September 25, 2002


The intransigence of counterterrorism officials in Washington regarding a Foreign Intelligence Surveillance Act warrant in the Moussaoui case was described to the committee in June, when Minneapolis FBI agent Coleen Rowley aired the complaint. Yesterday’s testimony focused anew on the role of lawyers in the FBI’s National Security Law Center.

The lawyers advised FBI counterterrorism officials that agents did not have enough evidence to seek an FISA warrant. One of the lawyers said that Moussaoui would have to be linked to a “recognized” foreign power, which the committee staff’s report called “a misunderstanding of FISA.”

The FBI had no immediate comment on the report, but acknowledged the misinterpretation of the law in discussions with the committee staff. “The FBI’s deputy general counsel told the Joint Inquiry Staff that the term ‘recognized foreign power’ has no meaning under FISA and that the FBI can obtain a search warrant under FISA for an agent of any international terrorist group, including the Chechen rebels. But because of the misunderstanding, Minneapolis spent the better part of three weeks trying to connect the Chechen group to al Qaeda.”

A supervisory agent who testified yesterday said that the FISA court’s past criticism of some FBI warrant applications as inaccurate has had a “chilling effect,” discouraging others from seeking warrants.

Last week, committee members learned that a National Security Law Center lawyer turned down a separate plea in August 2001 from a New York FBI agent who warned that “someday someone will die” if FBI agents were not allowed to launch a criminal investigation and an aggressive manhunt for one of the Sept. 11 hijackers.

The FBI’s Radical Fundamentalist Unit also failed to take any action on the Phoenix memo, which described the activities of 10 suspected Islamic militants involved in aviation.

It’s more important that the problems be fixed than that heads roll. But I’m not convinced that the problems will be fixed unless some heads do roll.

And Louis Freeh ought to be subpoenaed.

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