Saturday, July 15, 2006

come on Arlen, do you think we're stupid?

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So, I started writing a letter to Senator Specter about his "compromise" bill with the Whitehouse. I found this excellent diary on Kos by georgia10. In her diary she provides this link to Spector's bill S.2453. I started reading it and I only made it to item 3, in SEC. 2 FINDINGS, when things started looking fishy.
(3) For days before September 11, 2001, the Federal Bureau of Investigation suspected that confessed terrorist Zacarias Moussaoui was planning to hijack a commercial plane. The Federal Bureau of Investigation, however, could not meet the requirements to obtain a traditional criminal warrant or an order under the Foreign Intelligence Surveillance Act of 1978 to search his laptop computer. Report of the 9/11 Commission 273-76.
Ok boys and girls let's go read the report of the 9/11 Commission 273-76.
Paragraph #1315 (on page 273)
The agents in Minnesota were concerned that the U.S.Attorney’s Office in Minneapolis would find insufficient probable cause of a crime to obtain a criminal warrant to search Moussaoui’s laptop computer.94 Agents at FBI headquarters believed there was insufficient probable cause. Minneapolis therefore sought a special warrant under the Foreign Intelligence Surveillance Act to conduct the search (we introduced FISA in chapter 3).

Paragraph #1316 (on page 274)
To do so, however, the FBI needed to demonstrate probable cause that Moussaoui was an agent of a foreign power, a demonstration that was not required to obtain a criminal warrant but was a statutory requirement for a FISA warrant.95 The case agent did not have sufficient information to connect Moussaoui to a “foreign power,” so he reached out for help, in the United States and overseas.

Paragraph #1317 (on page 274)
The FBI agent’s August 18 message requested assistance from the FBI legal attaché in Paris. Moussaoui had lived in London, so the Minneapolis agent sought assistance from the legal attaché there as well. By August 24, the Minneapolis agent had also contacted an FBI detailee and a CIA desk officer at the Counterterrorist Center about the case.

Paragraph #1318 (on page 274)
The FBI legal attaché’s office in Paris first contacted the French government on August 16 or 17, shortly after speaking to the Minneapolis case agent on the telephone. On August 22 and 27, the French provided information that made a connection between Moussaoui and a rebel leader in Chechnya, Ibn al Khattab. This set off a spirited debate between the Minneapolis Field Office, FBI headquarters, and the CIA as to whether the Chechen rebels and Khattab were sufficiently associated with a terrorist organization to constitute a “foreign power” for purposes of the FISA statute. FBI headquarters did not believe this was good enough, and its National Security Law Unit declined to submit a FISA application.

Paragraph #1319 (on page 274)
After receiving the written request for assistance, the legal attaché in London had promptly forwarded it to his counterparts in the British government, hand-delivering the request on August 21. On August 24, the CIA also sent a cable to London and Paris regarding “subjects involved in suspicious 747 flight training” that described Moussaoui as a possible “suicide hijacker.” On August 28, the CIA sent a request for information to a different service of the British government; this communication warned that Moussaoui might be expelled to Britain by the end of August. The FBI office in London raised the matter briefly with British officials as an aside, after a meeting about a more urgent matter on September 3, and sent the British service a written update on September 5. The case was not handled by the British as a priority amid a large number of other terrorist-related inquiries.


Paragraph #1320 (on page 274)
On September 4, the FBI sent a teletype to the CIA, the FAA, the Customs Service, the State Department, the INS, and the Secret Service summarizing the known facts regarding Moussaoui. It did not report the case agent’s personal assessment that Moussaoui planned to hijack an airplane. It did contain the FAA’s comment that it was not unusual for Middle Easterners to attend flight training schools in the United States.

So we have Specter claiming that, "The Federal Bureau of Investigation, however, could not meet the requirements to obtain a traditional criminal warrant or an order under the Foreign Intelligence Surveillance Act of 1978 to search his laptop computer." But after reading the 9/11 commission report it's clear that the there's a big difference between,"could not meet the requirements" and "FBI headquarters did not believe this was good enough,". I'd be willing to bet that if it was up to the field agents, they would have filed the FISA request. In fact let's read what Coleen Rowley had to say about it in her now famous memo to her boss.
3) The Minneapolis agents' initial thought was to obtain a criminal search warrant, but in order to do so, they needed to get FBI Headquarters' (FBIHQ's) approval in order to ask for DOJ OIPR's approval to contact the United States Attorney's Office in Minnesota. Prior to and even after receipt of information provided by the French, FBIHQ personnel disputed with the Minneapolis agents the existence of probable cause to believe that a criminal violation had occurred/was occurring. As such, FBIHQ personnel refused to contact OIPR to attempt to get the authority. While reasonable minds may differ as to whether probable cause existed prior to receipt of the French intelligence information, it was certainly established after that point and became even greater with successive, more detailed information from the French and other intelligence sources. The two possible criminal violations initially identified by Minneapolis Agents were violations of Title 18 United States Code Section 2332b (Acts of terrorism transcending national boundaries, which, notably, includes "creating a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States") and Section 32 (Destruction of aircraft or aircraft facilities). It is important to note that the actual search warrant obtained on September 11th was based on probable cause of a violation of Section 32.1 Notably also, the actual search warrant obtained on September 11th did not include the French intelligence information. Therefore, the only main difference between the information being submitted to FBIHQ from an early date which HQ personnel continued to deem insufficient and the actual criminal search warrant which a federal district judge signed and approved on September 11th, was the fact that, by the time the actual warrant was obtained, suspected terrorists were known to have highjacked planes which they then deliberately crashed into the World Trade Center and the Pentagon. To say then, as has been iterated numerous times, that probable cause did not exist until after the disasterous event occurred, is really to acknowledge that 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. When we went to the United States Attorney's Office that morning of September 11th, in the first hour after the attack, we used a disk containing the same information that had already been provided to FBIHQ; then we quickly added Paragraph 19 which was the little we knew from news reports of the actual attacks that morning. The problem with chalking this all up to the "20-20 hindsight is perfect" problem, (which I, as all attorneys who have been involved in deadly force training or the defense of various lawsuits are fully appreciative of), is that this is not a case of everyone in the FBI failing to appreciate the potential consequences. It is obvious, from my firsthand knowledge of the events and the detailed documentation that exists, that the agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and his possible co-conspirators even prior to September 11th. Even without knowledge of the Phoenix communication (and any number of other additional intelligence communications that FBIHQ personnel were privy to in their central coordination roles), the Minneapolis agents appreciated the risk. So I think it's very hard for the FBI to offer the "20-20 hindsight" justification for its failure to act! Also intertwined with my reluctance in this case to accept the "20-20 hindsight" rationale is first-hand knowledge that I have of statements made on September 11th, after the first attacks on the World Trade Center had already occurred, made telephonically by the FBI Supervisory Special Agent (SSA) who was the one most involved in the Moussaoui matter and who, up to that point, seemed to have been consistently, almost deliberately thwarting the Minneapolis FBI agents' efforts (see number 5). Even after the attacks had begun, the SSA in question was still attempting to block the search of Moussaoui's computer, characterizing the World Trade Center attacks as a mere coincidence with Misseapolis' prior suspicions about Moussaoui.2

And you really have to wonder why, when the FBI sent a teletype to the FAA and the CIA they didn't include, "the case agent’s personal assessment that Moussaoui planned to hijack an airplane."

Let's see how hard is it for the FBI to get a FISA warrant approved? From the Electronic Privacy Information Center's website (where they compiled statistics from the list of FISA annual reports) it appears to be very easy to get a FISA warrant approved. From 1978 to 2000, 13,147 FISA warrants had been approved by the court and exactly 0 (ya that's right- 0) had been rejected. So I'm thinking incompetence caused the failure of Moussaoui's laptop to being searched, not FISA requirements. Specter has to know this, and should quit trying to cover for Bush.

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