BACK TO THE 20th HIJACKER'S COMPUTER

My first thoughts after reflecting upon the story of the National FBI's failure to request a warrant to search Moussaoui's computer was that (1) it demonstrated that the National FBI had a b-cratic, risk-adverse culture; (2) some misplaced incentives had to have gotten into the system for risk-adversion to lead to quashing requests for warrants; and (3) the law might have to be changed to avoid an overprotection of civil liberties.

This led Hauser to fire away with the following argument: (1) Rowley thought she had probable cause for an intelligence warrant; (2) we all agree she's an honest agent; (3) therefore it's clear that the problem was solely one of FBI incompetence, not legal stringency. Thus, since "everyone agreed that the current laws standards had been met" in this case, it doesn't support a reevaluation of the law at all.

It was a strong argument, and it swayed me towards a reevaluation of my support for Ashcroft's reforms. However, in this National Journal piece, Stuart Taylor raises all the nagging questions left unanswered by the incident. Were the FBI agents who denied the warrant request radically incompetent, or reacting rationally to the real hurdles needed to get a foreign intelligence warrant, and the real consequences of failure?

Take the Moussaoui case. The main reason his computer was not searched was the stringency of the Foreign Intelligence Surveillance Act of 1978. It imposed, and still imposes, so substantial a burden of proof to obtain a warrant for a search or wiretap that all the clues the FBI had before September 11 may well have fallen short.

Moussaoui had been arrested in mid-August 2001 for overstaying his visa, after his odd behavior at a Minnesota flight school raised suspicions of possible terrorist intent. He had paid at least $6,800 in cash for lessons on how to fly Boeing 747 jetliners despite meager flying experience and had been unusually curious about whether doors could be opened during a flight. French intelligence had said he was a fundamentalist with extremist political beliefs who had attended a radical mosque in London, had been to Pakistan and perhaps Afghanistan, and had recruited young men to fight in Chechnya....

The most relevant portion of FISA authorizes a search (or a wiretap) of a suspected foreign terrorist only if there is "probable cause" to believe that he or she is an "agent of a foreign power," defined to include a foreign national who is "a member" of "a group engaged in international terrorism or activities in preparation therefor." Evidence of terrorist intent alone is not enough; "membership" in some particular international terrorist "group" must be shown.

The now-famous Rowley argued passionately in her 13-page, May 21 letter to FBI Director Robert S. Mueller III that the Moussaoui evidence had "certainly established" all this. Officials at FBI headquarters disagree. And they, unlike Rowley, have the perspective that comes from regular dealings with the secret court that handles applications for FISA warrants. (Rowley also accuses headquarters officials of being unhelpful and obstructionist. Perhaps they were. But that doesn't make her right on the legal issue.) Some FISA experts outside government say that probable cause was lacking. Another, Washington lawyer Lawrence Robbins, says that if the above-listed evidence was all the FBI had, "it's not a slam dunk for either side."

To submit a warrant application, the attorney general would have had to certify personally that the FBI had probable cause. The conventional wisdom that the FBI's refusal to ask the attorney general to do that reflects a dysfunctional, risk-averse culture should lead us to wonder how the culture got that way.

Among the reasons: The FBI had recently (and unfairly) been savaged for supposed racial profiling in its Wen Ho Lee investigation, including its unsuccessful efforts to persuade the Justice Department to seek a FISA warrant. In addition, a well-regarded FBI supervisor (Michael Resnick) had seen his career blighted in the fall of 2000 when the FISA court had barred him from submitting any more warrant applications and had read the riot act to then-Attorney General Janet Reno about perceived improprieties in Resnick's past submissions. The details are murky. But whatever Resnick did was apparently motivated only by a desire to thwart terrorism. Had you been his successor at FBI headquarters, how eager would you have been to go forward less than a year later with a legally shaky warrant application? And to risk getting trashed in the media and Congress as a racial profiler?

The bottom line is that if you think that Moussaoui's computer should have been searched before September 11 -- and want to be sure that the next Moussaoui's computer is searched -- fixing the FBI won't do the trick. We will also need to fix the law.

For hard-core civil libertarians the idea that the FBI would take the requirements of probable cause stringently, or be cautious to avoid media criticism for overreaching in a perceived area of racial profiling is hard to swallow. But, it may very well turn out to be the case - law enforcement is not permitted to abuse the law in this country with impunity. I'm going to back to my original instincts on this issue - that some legal reform is required to make sure a case like Moussaoui's computer is a slam-dunk. While this doesn't justify sweeping reforms on other matters, it may make sense to replace the "agent of a foreign power" language of FISA with something that more appropriate in a era where the primary threats are from loose, trans-national networks rather than foreign nations.