Enemies: A History of the FBI (69 page)

He wanted a FISA warrant from the Foreign Intelligence Surveillance Court to search Moussaoui’s laptop computer. But he could not get the request past the lawyers at headquarters without hard evidence that the suspect was a terrorist.

“We need a link to al-Qaeda,” he said.

She went running down the hall looking for help and finding little; it was 4:30
P.M.
on a Friday in August. Over the next three weeks, she contacted everyone she knew at the FBI, the CIA, and the NSA, relaying Samit’s warnings. “I was trying and trying and trying to get something,” she said. “They weren’t making the link. There was a breakdown in communication.” It was one among many. Five weeks before, an FBI special agent in Phoenix, Ken Williams, had sent a report to the FBI’s Radical Fundamentalist Unit and the Osama bin Laden Unit at the Counterterrorism Division. Williams and a fellow agent, a newly hired Arabic-speaking ex-cop
named George Piro, had gathered evidence that al-Qaeda had a network of adherents at American flight schools. Williams urged a nationwide investigation. He was unsurprised when headquarters took no action; thirteen years of experience had taught him that counterintelligence and counterterrorism were “
bastard stepchildren” at the FBI. He said: “I knew that this was going to be at the bottom of the pile.”

Samit never heard about the Phoenix memo. Almost no one did. It was one among some
sixty-eight thousand counterterrorism leads awaiting action at headquarters. The Bin Laden Unit alone had taken in more than three thousand leads in the past few months; counterterrorism director Dale Watson had two analysts looking at them. The fact that terrorists were taking flying lessons went unnoticed.

Samit pleaded with the headquarters supervisors at ITOS, the International Terrorism Operations Section, which oversaw the Radical Fundamentalist and bin Laden squads. He reported over the next week that Moussaoui was “preparing for a terrorist attack.” He got nowhere. Samit’s immediate superior in Minneapolis, FBI special agent Greg Jones, begged headquarters to listen. He said he wanted to keep the suspect from “
flying an airplane into the World Trade Center.”

Samit later called the conduct of FBI headquarters in the summer of 2001 “
criminal negligence.” Kiser said she would be haunted all her life by the thought that “those idiots at ITOS didn’t let anybody know.”

She received a despondent e-mail from Samit on the afternoon of Monday, September 10, 2001. He reported that ITOS had rejected his request for a search warrant. He was instructed that “FBI does not have a dog in this fight,” and he was told to let the immigration service handle the case. “At this point I am so desperate to get into his computer, I’ll take anything,” he wrote to Kiser. “I am not optimistic. Thanks for your help and assistance. Take care, Harry.”

Kiser responded almost immediately, at 3:45
P.M.
“You fought the good fight. God help us all if the next terrorist incident involves the same type of plane. Take care, Cathy.”

“R
OUND UP THE EVILDOERS
”

The Bureau had gone through the summer of 2001 without a leader. Five weeks passed after Freeh’s formal resignation before President Bush announced
Robert Mueller’s nomination in the Rose Garden of the White House on July 5. “The next ten years will bring more forms of crime, new threats of terror from beyond our borders and within them,” the president had said. “The Bureau must secure its rightful place as the premier counterespionage and counterterrorist organization in the United States.”

The Senate took two months to confirm Mueller. On August 2, the day he won a unanimous vote of approval, he underwent prostate cancer surgery. Another month passed before he took office on Tuesday, September 4. That same day, the National Security Council’s Richard Clarke warned his superior, Condoleezza Rice, that an attack by al-Qaeda could come without warning in the not-too-distant future. He went unheeded. He did not alert Mueller. He said: “
I didn’t think the FBI would know whether or not there was anything going on in the United States by al Qaeda.”

The new director’s first week at the FBI was a blur of briefings on everything from the wreckage left by Robert Hanssen to the procedures for evacuating Washington in the event of a nuclear attack. On the morning of September 11, Mueller was being brought up to date on the
Cole
investigation. Like almost everyone else in America, he saw the disasters on television. Al-Qaeda had turned airplanes into guided missiles.

Within three hours, the FBI’s counterterrorism director had telephoned Clarke in the White House Situation Room. “
We got the passenger manifests from the airlines,” Dale Watson said. “We recognize some names, Dick. They’re al-Qaeda.” Clarke replied: “How the fuck did they get on board?” The question would take two years to answer.

For the next three years, Mueller would rise before dawn, read through the overnight reports of threats and portents, arrive at headquarters for a 7:00
A.M.
counterterrorism briefing, confer with the attorney general at 7:30, travel in an armored limousine to the White House, and talk to the president at 8:30. The subject was almost always the same. As Bush recounted in his memoir, “
I told Bob that I wanted the Bureau to adopt a wartime mentality … Bob affirmed: ‘That’s our new mission, preventing attacks.’ ”

Mueller was now in charge of the biggest investigation in the history of civilization. Within forty-eight hours, he had four thousand special agents running down leads in the United States, twenty legal attachés working with foreign law enforcement agencies overseas, thrice-daily conference calls with all fifty-six field offices, hundreds of legal subpoenas, and at least thirty emergency search warrants approved by the Foreign Intelligence
Surveillance Court. All the FBI could do was reconstruct a global crime scene and regroup for the next attack.

Mueller clearly did not yet command and control what the FBI knew about the threat. On September 14, he said publicly: “The fact that there were a number of individuals that happened to have received training at flight schools here is news, quite obviously. If we had understood that to be the case, we would have—perhaps one could have averted this.”

That day, Congress authorized the president to use “all necessary and appropriate force” against the terrorists. The FBI was about to become one of those forces.

Waves of fear lashed at the foundations of the United States. Every ringing telephone in Washington sounded like an air raid alert. The specter of terrorist assaults with nuclear, biological, and chemical weapons surged every day and broke and rose again each night. The CIA was convinced they were coming, at the command of al-Qaeda’s leaders, safe in their Afghan redoubts. The president wanted a shield to hold back the tide and a sword to beat back the invaders. He sent a paramilitary team to Afghanistan; American missile strikes and bombing raids were imminent.

Bush went to FBI headquarters to unveil a Most Wanted Terrorist list with twenty-two names. “
Round up the evildoers,” he told the agents assembled at the Hoover Building. “Our war is against evil.”

His vice president, Dick Cheney, knew where the weaponry was kept. He had served four years as secretary of defense under Bush’s father and as White House chief of staff under Ford. The attacks transformed him into the imperial commander of American national security.

Under Cheney’s direction, the United States moved to restore the powers of secret intelligence that had flourished for fifty-five years under J. Edgar Hoover. In public speeches, the president, the vice president, and the attorney general renewed the spirit of the Red raids. In top secret orders, they revived the techniques of surveillance that the FBI had used in the war on communism.

The FBI arrested more than 1,200 people within eight weeks of the attacks. Most were foreigners and Muslims. None, so far as could be determined, was a member of al-Qaeda. Some were beaten and abused during “their continued detention in harsh conditions of confinement,” as the Justice Department’s inspector general later reported. Hundreds were imprisoned for months under a “
hold until cleared” policy imposed on the FBI by
Attorney General Ashcroft. The policy was neither written nor debated. No one told Mueller about it. One of Ashcroft’s terrorism lawyers, aware that innocent people were imprisoned, wrote that the FBI director would “want to know that the field isn’t getting the job done … we are all getting screwed up because the Bureau’s SACs [special agents in charge] haven’t been told explicitly they must clear, or produce evidence to hold, these people and given a deadline to do it.” Mueller learned about the policy and the problems it created six months later.

Ashcroft also ordered the indefinite detention of at least seventy people, including about twenty American citizens, under the Material Witness statute, a federal law generally used in immigration proceedings. Thirty were never brought before a tribunal. Four were eventually convicted of supporting terrorism. Two were designated enemy combatants.

Ashcroft defended the nationwide dragnet in a speech to American mayors. The FBI, he said, had been called on to combat “a multinational network of evil.” He was explicit about the detention of suspected terrorists. “
Robert Kennedy’s Justice Department, it is said, would arrest mobsters for spitting on the sidewalk,” he said. The FBI would use “the same aggressive arrest and detention tactics in the war on terror. Let the terrorists among us be warned: If you overstay your visa—even by one day—we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons.”

The attorney general also spelled out some of the authorities the FBI would use under the Patriot Act, which passed the Senate that same day: capturing e-mail addresses, tapping cell phones, opening voice-mails, culling credit card and bank account numbers from the Internet. All of this would be done under law, he said, with subpoenas and search warrants.

But the Patriot Act was not enough for the White House. On October 4, Bush commanded the National Security Agency to work with the FBI in a secret program code-named Stellar Wind.

The program was ingenious. In time, Mueller would decide that it also was illegal.

The director of the National Security Agency, General Michael V. Hayden, had told tens of thousands of his officers in a video message: “
We are going to keep America free by making Americans feel safe again.” Immediately after the September 11 attacks, Hayden said, he had “
turned on the spigot of NSA reporting to FBI in, frankly, an unprecedented way.” He
and his chief of signals intelligence, Maureen Baginski, had been sending the FBI a torrent of raw data—names, telephone numbers, and e-mail addresses mined from millions of communications entering and leaving America. The intent was a hot pursuit of anyone in the United States who might be linked to al-Qaeda, under the auspices of the Foreign Intelligence Surveillance Court. The action was legal but illogical, Hayden said. “We found that we were giving them too much data in too raw form”; as a result, hundreds of FBI agents spent much of the fall of 2001 chasing thousands of false leads. “It’s the nature of intelligence that many tips lead nowhere,” he said, “but you have to go down some blind alleys to find the tips that pay off.”

The president and the vice president wanted the FBI to execute searches in secret, avoiding the strictures of the legal and constitutional standards set by the Foreign Intelligence Surveillance Court. The answer was Stellar Wind. The NSA would eavesdrop freely against Americans and aliens in the United States without probable cause or search warrants. It would mine and assay the electronic records of millions of telephone conversations—both callers and receivers—and the subject lines of e-mails, including names and Internet addresses. Then it would send the refined intelligence to the Bureau for action.

Stellar Wind resurrected Cold War tactics with twenty-first-century technology. It let the FBI work with the NSA outside of the limits of the law. As Cheney knew from his days at the White House in the wake of Watergate, the NSA and the FBI had worked that way up until 1972, when the Supreme Court unanimously outlawed warrantless wiretaps.

Stellar Wind blew past the Supreme Court on the authority of a dubious opinion sent to the White House the week that the Patriot Act became law. It came from John Yoo, a thirty-four-year-old lawyer in the Justice Department’s Office of Legal Counsel who had clerked for Justice Clarence Thomas. Yoo wrote that the Constitution’s protections against warrantless searches and seizures did not apply to military operations in the United States. The NSA was a military agency; Congress had authorized Bush to use military force; therefore he had the power to use the NSA against anyone anywhere in America.

The president was “
free from the constraints of the Fourth Amendment,” Yoo wrote. So the FBI would be free as well.

Mueller was caught between the president’s command and the law of the land. He knew it was foolhardy to flout the chief judge of the Foreign Intelligence
Surveillance Court, an irascible Texan named Royce Lamberth who had presided over secret surveillance warrants for seven years. The judge had once destroyed the career of a senior FBI counterintelligence agent who he believed had deliberately deceived him. (“
We sent a message to the FBI: You’ve got to tell the truth,” the judge said later. “What we found in the history of our country is you can’t trust these people.”)

Mueller already had won Lamberth’s trust; the judge had approved hundreds of national security surveillances, without formal hearings, at the director’s personal request. Now the president had ordered the FBI to abuse that trust, ignore the court, and abjure its authority. Very gingerly, without disclosing the underlying existence of Stellar Wind, Mueller worked out a way to signal that some of the warrants he sought were based on intelligence gleaned from the NSA. The chief judge said he and his successor made arrangements with Mueller whereby surveillances were approved “based on the oral briefing with the director of the FBI.” The arrangement, unprecedented and precarious, held for almost two years.