, the timidity of the FBI in these areas. I don't excuse them, but agencies of our own government were operating at cross purposes to a great extent at the time. To the extent the judge denied a request to access Moussaoui's laptop on the basis of one or more technicalities when common sense warranted access, the FISA process was also part of the problem.

Cheers,
Daiwa

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To the extent the judge denied a request to access Moussaoui's laptop on the basis of one or more technicalities when common sense warranted access, the FISA process was also part of the problem.

A FISA judge never denied such a request, because a request was never made.

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SingrDave:

That doesn't make him a criminal, that makes him an enemy during wartime.

But the war hadn't officially started yet... he was apprehended and released in August 2001, and the perceived threat was not there at the time.
Hindsight is 20/20, my friends.

Actually, the first shot fired on U.S. soil in this war was the first attack on the World Trade Center. Just because Prs. Clinton chose to see it as a criminal act (instead of an act of war) does not change anything. Sept. 11, 2001 was merely the day that America finally realized that we are at war.

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Daiwa

Join Date 07/2001

+350

A FISA judge never denied such a request, because a request was never made.

Acknowledged. I should have reworded that: To the extent the complexity or technical requirements of a FISA request discouraged submission of a manifestly appropriate one, the FISA process was also part of the problem.

Cheers,
Daiwa

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To the extent the complexity or technical requirements of a FISA request discouraged submission of a manifestly appropriate one, the FISA process was also part of the problem.

All they needed was probable cause, the same burden presented to a regular judge to issue a regular warrant. From your linked article:

The SSA at FBI Headquarters responsible for assembling the facts in support of the Moussaoui FISA application testified before the Committee in a closed hearing that he did not know that "probable cause" was the applicable legal standard for obtaining a FISA warrant.

In addition, he did not have a clear understanding of what the probable cause standard meant.

Unfortunately, this following part was just human failings. He didn't know what probable cause was, or maybe he thought the FISA court require a higher standard of probable cause?

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He didn't know what probable cause was, or maybe he thought the FISA court require a higher standard of probable cause?

I think by reading the report from congress on the matter, one could make a strong case that they did think a higher standard of probable casue was required.

My main point of this article was to illustrate that it's become very fashionable lately to lay blame on judges (some of it warranted) as opposed to where it rightly belongs in certain cases. The FISA court has been demonized by many on the right regarding the Moussaoui case without justification.

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Daiwa

Join Date 07/2001

+350