By Paul Rosenzweig, Ph.D., The George Washington University Law School
FBI agent Coleen Rowley might have been able to connect the dots before 9/11 if not for statutory limitations that kept the FBI from pursuing an important lead. If not for the FISA legislation, maybe the FBI could have apprehended the terrorists responsible for 9/11. This leads us to the question: Why?
An Opportunity Lost
In August 2001, Coleen Rowley was newly assigned to the FBI field office in Minneapolis, Minnesota. That same month, FBI agents got a tip that an individual—someone we now know to have been Zacharias Moussaoui—was taking flight training in an unusual manner.
Apparently, or so the report goes, Moussaoui was intent on learning how to take a plane off the ground and fly it in the air, but uninterested in learning how to land the plane.
This is unusual, since landing a plane is the most difficult part of the task at hand, and typically also something that every pilot thinks is essential to master.
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Collecting Evidence
The FBI, during its investigation of this odd tip, determined that Moussaoui—a French citizen—had overstayed his right to remain in the United States.
A U.S. Immigration and Naturalization Services officer reported that Moussaoui’s overstay subjected him to arrest; and so, the FBI took him into custody in an attempt to discern his intentions.
Upon further investigation, the FBI’s joint terrorism task force learned from French intelligence sources that Moussaoui was affiliated with radical fundamentalist Islamic groups, including one connected to Osama bin Laden.
The agents, therefore, wanted to search Moussaoui’s personal effects and the contents of his laptop. When Moussaoui refused to consent to the computer search, the agents became doubly suspicious.
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The Office of Intelligence Policy and Review
Based on the information they’d already gathered, plus the data from French intelligence, the FBI agents thought that they had probable cause to believe that Moussaoui was engaged in criminal activity—and thus, that they had the basis for a criminal search warrant.
However, because part of their probable cause suspicions were based on intelligence collected by the French, they needed approval from a headquarters unit at the Department of Justice known as the Office of Intelligence Policy and Review, or OIPR, to apply for the search warrant. That approval would also have been required if the intelligence had been collected by the CIA.
The Office of Intelligence Policy and Review was created in the wake of the FISA law to monitor and restrict the transfer of information from the intelligence community to law enforcement. These restrictions colloquially came to be known as the wall.
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Legal Roadblock
Because of concerns that U.S. use of the French intelligence information might be inappropriate in a domestic matter, FBI higher-ups in Washington opted not to ask OPIR to authorize the application for a criminal search warrant.
The FBI headquarters also refused to authorize an application for a warrant to the Foreign Intelligence Surveillance Court, or FISC—the court set up by FISA to review the applications filed by the government.
Apparently, the grounds for this decision was the belief that the FBI had not yet gathered enough information to connect Moussaoui to an unfriendly foreign power or movement, and the FISC was only authorized to issue a warrant when the evidence made that type of connection.
And so, the Justice Department lawyers made no warrant application to the intelligence court, and nothing was done with the Moussaoui information.
The Failure of FBI’s Review Process
Sadly, this failure to connect the dots was compounded by other failures in the FBI’s review process. What FBI headquarters in Washington knew—but the field office in Minneapolis did not—is that just three weeks before Moussaoui’s arrest, the FBI field office in Phoenix had forwarded information to headquarters with the tip that Al-Qaeda operatives would be attending flight schools seeking flight training for terrorist purposes.
This July 2001 memorandum to FBI headquarters was written by Phoenix Special Agent Kenneth J. Williams. The memo warned of possible efforts by Osama bin Laden to send students to the United States to attend civil aviation universities and colleges.
Failure to Join the Dots
After the successful attacks on the Pentagon and the World Trade Center on September 11, 2001, the very same information that had earlier been deemed insufficient for a search warrant was used as a basis for authorizing the search of Moussaoui’s computer. Of course, the only thing that had changed in the interim was the horrific attack.
As Coleen Rowley put it in a letter to FBI director Robert Mueller complaining about the obstacles the agency had encountered in attempting to do its job, “To say that probable cause did not exist until after the disastrous events occurred is really to acknowledge that the missing piece of probable cause was only the FBI headquarters failure to appreciate that such an event could occur.”
We will never know what might’ve happened if Rowley’s request had been approved prior to 9/11—perhaps nothing; or perhaps everything.
Common Questions about How the FISA Legislation Prevented the FBI from Stopping 9/11
The FBI had to ask for the OIPR’s authorization because of the FISA legislation. And from their point of view, it was too much of a headache asking the OIPR for the criminal search warrant because it was using intelligence in a domestic criminal case.
After September 11, even with FISA restrictions, the same information that had earlier been deemed insufficient for a search warrant was used as a basis for authorizing the search of Moussaoui’s computer. The only thing that changed in the interim was the terrorist attack by al-Qaeda.
Even with the FISA legislation, the failure to connect the dots was compounded by other failures in the FBI’s review process. The FBI headquarters in Washington knew that al-Qaeda operatives would be attending flight schools seeking flight training for terrorist purposes.
