During a conversation on August 27, 2001, … [an agent in the FBI’s Minneapolis office told an FBI headquarters official that] 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, "… You don’t have enough to show he is a terrorist." – Eleanor Hill, staff director of the joint committee investigating intelligence failures, in testimony on September 24, 2002

The problem in this case was less the standards themselves than the fact that the FBI appears not to have understood them or adequately marshaled the facts at its disposal. Dumbing down the rules is no substitute for crafting an intelligence apparatus capable of following the rules Congress sets. – Editorial, The Washington Post September 28, 2002

I vote for dumbing down the rules. Or watering them down, if that might help our all-too-human FBI prevent mass murders. First we should water down the Foreign Intelligence Surveillance Act (FISA), which-even as amended in the wake of 9/11-makes it harder than it should be to investigate suspected international terrorists such as Zacarias Moussaoui.

Then we should carve out a clear exception to the Supreme Court’s ban on dragnet searches, a ban that makes it at least a little bit harder than it should be to hunt down serial murderers like the one who is terrorizing the Washington metropolitan area.

Congressional and journalistic investigations of the intelligence failures leading up to 9/11 have focused on the ineptness that helps explain why the FBI and other intelligence agencies did not put together the numerous clues that should have alerted them that a broad plot to hijack airliners might be afoot.

But in their myopic focus on such human errors, and on the now-notorious dysfunctionality of the FBI’s cops-and-robbers culture, congressional investigators and the media have paid too little attention to another reason for intelligence failures: unduly strict legal restraints on the government’s powers to investigate suspected terrorists.

Reforming the intelligence agencies will take many years. But Congress could fix the most glaring flaw in FISA in a matter of days or weeks. And until it does, FISA will hobble our intelligence agencies no matter how smart they are.

One might assume from news reports and published commentaries that the government got all the investigative powers it needed in last October’s USA-PATRIOT Act-along with many other powers that it does not need, should not have, and will use to oppress us. Critics complain, with good reason, that Congress unthinkingly rushed into the statute books some questionable new powers for use in cases having nothing to do with terrorism, such as a provision authorizing more clandestine "sneak-and-peek" searches in routine criminal cases.

But while the PATRIOT Act went too far in some areas, it did not go far enough in others. The Moussaoui case illustrates one major flaw that remains unfixed and that Eleanor Hill glossed over in her September 24 testimony about the case.

Hill was persuasive in faulting the FBI’s failure to put together all the clues that it had by August of 2001 that Moussaoui and other Muslim militants might be plotting terrorism using airliners as weapons. She was less persuasive in implying that these clues satisfied FISA’s stringent burden of proof for obtaining a warrant to search Moussaoui’s belongings, including his laptop computer.

FISA authorizes a wiretap or physical search of a suspected foreign terrorist only if the government can produce evidence amounting to "probable cause" to believe that the suspect is an "agent of a foreign power," which is defined to include a foreign national who is "a member" of "a group engaged in international terrorism or activities in preparation therefor." Evidence of terrorist intent, and of contact between the suspect and other suspected international terrorists, is not enough. The government must also identify the group and show evidence that the suspect is its "agent" and would do its bidding.

It is clear that the FBI had no real evidence before 9/11 that Moussaoui was an agent of Al Qaeda. Hill’s testimony suggests, however, that 1) some FBI lawyers erred in reading FISA as requiring evidence that Moussaoui was an agent of such a "recognized" terrorist group, and 2) the FBI could have obtained a warrant based on a French intelligence report linking Moussaoui to Chechen rebels fighting against Russia.

Hill seems right on the first point. But she comes up short on the second. She cited no evidence that Moussaoui was an "agent" of any Chechen group-and in fact he was not, as we know now based on evidence obtained after 9/11. He was an agent of Al Qaeda.

Nor does Hill seem correct in her implication that the FBI might have been able to obtain an ordinary criminal search warrant. That would have required probable cause that Moussaoui had committed a crime. But the suspicious behavior that led an FBI agent to speculate the man wanted to fly a plane into the World Trade Center was not a crime. And the broader conspiracy of which Moussaoui now stands accused was unknown until after it had done its evil work.

These seemingly technical points could affect a lot of cases-all those in which the government has reason to suspect that a suspect is a "sleeper" agent, or a foreign infiltrator such as Moussaoui, but little or no evidence that he is an agent of any identified foreign terrorist group or has committed a crime. Sens. Jon Kyl, R-Ariz., and Charles E. Schumer, D-N.Y., would amend FISA to dispense with the need to prove membership in an identified terrorist group. It’s a good amendment. If it had been the law in 2001, Moussaoui’s possessions would probably have been searched. And the FBI would have obtained names and phone numbers linking him to two of the hijackers and to the Qaeda cell in Hamburg, Germany, that planned the attacks.

The case of the sniper who has murdered nine people in the Washington area involves another kind of legal obstacle: Supreme Court case law that appears to bar dragnet searches even if the immediate purpose is to save lives by catching a serial killer.

Police have been randomly stopping and questioning drivers of white trucks and vans, based on eyewitness reports of a light-colored box truck or van leaving some of the scenes. Whether this is smart police work is debatable. But even if smart, it is arguably unconstitutional. The legal problem would be even greater if, immediately after a sniper attack, police were to set up roadblocks and require some or all drivers to submit to searches of their trunks for guns before letting them pass.

The Supreme Court has long held that police may not stop and question a driver unless he or she has committed a traffic violation or if officers have "reasonable grounds" to suspect an occupant of criminal activity. They may not search a car without the driver’s consent unless the suspicion rises to the level of probable cause.

These rules make sense in the ordinary run of cases. They make no sense when the purpose of the search is not merely to catch criminals but to save lives. In the sniper case, a dragnet search of dozens or hundreds of cars might be the best hope for stopping the killing, at least until the police have more clues to work with. Perhaps the justices would carve out an exception to their rules if presented with a sufficiently sympathetic case. But they have refused to create exceptions in the past.

To be sure, these legal obstacles may be more theoretical than real in the hunt for the sniper, because police will find ways to do what they have to do: They are practiced at coming up with real or imagined traffic violations to justify car stops, and at "requesting" consent to search so sternly that almost all drivers-even many who are carrying illegal guns or drugs-consent. The justices have upheld such not-exactly-voluntary consents as "voluntary." Any driver who refused to consent to a search in this case would immediately become a suspect. Otherwise unexceptional behavior-acting nervous, acting calm, whatever-would be seen as "suspicious." Drug-sniffing dogs might "alert" officers to something in the trunk. Voila-probable cause! And if such a search nabbed the sniper, judges would strain to uphold it, as they should.

But the fact remains that police in a case such as this have only three options: taking liberties with the law, lying about the facts, or watching helplessly while the death toll mounts. The law should not put them to such a choice.