- The Washington Times - Thursday, December 13, 2001

Tuesday's announcement of Zacarias Moussaoui's conspiracy indictment in connection with the September 11 attacks is certain to bring new focus on the need to reform the current workings of the Foreign Intelligence Surveillance Act (FISA), a statute that is undermining law enforcement's ability to investigate international terrorists operating on U.S. soil. Readers may recall that Mr. Moussaoui, a French Algerian, had raised suspicion this summer when he attempted to seek flight training at schools in Minnesota and Oklahoma. At one point, he offered to pay cash for lessons on how to steer a commercial airliner, but not on how to take off or land it. He also asked specifically about flying over New York, and about how to open the cabin doors on a Boeing aircraft. Alarmed, his instructors contacted the FBI. Mr. Moussaoui was arrested in mid-August in Minnesota and jailed on minor immigration charges. After learning from French intelligence that Mr. Moussaoui had been associated with members of an Algerian terrorist group, FBI agents in Minnesota sought a warrant to open up the hard drive on his computer.

Their request, made under FISA, never reached federal court. It was rejected by lawyers working for a branch of Mr. Ashcroft's Justice Department known as the Office of Intelligence Policy and Review (OIPR), which must approve such requests before the FBI can seek a warrant in court. The OIPR rejected the request, saying that the agents failed to produce sufficient information to justify that warrant. After September 11, the FBI obtained a warrant and finally got to open Mr. Moussaoui's hard drive, where they found information about airliners, crop dusters and wind patterns. The OIPR's decision to reject the earlier request, say congressional sources who had been briefed on the matter, "raises questions on what the FBI might have learned at the time and where it may have led as the terrorists' suicide plot unfolded," Jerry Seper of The Washington Times reported in October.

But, at a press conference Tuesday announcing Mr. Moussaoui's indictment, FBI Director Robert S. Mueller went out of his way to avoid criticizing FISA legislation rammed through Congress during Jimmy Carter's presidency in the wake of sensationalistic hearings conducted by the Church and Pike committees in the House and Senate). "Could we have done something else? Perhaps … The attorneys back at [the] FBI determined there was insufficient probable cause for a FISA [order allowing the FBI to investigate Mr. Moussaoui], which appears to be an accurate decision," Mr. Mueller said. "And September 11 happened."

But September 11 didn't just "happen" in some kind of a vacuum. In June 2000, the National Commission on Terrorism, headed by U.S. counterterrorism Ambassador L. Paul Bremer III, made a series of recommendations (largely ignored until September 11) about how to prevent terrorist actions on U.S. soil. The panel which included such national-security heavyweights as former CIA Director James Woolsey and John Lewis, former assistant director of the FBI's national security division issued a blistering critique of OIPR and its implementation of FISA. "The FISA establishes that the court may order a wiretap if there is probable cause to expect that the target may be involved in terrorism. The OIPR has repeatedly gone beyond the probable cause standard, requiring the FBI to provide additional information before forwarding the bureau's request to the FISA court," Mr. Bremer wrote. "In effect, the OIPR has been short-stopping FBI applications and usurping authority that belongs with the courts. Therefore, the commission recommends that the attorney general direct the OIPR not require information in excess of what is mandated by FISA."

In short, the FBI should have been investigating Mr. Moussaoui before the horrors of September 11. It is time for Mr. Ashcroft and Mr. Mueller to move quickly to change the unfortunate culture of timidity at OIPR, which undermines the FBI's ability to do serious investigative work before terrorist horrors occur.

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