The Magazine

The Law Is a Ass

Jun 10, 2002, Vol. 7, No. 38 • By DAVID TELL, FOR THE EDITORS
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HEARINGS on the government's pre-September 11 counterterrorism efforts begin this week on Capitol Hill. These earliest sessions of the House and Senate intelligence committees will be conducted behind closed doors. But it is a fair bet which official lapses will principally occupy the panelists' attention, details of these missed opportunities having been front-page news for nearly a month. It is a fair bet, too, what federal agency will be subjected to the sharpest scrutiny, FBI Director Robert Mueller III himself having now very publicly lamented how the Bureau's Washington headquarters handled clues in its possession last summer. And it is a fair bet, finally, what basic conclusion everyone will eventually draw from this whole, inevitable exercise in congressional blame-apportionment. That conclusion has been all but formally drawn in advance.

Mueller, who believes FBI investigators must have broader procedural latitude if they are to acquire the information necessary to thwart future terrorist attacks, says last summer's acts of omission point "squarely at our analytical capacity," which is "not where it should be." The ACLU, which believes FBI investigators do not need additional authority, says the Bureau has "failed to analyze and act on relevant information" it already has. There is a wide spectrum of opinion about the nature of reforms to be adopted, in other words. But a remarkable consensus has emerged, at least, about the problem to be addressed. The FBI, everyone says, doesn't put two and two together very well.

This is no doubt true so far as it goes. Indeed, the complaint can and should fairly be extended beyond the Bureau to any number of other federal agencies--to the CIA, for example, whose counterterrorism programs have failed no less spectacularly. Undeniably, there is a great deal of fresh intelligence work to be done throughout our government.

But there is more. There are issues raised by last fall's events of vastly greater urgency than "analytical capacity"--or any other structural weakness so far acknowledged by either the executive branch or its most prominent critics. Indeed, the paramount question raised for the future by what we have learned of the FBI's "missteps" has gone almost completely unmentioned in the current "what went wrong" conversation. We are speaking here of American law and the social assumptions that underlie it.

Consider that list of September 11 "leads" the government is now said to have bungled. Two FBI field agents, one four years ago and the other last July, sent word up the chain that an unusual number of Middle Eastern men seemed to be taking lessons at U.S. flight schools; both agents had a hunch that the phenomenon might indicate planning for acts of terrorism. Last August 6, a CIA briefing warned President Bush of possible al Qaeda aircraft hijackings--based on a single British intelligence report from 1999. In mid-August, officials at a Minnesota flight school called the FBI's Minneapolis office to say that one of their students, Zacarias Moussaoui, was making them nervous. Local FBI agents found Moussaoui suspicious, too, and had him arrested on immigration charges--but were refused permission to search his laptop computer by their superiors in Washington. Also, at some point, the CIA apparently became aware that a so far unidentified foreign country was attempting to purchase flight simulators in violation of U.S. trade restrictions.

In retrospect it all appears obviously related. And, yes, a better FBI might have figured it out at the time. And, yes, from now on we must have that better FBI.

But ask yourself: Confronted with such actual clues as were available last summer, what precisely should even a better FBI have been expected to do about them? Superficially, the answer has seemed easiest in the case of Zacarias Moussaoui, since indicted for conspiracy in connection with the September 11 murders. Here we have a reactionary Islamicist violently opposed to the United States and all its works, a man whose behavior had closely mirrored that of Mohamed Atta and the other hijackers. Here we also have the always captivating story of a government whistle-blower, Special Agent Coleen Rowley, legal adviser to the Bureau's Minneapolis field office. Rowley's anguished May 21 letter to Mueller recounts how last August she and her colleagues developed "reasonable suspicions" that Moussaoui was a terrorist threat and soon received confirmation from French authorities that their suspect had previously traveled to South Asia--and was associated with people who were themselves associated with Osama bin Laden. Rowley thinks the early search that FBI headquarters blocked might have led investigators to Atta and the others before it was too late. And judging from his most recent public comments, Mueller himself now agrees that such a search should have been pursued.