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Main article: A Review of the FBI's handling

A. Moussaoui’s background[]

Zacarias Moussaoui was born in France on May 30, 1968, and is of Moroccan descent. Prior to 2001, he lived in the United Kingdom. On February 23, 2001, he legally entered the United States in Chicago, Illinois, using a French passport. He entered under the Visa Waiver Program, which allows citizens of 27 countries, including France, to enter the United States without a visa for stays of up to 90 days.[1] Moussaoui’s entry was therefore valid until May 22, 2001.

In late February 2001 Moussaoui enrolled in a beginner pilot course at the Airman Flight School in Norman, Oklahoma. He did not complete the training and stopped taking lessons there in late May 2001. However, he remained in the United States after dropping out of the course and overstayed his allowed length of stay.

On May 23, 2001, Moussaoui e-mailed the Pan Am International Flight Academy, a private aviation school based in Miami, Florida, which had several campuses around the country. On August 9, 2001, Moussaoui enrolled in a flight simulator training course at [[a Pan Am facility near Minneapolis, Minnesota]]. Pan Am’s Minneapolis facility used flight simulators only, and the training there usually consisted of initial training for newly hired airline pilots or refresher training for active pilots. Moussaoui’s flight simulator course was part of a comprehensive training program designed to provide instruction to licensed pilots on how to fly commercial jets.

8/22 FBI HQ employees Martin & Robin consult with NSLU attorney Howard.

8/16 INS arrests Moussaoui; Computer and other possessions held at INS; FBI interviews Al-Attas.

8/16 After being taken into custody, Moussaoui is interviewed. Minneapolis FBI contacts London and Paris Legat offices regarding foreign information on Moussaoui.

8/17 Al-Attas is re-interviewed and then arrested.

8/20 Minneapolis FBI sends request to FBI HQ to seek permission to contact USAO regarding Moussaoui.

8/30 FBI plans to deport Moussaoui to France.

9/12 Information regarding Moussaoui received from British.

8/18 Minneapolis case agent Henry discusses pursuing criminal case with FBI HQ employee Frasca And CDC Rowley.

8/17 FBI interviews Moussaoui again; deportation order obtained.

8/15 Pan Am contacts FBI regarding Moussaoui; FBI opens intelligence investigation.

8/22 French information on Moussaoui is received.

8/23 Martin & Robin consult with NSLU attorney Tim.

8/25 Minneapolis submits LHM for FISA request to FBI HQ.

8/27 Martin & Robin consult with NSLU attorney Susan.

8/28 Martin & Robin consult with NSLU chief Bowman.

9/4 FBI disseminates teletype to Intelligence Community regarding Moussaoui.

9/11 Terrorists attack the United States. August 2001 September 2001 8/15 8/16 8/17 8/18 8/19 8/20 8/21 8/22 8/23 8/24 8/25 8/26 8/27 8/28 8/29 8/30 8/31 9/1 9/2 9/3 9/4 9/5 9/6 9/7 9/8 9/9 9/10 9/11 9/12 The FBI’s Moussaoui Investigation 104 105

B. The FBI receives information about Moussaoui[]

Moussaoui had completed two days of classroom instruction and one flight simulator training session to fly a 747-400 Wikipedia.png airplane (out of a scheduled four or five sessions) when a manager at the Minneapolis Pan Am flight school contacted the FBI about him. On August 15, 2001, the Pan Am manager called the FBI’s Minneapolis Field Office to report that he and his co-workers were training a student, Moussaoui, who they considered suspicious.

According to the Pan Am manager, they considered it odd that Moussaoui said that all he wanted to learn was how to take off and land the plane, giving the reason that it was “an ego boosting thing.”[2] In addition, the FBI learned that Moussaoui had no background in aviation and did not have a private pilot’s license.[3] It was also unusual that Moussaoui had paid $8,000 – $9,000 in cash for the course. The Pan Am manager reported that Moussaoui appeared to be of Middle Eastern descent and that he had said he grew up in France. The manager said that Moussaoui had completed two days of classroom instruction and was scheduled for four or five sessions in the flight simulator.

The FBI agent who took the telephone call was assigned to the Minneapolis FBI’s international and domestic terrorism squad. Immediately following the telephone call, the agent discussed the call with [[the Acting Supervisory Special Agent]] (SSA) on the Minneapolis FBI’s international and domestic terrorism squad, who we call “Gary,” and another agent on the squad who handled international terrorism investigations. We call this agent “Henry.”

Gary had become the Acting SSA of the terrorism squad in [[late July 2001]]. Prior to being named the acting supervisor, during his five years as an FBI special agent Gary had worked for two years on bank robberies and other

Page 106

violent crime investigations, two years in the unit responsible for investigating fugitives, and one year as the coordinator of [[the FBI’s Joint Terrorism Task Force]] (JTTF) for the Minneapolis Field Office.[4] Gary also had served as the relief supervisor for the international and domestic terrorism squad. However, he had no field experience in terrorism matters and no experience in working with FISA.

Henry had joined the FBI as a special agent in January 1999 and had been assigned to work on international terrorism matters since his arrival at the Minneapolis office in the spring of 1999. In August 2001, Henry and two other agents on the squad handled international terrorism and foreign counterintelligence investigations. By virtue of his assignment on the counterterrorism squad, Henry also worked on the local JTTF. Prior to joining the FBI, Henry served as a naval intelligence officer for almost ten years. In the Navy, he specialized in aviation-related intelligence issues, including a detail to the Canadian Navy and Air Force, and he was also an intelligence officer on staff at the navy fighter weapon school commonly referred to as “Top Gun.” Henry said that he had a private pilot’s license and that he flew for the FBI as a collateral duty. Henry described himself as having a “working knowledge” of aviation.

When Gary was named the Acting SSA of the squad in late July 2001, he was assigned to report to one of two ASACs in the Minneapolis Field Office who we call “Roy.” On August 3, 2001, Roy was named the Acting SAC of the office and remained in that position until December 2001. Roy had no previous experience in terrorism matters. Gary continued to report directly to Roy even after he was named Acting SAC.

In July 2001, an SSA who we call “Charles” became an ASAC in the Minneapolis FBI office. For three years, he had been the supervisor of the Minneapolis international and domestic terrorism squad. Prior to becoming the supervisor, Charles had been an SSA at [[FBI Headquarters in the domestic terrorism section, and he had worked both foreign counterintelligence and

Page 107

international terrorism matters in the Los Angeles Field Office for six years before his assignment to FBI Headquarters.

When Charles became an ASAC in Minneapolis in July 2001, he was no longer assigned to oversee the counterterrorism programs; that responsibility was given to Roy. According to Charles, this was done so that Charles would be seen as an ASAC rather than as the supervisor of the office’s terrorism programs. When Roy became the Acting SAC, he maintained responsibility for the counterterrorism and foreign counterintelligence programs. In August 2001, when the Moussaoui matter was reported to the Minneapolis office, Charles was at a management training class at the FBI Academy in Quantico, Virginia.

C. The Minneapolis FBI’s investigation[]

1. The Minneapolis FBI opens an intelligence investigation Henry told the OIG that within a half hour of receiving the telephone call from the Pan Am manager, the Minneapolis FBI filled out the paperwork to open a full field intelligence investigation of Moussaoui. According to Henry, the case was opened as an intelligence matter and not a criminal matter because, based on the telephone call, the FBI did not have information indicating criminal predication, which Henry said in this case would have been “something in furtherance of terrorism.” Henry said that, as an initial matter, the case was a “classic” intelligence investigation. Gary assigned the case to Henry and not the agent who had taken the call from Pan Am, because Henry had international terrorism experience and the other agent did not. Henry told the OIG that based on his own knowledge of aviation, he was concerned about Moussaoui. He said he questioned whether it was normal for a person with no previous experience in aviation to be training to fly a 747-400 commercial airplane. In addition, Moussaoui’s lack of aviation experience made Henry suspicious, because Henry knew that the 747- 400 airplane had become very automated since the 1970s, could be flown by as little as two people, and had user-friendly computer screens rather than the many dials and gauges that were in the earlier versions of the airplane. Henry said that because of these suspicions, he asked the agent who had initially taken the call to call the Pan Am manager back and ask some follow-up questions, such as how automated a 747-400 airplane was. 108 2. Initial checks for information Henry also ran name searches in ACS and learned that the name “Moussaoui” was predominantly Lebanese. Henry did not find any information in ACS about Zacarias Moussaoui. Henry learned that the last name “Moussaoui,” which did appear in ACS records in several places, was most often attached to individuals from Lebanon and the terrorist organization Hizbollah. Henry contacted an SSA in FBI Headquarters who he knew and who we call “Jack.” He worked in the unit in ITOS that handled cases dealing with Hizbollah. In addition, Gary notified Jack that the Minneapolis FBI had opened a full field intelligence investigation on Moussaoui. Henry obtained from Pan Am Moussaoui’s passport information and learned that Moussaoui had entered the U.S. on a French passport from London, England. Henry sent an e-mail on August 15 to the FBI’s Paris Legat requesting any available information on Moussaoui from the French authorities. Henry also requested similar information from the FBI’s London Legat. Also on August 15, at the request of the FBI an INS agent assigned to the Minneapolis JTTF ascertained from INS records that Moussaoui had stayed beyond the 90-day time limit allowed by his entry into the United States under the Visa Waiver Program. The INS agent reported to Henry that Moussaoui therefore was subject to arrest on immigration charges for overstaying his permitted time of entry. 3. The investigation continues On August 16, Henry and two INS agents who worked on the JTTF began conducting interviews and collecting information about Moussaoui. The FBI interviewed Moussaoui’s flight instructor at Pan Am, an experienced pilot and flight instructor for several years. He characterized Moussaoui as unlike any other student with whom he had ever worked. He told the agents that Moussaoui seemed to have a genuine interest in aviation but Moussaoui had no background in any type of sophisticated aircraft systems and had only approximately 50 hours of flight training in light civil aircraft that did not resemble a 747-400 plane. The agents also learned that Moussaoui had stated that he was attending flight school to go on a “joy ride” and that he claimed 109 that he would “love” to fly a simulated flight from London’s Heathrow Airport to New York’s John F. Kennedy Airport in one of his scheduled simulator sessions. According to the flight instructor, Moussaoui also showed a particular interest in the “mode control panel” of the flight simulator, which is the machinery that enables computerized flying. Moussaoui had demonstrated that he already knew how to use the mode control panel during the one simulator session that he had completed. Henry told the OIG that he found this information ominous because of Moussaoui’s statement that he was attending flight school to go on a “joy ride.” This concerned Henry because, based on his experience as a pilot, he knew that a joy ride consists of actually flying the plane, not allowing the computer to do the flying. The flight instructor also reported that although he had initially raised the subject, Moussaoui had seemed extremely interested in the aircraft doors and their operation and that Moussaoui seemed surprised to learn that the doors could not be opened during flight because of the air pressurization in the cabin. The flight instructor described Moussaoui as amiable but also “extremely reticent” to discuss his background. The flight instructor said that in a conversation in which he told Moussaoui about a well-known aviation accident involving a group of Muslims, the flight instructor asked Moussaoui whether he was Muslim. After reacting with surprise and caution, Moussaoui stated that he was not. The flight instructor provided the agents with the name of the hotel where Moussaoui was staying. The flight instructor said that he had seen Moussaoui in the company of another Middle Eastern male and gave a description of their vehicle. 4. The decision to arrest Moussaoui On August 16, the agents learned that Moussaoui’s next scheduled training session was that evening. Henry asked the INS agents to arrest Moussaoui in order to prevent him from receiving any further training. Henry said that he was concerned that if Moussaoui completed the training and was later arrested and deported, he would be able to use his training in the future. Henry said that he wanted to arrest Moussaoui because “there were enough indications that [Moussaoui’s behavior] was sinister.” Henry also noted that 110 Moussaoui had paid for his training in cash, which Henry described as “unusual,” since most of the students are pilots whose training is paid for by the airline which employs them. In addition, Henry said that the fact that Moussaoui was not a typical student, since he was not a new or experienced pilot and did not even have a pilot’s license, was another factor that made Henry suspicious of him. These characteristics were inconsistent with students the Pan Am representatives had dealt with before. Henry spoke on the telephone with SSA Jack in FBI Headquarters about the decision to arrest Moussaoui. According to Henry, Jack suggested that it would be better to conduct surveillance of Moussaoui and his companion rather than to immediately arrest Moussaoui. This surveillance would allow Henry to collect more information about Moussaoui’s connections to others and his intentions. Henry told Jack, however, that the decision already had been made to arrest Moussaoui because the Minneapolis FBI was concerned about him receiving any more flight training. Jack told the OIG that, in most cases, conducting surveillance and asking the CIA to check its records on information already collected, such as the hotel records, is advisable because it results in obtaining additional information about the subject. However, Jack said that he also understood the Minneapolis FBI’s position that it wanted to arrest Moussaoui immediately to prevent him from receiving additional training. After discussing the issue with Jack, Henry called his supervisor, Gary, to discuss Jack’s position that Moussaoui should be put under surveillance. Gary told the OIG that he also believed that it was necessary to arrest Moussaoui to prevent him from receiving further training. In addition, Gary believed that it was appropriate for the field office to decide to make an arrest, even if FBI Headquarters disagreed, and he advised Henry to go ahead with the arrest.97 (continued) 97 We recognize that there were good arguments to be made for either arresting Moussaoui or for conducting additional surveillance on him. For example, if the agents had waited to arrest Moussaoui and conducted surveillance, they may have uncovered more information about his associates and his plans. On the other hand, there are serious risks involved in trying to surveil an individual – especially a transient one like Moussaoui – who could slip away and be lost altogether. Further, as Henry noted, if Moussaoui were allowed 111 5. Moussaoui’s arrest At approximately 5:00 p.m. on August 16, Henry and three other agents, two of who were INS agents, went to Moussaoui’s hotel to arrest him. They stopped Moussaoui and another man as they were getting into a car outside of their hotel. Henry and one of the INS agents questioned Moussaoui about his immigration status. Moussaoui claimed that he was in the country legally and that he had a paper in his hotel room that would prove this. In response to questions about his immigration status, Moussaoui presented his passport case to the agents. The passport case contained a bank statement indicating that Moussaoui had deposited $32,000 in cash upon arriving in the United States. The passport contained a Pakistani visa indicating that Moussaoui had been in Pakistan for two months – December 9, 2000, to February 7, 2001. The agents accompanied Moussaoui into his hotel room where Moussaoui produced an INS document. The document indicated that Moussaoui had filed with the INS an application for an extension of stay, but there was no evidence that any extension had been granted.98 Moussaoui’s hotel room was scattered with papers. Henry asked if the agents could search the room to see if they could find additional documents that would indicate Moussaoui was in the country legally. Moussaoui refused this request and refused to allow the agents to search the room or his possessions. Because it was clear at that point that Moussaoui was in the country illegally, the INS agents arrested him. Incident to the arrest, they searched Moussaoui and the bag he had been carrying. They found a knife in his pocket, cash in his money belt, and flight-training materials from Pan Am in the bag. (continued) to continue his training and later was deported without any criminal charges, he would have achieved his goal of obtaining flight training that could be used at a later time. 98 In certain circumstances non-immigrant visitors are permitted an extension to stay beyond the initial period allowed by the INS upon entry into the country. Pursuant to the requirements of the Visa Waiver Program, however, Moussaoui would not have been eligible for such an extension. 112 The other man with Moussaoui at the time of his arrest was Hussein Ali Hassan Al-Attas (Al-Attas), the owner of the car. The agents detained Al- Attas, who consented to a search of his car. The agents found in the car another knife, which Moussaoui admitted was his. Henry and one of the INS agents remained at the hotel to conduct an interview of Al-Attas in the hotel room. The other two agents took Moussaoui into custody and transported him to the INS District Office for processing. 6. Search of hotel room and Al-Attas’ possessions According to FBI documents, prior to interviewing Al-Attas the agents asked for and received his permission to search some bags that were within his reach in the hotel room. To check for weapons, the agents opened several bags that Al-Attas told them belonged to Moussaoui. The agents noticed in the bags a laptop computer, spiral notebooks, numerous aviation study materials, a cellular telephone, and a small “walkie-talkie” radio. The agents did not search these items further. With the assistance of Al-Attas, the agents collected Moussaoui’s belongings, including his bags and papers, from the hotel. Moussaoui subsequently gave verbal permission for the FBI to store his belongings at the INS District Office, but he refused to allow his belongings to be searched. At the hotel, Al-Attas gave the agents permission to search the room and Al-Attas’ belongings in the room. From the search of Al Attas’ belongings, the agents obtained telephone numbers, personal address books, credit card and bank records, and numerous personal documents. The agents found several sheets of paper written in Arabic, which Al-Attas identified as his will, and a pamphlet advising how to prepare a will.99 In addition, the agents found a partially completed application for a Pakistani visa, padded gloves, shin guards, binoculars, hiking boots, Power Point 2002 computer software, and a document indicating that Moussaoui intended to purchase a handheld Global Positioning System receiver and rent a camcorder. 99 The sheets of paper identified by Al-Attas as his will were in a mailing envelope. 113 7. Interview of Al-Attas Henry and an INS agent interviewed Al-Attas at the hotel. During the interview, Al-Attas – a 21-year-old Yemeni citizen whose family was living in Saudi Arabia – stated that he was in the United States on a student visa and had been an undergraduate student at the University of Oklahoma for several years. He provided documentation to the agents indicating that he had a valid student visa that had first been issued in 1995 and that he met the requirements for residing in the United States with the student visa. Al-Attas stated that approximately one month earlier, he had moved into an apartment near the University of Oklahoma, in Norman, Oklahoma, with an acquaintance. Unbeknownst to Al-Attas, Moussaoui had just before that moved into the apartment with the same acquaintance.100 Al-Attas said that he had known Moussaoui for six months and had met him through the mosque in Norman that Al-Attas attended regularly. He said that Moussaoui was studying aviation in Norman at the time that they first met. Al-Attas said that he had accompanied Moussaoui to Minnesota as a friend and was not enrolled in any flight school. Al-Attas also stated that he knew Moussaoui only by the name of “Shaqil” and that Moussaoui did not reveal his last name. Al-Attas described Moussaoui as an extremely religious Muslim who had gained a reputation at the mosque for being too hard-line and outspoken. According to the EC prepared by Henry about the interview, Al-Attas was asked if he had ever heard Moussaoui “make a plan to kill those who harm Muslims and in so doing become a martyr.” Al-Attas responded that he “may have heard him do so, but that because it is not in his [Al-Attas’] own heart to carry out acts of this nature, he claimed that he kept himself from actually hearing and understanding.” The Minneapolis agents determined that Moussaoui had traveled to Pakistan, as well as to Morocco, Saudi Arabia, and Europe. They also obtained the first and last names of one associate of Moussaoui’s in Oklahoma and the 100 The acquaintance was an Indian Muslim. The FBI ran a name check in its computer records for Ali but found no information on him. 114 first name of another of Moussaoui’s associates in Oklahoma.101 When Al- Attas was asked to explain why he and Moussaoui had padded gloves and shin guards, he responded that Moussaoui had purchased a set of each for them so that they could train to protect themselves against crime in the United States. Al-Attas also stated that Moussaoui advocated that “true Muslims must prepare themselves to fight,” and that at Moussaoui’s urging Al-Attas had begun martial arts training. Henry asked Al-Attas if he would be willing to go on jihad, which Henry told the OIG he defined for Al-Attas as “holy war.” Al-Attas said he knew what it meant, and he would be willing to fight, but currently he was studying. Al-Attas also stated that Moussaoui believed it is the highest duty of Muslims to know of the suffering of Muslims in the lands where they are oppressed, and because the United States is full of unbelievers Muslims should not reside in the United States. In response to questions about his will, Al-Attas said that it was common for Muslims to write their wills and that he had written his a long time ago. Al-Attas also was asked why he was in possession of a partially completed visa application to travel to Pakistan. He responded that he had been asked by his family to go there to research treatments for liver cancer to assist an uncle living in Saudi Arabia. Al-Attas said that he and Moussaoui planned to travel around the United States for two weeks after Moussaoui’s training was completed. According to Henry’s EC, Al-Attas could not explain how he would be able to start his college classes at the end of the month if he was planning to travel with Moussaoui. Al-Attas was not detained but was asked to come to the INS District Office the next day for further questioning, which he agreed to do. Henry told the OIG that after the Al-Attas interview, he was unequivocally “convinced . . . a hundred percent that Moussaoui was a bad actor, was probably a professional Mujahedin and this wasn’t a joyride, that he 101 FBI records show that these two names were later checked in ACS, but no information was found on them. 115 was completely bent on use of this aircraft for destructive purposes.” Henry also stated that he believed that Al-Attas was “telling us as much as he could culturally” that Moussaoui was involved in a “plot.” 8. Interview of Moussaoui After interviewing Al-Attas on August 16, Henry and an INS agent interviewed Moussaoui that same evening in detention in the INS offices near Minneapolis. Henry told the OIG he believed that Moussaoui was “combative” and “deceptive” throughout the interview. According to Henry’s later 26-page EC documenting the Minneapolis FBI’s investigation of Moussaoui (which we discuss in detail in Section E below), Moussaoui stated he had come to the United States to be a pilot and had been a student at the Airman Flight School in Norman, Oklahoma. He said that he had taken the Federal Aviation Administration (FAA) written exam to become a pilot but had failed it. Moussaoui said the instructors in Oklahoma told him that he was not cut out to be a pilot. He said that he was determined to “follow his dream” of flying a “big airplane,” and for pure enjoyment he had enrolled in the flight simulator training course at Pan Am in Minneapolis. He said that once he completed the simulator course, he planned to return to his efforts to obtain a pilot’s license. Moussaoui stated several times during the interview that it was very important for him to return to finish the flight simulator training. Henry reported that Moussaoui could not identify his source of income. Moussaoui claimed to have worked as a freelance marketing researcher and at various other business ventures, one of which involved an Indonesian telephone card company. According to Henry, however, Moussaoui could not provide a convincing explanation for the $32,000 in his checking account, and he was unable to provide an approximate income for the previous year. Moussaoui said that he had traveled to Malaysia, Indonesia, and Pakistan in connection with an Indonesian business, as well as to Morocco, Saudi Arabia, and all over Europe. When asked why his passport did not reflect entry or exit stamps for Indonesia or Malaysia, Moussaoui stated that the passport had been issued recently to replace one that had been ruined in the washing machine. Moussaoui refused to answer whether he went anywhere else outside of Pakistan while he was in Pakistan and, according to Henry, became upset 116 that he was being asked about his travels to Pakistan.102 Moussaoui denied that he had ever had any weapons training, but Henry believed he was deceptive in this response. Moussaoui was questioned about his religious beliefs. He stated that he considered himself a religious Muslim and that he followed the Islamic practice of praying five times per day and helping his fellow Muslim brothers. When asked about his feelings about the treatment of Palestinians in Israel, Moussaoui said that it made him sad but denied that it made him angry. When asked whether he had spoken openly about hurting people in retaliation for what was happening in Israel, he stated that he needed to think about the question, and ultimately he refused to answer it. When asked what his immediate plans had been after his flight simulator training, Moussaoui stated that he and Al-Attas had planned to travel to New York to see the sights and to Denver, Colorado, to do some unspecified business with United Airlines. He said he then planned to go to Oklahoma and then return to the United Kingdom. 9. Minneapolis FBI’s consultation with Minneapolis United States Attorney’s Office During the evening of August 16, after Moussaoui’s arrest, Gary paged the “duty attorney” at the Minneapolis United States Attorney’s Office (USAO), who that evening was an Assistant United States Attorney (AUSA) who we call “Wesley.” Gary left a message for Wesley stating that he needed to discuss a criminal search warrant. According to Wesley, when he called Gary back around 8:00 p.m., Gary told him that the FBI no longer needed a search warrant immediately because the FBI was holding onto his belongings while he was being detained. Gary told him that he would get back in touch the next day to discuss the issue further. Wesley told Gary that when he called back the next day he should talk to the supervisor who was the coordinator for terrorism matters, an AUSA who we call “Megan.” 102 Henry said he knew that persons interested in attending terrorist training camps in Afghanistan were known to enter Pakistan first and cross the border into Afghanistan, with no indication on their passports of having traveled to Afghanistan. 117 Gary told the OIG that he had called the USAO because he was unsure whether a criminal search warrant could be obtained, since Moussaoui was arrested by the INS on an immigration violation. According to Gary, he provided Wesley with a hypothetical with little information, because Gary was not sure how much information he was permitted to share with the USAO in light of the fact that the investigation was opened as an intelligence investigation and not a criminal investigation. Gary said that he asked Wesley if they were “close” to getting a criminal search warrant, and Wesley told him that it “sounds close” but that Gary should “freeze the scene” and call Megan the next day, since Wesley was not familiar with that type of case. Wesley told the OIG that, based on what he was told at the time, he had believed that there was sufficient probable cause to obtain a criminal search warrant. He added that if the Minneapolis FBI had wanted to obtain the search warrant that evening, he would have sought the warrant and would not have needed supervisory approval to do so. Following his conversation with Gary, Wesley called Megan on her cell phone and left her a message about the case. The next day, Wesley drafted a memorandum to Megan summarizing his conversation with Gary, in which he wrote, “The FBI would like to search the computer, and likely the other property. The suspect is being held, and questioned, by INS. [Gary] said that he will be off today, and that [another Minneapolis FBI agent] or [Henry] will stop by today to talk with you about the case.” Megan told the OIG that Wesley conveyed to her in his message on the evening of August 16 that the Minneapolis FBI had arrested Moussaoui and was interested in obtaining a search warrant, but not that night. When the USAO did not hear back from the Minneapolis FBI, Megan called Henry the next day, August 17, and left a message for him. According to Megan, Henry did not return her call until August 20. He told her that according to the Attorney General Guidelines he could not discuss the case with her without FBI Headquarters and DOJ approval, since the case had been opened as an intelligence matter. Megan told the OIG that she did not know if probable cause existed before September 11 to obtain a criminal search warrant in the Moussaoui case. However, she stated her belief that if the FBI had indicated that it was ready to 118 pursue the search warrant, it would have been the “normal course” for the USAO to try to obtain the warrant. 10. Al-Attas’ arrest On August 17, the day after Moussaoui’s arrest and Al-Attas’ interview at the hotel, Al-Attas came to the INS District Office, as requested by the FBI, and was interviewed again by FBI and INS agents. During this second interview, Al- Attas stated that Moussaoui had associated with two Pakistani flight instructors and two flight students in Oklahoma, one from Saudi Arabia and one from Bahrain. In addition, Al-Attas said that Moussaoui followed the teachings of a sheikh, whose identity Moussaoui had not revealed to Al-Attas because Moussaoui believed that Al-Attas would not approve of this sheikh’s views.103 When asked if the person was Usama Bin Laden, Al-Attas stated that he did not believe so, and that the only reference Moussaoui had made to Bin Laden was to comment on his appearance on television. Al-Attas also gave the agents the first and last names of one associate of Moussaoui’s in Oklahoma and the first name of another of Moussaoui’s associates in Oklahoma.104 During this interview, Al-Attas admitted that he had worked while he was going to school at the University of Oklahoma. Because this was a violation of his student visa, the INS arrested Al-Attas and took him into custody. Also on August 17, Henry and other agents interviewed Moussaoui again, and documented the results of the interview. 11. Second interview of Moussaoui On August 17, Henry and other agents interviewed Moussaoui again. According to Henry’s 26-page EC, which included information about both interviews, Moussaoui attempted to appear cooperative at the start of the August 17 interview but became “increasingly angry” as the questions focused on his source of financial support, his reasons for flight training, and his 103 A sheikh is “a venerable old man, a chief” or “the head of an Arab family, or of a clan or tribe; also, the chief magistrate of an Arab village.” 104 FBI records show that these two names were later checked in ACS, but no information was found on them. 119 religious beliefs. He was asked again to explain the source of his income, and he offered for the first time that he had received money from friends in the United Kingdom and from a friend in Germany for whom he could only recall a first name. Henry wrote that questions about materials in Moussaoui’s laptop “provoked an extremely strong emotional reaction” in Moussaoui. The agents told Moussaoui that they believed that he was an extremist, “intent on using his past and future aviation training in furtherance of a terrorist goal.” He was asked to provide the name of his group, the religious scholars whom they followed, and to describe his plan in detail. Henry reported that Moussaoui was “visibly surprised” at the question about his membership in a group and that the FBI was aware of his fundamentalist beliefs. Moussaoui repeated he was in the United States to enjoy using a simulator for a big plane. According to Henry’s 26-page EC, Moussaoui then requested an immigration lawyer, and the questioning was therefore halted. D. Expedited deportation order After the INS arrested Moussaoui on August 16, it initiated the process for deporting him. Because he had entered the country under the terms of the Visa Waiver Program, he was subject to the “expedited removal” process. As a condition of entering the United States under this program, Moussaoui waived any right to contest the deportation. For this reason, the deportation process consisted of paperwork prepared by an INS official, with no hearing before an immigration judge. The deportation order for Moussaoui was signed on August 17, 2001. Henry told the OIG that he had been informed by the INS agent who had conducted the interviews with him that persons who had entered the country under the Visa Waiver Program and overstayed were not entitled to an appeal and would therefore be deported very quickly. Henry’s supervisor, Gary, said that he also had been told by INS officials that Moussaoui could only be held for seven to ten days before he would be deported. As a result, the Minneapolis FBI believed that Moussaoui’s deportation was imminent. 120

E. Discussion regarding search warrant[]

1. Henry’s 26-page EC After Moussaoui’s arrest, Henry prepared a 26-page EC that provided a lengthy description of the facts of the case. The EC set forth the information obtained from the flight school, the information from the two interviews of Moussaoui and the two interviews of Al-Attas, and the information obtained from the items in Moussaoui and Al-Attas’ possession when they were arrested. The EC, which was uploaded into ACS on August 20, included some of Henry’s assessments of Moussaoui’s and Al-Attas’ behavior. It described Moussaoui as “extremely evasive” and “extremely agitated” when asked about his religious beliefs, overseas travel and associates, and the source of his financial support. Henry also wrote that he believed, based on Moussaoui’s demeanor, Moussaoui was being deceptive when he denied any weapons training. Henry also wrote that Al-Attas was being “deceptive in trying to minimize both his understanding of and involvement in whatever Moussaoui was planning to do.” Henry concluded the EC by stating, “Minneapolis believes that Moussaoui is an Islamic extremist preparing for some future act in furtherance of radical fundamentalist goals.” In support of this conclusion, Henry wrote: The numerous inconsistencies in his story, his two month long trip to Pakistan which ended less than three weeks before his coming to the U.S., and his inability to explain his source of financial support all give cause to believe he is conspiring to commit a terrorist act, especially when this information is combined with his extremist views as described by Al-Attas in his sworn statement. As Moussaoui was in the process of gathering the most knowledge and skill possible in order to learn to fly the Boeing 747-400, Minneapolis believes that his plan involved an aircraft of this type. This is especially compelling when considering that the 400 series of this aircraft has a smaller flight crew and is more automated than other versions, lending itself to simpler operation by relative novices. His request of Pan Am that he be 121 permitted to fly a simulated flight from London’s Heathrow Airport to New York’s JFK Airport is suggestive and gives Minneapolis reason to believe that he may have been attempting to simulate a flight under the conditions which he would operate while putting his plan into motion in the future. Henry wrote that the Minneapolis FBI believed “Moussaoui, Al-Attas and others yet unknown [were] conspiring to commit violations of [federal anti-terrorism statutes].” Quoting from one of the statutes, Henry wrote that Moussaoui and Al-Attas were “attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States.” See 18 U.S.C. § 2332b. In addition, Henry wrote that the Minneapolis FBI believed Moussaoui was engaging in flight training for the purpose of conspiring to use an airplane in the commission of a terrorist act. In support of this, Henry noted Moussaoui’s possession of knives and his preparation through physical training for violent confrontation. Henry wrote that Moussaoui’s “plan is believed to involve the performance of violence or incapacitation of individuals on aircraft.” The EC further stated that Minneapolis considered the matter to be urgent. At the conclusion of the EC, Henry wrote, “Minneapolis believes that the preponderance of information to be gained from future investigation will concern the specific criminal acts set forth above. However, as there is reason to believe that Moussaoui and Al-Attas are part of a larger international radical fundamentalist group, [the intelligence investigation] will remain open and a [criminal investigation] will be opened.” Through the EC, Henry also sent out several leads, including leads to FBI Headquarters, the Paris and London Legats, and the Oklahoma City Field Office. In the leads to the London and Paris Legats, Henry requested that they provide the EC to the British and French governments and report to Minneapolis any information developed on Moussaoui or any of his associates “yet unknown.” The lead to the Oklahoma City FBI asked it to fully identify all of the individuals from that area who had surfaced in the investigation, including a request to further investigate Al-Attas. With respect to the lead to FBI Headquarters, Henry requested that FBI Headquarters “expeditiously” obtain permission from OIPR for the Minneapolis FBI to contact the Minneapolis USAO to discuss the merits of 122 prosecution; to seek a criminal search warrant for Moussaoui’s belongings, residences, and vehicles; and to obtain subpoenas for his telephone and financial records.105 Henry also sent an e-mail to the SSA who we call Jack in FBI Headquarters on Sunday, August 19, providing an update on the case. Henry wrote that both Moussaoui and Al-Attas were in custody on INS violations. Henry reported that the Minneapolis FBI was planning to open a criminal investigation on Moussaoui and was seeking permission to contact the USAO. Henry explained his desire to obtain a criminal search warrant to search Moussaoui’s possessions from the hotel room, including his laptop computer, cellular telephone, and other documentary material, and also Moussaoui’s property in his residence in Norman, Oklahoma.106 Henry wrote that he thought that a search of Moussaoui’s things could “reveal detailed information regarding his plans and associates worldwide. He’s obviously well-funded and highly motivated.” Henry also e-mailed the 26-page EC to Jack the next day, Monday, August 20. In the e-mail accompanying the EC, Henry again requested that FBI Headquarters obtain permission to allow Minneapolis to contact the Minneapolis USAO for a search warrant “as soon as possible.” In the e-mail, Henry reported that Al-Attas was being released on bail and was returning to Oklahoma, where he could potentially “destroy incriminating evidence.” Henry concluded the e-mail by writing, “[p]lease let me know as soon as [the Department] gives the go-ahead. We’re all counting on you!”107 (continued) 105As discussed in Chapter Two, the 1995 Procedures provided that when an intelligence investigation was open and no FISA techniques had yet been employed, an FBI field office had to obtain permission through FBI Headquarters from the Criminal Division, not from OIPR, to contact the local USAO. 106 According to Henry, the Minneapolis FBI was aware of the requirement that to open a criminal investigation Minneapolis had to establish a “wall” between the criminal investigation and the intelligence investigation. He said that the Minneapolis FBI had planned for Henry to remain the agent for the intelligence investigation and for a different agent to handle the criminal investigation. 107 In addition, in an e-mail dated August 21 to FBI Headquarters, Gary, and another Minneapolis FBI agent, Henry wrote, “It’s imperative that the [United States Secret Service] 123 2. Assignment of Moussaoui investigation at FBI Headquarters According to Jack, he reviewed Henry’s EC on August 20 and noticed that Hizbollah was not mentioned. This indicated to Jack that the case did not belong in his unit. Rather, because of the lack of information about any particular terrorist group and the extremist view described to Moussaoui in the EC, Jack believed that the case belonged in the ITOS’ Radical Fundamentalist Unit (RFU). Cases that could not be linked to a specific group or substantive unit and involved radical extremist allegations are assigned to the RFU. That same day Jack discussed the EC with his Unit Chief, who instructed him to give the matter to the RFU and walk the EC over to that unit. Jack therefore gave the 26-page EC to the RFU Unit Chief who we call “Don.”108 Don told the OIG that at the time there were four SSAs in the RFU. Don assigned the matter to one of them, an SSA who we call “Martin,” based on the availability and workload of the staff at the time. An IOS assigned to work with Martin, who we call “Robin,” also was assigned to the Moussaoui case. Henry was informed that the investigation had been reassigned to Martin in the RFU. Martin had joined the FBI in 1988 as a special agent and spent his first three and a half years conducting bank fraud and embezzlement investigations (continued) be apprised of this threat potential indicated by the evidence contained in the EC. If [Moussaoui] seizes an aircraft flying from Heathrow to NYC, it will have the fuel on board to reach DC.” Henry told the OIG that he believed that the Secret Service, in its role of protecting the President, needed to be advised of Moussaoui because he posed a threat to the White House. Henry knew that Moussaoui had received training to fly a 747-400 and if Moussaoui hijacked an airplane and flew from Heathrow to New York, the airplane would have enough fuel to be diverted to Washington. According to Henry, he never got a response to this e-mail. 108 As discussed in Chapter Three, Don had been the Unit Chief of the RFU since May 2001. He became an FBI agent in 1987 and spent eight years in the Newark Division. Between 1990 and 1995, he worked international terrorism matters on the Newark counterterrorism squad. In 1995, he was promoted to an SSA position in a unit other than the RFU in ITOS in FBI Headquarters. In 1998, he became the supervisor of a counterterrorism squad in the Miami Division and remained there until his promotion to the Unit Chief of RFU in 2001. 124 in Colorado. In February 1992, he entered a language program at the Defense Language Institute in Monterey, California, to study Arabic for more than two years. After completing the language course, in September 1994 he became an agent on the counterterrorism squad of the Washington Field Office, where he worked exclusively on international terrorism matters, including the bombing of the Khobar Towers in Saudi Arabia in 1996. In November 1999, Martin was promoted to be a Supervisory Special Agent in the RFU. IOS Robin began working for the FBI in 1976 in a clerical position. In 1980, she was promoted to a paralegal specialist position, where she handled Freedom of Information Act requests. In 1993, she was promoted to the IOS position and assigned to a substantive unit in ITOS. In approximately 1994, the RFU was formed, and Robin was assigned to that newly created unit. In 2001, Robin had responsibility for terrorism matters with a connection to two African countries. 3. Prior relationship between the Minneapolis FBI and RFU The Moussaoui matter was not the first time that the Minneapolis FBI and the RFU worked together. Unfortunately, the earlier matters resulted in disputes and significant friction between the two offices. We believe this past history, which we discuss briefly here, affected how the two offices interacted on the Moussaoui case. Several FBI employees told the OIG that the Minneapolis FBI’s counterterrorism squad had conflicts with the RFU that preceded Martin and continued after Martin came to the RFU. The RFU Unit Chief who preceded Don, who we call “Dan,” told the OIG that the SSA who had been the supervisor of the Minneapolis counterterrorism squad until the first week of August 2001 – who we call “Charles,” had conflicts with the RFU SSA who had preceded Martin and that Dan had helped Charles in dealing with those conflicts. Dan added that the Minneapolis FBI counterterrorism squad had a reputation for saying “the sky is falling.” By contrast, Charles told the OIG that the RFU “raised the bar” for what was needed for the Minneapolis FBI to accomplish what it wanted. For example, Charles said that Martin had not supported the Minneapolis FBI’s recommendation that the FBI seek the designation of a particular organization as a terrorist organization by the State Department. Charles said that Martin 125 had forwarded to Don an e-mail exchange between Charles and Martin that arose out of this conflict, and that Don e-mailed Charles to say that he wanted to discuss the problem. Charles said he spoke to Don about a week after the email and that Don told him that he did not have a full complement of SSAs in the unit and that Charles had to deal with the personnel that were in the unit. Charles also told the OIG that Martin treated Henry like he was a new employee. Charles said that, while Henry only had two years of FBI experience, he had a significant intelligence background based on his work with the Navy. According to Charles, Martin had “a track history of not giving [Henry] much respect.” Don told the OIG that soon after his arrival as unit chief in June 2001, he had a telephone conversation with Charles about the prior conflicts between the Minneapolis FBI and the RFU, including conflicts with the SSA who preceded Martin, the former unit chief, and Martin. Don stated that Charles told him that there had been “personality conflicts” and that he did not believe that the RFU had supported the Minneapolis FBI sufficiently. In particular, Don said Charles discussed Martin’s lack of support for Minneapolis’ recommendation that the FBI attempt to have a particular organization designated as a foreign terrorist organization by the State Department. Don told the OIG that he advised Charles that he wanted the disputes between the two offices to end and that if Charles had a problem with the RFU, he should address it with Don. Martin told the OIG that he was aware that there had been prior conflicts between Minneapolis and others in the RFU. He said that his understanding was that Minneapolis had made some errors in their handling of matters with other SSAs, such as initiating electronic surveillance before the FISA order had actually been signed. Martin stated that his problems in his dealings with the Minneapolis office began when the conflict with Charles arose over the designation of an organization as a terrorist organization by the State Department. Martin told the OIG that he did not believe that it was appropriate to pursue the designation, based on information that he had obtained from the FBI’s IOS who had responsibility for the particular organization for the FBI and from the CIA program manager who handled the particular organization for the CIA. Martin said that Charles believed that Martin was attempting to undermine his efforts. Martin believed that Charles also had “tak[en] offense” when he pointed out mistakes that were made by Minneapolis, such as failing to “minimize” a conversation recorded pursuant to a FISA warrant. 126 Henry told the OIG that he was “unhappy” that the Moussaoui matter had been assigned to Martin because of how matters “had gone in the past.” Henry said that Martin acted with an “abundance of caution” and cited examples in which he believed that Martin had not acted aggressively enough. For example, Henry said that Martin refused to allow Minneapolis to pursue a criminal investigation in an intelligence investigation in which electronic surveillance under FISA was being conducted. According to Henry, without the criminal part of the case, the intelligence case could not proceed, and Minneapolis wanted to continue both the criminal investigative activity and the electronic surveillance. Henry told the OIG that Martin would not allow it. According to Henry, Minneapolis was forced to close its investigation, and another field office later picked up the criminal case. With respect to the specific case cited by Henry, Martin stated that during the FISA renewal process he informed OIPR and the FISA Court of the criminal direction the case was taking. According to Martin, the Court did not have a problem with the case at that point. However, OIPR requested a meeting with ITOS Section Chief Michael Rolince to discuss whether there was a “primary purpose” problem, and they collectively decided to shut down the FISA surveillance. This was conveyed to the Minneapolis FBI, which in turn discontinued surveillance on the target. Martin told the OIG that at no time did he instruct Minneapolis that the criminal case could not be pursued. Robin told the OIG that she believed that part of the problem between Martin and the Minneapolis FBI was a difference in style. According to Robin, Minneapolis, and field offices in general, usually wanted things done immediately. She said, however, that Martin was very “laid back” and that “he doesn’t get all riled up and stirred up about things. He just – he’s not a spinthrough- the-roof kind of guy. But he gets everything done and it’s not that he doesn’t do them timely. He just doesn’t get excited about stuff.” Former RFU Unit Chief Dan also described the differences between the Minneapolis FBI and Martin as a “clash of personalities.” He described Martin as “low key” but “professional,” and said that Charles was “more animated.” Another IOS in the RFU who worked with the Minneapolis agents and Martin also described the problems as a “personality conflict.” He described Martin as “methodical” and said that he had an “even keel” approach. He described the Minneapolis agents as “aggressive” and said that with every request to FBI 127 Headquarters, their approach was “if this doesn’t happen, the world is going to end.” 4. Gary seeks advice from ASAC Charles Gary told the OIG that on August 21 he called ASAC Charles, who was in training at Quantico, for guidance on how to proceed, and that Charles told him that he should seek a criminal warrant. Charles said that he gave Gary this advice since he did not believe the Minneapolis FBI would be able to get a FISA warrant, not because of the facts in the Moussaoui case but because of his past experience with the difficulty and significant delays in obtaining FISA warrants. Charles stated that, in his experience, OIPR only wanted “slam dunks.” Charles told the OIG that, as part of the training he was attending at Quantico at the time, Deputy Attorney General Larry Thompson had just recently presented at the training conference a memorandum on the issue of intelligence sharing dated August 6 and addressed to the Criminal Division, the FBI, and OIPR. As discussed in Chapter Two, this memorandum reiterated the requirement of the 1995 Procedures that the Criminal Division be notified when there was a “reasonable indication” of a “significant federal crime” and that this notification was “mandatory.”109 The memorandum also stated that 109 As discussed in Chapter Two, the report of the OIG’s Campaign Finance Report and the report of the Attorney General’s Review Team investigating the Wen Ho Lee matter concluded that the FBI was not complying with the notification requirement primarily because of a fear that any contact with the Criminal Division would negatively affect an existing FISA order or the FBI’s ability to obtain one in the future. In January 2000, Attorney General Reno established the “Core Group,” which consisted of the FBI’s Assistant Directors for counterterrorism and counterintelligence, the Principal Deputy Attorney General, and the Counsel for OIPR. The FBI Assistant Directors were supposed to provide “critical case briefings” to the Core Group, and they were to decide if the facts of the case warranted notification to the Criminal Division as provided for in the 1995 Procedures. The Core Group was disbanded in October 2000 and reconstituted in April 2001, but the problem of lack of notification to the Criminal Division remained. In July 2001, the GAO issued its report recommending, among other things, that the Attorney General establish a policy and guidance clarifying the expectations regarding the FBI’s notification of the Criminal Division about potential criminal violations arising in intelligence investigations. 128 the standard for reasonable indication was “substantially lower” than probable cause, but that it required more than “a mere hunch.” Charles told the OIG that he explained the new guidelines to Gary and recommended that he bring them to the attention of FBI Headquarters. Charles told the OIG he believed that by doing this, FBI Headquarters would be forced to contact the Criminal Division, and that once this occurred, the Criminal Division would on its own direct the Minneapolis FBI to contact the USAO about a search warrant. Gary told the OIG that Charles faxed the memorandum to him and that he discussed notifying the Criminal Division about Moussaoui with Martin on August 22, which we discuss below in Section F. Gary also said that Charles told him that if he had any problems in dealing with Martin that he should ask Acting SAC Roy to “go up the chain of command” in FBI Headquarters, and Charles provided Gary with the names of upper management, including Assistant Section Chief Steve Jennings, Section Chief Rolince, and Deputy Assistant Director James Caruso. According to Gary, Charles suggested that Gary pass these names to Roy because Charles did not believe that Roy knew who they were. Gary told the OIG that he provided these names to Roy. Charles also recommended that the Minneapolis FBI contact an FBI employee detailed to the CIA, who we call “Craig,” to request any information that the CIA had on Moussaoui. 5. Henry discusses with Don pursuing criminal warrant According to Henry, on approximately August 21, he called RFU Unit Chief Don to discuss pursuing a criminal investigation of Moussaoui. Henry told the OIG that Gary had already filled out the paperwork for opening a criminal terrorism investigation, and Henry was calling Don to let him know that the paperwork would soon be submitted to FBI Headquarters. Henry told the OIG that Don instructed him that he could not pursue the criminal investigation. Henry stated that Don said to him, “You will not open it, you will not open a criminal case.” Henry stated that Don asserted that if the Minneapolis FBI attempted some kind of criminal process from the USAO, such as a search warrant, and failed, it would not thereafter be able to pursue a FISA warrant. According to Henry, Don also asserted that probable cause for a criminal search warrant was “shaky.” 129 Although Henry believed there was probable cause for a criminal warrant, he said that as an entry-level agent he was not in a position to argue with Don, a unit chief at FBI Headquarters, who was in a better position to judge how the FISA Court would respond to a FISA request that followed a failed attempt to obtain a criminal search warrant. Henry said that although his supervisor, Gary, had previously prepared paperwork for opening the criminal investigation, Henry wrote, “Not opened per instructions of [Unit Chief Don]” on it after this conversation with Don. Don’s recollection of the conversation with Henry about pursuing a criminal investigation of Moussaoui differed from Henry’s. Don told the OIG that his recollection was that he talked to the Acting Minneapolis ASAC, Charles, and that he did not speak to Henry. Charles told the OIG, however, that he did not speak to Don before September 11. We believe that Don likely spoke to Henry, not Charles. Don told the OIG that, based on his knowledge of the case, he did not believe there was criminal predication for a criminal search warrant. Don stated that, in his opinion, Minneapolis had a “belief” that there was the potential for a criminal charge of conspiracy to hijack, but this was not supported by sufficient evidence. Don also asserted that since Moussaoui had been arrested and detained on immigration charges, he could not be involved in a crime that was about to be committed. According to Don, he voiced his opinion to the Minneapolis FBI about the lack of criminal predication and advised that if obtaining the criminal warrant failed, the FBI would not be able to pursue the FISA warrant. Don told the OIG he expressed in the conversation that he did not want Minneapolis to follow the criminal road prematurely. However, Don asserted that at no time did he tell the Minneapolis FBI that it could not pursue the matter criminally. Don also stated to the OIG that he advised the Minneapolis FBI to consult with the Minneapolis CDC about whether probable cause for a criminal search warrant was present. According to Don, he stated, “You guys need to go back to your CDC, you need to discuss it with your CDC, and get back to me and tell me your position.” Don told the OIG that, in his opinion, giving this kind of advice – whether there was criminal probable cause – was the role 130 of the CDC. He said he wanted the Minneapolis CDC to weigh in before the Minneapolis FBI made its decision about which way to proceed. Henry confirmed to the OIG that Don advised him that he should consult with his CDC on the matter. After his conversation with Don, Henry met with Rowley to discuss whether Minneapolis should pursue the criminal investigation. Martin told the OIG that his understanding was that Don explained to the Minneapolis FBI the problems that could arise when a criminal investigation is pursued at the same time that a FISA warrant has been issued or is being sought. Martin said he thought that Don had told the Minneapolis FBI, “You guys need to be careful. You need to run it through your division counsel if you want to do a criminal investigation on this guy, because if you do that and you get turned down by a magistrate or even if you try to get the okay from a U.S. Attorney’s Office, we have to document that in our request to the FISA court, and we risk making it look like to the judge that we really want to get a criminal case, want to prosecute the guy but we didn’t have enough probable cause to get a criminal search warrant.” Martin told the OIG that it was his understanding that Minneapolis “listened to [Don] and agreed.” 6. CDC Rowley’s recommendation According to Rowley, Henry came to her office some time after his conversation with FBI Headquarters and conferred with her about whether to seek a criminal search warrant in the Moussaoui case. Rowley said this occurred on or about August 22. Rowley told the OIG that, until this point, she had not been actively involved in the Moussaoui investigation, although she had had a brief discussion with Gary on the night of Moussaoui’s arrest. As discussed above, Rowley was the CDC for the Minneapolis FBI. She had graduated from law school in May 1980 and joined the FBI as a special agent in January 1981. After working in several FBI offices on, among other cases, white-collar crime, drug investigations, and applicant background investigations, Rowley transferred to the Minneapolis FBI office in July 1990. Rowley said that as the CDC for the Minneapolis FBI, she spent very little of her time on intelligence matters. She stated that she had attended FBI training on counterterrorism issues, including FISA, but that she usually was not involved in the FISA process. She said that agents typically dealt with FBI 131 Headquarters on these matters and that she had only reviewed a couple of FISA requests. Rowley told the OIG that when Henry came to her office around August 22, he asked her what she thought about the FISA issue in the Moussaoui case. He related that he had spoken to either Martin or Don (Rowley did not recall which one), who had suggested that the Minneapolis FBI would have a better chance of obtaining a warrant if it sought a FISA as opposed to a criminal search warrant. She said she thought Henry may have mentioned something about the “smell test.” She said that, after discussing the matter with Henry, like the RFU she recommended going the FISA route because of the “smell test.” Rowley explained that she knew that if a FISA warrant was sought after an unsuccessful attempt to obtain a criminal warrant, it would give the appearance – or “smell” – that the true purpose for seeking the FISA was for criminal prosecution and the FISA warrant would be denied. According to Rowley, Henry’s position was that the Minneapolis FBI should proceed with the criminal search warrant and not worry about the smell test. Rowley, however, stated that the smell test was a reality and advised that it had to be factored into the decision. Additionally, Rowley said that while she thought that there was probable cause for a criminal search warrant, she also believed that the USAO in Minneapolis required a higher standard than probable cause to seek a search warrant.110 Because of the smell test and concerns whether the USAO would (continued) 110 In her May 21, 2002, letter to the FBI Director, Rowley stated that she had advised Henry to seek the FISA warrant instead of the criminal warrant because the Minneapolis USAO “regularly requir[ed] much more than probable cause” and “requir[ed] an excessively high standard of probable cause.” In the letter, Rowley gave as an example of this the Minneapolis FBI’s investigation of mailbox pipe bombings during which, she wrote, an AUSA declined permission to seek a search warrant despite “significant evidence” supporting the search warrant. We interviewed several attorneys in the Minneapolis USAO, including the United States Attorney, Thomas Heffelfinger. All the attorneys denied that the Minneapolis USAO required more than probable cause before seeking search warrants. They also stated that in cases in which the USAO determined that there was insufficient evidence to support a search warrant, their practice was to specify the FBI’s options, including what additional information was needed to support probable cause. With respect to the mailbox pipe bombings case, Heffelfinger acknowledged that there had been a disagreement between the USAO and the FBI over whether sufficient evidence existed to 132 agree to a criminal search warrant, Rowley said that she recommended the avenue with the best chance of success, which she believed was seeking a FISA warrant instead of a criminal warrant. Rowley told the OIG that at the time of her discussion with Henry she had not discussed the Moussaoui matter with any attorneys in the National Security Law Unit (NSLU) or anyone else in FBI Headquarters.111 She also said that she had not reviewed the FISA statute or any other training materials about FISA warrants. She said her advice was based on her knowledge of the problems with the smell test, the problems with the Minneapolis USAO, and “optimizing” the chances of getting a warrant by pursuing the FISA process first. Henry confirmed to us that Rowley recommended that pursuing the FISA warrant would be the safest route. When we asked Rowley about the nature of the discussion that she had with Henry about seeking the criminal warrant, Rowley told the OIG that she was “helping make his decision.” When we asked Rowley whose decision it was to not seek the criminal warrant – the field office or Headquarters – she stated: I thought it was kind of, I don’t know, kind of a joint thing. I thought Headquarters, somebody at Headquarters had also recommended we try FISA first, too. But I think maybe ultimately it was [Henry]’s decision to try FISA first or our field division’s.

F. The FISA request[]

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

G. Deportation plans[]

Martin and the Minneapolis FBI coordinated with the INS to finalize plans for Moussaoui’s deportation. Under the law, Moussaoui could be deported to either France, his country of citizenship, or England, his country of last residence. The French advised that they could hold Moussaoui and search his belongings, and on approximately August 30, it was decided to deport Moussaoui to France. During the deportation planning, the Minneapolis FBI and the FBI Paris ALAT requested permission from FBI Headquarters for Henry and an INS agent to accompany Moussaoui to France in order to brief French authorities and to assist in evaluating the information obtained in the search. Minneapolis Acting SAC Roy wrote in an August 30 e-mail to Don that the French authorities were requiring that Moussaoui be accompanied by a law enforcement officer from the United States and that Moussaoui’s property be kept separate from him. Roy wrote, “If possible, we would like the Minneapolis agents to be present while the exploitation of the computer is conducted so we can act immediately on any information obtained.” Don initially was opposed to sending FBI agents to escort Moussaoui. He sent a reply e-mail to Roy on August 31 stating that he believed that the deportation of Moussaoui should “remain an INS issue.” (Emphasis in original.) Don wrote in the e-mail the Minneapolis FBI should ensure that the FAA was involved and noted that FAA sky marshals were armed. Section Chief Rolince told the OIG that he also was initially opposed to sending a Minneapolis agent with Moussaoui to France. He said that at first he thought it was unnecessary because, based on his past experience, the agent would have accompanied Moussaoui in an attempt to obtain information. He said that he changed his mind when it later was explained to him that the Minneapolis agent was going to accompany Moussaoui as part of an overall strategy to ensure that Minneapolis obtained all of the information from the search and further investigation. Roy replied by e-mail to Don a few minutes later and asked whether Don’s e-mail meant that FBI Headquarters would not support a Minneapolis agent accompanying Moussaoui to France. Gary also provided additional information to Don, such as that the French authorities preferred that an FBI agent accompany Moussaoui to France and that Martin had informed the 172 Minneapolis FBI that FAA sky marshals would not be traveling with Moussaoui.141 Don replied by e-mail three hours later, stating that he could not discuss the matter at the moment but would call Roy the following week. Don added that he did not believe that the FBI would be turning over the case to the French authorities by not sending an FBI agent to escort Moussaoui. He added that the FBI’s Paris ALAT would be present for the search and had been involved with the Moussaoui investigation from the beginning. On September 4, Don, Martin, and Roy received an e-mail from the Paris ALAT in which he stated that he wanted to confirm the deportation plans. He wrote that it was his understanding that the proposal was to send Moussaoui to Paris with an INS escort and the FBI case agent. The ALAT noted that “[t]his would fit nicely with what the French have requested” and that the agents would need to stay in France a couple of days to assist with briefing the French authorities and to obtain the results of the search by the French authorities. Martin replied by e-mail that Don “still [held] the position that [Moussaoui] will be escorted by INS, and that no FBI personnel is needed.” Martin also wrote that because the case had been opened only two weeks and because the interviews were well documented, the ALAT and the French authorities should be able to handle the case without the FBI sending the case agent. The Paris ALAT responded by e-mail to Don, providing his opinion on whether a Minneapolis agent should accompany Moussaoui to France. The ALAT stated that he did not feel that he was in a position to adequately answer some questions that could be raised about the FBI’s investigation of Moussaoui, such as other investigation conducted of which the ALAT was unaware, and questions about Moussaoui’s personality for purposes of approaching him in an interview. He wrote that he therefore believed that an agent from Minneapolis or FBI Headquarters should accompany Moussaoui. Don responded to the ALAT’s e-mail the same day. He wrote, “Do we need to fly FBI agents all over the world to conduct basic investigation. [sic] I don’t like the idea of [a Minneapolis FBI agent] ‘escorting’ this guy --- This is 141 Martin’s e-mail about the FAA stated, “[The FAA] did not indicate a desire to escort the guy, and indicated the INS escort would suffice.” 173 not that complicated. It may be to [sic] late, but in the future I would like [the ALAT] to handle such matters.” The next day, September 5, Henry e-mailed Martin about a meeting he had with the INS supervisor who was going to be responsible for sending Moussaoui to France. Henry explained that the INS supervisor had raised a number of issues about the deportation of Moussaoui and recommended that the FBI request that the INS transport Moussaoui on a government aircraft (a Justice Prisoner Alien Transportation System (JPATS) flight). Martin responded to this e-mail by stating that he would discuss the issue with the INS supervisor assigned to the RFU. Martin also forwarded the e-mail to Don. Don replied the next day, September 6, writing, “Isn’t a JPATS flight awful expensive for a guy SUSPECTED of being up to no good??? Again, I’m of the belief that we consider that a FAA sky marshal(s) be present on the flight.” According to Gary, he repeatedly asked Roy to raise the issue at a higher level at the FBI regarding Minneapolis agents accompanying Moussaoui to France. According to Gary, Roy was waiting for a call back from Don, and because Don had not given Minneapolis a definite “no,” Roy was hesitant to go up the chain of command. According to Roy, he did not hear from Don about the deportation issue. When Don still had not responded by Monday, September 10, Roy sent another e-mail to Don asking whether he had given consideration to a Minneapolis FBI agent escorting Moussaoui. Don replied by e-mail a few hours later stating that FBI Headquarters decided to concur with a Minneapolis agent accompanying Moussaoui to France. Gary also told the OIG that he had suggested at some point that Roy “go up” the chain of command about Minneapolis’ FISA request, but that Roy did not. Gary told the OIG that he believed that Roy was “not aggressive enough” because he did not appeal to anyone in upper management at FBI Headquarters, but that Roy may have decided to focus on the deportation issue and “drop” the FISA issue. Gary told the OIG that he believed that part of the reason that Roy did not contact anyone above Don about the Moussaoui FISA request was because he was an acting SAC, and also possibly because Roy did 174 not have any international terrorism experience. Gary also said that Gary himself was “on a learning curve too,” and that if he had more experience, he would have sought assistance from someone above Don with trying to get FBI Headquarters to submit the Moussaoui FISA request to OIPR. Roy responded to this issue by stating that he did not go above Don because, before the September 11 attacks, there was no apparent “urgency” to the Moussaoui matter, and he believed that the Minneapolis FBI had taken the matter through the appropriate channels, since the head of the NSLU also had given his opinion on the FISA request. Roy added that shortly after Bowman’s opinion was received, the deportation plan was in place and that plan was going to result in Moussaoui’s belongings being searched, which was what Minneapolis was attempting to achieve.

H. Dissemination of information about Moussaoui[]

On August 28, Don received an e-mail from the FBI detailee to the CIA who we call Craig, which indicated that the CIA had not yet received a formal communication from the FBI about the FBI’s requests in the Moussaoui investigation. Don e-mailed Martin and Robin on August 31 to request that they prepare a “comprehensive teletype” to the CIA about Moussaoui. Don wrote that they should pass to the CIA all information, such as biographical information, pocket litter, and telephone numbers, and formally ask for traces on all of the information even though the requests already had been made informally. Don noted that the information needed to be in “formal channels” and instructed Martin and Robin to include the Minneapolis FBI and appropriate Legat offices on the teletype so that the offices would know what FBI Headquarters was doing. Martin replied that he had spoken to Craig about the lack of a formal request and that Martin had begun preparing a teletype, but that he had not yet completed it. On the same day, in an e-mail from Don to Roy in which Don recommended that FAA sky marshals be used to escort Moussaoui when he was deported to France, Don wrote that he “would also suggest that [Minneapolis] ensure FAA is on board (figuratively and literally). FAA needs to know that FBI suspects that your subject may have been up to no good which included his desire to obtain 747 pilot training.” Roy responded in an email that the Minneapolis FBI was working on an LHM and would disseminate it to the FAA in Minneapolis as soon as possible. 175 Henry told the OIG that he began drafting an LHM to the FAA and that he thought it was important to inform the FAA that Minneapolis believed that Moussaoui wanted to seize control of an airplane and that he might be released soon after he was back in France. Henry prepared a 7-page LHM in which he summarized the FBI’s investigation, including what the FBI had learned from the flight school employees about Moussaoui and his interest in and ability to use the mode control panel. Henry noted, “While it is not known if his physical training and study of martial arts are also connected to this plan, such preparations are consistent with facilitating the violent takeover of a commercial aircraft.” Henry also included a section at the end of the LHM labeled “threat assessment” in which he wrote: Minneapolis believes that Moussaoui, Al-Attas, and others not yet known were engaged in preparing to seize a Boeing 747-400 in commission of a terrorist act. As Moussaoui denied requests for consent to search his belongings and was arrested before sufficient evidence of criminal activity was revealed, it is not known how far advanced were his plans to do so. Henry wrote that the French authorities were planning to receive Moussaoui into custody when he was deported and would search his belongings, but that it was not known whether he could be detained over the long term. Henry added that “most significantly” it was unknown whether the French authorities would be able to retain Moussaoui’s property indefinitely, including the flight manuals and “materials believed to be contained on his laptop which pertain to his plan.” Henry wrote that if the materials were returned to Moussaoui and he was released, “Moussaoui may have the ability to continue with his plan to utilize a 747-400 for his own ends.” Henry added, “As the details of his plan are not yet fully known, it cannot be determined if Moussaoui has sufficient knowledge of the 747-400 to attempt to execute the seizure of such an aircraft if he becomes free to do so in the future.” On September 4, Gary discussed this LHM with Martin. According to Gary’s notes of the conversation, Martin told him not to provide the LHM to the FAA because FBI Headquarters was issuing a teletype that day to all agencies. Martin instructed Gary to provide the local FAA office with a copy of the teletype once it was received in Minneapolis. 176 Martin’s 11-page teletype was issued on September 4. It was addressed to the FBI Minneapolis and Oklahoma City offices, six FBI Legat offices, the CIA, FAA, Department of State, INS, U.S. Secret Service, and U.S. Customs Service. The teletype consisted of a summary portion and the details of the Moussaoui investigation. In the summary portion of the teletype, Martin wrote that Moussaoui had been detained on a visa waiver overstay violation after he was brought to the attention of the FBI by instructors at the Minneapolis flight school, who had become suspicious of him because he was taking flight simulation training for a 747-400 aircraft. The teletype stated that this training is normally given to airline pilots, and that Moussaoui had no prior experience and had paid $8,300 in cash for the course. The teletype included the information received from the French authorities about Moussaoui, including that he adhered to radical Islamic fundamentalist beliefs and he had recruited a person to join the jihad against Russian forces in Chechnya. It also included the later information received from the French, such as the description of him as “full of hatred and intolerance and completely devoted to the Wahabite cause” and that he was “considered to be potentially very dangerous because of his beliefs and the nature of his character.” The teletype added that Moussaoui had traveled to Pakistan for two months prior to his arrival in the United States and that “it is noted that Islamic extremists often use Pakistan as a transit point en route to receiving training at terrorist camps in Afghanistan.” After the summary portion of the teletype, Martin included specifics from the investigation, most of which were taken from the 26-page EC prepared by Henry at the initiation of the investigation. Unlike the LHM Henry had prepared to give to the FAA, however, the teletype did not contain a threat assessment or any indication that the Minneapolis FBI believed that Moussaoui, Al-Attas, and others not yet known were engaged in preparing to seize an airplane in commission of a terrorist act. On September 5, Henry and an INS agent provided Martin’s teletype to the FAA office in Minneapolis and briefed FAA employees on the threat that the Minneapolis FBI believed Moussaoui posed. Henry told the OIG that while the teletype contained most of the facts of the investigation, it lacked conclusions and analysis and had “no statement of opinion as to the threat that this represents.” Martin told the OIG that at the time that he was preparing the teletype, he was not aware that the Minneapolis FBI was preparing an LHM to provide to 177 the local FAA office. He stated that he discussed to whom to address his teletype with the IOS at FBI Headquarters who prepared teletypes for the FBI when it disseminated threat information, and he also discussed the contents of the teletype with an FAA employee detailed to FBI Headquarters. Martin told the OIG that he included in the teletype what he believed was supported by the facts of the investigation. He asserted that Minneapolis had a “gut feeling” that Moussaoui was “up to no good,” but did not have intelligence information of an ongoing plot or plan to hijack an airplane. Don told the OIG that the FBI used teletypes to disseminate facts gathered from an investigation and to disseminate information about threats. He said that Martin’s teletype was a compilation of the facts and did not “speculate as to what Moussaoui was up to.” Don said that the FBI anticipated that the recipient agencies would provide the FBI with their reactions to the teletype or information that was relevant to the teletype. I. September 11 attacks On September 10, Henry received an e-mail from Carol, the FBI Headquarters employee whom he had contacted for more information about Khattab’s connections to Al Qaeda. She asked whether Henry had ever received anything that he could use in support of a search warrant for Moussaoui’s belongings. Henry responded that the RFU had determined that Minneapolis had insufficient evidence to pursue either a FISA or a criminal warrant. He noted that Minneapolis “did not pursue this further because [FBI Headquarters has] directed that this is an INS matter.” He added that he “strongly disagree[d].” He also wrote that Moussaoui was being deported to France and that his “big fear” was that Moussaoui would be released following his deportation. He concluded by thanking Carol for her assistance. Carol responded a few minutes later by e-mail in which she wrote, “Thanks for the update. Very sorry that this matter was handled the way it was, but you fought the good fight. God Help [sic] us all if the next terrorist incident involves the same type of plane.” On the morning of September 11, at 8:34 a.m. Eastern Standard Time, Martin sent an e-mail to Gary finalizing plans for Moussaoui’s deportation, which the FBI believed would occur within several days. Just 12 minutes later, the first hijacked airplane hit the north tower of the World Trade Center. 178 After the first airplane hit, Martin tried to call Minneapolis ASAC Charles but reached Rowley instead. According to Rowley, she told Martin that it was essential to get a criminal search warrant for Moussaoui’s belongings. Rowley said that Martin instructed her that Minneapolis should not take any action without FBI Headquarters approval because it could have an impact on matters of which she was not aware. In her May 20, 2002, letter to the FBI Director, Rowley wrote that in this conversation with Martin she had said “in light of what just happened in New York, it would have to be the ‘hugest coincidence’ at this point if Moussaoui was not involved with the terrorists.” Rowley wrote that Martin replied “something to the effect that I had used the right term ‘coincidence’ and that this was probably all just a coincidence.” Rowley told the OIG that she agreed to follow Martin’s directive not to immediately seek a criminal warrant, and she was told that FBI Headquarters would call her back. Martin told the OIG that he recalled that there was a lot of confusion when he spoke to Rowley. Martin said that he did not recall making the statement about a coincidence to Rowley. He explained to the OIG that he did not feel comfortable giving legal advice about seeking a criminal warrant, so he went to the NSLU attorney who we call Tim, who advised that the Minneapolis FBI should seek the criminal search warrant. While Rowley was waiting for a return call from FBI Headquarters, Minneapolis ASAC Charles was on the telephone with Don. Because Acting SAC Roy was out of the office, Charles was responsible for the Minneapolis office and had called FBI Headquarters immediately after the first airplane hit the World Trade Center. Charles had reached Don and asked him for permission to seek a criminal search warrant for Moussaoui’s belongings. According to Charles, Don responded that he still did not believe that there was enough evidence to support a criminal search warrant. Charles stated that, during the course of this conversation the Pentagon was hit by another hijacked airplane, and that Don then told Charles to go to the USAO for a criminal warrant. Don confirmed that he spoke to Charles on the morning of September 11. He asserted that he immediately told Charles that the Minneapolis FBI could 179 seek a criminal warrant.142 Don told the OIG that it was a brief conversation that lasted several seconds at the most. Once Don authorized contact between the Minneapolis FBI and the Minneapolis USAO, Henry and Rowley went to the USAO to obtain a criminal search warrant for Moussaoui’s belongings. They consulted with several senior Assistant United States Attorneys, and drafted an affidavit in support of the search warrant. The affidavit stated that there was probable cause to believe that the laptop computer and other items seized from Moussaoui would contain evidence of a violation of 18 U.S.C. § 32 – destruction of aircraft or aircraft facilities. The affidavit contained much of the information reported in Henry’s 26-page EC about Moussaoui’s interactions with the flight school and interviews with the Minneapolis FBI, as well as the information from Al-Attas’ will and from the transcribed conversation of Al-Attas while he was in custody. The affidavit also included information about the September 11 attacks on the World Trade Center and the Pentagon. The search warrant was granted that day. The FBI searched Moussaoui’s belongings that were being held at the INS offices in Minnesota, including the laptop computer, associated computer software such as diskettes, spiral bound notebooks, clothes, and a cellular telephone. The return from the search warrant stated that the following items, among other things, were found: a pair of shin guards; a Northwest Airlines 747 cockpit operating manual; two 747 training videos; seven spiral notebooks containing handwritten notes about aviation; a Microsoft flight simulator book; a PowerPoint compact disc; a cell phone; binoculars; headphones; a skullcap; a cassette recorder; European coins; eyeglasses; disposable razors; and several documents, including financial records, blank checks, and identification papers from France. Moussaoui’s belongings did not reveal anything that specifically provided a warning or an indication of an imminent terrorist attack. There were no plans, correspondence, or names or addresses in his computer or notebooks that linked him directly to the September 11 terrorist attacks. However, information was 142 The 1995 Procedures provided that the FBI could go directly to the USAO without obtaining permission from the Criminal Division if “exigent circumstances” were present. 180 obtained in the search that, through further traces, was used by the government to indict Moussaoui for conspiring in the September 11 terrorist plot. J. Information received from British authorities on September 12 and 13 On September 11, after the attacks, the London Legat again requested information about Moussaoui from the British. According to British reports that the FBI reviewed on September 12 and 13, Moussaoui had attended an al Qaeda training camp in Afghanistan. It is not clear why the information from the British was not provided to the FBI until after September 11. The FBI’s ALAT in London first contacted the British authorities by telephone and in a written communication dated August 21. The ALAT summarized the status of the FBI’s investigation of Moussaoui, provided a document describing the results of the investigation at that time, and asked for traces to be conducted on Moussaoui and all of the individuals listed in his communication and in an enclosed document. The ALAT told the OIG that he had had several meetings and telephone calls with the British authorities in which Moussaoui was discussed. He said that the British were well aware of the importance of the matter. In addition, he said that on September 5 he provided the British with the additional information about Moussaoui that the FBI had received from the French authorities. The ALAT told the OIG that he did not know why the British authorities failed to provide the information about Moussaoui sooner. However, he said that 10 to 15 days to respond to a request for information from the FBI was normal.

K. Moussaoui’s indictment[]

On December 11, 2001, Moussaoui was indicted by a grand jury on six conspiracy counts directly related to the September 11 attacks. He is still awaiting trial.143 143 On July 22, 2002, Al-Attas pled guilty to making false statements to federal investigators. He was sentenced on October 22, 2002, to time served.

181

  1. 93 For a description of the Visa Waiver Program, see the OIG report entitled “Follow-up Report on the Visa Waiver Program” (December 2001).
  2. Media reports later incorrectly reported that Moussaoui had stated that he did not want to learn to take off or land a plane. In fact, according to the FBI, the Pan Am manager reported that Moussaoui only wanted to learn to take off and land the plane.
  3. Although Pan Am’s typical students were commercial pilots receiving initial or refresher training, this was not a prerequisite to taking the training course.
  4. JTTFs combine investigators from the FBI and various federal, state, and local agencies in FBI field offices throughout the country to combat terrorism.
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