Still Time for an Investigation
EDITORIAL Still Time for an Investigation Now would President Bush please appoint an independent blue-ribbon commission to investigate the government's failure to anticipate or adequately prepare...
...Nevertheless, we cannot agree with her, as everyone else seems to, that it was self-evident-ly outrageous for FBI headquarters to conclude that her August search warrant request lacked "probable cause...
...A whistle-blower to tell us what may or may not have happened at the White House...
...This is no doubt true so far as it goes...
...Since September 11, the FBI and the Immigration and Naturalization Service have detained more than a thousand Arab and Muslim aliens in this country—almost all of them for technical visa irregularities and on the basis of generalized suspicions no more or less substantial than those Coleen Rowley and her office-mates harbored against Zacarias Moussaoui...
...Undeniably, there is a great deal of fresh intelligence work to be done throughout our government...
...Everything changed" on September 11, we tell ourselves...
...But in mid-August 2001, as it happens, Zacarias Moussaoui was not actually all that close a case...
...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...
...What other lapses might there have been before September 11...
...Americans are a freedom-loving people who have built elaborate rights-protections into our criminal law: requirements for individualized, substantiated suspicion and probable cause before detention, for instance...
...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...
...On September 17, asked if there were any "warning signs" at all, Mueller said no...
...The FBI, everyone says, doesn't put two and two together very well...
...Done right, such a commission could give the public something it now lacks: confidence that somebody is taking an honest look at what went wrong, and confidence that the administration will be put under pressure to change the ways its agencies operate...
...In which case the New York Times and the ACLU and Amnesty International and all the rest of them would be bitterly complaining that John Ashcroft's Justice Department had, by its detentions of Atta and the others, effected an "erosion of civil liberties" in defiance of standing law and American tradition...
...Quite the contrary, in preliminary investigations like the one her Minneapolis office was then conducting against Moussaoui, Justice's amended rules now "categorically prohibit . . . mail opening and electronic surveillance...
...Should the CIA have reoriented itself to deal better with the rising threat of al Qaeda before September 11...
...One September 11 is enough...
...At a September 14 press conference, Mueller insisted, "The fact that there were a number of individuals that happened to have received training at flight schools here is news, quite obviously...
...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...
...But there is more...
...And, last but not least, the American people don't know...
...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...
...In particular, we have been reluctant to admit that our FBI and other national security agencies, in the near term at least, must remain on hair-trigger alert—and must be prepared and willing to detain, even by mistake—Arab and Muslim gentlemen from overseas whose behavior and ideas make us nervous...
...We don't know...
...We cannot but sympathize with Special Agent Rowley, and we share her regret—to put it mildly—that things didn't work out differently...
...In other words: "Probable cause," the legal doctrine that made the FBI balk last summer, still applies...
...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...
...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...
...And, yes, a better FBI might have figured it out at the time...
...This is harsh reality, no doubt...
...Robert Mueller doesn't know...
...There are issues raised by last fall's events of vastly greater urgency than "analytical capaci-ty"—or any other structural weakness so far acknowledged by either the executive branch or its most prominent critics...
...David Tell, for the Editors...
...Already, FBI officials are suggesting, on background, that the CIA has been working hard to shift all the blame onto the FBI so as to avoid scrutiny of its own errors...
...And no one seems willing to acknowledge the inconsistency, much less acknowledge the possibility that even stiffer measures than what the FBI now proposes might be required...
...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...
...And if the FBI, through Moussaoui, had somehow managed to identify, track down, and detain his alleged co-conspirators, then they would have had twenty such vaguely disconcerting Muslim gentlemen—and nothing more...
...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...
...As our colleague Reuel Marc Gerecht, a former CIA officer, points out in the New York Times, the war on terrorism must ultimately be fought and won overseas...
...President Bush doesn't know...
...CIA director George Tenet assures us that he's got things in hand, and we're in no position to say whether he does or not...
...Last August 6, a CIA briefing warned President Bush of possible al Qaeda aircraft hijackings—based on a single British intelligence report from 1999...
...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's not in the nation's interest, and it's not in President Bush's interest, for the truth to come out this way...
...Congressional investigations are unlikely to be the solution: Given the level of partisanship on both sides, no one can have any confidence in a report produced by Congress...
...it's just about the only conceivable way they could have been saved...
...both agents had a hunch that the phenomenon might indicate planning for acts of terrorism...
...A few weeks ago, after all, Mueller's position, like Cheney's, was that nothing the administration could have done before September 11 would have made a difference...
...And what about the CIA...
...There is an explanation for this...
...But a remarkable consensus has emerged, at least, about the problem to be addressed...
...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...
...But now the Bush administration has openly acknowledged that, indeed yes, the September 11 attacks might conceivably have been prevented had the administration responded more effectively to information it had in its possession...
...No administration can...
...It turns out he was wrong...
...No, not necessarily, but possibly—as Mueller now admits...
...How could that be bad...
...We are not being speculative here...
...But we have been reluctant to admit that it was true—that our laws and the basic national attitudes on which they rest must change, as well...
...An independent commission is also more likely to come up with constructive criticism and useful recommendations for change, rather than simply engage in finger-pointing...
...Had the FBI put this information together with a warning from an agent in Phoenix, Arizona, that members of al Qaeda were enrolled in American flight-training schools, it might have begun to piece a difficult puzzle together, inasmuch as Atta himself had enrolled in an American flight-training school...
...Would Mueller's recent shakeup of the FBI have occurred with such dispatch in the absence of leaks and the Rowley letter...
...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...
...We might not know about the FBI's lapses had it not been for a few leaks and Coleen Rowley's open letter to Mueller...
...This past week FBI director Robert S. Mueller III said: "I cannot say for sure that there wasn't a possibility we could have come across some lead that would have led us to the hijackers...
...But September 11 revealed, as did the attacks on the U.S...
...Put it this way: Had the FBI examined Zacarias Mous-saoui's laptop computer, as the FBI office in Minneapolis requested, it would have found the telephone number of the roommate of the September 11 attack's ringleader, Mohamed Atta...
...Robert Kagan and William Kristol The Law Is a Ass Hearings on the government's pre-September 11 counterterrorism efforts begin this week on Capitol Hill...
...The Bush administration cannot investigate itself, review itself, and then change the way it does business without some outside prodding...
...But it is common sense, too...
...Now we know those statements were inaccurate, mostly because Rowley did something unusual—she called her superiors to account...
...That is why we need an independent commission...
...Americans are also a genial people who have in recent decades extended these protections, most of them, even to foreigners visiting from countries where civil liberties are nonexistent...
...These earliest sessions of the House and Senate intelligence committees will be conducted behind closed doors...
...And it is a fair bet, finally, what basic conclusion everyone will eventually draw from this whole, inevitable exercise in congressional blame-apportionment...
...But that's what Robert Mueller was saying, too, a few weeks ago...
...trade restrictions...
...In retrospect it all appears obviously related...
...Thousands of lives would thus have been saved, of course...
...Although there was no specific warning, Mueller admitted, "that doesn't mean that there weren't red flags out there, that there weren't dots that should have been connected to the extent possible...
...Dick Cheney doesn't know...
...And the law says that warrants for terrorism-related secret searches may issue only when the government can demonstrate "probable cause" to believe that its target "knowingly engages" or assists in terrorist activities—as a member or witting agent of a specifically identified terrorist organization...
...Do we have to wait for more whistle-blowers to get more parts of the story...
...Ashcroft's new guidelines, it bears pointing out, had they been in effect last August, would not have granted Coleen Rowley's wish...
...Let's face it: In strictest legal terms, they never had much on Moussaoui...
...In close cases, there is room for subjective judgment about what practical requirements this "probable cause" standard entails...
...Vice President Cheney claims to be worried that an independent commission would leak classified information...
...in a time of war...
...For doing this, Ashcroft and his department have been repeatedly condemned...
...We are speaking here of American law and the social assumptions that underlie it...
...Would this knowledge have necessarily prevented the attack from being carried out...
...That conclusion has been all but formally drawn in advance...
...There is a wide spectrum of opinion about the nature of reforms to be adopted, in other words...
...embassies in Africa and the bombing of the destroyer Cole, that the agency has been unable to penetrate Osama bin Laden's network...
...Our guess is that a blueribbon commission would be a good deal more careful with sensitive information than members of Congress generally are...
...They had a vaguely disconcerting Muslim gentleman with an interest in airplanes who had overstayed his visa and who had once known people who knew other people thought to be involved in terrorism...
...But barring an extremely improbable confession from one of the conspirators, we would never even have learned that those thousands of lives were at risk in the first place...
...This narrative is much too neat, though, for it takes no account of what the law actually says...
...flight schools...
...If we had understood that to be the case, we would have—perhaps one could have averted this...
...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...
...And judging from his most recent public comments, Mueller himself now agrees that such a search should have been pursued...
...Consider that list of September 11 "leads" the government is now said to have bungled...
...Just this past Friday, the Times denounced Ashcroft—and raised another alarum about the "erosion of civil liberties"—sim-ply because the attorney general had issued new procedural guidelines that will allow the FBI greater latitude to collect and monitor public information and public events in situations where there exists a "reasonable indication" of future terrorist activity...
...When we offered this suggestion two weeks ago, the Bush administration, led by Vice President Dick Cheney, was in high dudgeon...
...EDITORIAL Still Time for an Investigation Now would President Bush please appoint an independent blue-ribbon commission to investigate the government's failure to anticipate or adequately prepare for the terrorist attacks on September 11...
...So the Justice Department is now being excoriated for not doing before September 11 exactly the same thing it has been excoriated for going ahead and doing—in watered-down form, at that—since September 11...
...Superficially, the answer has seemed easiest in the case of Zacarias Moussaoui, since indicted for conspiracy in connection with the September 11 murders...
...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...
...And even if the FBI is now repairing itself, what about other agencies...
...And failing to embrace it would involve a risk, hardly remote, that no one can responsibly contemplate...
...Is it reorienting itself to do the job better now...
...Rowley thinks the early search that FBI headquarters blocked might have led investigators to Atta and the others before it was too late...
...A whistle-blower to tell us what might have gone wrong at the CIA...
...If the president and his advisers would stop circling the wagons for a moment, they would realize that an independent commission is in their interest...
...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...
...Any notion that the administration could have acted in any way that might have prevented or mitigated the attacks, Cheney suggested, was ludicrous and "irresponsible...
...The simple answer is: No one knows...
Vol. 7 • June 2002 • No. 38
