Originally published at Huffingtonpost.com by Kristen Breitweiser on 12/19/05
Recently, President Bush has admitted to carrying out surveillance on U.S. citizens in the interest of national security. He unabashedly admits to doing it. He offers no apologies. With his bellicose swagger, he once again uses 9/11 as his justification for breaking our constitutional laws. The President’s justification of 9/11 to carry out such surveillance begs a closer examination.
President Bush should be stopped in his tracks with regard to his use of 9/11 scare tactics to circumvent constitutional laws that are meant to protect U.S. citizens. His justification for doing so — the inability to conduct surveillance on the 9/11 hijackers — is a red herring. History will bear out the truth — our intelligence agencies held a treasure trove of intelligence on the 9/11 hijackers, intelligence that was gathered through their initially unencumbered surveillance. President Bush should busy himself by investigating why that information was then stymied and not capitalized upon to stop the 9/11 attacks.
MOUSSAOUI, FISA, and FBI SURVEILLANCE — MISUNDERSTANDING #1:
When it comes to the FBI and Zaccarias Moussaoui, one must understand that the FBI met all evidentiary standards to both apply for and be granted a FISA warrant. The information the FBI had to support their FISA request was two files on Moussaoui that were given to the FBI by the French and British intelligence services. Inexplicably, FBI lawyers and supervisors at FBI HQ “misunderstood” the evidentiary standards needed to apply for and receive a FISA warrant, and they refused the FISA request from the FBI agents in Minneapolis. Thus, the Moussaoui search warrant paperwork was never submitted to the FISA court. One need only read Colleen Rowley’s memorandum to confirm these facts.
Had FBI HQ not denied the FISA request, the FISA court would have issued the search warrant to search Moussaoui’s belongings. Whether gaining access to Moussaoui’s belongings would have stopped the 9/11 attacks remains unknown at this time. Hopefully, Moussaoui’s upcoming penalty phase hearing will reveal more information as to what the FBI/CIA/DOD/NSA already knew about Moussaoui during the summer of 2001 and whether getting the FISA warrant to search Moussaoui belongings would have even made a difference.
None of the FBI lawyers and/or supervisors responsible for this glaring error and “misjudgment” has been held accountable.
AL MIHDHAR/AL HAZMI & THE STATE DEPARTMENT-MISUNDERSTANDING #2:
When it comes to al Mihdhar and al Hazmi, the story is relatively the same — more “misunderstandings” that blocked surveillance and prevention of the 9/11 attacks. The official story is that the “Reno Wall” blocked the FBI from receiving vital information regarding al Mihdhar and al Hazmi. Allegedly, that vital information was contained in FBI files that pertained to the USS Cole bombing investigation. Both al Mihdhar and al Hazmi were connected to the Cole bombing and as such were investigated as part of the FBI’s Cole investigation.
If, in the summer of 2001, the FBI had been able to access their own criminal case files on the Cole investigation, they might have been able to stop al Mihdhar and al Hazmi before they carried out the 9/11 attacks. Because of the “misunderstanding” about sharing information between FBI intelligence and FBI criminal investigations (the Reno wall), vital information that would have helped the FBI locate al Mihdhar and al Hazmi was not shared within the FBI. As a result, Al Mihdhar and al Hazmi were not found by the FBI in time to prevent the 9/11 attacks. So goes the story, if only the “misunderstandings” about the Reno wall had not existed, the two 9/11 hijackers would have been stopped. This is patently false, because, the Reno wall did not prevent the FBI from capturing at least one of the 9/11 hijackers–Khalid al Mihdhar.
Evidence in the 9/11 Commission’s Final Report indicates that there was no “misunderstanding” of the Reno Wall. Quite the opposite from any misunderstanding, evidence from the State Department proves that al Mihdhar was:
1. Known by the FBI as an armed and dangerous terrorist participating in terrorist acts,
2. Identified as a potential witness in an FBI investigation, and yet,
3. Inexplicably, a mere 6 days before 9/11, listed and ordered to be an individual not to be detained if caught by government inspectors.
Page 42 of the Commission’s “Terrorist Travel” Supplement states the following:
August 31st–a new listing for Mihdhar was placed in an INS and Customs lookout database, describing him as “armed and dangerous” and someone who must be referred to secondary inspection.
September 4–The State Department used its visa revocation authority under section 221(i) of the Immigration and Nationality Act to revoke Mihdhar’s visa under section 212 (A)(3)(b) of the Immigration and Nationality Act for his participation in terrorist activities. (One of which is defined as airline hijackings)
September 5–INS entered the September 4 notice of revocation of Mihdhar’s visa into the INS lookout system. The State Department identified Mihdhar as a potential witness in an FBI investigation, and inspectors were told not to detain him.
For what FBI investigation was al Mihdhar a potential witness? Why was it first ordered to detain al Mihdhar because he was armed and dangerous and thereafter ordered to not detain him because he was a potential witness in an FBI investigation? Al Mihdhar was “armed and dangerous” and “participating in terrorist acts” that were defined as “airline hijackings” and using “weapons of mass destruction.” Who ordered his non-detainment a mere five days before 9/11? Perhaps current Secretary of State Rice (former National Security Advisor on 9/11) or her State Department counsel, Philip Zelikow, (former 9/11 Commission Staff Director) might have some answers?
ABLE DANGER-MISUNDERSTANDING #3
When it comes to Able Danger and surveillance, one must look at the alleged history of Able Danger and know the facts. Able Danger was allegedly a special operation that included according to Congressman Curt Weldon both analysis (“data mining”) and action (“taking out cells”). The Able Danger team was allegedly tasked and created during the Clinton Administration — many months before the USS Cole bombing. Notably, at least two of the men who were allegedly identified as targets in the Able Danger operation were linked to the Cole Bombing and the 9/11 attacks — Khalid al Mihdhar and Nawaf al Hazmi.
Immediately after the Cole bombing, one would assume that because of alleged existence of Able Danger and quite possibly CIA surveillance, our government would have definitely known who was responsible for the Cole attack — mostly because it is possible that Able Danger and the CIA were carrying out parallel surveillance on the terrorists who were involved in the Cole attack both before and after the Cole bombing.
It also quite possibly follows that after the Cole bombing our government had not only the “actionable intelligence” (compliments of the alleged Able Danger and possible CIA surveillance of al Qaeda) but also the moral justification (17 sailors dead) to “take out the cells.” This should have been carried out by the Able Danger operatives. Inexplicably, it was not done because Able Danger was allegedly shut down in May of 2001. Of the cells to be allegedly taken out — four members of the Brooklyn Cell went on to carry out the 9/11 attacks — Atta, Shehi, al Mihdhar, and al Hazmi. Who dismantled this aggressive project to combat terrorism and why?
The story is that Able Danger was allegedly dismantled in May 01 because it violated posse comitatus. With regard to Able Danger and its surveillance of terrorists within the borders of the United States, the alleged Able Danger cells were not U.S. citizens. Therefore, posse comitatus did not apply. Once again, lawyers “misunderstood” the law. They thought terrorists in the United States participating in terrorist acts were entitled to the same rights as U.S. citizens. Quite a “misunderstanding.” The result of their misunderstanding? Four of the 9/11 hijackers — members of the Brooklyn Cell — were not “taken out” and a mere four months later able to carry out the 9/11 attacks.
THE KING’S APPROACH
President Bush is using the intelligence community’s pre-9/11 “inability” to carry out surveillance on the hijackers as his reasoning for currently conducting surveillance on U.S. citizens. First of all none of the 9/11 terrorists were U.S. citizens. Moreover, no law past or present barred the intelligence community from stopping the 9/11 terrorists. Ultimately, what stopped the intelligence community from capturing or killing the 9/11 hijackers prior to the 9/11 attacks were the lawyers and supervisors who repeatedly “misunderstood” the very laws they were supposed to be the experts on.
One would have hoped that President Bush would have responded to these deadly “misunderstandings” and chain of events by firing the attorneys and supervisors for their incompetence and thereafter hiring new attorneys and supervisors who were smart enough to not misunderstand our nation’s laws. Our President didn’t do that. Apparently, he doesn’t grasp the significance of accountability. Rather, he took the simpleton’s approach. He just threw out/ignored/re-wrote all the laws (think Patriot Act and his current attempt to ignore the law with regard to surveillance on U.S. citizens because we are a nation at war). Because, as far as our President is concerned with no more confusing laws, there can be no more “misunderstandings” by incompetent supervisors and lawyers and, therefore, no more 9/11’s. Problem solved. Right?
Not so fast. What if these were not “misunderstandings?” What if these were purposeful decisions made with faulty judgment? At a bare minimum, the State Department entry on September 5th regarding al Mihdhar discounts, discredits and debunks the Reno Wall misunderstanding and discounts, discredits, and debunks the 9/11 Commission’s story of why al Mihdhar was not found by the FBI in time to thwart the 9/11 attacks. How many other “misunderstandings” might be disproved during the upcoming Able Danger hearings? How many more “misunderstandings” might be disproved during the Moussaoui penalty phase hearing? What if they are all disproved?
Respectfully, President Bush, before you fecklessly dissolve our constitutional rights in the name of national security and invoke the failures of 9/11, the following questions should be answered:
1. Who ordered the alleged Able Danger special operation to be shut down in May 01? What were the reasons? The individuals involved in the operation have testified that it was not shut down for reasons of posse comitatus. What reasoning was responsible for shutting down a successful surveillance operation on terrorist cells planning terrorist activities within the United States a mere 5 months before 9/11?
2. Was any information gleaned in the alleged Able Danger operation used as the basis for the August 6, 2001 Presidential Daily Briefing that mentioned “patterns of suspicious activities” by sleeper cells within the United States that indicated possible hijackings?
3. Why did the State Department order its agents to “not detain” al Mihdhar on September 5, 2001? Who is responsible for issuing that order?
4. Regarding the State Department entry on September 5, 2001, what FBI investigation was al Mihdhar thought to be a witness in?
5. At what time did the U.S. government have in its possession actionable intelligence regarding the identity of the terrorists who carried out the USS Cole bombing? Was that information gleaned from any alleged Able Danger analysts? When was it shared with the CIA? Was that the information used to justify the alleged “taking out of the cells” in the Able Danger operation between January 01 and May 01? If so, why did certain governmental officials in both the Clinton and Bush Administrations lie to the 9/11 Commission in stating that they did not have in their possession conclusive evidence linking al Qaeda to the bombing of the USS Cole until after the 9/11 attacks?
6. What is the interpretation of “taking out of cells”? Is it merely apprehension and detention or more severely elimination of the cells?
7. What countries were linked to the targets identified in the alleged Able Danger program? Was Iraq one of those countries?
8. Why was the Able Danger chart allegedly destroyed immediately after 9/11 (and prior to your decision to attack Iraq)? Who is responsible for the alleged destruction of this chart and other vital documents relating to this successful, cutting edge program? Who were the Congressional officials and Executive Branch officials present in this meeting? Are any of the targets allegedly contained on the Able Danger chart still within this country and planning or participating in terrorist acts?
9. In March 2001, an internal debate ignited at the Justice Department and the FBI over wiretap surveillance of certain terrorist groups. Prompted by questions from Royce C. Lamberth, the Chief Judge of the FISA court, the Justice Department opened an inquiry into Michael Resnick, an FBI official who coordinated the FISA acts applications. Attorney General John Ashcroft and Robert Mueller (then deputy Attorney General) ordered a full review of all foreign surveillance authorizations.
Justice Department and FBI officials have since acknowledged the existence of this internal investigation, and said that the inquiry forced officials to examine their monitoring of several suspected terrorist groups–including al Qaeda. And while senior FBI and Justice Department officials contend that the internal investigation did not affect their ability to monitor al Qaeda, other officials have acknowledged that the inquiry might have hampered electronic surveillance of terror groups pre-9/11.
Where is the final report of this inquiry? And, what effect did this investigation have on our nation’s ability to carry out surveillance on al Qaeda prior to 9/11? Perhaps, receiving such answers would eliminate your current need to circumvent constitutional law?
TWO QUICK ASIDES:
1. Regarding the 9/11 Commission’s comment that they did not include Able Danger in their report because it was “historically insignificant.” The 9/11 Commission had best read its own recommendations. The largest and most comprehensive one being the re-organization of our intelligence community with a DNI placed at the very top.
If Able Danger existed and was wrongfully terminated, going forward any future special operations akin to Able Danger run off of SOCOM (that would be the Pentagon) should be overseen by the DNI. Alarmingly, last summer, the 9/11 Commission specifically acquiesced to the removal of SOCOM (and other Department of Defense Commands) from the DNI’s jurisdiction.
Clearly, had a DNI existed prior to 9/11 and had jurisdiction over such special operations like Able Danger, perhaps Able Danger would not have been wrongfully shut down before bearing the fruits of its labor (i.e. taking out the cells). At a bare minimum, we would at least have one person to hold accountable (the DNI) for the wrongful termination of a program that would have prevented 9/11.
2. It has come to my attention that the one terrorist we currently have in custody and connected to the 9/11 attacks–Zacarias Moussaoui– is being tried for the death penalty because he lied to the FBI in August 2001 (his lie? in short, “i am not a terrorist. i am just interested in flying planes.”) So the argument goes, had Moussaoui not lied to the FBI, the FBI would have been able to thwart the 9/11 attacks. Did you get that? In other words, if Moussaoui told the truth to the FBI in August 2001 (said in effect, “yes, i am a terrorist and i am here to hijack planes and fly them into buildings), the FBI would have been able to prevent 9/11. But, since he didn’t we are putting him to death for his intentional withholding of information that would have prevented the attacks.
If this is to be the threshold to put an individual to death–the intentional withholding of information that could have prevented the 9/11 attacks–there are arguably many individuals (quite alarmingly some of whom are in our own government) who could meet that requirement and potentially be tried for death. Will the Moussaoui penalty phase hearing set such a precedent?
Given, it will be argued that Moussaoui had the mens rea–in other words, the state of mind to commit the act in that he knew that such withholding of information might necessarily cause the death of people. But, let me ask a question. If a former DCI made a decision to intentionally withhold information from the FBI–information about two known al Qaeda killers who had already participated in the USS Cole bombing that killed 17 sailors and were currently inside the United States planning terrorist acts, namely the 9/11 attacks–does that not meet the mens rea requirement? How could someone like a former DCI deny that his withholding of such information from the FBI about these two terrorists for 18 months would not likely contribute to at least one death? Such a DCI would have known by January 01 that 17 sailors had died compliments of these two killers–al Mihdhar and al Hazmi. Should such a DCI be tried for the death penalty, too?