The Magazine

Foolishness on the Hill

Oct 22, 2001, Vol. 7, No. 06 • By DAVID TELL, FOR THE EDITORS
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BY THE SECOND WEEK OF AUGUST, instructors at the Pan Am Flying Academy in Eagan, Minnesota, had become so suspicious about the behavior of a new, foreign student that they were moved to contact the FBI's field office in Minneapolis. One Zacarias Moussaoui, a French citizen of Moroccan extraction in his early thirties, had paid $8,300 in cash for lessons in the operation of a Boeing 747 jetliner. He wanted to know how to open a locked cockpit door from the outside. He wanted to know what in-flight information the plane's onboard computers relayed to air traffic controllers on the ground. He wanted to know what emergency security procedures its pilots and crew were directed to follow. And he wanted to know how to steer a jumbo jet, but not how to take off or land. Zacarias Moussaoui was making the Pan Am Flying Academy mighty nervous, and the school thought the FBI might want to know about him.

And the FBI did want to know about him. The Bureau had been aware "for years" and "from multiple sources," it has since been reported, that suspected terrorists with ties to Osama bin Laden were receiving training on jetliner simulators at commercial facilities all across the United States. This Eagan, Minnesota, character seemed like he might be one of them. So agents in Minneapolis asked their Bureau and Justice Department superiors in Washington to secure a warrant to tap Moussaoui's phone and search his computer hard drive. But they were rebuffed--even after the French intelligence agency sent Washington a classified cable on August 27 indicating that Moussaoui had extensive ties to Islamic terrorist organizations and had been spotted, as recently as two months before, in or around Afghanistan.

Under the Foreign Intelligence Surveillance Act of 1978, you see, a panel of district court judges will approve a secret physical or electronic search only when federal law enforcement authorities can show "probable cause" to believe that a suspect is functioning directly for an overseas government or terrorist organization--and only when the "primary purpose" of the proposed search is the gathering of foreign intelligence information, not the accumulation of evidence for a criminal prosecution. Where Zacarias Moussaoui was concerned, the Justice Department reasoned, correctly it would seem, that the FBI could satisfy neither requirement.

The department did manage to get the man off the streets. He was arrested on August 17 for having an expired travel visa, which apparently prevented him from boarding and helping hijack the United Airlines jet that crashed in rural Pennsylvania on September 11. But it was only after that crash that the FBI got a peek at Moussaoui's apartment, where they would earlier have found 747 flight manuals. And at his computer, where they would earlier have found a great quantity of alarming information about Osama bin Laden. And at his telephone records, where they would earlier have found leads to the identity of at least one World Trade Center conspirator, pilot Mohammed Atta.

It's conceivable that the Foreign Intelligence Surveillance Act of 1978 kept the FBI from preventing the greatest one-day loss of civilian lives in American history.

And House Republicans have been all over this issue like flies on glue. Trouble is, they have devoted the bulk of their energy against a modest Bush administration proposal to fix some of the Surveillance Act's manifest flaws. "The question all Americans need to be asking," says Rep. Bob Barr of Georgia, who has led his party's fight in the House Judiciary Committee, "is 'when is enough enough?'" Should the FBI secure approval for secret, prophylactic searches concerning future Zacarias Moussaouis, Barr warns, it will represent a "vast expansion of government power" to begin "dismantling constitutionally protected safeguards and diminishing fundamental rights to privacy." No doubt many things must change in the wake of the September 11 mass murders in New York and Washington. But whatever else we do, Bob Barr insists, we "must not . . . expand law enforcement's investigative authority."

Rep. Barr is in fever-swamp territory here. And a great chunk of the House GOP, joined by many of the "conservative" interest groups that are generally friendly to Republicans on Capitol Hill, have followed him into the bog. The executive branch of the federal government already enjoys an inherent, plenary power under Article II of the Constitution to conduct warrantless searches for foreign intelligence purposes. No U.S. court, anywhere, has ever held otherwise. All that the Bush administration's anti-terrorism proposal would do--for example, by expanding the legal definition of terrorist activities so that it clearly includes what Zacarias Moussaoui was up to in Eagan, Minnesota--is eliminate a statutory basis for suppression of search-derived evidence in terror-related criminal trials.