Gary Schmitt of the American Enterprise Institute has written extensively on the Foreign Intelligence Surveillance Act (FISA) — see here and here. In the case of the 9/11 plot, Schmitt noted in the Washington Post that FISA might have prevented FBI agents from detecting and preventing the al Qaeda attack.
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.
Liberals claim that “FISA presented no barriers” to getting a warrant to examine Moussaoui’s laptop. The failure to get one “was simply a case of a poorly trained agent” misinterpreting the law. Schmitt explains below why this latest FISA myth is nonsense.
At first, “the myth” was that FISA played no role in the failure to examine Moussaoui’s laptop computer. But now that the quotes from the Joint Inquiry show that it was a central consideration, the new “myth” is apparently that FISA was misunderstood by “a poorly trained agent.” If properly read, FISA was no problem at all. Yet, the screw-up was not, as the earlier suggested, “simply a case of a poorly trained agent.” According to the congressional joint inquiry, the “poorly trained agent” was supported in his position by “several FBI attorneys with whom” he consulted. Second, as for the Deputy General Counsel’s (DGC) remarks, they are more smoke than fire. Yes, one can get a warrant for someone who is an agent of any international terrorist group, except that, in this case, the Chechen rebels to which Moussaoui was linked were not on the State Department list of recognized foreign terrorist groups. And, indeed, as the 9/11 Commission notes: after French intelligence provided information suggesting a connection between Moussaoui and the Chechen rebels, “this set off a spirited debate between the Minneapolis Field Office, FBI headquarters, and the CIA as to whether the Chechen rebels and Khattab [a rebel leader] were sufficiently associated with a terrorist organization to constitute a ‘foreign power’ for purposes of the FISA statute. FBI headquarters did not believe this was good enough, and its National Security Law Unit declined to submit a FISA application.” And the fact that, according to the DGC, no one in the national security unit said the Chechens “were not a power that…could qualify as a foreign power under the FISA statute” is the kind of double-negative that can only be characterized as post 9/11 CYA since the issue being debated was whether one could make a positive case for considering the rebels a terrorist group. As for the claim of the FBI attorneys that, had they been aware of the Phoenix field office’s concerns about al-Qaeda flight training in the US, they would have sent a FISA request forward to Justice, it may well be true. Nevertheless, this does not mean that they would have gotten Justice to move forward on their request or that a FISA judge would have approved it. Just like FBI headquarters before them, the lawyers at Justice would have asked: What evidence do we have that Moussaoui is connected to a recognized terrorist organization and, in particular, al Qaeda? And the answer would have been virtually nothing. All the government would have had was the suspicious coincidence of pilot training and suspicions about Moussaoui’s own radical – 1st Amendment protected – Islamic beliefs. Neither would likely have been sufficient for a FISA judge to conclude he had “probable cause to believe” that Moussaoui was an agent of a terrorist group. It was not until September 13 that a possible link of Moussaoui to al Qaeda surfaced from British intelligence. Now, we can all pretend that FISA can be read more liberally but the record shows that it hasn’t been. For example, when one looks at the congressional investigation of Wen Ho Lee, senators from both the left and the right made a complaint similar to the one we are hearing today. After setting out in their report on the investigation the lengthy list of highly suspicious behavior on the part of Lee – behavior which was potentially far more problematic than what the Bureau had on Moussaoui – they argued that a FISA warrant should have been granted. But no FISA warrant was granted because, at the end of the day, there was nothing the FBI could show of a concrete nature that would have moved a judge to conclude that he had a “plausible cause to believe” that Lee was an agent of a foreign power. Given the abuses that took place in the past, it is not surprising that people want to hold onto FISA. Yet to continue to pretend that FISA, when read as it was intended to be read, doesn’t create a hurdle that makes terrorist i
nvestigations more difficult than common sense would suggest is necessary is itself a myth.
nvestigations more difficult than common sense would suggest is necessary is itself a myth.
