May 21, 2002
FBI Director Robert Mueller
Dear Director Mueller:
I feel at this point that I have to put my concerns in writing concerning the
important topic of the FBI's response to evidence of terrorist activity in the
United States prior to September 11th. The issues are fundamentally ones
of INTEGRITY and go to the heart of the FBI's law enforcement mission
and mandate. Moreover, at this critical juncture in fashioning future policy
to promote the most effective handling of ongoing and future threats to
United States citizens' security, it is of absolute importance that an
unbiased, completely accurate picture emerge of the FBI's current
investigative and management strengths and failures.
To get to the point, I have deep concerns that a delicate and subtle
shading/skewing of facts by you and others at the highest levels of FBI
management has occurred and is occurring. The term "cover up" would be
too strong a characterization which is why I am attempting to carefully (and
perhaps over laboriously) choose my words here. I base my concerns on my
relatively small, peripheral but unique role in the Moussaoui investigation
in the Minneapolis Division prior to, during and after September 11th and
my analysis of the comments I have heard both inside the FBI (originating, I
believe, from you and other high levels of management) as well as your
Congressional testimony and public comments.
I feel that certain facts, including the following, have, up to now, been
omitted, downplayed, glossed over and/or mis-characterized in an effort to
avoid or minimize personal and/or institutional embarrassment on the part
of the FBI and/or perhaps even for improper political reasons:
1) The Minneapolis agents who responded to the call about Moussaoui's
flight training identified him as a terrorist threat from a very early point. The
decision to take him into custody on August 15, 2001, on the INS "overstay"
charge was a deliberate one to counter that threat and was based on the
agents' reasonable suspicions.
While it can be said that Moussaoui's
overstay status was fortuitous, because it allowed for him to be taken into
immediate custody and prevented him receiving any more flight training, it
was certainly not something the INS coincidentally undertook of their own
volition. I base this on the conversation I had when the agents called me at
home late on the evening Moussaoui was taken into custody to confer and
ask for legal advice about their next course of action. The INS agent was
assigned to the FBI's Joint Terrorism Task Force and was therefore working
in tandem with FBI agents.
2) As the Minneapolis agents' reasonable suspicions quickly ripened into
probable cause, which, at the latest, occurred within days of Moussaoui's
arrest when the French Intelligence Service confirmed his affiliations with
radical fundamentalist Islamic groups and activities connected to Osama
Bin Laden, they became desperate to search the computer laptop that had
been taken from Moussaoui as well as conduct a more thorough search of
his personal effects. The agents in particular believed that Moussaoui
signaled he had something to hide in the way he refused to allow them to
search his computer.
3) The Minneapolis agents' initial thought was to obtain a criminal search
warrant, but in order to do so, they needed to get FBI Headquarters'
(FBIHQ's) approval in order to ask for DOJ OIPR's approval to contact the
United States Attorney's Office in Minnesota. Prior to and even after receipt
of information provided by the French, FBIHQ personnel disputed with the
Minneapolis agents the existence of probable cause to believe that a
criminal violation had occurred/was occurring. As such, FBIHQ personnel
refused to contact OIPR to attempt to get the authority.
While reasonable
minds may differ as to whether probable cause existed prior to receipt of the
French intelligence information, it was certainly established after that point
and became even greater with successive, more detailed information from
the French and other intelligence sources.
The two possible criminal
violations initially identified by Minneapolis Agents were violations of Title
18 United States Code Section 2332b (Acts of terrorism transcending
national boundaries, which, notably, includes "creating a substantial risk of
serious bodily injury to any other person by destroying or damaging any
structure, conveyance, or other real or personal property within the United
States or by attempting or conspiring to destroy or damage any structure,
conveyance, or other real or personal property within the United States")
and Section 32 (Destruction of aircraft or aircraft facilities).
It is important to
note that the actual search warrant obtained on September 11th was based
on probable cause of a violation of Section 32.
To say
then, as has been iterated numerous times, that probable cause did not
exist until after the disastrous event occurred, is really to acknowledge that
the missing piece of probable cause was only the FBI's (FBIHQ's) failure to
appreciate that such an event could occur. The probable cause did not
otherwise improve or change. When we went to the United States Attorney's
Office that morning of September 11th, in the first hour after the attack, we
used a disk containing the same information that had already been
provided to FBIHQ; then we quickly added Paragraph 19 which was the
little we knew from news reports of the actual attacks that morning.
The
problem with chalking this all up to the "20-20 hindsight is perfect"
problem, (which I, as all attorneys who have been involved in deadly force
training or the defense of various lawsuits are fully appreciative of), is that
this is not a case of everyone in the FBI failing to appreciate the potential
consequences. It is obvious, from my firsthand knowledge of the events and
the detailed documentation that exists, that the agents in Minneapolis who
were closest to the action and in the best position to gauge the situation
locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and
his possible co-conspirators even prior to September 11th.
Even without
knowledge of the Phoenix communication (and any number of other
additional intelligence communications that FBIHQ personnel were privy to
in their central coordination roles), the Minneapolis agents appreciated the
risk. So I think it's very hard for the FBI to offer the "20-20 hindsight"
justification for its failure to act!
Also intertwined with my reluctance in this
case to accept the "20-20 hindsight" rationale is first-hand knowledge that I
have of statements made on September 11th, after the first attacks on the
World Trade Center had already occurred, made telephonically by the FBI
Supervisory Special Agent (SSA) who was the one most involved in the
Moussaoui matter and who, up to that point, seemed to have been
consistently, almost deliberately thwarting the Minneapolis FBI agents'
efforts (see number 5). Even after the attacks had begun, the SSA in
question was still attempting to block the search of Moussaoui's computer,
characterizing the World Trade Center attacks as a mere coincidence with
Misseapolis' prior suspicions about Moussaoui.
4) In one of my peripheral roles on the Moussaoui matter, I answered an
e-mail message on August 22, 2001, from an attorney at the National
Security Law Unit (NSLU). Of course, with (ever important!) 20-20 hindsight,
I now wish I had taken more time and care to compose my response. When
asked by NSLU for my "assessment of (our) chances of getting a criminal
warrant to search Moussaoui's computer", I answered, "Although I think
there's a decent chance of being able to get a judge to sign a criminal
search warrant, our USAO seems to have an even higher standard much of
the time, so rather than risk it, I advised that they should try the other route."
Leaked news accounts which said the Minneapolis Legal Counsel (referring
to me) concurred with the FBIHQ that probable cause was lacking to search
Moussaoui's computer are in error. (Or possibly the leak was deliberately
skewed in this fashion?) What I meant by this pithy e-mail response, was
that although I thought probable cause existed ("probable cause" meaning
that the proposition has to be more likely than not, or if quantified, a 51%
likelihood), I thought our United States Attorney's Office, (for a lot of reasons
including just to play it safe) in regularly requiring much more than
probable cause before approving affidavits, (maybe, if quantified, 75%-80%
probability and sometimes even higher), and depending on the actual
AUSA who would be assigned, might turn us down.
As a tactical choice, I
therefore thought it would be better to pursue the "other route" (the FISA
search warrant) first, the reason being that there is a common perception,
which for lack of a better term, I'll call the "smell test" which has arisen that
if the FBI can't do something through straight-up criminal methods, it will
then resort to using less-demanding intelligence methods. Of course this
isn't true, but I think the perception still exists. So, by this line of reasoning, I
was afraid that if we first attempted to go criminal and failed to convince an
AUSA, we wouldn't pass the "smell test" in subsequently seeking a FISA.
I
thought our best chances therefore lay in first seeking the FISA. Both of the
factors that influenced my thinking are areas arguably in need of
improvement: requiring an excessively high standard of probable cause in
terrorism cases and getting rid of the "smell test" perception. It could even
be argued that FBI agents, especially in terrorism cases where time is of the
essence, should be allowed to go directly to federal judges to have their
probable cause reviewed for arrests or searches without having to gain the
USAO's approval.
5) The fact is that key FBIHQ personnel whose job it was to assist and
coordinate with field division agents on terrorism investigations and the
obtaining and use of FISA searches (and who theoretically were privy to
many more sources of intelligence information than field division agents),
continued to, almost inexplicably,
Nor did FBIHQ personnel do much to disseminate the information about
Moussaoui to other appropriate intelligence/law enforcement authorities.
When, in a desperate 11th hour measure to bypass the FBIHQ roadblock,
the Minneapolis Division undertook to directly notify the CIA's Counter
Terrorist Center (CTC), FBIHQ personnel actually chastised the Minneapolis
agents for making the direct notification without their approval!
6 ) Eventually on August 28, 2001, after a series of e-mails between
Minneapolis and FBIHQ, which suggest that the FBIHQ SSA deliberately
further undercut the FISA effort by not adding the further intelligence
information which he had promised to add that supported Moussaoui's
foreign power connection and making several changes in the wording of the
information that had been provided by the Minneapolis Agent, the
Minneapolis agents were notified that the NSLU Unit Chief did not think
there was sufficient evidence of Moussaoui's connection to a foreign power.
Minneapolis personnel are, to this date, unaware of the specifics of the
verbal presentations by the FBIHQ SSA to NSLU or whether anyone in
NSLU ever was afforded the opportunity to actually read for him/herself all
of the information on Moussaoui that had been gathered by the
Minneapolis Division and the French intelligence service. Obviously verbal
presentations are far more susceptible to mis-characterization and error.
The e-mail communications between Minneapolis and FBIHQ, however,
speak for themselves and there are far better witnesses than me who can
provide their first hand knowledge of these events characterized in one
Minneapolis agent's e-mail as FBIHQ is "setting this up for failure." My only
comment is that the process of allowing the FBI supervisors to make
changes in affidavits is itself fundamentally wrong, just as, in the follow-up
to FBI Laboratory Whistleblower Frederic Whitehurst's allegations, this
process was revealed to be wrong in the context of writing up laboratory
results.
With the Whitehurst allegations, this process of allowing supervisors
to re-write portions of laboratory reports, was found to provide opportunities
for over-zealous supervisors to skew the results in favor of the prosecution. In
the Moussaoui case, it was the opposite – the process allowed the
Headquarters Supervisor to downplay the significance of the information
thus far collected in order to get out of the work of having to see the FISA
application through or possibly to avoid taking what he may have perceived
as an unnecessary career risk.
I understand that the failures of the FBIHQ
personnel involved in the Moussaoui matter are also being officially
excused because they were too busy with other investigations, the Cole
bombing and other important terrorism matters, but the Supervisor's taking
of the time to read each word of the information submitted by Minneapolis
and then substitute his own choice of wording belies to some extent the
notion that he was too busy.
As an FBI division legal advisor for 12 years
(and an FBI agent for over 21 years), I can state that an affidavit is better
and will tend to be more accurate when the affiant has first hand
information of all the information he/she must attest to. Of necessity, agents
must continually rely upon information from confidential sources, third
parties and other law enforcement officers in drafting affidavits, but the
repeating of information from others greatly adds to the opportunities for
factual discrepancies and errors to arise.
To the extent that we can
minimize the opportunity for this type of error to arise by simply not
allowing unnecessary re-writes by supervisory staff, it ought to be done.
(I'm
not talking, of course, about mere grammatical corrections, but changes of
some substance as apparently occurred with the Moussaoui information
which had to be, for lack of a better term, "filtered" through FBIHQ before
any action, whether to seek a criminal or a FISA warrant, could be taken.)
Even after September 11th, the fear was great on the part of Minneapolis
Division personnel that the same FBIHQ personnel would continue their
"filtering" with respect to the Moussaoui investigation, and now with the
added incentive of preventing their prior mistakes from coming to light. For
this reason, for weeks, Minneapolis prefaced all outgoing communications
(ECs) in the PENTTBOM investigation with a summary of the information
about Moussaoui. We just wanted to make sure the information got to the
proper prosecutive authorities and was not further suppressed! This fear was
probably irrational but was nonetheless understandable in light of the
Minneapolis agents' prior experiences and frustrations involving FBIHQ.
(The redundant preface information regarding Moussaoui on otherwise
unrelative PENTTBOM communications has ended up adding to criminal
discovery issues, but this is the reason it was done.)
7) Although the last thing the FBI or the country needs now is a witch hunt, I
do find it odd that (to my knowledge) no inquiry whatsoever was launched
of the relevant FBIHQ personnel's actions a long time ago. Despite FBI
leaders' full knowledge of all the items mentioned herein (and probably
more that I'm unaware of), the SSA, his unit chief, and other involved HQ
personnel were allowed to stay in their positions and, what's worse, occupy
critical positions in the FBI's SIOC Command Center post September 11th.
(The SSA in question actually received a promotion some months
afterward!)
It's true we all make mistakes and I'm not suggesting that HQ
personnel in question ought to be burned at the stake, but, we all need to
be held accountable for serious mistakes. I'm relatively certain that if it
appeared that a lowly field office agent had committed such errors of
judgment, the FBI's OPR would have been notified to investigate and the
agent would have, at the least, been quickly reassigned. I'm afraid the FBI's
failure to submit this matter to OPR (and to the IOB) gives further impetus to
the notion (raised previously by many in the FBI) of a double standard
which results in those of lower rank being investigated more aggressively
and dealt with more harshly for misconduct while the misconduct of those at
the top is often overlooked or results in minor disciplinary action. From all
appearances, this double standard may also apply between those at FBIHQ
and those in the field.
8) The last official "fact" that I take issue with is not really a fact, but an
opinion, and a completely unsupported opinion at that. In the day or two
following September 11th, you, Director Mueller, made the statement to
the effect that if the FBI had only had any advance warning of the attacks,
we (meaning the FBI), may have been able to take some action to prevent
the tragedy.
Fearing that this statement could easily come back to haunt
the FBI upon revelation of the information that had been developed
pre-September 11th about Moussaoui, I and others in the Minneapolis
Office, immediately sought to reach your office through an assortment of
higher level FBIHQ contacts, in order to quickly make you aware of the
background of the Moussaoui investigation and forewarn you so that your
public statements could be accordingly modified. When such statements
from you and other FBI officials continued, we thought that somehow you
had not received the message and we made further efforts.
Finally when
similar comments were made weeks later, in Assistant Director Caruso's
congressional testimony in response to the first public leaks about
Moussaoui we faced the sad realization that the remarks indicated
someone, possibly with your approval, had decided to circle the wagons at
FBIHQ in an apparent effort to protect the FBI from embarrassment and the
relevant FBI officials from scrutiny. Everything I have seen and heard about
the FBI's official stance and the FBI's internal preparations in anticipation of
further congressional inquiry, had, unfortunately, confirmed my worst
suspicions in this regard.
After the details began to emerge concerning the
pre-September 11th investigation of Moussaoui, and subsequently with the
recent release of the information about the Phoenix EC, your statement has
changed. The official statement is now to the effect that even if the FBI had
followed up on the Phoenix lead to conduct checks of flight schools and the
Minneapolis request to search Moussaoui's personal effects and laptop,
nothing would have changed and such actions certainly could not have
prevented the terrorist attacks and resulting loss of life.
With all due respect,
this statement is as bad as the first! It is also quite at odds with the earlier
statement (which I'm surprised has not already been pointed out by those in
the media!). I don't know how you or anyone at FBI Headquarters, no matter
how much genius or prescience you may possess, could so blithely make
this affirmation without anything to back the opinion up than your stature as
FBI Director. The truth is, as with most predictions into the future, no one
will ever know what impact, if any, the FBI's following up on those requests,
would have had. Although I agree that it's very doubtful that the full scope
of the tragedy could have been prevented, it's at least possible we could
have gotten lucky and uncovered one or two more of the terrorists in flight
training prior to September 11th, just as Moussaoui was discovered, after
making contact with his flight instructors.
It is certainly not beyond the realm
of imagination to hypothesize that Moussaoui's fortuitous arrest alone, even
if he merely was the 20th hijacker, allowed the hero passengers of Flight 93
to overcome their terrorist hijackers and thus spare more lives on the
ground. And even greater casualties, possibly of our Nation's highest
government officials, may have been prevented if Al Qaeda intended for
Moussaoui to pilot an entirely different aircraft. There is, therefore at least
some chance that discovery of other terrorist pilots prior to September 11th
may have limited the September 11th attacks and resulting loss of life.
Although your conclusion otherwise has to be very reassuring for some in
the FBI to hear being repeated so often (as if saying it's so may make it so),
I think your statements demonstrate a rush to judgment to protect the FBI at
all costs. I think the only fair response to this type of question would be that
no one can pretend to know one way or another.
Mr. Director, I hope my observations can be taken in a constructive vein.
They are from the heart and intended to be completely apolitical.
Hopefully, with our nation's security on the line, you and our nation's other
elected and appointed officials can rise above the petty politics that often
plague other discussions and do the right thing. You do have some good
ideas for change in the FBI but I think you have also not been completely
honest about some of the true reasons for the FBI's pre-September 11th
failures. Until we come clean and deal with the root causes, the Department
of Justice will continue to experience problems fighting terrorism and
fighting crime in general.
I have used the "we" term repeatedly herein to indicate facts about others in
the Minneapolis Office at critical times, but none of the opinions expressed
herein can be attributed to anyone but myself. I know that those who know
me would probably describe me as, by nature, overly opinionated and
sometimes not as discreet as I should be. Certainly some of the above
remarks may be interpreted as falling into that category, but I really do not
intend anything as a personal criticism of you or anyone else in the FBI, to
include the FBIHQ personnel who I believe were remiss and mishandled
their duties with regard to the Moussaoui investigation.
Truly my only
purpose is to try to provide the facts within my purview so that an accurate
assessment can be obtained and we can learn from our mistakes. I have
pointed out a few of the things that I think should be looked at but there are
many, many more.
Although FBIHQ
personnel have, no doubt, been of immeasurable assistance to the field
over the years, I'm hard pressed to think of any case which has been solved
by FBIHQ personnel and I can name several that have been screwed up!
Decision-making is inherently more effective and timely when decentralized
instead of concentrated.
Your plans for an FBI Headquarters' "Super Squad" simply fly in the face of
an honest appraisal of the FBI's pre-September 11th failures. The Phoenix,
Minneapolis and Paris Legal Attache Offices reacted remarkably exhibiting
keen perception and prioritization skills regarding the terrorist threats they
uncovered or were made aware of pre-September 11th. The same cannot
be said for the FBI Headquarters' bureaucracy and you want to expand
that?! Should we put the counterterrorism unit chief and SSA who
previously handled the Moussaoui matter in charge of the new "Super
Squad"?!
You are also apparently disregarding the fact the Joint Terrorism
Task Forces (JTTFs), operating out of field divisions for years, (the first and
chief one being New York City's JTTF), have successfully handled numerous
terrorism investigations and, in some instances, successfully prevented acts
of terrorism. There's no denying the need for more and better intelligence
and intelligence management, but you should think carefully about how
much gate keeping power should be entrusted with any HQ entity. If we are
indeed in a "war", shouldn't the Generals be on the battlefield instead of
sitting in a spot removed from the action while still attempting to call the
shots?
I have been an FBI agent for over 21 years and, for what it's worth, have
never received any form of disciplinary action throughout my career. From
the 5th grade, when I first wrote the FBI and received the "100 Facts about
the FBI" pamphlet, this job has been my dream. I feel that my career in the
FBI has been somewhat exemplary, having entered on duty at a time when
there was only a small percentage of female Special Agents. I have also
been lucky to have had four children during my time in the FBI and am the
sole breadwinner of a family of six.
Due to the frankness with which I have
expressed myself and my deep feelings on these issues, (which is only
because I feel I have a somewhat unique, inside perspective of the
Moussaoui matter, the gravity of the events of September 11th and the
current seriousness of the FBI's and United States' ongoing efforts in the
"war against terrorism"), I hope my continued employment with the FBI is
not somehow placed in jeopardy. I have never written to an FBI Director in
my life before on any topic. Although I would hope it is not necessary, I
would therefore wish to take advantage of the federal "Whistleblower
Protection" provisions by so characterizing my remarks.
Sincerely,
Coleen M. Rowley
Numerous high-ranking FBI
officials who have made decisions or have taken actions which, in
hindsight, turned out to be mistaken or just turned out badly (i.e. Ruby
Ridge, Waco, etc.) have seen their careers plummet and end. This has in
turn resulted in a climate of fear which has chilled aggressive FBI law
enforcement action/decisions. In a large hierarchal bureaucracy such as the
FBI, with the requirement for numerous superiors approvals/oversight, the
premium on career-enhancement, and interjecting a chilling factor brought
on by recent extreme public and congressional criticism/oversight, and I
think you will see at least the makings of the most likely explanation.
Another factor not to be underestimated probably explains the SSA and
other FBIHQ personnel's reluctance to act. And so far, I have heard no FBI
official even allude to this problem – which is that FBI Headquarters is
staffed with a number of short term careerists* who, like the SSA in
question, must only serve an 18-month-just-time-to-get-your-ticket-punched
minimum. It's no wonder why very little expertise can be acquired by a
Headquarters unit! (And no wonder why FBIHQ is mired in mediocrity! That’s
maybe a little strong, but it would definitely be fair to say that there is
unevenness in competency among Headquarters personnel.)
(It's also a well-known fact that the FBI Agents Association has complained for years about
the disincentives facing those entering the FBI management career path
which results in very few of the FBI's best and brightest choosing to go into
management. Instead the ranks of FBI management are filled with many
who were failures as street agents. Along these lines, let me ask the
question, why has it suddenly become necessary for the Director to
"handpick" the FBI management?) [B {It's quite conceivable that many of
the HQ personnel who so vigorously disputed Moussaoui's
ability/predisposition to fly a plane into a building were simply unaware of
all the various incidents and reports worldwide of Al Qaeda terrorists
attempting or plotting to do so.}]
* By the way, just in the event you did not know, let me furnish you the
Webster's definition of "careerism" – the policy or practice of advancing
one's career often at the cost of one's integrity". Maybe that sums up the
whole problem!
Ironically, in this case, a
potentially huge IOB violation arguably occurred due to FBIHQ's failure to
act, that is, FBIHQ's failure to inform the Department of Justice Criminal
Division of Moussaoui's potential criminal violations (which, as I've already
said, were quickly identified in Minneapolis as violations of Title 18 United
States Code Section 2332b [BRACKET {Acts of terrorism transcending
national boundaries}] and Section 32 [BRACKET {Destruction of aircraft or
aircraft facilities}]).
This failure would seem to run clearly afoul of the
Attorney General directive contained in the "1995 Procedures for Contacts
Between the FBI and the Criminal Division Concerning Foreign Intelligence
and Foreign Counterintelligence Investigations" which mandatorily require
the FBI to notify the Criminal Division when "facts or circumstances are
developed" in an FI or FCI investigation "that reasonably indicate that a
significant federal crime has been, is being, or may be committed."
I
believe that Minneapolis agents actually brought this point to FBIHQ's
attention on August 22, 2001, but HQ personnel apparently ignored the
directive, ostensibly due to their opinion of the lack of probable cause. But
the issue of whether HQ personnel deliberately undercut the probable
cause can be sidestepped at this point because the Directive does not
require probable cause. It requires only a "reasonable indication" which is
defined as "substantially lower than probable cause."
Given that the
Minneapolis Division had accumulated far more than "a mere hunch"
(which the directive would deem as insufficient), the information ought to
have, at least, been passed on to the "Core Group" created to assess
whether the information needed to be further disseminated to the Criminal
Division. However, (and I don't know for sure), but to date, I have never
heard that any potential violation of this directive has been submitted to
the IOB or to the FBI's OPR. It should also be noted that when making
determinations of whether items need to be submitted to the IOB, it is my
understanding that NSLU normally used/uses a broad approach, erring,
when in doubt, on the side of submitting potential violations.
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