As they plunge gleefully into the good old blame game, the news media have paid little attention to the most fundamental and correctable reasons for our failure to prevent the catastrophe of September 11 and our needlessly large vulnerability to the catastrophes being planned for us.
The media consensus seems to be that FBI headquarters is staffed by idiots whose incompetence is manifested by 1) their rejection of FBI lawyer (and now whistle-blower) Coleen Rowley’s pleas to seek a warrant to search Zacarias Moussaoui’s laptop computer and 2) their failure to "connect the dots" by investigating suggestions that Middle Eastern men at U.S. flight schools might be terrorists-in-training.
Two problems: First, the record suggests that a secret national security court might well have blocked an FBI search of Moussaoui’s computer as illegal. Second, if the FBI had connected the dots-and had acted on Phoenix agent Kenneth Williams’s suggestion in July 2001 that a nationwide investigation be launched into militant Muslim men attending aviation schools-it would have been a crystal-clear case of racial profiling.
Indeed, the concern of FBI officials "that such an effort would be criticized in Congress as racial profiling" was "one indicator of the paralytic fear of risk-taking" at the agency, The New York Times reported on June 2. But if it had been reported at any time before September 11 that the FBI was spying on Middle Eastern men whose only "crime" was learning to fly, The Times and other media organizations would have seen it as a scandal.
Unlike most of his colleagues, Nicholas D. Kristof of The Times got it just right in his May 31 column: "As we gather around FBI headquarters sharpening our machetes and watching the buzzards circle overhead, let’s be frank: There’s a whiff of hypocrisy in the air. One reason aggressive agents were restrained as they tried to go after Zacarias Moussaoui is that liberals like myself-and the news media caldron in which I toil and trouble-have regularly excoriated law enforcement authorities for taking shortcuts and engaging in racial profiling. As long as we’re pointing fingers, we should peer into the mirror."
Don’t hold your breath for that to happen. So oblivious to the hypocrisy is Robert Scheer (for one), a reliably rabid, left-liberal Los Angeles Times columnist, that his June 4 column managed to trash the FBI both for using racial profiling and for not doing so.
In anti-profiling mode, Scheer associated the practice with "the dark ages" and accused the FBI of using a racial profile to "hound Taiwanese-born Los Alamos scientist Wen Ho Lee for five years without finding evidence of spying." He also sneered at Sen. Dianne Feinstein, D-Calif., for observing that not many terrorists seem to be "blond Norwegians." In pro-racial-profiling mode, Scheer complained that the "FBI had ample warnings from field agents that a great many suspicious men were training in U.S. flight schools" and that FBI headquarters "had failed to act on such reports."
What made those men "suspicious," Mr. Scheer? Would a bunch of blond Norwegians training in U.S. flight schools have been suspicious? Have you peered into a mirror lately?
This is not to minimize the ineptitude of many at the FBI and the CIA. But even if the feds had done everything right-a state of perfection likely to remain elusive-they would have been stymied both by some of the laws and rules that we have adopted since the 1960s in the name of civil liberties and by the taboo against racial profiling. Indeed, there’s more and more basis to wonder whether many or even all of the September 11 deaths might have been averted had the legal constraints been less stringent and the cultural taboo less potent.
We will fix these deficiencies only if we first adjust our cultural mind-set to catch up with the dangers of the world we now live in. Since the days when our greatest dread was domestic spying by future J. Edgar Hoovers or Richard M. Nixons, we have curbed our government’s investigative powers to a degree that makes little sense now that we face an all-Muslim mass movement of fanatical terrorists bent on infiltrating and murdering us-with nuclear, biological, or chemical weapons, if they can get them.
Some of these restraints have been relaxed since September 11 by the USA-PATRIOT Act and the May 29 revisions to the Justice Department’s domestic spying guidelines. But some others that are far from essential to a free society remain in place, sustained by a peculiarly American hypersensitivity to the perceived danger that officials will systematically peep into our bedrooms, abuse their powers, oppress minorities, and persecute political dissenters at every opportunity. Meanwhile, "profiling" seems to still be a dirty word even when it amounts to no more than an airport security search of one’s luggage and shoes-and even when the alternative is to put hundreds or thousands of lives at unnecessary risk.
Take the Moussaoui case. The main reason his computer was not searched was the stringency of the Foreign Intelligence Surveillance Act of 1978. It imposed, and still imposes, so substantial a burden of proof to obtain a warrant for a search or wiretap that all the clues the FBI had before September 11 may well have fallen short.
Moussaoui had been arrested in mid-August 2001 for overstaying his visa, after his odd behavior at a Minnesota flight school raised suspicions of possible terrorist intent. He had paid at least $6,800 in cash for lessons on how to fly Boeing 747 jetliners despite meager flying experience and had been unusually curious about whether doors could be opened during a flight. French intelligence had said he was a fundamentalist with extremist political beliefs who had attended a radical mosque in London, had been to Pakistan and perhaps Afghanistan, and had recruited young men to fight in Chechnya. He had expressed approval of Islamic terrorism to a traveling companion. After his arrest, he had refused to cooperate with investigators or consent to a search of his computer. He had also asked for a lawyer-which, under the Supreme Court’s 1966 precedent in Miranda v. Arizona and its progeny, had barred investigators from asking any more questions. Or so they believed.
The most relevant portion of FISA authorizes a search (or a wiretap) of a suspected foreign terrorist only if there is "probable cause" to believe that he or she is an "agent of a foreign power," 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 alone is not enough; "membership" in some particular international terrorist "group" must be shown.
The now-famous Rowley argued passionately in her 13-page, May 21 letter to FBI Director Robert S. Mueller III that the Moussaoui evidence had "certainly established" all this. Officials at FBI headquarters disagree. And they, unlike Rowley, have the perspective that comes from regular dealings with the secret court that handles applications for FISA warrants. (Rowley also accuses headquarters officials of being unhelpful and obstructionist. Perhaps they were. But that doesn’t make her right on the legal issue.) Some FISA experts outside government say that probable cause was lacking. Another, Washington lawyer Lawrence Robbins, says that if the above-listed evidence was all the FBI had, "it’s not a slam dunk for either side."
To submit a warrant application, the attorney general would have had to certify personally that the FBI had probable cause. The conventional wisdom that the FBI’s refusal to ask the attorney general to do that reflects a dysfunctional, risk-averse culture should lead us to wonder how the culture got that way.
Among the reasons: The FBI had recently (and unfairly) been savaged for supposed racial profiling in its Wen Ho Lee investigation, including its unsuccessful efforts to persuade the Justice Department to seek a FISA warrant. In addition, a well-regarded FBI supervisor (Michael Resnick) had seen his career blighted in the fall of 2000 when the FISA court had barred him from submitting any more warrant applications and had read the riot act to then-Attorney General Janet Reno about perceived improprieties in Resnick’s past submissions. The details are murky. But whatever Resnick did was apparently motivated only by a desire to thwart terrorism. Had you been his successor at FBI headquarters, how eager would you have been to go forward less than a year later with a legally shaky warrant application? And to risk getting trashed in the media and Congress as a racial profiler?
The bottom line is that if you think that Moussaoui’s computer should have been searched before September 11-and want to be sure that the next Moussaoui’s computer is searched-fixing the FBI won’t do the trick. We will also need to fix the law.