THE 20th HIJACKER'S COMPUTER

Acting on a tip from a Minneapolis flight school instructor, FBI agents arrested al Qaeda operative Zacharias Moussaoui on immigration charges. While in custody, they found out that according to French intelligence, the suspect had ties with radical Islamist groups. The next logical step would be to search the suspect's computer - but for that the field office needed a warrant. As we now know, thanks to the courageous Rowley memo, FBI officials in Washington blocked the Minneapolis office from even seeking such a warrant. According to the Times, a major factor was the fallout from a scandal in which FBI agents were found to have submitted misleading affidavits to the Foreign Intelligence Surveillance Court in order to get warrants for eavesdropping. The story that emerges is of a decidely risk-adverse culture in the FBI's headquarters, scrambling to avoid being accused of overreaching on terrorist surveillance. The obvious next step is for an inquiry that asks the hard questions, demands the necessary reform, and axes the worst offenders. The harder question is does this incident also require a reexamination of the legal structure behind counter-terror surveillence as well.

If you read the Rowley Memo, you see the hoops that the field agents have to go through in order to ask for a warrant. In the case of criminal warrant, the field office has to request FBI Headquarter's obtain the Department of Justice's approval to contact the U.S. Attorney General's office in Minneapolis, which then has to agree that probable cause exists in order to submit a warrant request to a federal judge. In the case of an intelligence warrant, the field office needs Headquarters to agree to file an affidavit with the Foreign Intelligence Surveillence Court. In this case however, there is another special requirement - evidence that the suspect was acting on behalf of a foreign power. This appeared to be the catching point for FBIHQ in the case of Moussaoui - in their opinion (which is hotly disputed by Rowley) the French intelligence information did not make his organizational ties clear enough for a warrant.

In all of these cases, at the core of the caution is a fear of violating the Fourth Amenment's prohibition against unreasonable searches. In the area of everyday crimes committed by American citizens, the balance we have arrived at between communal safety and personal liberty, and the corresponding buffers placed on our law enforcement makes sense. In the case of terror committed by enemies of the country infiltrating our borders as illegal immigrants, this balance seems out of whack, and the buffers too strong. Should law enforcement really need probable cause to search the property of illegal immigrants suspected of terror? Is the standard needed for an intelligence warrant appropriate, or too high? Was the real scandal not that FBI agents falsified affidavits to get warrants to eavesdrop on Hamas and al Qaeda, or that they needed to in order to get such warrants? We are rightly wary of the costs of underenforcing our civil liberities. After 9/11, we need to be just as wary of the costs of overenforcement.