A Review of the FBI's Handling:Chapter 4 II FISA request

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As a result, the Minneapolis FBI began seeking a FISA warrant, instead of a criminal warrant, to search Moussaoui’s belongings that were being held by the INS. (continued) obtain a search warrant, but he stated that the FBI declined to pursue the additional investigative steps suggested by the USAO. 111 Rowley’s only contact with anyone at FBI Headquarters about the Moussaoui matter was in a brief e-mail exchange with an NSLU attorney, which we discuss in Section F, 4, d below. 133 1. Minneapolis seeks to expedite the FISA process When Gary first discussed seeking a FISA search warrant for Moussaoui’s belongings with Martin on August 22, Gary indicated that Minneapolis wanted to expedite the process. As noted above, Gary told the OIG that the Minneapolis FBI had been informed by INS officials that the INS could only hold Moussaoui for seven to ten days before deporting him. Gary said that he was aware that FISA requests normally took a long time and that the Minneapolis FBI was concerned about expediting the process to ensure that the FISA warrant was obtained and executed before Moussaoui’s deportation. Gary said that he explained to Martin that the INS said it could only hold Moussaoui for seven to ten days. Martin told the OIG that he recalled that the Minneapolis FBI was very concerned about obtaining the FISA warrant quickly before the INS deported Moussaoui. Martin said he explained to Gary that a way to expedite the process would be to seek an emergency FISA. He also explained the process at FBI Headquarters for obtaining an emergency FISA, including the requirement for ITOS Section Chief approval.112 Gary and Henry began preparing a FISA request while they continued the investigation of Moussaoui. 2. The RFU’s assessment of the Minneapolis FBI’s FISA request At FBI Headquarters, Martin and Robin began looking into the merits of the Minneapolis FBI’s FISA request, based on the information about Moussaoui that the Minneapolis FBI had provided, primarily in the 26-page EC Henry had sent to FBI Headquarters about the Moussaoui investigation. Martin told the OIG that his reaction upon reading the 26-page EC with respect to obtaining a FISA warrant was that while he believed Moussaoui was “a dirty bird” and was probably “up to something,” there was no evidence 112 As discussed in Chapter Two, although the term “emergency FISA” was used, it referred to obtaining an expedited FISA warrant and not the statutory emergency FISA that involves a warrantless search approved by the Attorney General without prior approval of the FISA Court. 134 linking Moussaoui to a foreign power of any kind. Martin said that based upon what was in the EC, his opinion was that “there was no way” that a FISA warrant could be obtained because of the lack of evidence linking Moussaoui to a foreign power. Robin told the OIG that Martin informed her that Minneapolis was seeking a FISA search warrant and Martin provided her with a copy of the 26-page EC to read. She said that after reading the EC, she also believed that Moussaoui was “up to something.” However, she said that after reading the EC she asked Martin, “Where’s the foreign power?” In her view there was no evidence of a terrorist organization’s involvement with Moussaoui. According to Robin, Martin agreed with her assessment that the FISA request lacked a connection to a foreign power. 3. Additional information related to Moussaoui The Minneapolis FBI continued to collect additional information about persons associated with Al-Attas in connection with the posting of his bond for release from the INS detention facility. In an EC written by Henry and dated August 22, the Minneapolis FBI reported to FBI Headquarters that Al-Attas had been bonded out of custody on August 20. While he was still in custody, he made 13 calls to a telephone number registered to a man who had been identified in an earlier interview by Al-Attas as the imam – or leader, spokesman, and advisor – of the mosque attended by Al-Attas in Norman, Oklahoma. We will call this person “Ahmed.” Al-Attas told the Minneapolis agents that he had called Ahmed to request assistance in raising bond money. The Minneapolis FBI conducted name checks for Ahmed in FBI databases and learned that a person with the same name was the suspect in several bank robbery investigations in Memphis, Tennessee, but that he had not been in contact with the FBI since 1999. The Minneapolis FBI sought to determine if the Ahmed who talked to Al-Attas was the same person as the bank robbery suspect. The Oklahoma City Field Office informed the Minneapolis FBI on September 6 that it had determined that the Ahmed who was the assistant iman of the Norman mosque was not the same Ahmed who was the bank robbery suspect in Memphis. The Minneapolis FBI also determined that two other men were involved in attempting to post Al-Attas’ bond. The first was a man who we will call 135 “James Smith,” who had gone to the INS offices in Oklahoma City to inquire about Al-Attas’ bond. Smith was the imam of a local mosque. The Minneapolis FBI reported that he was the subject of an Oklahoma intelligence investigation, but it did not state the date, status, or findings of the investigation on Smith.113 In addition to Smith, the Minneapolis FBI learned that an individual, who we call “Mohammed Mohald,” had gone to the INS District Office near Minneapolis and paid Al-Attas’ bond on August 20.114 According to documents prepared in the case, Mohald had reported to INS officials that he was and had been Al-Attas’ roommate for some time, and that he knew Attas’ traveling companion – whom he called “Shaqir” – because they attended the same mosque in Norman, Oklahoma, where they all lived. Mohald advised that he had been a Muslim since 1970 and had traveled to a Middle Eastern country in the late 1980s as part of a missionary group.115 The EC stated that a search in ACS revealed that Mohald had an extensive criminal history and was the subject of a New York criminal terrorism-related investigation. The EC did not state the date, status, or findings of the investigation. In the EC, Henry reported suspicions about Mohald and stated that he believed that Mohald was involved in Moussaoui’s plan to commit a terrorist act along with Al-Attas. Henry’s suspicions were based on inconsistencies such as Mohald stating that he was Al-Attas’ roommate, when the Minneapolis FBI had confirmed that Al-Attas had been living for approximately one month with Moussaoui and someone else at an address other than the one provided by 113 The Oklahoma City Field Office reported in an EC dated August 24 that Al-Attas had spoken not only to Smith but also to an individual who we will call “Nabu Khalid,” who was the assistant imam to Smith. The Oklahoma City FBI reported that Smith and Khalid were the subjects of preliminary inquiries for their suspected involvement in a terrorist cell. This terrorist cell was not linked to Al Qaeda. 114 This individual was American-born but had adopted a Muslim name. 115 This particular missionary group is a worldwide Islamic missionary organization which was founded several decades ago. As discussed below, some members of this missionary group used the organization as a means and as a cover to recruit individuals to conduct acts of terrorism and to send them to Middle Eastern countries under the guise of “religious training.” 136 Mohald. In addition, while Mohald admitted to traveling to a Middle Eastern country in the late 1980s, ACS records showed that he was issued a visa for that country in April 1990 under his American name, which suggested that Mohald withheld information from the FBI about later trips to this Middle Eastern country. Henry also found Mohald’s explanation that he had flown to Minneapolis to post Al-Attas’ bond so that Al-Attas could return to teach children at the mosque in Oklahoma to be “farfetched.”116 Around the same time, Henry sent an e-mail to other FBI agents involved in the investigation asking whether he should consider getting assistance from an FBI psychological profiler. He wrote, “They probably have a psych profile for an Islamic Martyr and could tell us if our 747 guys fit.” According to Henry, he contacted an FBI field profiler in Tampa, Florida, whom Henry had met at a training session. Henry told the OIG that he contacted this agent because he knew him and because this agent was an experienced international terrorism investigator. Henry told us that this agent provided good re-interview techniques and highlighted potential issues based on the information Henry gave him. For example, the agent called attention to the fact that while Al-Attas was in jail, “the one call [Al-Attas] made was back to the mosque” and not to any family member. Henry said that while Al-Attas’ parents lived in Saudi Arabia, Al- Attas had at least one cousin and possibly two in the United States but did not call these relatives. 4. Consultations with NSLU attorney Howard Also on August 22, at FBI Headquarters SSAs Jack and Martin each independently consulted with an NSLU attorney who we call “Howard” about the Moussaoui matter. Martin also consulted with three other NSLU attorneys. We summarize first the role of NSLU attorneys, specifically with respect to FISA requests, before discussing the consultations between Jack and Howard, and between Martin and Howard. 116 Henry provided the names of Ahmed, Smith, and Mohald and their available identifying information to the CIA for checks against CIA records. The CIA did not report any information about these individuals to the FBI. 137 a. Role of NSLU attorneys The NSLU is part of the FBI’s Office of General Counsel in FBI Headquarters. The NSLU provided advice to FBI Headquarters and field offices on counterterrorism and counterintelligence matters. At the time of the Moussaoui case, two NSLU attorneys – who we call “Susan” and “Tim” – were assigned to work with ITOS substantive units. Other NSLU attorneys, including Howard, were consulted by ITOS employees when Susan and Tim were not available.117 Marion “Spike” Bowman was the FBI’s Deputy General Counsel for National Security Affairs and the head of the NSLU. As discussed in Chapter Two, attorneys in the NSLU described their role as giving legal advice to their “client,” the substantive unit in ITOS that was seeking the advice, but they said it was up to the substantive unit to decide how to proceed. NSLU attorneys spent a large amount of time handling questions related to FISA, including requests for warrants, execution of FISA orders, and dissemination of the information collected pursuant to FISA. NSLU attorneys usually were consulted when a question arose whether there was sufficient information to support the FISA request. However, NSLU attorneys were not “assigned” to work on a particular FISA request or to work with specific SSAs. The consultations with NSLU attorneys typically consisted of oral briefings by the SSA and the IOS who were handling the particular FISA request. In connection with these consultations, NSLU attorneys did not normally receive and review the documents prepared by the field office or initial drafts of the LHM prepared by the SSA and IOS. Tim told the OIG that SSAs would sometimes come back to the NSLU attorney with documents to read after an oral briefing when the SSA “was really serious about something.” After questioning the SSA and IOS, and based on the information provided by the SSA and the IOS, the NSLU attorney typically would provide verbal guidance about what was needed to support the FISA request. Howard told the OIG that his role was “steering [the FBI] through the land mines and 117 Howard told the OIG that he primarily worked counterintelligence matters but also handled counterterrorism matters as needed. According to Howard, it was not uncommon for him to be consulted when Tim and Susan were unavailable. 138 helping them enhance their cases.” Field offices did not normally participate in these consultations with the NSLU attorneys. Both NSLU attorneys and SSAs described the volume of their work as overwhelming. Tim stressed that the NSLU attorneys relied on the SSAs and IOSs for their substantive knowledge about the available intelligence on the FBI’s targets and terrorist organizations, and that given limited staffing NLSU attorneys normally were unable to conduct independent research on the substantive issues. b. Jack’s consultation with Howard As noted above, the Minneapolis FBI’s first contact with FBI Headquarters was with SSA Jack. On August 21, Jack made an appointment with NSLU attorney Howard to discuss the Moussaoui matter the following morning. Jack said that even though the case was in the process of being reassigned to Martin in the RFU, Jack kept his appointment with Howard because he was “curious” and wanted to discuss the Minneapolis FBI’s options for obtaining authority to search Moussaoui’s laptop and other belongings. During the meeting on August 22, Jack orally briefed Howard on the facts, as reported in Henry’s EC. Jack did not provide Howard with a copy of the EC. According to Howard’s notes from the meeting, they discussed whether there was sufficient information to obtain either a criminal search warrant or a FISA search warrant. With respect to the FISA warrant, Howard told the OIG that he advised Jack that he did not believe that there was sufficient information to obtain a FISA warrant, primarily because Minneapolis lacked the necessary information to articulate a foreign power. Howard’s notes indicate that he advised Jack that obtaining the FISA warrant also would be difficult because Moussaoui was already in custody. Howard told the OIG that at the time, OIPR viewed anyone in custody as a target of criminal investigation by the FBI, even if the person was being held on administrative charges, and therefore OIPR would question whether the FBI’s “primary purpose” was to collect intelligence information. With respect to approaching the USAO to obtain a criminal warrant, Howard’s notes reflect that he did not believe that there was sufficient information to obtain a criminal search warrant. His notes state that he advised Jack that a decision needed to be made quickly and that if the Minneapolis FBI 139 decided to pursue the criminal case, then it would be difficult to later pursue the FISA warrant. Howard told the OIG, however, that whether to pursue the FISA warrant or the criminal warrant was a “judgment call” for Minneapolis to make and that he considered the matter to be a “work in progress.” Jack confirmed that he received this advice from Howard. He told the OIG that Howard advised him that he did not see evidence of a foreign power and that Howard concurred that there was no evidence of a criminal act. Jack told the OIG that he and Howard were “brainstorming” about the possible ways to proceed. Howard’s notes indicate that he told Jack that it looked as if Minneapolis had several “good leads” and that Minneapolis needed to follow up on those leads. c. Martin’s meeting with Howard As noted above, on August 20 the Moussaoui case was transferred from Joseph to the RFU and assigned to Martin and Robin. On approximately August 22, Martin and Robin consulted with Howard for legal advice on Minneapolis’ chances for obtaining a FISA warrant.118 Martin said that when he began explaining to Howard the facts of the Moussaoui matter, Howard said that he was aware of the matter already because he had recently been consulted by Jack. According to Martin, Howard pulled out notes from his conversation with Jack and began reading them back to him and Robin. Howard said he remembered having a “brief conversation” with Martin. Howard said that he recalled that he was on his way to a meeting and did not have time to discuss the issue in detail at that time. He said that he asked Martin if the Minneapolis FBI had followed up on specific items, and Martin indicated that he did not believe so. Howard reiterated the same advice to Martin as he told Jack – that he did not believe that there was sufficient evidence to tie Moussaoui to a foreign power and therefore a FISA warrant was not possible absent further investigation by Minneapolis. 118 Martin told the OIG that Tim and Susan, the two NSLU attorneys who usually worked on ITOS matters full time, must have been unavailable at the time. 140 Martin told the OIG that he recalled Howard advising him that there was not sufficient evidence to support a link to a foreign power. Like Jack, Martin did not provide Howard with a copy of the 26-page EC, although Martin had the document with him. d. Howard’s e-mail exchange with Rowley After his meeting with Martin and Robin, Howard sent an e-mail dated August 22 to Minneapolis CDC Rowley. In the e-mail, he asked whether she had been asked for her “assessment of [Minneapolis’] chances of getting a [criminal] warrant” for Moussaoui’s computer. Howard told the OIG that he did this because he wanted to make sure that the CDC was “engaged in the thought process.” He stated that the decision on which type of warrant to seek was the field office’s decision, and he wanted to make sure that the CDC was “part of the process.” In an e-mail response later the same day, Rowley wrote, “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.” Rowley told the OIG that in retrospect she wished that she had made it clear in her e-mail that she believed that, in fact, there was sufficient evidence to support probable cause for a criminal warrant. Howard told the OIG that he recalled having the following reaction to Rowley’s e-mail: “Good Lord, Coleen, we don’t use FISA because we don’t have probable cause for a criminal warrant. That plays right into the hands of those people who think FISA is subterfuge.” Howard did not respond to the e-mail, nor did he and Rowley discuss the matter on the telephone. 5. French information about Moussaoui Around the same time that Martin consulted with Howard, the Minneapolis FBI obtained additional information about Moussaoui from the French government. As noted above, because Moussaoui had entered the United States with a French passport, Henry had sent a lead to the FBI’s Paris Legat to obtain any relevant information on Moussaoui from the French authorities. On August 22, the FBI’s Paris Legat reported to the Minneapolis FBI and FBI Headquarters that the French government had reported that 141 Moussaoui was purportedly associated with a man who was born in France and died in 2000 in Chechnya fighting with “the Mujahideen.” We call this person “Amnay.”119 The Legat’s EC stated that while in Chechnya, Amnay worked for Emir Al-Khattab Ibn (Ibn Khattab), the leader of a group of Chechen rebels.120 According to the EC, the French authorities, after Amnay’s death, had interviewed a person who we call “Tufitri” who had known Amnay.121 That person stated that Amnay was recruited to go to Chechnya by Moussaoui and that Moussaoui was “the dangerous one.” 6. Martin advises Minneapolis FBI that French information is not sufficient to connect Moussaoui to a foreign power After Martin received and reviewed the French information, he still did not believe there was sufficient information to identify a foreign power in the Minneapolis FISA request. Martin discussed the French information with Gary and stated that it provided little help to Minneapolis in connecting Moussaoui to a foreign power. Martin explained that Ibn Khattab and the Chechen rebel group he led were not an identified terrorist organization. Gary’s notes of the conversation indicate that Martin explained that Minneapolis needed evidence linking Moussaoui to a “recognized” foreign power. Martin told the OIG that by “recognized” he meant a foreign power that previously had been pled before the FISA Court. Martin told the OIG that he believed that the Chechen rebels had never previously been pled to the FISA 119 We do not use Amnay’s real name because the FBI considers that information to be classified. 120 As discussed in Chapter Three, after the collapse of the Soviet Union in 1991, Chechen separatists – both Islamic and non-Islamic – have sought independence for Chechnya from Russia. The Russian army has fought two guerilla wars in Chechnya to prevent its independence, resulting in tens of thousands of Chechens and Russians killed or wounded. In many Islamic countries, support for the Chechen cause is widespread. Ibn Khattab was a Jordanian-born Islamic extremist and leader of a large group of Chechen rebels that had many successes in clashes with Russian forces. He was killed in April 2002. 121 We do not use Tufitri’s real name because the FBI considers that information to be classified. 142 Court as a foreign power.122 Rather, Martin described the situation in Chechnya as dissidents engaged in a “civil war.” He acknowledged, however, that it may have been possible to develop the intelligence to support the position that Khattab’s Chechen rebels were a terrorist group. But he said that he was not aware of any insurgency/rebel group ever being pled as a foreign power.123 In addition, Martin stated that even if the Intelligence Community had developed the intelligence that Khattab’s Chechen rebels were a terrorist organization and could therefore constitute a foreign power under FISA, this could not be completed in a short time, which was what the FBI believed at the time was necessary in the Moussaoui case. Martin said he therefore advised the Minneapolis FBI that, to obtain a FISA warrant, it needed to develop information linking Moussaoui to a recognized or previously-pled, identifiable foreign power.124 (continued) 122 We found that at the time FBI Headquarters was operating under a perception that OIPR was overly conservative in its approach to the FBI’s FISA applications because OIPR’s standard for probable cause was too high and because OIPR was not interested in pleading “new” foreign powers – foreign powers that had not previously been pled to the FISA Court. We discuss this perception of OIPR’s conservatism and how it affected FBI Headquarters’ handling of the Moussaoui investigation in the analysis section below. 123 Martin suggested to the OIG that the reason that groups engaged in a civil war were not pled as terrorist organizations under FISA was because they were not “hostile” to the United States or working against U.S. interests. When asked whether it was a requirement under FISA for a terrorist organization to be hostile to U.S. interests to fulfill the foreign power requirement, Martin said that he did not know whether this was a legal requirement, but that he believed that it was assumed in the statute based on the terrorist organizations that had been pursued by the government. 124 Martin told the OIG that at that time he had had only one other case in which he advised a field office that it was not going to be able to obtain a FISA warrant. He said that the field office wanted to pursue a FISA warrant targeted at an organization that it believed to be a terrorist organization that constituted a foreign power. As discussed above, a foreign power or an agent of a foreign power may be the target of a FISA warrant. Martin said that this potential target had never before been pled as a foreign power. He said that he consulted with an NSLU attorney, who informed him of the intelligence information that the field office would have to establish in order to successfully obtain a FISA warrant with the organization listed as a foreign power. Martin stated that he informed the field office of this 143 Robin also told the OIG that she did not believe that the French information was sufficient to connect Moussaoui to a foreign power. She said that she understood that the Chechen rebels had never been pled as a foreign power to the FISA Court and that the Intelligence Community had never developed sufficient intelligence that the conflict in Chechnya was more than a civil war. In one case she was familiar with, she understood that the FBI had previously attempted to obtain a FISA warrant using Khattab and the Chechen rebels as the foreign power but that it was “turned down” by OIPR.125 She stated that “building a foreign power” was “not an overnight thing” and would have required months to collect the required intelligence information, as had been the case when one particular terrorist group was first put forth as a foreign power. Gary told the OIG that during the conversation between him and Martin on August 22 about the French information, he raised with Martin the issue of the mandatory notification of the Criminal Division when there was a reasonable indication of a crime, as set forth in Deputy Attorney General Thompson’s August 6 memorandum, which Charles had faxed to Gary. According to Gary, Martin said that he did not see any evidence of a federal felony, that the FISA route was easier, and that going the criminal route first would be relevant to whether they were able to obtain a FISA warrant. Gary’s notes indicate that Martin stated, “Don’t see federal crime.” Gary told the OIG he deferred to Martin but faxed him a copy of the Thompson memorandum. (continued) advice, and the field office did not insist that the information it had was sufficient for a FISA warrant. 125 Robin was mistaken about that FISA. The FISA request for that target was initially drafted by an FBI field office for a terrorist organization that was based in Northern Africa. The target was a well-known leader of a worldwide charitable organization that was known for providing financing to Muslim causes around the world, including but not limited to Ibn Khattab. The FISA request was given to an analyst in FBI Headquarters, who was asked to prepare the FISA request using a different foreign power than the terrorist organization based in Northern Africa. Several months later, after the field office developed information linking the target directly to a particular terrorist group leader, the analyst prepared a FISA request using his group as the foreign power. 144 Martin told the OIG that he did not remember a specific conversation with Gary about whether there was probable cause to obtain a search warrant. However, he said that he recalled a conversation in which he asked Gary, “What would the crime be?” Martin told the OIG he believed that the Minneapolis FBI did not have any evidence of a crime and only had “gut feelings.” 7. Robin’s research to link Moussaoui to recognized foreign power or terrorist organization Robin conducted additional research on Moussaoui to try to bolster Moussaoui’s connection to a recognized foreign power. Robin sought to find a direct link between Moussaoui or any of the other names or organizations that had surfaced in the investigation and foreign powers that she was aware had previously been pled to the FISA Court. According to Robin, the Moussaoui FISA request was different from the typical FISA request because the Minneapolis FBI had not conducted a lengthy investigation on Moussaoui before he was arrested. As a result, Robin said, the FBI lacked information about Moussaoui that would have been gathered if the FBI had conducted physical surveillance and trash covers and obtained phone records and financial records, which was how intelligence investigations typically proceeded before a FISA warrant was requested.126 Moreover, Minneapolis was seeking an emergency FISA warrant, which meant that there was little time to develop more information to support the FISA request. Robin ran the names of Moussaoui, Al-Attas, and the individuals who had been identified as connected to Al-Attas in ACS and another computer system that contained intelligence reports from throughout the intelligence 126 Financial and telephone records could be obtained, prior to a FISA, through the use of a National Security Letter (NSL), which did not require approval of a court before issuance by the FBI. At the time of the Moussaoui investigation, the process for obtaining NSLs, which involved the signatures of several officials at FBI Headquarters and in the NSLU, took several months. Delay in obtaining NSLs has long been identified as a significant problem in counterintelligence and counterterrorism investigations. Under the Patriot Act, the FBI was given authority to delegate authority for obtaining NSLs to the field to speed up the process. 145 community. She said she did not find any evidence linking any of these individuals to a foreign power. She said she also researched the missionary group that Mohald had said that he had been a part of to determine whether that organization had any connections to terrorism or had formed the basis for the connection to a foreign power in any previous FISA application. According to Robin, it was not until several months after September 11 that individual members of this missionary group were pled as targets of a FISA application and were described as facilitators and recruiters for a particular terrorist organization.127 In addition, Robin researched the name Ibn Khattab, the Chechen rebel leader. Robin said she was not attempting to find information to support using Khattab and his rebel group as the foreign power because, according to Robin, there was insufficient intelligence to link his group to anything more than a civil war. She said that she was aware of a recent FISA application in which the subject had strong ties to Ibn Khattab, but that the Chechen rebels were not pled as the foreign power in that case. Robin told the OIG that she researched Ibn Khattab to determine whether he had close ties to other terrorist groups that had previously been pled as foreign powers before the FISA Court, but she did not find any. Robin said that she was aware that the FBI’s Washington Field Office had an open investigation of Khattab but that it was not an active investigation. One of the documents that Robin retrieved in her search using the name Ibn Khattab was the Phoenix EC, which we described in Chapter Three of this report. The author of the EC, Special Agent Kenneth Williams, mentioned Ibn Khattab when describing his interview of the subject of an FBI investigation who had a picture of Khattab and a picture of Usama Bin Laden on the wall of his apartment where the interview was conducted. Williams stated his belief that there were an “inordinate number” of persons of interest to the FBI who also were receiving training in aviation-related fields of study and that there 127 Even prior to the September 11 attacks, however, there was intelligence information showing that some members of this missionary group were using the organization as a means and as a cover to recruit individuals to conduct acts of terrorism and to send them to two Middle Eastern countries under the guise of “religious training.” 146 was a possibility that Bin Laden was coordinating an effort to train people in the U.S. in order to conduct terrorist activity in the future.128 ACS records show that Robin printed the Phoenix EC on August 22. Robin told the OIG that her usual practice was to read the documents that she printed, but she said she did not have a recollection of reading the Phoenix EC at the time. Robin did not provide the EC to anyone else or discuss its contents with anyone, including Martin or the Minneapolis FBI. Robin told the OIG that when she read the Phoenix EC after the Joint Intelligence Committee Inquiry staff informed her that ACS showed that she had printed the EC, she concluded that nothing in the EC would have bolstered Moussaoui’s connection to a foreign power for FISA. She also asserted that the Phoenix EC’s reporting of information about individuals who were of interest to the FBI – that they were Middle Eastern and were in flight school – was not significant at the time because there were thousands of Middle Eastern men in U.S. flight schools at the time. 8. Martin and Robin consult with NSLU attorney Tim Around August 23, Don directed Martin and Robin to consult with another NSLU attorney, Tim, about the Moussaoui case. According to Martin, Don thought that Tim should be consulted because he handled counterterrorism matters full time and therefore may have had more expertise than Howard. Martin orally briefed Tim on the facts of the Moussaoui case but did not provide him with any of the documentation. None of the participants in the meeting recalled specifically what facts were discussed. Tim took a few notes about the conversation in his calendar, and the notes reflect that Tim was told that Moussaoui was an Arab who was in flight school and who had encouraged a friend of his to fight for the Muslim cause in Chechnya. Tim said that he did not recall discussing with Martin and Robin the Chechen rebels as a possible foreign power. Tim added that it was the role of the SSA and IOS, not the 128 The Phoenix EC did not contain any references to Moussaoui, to any of the individuals who surfaced in the Moussaoui investigation, or to anyone associated with Oklahoma or Minnesota. 147 NSLU attorney, to identify the foreign power based on their analysis of the available intelligence. He also suggested that the reason that the Chechen rebels were not discussed as a foreign power was because, at the time, they were viewed as participants in a civil war, not as a terrorist organization. Tim told the OIG that while in theory the Chechen rebels could have been a foreign power, because “anything could be a foreign power,” it was his understanding that this did not happen in practice before September 11, 2001. He added that even if the Chechen rebels were considered a foreign power under FISA, the FBI still would have had to show that Moussaoui was an agent of that foreign power. Both Martin and Tim told the OIG that Tim’s advice was that the Minneapolis FBI lacked sufficient evidence of a foreign power to obtain a FISA warrant. Tim advised Martin that Minneapolis would have to collect more information supporting Moussaoui’s connection to a foreign power in order to obtain a FISA warrant. Tim told the OIG that Martin’s “attitude” in presenting the case was that “he didn’t think [Minneapolis] should get the FISA” but that Minneapolis “wanted one.” According to Tim, he was very busy with another matter at the time and advised Martin that if the project needed more attention, Martin would have to see another NSLU attorney. Tim told the OIG that he did not read the Phoenix EC until some time after September 11. With regard to whether it would have had an impact on his legal advice, Tim stated, “I can’t tell you it would have been enough for a FISA.” He also stated that the Phoenix EC would not have provided sufficient information to connect Moussaoui to a foreign power. But Tim said that, if he had known about the Phoenix EC, he would have taken it to an attorney in OIPR to discuss the Moussaoui matter in person, which he said was consistent with how he had acted in the past. He said that while “all Middle Eastern pilots” trained in the United States, the Phoenix EC would have provided a theory to attempt to connect Moussaoui to a foreign power under FISA.129 (continued) 129 We also asked Howard whether he had read the Phoenix EC since September 11 and if so, whether it would have made a difference to him in his analysis of whether the Minneapolis FBI had enough information to obtain a FISA warrant. Howard said that he only recently had read the Phoenix EC, but that if he had seen the Phoenix EC at the time, it 148 9. Martin tells Minneapolis its FISA request was not an emergency On August 24, Martin and Gary discussed the options for the Minneapolis FBI in pursuing a FISA warrant for Moussaoui. Martin asserted that the Moussaoui situation did not qualify as an emergency, which required information that an “imminent act of terrorism” was about to take place, and he added the FISA request lacked sufficient evidence of a connection to a known foreign power.130 Gary’s notes from the conversation indicate that Martin stated that Minneapolis could write a Letterhead Memorandum (LHM) for the FISA request, have its CDC approve it, and that Martin would try to push it “up [the] food chain” at FBI Headquarters. However, according to Gary’s notes, Martin advised him that the FISA request could “take a few months” to complete, that there were “100s of these FISA requests,” and that the FBI had to prioritize them.131 The notes also indicate that Martin said that he had showed the FISA (continued) (continued) would have “made a difference in the pucker factor,” and he would have called Rowley in Minneapolis and discussed the importance of tracking down the available leads to find out as much information about Moussaoui as possible. However, Howard said he believed that the Phoenix EC “would not have made a difference in the probable cause equation as it applie[d] to Moussaoui.” He explained that the problem with the Moussaoui case was the lack of a connection to a foreign power and nothing he read in the Phoenix EC contributed to that issue. 130 As discussed in Chapter Two, the SSAs and NSLU attorneys we interviewed told us that what rose to the level of an expedited FISA request depended on what the field office and ITOS management deemed to be an immediate priority, but the final decision would be made by the ITOS Section Chief, Michael Rolince. According to these witnesses, in the summer of 2001 expedited FISA requests normally involved reports of a suspected imminent attack or other imminent danger. 131 Rolince and others told the OIG that there were always more FISA requests than ITOS resources and OIPR attorneys to complete all of them and have them heard before the FISA Court in the amount of time desired by the field office. Rolince stated that he instituted a policy that only the Section Chief was permitted to determine what constituted a priority and would be pushed to OIPR. He said that this arose out of the OIPR Counsel expressing to him that his attorneys were being called by SSAs and analysts making demands about what cases were priorities and had to be completed for presentation to the FISA Court. As a result of Rolince’s policy, field office managers would call Rolince to 149 request to an NSLU attorney and that office was not supportive of the application. Gary’s notes also indicate that Martin told Gary that “1-1-1/2 years ago we could have rammed this through.” Martin told the OIG that he did not remember making this statement but that he believes he was referring to the months after the bombing of the U.S.S. Cole in Yemen, which took place in October 2000. Martin said that after an act of terrorism or some other crisis situation, a significant amount of intelligence information is developed, which leads to more FISAs being obtained in a shorter amount of time. OIPR Counsel James Baker told the OIG that around the millennium in late 1999 and early 2000 the government had a heightened concern about terrorist attacks and was “aggressive” in its pursuit of FISA warrants, and the FISA Court “went along with them,” approving a significant number of FISA warrants in less than a month. Gary told the OIG that because he was new to counterterrorism matters, he relied on the advice that he received from Martin. 10. Martin seeks information from FAA During this same time period, Martin initiated additional requests for information about Moussaoui. Martin advised the Federal Aviation Administration (FAA) representative at FBI Headquarters about the Moussaoui investigation and provided him with a copy of Henry’s 26-page EC. The FAA employee checked FAA databases for information about Moussaoui and obtained records indicating that he had registered for a student pilot’s certificate at the flight school in Norman, Oklahoma. The FAA employee e-mailed this information to the Minneapolis FBI and the RFU. (continued) assert their opinion that their case should be prioritized over others. Rolince explained that FISA renewals were generally of a higher priority than initiation of FISAs because with renewal requests the FBI was faced with the likelihood of not being able to renew the FISA if the previous FISA warrant order lapsed. He also stated that al Qaeda FISA requests were generally the priority, although there were times when another foreign power was the priority for a certain period of time because of a specific set of circumstances. 150 According to the FAA employee, he, Martin, and Robin met with Don when the Moussaoui matter first came to the RFU, and they discussed what the FBI could tell the FAA about Moussaoui. The FAA employee stated that they decided that since Moussaoui and Al-Attas were in custody and no other individuals were known to be working with them, the Minneapolis FBI would continue its investigation, but the FBI would not advise the FAA about the investigation at that point. 11. Minneapolis FBI seeks assistance from the CIA and London Legat On August 24, after the Minneapolis FBI was told by Martin that the French information was not sufficient to link Moussaoui to a foreign power, the Minneapolis FBI sought assistance from other agencies to connect Moussaoui to al Qaeda or another foreign power. Henry e-mailed an FBI manager detailed to the CIA to ask him to determine whether the CIA had any information linking Moussaoui to a foreign power. A CIA counterterrorism employee e-mailed the FBI manager detailed to the CIA, who forwarded the message to Henry, that Ibn Khattab was “a close buddy with Bin Laden from their earlier fighting days and that the CIA employee’s interpretation of the French information was that Moussaoui was a “recruiter for Khattab.” Henry responded by e-mail to the FBI detailee and asked him to forward the e-mail to the CIA employee. In this e-mail, Henry asked the CIA employee if she had any additional information connecting Ibn Khattab to al Qaeda “other than their past association.” He also wrote, “We’re trying to close the wiggle room for FBIHQ to claim that there’s no connection to a foreign power.” Henry did not receive any response from the CIA to his request for additional information linking Moussaoui to a foreign power. According to the CIA employee, the CIA had no further information on any links between Moussaoui and terrorists, and this information was communicated to the FBI. Also on August 24, Henry e-mailed the FBI manager detailed to the CIA, who we call “Craig,” with names, telephone numbers, and other information obtained from Al-Attas’ address book. Henry requested that Craig ask the CIA to run traces on the information. Henry noted in the e-mail that he also was going to send copies of all of the documents found in Al-Attas’ possession. Henry wrote that there were many more domestic telephone numbers in the 151 information obtained from Al-Attas, and Henry had included only the foreign information in the e-mail. Also on August 24, the same day that Henry was exchanging e-mails with the CIA employee about obtaining information to connect Moussaoui to a foreign power, a CIA manager who was working in ITOS at FBI Headquarters as a “consultant” on intelligence issues e-mailed Don about the Moussaoui case. The CIA manager asked whether leads had been sent out to obtain additional biographical information, including any overseas numbers, and whether the FBI had obtained photographs and could provide them to the CIA. Martin responded to the e-mail and provided an update stating that requests for information and photographs already had been sent to the appropriate foreign intelligence agencies and to the CIA, and that the Minneapolis FBI had sent telephone numbers and addresses from Moussaoui’s and Al-Attas’ “pocket litter” to the CIA.132 Martin concluded the e-mail by writing, “[p]lease bear in mind that there is no indication that either of these two had plans for nefarious activity as was apparently indicated in an earlier communication.” (Emphasis in original.) Also on August 24, Henry e-mailed the FBI’s London ALAT, providing him with an update on the Moussaoui investigation and asking for assistance in establishing that Moussaoui was acting on behalf of a foreign power. Although the London ALAT contacted the British authorities twice in writing, made several telephone calls, and indicated the urgency of the Moussaoui matter, the British government did not provide the FBI any information about Moussaoui until September 12. We discuss the information and the ALAT’s efforts to obtain this information from the British authorities in Section J below. In addition to contacting the CIA and the London Legat directly, Henry contacted another FBI Headquarters employee who worked on intelligence matters and who we call “Carol.” In an August 24 e-mail, Henry reported the CIA employee’s statement that there was an association between Khattab and Bin Laden. Henry asked Carol for her assistance in establishing a connection between Moussaoui and a known terrorist organization, such as al Qaeda. 132 “Pocket litter” is a term used to describe the contents of the pockets of a person who is taken into custody and searched. 152 Henry wrote that the RFU had determined that Minneapolis did not have sufficient evidence of a criminal violation for a criminal search warrant and that Minneapolis also lacked sufficient evidence to obtain a FISA warrant. He noted that the RFU had advised Minneapolis that “because Ibn Khatab [sic] has not yet been established to be a member of a named group, that Moussaoui is not acting at the direction of a foreign power.” He added, “I disagree, but that doesn’t matter.” He also e-mailed Carol a copy of his 26-page EC about the Moussaoui investigation. Henry told the OIG that he did not receive any information from Carol until September 10, when she sent him an e-mail inquiring whether he had been able to obtain a warrant. 12. Minneapolis prepares emergency FISA request On the morning of Saturday, August 25, Henry completed the Minneapolis FBI’s formal FISA request, which consisted of a 6-page LHM, and e-mailed it to FBI Headquarters. The LHM stated that the Minneapolis FBI was requesting a FISA search warrant on an emergency basis and that Minneapolis “wish[ed] to emphasize the urgency of this matter in reminding recipients that Moussaoui is in INS custody pending deportation.” The LHM summarized Henry’s 26-page EC, including the statements received from the flight school representatives, that Moussaoui was arrested as an overstay on his visa and that deportation was pending and that he was in possession of two knives when he was arrested. The LHM also summarized Al-Attas’ statements about Moussaoui’s radical Islamic fundamentalist beliefs, including that Moussaoui believed that it was acceptable to kill civilians who harm Muslims. The LHM noted inconsistencies in Moussaoui’s statements, such as his unconvincing explanation for the large sums of money in his possession while he was in the United States and his inability to convincingly explain the reasons for his recent trip to Pakistan. With respect to information linking Moussaoui to a foreign power, the LHM contained three paragraphs. The LHM included the information provided by French authorities. The LHM also included the statement from the CIA employee that Ibn Khattab was “known to be an associate of Usama Bin Laden from past shared involvement in combat.” Both Gary and Henry told the OIG that they believed that based on the information they provided in the LHM, the Minneapolis FBI could support that Moussaoui was connected to Ibn Khattab and that because Khattab was 153 connected to Usama Bin Laden, al Qaeda could be used as the foreign power in the FISA application. Martin told the OIG, however, that he believed the information provided by the Minneapolis FBI to support a link between Ibn Khattab and Bin Laden was not sufficient to support a FISA request. According to Martin, it was “common knowledge” that there was a “purported” link between Khattab and Bin Laden. But he said that the most recent intelligence indicated that Khattab and Bin Laden were not connected. Robin told the OIG that she believed that trying to link Moussaoui to al Qaeda by arguing that Moussaoui was linked to Khattab, and Khattab was linked to Bin Laden, was “too far removed” to obtain a FISA warrant. She stated that based on intelligence information, it was known that Khattab and Bin Laden were “contemporaries” but were not connected to each other. She said that Khattab was not working for Bin Laden. 13. Dispute between Minneapolis and Martin Around this time, Gary and Henry were becoming increasingly frustrated with the advice from Martin that they lacked sufficient information linking Moussaoui to a foreign power. On Monday, August 27, in a telephone call between Martin and Gary, the tension surfaced. According to Gary’s notes of the conversation, Martin told them that “what you have done is couched it in such a way that people get spun up.” Gary told the OIG that after Martin made this statement, Gary said “good” and then stated that Minneapolis was trying to keep Moussaoui from crashing an airplane into the World Trade Center. Gary’s notes of the conversation indicate that Gary stated, “We want to make sure he doesn’t get control of an airplane and crash it into the [World Trade Center] or something like that.” According to Gary’s notes, Martin responded by stating that Minneapolis did not have the evidence to support that Moussaoui was a terrorist. Gary’s notes indicate that Martin also stated, “You have a guy interested in this type of aircraft. That is it.” Martin told the OIG that he did not recall making any statement about Minneapolis getting “spun up” about the Moussaoui investigation. When asked whether he spoke with Minneapolis about whether they were overreacting, Martin stated that he “could have.” Martin told the OIG that he 154 never heard Gary make a statement that he thought that Moussaoui was going to hijack an airplane and crash it into the World Trade Center. He said that the first time that he heard that statement was in October 2001 at a meeting in FBI Headquarters involving several Minneapolis agents and FBI Headquarters employees to discuss the Moussaoui investigation. He said that during the meeting Gary made a reference to having made this statement to Martin some time in August 2001, but that Martin had never before heard Gary make the statement. Gary’s notes also indicate that the Minneapolis FBI asked Martin whether the FISA request, which had been e-mailed on Saturday, August 25, had been presented to Section Chief Rolince for approval as an emergency FISA. Martin stated that it had not been presented to Rolince. Gary’s frustration with Martin can be seen in an e-mail Gary sent to Martin on August 27 after their telephone conversation. In the e-mail, Gary advised Martin to contact the CIA employee for more information about Khattab and his connections to Bin Laden in order to support the foreign power portion of the FISA application. Martin responded in an e-mail on August 28 that FBI Headquarters had the latest information on Ibn Khattab and Chechnya, “as this program is administered by our unit,” and that the matter had been discussed with the CIA employee. Martin also wrote, “I need to ask you guys to do me a favor. In the future, please contact and pass info to me and allow me to talk with [an FBI detailee to the CIA] and [the CIA]. Things work much better when our agencies are communicating HQ to HQ.”133 Martin’s e-mail was forwarded to Craig, the FBI detailee to the CIA with whom the Minneapolis FBI had been communicating. Craig responded with an e-mail to Gary, Martin, and Don, which stated that Craig definitely agreed that 133 Martin told the OIG that normally contacts with other agencies are made by the SSAs at FBI Headquarters. He stated that he was concerned about the Minneapolis FBI communicating directly with the CIA because it was “not conducive to good information flow” and that FBI Headquarters needed to be “apprised of what’s going on.” He also asserted that since FBI Headquarters was responsible for putting the FISA request together, it was necessary for FBI Headquarters to ensure that it had all of the available information from outside agencies, and that this was more likely to occur when the agencies were communicating at the Headquarters level. 155 it was critical for FBI field offices to deal directly with FBI Headquarters in order to ensure that FBI Headquarters was “in the loop up front.” He added that in this instance he had been in touch with Don at the initiation of the case and that Don had asked the CIA to move quickly and without a formal request for information in the form of a teletype from FBI Headquarters. Craig wrote that it was for this reason that he had been dealing directly with the Minneapolis office but also coordinating with FBI Headquarters. Craig also wrote that the CIA had yet to receive a teletype from the FBI about the matter, which he described as “the only real, official communication between [the two agencies].” Craig also noted in a separate paragraph to Gary that FBI Headquarters “ha[d] a strong handle on the Chechen issue” and that the IOSs at FBI Headquarters were “well connected” to the CIA if they “require[d] anything new.” Henry told the OIG that he was frustrated with the advice that the Minneapolis FBI was receiving from FBI Headquarters and that he expressed this in a conversation with Martin. Henry said he told Martin that he disagreed with Don’s arguments for not pursuing the criminal warrant. He told the OIG that he had said to Martin: …if you’re not going to advance this the FISA route, or if you don’t believe we have enough for a FISA, I shudder to think – and that’s all I got out. And [Martin] cut me off and said, you will not question the unit chief and you will not question me. We’ve been through a lot. We know what’s going on. You will not question us. And that could be the mantra for FBI supervisors. 14. Minneapolis contacts RFU Unit Chief Because of Gary’s and Henry’s frustrations in dealing with Martin, Gary told the OIG that he approached Roy, the Minneapolis Acting SAC, and asked Roy to call Don to “find out what [Martin]’s problem was.” 134 On August 27, 134 As discussed above, Roy was named the Acting SAC on August 3, 2001, and remained in this position until December 2001. Prior to being named the Acting SAC, he was one of two Minneapolis ASACs. 156 Gary and Roy together placed a call to Don to discuss the Moussaoui FISA request. According to Gary, Don was “immediately defensive” and asked Martin to join the call. Gary’s notes of the conversation do not indicate that Martin’s performance was discussed. Gary told the OIG, and his notes reflect, that Martin and Don discussed the lack of a foreign power and stressed that more direct connections were needed to establish the required link. Gary told the OIG that he recalled asking “what is the mechanism” to address the Moussaoui situation. He said that he asked Martin and Don if “they won’t let us go criminal” and if there was insufficient information for a FISA, “what can we do?” Gary’s notes indicate that he was advised that if Moussaoui could not be connected to a terrorist organization, there was “no mechanism to address on a case-by-case basis.” Gary’s notes also reflect that the question, “What is being done to address the loop-hole (if he isn’t part of a known group)?” was asked. Gary told the OIG that he posed this question. The reply is noted in quotation marks as “That isn’t something for you to worry about.”135 Gary told the OIG that he recalled that Don gave this reply. Don, however, told the OIG that he did not make this statement. Gary’s notes also indicate that either Don or Martin stated that another NSLU attorney – Susan – would review the matter and would give it a “good 135 Because FISA warrants are permitted only for foreign powers or agents of foreign powers, the “lone wolf” terrorist who is not acting on behalf of any foreign government or terrorist organization is not covered by the FISA statute. In 2002, a bill was introduced in the United States Senate to amend FISA’s definition of “foreign power” to include “any person, other than a United States person, or group that is engaged in international terrorism or activities in preparation therefor.” The intent of the amendment was to allow a FISA warrant to be issued after showing that a person is engaging in or preparing to engage in international terrorism, regardless of whether that person also is an agent of a foreign power. The bill was referred to the Judiciary Committee, and the Senate Intelligence Committee held a hearing on the bill on July 31, 2002. There was no written report, and the bill was not reported to the full Senate. On January 9, 2003, the bill was reintroduced and was approved by the Judiciary Committee on March 11, 2003. It was approved by the Senate in May 2003. A similar bill has been introduced in the House of Representatives. 157 faith review.” Gary told the OIG that Don gave this assurance. According to Gary, Don also advised the Minneapolis FBI that it was necessary to attempt to confirm that the information received from the French related to the same Moussaoui the INS had in custody. Roy told the OIG that he recalled having the telephone call but said he did not recall the substance of the conversation. He told the OIG, however, that he recalled that at some point he spoke to Don about Martin and expressed his belief that Martin was “hindering” the process or trying to “submarine” Minneapolis’ case. Don told the OIG that he recalled speaking on the telephone with Roy and Gary and discussing the foreign power issue. He said that his response to the disagreement was to have Susan – another NSLU attorney – weigh in on the merits of the FISA request. Don asserted that at no time did Roy or anyone else from Minneapolis raise any concerns to him about how Martin, Robin, or anyone else at FBI Headquarters was handling the case. Martin also told the OIG that he did not recall the specifics of this telephone conversation. However, with respect to the issue of ensuring the identity of Moussaoui, he stated that his concern was that the Minneapolis FBI practice “due diligence” and ensure that the information that the FBI had received was for the same person. Martin told the OIG that he was aware that the name “Moussaoui” had resulted in multiple hits in the FBI’s computer system when the Minneapolis FBI had first checked Moussaoui’s name. As a result of this concern, after the telephone conversation with Don and Martin, Gary directed an agent on the Minneapolis counterterrorism squad to contact the FBI’s Paris ALAT to obtain information about the number of persons with the name Zacarias Moussaoui in France by checking the telephone books for the name Zacarias Moussaoui. In an e-mail later that day to the Paris ALAT, the Minneapolis agent wrote, “In an effort to demonstrate the probability, which we believe is low, can you determine just how many Zacarius [sic] Moussaoui’s [sic] are listed in the white pages in France. [sic]” The ALAT replied by e-mail that he could check the white pages for Paris but he might not be able to check the white pages for all of France. He also wrote that he was meeting with the French authorities the next day and was expecting them to provide additional information that would “confirm Moussaoui’s identity.” 158 On August 30, the ALAT provided additional information obtained from the French authorities that confirmed Moussaoui’s identity to Minneapolis and FBI Headquarters. This information is discussed in Section F, 20 below. Henry told the OIG that he thought that Martin’s suggestion that the Minneapolis FBI do more to confirm that Moussaoui was the same Moussaoui as reported by the French was “another arbitrary roadblock.” He said that he believed that they should trust the professionalism of the French, although he also said that he was not aware of the specific information that the French authorities were relying on to assert that the Moussaoui in custody was the same Moussaoui as in their report. Rolince told the OIG that some time in August 2001, Don stopped briefly at his office to give him a “heads up” on a case in the Minneapolis Field Office. Rolince said that the conversation lasted approximately 20 seconds. Rolince said he did not recall if Don mentioned the name Moussaoui or not. According to Rolince, Don indicated there was an issue with a FISA and Rolince might receive a call from FBI management in Minneapolis. Rolince said Don told him the subject of the investigation was in jail on an immigration charge and the logical leads had been sent out. Rolince told the OIG he did not receive any further details from Don about the issue in Minneapolis, but this type of heads up was not atypical. Rolince stated that he received this type of brief notification as often as 10-15 times a week from his subordinates about potential contacts from the field. Rolince told the OIG that he never received a telephone call or other contact from the Minneapolis FBI about the Moussaoui matter. He said that he did not raise the limited information he received from Don about the Moussaoui investigation with anyone else in the FBI. 15. Martin and Robin’s consultation with NSLU attorney Susan After the call with Minneapolis on August 27, Martin and Robin met with NSLU attorney Susan to discuss the Moussaoui FISA request. Martin told the OIG that he orally briefed Susan about the facts of the case. He did not provide her with any of the documentation that had been generated, such as the 26-page EC or the 6-page LHM, although he had the documents with him at the meeting. Martin told the OIG that while he did not recall specifically what was discussed with Susan, he recalled that she did not believe that there was 159 sufficient evidence of a connection to a foreign power. Martin added that he recalled informing Susan of the facts that related to the issue of the foreign power, which was the information received from the French authorities. According to Susan, the meeting lasted approximately 45 minutes. She said she was made aware of a handful of other facts, such as that Moussaoui was an Arab, was in flight school and had been asking some weird questions, and had paid cash for flight school. Susan told the OIG that Martin and Robin downplayed the Khattab information to her. She stated, however, that she believed the evidence of a link between Moussaoui and Khattab was very “tangential” since it was based on the statement of Tufitri who had no direct knowledge of a connection between Moussaoui and Khattab. In addition, Susan told the OIG that based on her experiences in ITOS, the Chechen rebels would not have been accepted by OIPR as a foreign power. Susan told the OIG that based on the facts that she was presented, she told Martin and Robin that the FISA request lacked the necessary connection of Moussaoui to a foreign power. Susan told the OIG that attempting to argue that Khattab was part of al Qaeda was not feasible, because at the time the FBI’s position was that Khattab did not take direction from Bin Laden but rather was the leader of the rebels in Chechnya. She said that it was her understanding at the time that the CIA and the FBI did not agree about Khattab’s role and relationship to Bin Laden.136 Susan also stated that in her experience it would not have been feasible to get an emergency FISA through OIPR if a new foreign power that had never been pled before was presented. Susan told the OIG that she asked Martin and Robin whether the FBI had any information indicating anyone was sending people to the United States for flight training, but that she was told no. She said that Robin did not mention the Phoenix EC to her. Martin told the OIG that he did not recall any such 136 The FBI IOSs we interviewed told the OIG that the CIA, not the FBI, collected intelligence information on the Chechen rebels and Khattab. According to the IOS who was responsible for targets in Chechnya, by the spring of 2001 both the CIA and the FBI took the position that Khattab did not take direction from Bin Laden. 160 question from Susan. Robin also told the OIG that Susan never brought up the issue of whether Middle Easterners were training in U.S. flight schools. We asked Susan whether she had read the Phoenix EC since September 11 and whether it would have made a difference to her opinion about the Moussaoui FISA request. Susan said that she first read the Phoenix EC several months after September 11. She said that if she had read the Phoenix EC at the time, she would have been concerned enough about Moussaoui to bring the matter to an OIPR attorney’s attention. According to Susan, she sometimes called OIPR attorneys “to bounce things off” them, rather than sending over a formal FISA request, and would ask them “where do you think we are?” Susan added that the Moussaoui case still would have had “the same foreign power issues” but that the Phoenix EC would have “influenced” her. Susan also told the OIG that she had not been aware at the time of her meeting with Martin and Robin that the Minneapolis FBI had prepared a lengthy EC about the Moussaoui case. She stated that she thought that the case “was evolving” as she spoke to Martin and Robin and that she did not realize that documentation had been prepared. She said she believed that Martin had received oral briefings from Minneapolis. She said that she first became aware of Henry’s EC in November 2001. However, she said that if she had read it before the meeting with Martin and Robin, it would not have changed her opinion about the Moussaoui FISA request. She said she recalled thinking that Martin had represented the facts as set forth in the EC. Susan stated that she probably received an oral briefing because Minneapolis was seeking an emergency FISA and needed an answer quickly. She said that there was nothing unusual about receiving an oral briefing in that situation. Susan told the OIG that she did not know at the time that Martin had already consulted with Howard and Tim about the same case. After the consultation with Susan on August 27, Don instructed Martin to have the matter reviewed again by the head of NSLU, Spike Bowman, because of the level of concern raised by the Minneapolis FBI about Moussaoui and the FISA request. Martin arranged for a meeting with Bowman the next afternoon, August 28. 161 16. Martin’s edits to Minneapolis’ FISA request Prior to the meeting with Bowman, Martin began reviewing and editing the Minneapolis FBI’s 6-page LHM, in case the FISA request was approved by Bowman. Martin e-mailed an edited draft of the LHM to Gary and stated that he had made some refinements and wanted comments from Minneapolis. Martin noted that he had removed the paragraph reflecting that a CIA employee had stated that Khattab was an associate of Bin Laden, but that Martin would “add the foreign power info re Al-Khattab/UBL later, when we get an [attorney] to buy this argument.” Gary responded with a lengthy e-mail setting forth his concerns about Martin’s edits. First, Gary expressed concern about the removal of the statement connecting Khattab to Bin Laden. Gary wrote, “It seems that we are setting this up for failure if we don’t have the foreign power connection firmly established for the initial review.” Gary also raised questions about the following made by Martin: • Change from the statement about Moussaoui “preparing himself to fight” to a statement that Moussaoui and Al-Attas “train together in defensive tactics.” Gary wrote, “During the interview neither Al-Attas nor [Moussaoui] used the term ‘defensive tactics.’ I think that softens our argument and misrepresents the statements of Al-Attas.” • Change to the statement “Al-Attas was also asked if he had ever heard Moussaoui make a plan to kill those who harm Muslims and in so doing become a martyr himself. Al-Attas admitted that he may have heard him do so, but that because it is not in his own heart to carry out acts of this nature, he claimed that he kept himself from actually hearing and understanding.” Martin changed this section to read, “Al-Attas was also asked if Moussaoui has a plan to kill those who harm Muslims and or to martyr himself while conducting an act of terrorism. Al-Attas indicated that Moussaoui may have such a plan, but that he does not know for certain if this is the case.” Gary acknowledged that Martin had changed the statement based on a previous telephone conversation with Gary, but Gary wrote “now that I see it in print, 162 I think we might be misstating Al-Attas’ response” to the question. • Change from the statement that “Moussaoui was unable to give a convincing explanation for his paying $8300 for 747-400 training” to “Moussaoui would [sic] give an explanation for his paying $8,300 in cash for 747-700 flight simulation training.” After noting that Martin had left out the “not,” Gary stated that he did not think that this statement was accurate because Moussaoui gave an explanation “but it was not convincing.” • Change from the statement that Moussaoui had no convincing explanation for the large sums of money known to have been in his possession during his time in the United States” to “Moussaoui would not explain the large sums of money known to have been in his possession during his time in the United States.” Gary noted here again that Moussaoui had offered an explanation but that “his explanation fell short.” • Change from the statement that “Tufitri stated that Moussaoui was ‘the dangerous one’” to Tufitri “described him as being dangerous.” Gary pointed out that Tufitri “did not describe him as being dangerous in general terms, Tufitri specifically referred to him as ‘the dangerous one.’” Gary added, “I think this is significant – and it accurately reflects the information as it was provided by [the French authorities]. Martin responded by e-mail to Gary the same day. With regard to Gary’s concerns about the foreign power information, Martin explained that Robin would be pulling together the information required for the foreign power section of the FISA application and that it would be added to the LHM once it was ready to be sent to OIPR. Martin added, “Don’t worry about this part.” Martin also wrote that he would make some of the changes requested by Gary. For example, with respect to the “would not give an explanation” comment, Martin changed the text to “did not give a logical explanation.” With respect to Gary’s concern about Moussaoui’s inability to explain the source of income, Martin wrote, “I added words to cover your point.” 163 Martin declined to make some of the other changes requested by Gary and offered explanations for his edits. With respect to the “defensive tactics” change, Martin wrote, “We don’t need to provide verbatim answers to [interview questions]. I think the way I’ve set it out here is accurate.” With respect to the question put to Al-Attas about whether he had heard Moussaoui make a plan to kill people who harm Muslims, Martin wrote that he did not believe how it had been written made sense and that “the way it reads in [my] draft is fine.” With respect to the “dangerous one” comment, Martin wrote that what was in the paragraph was adequate. At the end of the e-mail, Martin wrote, “I tried to tighten up the language and make it more concise. There’s not necessarily anything wrong with [the LHM] – I’m just trying to make an adjustment for our new targeted audience.” Gary told the OIG that he believed Martin’s edits “softened” the FBI’s position. He said that he questioned why Martin had taken out the foreign power information when it was legally required to obtain the FISA warrant, and claimed he was given “no real explanation” for why Martin omitted the foreign power information. Henry told the OIG that he believed that Martin’s edits appeared to be “dumbing [the LHM] down” and that the edits “would definitely cause [the FISA request] to fail.” In response, Martin told the OIG while he believed that the LHM was generally well-written, the three paragraphs for the foreign power section of the LHM were not adequate to establish the foreign power element, and he intended, along with Robin, to compile a “real” foreign power section when an NSLU attorney gave approval to move forward with the FISA request. Martin said that handling the request this way was common and denied that he was attempting to “torpedo” the case. Robin also told the OIG that, as they did with other cases, she and Martin were preparing to create a new foreign power section for the Moussaoui LHM that would be comprehensive. She said that Martin’s edits were normal and that the changes were designed to create “a logical, intelligent package that we thought would get to court” and to make the LHM less “inflammatory.” She explained that by “inflammatory” she meant that the Minneapolis LHM was not focused, but rather used terms that were geared toward getting someone’s attention without providing any evidentiary support. Robin asserted that Martin was streamlining the document and adding the “buzzwords” that he 164 knew from experience OIPR would require in order to get the package to the FISA Court. Robin stated that the RFU wanted FISA requests to get OIPR’s attention but did not want the RFU to seem like “maniacs.” 17. Consultation with NSLU chief Spike Bowman On the afternoon of August 28, Martin and Robin met with Bowman to discuss the Moussaoui FISA request. Don told the OIG that he had planned to attend the meeting but that on his way to Bowman’s office he was called into a meeting with Section Chief Rolince. No one from Minneapolis was asked to participate in the meeting. Bowman told the OIG that it was “quite unusual” for him to be consulted about a particular FISA request. He said that it also was unusual for the field office to be so adamant that it had sufficient evidence to obtain a FISA warrant and for the Headquarters SSA to be as adamant that the FISA warrant was not sufficiently supported. Martin orally briefed Bowman about the facts of the Moussaoui case but did not provide him with any of the documentation that he had with him. Robin told the OIG that she thought that Bowman was very familiar with the facts because he had been briefed by other attorneys who had been involved in the matter. Martin said that Bowman advised that even if everyone were to agree that the Chechen rebels could be pled as a foreign power, the Minneapolis FBI lacked sufficient evidence to establish that Moussaoui was an agent of that foreign power. Martin told the OIG that Bowman said that Tufitri stating that Moussaoui told Amnay how to serve Allah by fighting with the Chechen rebels did not meet the standard of an agent of a foreign power. According to Bowman, Martin conveyed the opinion that he did not believe there was sufficient information for a FISA. Bowman said he was aware that Moussaoui was a French citizen who had overstayed his visa, that he was a bad flight school student who paid in cash and who could not satisfactorily explain how he was being supported in the United States, that he was asking odd questions about the airplane (such as whether you could open the doors during flight), that he was more interested in learning how to take off and land the airplane than flying it, that he was traveling with a friend who did not seem to share his interest in aviation, and that the French authorities had 165 reported that Tufitri was blaming Moussaoui for recruiting Amnay to fight in Chechnya on behalf of the rebels there. Bowman told the OIG that he did not believe, based upon the facts, that there was sufficient evidence of a link to a foreign power. He said that he was aware that the Minneapolis FBI wanted to argue that because there was some connection between Moussaoui and Khattab and because there was a relationship between Khattab and Bin Laden, Moussaoui was an agent of al Qaeda. Bowman said that it was his understanding that it was common knowledge that Khattab and Bin Laden had “some kind of relationship,” but in his opinion this was not a close enough link to argue that Moussaoui was an agent of al Qaeda. Bowman also stated that one Muslim encouraging another Muslim to fight in a Muslim cause was not sufficient to meet the requirements of an agent of a foreign power under FISA.137 We asked Bowman whether he had read the Phoenix EC and whether it would have made a difference in his advice. Bowman stated that he read the Phoenix EC only after September 11, but that he believed for several reasons it would not have made any difference if he had read it at the time. He asserted that the Phoenix EC was a routine communication pointing out what a field office believed was an “anomaly” and that it was not an “alarmist” communication. In addition, he said that the Phoenix EC did not connect any of the people referenced in the Moussaoui case with any foreign power. He said that it did not “associate Moussaoui with anything.” After meeting with Bowman, in an e-mail to Gary and Acting SAC Roy, Martin informed the Minneapolis FBI of Bowman’s opinion that there was insufficient evidence of a connection to a foreign power. Martin wrote: We just left a meeting w/ Spike Bowman, #1 in NSLU. He says we have even less than I thought. Apparently, even if we could show that the ZM that recruited [the person] in France is the one 137 As discussed in Chapter Two, the legislative history of FISA provides that to meet the definition of an agent of a foreign power, there must be “a nexus between the individual and the foreign power that suggests that the person is likely to do the bidding of the foreign power” and that there must be a “knowing connection” between the individual and the foreign power. 166 you have locked up in INS detention, we still don’t have a connection to a foreign power. We would need intel to indicate the guy was actually a part of the group, an integral part of the movement or organization, and not just an individual [redacted].” In the e-mail, Martin advised Gary to call him to discuss the next course of action. Roy responded by e-mail and wrote, “Thanks for your help and continued support.” Gary’s notes indicate that Martin and Gary also spoke on the telephone after the Bowman meeting and Martin explained that the FBI needed more information linking Moussaoui to a foreign power. The notes state that Martin told Gary, “we need [Moussaoui] to be an integral part of a terrorist organization.”138 The notes also indicate that Martin conveyed that more intelligence information was needed on “how he is acting on behalf of a foreign power.” The notes state: “Bottom Line – You don’t have a foreign power.” The notes also state that Martin advised Gary to ensure that Moussaoui was entered on a watch list and that the FBI’s Paris Legat was contacted about deportation arrangements for Moussaoui (which we discuss below). 18. Additional information about Al-Attas and Moussaoui a. Minneapolis FBI explores use of undercover officer in Moussaoui’s jail cell In an e-mail from Gary to Roy on August 29, Gary wrote that he and Henry were “exploring the feasibility” of inserting an undercover officer who spoke Arabic in Moussaoui’s jail cell “in an attempt to elicit from Moussaoui 138 Bowman told the OIG that Martin accurately conveyed his advice that even assuming that there was a foreign power to which the FBI could attempt to connect Moussaoui, the Minneapolis FBI lacked sufficient evidence to establish that Moussaoui was acting as an agent on behalf of a foreign power. He stated, however, that Martin’s interpretation of his advice that agency law requires a showing that the target was an “integral part” of the terrorist organization was not correct. He opined that the agency standard required a showing that the target was “serving the interest” of the foreign power. 167 the name of (or descriptive information which would identify) the recognized foreign power with whom he is aligned.” Gary told the OIG that Roy, Charles, and Rowley all were consulted about this idea, and all of them stated that they did not see any limitations that would prevent this from occurring. Gary noted in the e-mail that the Minneapolis FBI did not know yet whether the use of the undercover officer for the proposed operation had been approved. Roy provided the information about using an undercover officer to Don in an e-mail in which he wrote, “The use of the [undercover officer] is also exploratory as we do not want to leave any stone unturned prior to [Moussaoui’s] release.” Don responded in an e-mail and wrote, “Let us look into this asap. Do NOT go forward with the [undercover officer] until we weigh in. . ..” Roy replied, “We were only been [sic] exploring the possibility of the [undercover officer] – we are by no means ready to go forward with it. The point may be moot because it seems the deportation to France is a more likely outcome and it may be more timely.” Don told the OIG that he discussed the issue with an employee detailed to ITOS with expertise in this area and that the employee stated that the idea was “ridiculous” and that it could not be done. Don said that having an undercover employee involved with something in which information could be obtained that might be used in a criminal proceeding was problematic since the undercover officer would not be in a position to testify. According to Don, he conveyed this information to Roy, and Minneapolis did not pursue this idea further. b. Translations of recorded conversation between Al-Attas and “Ahmed” and Al-Attas’ will With regard to Al Attas, Henry asked an Arabic speaker who was not employed by the FBI to translate Al-Attas’ will, and to translate and transcribe the tape of a 9-minute conversation between Al-Attas and the individual we call “Ahmed,” the imam from Al-Attas’ mosque whom Al-Attas called while he was in custody. According to an e-mail from Gary to Roy on August 29, the translation by the translator stated Ahmed had said on the tape, “I heard you guys wanted to go on Jihad.” Gary’s e-mail also stated that the translator reported that Al-Attas immediately responded on the tape, “Don’t talk about that now.” In addition, Gary’s e-mail stated that the translator informed the Minneapolis FBI that Ahmed became very upset when he heard that 168 Moussaoui was going to be deported. Gary’s e-mail added that, according to the translator, the translation of the will that Al-Attas had with him stated that “death is near” and that “those who participate in Jihad can expect to see God.”139 On August 29, Roy transmitted the information from the will to Don by e-mail, stating, “I obtained some additional information this afternoon and I am forwarding that to you. Please understand that this is only preliminary and we realize the interpretation was not done by a certified linguist.” Roy did not ask that Don do anything in particular with the information. Don responded by e-mail, writing, “The ‘will’ is interesting. The Jihad comment doesn’t concern me by itself in that this word can mean many things in various muslim [sic] cultures and is frequently taken out of context.” Don told the OIG that the term “jihad” often was used and had many different meanings. 19. Failure to reconsider seeking a criminal warrant After Martin conveyed to the Minneapolis FBI that FBI Headquarters believed that the FISA warrant was not feasible, the Minneapolis FBI and FBI Headquarters began taking steps to finalize Moussaoui’s deportation. Yet, neither FBI Headquarters nor the Minneapolis FBI reconsidered the criminal search warrant issue or trying to contact the Minneapolis U.S. Attorney’s Office (USAO) about a criminal search warrant, even after the legal decision was made that insufficient evidence existed to obtain a FISA warrant. Initially, as noted above, the decision was made not to seek a criminal warrant, in part because if a criminal warrant was not obtained, this would violate the “smell test” and jeopardize the chances of obtaining a FISA warrant. Once the FISA 139 The will and the tape also were sent to the FBI’s Chicago Field Office for translation and transcription by an FBI linguist, which was completed around September 6, 2001. The Chicago translation of the tape was the same as that of the initial translator: “Sheikh do not talk about it now. Do not talk about it now sheikh.” The Chicago translation said the will stated that “death has approached” and expressed Al-Attas’ hope that “Allah will award him with paradise and keep him with the prophets, martyrs and pious.” Henry forwarded these translations to FBI Headquarters in an e-mail dated September 6, 2001, with a lead that stated “For information.” 169 warrant was ruled to be unobtainable because of the foreign power requirement, the smell test was no longer an issue. Yet, no one sought to attempt to obtain a criminal warrant, or apparently even discussed this issue. Don told the OIG that he did not know why he, Martin, or the Minneapolis agents did not raise the issue again about seeking a criminal search warrant, once a decision was made not to pursue the FISA warrant. He suggested that it did not happen because no one thought to raise the matter again. Don said that looking back on the matter now, he wished that there had been a discussion about seeking a criminal warrant once the FISA route was exhausted. Martin told the OIG that if the Minneapolis FBI believed that it had sufficient evidence to obtain a criminal search warrant, then the Minneapolis FBI should have raised the issue. He said, however, that he did not believe that there was sufficient evidence of a crime to obtain a criminal search warrant. When Henry was asked why he did not propose seeking a criminal warrant once the FISA route was exhausted, he responded, “I never thought about it.” He stated that he “could have done that but it did not occur to [him].” Gary told the OIG that he did not pursue a criminal search warrant because FBI Headquarters would not obtain the requisite authorization from the Department of Justice. Rowley told the OIG that she did not know why a criminal warrant was not sought once the FISA route was exhausted. She noted that she did not have a leadership role in the case and she felt that the people who were involved knew what they were doing. 20. Additional French information received about Moussaoui On August 30, the FBI’s Paris ALAT provided additional French information to the Minneapolis FBI and FBI Headquarters about Moussaoui. The ALAT’s report included information from a person who we call “Idir” who knew Moussaoui.140 Idir confirmed the relationship between Moussaoui and Amnay. Upon learning of Amnay’s death, Idir had accused Moussaoui of causing the death. Idir explained that Moussaoui had become a radical fundamentalist and that he had brought Amnay to these beliefs. He said that 140 We do not use Idir’s real name because the FBI considers that information to be classified. 170 Moussaoui and Amnay “were inseparable, one was the head and the other was the armed hand of the same monster.” Amnay states that when Moussaoui had come to his community, Idir had warned the local Muslim community of the moral danger Moussaoui posed to young Muslims and that Moussaoui was “driven from at risk urban areas by his coreligionists for propagating hismessage of intolerance and hatred.” The report from the Paris ALAT also stated that Idir recalled that Moussaoui had traveled to Kuwait, Turkey, and Afghanistan. Idir said Moussaoui was a “strategist” who was potentially very dangerous and was devoted to Wahabbism, the Saudi Arabian sect of the Islamic religion adhered to by Bin Laden. Idir also described Moussaoui as “extremely cynical” and “a cold stubborn man, capable of nurturing a plan over several months, or even years and of committing himself to this task in all elements of his life.” The date of birth Idir provided for Moussaoui was the same as the one in Moussaoui’s passport, which had been seized upon his arrest in Minneapolis. The Paris ALAT’s report also stated that the ALAT had inquired with the French authorities about deporting Moussaoui to France and that the French authorities were interested in pursuing the matter. In the lead portion of the EC, the Paris ALAT wrote a lead for the Minneapolis FBI that stated, “With FBIHQ concurrence and assistance, advise Legat Paris of interest in further exploring the possibility of deporting [Moussaoui] by U.S. law enforcement escort to France as described in the text of this EC.” The lead for the RFU was a “read and clear” lead. Gary’s notes indicate that Martin brought this new information to Gary’s attention in a telephone call on August 30. In addition, Martin advised him that the French government would be able to hold Moussaoui for several days with his property quarantined. The notes reflect that Martin told Gary that the French authorities were “very interested in Moussaoui” and that they wanted him “escorted to France” and his “property quarantined.” Gary’s notes also indicate that Martin advised Gary that the French terrorism statutes would allow the French to hold Moussaoui for “several days to determine what he’s up to.” 171