http://www.huffingtonpost.com/coleen-rowley/fisa-not-to-blame-for-mou_b_13310.html

Coleen Rowley
FISA Not to Blame for Moussaoui Mess
January 5, 2006

[...] Republican commentators such as William Kristol and Rush Limbaugh claim FISA procedures, and the legal impediments they impose, prevented FBI agents from acting. Consequently, they maintain President Bush is justified in abrogating FISA law to order the NSA to eavesdrop on Americans.

As legal counsel to the Minneapolis FBI Division and witness to the entire Moussaoui case, I can tell you that these assertions are not just factually wrong, they miss the real problems that existed within our intelligence gathering superstructure. I wrote a 13 page memo and testified before Congress on these very failures. Yet, some individuals continue to misapply and misrepresent what I said.

MYTH #1: THE JUSTICE DEPARTMENT DECIDED THERE WAS NOT SUFFICIENT EVIDENCE TO GET A FISA WARRANT TO ALLOW THE INSPECTION OF MOUSSAOUI'S COMPUTER FILES.

No evidence whatsoever was presented at any time to the Justice Department of Moussaoui's suspicious flight training and ties with terrorism. The Justice Department's Office of Intelligence Policy and Review, which handles FISA matters, was never contacted. Furthermore, no contact was made either with criminal attorneys in the Department of Justice or with the U.S. Attorney's Office. Therefore, no decision was ever made by Department of Justice personnel regarding the given evidence and its application to FISA or criminal standards.

In fact, the subsequent intelligence committees' inquiry, Inspector General investigation, and 9-11 Commission all decided that a sufficient connection between Moussaoui and a foreign power (or international terrorist group) DID EXIST to have satisfied the FISA standard. Likewise, criminal prosecutors advised (after the fact) that they would have proceeded forward to seek a search warrant of Moussaoui's belongings based on the information known in August 2001.

As it turned out, faulty interpretations and widely-varying perceptions of FISA procedures, especially what the "FISA wall" entailed, played a big role in the FBI's determination not to contact DOJ, and not to move forward until after the 9/11 attacks occurred. There was also the little problem that the FBI's national security law unit lawyer had not actually read for himself the facts that Minneapolis agents had provided but, instead, had relied upon a short, verbal briefing by the first-line supervisor. When 9-11 happened, however, and it was painfully clear in hindsight that the FBI had botched it, this same lawyer's (the lawyer who had not read it) pronouncement of insufficient probable cause served as a convenient blanket defense to protect all of the underlying governmental incompetence. My 2002 memo punched a hole in that blanket defense and led to some truth being unraveled. The bottom line is that THE FISA LAW ITSELF WAS NOT THE REASON THE FBI FAILED TO INSPECT MOUSSAOUI'S PERSONAL EFFECTS AND COMPUTER FILES. Rather, the faulty interpretations and failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation.

MYTH #2: ROWLEY DEPICTED THE LEGAL MECHANISM FOR SECURITY WARRANTS UNDER FISA AS BURDENSOME AND RESTRICTIVE, A VIRTUAL ROADBLOCK TO EFFECTIVE LAW ENFORCEMENT.

It's true that the "FISA wall" problem did play a role in preventing the effective sharing and analysis of information pre 9-11. But to the extent that the "FISA wall" issue was problematic, (and in fact, there is no denying it was a problem, even if it all turned out to be more a problem of misperception and faulty interpretations), it was remedied when the Patriot Act brought down the "wall" shortly after 9-11 that prevented effective sharing of national security intelligence with criminal investigators and/or criminal attorneys. [...]

MYTH #3: THE FISA PROCESS IS NOT QUICK OR FLEXIBLE ENOUGH TO DETECT AND THWART TERRORISTS.

The FISA process has always been a secret process which contains effective emergency provisions. These emergency provisions allow the attorney general enormous power to authorize secret "emergency" electronic surveillance and searches before any court order is granted, or an application is made, for up to 72 hours. No application is even necessary if the surveillance is terminated before the 72 hour "emergency" period ends. In fact, Minneapolis agents were so convinced of the urgency of the situation involving Moussaoui that they requested use of this emergency provision, not the regular FISA process.

Unfortunately, this would have required Attorney General Ashcroft, who had just ranked terrorism as his lowest priority in early August 2001, to appreciate the danger and sign off on the "emergency." And it would have required then FBI Acting Director Pickard to take the emergency request to Ashcroft after he (Ashcroft) had rebuked him (Pickard) earlier that summer, as Pickard testified to the 9-11 Commission, saying "he (Ashcroft) didn't want to hear any more about terrorism." Given these circumstances, FBI Headquarters quickly gave up on Minneapolis' request to seek AG approval for use of this emergency provision.

But myths aside, Moussaoui did not escape inspection because the FISA law was not permissive enough. And with the further changes wrought by the Patriot Act, bringing down the FISA wall and making the FISA process even more permissive, it is certainly not a good argument for Bush to skirt the law now.

- - Coleen Rowley, January 5, 2006

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121901027.html

The Washington Post
Tuesday, December 20, 2005; Page A31

Vital Presidential Power
By William Kristol and Gary Schmitt

[...]

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

This is presumably one reason why President Bush decided that national security required that he not simply follow the strictures of the 1978 foreign intelligence act, and, indeed, it reveals why the issue of executive power and the law in our constitutional order is more complicated than the current debate would suggest. It is not easy to answer the question whether the president, acting in this gray area, is "breaking the law." It is not easy because the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.

[...]

To engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.

- - William Kristol is editor of the Weekly Standard.
- - Gary Schmitt is a resident scholar at the American Enterprise Institute.

- - The Washington Post, 12/20/2005