05/25/2006 02:25 am ET | Updated May 25, 2011

The NSA's Favorite Urban Legend: "We Couldn't Get a FISA Warrant for Moussaoui's Computer"

Last week Arlen Specter proposed a second bill to gut the protections of the FISA statute and legitimize the NSA's warrantless surveillance program (his first proposal was quickly supplanted by a more radical bill by Senator DeWine, which we talked about here).

This latest Specter bill is as atrocious as its predecessors, although in new and interesting ways. Unlike the previous proposals, it would not create any new oversight committee in Congress to review surveillance outside the FISA statute. Instead, it would lower the standards for issuing FISA warrants so far that the FISA Court would become superfluous. It would also validate the President's most radical legal justification for the NSA Program--that the commander in chief has inherent power under the Constitution to spy on "any person ... associated with a foreign enemy" of the United States. It would retroactively eliminate the criminal liability of the President and all his minions who ordered or participated in warrantless surveillance. While it wouldn't retroactively eliminate civil lawsuits seeking an end to the program, like ours, it would move all of the existing cases to the Foreign Intelligence Surveillance Court of Review, a three judge appellate court that hears the appeals when the government's wiretap applications to the FISA Court are rejected. (This doesn't happen often: only 5 of the 18,800 total applications for wiretaps have been rejected in the 27 year history of FISA.) This is probably the most secretive court in America; it has issued only one opinion throughout its entire existence. Members of the Court are chosen by the Chief Justice, not the President; all three are Republicans who were named by Chief Justices Rehnquist and Roberts. (One recently-retired member, Laurence Silberman, was with Dick Cheney a strident opponent of FISA when Congress was drafting it during the post-Watergate period.)

Anytime a bill like this is proposed, Congress usually feels the need to spell out why so much radical change is necessary. For instance, when Congress passed the Voting Rights Act, it first spelled out its "findings"--the factual results of its investigation into voting abuses in the deep South--and then set forth the actual new provisions of law designed to address those real world problems. The Specter bill contains a "findings" section too. The problem is that it has a troubled relationship to reality.

Here is the worst falsehood among a long list in the bill's legislative findings:

(3) For days before September 11, 2001, the Federal Bureau of Investigation suspected that confessed terrorist Zacarias Moussaoui was planning to hijack a commercial plane. The Federal Bureau of Investigation, however, could not meet the requirements to obtain a traditional criminal warrant or an order under the Foreign Intelligence Surveillance Act of 1978 [("FISA")] to search his laptop computer. Report of the 9/11 Commission 273-76.

This is an urban legend of 9/11: it makes for a great story; it has "truthiness"--but it just isn't true.

The government and its minions in the blogosphere and mainstream media have claimed that FISA--the same statute the President violated by ordering the NSA to carry out warrantless surveillance--stood in the way of getting a warrant-order to search Moussaoui's computer. Their version of the story goes like this: FBI agent Colleen Rowley, investigating this guy who had no prior flight experience but wanted to learn how to fly a 747, wanted a FISA warrant to search his laptop's hard drive, but she couldn't get one because FISA's legal requirements stood in the way: there wasn't enough evidence to link Moussaoui to a "designated" terrorist group (meaning a group on the State or Treasury Department's formal lists of banned groups, with whom all financial transactions are blocked). And French and British intelligence withheld the evidence necessary to make those links until after the attacks.

So was this an example of the onerous FISA statute, passed in 1978 by a Congress shell-shocked by Watergate, posing such a high barrier to a search warrant that the FBI had to watch helplessly until thousands of Americans died a month later?

Not at all. The FBI field agents had enough evidence to get a FISA warrant, but they got bad (internal) legal advice from FBI headquarters. They were told by their lawyers that they needed to link Moussaoui to a formally designated terrorist organization (what they had on him in late August 2001 was only a link to a rebel Chechen group not on the official designated lists), but that was simply wrong under the law at the time. FISA did not require that Moussaoui have a link to a terrorist organization formally designated as such by Treasury or State; instead, FISA allowed a wiretap order to issue if there was probable cause to show that Moussaoui was an agent of any group involved with terrorism outside the U.S. (or, indeed, even an agent of any foreign political organization), regardless of whether that particular group was designated. And the record the FBI had in front of it in August 2001 would easily have supported that conclusion.

The 9/11 Commission's Report cited in Specter's findings gives a very incomplete account of this, and under other circumstances we could forgive the Senator's error based on this alone. But the funny thing about this is that a Report issued by three senators in February 2003, based in part on testimony during a September 24, 2002 hearing, spelled all of this out correctly, showing that the fault was with the FBI lawyers, not with the FISA law. (See pages 20-26 of the link.) Who were the three authors? Pat Leahy, Charles Grassley, and ... Arlen Specter.

This is not the first time we've seen false claims that warrantless wiretapping powers were all that separated us from stopping the 9/11 attacks. President Bush claimed in his State of the Union address that we would have caught the hijackers if this program had been in place before 9/11. The horrible irony of this claim is that the NSA already knew that 9/11 hijackers Khalid al-Midhair and Nawaf al-Hamzi were in the United States (in San Diego) prior to the attacks because of a legal wiretap it had on an al Qaeda safe house in Yemen, but failed to act on the information. (We debunk the rest of Bush's NSA claims here.) NSA did not fully share this information with the FBI and CIA, and NSA did not appreciate its significance because it lacked information the FBI and CIA had. Law enforcement failed to catch the San Diego hijackers because of a failure to communicate and share information between intelligence agencies, not because the wiretapping laws were too strict.

The larger point is a simple one, often overlooked. In the main, legal and technological short cuts don't stop terrorists. Good traditional law enforcement does. What we need is not less legal supervision but more flesh-and-blood agents doing a better job under more effective management. Profiling and other broad-brush measures like warrantless wiretapping may have some intuitive popular appeal but they have a historical track record of producing lousy results (as, apparently, does the NSA program).

Blaming the law is always a convenient shield for incompetent management to hide behind. After 9/11, an honest assessment by the FBI would have focused on bureaucratic management failures: that they failed to share intelligence with other agencies or devolve sufficient power to field offices. Instead, the loudest voices in the public debate were complaining that federal judges and wiretap laws were a drag on law enforcement's efficiency, and urging Congress to pass the PATRIOT Act to make everything better by lessening judicial oversight. Inside the White House, OLC lawyers argued that eliminating judicial oversight entirely was the best way to defend the country. In fact, the opposite is true: judicial oversight of wiretapping results in more efficient law enforcement because the probable cause requirement focuses law enforcement's efforts on threats that are real. For 200-plus years having judges review the evidence creating cause for suspicion before issuing search warrants is a system that has worked to ensure not only that the innocent don't get searched, but also that law enforcement doesn't waste its time with irrational profiling. Senator Specter and Congress had best relearn this lesson before it is too late.

May 25, 2006


A FOOTNOTE: Since the transcript of the key hearing (of the Joint House/Senate Select Intelligence Committee on September 24, 2002) isn't up on the web anywhere, here's a copy:

SEN. EDWARDS: Okay. So what you were thinking at the time is, I think this is a very dangerous man. I have great concerns about him. There is a possibility at least that he's involved in a bigger plan, a bigger conspiracy that could be very dangerous to us and to our country. And, there is a group of information contained possibly within his computer, possibly within his documents, that might tell us whether that actually true or not. ... Which is one of the reasons that you made it such a high priority to try to get a FISA warrant, correct?
And obviously, you were being aggressive which I assume is how you were trying and what you felt like you should do under the circumstances.
FIELD AGENT: Yes, sir.
SEN. EDWARDS: Okay. Now, when you went to get the FISA warrant, when you got the response from headquarters and from the legal experts at headquarters, were you being told that in order to get a FISA warrant, it was necessary that you have evidence, information linking Moussaoui to a known terrorist organization, i.e., one listed by the State Department, one recognized by the FISA Court. Is that something you understood you had to get in order to get the FISA warrant?
FIELD AGENT: Yes. We believed that we needed to identify a -- and the term that was thrown around was, "recognized foreign power." And so that was our operational theory, yes.
SEN. EDWARDS: So once you requested the FISA warrant and what you considered, I think you just said earlier, was a rapidly developing situation, you wanted to move quickly. Once you made the request, and you got the response, the response said to you, "I've got a make a link between -- in order to get a FISA, I've got to make a link between Moussaoui and a recognized terrorist organization, as opposed to just any group of people, any organization engaged in terrorist activity." Is that fair?
SEN. EDWARDS: Okay. Mr. Bowman, that was not the law in August of 2001, was it, what the agent just said?
[FBI DEPUTY GENERAL COUNSEL] BOWMAN: No, sir that was not the law.

A response to a comment (which the computer seems to have eaten): A reader asked where the references to FBI lawyers were in Senator Specter's 2003 report. The key pages are, as I noted above, 20-26 of the report. But specifically, footnote 19 on page 20 mentions the National Security Law Unit's role, the accompanying text mentions the SSA's "rel[iance] on FBI lawyers," and of course the report is based in part on the testimony in the transcript excerpt above, which is quite clear on this score. Thanks for your question.