The FBI's "Whistleblower"

TruthNews Commentary, June 6, 2002

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

-- 4th Amendment to the U.S. Constitution

While we at TruthNews love to investigate charges of government incompetence and stupidity, our review of the Rowley memo showed that most of the incompetence in the Moussaoui case originated with the writer of the memo. While Rowley took 13 pages to spell out her charges against the FBI (that's 10 pages longer than the recently concluded nuclear treaty with Russia), the heart of her complaint revolves around delays in issuing a warrant to examine Moussaoui's computer.

FBI agents in Minneapolis arrested Moussaoui on August 17 after officials at an Eagan, Minn., flight school tipped them off that the 33-year-old French citizen was acting suspiciously. Behaving suspiciously is not normally something that a person would be thrown in jail for, but the agents found that Moussaoui had overstayed his visa, so they were able to hold him on immigration charges.

The Minneapolis FBI office then sought approval to examine Moussaoui's computer in early September after French intelligence notified the FBI that Moussaoui had been associated with members of an Algerian terrorist group and may have traveled to Afghanistan. Rather than obtaining an ordinary search warrant, Rowley, as head lawyer of the Minneapolis office, decided to go through the little-known Foreign Intelligence Surveillance Act (FISA).

FISA, as its name implies, is a law that provides for the issuing of secret warrants to conduct wiretaps against foreign intelligence agencies operating in the U.S. FISA warrants are approved by a special court of rotating judges that sits in Washington. The FISA law itself applied only to wiretapping cases when it was first passed in the wake of the Watergate scandal in1978, but the law was later expanded in 1994 to include physical searches such as that requested by the Minneapolis FBI agents. This expansion, however, has been found unconstitutional in some cases by the Supreme Court. It should be noted that this expansion of the law was signed by then-President Bill Clinton, not exactly a champion of civil liberties, and passed by a Democrat-controlled Congress.

Normal criminal search warrants are issued by U.S. district judges under Title III of the U.S. code. Morton Halperin, in testifying before the Senate on October 3, 2001, explained that when the 1978 FISA law was passed, "it was agreed that the government would not use the FISA procedures if it was conducting a criminal investigation and would switch to a Title III warrant if it began a criminal investigation." FISA has been viewed by many civil libertarians as a violation of civil rights, since the FBI is able to conduct such a search, in Halperin's words, "without knock or notice, and without ever informing the person that the government has surreptitiously acquired information from his home."

Since Moussaoui was not a member of a foreign intelligence agency, why did Rowley chose to pursue a FISA warrant, especially in light of the fact that the FISA warrant could not be used in a criminal indictment and could possibly be found unconstitutional? The answer is that, as Rowley herself admitted, the FBI lacked evidence to justify a criminal warrant. Rowley told FBI headquarters at the time, "Although I think there's a decent chance of being able to get a judge to sign a criminal search warrant, our USAO [U.S. Attorney's Office] seems to have an even higher standard much of the time, so rather than risk it, I advised that they should try the other route." The "other route" was the FISA warrant.

FBI officials in Washington who turned down Rowley's FISA warrant are adamant that there were insufficient grounds to approve the warrant based on what was produced by Minneapolis agents. "There does not seem to be any disagreement that the legal standards [for a FISA warrant] weren't met," said one top U.S. law enforcement official. The law requires the bureau to show evidence that the suspect is an "agent" of a foreign power or terrorist group, something the Minneapolis field agents never had, the officials said.

Following the terrorist attacks on September 11, the Minneapolis office finally went to a U.S. district judge and obtained a criminal search warrant. Rowley claims that "probable cause" existed before the terrorist attacks, but the fact remains that she did not pursue a criminal warrant until after the terrorist attack itself provided the additional evidence necessary to secure the warrant.

When FBI agents finally cracked into the computer hard drive after the Sept. 11 attack, they found data on wind patterns relating to crop-dusters as well as a wealth of other information he had pulled down from the Internet involving crop-dusting aircraft. Since Mohammed Atta, one of the dead terrorists who flew a plane into the World Trade Center, had also checked into crop dusting aircraft, it would appear that the FBI should investigate Al Qaeda's connection to the anthrax attacks more closely. But it does not appear that the information from the computer had any relation to the September 11 attacks or could have prevented the attacks.

Rowley admits as much in her memo to the FBI director, "Although I agree that it's very doubtful that the full scope of the tragedy could have been prevented, it's at least possible we could have gotten lucky and uncovered one or two more of the terrorists in flight training prior to September 11th..."

Rowley accuses the FBI headquarters of disapproving the FISA warrant because the headquarters officials were more interested in taking the safe route and preserving their careers rather than getting the truth. "Numerous high-ranking FBI officials who have made decisions or have taken actions which, in hindsight, turned out to be mistaken or just turned out badly (i.e. Ruby Ridge, Waco, etc.) have seen their careers plummet and end," Rowley said in her memo to Mueller.

It's interesting that Rowley cites Ruby Ridge and Waco, two of the most monumental mistakes made by the FBI in the past decade, and two of the most wanton abuses of power, as the reason for the reluctance of mid-level officials at FBI headquarters to approve an illegal search warrant. The perpetrators of these fiascos deserve to have their heads roll, and if that makes FBI officials a little more cautious the next time they contemplate killing innocent American civilians, then that's good.

Rowley's chief complaint is that FBI officials weren't willing to play fast and loose with the law in granting a warrant to examine Mousaoui's computer. Well, Ms. Rowley, let me state on behalf of the American people that we don't want the FBI pursuing illegal search warrants based on scanty evidence just so the FBI might be able to "get lucky" and stumble into something that will help them prevent a crime.

Rowley's memo, dated May 21, might carry more weight if it had been sent on September 10 or even September 12, but coming as it does 8 months after the attacks, it offers little additional information on how the attacks might have been prevented. There are probably some in the FBI who would prefer to deal with suspects by pumping them full of sodium pentathol and beating them senseless. This was the Soviet Union approach, and the Soviets would no doubt have been better with dealing with this sort of thing. But then, the Soviet Union lasted only 70 years while the American republic has endured 226 years.

The fact is, we don't trust the government. Any power we give to the government is liable some day to be misused against us, so we limit the government's power. And we want our government officials to be held accountable when they abuse power, not when they fail to abuse power.

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