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Greenberg / ROGUE JUSTICE
Chapter 1
Justice at War
Attorney General John Ashcroft spent the morning of September 11, 2001, on a Gulfstream jet, heading to Milwaukee to celebrate Library Day with schoolchildren. He never made it to the event. As soon as the jet landed, a black-clad SWAT team surrounded it and hovered, weapons at the ready, as the plane was refueled and prepared for the return journey to Washington, DC. He made it out just in time—air travel in the United States would soon be suspended—and joined other top government officials at the White House early the next morning to meet with President George W. Bush, who had returned from his own Library Day event in Florida.
Ashcroft was seated between CIA director George Tenet and Secretary of Defense Donald Rumsfeld. He could feel the president’s eyes on him. “Don’t ever let this happen again,” Bush said.
“I took it personally,” Ashcroft later wrote. “From that moment forward, I devoted myself to an intense, sometimes secret war with a mission many people thought was impossible: stopping terrorists from striking again on American soil.”
Although the president had been looking directly at him when he gave this command, Ashcroft wasn’t entirely sure that it was intended for him. But regardless of whom Bush was holding accountable for the previous day’s events, everyone in the room probably felt some version of Ashcroft’s sense of responsibility and mission. The attack had caught them all off guard. They had failed in their duty to protect the country. Each of them now had to figure out what had gone wrong under his or her watch, how to correct it, and, above all, how to prevent a catastrophe like 9/11 from ever happening again.
Ashcroft’s Justice Department, especially its storied law enforcement and investigative wing, the Federal Bureau of Investigation, had a unique role in this reckoning. The FBI and the lawyers under Ashcroft’s command would not only have to ferret out and round up those responsible for the attacks; they would also have to stop those who might be planning something similar. This was not a task for which Ashcroft was directly prepared, either by experience or by temperament. As a governor and a senator, he’d focused on domestic issues, carving out a place for himself as a Christian conservative opposed to abortion, desegregation, and big government. As he had told Larry King in February 2001 during a discussion of gun control, “We’ve got enough laws on the books. I think what we need is tougher enforcement.” It was enough for lawyers and investigators to step in after people had committed crimes, at which point, he said, “we should nail them.” Seven months after he talked to King, it was clear that this approach would not suffice when it came to terrorism.
When he returned to his office after the White House meeting, Ashcroft assembled his top deputies. They were being deployed in the war on terror, he told them. They would have to peer into the future and beyond the nation’s borders in order to do their new job: keeping the country safe.
Robert Mueller’s first full day on the job as FBI director was September 10, 2001. He hadn’t even found the bathrooms in his new headquarters when the planes hit the buildings in New York and Washington. But he was plenty oriented to the job of combating terrorism—certainly more so than his boss. Princeton-educated, worldly, a decorated Vietnam Marine veteran, and a prominent prosecutor, Mueller had told the Senate committee vetting his nomination to the FBI post in the summer of 2001 that “the major threat that we have, and the threat that the Bureau needs to worry about the most, is terrorism.”
Yet as Mueller recalled for a 2012 gathering of Harvard Business School students, one of his very first meetings with President Bush after 9/11 didn’t go very well. He was in the Oval Office describing to Bush and Cheney his agents’ efforts to piece together an account of who the conspirators were, how they had carried out their attacks, and what their connection was to Al Qaeda and Osama bin Laden, when Bush interrupted him: “Stop it! What you’re telling me the bureau is doing is what you’ve been doing for a hundred years; my question for you today is what is the bureau doing today to prevent the next terrorist attack.” The president, Mueller said, asked him that same question every day for the next four years.
What the bureau had been doing for a hundred years, or at least for the previous decade or so, clearly hadn’t worked. As Ashcroft told Congress on September 25, the attacks revealed “a total breakdown in our intelligence, one that cannot be excused and must never be forgotten.” Mueller, Ashcroft, and others had immediately begun to investigate how the bureau had missed the signs that a terrorist attack was imminent. This wasn’t the first time the FBI had had to investigate itself. Less than a year earlier, in February 2001, it had arrested one of its own agents, Robert Hanssen. Hanssen had been spying for the Russians for years without being caught. High-profile failures like these had led investigators to ugly conclusions about the health of America’s premier law enforcement agency. Internal communications were, as one report put it, rife with “human error, compounded by antiquated and cumbersome information technology systems and procedures.” There was no networked computer system for research and information sharing; field agents were reduced to consulting public libraries to obtain information. Relationships among the various sections of the agency were “dysfunctional” and “broken,” which led to repeated failures to communicate. The bureau was cripplingly short on able translators.
Sometimes the consequences of the disarray were only minor, if embarrassing. Ashcroft, for instance, was forced to postpone Timothy McVeigh’s execution in the wake of a disclosure that the FBI had failed to provide evidence to McVeigh’s defense team, a lapse that turned out to be the result of disorganization. But sometimes they were devastating, as in the case of Wen Ho Lee, a Los Alamos scientist suspected of transmitting nuclear secrets to China—“allegations of espionage as significant as any the United States Government is likely to face,” as the official report on the debacle put it. But, the report concluded, the “FBI’s . . . investigation of Wen Ho Lee, in virtually every material respect, was deeply and fundamentally flawed.” The agency failed to make the Lee case a priority. It assigned an overworked, underexperienced agent to it and then denied him resources. Information got tangled up in bureaucratic webs. Supervisors ignored the case. In the meantime Lee, who had indisputably downloaded nuclear secrets onto a flash drive and who had been caught on wiretap promising a captured spy that he would find out who had turned him in, languished in solitary confinement for nine months, becoming a civil liberties cause célèbre. In the end, he pleaded guilty to just one of the fifty-nine counts on which he had been indicted, then went on to write a book called My Country Versus Me, in which he argued that he had been a victim of racial profiling.
If the FBI’s logistical and informational infrastructure was too dysfunctional to nail the bad guys, it certainly wasn’t up to the task of finding out in advance who they were and what they were up to and then preventing them from committing crimes. Running an effective intelligence operation required competent data collection, skilled analysis, and timely exchange of massive amounts of information, and the FBI, by its own reckoning, had failed miserably at all three.
Turning the FBI around was a daunting task, but at least Mueller and Ashcroft got along, which is more than you could say for their predecessors, Louis Freeh and Janet Reno, whose mutual dislike erupted into open hostility in the aftermath of the Waco siege and shootout. And in Mueller, Ashcroft had a man who was motivated not only by a sense of duty and patriotism but by the kind of institutional loyalty that can make a person even more dedicated. The FBI’s intelligence failures had initially led to proposals for a new agency dedicated to domestic intelligence, an idea that would gain steam in the years to come. In February 2003, for instance, Senator John Edwards (D-NC) called for the creation of a Homeland Intelligence Agency to “replace FBI units that failed to uncover the September 11 terrorists and still cannot find suspected al Qaeda operatives in the United States.” A domestic intelligence agency was also on the 9/11 Commission’s radar, and White House officials were considering it throughout the early post-9/11 years. None of these proposals gained much traction, but Mueller took the fact that the subject was under discussion as a cue to put in motion several programs designed to maintain the FBI’s hold on domestic intelligence. Mueller was successful, though the threat of domestic intelligence agencies would linger for several years. When the 9/11 Commission finally issued its report, it noted that its recommendation to keep domestic intelligence at the FBI was valid only if the bureau “can do the job.”
Mueller met these challenges by setting up new programs that would focus on intelligence collection both at home and abroad, with more resources, better technology, and an expansion of intelligence functions already in place. But some of the hurdles were not the result of internal disarray; nor could they be fixed directly by Mueller. They were the result of the suspicion of governmental power woven into the Constitution, and especially the Fourth Amendment’s guarantee against searches and seizures. The framers had prevented the state from forcibly entering people’s homes and sifting through their papers and effects—precisely the kind of power that a law enforcement agency bent on ferreting out “evildoers” and stopping them might like to have. But Congress could pass laws that pushed against the boundaries of the Constitution and let the courts sort out whether they were permissible. That was just what Mueller needed, and for this he was dependent on his boss, who would have to persuade legislators to give the FBI more power to expand its intelligence capabilities.
Within two weeks of 9/11, Ashcroft had done exactly that. On September 25 he appeared before the Senate Judiciary Committee with a sobering message: “I regret to inform you that we are today sending our troops into the modern field of battle with antique weapons.” But there was good news, too, he said. In the two weeks since the attacks, the DOJ had assembled a twenty-one-page proposal for a so-called Anti-Terrorism Plan that would provide “new tools to fight terrorism.” The bill was called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001—a title whose first letters spelled out USA PATRIOT. The acronym was awkward, to say the least, but as Ashcroft explained, it described “the true nature of the battle”: stop terrorism before it could start. The name was also excellent public relations; it was impossible to imagine anyone but a traitor objecting to a patriot act.
The act amended 108 preexisting criminal justice statutes and created nine new ones, changes designed to equip the country’s law enforcement agencies with new weapons to fight the intelligence battles of the war on terror. Agents could now search telephone and email records, get access to individual and corporate financial data, and search homes and businesses—all expanded powers that reduced the protections of the Fourth Amendment. Some activities, such as wiretapping, still required court orders, but the act made those orders much easier to obtain. It also allowed for the indefinite detention of immigrants suspected of having ties to terrorist groups—not only to prevent them from committing violence but also to make them available for interrogation. In short, the Patriot Act privileged intelligence collection over constitutional protections.
In case members of Congress objected to this turnabout, Ashcroft was ready with some explanations. The new approach to search and detention was necessary, he told them, because “our fight against terrorism is not merely or primarily a criminal justice endeavor. It is a defense of our nation and its citizens.” In sum, Ashcroft explained, “We cannot wait for terrorists to strike to begin investigations and to take action. The death tolls are too high, the consequences too great.” This approach would not suffice when it came to terrorism, he continued: “We must prevent first, prosecute second.”
“Of course,” he assured lawmakers, the FBI and other law enforcement officials would exercise their new powers with “careful regard for the constitutional rights of Americans and respect for all human beings.” Ashcroft did not say exactly how he intended to square that restraint with warrantless searches of Americans and indefinite detention of foreigners held in custody without access to the federal courts. But then again, he didn’t really have to. The country was still in a state of panic, and questioning the need for strong action seemed naïve at best and dangerous at worst. Only one senator, Russ Feingold (D-WI), and sixty-six representatives voted against the bill, and on October 23 the Patriot Act, the most significant reshaping of Americans’ relationship to the power of their government at least since the Alien Act of 1918 (or perhaps ever), became the law of the land. Suspicion of governmental power—a tendency of many conservatives—had given way to a hope that a powerful government could keep the country safe by preventing future attacks.
Of all the provisions of the Patriot Act, a section that would make it easier for intelligence and law enforcement agents to talk to one another was of particular significance to the top officials of the Justice Department—especially Michael Chertoff, the head of its Criminal Division. Chertoff, a former federal prosecutor under US Attorney Rudolph Giuliani, was the senior on-duty official from Main Justice—the Justice Department’s headquarters—working at FBI headquarters on the morning of 9/11. He spent the following days poring over files, trying to figure out how such a large operation had escaped notice. He came across one file that was so disturbing that he sprang from his chair and rushed into Ashcroft’s office. “John,” he said, “you won’t believe this.”
Chertoff handed his boss a memo—a report from an FBI agent who had written, “This is a guy who could fly an airplane into the World Trade Center.” The guy in question was Zacarias Moussaoui, a thirty-three-year-old French citizen of Moroccan descent. In early August 2001, Moussaoui had shown up at the Pan Am International Flight Academy in a suburb of Minneapolis, seeking time on the school’s 747 simulator. Clarence Prevost, the flight instructor who first brought suspicions about Moussaoui to the FBI’s attention, said that it wasn’t only the hundred-dollar bills Moussaoui used to pay the $8,300 training fee that got his attention; it was also the fact that despite the fifty or so hours he’d spent on lessons in a single-engine plane, Moussaoui had failed to get a pilot’s license; that once seated at the simulator, he clearly had no idea what he was doing; and that when Prevost asked him if he was Muslim, the otherwise genial student flared up and yelled, “I am nothing!”
Prevost, a retired commercial pilot, alerted his bosses. “We don’t know anything about this guy,” he told them, “and we’re teaching him how to throw the switches on a 747.” At first, they dismissed Prevost’s concerns and reminded him that Moussaoui was a paying customer. But the next day, perhaps heeding Prevost’s warning that “we’ll care when there’s a hijacking and the lawsuits come in,” they contacted the FBI office in Minneapolis.
Agents soon discovered that Moussaoui had overstayed his visa, and on August 16, 2001, he was jailed on an immigration charge. From discussions with French intelligence officers, the FBI quickly determined that he was affiliated with Islamic terrorists, including Bin Laden. The bureau moved to obtain a warrant to search Moussaoui’s computer, which had been seized during his arrest, but the supervising agent at FBI headquarters refused to pursue it. To the agents in Minneapolis, his resistance was infuriating and inexplicable and based on trivial concerns, such as his worry, later recounted by Minneapolis agent Coleen Rowley, that the French information “only identified Zacarias Moussaoui by name and [the supervisor] did not know how many people by that name existed in France.” (A check of the Paris phone book turned up no others, but this did not convince the Washington office, either.) The agents did finally get their warrants—weeks later, in the first hours after the attacks.
Moussaoui’s computer proved to be a trove of information about the hijackers and their plans. Had it been opened when Rowley and her Minneapolis colleagues wanted, the disaster might have been averted.
Immediately after the attacks, Chertoff and Ashcroft had claimed that the FBI had had no warning of them. Now it was clear that an unmistakable clue had been in their possession for nearly a month, and that more information was in the head of a man they had in custody. A single, seemingly arbitrary decision by a single agent in Washington had kept from the bureau information it could have used to thwart the hijackers.
Word would soon leak out to the public about the Moussaoui file, especially that prescient comment about his ability to fly into the World Trade Center. The FBI would be under scrutiny once again, this time for failing to “connect the dots.” Critics lambasted the bureau for its sloppy handling of the investigation, as if human error or poor communication were to blame. But to those on the inside, it appeared that the trouble emanated from a little-known outpost of the justice system, housed within the same building in which Ashcroft had his office: the Foreign Intelligence Surveillance Court (the FISA Court, also known as FISC). This court had the power to issue a warrant that would have allowed Moussaoui’s computer to be searched even in the absence of strong evidence that it held material relevant to criminal activity. It was in the course of trying to persuade his Washington supervisor to request such a warrant that a Minneapolis FBI agent had written the ominous message about Moussaoui’s piloting skills. But the FISC judges had never heard that warning, or anything else about Moussaoui, because the FBI had never brought it to them—in part, it seemed, because at the time of Moussaoui’s arrest, relations between the court and the bureau had broken down. A FISC judge had accused the FBI of routinely lying in the affidavits used to obtain court orders, and agents had become unwilling to stick out their necks by approaching the court for the warrants it could issue. Fear of bureaucratic reprisal, it seemed, had prevented the bureau from breaking the biggest terrorism case ever to come its way.
The Foreign Intelligence Surveillance Court came into being in 1978, another troubled time for America’s “intelligence agencies.” In 1975 the Senate Select Committee on Intelligence Activities, headed by Senator Frank Church (D-ID), began the largest congressional inquiry into America’s intelligence agencies since the Second World War. The inquiry was a response to “allegations of substantial, even massive wrong-doing” that had surfaced in the aftermath of the Vietnam War and the Watergate scandal. The Church Committee found many of these allegations to be true. Intelligence agencies had attempted to assassinate foreign leaders, plotted coups overseas, and spied extensively on civilian populations at home. Under Director J. Edgar Hoover, the FBI had been a central participant in the wrongdoing, especially through its COINTELPRO initiative, which, starting in 1956, attempted to gather information on and undermine groups deemed (primarily by Hoover) to be subversive. FBI agents infiltrated groups ranging from the NAACP to the Ku Klux Klan, attempting to foster internal squabbling and ultimately to discredit them. They spied on Robert Kennedy and Martin Luther King, Jr.; Hoover called the latter “the most dangerous Negro in America” and sent him a letter threatening to publicize an extramarital affair in hopes that it would persuade him to kill himself. They smeared “enemies” in the press. They broke into dissidents’ homes, induced local cops to beat them, and had them jailed on trumped-up charges. They opened mail and tapped phones without warrants. And they coordinated their activities with other intelligence agencies, especially the CIA, while keeping them secret from the rest of the country, including large portions of the government.
“The intelligence agencies are a sector of American government set apart,” the Church Committee reported (while noting how uncooperative they had been with its inquiry). “Intelligence work is a life of service, but one in which the norms of American national life are sometimes distressingly distorted.” The people who conceived and executed these programs, the committee wrote, might think they had the nation’s best interests at heart, but as Justice Louis Brandeis wrote, “experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent.” Hoover and other “men of zeal, well-meaning but without understanding,” Brandeis warned, posed “the greatest dangers to liberty.” They had to be reined in without also threatening their intelligence-gathering mission, and that, the committee concluded, was the job of Congress.
In 1977, thirteen months after the Church Committee released its final report, Senator Edward M. Kennedy (D-MA) introduced the Foreign Intelligence Surveillance Act (FISA) in the Senate. The bill called for the creation of a court whose judges, appointed from the federal bench by the chief justice of the Supreme Court, would rule on requests from Justice Department lawyers for surveillance of people suspected of spying for foreign powers. The lawyers would not have to show probable cause that a crime had been committed, the usual standard for obtaining a criminal warrant; they would only have to persuade the judge that there was some reason to believe that the target was an agent of a foreign power hostile to the United States. And while the existence of the court would be public if quiet, its proceedings would be held in secret.
To ensure that investigators could not exploit FISA’s lower standard of probable cause as a workaround for a regular criminal warrant, the act separated intelligence investigations from criminal investigations. Under the Clinton administration, Attorney General Janet Reno turned a strict interpretation of this requirement into firm policy, establishing the “FISA wall,” which forbade the secret court to authorize information-gathering activities related primarily to criminal matters. The FBI could get permission from a FISA court to tap a suspect’s phone or to obtain his or her tax records but only to collect intelligence and not primarily to launch a criminal investigation of any sort; intelligence had to be the “primary purpose” of the surveillance or search. If the investigation did reveal evidence of criminal activity, the investigators could turn the wiretap transcripts over to their colleagues on the criminal side, but suspected criminal activity could not be the primary purpose of a FISA wiretap.
On paper this system might have worked perfectly. But in real life it did not, in large part because the integrity of the wall depended on people whose interests sometimes—perhaps often—lay in breaching it. FBI agents prepared the factual information the FISA Court received before issuing a decision and enforced those decisions after surveillance had been authorized. FISC judges, already aware of agents’ temptation to misrepresent facts in order to get lawyers to approve their applications, began to hear about instances in which they had been misled. Specifically, the judges began to suspect that the searches and surveillance they authorized were “being used sub rosa,” as a court opinion later put it, “for criminal investigations.”
Under pressure from the FISA Court, the Justice Department launched an internal investigation, and in September 2000 “the government came forward to confess error in some 75 FISA applications related to major terrorist attacks”—an “alarming number,” wrote Judge Royce Lamberth, the chief FISA Court judge at the time. Lamberth was being kind by calling them “errors.” As the opinion made clear, they were really lies intended to abuse FISA’s leniency to get around the rigors of the Constitution. Agents had distorted facts that would have disqualified them from receiving the court’s approval for a warrant. After the confession, FBI agents discovered that the court no longer took them at their word. The court took action to tighten up the “ ‘wall’ procedures,” including introducing a requirement that multiple agents at every level of the FBI would now have to sign off on, and thus take responsibility for, statements made to the court. One agent was barred from submitting an application to the FISA Court ever again. If FISA had formerly been a rubber stamp for the FBI’s requests (it had denied only one in its twenty-three years of existence), it would be so no longer.
When Coleen Rowley heard FBI director Robert Mueller assure the nation that the FBI had had no advance warning of the attacks, she tried frantically to get in touch with him. She had no reason to think he was aware of the Moussaoui file and the incendiary material it contained, but as she explained in a letter to Mueller, she feared that once word of the case got out, “this statement could easily come back to haunt the FBI.” When she didn’t hear back from him or any FBI officials, and when Mueller did not modify his remarks, she thought her message had failed to penetrate the bureaucracy. But weeks later, following the first press reports about Moussaoui, the agency continued to profess no advance knowledge; she concluded that “someone, possibly with your approval, had decided to circle the wagons.”
“I don’t know how you or anyone at FBI Headquarters, no matter how much genius . . . you may possess, could so blithely make this affirmation without anything to back up your opinion except your status as FBI Director,” Rowley wrote. “I think your statements demonstrate a rush to judgment to protect the FBI at all costs.” She was, it seemed, willing to risk sacrificing her FBI career for her principles.
But before she accused her boss of malfeasance, Rowley offered an analysis of the failure. She explained that at first she had wanted to get a FISA warrant for Moussaoui’s apartment. She had known that if she tried first to get a criminal warrant and failed, any subsequent attempt to get a FISA warrant could contribute to the appearance that the FBI overused “less-demanding intelligence methods” for obtaining warrants—a sensitive subject, given the recent dustup between Lamberth and the bureau. So she went the “other route,” only to find that her supervisors in Washington “almost inexplicably” proceeded to “throw up roadblocks and undermine Minneapolis’s by now desperate efforts to obtain a FISA warrant.” They brought up “ridiculous questions” (which Rowley did not specify) and failed to tell her that the Phoenix FBI office had been reporting on suspected “Al Qaeda operatives” who had sought training at flight schools. Finally, on August 28, 2001, after the Washington agent in charge of the case had once again “deliberately undercut” her FISA effort—this time by withholding information about Moussaoui’s foreign contacts and activities—her unit chief informed her that there was not “sufficient evidence of Moussaoui’s connection to a foreign power.”
In her letter, Rowley didn’t say whether she thought the Washington agent was making a good faith effort to meet the stringent requirements recently laid down by the FISA Court or merely avoiding all the new paperwork (or, for that matter, merely acting resentfully in the wake of the rebuke from higher-ups), but the letter made clear what Ashcroft and Chertoff—and many others inside the government—must have been thinking at the time: the FISA wall was an obstacle to preventing terrorist attacks.
One way to surmount this difficulty was to enhance the Justice Department’s involvement with intelligence protocols and laws and to improve, where possible, the communication between intelligence agents and criminal investigators. For his part, Mueller started an analysis section inside the Counterterrorism Division and created an Office of Intelligence, which eventually became a full-fledged Directorate of Intelligence whose authority spanned the entire FBI. With the increase in intelligence work, training in FISA and sensitivity to the FISA wall would have to become more pervasive as well.
But there was a more direct way to address the problem, one that in the wake of the Moussaoui embarrassment seemed increasingly appealing: eradicating the wall entirely.
