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One Less Brick In The Wall

Bureaucratic roadblocks hampered 9/11 warnings

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Almost two years after September 11, the full story of how government bureaucrats let the 9/11 hijackers slip through their grasp remains largely untold. It's there for those who want to read it, buried in the US Congressional record and legal journals that cover the shadowy world of secret government courts. Rewind to August 29, 2001, the day a frustrated FBI agent wrote a memo to headquarters that read, "Someday someone will die and -- wall or not -- the public will not understand why we were not more effective and throwing every resource we have at certain "problems.' The biggest threat to us now, [Osama bin Laden], is getting the most "protection.'"

Most of the time when you read that now-familiar quote in national newspapers, the phrase "wall or not" is cut out and replaced by ellipsis, likely so the quote will make sense to readers. But in those three words lies the heart of the story of September 11, the story of how the men responsible for the 9/11 massacre escaped over something called the "wall" in the weeks before the attack despite FBI agents' best attempts to avert disaster.

It's not surprising that the wall is not a popular topic in post-9/11 Washington, seeing as how the Clinton administration put most of it in place in 1995 and the Bush Justice Department governed its actions in the months before Sept. 11.

The story of the wall starts in 1978, when Congress passed the Foreign Intelligence Surveillance (FISA) Act, which forced presidents -- who had until then claimed unilateral power to spy on foreign agents on US soil -- to obtain judicial warrants. It also relaxed the usual Fourth Amendment rule requiring probable cause to suspect criminal activities before approving surveillance.

Over time, concern arose that the federal investigators would abuse FISA by using its lower probable cause standards to spy on ordinary criminals or even ordinary citizens. So Justice Department officials and the courts gradually adopted rules creating a distinction between criminal and espionage investigations. The absurd result was that wiretaps could remain in place only until it appeared the suspect had committed a prosecutable crime, even if it was a minor one. Then the wiretap had to be shut down, usually prematurely, even if, say, a terrorist cell continued planning a major attack. The Justice Department under Janet Reno added layer after layer of guidelines, until agents on the same al-Queda squad were forbidden from talking to each other if one was gathering anti-terrorism intelligence and the other was working on a criminal case against another member of the same terrorist cell. Terrorism investigations were virtually paralyzed.

Fast forward to mid-August 2001, when frantic FBI agents in Minneapolis sought permission to search the possessions of Zacarias Moussaoui. At the same time, a New York agent fought a similar frantic battle for clearance to hunt down al Queda operative Khalid Almihdar.

But Justice Department bureaucrats under John Ashcroft and senior FBI officials refused both requests. According to wall guidelines, a manhunt would violate Almihdar's rights because the New York FBI agent was a criminal investigator rather than an intelligence investigator and Almihdar was a suspected terrorist rather than a suspected felon. In Moussaoui's case, the search was refused for similar reasons.

FBI officials testifying before a FISA review court after Sept. 11 explained to the court that, "Those were the rules, and [headquarters] does not make them up."

Thirteen days later, Almihdar crashed Flight 77 into the Pentagon. A search of Moussaoui's possessions would have led them to two of the 9/11 terrorists and the German al Queda cell that planned the attack.

With the exception of freelance articles by Newsweek contributing editor Stuart Taylor Jr. and New York City Journal reporter Heather MacDonald which ran in several dozen small- to mid-sized newspapers and journals across the country, virtually all of the big media outfits glossed this story over as one of simple incompetence by the FBI and CIA.

While nearly all the major daily newspapers ran stories about the high-pitched legal battle within the FISA court system over the future of the wall after Sept. 11, none that I could find in a search of hundreds of articles explained the role the wall played in the Sept. 11 attacks.

In fact, the fight to rip down the wall, which should have been front page news, raged largely behind the scenes as a bizarre coalition of over 65 left-wing and right-wing groups that included the ACLU and Phyllis Schlafly's Eagle Forum squared off against the Justice Department, which sought to tear the wall down and restore the FISA courts to their unfettered 1978 mode of operation.

The wall finally came crashing down in November, after a ruling by the FISA Court of Review nullified the bureaucratic guidelines that had acted as a barrier to law enforcement in terrorism investigations. Federal investigators working in the same office no longer have to wait weeks or even months for bureaucratic approval to exchange intelligence on a potential terrorist attack.

And Americans, though none the wiser, are a little bit safer because of it.

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