UQ Wire: THE CRIMES OF 9/11 (Part 4)

MORE QUESTIONS FOR A GRAND JURY:

In early summer 2001, US officials received numerous warnings from domestic and foreign intelligence agencies that al-Qaeda terrorists planned “spectacular” air attacks on prominent landmarks inside the US. At that time, CIA Director George Tenet became “frantic with worry”, according to subordinates. During the first week in July – as President Bush prepared to fly to Genoa to attend the G-8 summit -- the US armed forces and federal agencies, including the Pentagon’s Central European Command and the FAA, were placed on the highest terrorism alert.

But, nobody bothered to let the American people know about any of this.

Then, as quietly as it had been raised, the federal terrorism alert was stood-down after the summit concluded on the 22nd, and Bush safely returned to the US. The President then retired to his well-guarded Crawford, Texas ranch where he received his August 6 briefing about the al-Qaeda attack plans.

Ranking national security officials were already acutely aware that a major al-Qaeda operation was in the works. On July 5, a high-level meeting to discuss the terrorist threat had been convened in the White House situation room. The conference was attended by the heads of all major national security agencies. [Time, 8/4/02 ] Richard Clarke, NSC counterterrorism chief, directed every counter-terrorist office to a high level alert.

By early August, however, all of these emergency measures are no longer in effect. [CNN, 3/02 , Washington Post, 5/17/02 ] A briefing prepared for senior US government officials in July had warned:

"Based on a review of all-source reporting over the last five months, we believe that [bin Laden] will launch a significant terrorist attack against US and/or Israeli interests in the coming weeks. The attack will be spectacular and designed to inflict mass casualties against US facilities or interests. Attack preparations have been made. Attack will occur with little or no warning." [Prepared Statement of Eleanor Hill, Staff Director, Joint House-Senate inquiry, September 18, 2002 http://intelligence.senate.gov/0209hrg/020918/hill.pdf ]

As the clock counted down to 9/11, intelligence information given to senior officials showed that US intelligence continued to expect an imminent al-Qaeda attack on US interests. [Senate Intelligence Committee, 9/18/02 , Washington Post, 9/19/02 ]

On August 6, George W. Bush was briefed by his national security advisor, Condaleeza Rice at the President’s Crawford, Texas ranch. The ominous title of that still-classified briefing read to him was "Bin Laden Determined to Strike in US". The memo focused on the possibility of terrorist attacks inside the US. [Newsweek, 5/27/02 , New York Times, 5/15/02 , Die Zeit, 10/1/02 ] The White House denied the President had warnings about terrorist attacks inside the US, keeping that briefing secret until Congressional investigators learned about it in May of the following year. The White House has fiercely resisted all subsequent efforts to obtain a copy of that memo or to release its contents. A Congressional report later describes it as based on the memo discussed in July by Clarke and other high-level national security decision-makers. The Senate Intelligence Committee summarized that memo, as follows:

"[M]embers of al-Qaeda, including some US citizens, had resided in or traveled to the US for years and that the group apparently maintained a support structure here. The report cited uncorroborated information obtained in 1998 that Osam bin Laden wanted to hijack airplanes to gain the release of US-held extremists; FBI judgments about patterns of activity consistent with preparations for hijackings or other types of attacks and the number of bin Laden-related investigations underway; as well as information acquired in May 2001 that indicated a group of bin Laden supporters was planning attacks in the US with explosives." [Senate Intelligence Committee, 9/18/02 ].

Meanwhile, that August, FBI investigators in New York and Minneapolis were trying desperately to gather sufficient evidence to obtain FISA warrants to track down four al-Qaeda members known to be at large in the country and information for a warrant to open the computer files of a fifth suspect, Zacarias Moussaoui, who had been arrested at a Norman Oklahoma flight school. FBI requests that summer to the CIA for information contained in the Agency’s files were repeatedly stonewalled.

On August 23 2001, the CIA finally informed the Bureau that two intending terrorists– Nawaf al-Hazmi and Khalid al-Mihdhar -- had entered the US in January 2000 – information it had in its files for some 17 months. As they tried to get evidence for warrants, FBI agents in New York and Minneapolis were particularly in need of what

the CIA knew about these two al-Qaeda members. In refusing to turn over information the previous month, a CIA officer told FBI investigators attached to the FBI’s New York National Security office he would not turn over “operational” information. In a now famous e-mail message, one of the New York Bureau investigators remarked about the seeming meltdown in US counterterrorism, “Someone is going to die”. Colleen Rowley, a lawyer in the Minneapolis FBI office frustrated after the CIA refused to provide materials supporting warrants to open Moussaoui’s laptop -- and by the obstruction of FBI headquarters – later conjectured that her own investigation was being sabotaged by “moles”.

For reasons that have not yet been satisfactorily explained, the federal terrorism alert was relaxed after Bush received his briefing. Five weeks later, 19 hijackers armed with box cutters were able to board four commercial airliners, flying them into the World Trade Center, the Pentagon, and into a crash site in western Pennsylvania.

Three thousand people died in what was possibly, at high levels of the US Government, the most widely anticipated mass murder in American history.

Why did the President and his senior national security officials behave as they did in the face of these warnings? Was US intelligence simply deceived into believing that any al-Qaeda attack would occur abroad, as has been claimed, or was there an unstated reason officials took the enormous risks they did? What were top

Administration officials thinking?

"They Had It Covered." - Anonymous Aide to NSC Counterterrorism Chief, Richard Clarke

What could have been the line of reasoning behind the terrorism alert stand-down in the weeks before 9/11? The final report of the Congressional Joint Inquiry, released in September 2003, casts some new light on these key questions. [See, Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001 (“Congressional 9/11 report”)( S. Rept. 107-351 and H. Rept. 107-792): http://www.governmentguide.com/govsite.adp?bread=*Main&url=

http://www.governmentguide.com/ams/clickThruRedirect.adp?55076483,16920155,

http://www.gpoaccess.gov/serialset/creports/911.html

The 27-page gap in the record -- a section on foreign intelligence matters that remains classified at the insistence of the Bush Administration -- is most notable, along with numerous shorter sections in the report censored by the White House. Almost immediately, leaks revealed that the main subject of the censor was the role of Saudi Arabia -- nearly everyone, including the Saudis, assumed the material was redacted to protect the deteriorating reputation of members of the Royal family who had been tied to terrorist finance. The fact that this section was censored, of course, reinforced those suspicions. The official reason given to censor the report -- which was ultimately not challenged by committee leaders, who could have on their own authority declassified every word -- was the standard disclaimer of protection of US intelligence methods and sources. It turns out, ironically,the official explanation is closer to the truth and tells us more about why 9/11 actually happened.

A close reading of the final Joint Inquiry report, along with other authoritative sources reveals that vulnerabilities to catastrophic terrorist attack were clearly understood by top national security advisors at that time. Yet, decision-makers thought that these risks were manageable.

Congressional findings show that much of the problem with US counterterrorism stemmed from the CIA’s vigorous efforts to withhold information from the FBI. This was portrayed in the familiar terms of bureaucratic "turf wars" between the two agencies. But, the issue was actually more complex. What really stands out is that both the CIA and the FBI went to sometimes irrational lengths to evade warrant requirements, and the oversight by the Courts and Congress that goes along with them. Avoiding warrants in counterterrorism operations against al-Qaeda, intelligence officers took unacceptable risks in carrying out surveillance through other methods, particularly the consensual monitoring of unreliable informants within al-Qaeda and the foreign intelligence agencies tasked to watch them. Right up to 9/11, the CIA pursued its prime directive of protecting the Agency's "methods and sources" from disclosure, even if this obviously raised the risks of a catastrophic terrorist attack.

The Joint Inquiry found that for 18 months leading up to the attacks, the CIA withheld specific information from the FBI and military intelligence that pinpointed the identities of the principal 9/11 conspirators. [9/11 Report, Sec. 1, p. 12, Finding 5b]. From January 2000 until August 23, 2001, the CIA did not reveal visa information and photos of attendees at the Kuala Lumpur al-Qaeda meeting to FBI counterterrorism investigators. Even when confronted by angry FBI agents at an interagency meeting on June 11, 2001, the CIA refused to pass key information about al-Mihdhar to the FBI [Ibid. p. 14]. This long delay and obstruction of FBI investigations allowed this key al-Qaeda operative to renew his visa at the US Embassy in Jeddah two days later, and then to reenter the US on July 4, the same day Mohamed Atta flew to Spain for a final set of meetings with senior al-Qaeda backers. Finally, 15 days later, Mohamed Atta, who had traveled in and out of the US several times during 2001, reentered this country for the final time.

This withholding of evidence left the US singularly reliant on the Agency’s own counterterrorism operations against al-Qaeda, and these operations were carried out largely in secret without consulting other parts of the government. In the latter part of the 1990s, the CIA reorganized itself with a far greater

emphasis on counterterrorism (CT). While the rest of the Agency shrank during the decade following the end of the Cold War, the budget and staff devoted to CT doubled and then redoubled. In 1998,George Tenet declared “The Plan” -- the war plan to kill Bin Laden [see, generally, 9/11 Report, Sec. 1, pp. 40-41].

The expansion and consolidation of CT into the hands of the CIA was hardly proactive, and it was not based on any record of singular success in preventing terrorist attacks abroad, which is the Agency’s jurisdiction. The Plan followed a string of deadly terrorist operations against American targets, coming on the heels of the 1998 East Africa embassy bombings. Al-Qaeda preparations for the 9/11 attacks actually began two years earlier [ AP, 9/22/2003, John Solomon, “Terrorist Says 9/11 Plot Began in '96: Mastermind Reveals bin Laden Revised Several Plans”]. In 1995 and 1996, al-Qaeda was implicated in bombings of US targets inside Saudi Arabia, particularly the destruction of US barracks at Kobhar Towers. Key elements of the 9/11 attack – an attack on multiple targets in the US using hijacked aircraft -- dates from the 1994 “Bojinka” plot hatched in the Philippines by Ramzi Yousef, a Bin Laden associate, who was also convicted of building the truck bomb that blew up inside a parking garage of the World Trade Center in February, 1993.

An integral part of Tenet’s Plan, and one of its greatest weaknesses as noted in the Congressional findings, was the CIA’s reliance on foreign intelligence agencies for much of its coverage of terrorist organizations. [See, Part 1, Finding 11, pp. 90-95 ]

The Saudis and Pakistanis had long before proven unreliable partners in the battle against terrorism. Even the Israeli Mossad seems to have been late and surprisingly ineffectual in its warnings and assistance in coverage of the 9/11 hijackers. It is reported that barely three weeks before the attacks, Mossad informed the US about 19 identified al-Qaeda terrorists, the same day the CIA issued its own first warning to other federal agencies about the al-Qaeda operatives. That day, the US immigration authorities watchlisted Khalid al-Mihdhar, Nawaf al-Hazmi and his brother Salim, along with Mohamed Atta.

Within days after the attacks, Fox News carried a four-part series of reports that Israeli intelligence operatives had been shadowing some of the 9/11 hijackers inside the US. http://100777.com/node/view/180 In April 2001,the so-called Israeli Art Students ring was broken up by US counterintelligence (CI), and dozens of Mossad operatives were deported after a federal task force found these individuals had attempted to enter secure US Government facilities. This US action may have indeed hindered Mossad operations watching al-Qaeda operatives in the period leading up to 9/11. Nonetheless, on August 23, Israel seemingly prompted the US government to take its only visible step against the al-Qaeda hijacking cells. Why the Bush Administration then took the minimalist action of watchlisting the four suspects identified -- which would have merely stopped their departure from the US -- has not been explained. Strangely, these reports were never followed-up on by Fox or any major US news organization. Similar stories have, however, appeared in European papers. Die Zeit, a conservative German daily, reported:

“The Mossad also had its sights on Atta's accomplice Khalid al-Midhar, with whom the CIA was also familiar, but allowed to run free. The Mossad apparently warned their American counterparts several times about the terrorists, especially about al-Midhar. The American government later admitted that they had received such warnings prior to September 11. But at most that there were attacks planned against American installations outside the United States." [Die Zeit, October 14, 2002, Oliver Schrom, "Next Door to Mohammed Atta: Israeli Agents were living in Florida and tailing the future death pilots - until their cover was blown."]

Furthermore, the Israelis may have taken the only active measures to try to physically prevent the hijackings on 9/11. There have been credible reports that a "former" Israeli intelligence officer was killed by the hijackers aboard American Airlines Flight 11 that Mohamed Atta piloted into the North Tower of the World Trade Center. Four hijackers got out of their seats and stabbed or shot passenger Daniel Lewin, who once belonged to the Sayeret Matkal, a counter-terrorist unit of the Israeli Defense Force. He was sitting in front of one of the three hijackers in business class. An early FAA memo says Lewin was shot [ABC News, 7/18/02 , UPI, 3/6/02 , Washington Post, 3/2/02 ]

The Congressional report reveals little about CIA activities from August 23 until September 11 that might have contributed to the FBI’s belated manhunt or prevented the hijackings. We do know that the FBI investigation was effectively paralyzed, having run into “The Wall”, very serious operational problems later portrayed as “misunderstandings” about warrant requirements. The President’s inner circle seems to have been operating under certain misassumptions of its own about al-Qaeda, and this may have contributed to decisions to relax terrorism alert status and not to issue a public warning:

Thus, the Bush White House did nothing publicly in response to the crisis, even in the last days as the FBI was unable to turn up the known suspects. No doubt, ranking officials when they are compelled to talk about it, will say in their own defense that they had been told al-Qaeda network’s global finances and operations were so throroughly “mapped out” that US intelligence continued to control terrorist cells known to be inside the country, despite numerous warnings that suicide air attacks were imminent. That assumption, of course, proved dead wrong.

More than two years after the attack, important details continue to emerge that fill in the gaps in the picture of the bungled counterterrorism operation that led to the death of thousands that day in September 2001. The Associated Press revealed on October 7 2003 that five years earlier the FBI’s Phoenix office ran a joint operation with Israeli intelligence targeting Hamas. This FBI sting operation, run as a joint operation with Israel’s Shin Bet during Middle East peace talks, funneled money from the United States to see if these funds would go to finance Palestinian terrorist operations. The AP report, written by John Solomon, states:

“One of the FBI's key operatives, who had a falling out with the bureau, provided an account of the operation at a friend's closed immigration court proceeding. AP obtained and reviewed the court documents.

“Arizona businessman Harry Ellen testified he permitted the FBI to bug his home, car and office, allowed his Muslim foundation's activities in the Gaza Strip to be monitored by agents, arranged a peace meeting between major Palestinian activists and gained personal access to Yasser Arafat during more than four years of cooperation with the FBI.

“Ellen's FBI handler in the late 1990s was Kenneth Williams, an agent who later became famous for writing a pre-Sept. 11 memo to FBI headquarters warning there were Arab pilots training at U.S. flight schools. The warning went unheeded.” [AP, 10/07/2003, John Solomon, “FBI Secretly Sent Money to Hamas”]

It is significant that the anti-Hamas operation run by Williams apparently did not work as planned, and top US officials today deny any knowledge of it at the time.

“Clinton's national security adviser, Sandy Berger, said in an interview that the White House wasn't informed of the FBI activities. "We were not aware of any such operation," Berger said.

“Clinton's anti-terror czar, Richard Clarke, said he too was unaware of the operation. "I never heard of it, but it's creative," he said.

“Israel's Shin Bet intelligence service declined to discuss the specific operation but acknowledged Tuesday the country has worked with American intelligence on Hamas financial investigations.” [Id.]

While top officials interviewed deny knowledge, it is highly unlikely that the Phoenix operation was carried out without high-level FBI and DOJ authorization. Since passage of the 1996 Antiterrorism and Effective Death Penalty Act, it has been a felony to provide material support to terrorist activities. The Congressional 9/11 report alludes to this:

“If an FBI source was involved in illegal funding or in terrorist training, the agent responsible for the source had to obtain approval from FBI Headquarters and the Department of Justice to allow the source to engage in illegal activity. According to FBI personnel, this was a difficult process that sometimes took as long as six months.” [9/11 Report, Section 1, Finding 11, page 94]

Williams reportedly hoped that Mr. Ellen would lead the FBI to major financiers of the armed Palestinian Intifada, but Ellen is said to have refused. Had the operation succeeded in the way Williams hoped, it would surely have scuttled the Wye Accords signed in October 1998. That Administration, and some within the next, were deeply concerned that the FBI was being used by elements within Israeli intelligence hostile to an accommodation with Yassar Arafat’s Palestinian Authority. That operation against Hamas supporters, and another being run out of the Bureau’s Chicago office, was shut down during the Clinton years. This led to accusations that Clinton’s Administration had hamstrung CT operations, and was therefore primarily responsible for the 9/11 “intelligence failure”. There were even accusations, which have not been substantiated, that the then Chief Judge of the Foreign Intelligence Surveillance court had improperly suppressed warrant applications sought against Arab terrorists.

The unpleasant political overtones and fallout from this episode would help to explain why Williams’ later Phoenix memo about al-Qaeda flight training was seemingly ignored at FBI headquarters two years later.

The FBI’s Phoenix Hamas operation also points to the methods that FBI agents employed in dealing with their own informants who had multiple encounters with the September 11 hijackers in the months leading up to the attacks, and may indicate why there is no record the Bureau sought FISA warrants to surveil al-Hazmi and the other al-Qaeda cell members.

“Ellen testified that Williams told him he hoped the transfer would lead to more money exchanges through terror groups but Ellen refused to earmark money for terrorism. He testified he later learned another FBI operative had offered Hamas and Palestinian figures larger amounts for terrorist attacks.

“The court testimony shows Ellen allowed his home, office and car in Arizona to be bugged so the FBI could listen, without a warrant, to visiting Palestinians or Americans if they discussed illegal activity.

“The FBI said it commonly uses such recordings. ‘ Consensual monitoring does not require a warrant. In cases where the FBI conducts consensual monitoring, the one party is aware he is being recorded,’ it said.” [ emphasis added]

A particularly important point here about the Phoenix operation was the FBI’s use of willing informants for coverage of targets that would otherwise require investigators to obtain a FISA warrant. Given the political sensitivity of spying on foreign governments, and their suspected agents in the US, it is not surprising that warrantless investigations would be a tempting investigative method in national security cases.

Consensual monitoring eliminates what some FBI investigators perceived as the sometimes cumbersome process of applying through Headquarters for warrants from the Foreign Intelligence Surveillance Court. In the most sensitive cases, it eliminated the possibility of a security breach in the warrant applications process. It also eliminates much of the paper trail. Consensual monitoring was actually encouraged by the Department of Justice. In January 1999, DOJ did away with a uniform central authorization requirement for all such operations that had been in place since 1972.

Unfortunately, not having a warrant can also greatly complicate matters, as it led to more joint sting operations in conjunction with foreign intelligence agencies, and raised the risks of catastrophic operational failure.

Investigators know, of course, about the potential problems with the consensual monitoring approach. In counterterrorism cases, there is always the danger that informants prove to be unreliable or, worse, double agents of hostile groups. Another problem is achieving adequate coverage of suspected terrorists and their communications through consensual monitoring, alone. The danger in this method is that unless the suspect is in the physical presence of a willing informant 24-hours a day, the terrorist can easily evade surveillance, and contact is lost. One can backstop this kind of surveillance by coordination with a cooperative foreign intelligence agency, but this is fraught with its own perils, as the FBI learned in the Phoenix Operation.

It appears that some variation of an unwarranted surveillance operation may have been employed late in the summer of 2001 with the hijackers. If two of these problems occurred together, it might have been days or weeks before the CIA and/or FBI realized that they had lost control over the surveillance operation. If the relationship with the “friendly” foreign intelligence partner is ambivalent, and everyone isn’t really taking with each other, then safeguards are likely to be inadequate. That would explain the frantic search, constrained by a lack of warrants and electronic coverage, that occurred in the last few weeks before 9/11. A full, warranted surveillance operation should have, instead, been in place for safety reasons.

When dealing with intending suicide terrorists bent on “spectacular” attacks with mass casualties, warrants are essential. For federal agents to have acted without warrants in monitoring the 9/11 hijackers was manifestly reckless in the extreme.

For the Bush Administration to have allowed this operation to continue as long as it did was criminally negligent.

The Congressional Inquiry report found that the 9/11 hijackers had many recorded contacts with FBI sources and informants found to be linked to Saudi intelligence. The report identified a total of 14 persons who had at some point been the subject of FBI scrutiny, “four of whom were the focus of active FBI investigations, while the hijackers were in the United States.” [9/11 Report, Sec. II, p. 169]

The most significant of these contacts, Omar al-Bayoumi, is described in the 9/11 Report in terms that unmistakably identify him as a probable Saudi intelligence agent who had been known to FBI counterterrorism since September 1998 [See, Ibid., pp 172-175]. According to the narrative, shortly after al-Mihdhar and al-Hazmi arrived in Los Angeles the pair met al-Bayoumi at a restaurant. Hours earlier, al-Bayoumi had been in a closed-door meeting at the Saudi Consulate. After what seemed to investigators to be a pre-arranged meeting, the pair followed al-Bayoumi to San Diego, where “they stayed at al-Bayoumi’s apartment for several days, until he was able to find them an apartment. Al-Bayoumi co-signed their lease and paid their first month’s rent and security deposit.” [Ibid. 173] Al-Bayoumi then threw them a party at which he handed the pair off to another member of the Islamic Center of San Diego, the brother of whom was also the subject of a counterterrorism investigation.

Al-Bayoumi worked for the Saudi civil aviation authority. According to the 9/11 report, “Despite the fact that he was a student, al-Bayoumi had access to seemingly unlimited funding from Saudi Arabia.” For instance, he delivered $400,000 from Saudi Arabia for a Kurdish mosque in San Diego. A reliable source to the San Diego FBI office said he “thought al-Bayoumi must be an intelligence officer for Saudi Arabia or another foreign power.” [Id. 174] In July 1999, “for reasons that remain unclear”, the FBI closed its counterterrorism file on al-Bayoumi. [Id.] A half page of material in the narrative about al-Bayoumi was redacted from the 9/11 report at the insistence of the White House. About the same amount of material was as well withheld in the next section dealing with another Saudi, Osama Bassnan, described as a close al-Bayoumi associate and long-time FBI informant who later shepherded the pair. [pp. 175-177]. “Bassnan” kept an eye on things, as for several months he “lived in the apartment complex in San Diego across the street from al-Hazmi and al-Mihdhar” [176]

The report next discusses a third individual described as an “Imam” [cleric] who in 2001 housed al-Hazmi and newly-arrived Hani Hanjour [the presumed pilot of AA Flight 77, brought in after al-Mihdhar’s flying skills proved inadequate]. Al-Mihdhar left the US in July 2000, traveling back and forth from Afghanistan, Saudi Arabia and Yemen, where he may have had a role in the October 2000 bombing of the USS Cole. After that, Khalid al-Mihdhar spent an extended period in Saudi Arabia, where he is said to have been a principal coordinator of the 15 non-pilot “muscle operatives who arrived in the spring and summer of 2001. Like al-Bayoumi and Bassnan, the Imam was the subject of an earlier FBI counterrorism investigation, which was dropped two months after the arrival of al-Hazmi and al-Mihdhar [Id., 179]

Indeed, the hijackers of Flight 77 appear to have had a series of handlers who display traits as both likely Saudi agents and a history as FBI informants. These Saudis may have indeed been providing coverage in a “consensual monitoring” operation. There would not be a record of FISA warrants, in such an operation, particularly if US intelligence had also managed to turn one or more of the principal hijackers.

However, the FBI and/or CIA would still have been required to obtain high-level authorization to provide any sort of material assistance to intending terrorists, even if they were handled indirectly through a foreign intelligence service “cutout.” There is no record of such authorization turned over to the Inquiry.

Any White House official who was aware of an unauthorized monitoring operation of the 9/11 hijackers inside the US committed several major felony violations.

If information about such an operation was later withheld from Congress, that was yet another set of felonies.

The Administration has vigorously resisted Congressional efforts to subpoena one of the FBI’s Saudi informants. In its findings, the Congressional Inquiry complained, (presumably referring to al-Bayoumi):

“[T]he Administration has to date objected to the Inquiry’s efforts to interview the informant . . . the Administration also would not agree to allow the FBI to serve a Committee subpoena and deposition notice on the informant . . . [who] declined to respond to those interrogatories and has indicated that, if subpoenaed, the informant would request a grant of immunity.” [Sec. 1, p 19]

Years before most of the 9/11 “martyrdom” operatives started entering the US, al-Qaeda operatives inside this country and around the world were indeed under surveillance by the CIA and several domestic and foreign intelligence agencies.

In 1994, an al-Qaeda communications system started operation in Denver that linked operatives from London to Saudi Arabia -- these calls were almost immediately intercepted by the NSA. At about that time, Osama bin Laden began using satellite phones. US intelligence also intercepted calls from these phones, which had been provided by the same Islamic activist who had set up a pirate international phone system that piggybacked onto MCI Denver 1-800 lines originating in Denver. That system was shut down after a series of post-911 raids of Islamic activitists in Colorado and Washington State. Those lines had been tapped for years.

In 1999, calls from an al-Qaeda logistics center in Yemen mentioned the name “Nawaf al-Hazmi” was recorded by the NSA. This call led US intelligence to follow two al-Qaeda operatives to a summit meeting in Kuala Lumpur, Malaysia. That summit was attended by chief terrorist planners along with three of the 9/11 hijackers, and their primary financial link in Hamburg, Mohamed Atta’s roommate, Ramzi bin al-Shibh. These were some of the most notable successes of worldwide electronic surveillance against al-Qaeda that, in part, produced a sense of false self-confidence by some in western intelligence. This false optimism may have prompted a fatal, high-risk monitoring operation of the 9/11 hijackers inside the US.

With the cooperation of a half-dozen allied intelligence agencies, the CIA then photographed and followed the participants, two of whom, Nawaf al-Hazmi and Khalid al-Mihdhar, who entered the US on January 15 2000. Almost immediately, the pair were taken under the wing of persons tied to Saudi intelligence, which provided money, introductions and other assistance as they trained for their mission. The hijackers behaved as if they had immunity – taking unauthorized flight training, overstaying visas, working as pilot trainees, and at times boasting to strangers and acquaintances about their lethal mission – acting as indeed they knew they were being protected.

This ongoing, multi-agency, multinational surveillance operation explains why the CIA’s Counterterrorism Center (CTC) commanders seem to have reacted almost indifferently – and were sometimes overtly obstructive -- when FBI field offices, acting on their own leads, sought CIA assistance to investigate al-Qaeda terrorists detected inside the US by several Bureau offices. The fact that the CIA operation against al-Qaeda had been going on for so many years also, to some degree, accounts for the similar lack of alarm and inaction shown by the Bush Administration when warnings of an impending attack poured in during the summer of 2001.

The lead hijackers of AA Flight 77 that smashed into the Pentagon were observed by the CIA as they traveled to and from the Kuala Lumpur planning summit where the 9/11 attacks were discussed. Flight 77 hijackers Nawaf al-Hazmi and Khalid al-Mihdhar reentered the US on January 15, 2000.

CIA headquarters says it first learned on March 5 2000 that al-Hazmi had entered the US – the Agency claims it then informally notified the FBI liaison officer at the CTC – but, neither the Agency nor the FBI sought a warrant to track him down. That failure to seek warrants -- and to provide information sought by FBI field investigators in 2001 -- was no mere technicality. It meant that US law enforcement and Congressional overseers weren't notified about the al-Qaeda suicide hijacking threat until it was too late for them to do anything to prevent the attacks.

The FBI has maintained that it could not obtain warrants because of legal difficulties created by the so-called Wall, but that excuse does not stand up under scrutiny. Even in the face of accusations of extreme incompetence within the Bureau, FBI brass stoically continued to maintain that confusion and bad decisions by middle managers within the Bureau prevented it from effectively disrupting al-Qaeda’s attack plans before 9/11.

Spokesmen for both the FBI and CIA also repeatedly blamed the Wall -- coda for shifting blame to the Foreign Intelligence court and its legal strictures that both agencies hated -- for what they have claimed was a near total communications breakdown within the intelligence community during 2001.

To underscore that point about incompetence among some of its middle managers who dealt with FISA matters, the FBI dutifully leaked documents that purported to show unlawful domestic surveillance of al-Qaeda had stemmed from a series of mistakes and technical glitches. For example, an October 9 2002 AP wire article, “FBI Memo Details Pre-9/11 Sloppiness” reported:

“FBI agents illegally videotaped suspects, interceptede-mails without court permission and recorded the wrong phoneconversations during sensitive terrorism and espionage investigations,according to an internal memorandum detailing serious lapses inside theFBI more than a year before the Sept. 11 attacks.

“The blunders - roughly 15 over the first three months of 2000 - werenever made public but garnered the attention of the "highest levels ofmanagement" inside FBI, said the memo written by senior bureau lawyersand obtained by The Associated Press.”

The FBI even claimed it destroyed surveillance data it intercepted in early 2000 from al-Qaeda suspects inside the US. An FBI e-mail dated April 5 references the destruction of a large batch of electronic surveillance. On March 16, the Bureau employed its “Carnivore” Internet wiretap system to intercept electronic communications at an Internet Service Provider (ISP) site near Denver. The electronic “take” from that wiretap, if we are to believe that FBI memo later released in a court case brought by a privacy group, was – it appears -- erased.

According to an FBI memo, dated April 5 2000, Carnivore malfunctioned, scooping up large amounts of innocent e-mail traffic from other customers of an unspecified Denver area ISP. The FBI technician was so upset that he deleted all the data. This account seems implausible on its face, and was likely a clumsy attempt at disinformation with a touch of character assassination thrown in for good measure. Indeed, a May 29, 2002 article written by Dan Eggan of The Washington Post quoted an FBI spokesman as denying the Carnivore intercepts were actually destroyed, as the memo indicates. According to Eggan:

“FBI spokesman John Collingwood said yesterday that the case was a rare mistake that resulted from technical problems encountered by an Internet service provider, not by the FBI. . .

“The memo goes on to say that "the FBI technical person was apparently so upset that he destroyed all the E-Mail take, including the take" from the target. Collingwood, the FBI spokesman, said that the memo is incorrect and that the e-mails gathered in the operation were kept and remain under seal in the court that administers secret wiretaps.

“The memo makes clear that the Justice Department's Office of Intelligence Policy and Review (OIPR), which oversees FISA warrants, was enraged by the blunders in the case, in part because the Justice Department office was allegedly not told that Carnivore was considered experimental at the time.”

While Eggan’s account differs from the memo in an important detail, both point the finger directly at Marion “Spike” Bowman, then the FBI’s associate general counsel for national security, who headed the FBI headquarters unit tracking bin Laden. Curiously, the publicly released copy of the Carnivore memo redacts all names except Bowman’s, who became the focus of Congressional criticism of the FBI for its alleged mishandling of al-Qaeda surveillance operations. He also took most of the heat after Colleen Rowley complained about the watering down of her FISA warrant application to open Zacarias Moussaiou’s computer. The Post account continues in this same vein, identifying Bowman’s office as having spiked the so-called “Phoenix Memo”:

“The probe involved the FBI team that investigates suspected operatives of the al Qaeda network. It is known as the Usama bin Laden, or UBL, unit for the agency's spelling of the al Qaeda leader's name. The same unit has come under congressional scrutiny in recent weeks over its role in shelving a July 2001 memo from Phoenix FBI agent Kenneth Williams, who had suggested that al Qaeda members might be infiltrating aviation schools and requested that the FBI canvass them for Middle Easterners.

“The memo makes clear that the Justice Department's Office of Intelligence Policy and Review (OIPR), which oversees FISA warrants, was enraged by the blunders in the case, in part because the Justice Department office was allegedly not told that Carnivore was considered experimental at the time.

“The memo also refers to an electronic communication outlining other "FISA mistakes" and alleges "a pattern of occurrences which indicate to OIPR an inability on the part of the FBI to manage its FISAs."

The Congressional 9/11 report found that Mr. Bowman’s office was the nexus of a number of critical errors, and that as a result FBI Headquarters was operating in the dark about al-Qaeda operations. The compartmentalized nature of CT operations indeed meant that various FBI offices lacked coordination:

“Thus, during the summer of 2001 – a time when the Intelligence Community was on the highest state of alert, disparate parts of the FBI had information about Zacarias Moussaoui – as suspected suicide hijacker, a Pheonix field office agent’s suspicions about radical fundamentalists engaging in flight training, and the entry into the United States of Nawaf al-Hazmi and Khalid al-Mihdhar, who would become two of the September 11 hijackers. The FBI field office agents in Minneapolis who were investigating Moussaoui knew nothing about the Phoenix communication or al-Hazmi and al-Mihdhar had entered the United States knew nothing about the other events of the summer. And, finally, the Chief of the RFU at FBI Headquarters, which has handled both the Moussaoui investigation and the Phoenix communication, acknowledged in testimony to the Joint Inquiry on September 24, 2001, that no one at FBI Headquarters connected those events.” [9/11 Report, Sec. 1, Finding 5d, pg. 25]

The Congressional Inquiry got the wrong man. The Inquiry was right in pointing out the FBI RFU did not “connect the dots” about the al-Qaeda operation. But, that wasn’t Spike Bowman’s job – instead, by design and policy, the functional role of coordinating CT intelligence, analysis and operations shifted during the 1990s to the CIA, where it is vested in the Director’s Counter-Terrorism Center, located at CIA headquarters in Langley. The true “intelligence failure” was, in fact, the repeated and willful refusal of CTC management to handover information to the FBI.

Indeed, we know that in mid-August agents at the Minneapolis FBI office requested information but CTC failed to turn over information in its files about the Kuala Lumpur meeting that would have enabled an application for a FISA warrant to investigate Moussaoui.

Similarly, CTC had in July also refused the New York FBI National Security office’s emphatic demands for information about al-Hazmi and al-Mihdhar’s travels and connections to other participants at the al-Qaeda planning summit, who included Atta’s roommate and Moussaoui’s money man in Hamburg, Ramzi bin al-Shibh. Even at that late date in summer 2001, the FBI says it could have rounded up most of the hijackers, if the Bureau had then been able to obtain warrants to conduct a full national security field investigation.

Yet, there was little or no attention paid either by Congress or the major media to this apparent obstruction of FBI investigators by the CIA. These problems were almost always presented to the public as internal FBI screwups.

The biggest hole in the CIA's story indeed seems to have gotten the least public scrutiny. The Joint Committee appeared to accept at face value, and without much question, CTC Chief Cofer Black’s explanation that in March 2000, CIA personnel were distracted and overlooked cables informing headquarters about US al-Hazmi's entry on January 15.

Black testified, “[A]s I showed the [CTC personnel] the cable from March 5 – just the look on their face told me everything I needed to know. They just hadn’t seen it. It passed them by.” [9/11 report, Ibid., Part 1, p. 51] Rumblings that some Inquiry staffers thought CTC Chief was prone to "dissemble" got little play in the press, except that George Tenet reacted sharply to that report, which likely chilled any follow-up.

Black also claimed that a second cable, received the following day, from another CIA overseas post expressing interest in the report that al-Hazmi had arrived, was similarly disregarded without even being read at CTC. [Id.] A review of the record shows some serious logical and evidentiary problems with that account:

[CIA claims it belatedly learned one or (by other accounts) both arrived in the US. The 9/11 report concludes, “In sum, prior to September 11, the Intelligence Community’s analytic components failed to understand the collective significance of the information in their possession.” (9/11 Report, Sec. 1, p. 69) This is misleading, and there are certain inconsistencies that cast serious doubt on the CIA’s claim that CTC employees didn’t realize the significance what it knew about the pair.]

In early 2002, Yemen attempted to capture members of a prominent al-Qaeda family. When soldiers cornered Sameer al-Hada, he reportedly killed himself with a hand grenade. That grisly incident received some attention in the international media. However, a press release issued by the The Yemen Embassy in Washington revealed substantial information about the electronic surveillance that revealed Khalid al-Midhar and Nawaf al-Hazmi to US intelligence.

That report contains significant details that has not been publicly released by US official and major media outlet is reprinted below:

****INSERT****

Yemen Cracks Major Terrorist Super Cell
[13-FEB-02]

SAMEER al-Hada, a Yemeni student and suspected al-Qaida courier, blew himself up with a hand grenade Wednesday outside the Yemeni capital, Sana’a, as security forces tried to pull him in for questioning. U.S. intelligence officials, speaking on condition of anonymity, said that intercepts of al-Qaida communications indicate that the al-Hada family phone was used to relay messages both to the embassy bombers and the Sept. 11 hijackers. The information tends to corroborate the belief that the al-Hada clan served as a “super cell” for al-Qaida in Yemen, providing key communications support and personnel for its jihad against the United States.

U.S. officials say they can link the clan to the Sept. 11 attacks, the August 1998 bombing of U.S. embassies in Kenya and Tanzania and the October 2000 bombing attack on the destroyer USS Cole in Aden harbor.

The United States previously has accused the al-Qaida network, led by exiled Saudi Osama bin Laden, of all three attacks. The phone in question is listed to Ahmad Mohammad ali al-Hada, the patriarch of the clan and a man described by U.S. officials as “a prominent al-Qaida member who is believed to have been involved in the Cole bombing.”

He remains at large and is being sought by U.S. and Yemeni authorities. These officials added that they believe other family members are intimately involved in the al-Qaida war against America. Another of Ahmed’s sons is thought to have died in Afghanistan during training in 1992.

A son-in-law is named as one of the Sept. 11 hijackers: Khalid al-Midhar, allegedly the ringleader of the al-Qaida cell that flew American Airlines Flight 77 into the Pentagon. Another son-in-law, Mustafa Abdulkader, is among the 16 men listed as wanted by the FBI in its terror alert earlier this week. He, too, remains at large.

The central position the al-Hada family allegedly occupied in al-Qaida’s Yemen network came to light Wednesday after 25-year-old Sameer al-Hada, 25, killed himself while being chased by Yemeni security forces.

He had been stopped for questioning as he was trying to flee from Yemen. The Yemen Observer, a local newspaper, reported Thursday that a gunfight ensued before Sameer was surrounded by police. He then threatened police with a hand grenade. The grenade exploded in his hand, killing him instantly. No police were injured in the incident, which happened in a suburb of the Yemeni capital, San’a, during the early evening. U.S. officials speculate that Sameer likely committed suicide to avoid revealing more about his family’s role in al-Qaida communications.

For several years, U.S. investigators and prosecutors involved with the investigation of the East Africa embassy bombings have referred to a “Yemen switchboard” for al-Qaida, something U.S. officials now confirm was actually the phone of Ahmad al-Hada. Transcripts from the New York trial of four men eventually convicted of bombing the two U.S. embassies in Africa showed that al-Hada’s number — 011-967-1-200-578 — figured prominently in al-Qaida operations.

The transcript indicates that bin Laden, or at least someone using his satellite phone, as well as bin Laden deputy Mohammed Atef and several of the embassy bombers, would call Ahmad al-Hada’s number in Yemen to relay information.

Among the numerous references in the trial record regarding the use of Yemen as a terrorist switchboard are: · In the days before the August 1998 embassy bombings,

12 phone calls were placed by the bombing co-conspirators — including

two calls using bin Laden’s own satellite phone — to a phone number in Yemen.

Two of the calls, the prosecutors say, were placed by one of the bombers in the minutes before he and others left a safe house in suburban Nairobi to blow up the embassy in the Kenyan capital. The information was available in late 1998.

Other entries in the trial record show that an August 1998 Scotland Yard search of a London apartment used by bin Laden lieutenant Khalid al-Fawwaz turned up mobile phone records from Kenya showing numerous calls from al-Fawwaz to the same numbers in Yemen during 1995-96.

The embassy bombing trial led to the convictions of four men on murder charges in the two bombings on Aug. 7, 1998, which killed 224 people — 213 in Nairobi, including 12 Americans, and 11 people in Tanzania. More than 4,500 people suffered injuries in the attacks.

[emphases added]

**** END INSERT ****

The concentration of electronic surveillance on al-Qaeda is a reason to disbelieve assertions that CIA was in the dark for at least a year about the presence in the US of these 9/11 hijackers. Throughout the entire period leading up to 9/11, al-Qaeda’s communications network -- both abroad and within the US – was monitored through redundant surveillance.

For at least seven years prior to 9/11, US intelligence tapped al-Qaeda communications all over the world and inside the US. But, according to the official account, nobody within the US intelligence community “connected the dots” during the 18 months that terrorists were indeed roaming around the U.S. It is claimed that neither the CIA nor the FBI carried out any action to monitor or locate the 9/11 hijackers until the last week in August, 2001.

By an odd coincidence, on March 11, 2000, six days after the CIA claims it first learned that al-Hazmi had entered the US, the FBI began to wiretap alleged al-Qaeda communications going through a telecommunications site located in the Denver area.

The Washington Post and an October 2002 Congressional finding reported that wiretap was a failure. The operation is described in tragic-comedy terms as yet another in a long line of bungled al-Qaeda surveillance by the FBI. But, those reports do not pass the sniff test.

A Scripps-Howard report dated November 12, 2001 fills in more of the details and gives the historical context that was missing in other reports about the target of the FBI’S Denver intercept. Some of MCI’s older international 1-800 lines originate in nearby Colorado Springs, home of the NORAD command center. MCI's fiber optic network, itself, piggybacks on lines laid by DOD. That Scripps-Howard wire story, written by Lou Kilzer, [reproduced, below] indicates that al-Qaeda was running a toll-free 800 service out of Denver. That line was reportedly set up in 1994 by Khallid al-Fawazz, bin Laden’s associate in London as a "secure" line to al-Qaeda operatives in the UK and Saudi Arabia. Likely, it was that line (or a successor web-based system that tapped into MCI’s backbone) the reportedly aborted Carnivore operation monitored. The Advise and Reformation Council (ARC), a British-based Islamic group, was run by Khalid al Fawwaz, who also provided UBL with the "secure" satellite phones that the NSA and its British partner bugged for years.

Fawwaz appears to have had a singular role in facilitating the surveillance of bin Laden’s operatives. It was Fawwaz who helped to equip al-Qaeda with much of its communications and computers. Prior to the East Africa embassy bombings, al Fawwaz was in frequent communication with the "logistics center" in Yemen run by Al-Mihdhar's father-in-law. When the CIA followed al-Midhar and al-Hazmi to the January 2000 Kuala Lumpur summit, it was on the basis of a tap US intelligence had placed on the phone of Al-Hazmi’s father-in-law, a system al Fawwaz may also have provided.

Like many other al-Qaeda figures, Fawwaz’s role in the murky underworld of Saudi opposition politics is not entirely clear. In the early 1990s, Fawwaz emerged as one of the highest profile Bin Laden supporters in the west. He set up a media information office in London and headed the "Advice and Reform Committee." [sometimes referred to as “Advice and Reformation Committee”, or “ARC”] The London office acted as a publicist for bin Laden while it reportedly provide cover in support of al-Qaeda’s militant activities. [See, Usama Bin Laden's al-Qaida: Profile of a Terrorist

Network , by Yonah Alexander and Michael S. Swetnam. NY: Transnational Publishers, 2001] Throughout the 1990s, ARC was the central hub in the UK for recruitment, dispersement of funds, and the procurement of equipment for al Qaeda operations. [ See, Stephen Engelberg, "One Man and a Global Web of Violence," New York Times, January 14, 2001, pp. 1 and 12-13; and United States v. Usama bin Laden et al., S (7) 98 Cr. 1023

(LBS) , pp. 4 and 11-12.]

Western surveillance of ARC, along with the bugging of bin-Laden’s satphones, was revealed during US Attorney for the Eastern District of New York’s prosecution of al-Qaeda operatives for the 1998 East Africa embassy bombings. Fawwaz’s London office also served as a communications relay center that collected reports from various al-Qaeda cells, including the Kenyan cell, forwarding them to bin Laden. Fawwaz was accused of establishing business fronts in Kenya, particularly Asma Limited, used by the bombers. [United States v. Usama bin Laden et al., S (7) 98 Cr. 1023 (LBS), pp. 8 and 18; and Phil Hirschkorn and Deborah Feyerick, "Embassy Bombings Trial Witness says Bin Laden Wanted to Buy Uranium," CNN, February 7, 2001. ] He was arrested by British authorities on September 28, 1998 in London and successfully fought extradition to the United States where he faced capital murder, terrorism and conspiracy charges. Indeed, the UK provided him with a form of protective custody in exchange for what appears to have been years of cooperation.

Given the horrible events of 9/11, and the political fallout, one doubts

that any federal agency would come forward on its own to volunteer that the Flight 77 hijackers were the immediate target of consensual monitoring operation conducted with the Saudis. It is also unlikely that the FBI would of its own initiative reveal the target of its March 16, 2000 Carnivore operation was Al-Hazmi. However, we begin to see a larger picture here, even if that particular tap was not directly prompted by the CIA headquarters March 5 discovery of al-Hazmi’s entry, information it claims was shared with the FBI.

***** INSERT BEGINS *****

Published by the Corpus Christi Caller-Times.
Monday, November 12, 2001

Secret phone system operated by an al-Qaeda cell out of Denver

The 800 number was used to thwart Saudi attempts to intercept calls by the group to Britain

By Lou Kilzer
Scripps Howard News Service
DENVER

- One of Osama bin Laden's key al-Qaeda cells used a phone system in Denver for secret communications between Saudi Arabia and Britain in the 1990s, according to a bin Laden confidant based in London.

The system, using an MCI 800 number, was established to thwart Saudi attempts to intercept messages, said Mohammed al-Massari.

It incorporated toll-free lines established for U.S. servicemen during the Gulf War, al-Massari said. The calls were placed from Saudi Arabia and then transferred from Denver to Britain.

His estranged wife, former Denver resident Lujain al-Iman, who also lives in London, confirmed his account. And Denver's FBI office said it is aware of the al-Qaeda connection to Denver, but would not elaborate.

Some still in Denver

Al-Iman, 35, said she set up the Denver-based telephone system at her husband's request in 1994. She said she does not know how

long the London al-Qaeda cell - the Advice and Reformation Committee - used the phone account.

Some of those involved with the telephone setup are still in the Denver area, al-Iman said, although she declined to provide names.

Al-Massari, 55, a theoretical physicist and former Saudi diplomat, was posted to Denver for 2 1/2 years as an educational attache working with students. But his militant opposition to the House of Saud got him recalled to Saudi Arabia in late 1986, where he taught at King Saud University in Riyadh.

Al-Massari, during a phone interview from London, said it took six weeks to get the telephone lines to work. Bin Laden personally called him to thank him and to exchange small talk after the system was activated, he said.

The Advice and Reformation Committee was created as a propaganda organ by bin Laden in 1994. Its former leader, Khalid al Fawwaz, is under indictment for conspiring to kill Americans between 1993 and 1998.

Bin Laden connections

Al Fawwaz purchased the satellite phone that bin Laden later used to send him instructions concerning the bombing of two U.S. embassies in Africa in 1998, according to testimony at the trial of al-Qaeda members accused in the bombings.

Al Fawwaz was a key connection between bin Laden and al-Massari and his wife, al-Iman.

Al-Iman said she knew Al Fawwaz worked for bin Laden when she set up the Denver phone lines, but she did not suspect that Al Fawwaz might be involved in terror.

Finding a wife

Though he may have started out a human rights activist, al-Massari has become increasingly militant in his support of bin Laden's terrorism. He has publicly endorsed bin Laden's actions, including his declaration of war on the United States and its citizens.

The Saudi government has pressed President Bush to use his influence on British Prime Minister Tony Blair to have al-Massari deported to Saudi Arabia, according to news reports.

Al-Iman grew up in Denver and, at 18, married her first Arabic husband. The marriage lasted a year. She married her second husband a year later, in 1987. That marriage lasted three years and produced a son, Ali Atif.

In early 1991, al-Massari - then living back in Saudi Arabia - called old friends in Denver to inquire about finding a wife. Though he was 20 years her senior, al-Iman agreed to the union and they were married that year.

Al-Massari and some like-minded men formed the Committee for Defense of Legitimate Rights in 1993, and met with several American diplomats.

Soon after that, he was ensnared in a Saudi dragnet and imprisoned for six months. He then escaped to Yemen and made his way to London, she said.

Al-Iman had given birth to their son and remained in Saudi Arabia. When she

tried to return to Denver, authorities said her oldest son could not go with her.

Back in Denver, al-Iman established the Action Committee for the Rights of Middle East Minorities to work in tandem with her husband's committee in London. That's when al-Massari asked her to set up the 800 phone system, she said.

***** INSERT ENDS *****

It is not entirely clear that a FISA warrant actually resulted in the aborted use of the FBI’S Carnivore software in Denver on March 16. Documents that appear to indicate this were leaked and released by the Bureau after 9/11. However, it is particularly odd that a FOIA request would reveal that a recent FBI national security intercept operation was botched due to a technical problem. This event, if it occurred, would normally be treated as exempt from FOIA release under the national security exemption. It is also worth noting the e-mail indicates the intelligence “take” was not forwarded to analysts at the FBI’s Radical Fundamentalist Unit (RFU) in Washington, DC, which seemingly requested that tap.

The only thing that is clear from the April 5 2000 memo [reproduced below] and the Post report [reproduced below] that followed on May 29, 2002 is that Spike Bowman was almost singularly criticized for the alleged technical screw-up. The Carnivore incident also appears to have been referenced in an October 9, 2002 AP story [reproduced below] after a House committee examined an April 2000 FBI legal office memo outlining problems with electronic surveillance. A Congressman is quoted as remarking, in a familiar phrase, the FBI showed egregious “incompetence.”

**** INSERT ****

[ IMAGE OF 04/05/00 FBI MEMO AT LINK, BELOW]
EPIC Carnivore FOIA Page

washingtonpost.com

'Carnivore' Glitches Blamed for FBI Woes

Problems With E-Mail Surveillance Program Led to Mishandling of al Qaeda Probe in 2000, Memo Says

By Dan Eggen

Washington Post Staff Writer

Wednesday, May 29, 2002; Page A07

The FBI mishandled a surveillance operation involving Osama bin Laden's terror network two years ago because of technical problems with the controversial Carnivore e-mail program, part of a "pattern" indicating that the FBI was unable to manage its intelligence wiretaps, according to an internal bureau memorandum released yesterday.

An attempt in March 2000 to secretly monitor the e-mail of an unidentified suspect went awry when the Carnivore program retrieved communications from other parties as well, according to the memo, which was obtained by the Electronic Privacy Information Center (EPIC), a Washington-based advocacy group opposed to the technology. Carnivore, which has been renamed DCS1000, is a computer program that allows investigators to capture e-mails sent to and from criminal and terrorist suspects. But the newly released memo indicates that, in at least one case, the program also retrieved e-mails from innocent people not involved in the investigation.

The incident joined a rapidly growing list of alleged FBI mistakes made before Sept. 11, including evidence that FBI headquarters bungled the quest for a search warrant in the Zacarias Moussaoui case and ignored pointed warnings from an Arizona field agent about terrorists in flight training. It also invited fresh criticism of Carnivore, a program already derided by civil libertarians, and cast doubt on repeated FBI assurances that the program provides a "surgical" ability to grab targeted e-mails out of cyberspace.

"Carnivore is a powerful but clumsy tool that endangers the privacy of innocent American citizens," said David Sobel, general counsel for EPIC, which obtained the memo through a lawsuit filed under the Freedom of Information Act. "We have now learned that its imprecision can also jeopardize important investigations, including those involving terrorism."

FBI spokesman John Collingwood said yesterday that the case was a rare mistake that resulted from technical problems encountered by an Internet service provider, not by the FBI.

"This is an uncommon instance where a surveillance tool, despite being tested and employed with the assistance of a service provider, did not collect information as intended," Collingwood said.

The one-page memo at issue, dated April 5, 2000, and sent via e-mail, was intended to outline the problems that had arisen in a Denver terrorism case for Marion "Spike" Bowman, the FBI's associate general counsel for national security. Yesterday, Bowman declined to comment and authorities declined to identify the memo's author or provide further details about the case.

The probe involved the FBI team that investigates suspected operatives of the al Qaeda network. It is known as the Usama bin Laden, or UBL, unit for the agency's spelling of the al Qaeda leader's name. The same unit has come under congressional scrutiny in recent weeks over its role in shelving a July 2001 memo from Phoenix FBI agent Kenneth Williams, who had suggested that al Qaeda members might be infiltrating aviation schools and requested that the FBI canvass them for Middle Easterners.

In the latest case to come to light, the UBL unit acquired in March 2000 a warrant under the Foreign Intelligence Surveillance Act (FISA) for use against a suspect in an investigation based in Denver, according to the memo released yesterday.

The names of the suspect and all others in the memo, except for Bowman's, were redacted from the copy provided to EPIC.

The memo says that on March 16, 2000, the Carnivore "software was turned on and did not work properly," capturing e-mails involving both the target and others unconnected to the case. The memo goes on to say that "the FBI technical person was apparently so upset that he destroyed all the E-Mail take, including the take" from the target. Collingwood, the FBI spokesman, said that the memo is incorrect and that the e-mails gathered in the operation were kept and remain under seal in the court that administers secret wiretaps. [emphasis added]

The memo makes clear that the Justice Department's Office of Intelligence Policy and Review (OIPR), which oversees FISA warrants, was enraged by the blunders in the case, in part because the Justice Department office was allegedly not told that Carnivore was considered experimental at the time. Referring to an official at OIPR, the memo's author says: "[To] state that she is unhappy with [the International Terrorism Operations Section] and the UBL Unit would be an understatement of incredible proportions."

The memo also refers to an electronic communication outlining other "FISA mistakes" and alleges "a pattern of occurrences which indicate to OIPR an inability on the part of the FBI to manage its FISAs." [emphasis added]

One law enforcement official said last night that the passage may be referring to the ongoing problems with the affidavits submitted by the FBI to the Foreign Intelligence Surveillance Court, which approves surveillance requests. The court barred one FBI agent from submitting affidavits in late 2000 because of misrepresentations, and a broad review found similar problems in other cases, sources said.

The FBI has been using the Carnivore system for almost three years, subject to court authorization, to tap into Internet communications, to identify e-mail writers online and to record the contents of messages. It does so by capturing "packets" of information containing those details.

Civil liberties advocates and some lawmakers have expressed concerns because the system could scan private communication on the legal activities of people other than those under investigation. But agency officials have said repeatedly in response to criticism that the system poses no threat to privacy because it can take narrow, targeted slices of communication.

That's what FBI officials told Congress in the summer of 2000, only a few months after the botched surveillance effort in the Denver case. Shortly before the Sept. 11 terrorist attacks, an FBI spokesman said the agency rarely used Carnivore because Internet service providers had become so adept at meeting the technical demands of approved surveillance of suspects' Internet traffic. The agency said it had used Carnivore only twice from January through mid- August .

Since then, the agency has repeatedly declined to discuss the number of times the system has been used in recent months, saying that the records of Carnivore's use are exempt from disclosure laws [emphases added.]

Staff writer Robert O'Harrow Jr. contributed to this report.

### ### ###

By Ted Bridis Associated Press Writer Wednesday, October 9, 2002; 4:50 PM

WASHINGTON -- FBI agents illegally videotaped suspects, intercepted e-mails without court permission and recorded the wrong phone conversations during sensitive terrorism and espionage investigations, according to an internal memorandum detailing serious lapses inside the FBI more than a year before the Sept. 11 attacks.

The blunders - roughly 15 over the first three months of 2000 – were never made public but garnered the attention of the "highest levels of management" inside FBI, said the memo written by senior bureau lawyers and obtained by The Associated Press.

Lawmakers reviewing FBI missteps preceding the terror attacks expressed surprise Wednesday at the extent of errors detailed in the memo, which focused on sensitive cases requiring warrants under the Foreign Intelligence Surveillance Act.

The mistakes extend beyond those criticized in a rare public decision this summer by the secretive U.S. court that oversees the surveillance warrants.

That court admonished the FBI for providing inaccurate information in warrant applications.

The April 2000 memo - marked "immediate" and classified as "secret" -describes different problems from those cited by the court. It describes agents conducting unauthorized searches, writing warrants with wrong addresses and allowing "overruns" of electronic surveillance operations beyond their legal deadline.

"The level of incompetence here is egregious," said Rep. William D. Delahunt, D-Mass., a member of the House Judiciary Committee who obtained the memo from the FBI and provided it to AP.[...]

[Fair use doctrine applies to all excerpts above]

**** INSERT ENDS ****

A key element of the April 5, 2000 FBI memo is controverted by Eggan’s Washington Post report. This sheds some doubt on the veracity of the FBI document and the Bureau's motives in releasing the memo when and in the fashion it did. Further, the memo not made public until months after 9/11 under the guise of a FOIA release that came at a time the FBI was under intense Congressional scrutiny. It is significant that, according to the Post of March 29 2002, these taps were not in fact erased, but the records of the Carnivore intercepts were instead delivered to the Foreign Intelligence Surveillance Court in Washington, where they are supposedly preserved today under lock and key. Why the memo indicates the records were erased has not been publicly explained.

Circumstantially, the indicated timing of the FBI’s wiretap seems to buttress the CIA's claim it notified the Bureau's CTC liaison that al-Hazmi’s arrival was reported by a foreign post cable on March 5.

The timing of the Carnivore intercept may just be an interesting coincidence – it appears to have been technically flawed in some way that might make forensic analysis of the contents difficult. There is no evidence that the Congressional Inquiry took any particular notice of that event. If, indeed, the Carnivore intercept was directed at al-Hazmi, it sorely undermines the FBI’s version of events -- that the Bureau knew nothing and, thus, did nothing until late summer 2001 to pursue key al-Qaeda operative roaming around loose inside the United States. At the very least, it shows the extraordinary lengths the Bureau went to as it tried to contain damage after 9/11, and to pin responsibility for a long line of FISA problems on a handful of hapless middle managers.

Since 1978, FISA warrants have been mandatory whenever the USG wants to surveil a terrorist or foreign agent inside the US. While FISA warrants were good for only 45 days before the Patriot Act extended that, there was no limit on renewals. But, renewals had to be (and still must be) approved by the FISC. [See Appendix A, FISA Act]

There may indeed be a record of FISA obtained communications about al-Hazmi held under guard at the FISC. If there is, that information was withheld from Congressional investigators, as it does not appear on the record. The data may have been so corrupted with large amounts of extraneous material that it could not be easily identified. If this was done intentionally, withholding of evidence from an investigative body would amount to a crime under the federal obstruction of justice statute.

If, on the other hand, there were no warrants, but electronic or physical surveillance was actually carrried out inside the US against the 9/11 hijackers – even if this revealed nothing about their plans – federal officers committed another set of crimes, including violations of the 1978 Foreign Intelligence Surveillance Act.

Furthermore, any assistance to or facilitation of the hijackers without the express authorization of the Attorney General and Director of the Federal Bureau of Investigation – even if there was consensual monitoring -- would be a major felony punishable under the1996 Antiterrorism and Effective Death Penalty Act and under criminal conspiracy statutes.

There is no public record of or reference to applications for FISA warrant applications until late in the summer of 2001 to locate or observe the specific, named hijackers members who Congress identified. Nevertheless, the Congressional Joint report reveals there were numerous FISA warrants for other al-Qaeda-related investigations ongoing during 2000 and 2001. A significant number of these warrants were actually allowed to expire in 2000, while the Bureau was embroiled in a scandal involving falsification of warrant applications to the Foreign Intelligence court. [Sec. 1, Finding 12, p. 96] The Inquiry received conflicting information about the number of al-Qaeda-related FISA investigations ongoing in 2001. That ranged from zero cases reported by an FBI manager to a number that, curiously, remained classified at page 97 in the public version of the 9/11 report.

The OIPR official who could recall active FISA cases in 2001, nonetheless, stated that two-thirds of these orders were allowed to expire that year [Ibid., p. 97]

The congressional Joint Inquiry staff director concluded in her October 8, 2002 statement that the inadequate joint CIA-FBI efforts directed at al-Hazmi and al-Mihdhar following the Malaysia meeting were not actually FISA matters at all, although they had been treated by both agencies as if they were. Similarly, according to Ms. Hill, the investigative problems with “the Wall” during the summer of 2001, FISA requirements did not, in fact, apply to the investigation being conducted at that time. [http://www.fas.org/irp/congress/2002_hr/100802hill.html ]

There is a discernable implication that if there had been any FISA warrants contemplated, they would have been among those derailed in early 2000. It can also be inferred that earlier warrants likely were allowed to expire. Indeed, the record of the Congressional Inquiry contains no evidence that a FISA warrant was ever issued specifically for the 9/11 hijackers. Had there been such a warrant request by the FBI or CIA, no one could plausibly claim that the hijackers entered the US undetected or without interest. Similarly, there is no record of any authorization for consensual monitoring involving the provision of material support to the hijackers. The same implications would apply to such authorizations as do for FISA warrants.

The best evidence indicates, therefore, that US intelligence indeed knew about al-Hazmi and al-Midhar a long time before 9/11, and US intelligence in conjunction with foreign allied intelligence agencies “ran” them after their entry. In mid-summer, 2001 US intelligence chiefs seem to become aware that something had gone alarmingly wrong with the operation. Nonetheless, the efforts of FBI field office investigators to obtain warrants to locate suspected terrorists appear to have been thwarted. Along the way to 9/11, US officials obstructed justice and acted with reckless disregard for public safety.

Going back to early 1999, there was a US intelligence tap on the phone of al-Midhar's father in law who ran the al-Qaeda "switchboard" in Yemen picked up reference to “Nawaf al-Midhar”. One account identified that as an FBI wiretap, but communications abroad would not have required a warrant. However, credible reports place the pair in San Diego that December. [Newsweek, "The Hijackers We Let Escape" , June 5, 2002]. If that were indeed the case that the pair were in the US at the time their call to Yemen were intercepted, the FBI would have needed a FISA warrant to monitor that call. That would explain why the whereabouts of the pair at the end of 1999 has been obscured. As a result of intercepts from that tap, the pair was tracked as they traveled in December to Malaysia, where they were observed meeting with top-level al-Qaeda operations directors.

The CIA employed eight foreign stations and a half dozen allied intelligence agencies to surveil that summit. The pair returned to the US on the same January 15 2000 flight from Bangkok after accompanying a top al-Qaeda planner, "Khallad" bin Attash, to another country following the meeting. The CIA claims it didn't know about al-Midhar's return until March 5, and wasn't aware that al-Mihdhar was on the same flight until August 2001, even though the Agency had a copy of his passport with a valid US multiple-entry visa, and says it searched in Thailand for weeks for him after the January meeting.

In view of the Joint Inquiry revelations about the pair's central role in leading US intelligence to the Malaysia surveillance operation, the initial Agency assertions that the pair weren't important enough to keep track of just do not wash. They were very important indeed - they had led US intelligence to a major al-Qaeda meeting, where reportedly the Cole attack and the 9/11 operation were both planned. In addition, the pair was observed as they traveled together on their way to Thailand after the meeting. It simply strains credibility that the CIA lost track of the pair, and didn't think to look for them inside the US. But, let's put that aside for a moment.

Assume the basic account provided by the US officials is correct. When the CIA became aware (it is claimed) on March 5 of al-Hazmi's arrival, the FBI liaison at CTC was notified. That certainly shows that the event was not simply overlooked by the CIA. Given what was known by both agencies about the pair and events surrounding the al-Qaeda summit, a FISA warrant should have been sought to track down the pair. There is no question about that. For the officers to have failed to send this information up the chain of command would have been dereliction of duty of the most severe sort. What then happened to that information, after it reached the Directors' offices, is a different story which has not been told to Congress and the American people.

Furthermore, CIA Director Tenet and then FBI Director Louis Freeh were both briefed on more than one occasion about the Kuala Lumpur summit. Yet, both agencies claim no subsequent action was taken to locate the al-Qaeda operatives known to be inside the US. This was not just an omission by overworked middle managers, the failure to seek a warrant -- or to renew that application (if indeed the March 16 Carnivore incident is related) is a serious violation of law. Any subsequent unwarranted electronic surveillance would have been a felony violation of 50 USC, Chapt 36, Sec.1809, which carries a potential 5-year term of imprisonment.

In the alternative, any unauthorized joint operation involving the knowing provision of material support – by either US or foreign intelligence -- to the 9/11 hijackers is a felony violation of 8 USC Sec. 2339B the 1996 AEDPA antiterrorism law, punishable by 10 years imprisonment.

Finally, it is possible that, instead of using FISA warrants, the White House and agencies lied to Congress and withheld release of documents concerning authorized joint surveillance operation of the 9/11 hijackers carried out with one or more foreign agencies. Such a misrepresentation would constitute Obstruction of Justice under 18 USC Sec. 1505, Obstruction of Agency Investigations and of Congressional Investigations, a crime which carries a maximum five years in prison for each count.

What is beyond dispute is that high national security officials committed cardinal errors in judgment, if indeed any of this can be described as an innocent error, with the most terrible consequences. A court of law would in all probability find any of the actions described above unreasonable in the extreme, and likely find the officials responsible liable for civil damages and for negligent homicide along with related crimes under the NY state criminal code.

The whole immense weight of the 3,000 dead on 9/11 should – quite rightly -- come falling down on the heads of those officials who are responsible for the 9/11 dereliction of duty, but havelied to cover up their negligence.

© Copyright 2003 All rights reserved. Mark G. Levey

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