This past Saturday, the Washington Post published a letter by Coleen Rowley, former FBI Special Agent and the Chief Division Counsel for the Bureau's Minneapolis office, criticizing an editorial,"Vital Presidential Power," co-authored by Weekly Standard editor William Kristol and AEI resident scholar Gary Schmitt. The Kristol-Schmitt op-ed was a defense of President Bush's decision to by-pass the Foreign Intelligence Surveillance Act in ordering NSA electronic surveillance of al Qaeda-related communications to and from the United States. Ms. Rowley, who is now running for Congress in Minnesota as a Democrat (DFL), made the following key criticism in her letter:

"... Contrary to Kristol and Schmitt's assertion that 'the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files,' no evidence of Moussaoui's suspicious flight training and ties with terrorism was presented to the Justice Department. The department was never contacted and so did not decide anything; therefore, no decision was ever made regarding the given evidence and its subsequent application to FISA standards.

That means the FISA procedures were not the reason the FBI failed to inspect Moussaoui's computer files. Rather, the FBI's failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation."

Technically, what Ms. Rowley writes is true. The Department of Justice never did make a decision about a possible FISA warrant for Moussaoui. But her point is also misleading. If the testimony of various FBI agents and headquarters officials set out in the Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001 by the House and Senate intelligence committees is accurate, the reason the Justice Department didn't pursue a FISA warrant was because the FBI itself refused to move forward with an application to the Justice Department. For all of the FBI's suspicions of Moussaoui, the Bureau believed there was not sufficient evidence that he was an "agent of a foreign power" or "terrorist" and, hence, the case did not in their judgment meet the "probable cause" standard required under FISA to obtain a warrant. If so, this would seem to confirm Kristol and Schmitt’s point that the “probable cause” standard required by FISA did play a central role in no FISA warrant being issued in this instance.

What follows are excerpts from the Joint Inquiry:

“Around this time, an attorney in the National Security Law Unit at FBI Headquarters asked the Chief Division Counsel in the Minneapolis field office whether she had considered trying to obtain a criminal warrant. The Chief Division Counsel replied that a FISA order would be the safer course..... (319)

At the suggestion of a Minneapolis supervisor, the agent contacted an FBI officer who had been detailed to the CTC. The agent shared the details of the Moussaoui investigation with the CTC detailee and provided the names of Moussaoui’s associates. The agent explained in a Joint Inquiry interview that he was looking for any information CTC could provide to strengthen the case linking Moussaoui to international terrorism..... (320)

On Wednesday, August 22, the FBI Legat in Paris provided a report that [ deleted ] started a series of discussions between Minneapolis and Headquarters RFU as to whether a specific group of Chechen rebels was a “recognized” foreign power, that is, was on the State Department’s list of terrorist groups and for which the FISA Court had previously granted orders.

The RFU agent told Joint Inquiry staff that, based on advice he received from the NSLU, he believed that the Chechen rebels were not a “recognized” foreign power and that, even if Moussaoui were to be linked to them, the FBI could not obtain a search order under FISA. The RFU agent told the Minneapolis agents that they had to connect Moussaoui to al-Qa’ida, which he believed was a “recognized” foreign power. (321)....

Ultimately, the RFU agent agreed to submit Minneapolis’ FISA request to attorneys in the FBI’s NSLU for review.

In interviews, several FBI attorneys with whom the RFU agent consulted confirmed that they advised the RFU agent that the evidence was insufficient to link Moussaoui to a foreign power. One of the attorneys noted that Chechen rebels were not an international foreign terrorism group under FISA (321)....

On August 27, the RFU agent told the Minneapolis supervisor that the supervisor was getting people “spun up” over Moussaoui. According to his notes and his statement to the Joint Inquiry, the supervisor replied that he was trying to get people at FBI Headquarters “spun up” because he was trying to make sure that Moussaoui “did not take control of a plane and fly it into the World Trade Center.” The Minneapolis agent said that the Headquarters agent told him:

‘[T]hat’s not going to happen. We don’t know he’s a terrorist. You don’t have enough to show he is a terrorist. You have a guy interested in this type of aircraft – that is it.’

[On August 28, the RFU agent edited, and returned to Minneapolis for comment, the request for a FISA Court order that Minneapolis had prepared. The RFU agent told the Joint Inquiry that it was not unusual for FBI Headquarters agents to make changes to field submissions. The major substantive change was removal of information that tried to make connections between the Chechen rebels and al-Qa’ida. After the edit was complete, the RFU agent briefed the FBI Deputy General Counsel, who told the Joint Inquiry that he agreed with the agent that there was insufficient information to show that Moussaoui was an agent of a foreign power]. (322-23)