- The Washington Times - Saturday, May 8, 2004

In one of those little-known events that often alter history, a federal judge’s chastisement of the FBI’s Foreign Intelligence Surveillance Act (FISA) unit, which oversees and approves applications for wiretaps and searches, may have inadvertently prevented uncovering the plot that led to the September 11, 2001, attacks.

In the fall of 2000, U.S. District Judge Royce Lamberth, who acted as chief of the Foreign Intelligence Surveillance Court, wrote a stern letter to then-Attorney General Janet Reno on behalf of all seven FISC members complaining about the bureau’s handling of applications for FISA warrants.

Specifically, the letter charged there was sloppy supporting documentation for intelligence wiretaps and added that, in several instances, it could be concluded the FBI was using FISA to obtain warrants in criminal matters, which was strictly forbidden. To obtain a FISA warrant, it was necessary to show the subject of surveillance had a connection with a foreign government or group. Warrants for criminal investigations are sought through normal judicial channels.

The FISA applications that caused Judge Lamberth and his fellow jurists major concern, reports say, were signed by the same field agent and approved in FBI headquarters by Michael Resnick, then supervisor of the counterterrorism division.

Miss Reno subsequently met with all seven judges of the foreign-intelligence court. They informed her they were so disturbed they would no longer accept any applications signed by Mr. Resnick. Miss Reno reportedly agreed the process had been sloppy and needed improvement.

Judge Lamberth, Miss Reno and then-FBI Director Louis Freeh discussed the situation, and Miss Reno sought to change the way agents were schooled in seeking warrants for foreign intelligence surveillance. Although FISC judges did not suggest Mr. Resnick had deliberately falsified applications, Miss Reno referred the matter to the Justice Department’s Office of Professional Responsibility, according to ABC network.

Those then close to the FBI situation say Mr. Freeh, a former federal judge, was livid, believing he had been embarrassed in front of his former fellow jurists. He ordered the entire FISA process overhauled and transferred Mr. Resnick, who was precluded from seeking further warrants, to another post.

From then on, sources said, probable cause for FISA applications had to be 75 percent to 80 percent provable. All this may have set the stage for one of the larger, unintended blunders in U.S. history.

Only months later FBI agents in Minneapolis became suspicious of Zacarias Moussaoui, the French citizen said to have been the 20th hijacker in the September 11 plot. Moussaoui was enrolled in a flight school in Minnesota. By Aug. 15, 2001, bolstered by French intelligence about Moussaoui’s possible al Qaeda connections, agents decided there was enough concern to merit arresting him on at least an immigration violation and to seek a FISA warrant to examine his computer, which he carefully guarded. The process immediately got caught up in the more stringent requirements for probable cause instituted by Mr. Freeh.

On Aug. 28, 2001, the Minneapolis agents were notified headquarters did not believe there was enough evidence to connect Moussaoui to a foreign operation and that their application for a warrant would be denied. This came despite the French intelligence reports.

In desperation, the agents went directly to the CIA counterterrorist center — only to be severely reprimanded by bureau headquarters for not first obtaining permission.

The FBI headquarters’ refusal to approve the applications for examination of Moussaoui’s computer was a normal response to Mr. Freeh’s reaction to the criticism from Judge Lamberth and the rest of the FISC and from Miss Reno, according to those close to the situation. Mr. Freeh had a volatile reputation and he overreacted, one source said. Under the circumstances, the new bureau supervisor was particularly cautious.

“After what happened to Resnick, no one in headquarters wanted to buck the system. We went to triple probable cause,” the source said.

The September 11 commission is considering the impact of Judge Lamberth’s complaint and the Minneapolis agents’ failure to get approval for the Moussaoui warrant, as well as the widely reported FBI unresponsiveness to concerns raised by Phoenix agents before September 11 about others training to be pilots.

It is not certain whether Moussaoui’s computer would have divulged enough to enable authorities to thwart the plot. But as in all the other missteps along the way, there was a real possibility this incredibly fragile conspiracy with only a 5 percent chance of success might have become unraveled. Meanwhile, Moussaoui’s prosecution continues.

Dan K. Thomasson is former editor of the Scripps Howard News Service.

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