Saturday, September 6, 2003

As the Bush administration and Congress focus anew upon the Patriot Act, few issues are more controversial than the issue of the failure to search the computer of Zacarias Moussaoui, the so-called 20th hijacker, prior to September 11.

According to supporters of the Patriot Act, the FBI was fatally prevented by excessive concerns about civil liberties from securing a search warrant for Moussaoui’s belongings — thereby thwarting the feds from gaining key data on a possible hijacking conspiracy.

In reality, as two bipartisan congressional reports concluded, Moussaoui’s computer was not searched prior to September 11 because of the FBI’s gross incompetence.

Instructors at the Pan Am International Flying Academy in Eagan, Minn., became suspicious of Moussaoui because, according to later press reports, he wanted to learn how to fly a 747 jet in mid-air but had no interest in learning how to land or take off. Moussaoui had no pilot’s license or aviation background. But he showed up with $6,800 in cash and a passion to learn a few flying skills as quickly as possible.

After phoning the local FBI office four times, a flight instructor finally reached the right FBI agent, relayed the suspicions on Moussaoui and bluntly warned, “Do you realize that a 747 loaded with fuel can be used as a bomb?”

The next day, Aug. 16, 2001, FBI agents came and, after ascertaining that Moussaoui’s visa was expired, arrested him. The INS agreed to hold Moussaoui for seven to 10 days — exploiting the flexibility in its regulations to protect the public from a potentially dangerous alien.

Minnesota-based FBI agents notified the CIA and the FBI liaison in Paris, seeking further information; French intelligence sources reported that Moussaoui was “a known terrorist who had been on their watch list for three years.” The CIA alerted its overseas stations that Moussaoui was a “suspect airline suicide hijacker” who might be “involved in a larger plot to target airlines traveling from Europe to the United States.”

On Aug. 18, Minneapolis FBI agents sent a 26-page memo to headquarters warning that Moussaoui was acting “with others yet unknown” in a hijack conspiracy. Three days later, Minneapolis agents notified headquarters: “If [Moussaoui] seizes an aircraft flying from Heathrow to New York City, it will have the fuel on board to reach D.C.”

But when Minneapolis agents sought FBI headquarters’ permission to request a search warrant to check out Moussaoui’s belongings, an agent at the FBI’s Radical Fundamentalist Unit refused permission. Instead, FBI headquarters insisted that Minneapolis agents file a search warrant request under the Foreign Intelligence Surveillance Act (FISA), a 1978 law that created the Foreign Intelligence Surveillance Court to authorize searches of agents of foreign governments and foreign organizations. FISA sets a much lower, easier, standard for securing search warrants than is required by other federal courts.

FBI headquarters lawyers incorrectly insisted that FISA required Minneapolis agents to prove that Moussaoui was linked to a foreign power before a search warrant could be issued. French intelligence had hinted that Moussaoui might be linked to Chechen rebels, and Minneapolis agents thought that might be sufficient to meet the FISA standard.

However, because the Chechen rebels were not a recognized terrorist group under U.S. law at that time, FBI headquarters insisted that Minneapolis agents find evidence connecting the Chechens to a recognized terrorist group. The congressional Joint Intelligence Committee report on pre-September 11 failures noted that “because of this misunderstanding, Minneapolis [FBI agents] spent the better part of three weeks trying to connect the Chechen group to al Qaeda.” This “wild goose chase” did nothing except buy time for the hijackers.

The Senate Judiciary Committee concluded in a 2003 report that “it is difficult to understand how the agents whose job included such a heavy FISA component could not have understood” the FISA law. As FBI agent Coleen Rowley later complained, the FBI headquarters supervisory special agent handling the Moussaoui case “seemed to have been consistently almost deliberately thwarting the Minneapolis FBI agents’ efforts.”

The Moussaoui search debacle vivifies what Sen. Richard Shelby, a conservative Republican from Alabama, derides as “the FBI’s dismal recent history of disorganization and institutional incompetence in its national security work.”

The Senate Judiciary report noted, “In the time leading up to the 9/11 attacks, the FBI and Justice Department had not devoted sufficient resources to implementing the FISA, so that long delays both crippled enforcement efforts and demoralized line agents.”

Eleanor Hill, the staff director for the Joint Intelligence Committee investigation into pre-September 11 failures, observed: “The lesson of Moussaoui was that FBI headquarters was telling the field office the wrong advice. Fixing what happened in this case is not inconsistent with preserving civil liberties.”

James Bovard is the author of “Lost Rights: The Destruction of American Liberty” (St. Martin’s Press, April, 1994).

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