(Correction: Fixes first paragraph to correctly indicate nature and source of the report.)
Capitol Hill (CNSNews.com) - An unofficial 58-page report issued by three members of the Senate Judiciary Committee Tuesday details what its authors call "major failures in the FBI and the Department of Justice" during investigations under the Foreign Intelligence Surveillance Act. One senator claims those investigations, if conducted properly, should have given the bureau enough information to prevent the terrorist attacks on September 11, 2001.
"When we dug into the details of the FBI failures on the Phoenix Report from July of 2001 and the failure of the FBI to use the proper standard in seeking a warrant for Zacarias Moussaoui's computer," Sen. Arlen Specter (R-Pa.) said Tuesday, "it was evident that - had this trail been followed, along with other evidence - that the tragedy of September 11th might well have been prevented."
The Phoenix Report was a memo from an FBI agent in the Phoenix field office seeking to draw attention to Middle Eastern males enrolling in U.S. flight schools. Moussaoui was arrested while taking flight lessons in Minnesota before the 9/11 attacks. He had allegedly received money from Ramzi Bin al-Shibh, a member of the al Qaeda cell in Germany that carried out the Sept. 11 attacks who has since been taken into custody.
Bin al-Shibh had provided money to at least some of the 19 hijackers who executed the suicide hijackings. Moussaoui has admitted to being a member of al Qaeda, but he has denied participation in the 9/11 plot.
FBI agents applied for a warrant under the Foreign Intelligence Surveillance Act (FISA) to view the contents of Moussaoui's computer. Officials responsible for administering FISA warrant applications rejected the request based, the report found, on applying the wrong threshold of evidence under the law.
"These key FBI personnel didn't know the standard, didn't apply the right standard to Zacarias Moussaoui," Specter charged. "There was a veritable blueprint in his computer. Had they followed it through, 9/11 might well have been prevented."
Unlike criminal investigations, which require that the government show "probable cause" to justify the issuance of a search or surveillance warrant, espionage investigators working under FISA can obtain warrants by establishing a "suspicion on totality of the evidence," a much lower legal threshold.
Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the committee, was equally disheartened by the report's conclusions.
"What we have found, rather conclusively, and I really hate to have to say this, but we found the FBI is ill-equipped to implement FISA," Leahy alleged. "And there are not any quick fixes for this problem."
The culmination of the committee's investigation, entitled "FBI Oversight Report: FISA Implementation Failures," identified five "broader and more systemic problems" that contributed to the pre-9/11 failures:
Excessive secrecy - "The surplus of secrecy that shrouds the most basic legal and procedural aspects of FISA has hurt, not helped, implementation of FISA;"
Inadequate training - "Key FBI agents and officials were inadequately trained in important aspects of not only FISA, but also in fundamental aspects of criminal law;"
Bureaucratic bottlenecks - "FBI headquarters often not only fails to support the work of many of its best street agents, but actually sometimes hinders them in doing their jobs;"
Weak information analysis - "The FBI does not properly analyze or disseminate intelligence in its possession;" and
Stifling of internal FBI criticism - "The FBI has a deep-rooted culture of punishing those who point out problems. This has materially hurt the FBI's intelligence operations."
Specter, Leahy and Sen. Charles Grassley (R-Iowa) have introduced the Domestic Surveillance Oversight Act of 2003 in an attempt to counter the problems. The bill would require the FBI to report to Congress on any surveillance of American citizens under FISA; to disclose any FISA monitoring or surveillance of libraries; would more closely monitor the cross-application of FISA-revealed material in criminal cases; would release the case law interpretations under FISA, which are currently classified "secret;" and would disclose the secret operating rules of FISA courts to Congress.
Grassley is angered that no one at the FBI appears to have been held accountable for the mistakes made with the Phoenix Report and the Moussaoui investigation.
"There have to be consequences," Grassley argued. "This isn't about 'scapegoating' anyone. There's a difference between 'planting blame' and assigning responsibility."
The lawmakers said they do not doubt the sincerity of FBI Director Robert Mueller to reform the organization, they just wonder if the agency is too set in its ways to be reformed.
"There is a real question as to whether the FBI is capable of carrying out a counter-intelligence function to protect the citizens of the United States," Specter concluded.
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