- FBI Director Robert Mueller FBI Headquarters Washington,
D.C.
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- Dear Director Mueller:
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 I feel at this point that I have to put
my concerns in writing concerning the important topic of the FBI's response
to evidence of terrorist activity in the United States prior to September
11th. The issues are fundamentally ones of INTEGRITY and go to the heart
of the FBI's law enforcement mission and mandate. Moreover, at this critical
juncture in fashioning future policy to promote the most effective handling
of ongoing and future threats to United States citizens' security, it is
of absolute importance that an unbiased, completely accurate picture emerge
of the FBI's current investigative and management strengths and failures.
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- To get to the point, I have deep concerns that a delicate
and subtle shading/skewing of facts by you and others at the highest levels
of FBI management has occurred and is occurring. The term "cover up"
would be too strong a characterization which is why I am attempting to
carefully (and perhaps over laboriously) choose my words here. I base my
concerns on my relatively small, peripheral but unique role in the Moussaoui
investigation in the Minneapolis Division prior to, during and after September
11th and my analysis of the comments I have heard both inside the FBI (originating,
I believe, from you and other high levels of management) as well as your
Congressional testimony and public comments.
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- I feel that certain facts, including the following, have,
up to now, been omitted, downplayed, glossed over and/or mis-characterized
in an effort to avoid or minimize personal and/or institutional embarrassment
on the part of the FBI and/or perhaps even for improper political reasons:
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- 1) The Minneapolis agents who responded to the call about
Moussaoui's flight training identified him as a terrorist threat from a
very early point. The decision to take him into custody on August 15, 2001,
on the INS "overstay" charge was a deliberate one to counter
that threat and was based on the agents' reasonable suspicions. While it
can be said that Moussaoui's overstay status was fortuitous, because it
allowed for him to be taken into immediate custody and prevented him receiving
any more flight training, it was certainly not something the INS coincidentally
undertook of their own volition. I base this on the conversation I had
when the agents called me at home late on the evening Moussaoui was taken
into custody to confer and ask for legal advice about their next course
of action. The INS agents was assigned to the FBI's Joint Terrorism Task
Force and was therefore working in tandem with FBI agents.
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- 2) As the Minneapolis agents' reasonable suspicions quickly
ripened into probable cause, which, at the latest, occurred within days
of Moussaoui's arrest when the French Intelligence Service confirmed his
affiliations with radical fundamentalist Islamic groups and activities
connected to Osama Bin Laden, they became desperate to search the computer
lap top that had been taken from Moussaoui as well as conduct a more thorough
search of his personal effects. The agents in particular believed that
Moussaoui signaled he had something to hide in the way he refused to allow
them to search his computer.
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- 3) The Minneapolis agents' initial thought was to obtain
a criminal search warrant, but in order to do so, they needed to get FBI
Headquarters' (FBIHQ's) approval in order to ask for DOJ OIPR's approval
to contact the United States Attorney's Office in Minnesota. Prior to and
even after receipt of information provided by the French, FBIHQ personnel
disputed with the Minneapolis agents the existence of probable cause to
believe that a criminal violation had occurred/was occurring. As such,
FBIHQ personnel refused to contact OIPR to attempt to get the authority.
While reasonable minds may differ as to whether probable cause existed
prior to receipt of the French intelligence information, it was certainly
established after that point and became even greater with successive, more
detailed information from the French and other intelligence sources. The
two possible criminal violations initially identified by Minneapolis Agents
were violations of Title 18 United States Code Section 2332b (Acts of terrorism
transcending national boundaries, which, notably, includes "creating
a substantial risk of serious bodily injury to any other person by destroying
or damaging any structure, conveyance, or other real or personal property
within the United States or by attempting or conspiring to destroy or damage
any structure, conveyance, or other real or personal property within the
United States") and Section 32 (Destruction of aircraft or aircraft
facilities). It is important to note that the actual search warrant obtained
on September 11th was based on probable cause of a violation of Section
32.1 Notably also, the actual search warrant obtained on September 11th
did not include the French intelligence information. Therefore, the only
main difference between the information being submitted to FBIHQ from an
early date which HQ personnel continued to deem insufficient and the actual
criminal search warrant which a federal district judge signed and approved
on September 11th, was the fact that, by the time the actual warrant was
obtained, suspected terrorists were known to have highjacked planes which
they then deliberately crashed into the World Trade Center and the Pentagon.
To say then, as has been iterated numerous times, that probable cause did
not exist until after the disasterous event occurred, is really to acknowledge
that the missing piece of probable cause was only the FBI's (FBIHQ's) failure
to appreciate that such an event could occur. The probable cause did not
otherwise improve or change. When we went to the United States Attorney's
Office that morning of September 11th, in the first hour after the attack,
we used a disk containing the same information that had already been provided
to FBIHQ; then we quickly added Paragraph 19 which was the little we knew
from news reports of the actual attacks that morning. The problem with
chalking this all up to the "20-20 hindsight is perfect" problem,
(which I, as all attorneys who have been involved in deadly force training
or the defense of various lawsuits are fully appreciative of), is that
this is not a case of everyone in the FBI failing to appreciate the potential
consequences. It is obvious, from my firsthand knowledge of the events
and the detailed documentation that exists, that the agents in Minneapolis
who were closest to the action and in the best position to gauge the situation
locally, did fully appreciate the terrorist risk/danger posed by Moussaoui
and his possible co-conspirators even prior to September 11th. Even without
knowledge of the Phoenix communication (and any number of other additional
intelligence communications that FBIHQ personnel were privy to in their
central coordination roles), the Minneapolis agents appreciated the risk.
So I think it's very hard for the FBI to offer the "20-20 hindsight"
justification for its failure to act! Also intertwined with my reluctance
in this case to accept the "20-20 hindsight" rationale is first-hand
knowledge that I have of statements made on September 11th, after the first
attacks on the World Trade Center had already occurred, made telephonically
by the FBI Supervisory Special Agent (SSA) who was the one most involved
in the Moussaoui matter and who, up to that point, seemed to have been
consistently, almost deliberately thwarting the Minneapolis FBI agents'
efforts (see number 5). Even after the attacks had begun, the SSA in question
was still attempting to block the search of Moussaoui's computer, characterizing
the World Trade Center attacks as a mere coincidence with Misseapolis'
prior suspicions about Moussaoui.2
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- 4) In one of my peripheral roles on the Moussaoui matter,
I answered an e-mail message on August 22, 2001, from an attorney at the
National Security Law Unit (NSLU). Of course, with (ever important!) 20-20
hindsight, I now wish I had taken more time and care to compose my response.
When asked by NSLU for my "assessment of (our) chances of getting
a criminal warrant to search Moussaoui's computer", I answered, "Although
I think there's a decent chance of being able to get a judge to sign a
criminal search warrant, our USAO seems to have an even higher standard
much of the time, so rather than risk it, I advised that they should try
the other route." Leaked news accounts which said the Minneapolis
Legal Counsel (referring to me) concurred with the FBIHQ that probable
cause was lacking to search Moussaoui's computer are in error. (or possibly
the leak was deliberately skewed in this fashion?) What I meant by this
pithy e-mail response, was that although I thought probable cause existed
("probable cause" meaning that the proposition has to be more
likely than not, or if quantified, a 51% likelihood), I thought our United
States Attorney's Office, (for a lot of reasons including just to play
it safe) in regularly requiring much more than probable cause before approving
affidavits, (maybe, if quantified, 75%-80% probability and sometimes even
higher), and depending on the actual AUSA who would be assigned, might
turn us down. As a tactical choice, I therefore thought it would be better
to pursue the "other route" (the FISA search warrant) first,
the reason being that there is a common perception, which for lack of a
better term, I'll call the "smell test" which has arisen that
if the FBI can't do something through straight-up criminal methods, it
will then resort to using less-demanding intelligence methods. Of course
this isn't true, but I think the perception still exists. So, by this line
of reasoning, I was afraid that if we first attempted to go criminal and
failed to convinced an AUSA, we wouldn't pass the "smell test"
in subsequently seeking a FISA. I thought our best chances therefore lay
in first seeking the FISA. Both of the factors that influenced my thinking
are areas arguably in need of improvement: requiring an excessively high
standard of probable cause in terrorism cases and getting rid of the "smell
test" perception. It could even be argued that FBI agents, especially
in terrorism cases where time is of the essence, should be allowed ot go
directly to federal judges to have their probable cause reviewed for arrests
or searches without having to gain the USAO's approval.4
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- 5) The fact is that key FBIHQ personnel whose jobs it
was to assist and coordinate with field division agents on terrorism investigations
and the obtaining and use of FISA searches (and who theoretically were
privy to many more sources of intelligence information than field division
agents), continued to, almost inexplicably,5 throw up roadblocks and undermine
Minneapolis' by-now desperate efforts to obtain a FISA search warrant,
long after the French intelligence service provided its information and
probable cause became clear. HQ personnel brought up almost ridiculous
questions in their apparent efforts to undermine the probable cause.6 In
all of their conversations and correspondence, HQ personnel never disclosed
to the Minneapolis agents that the Phoenix Division had, only approximately
three weeks earlier, warned of Al Qaeda operatives in flight schools seeking
flight training for terrorist purposes!
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- Nor did FBIHQ personnel do much to disseminate the information
about Moussaoui to other appropriate intelligence/law enforcement authorities.
When, in a desperate 11th hour measure to bypass the FBIHQ roadblock, the
Minneapolis Division undertook to directly notify the CIA's Counter Terrorist
Center (CTC), FBIHQ personnel actually chastised the Minneapolis agents
for making the direct notification without their approval!
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- 6 ) Eventually on august 28, 2001, after a series of
e-mails between Minneapolis and FBIHQ, which suggest that the FBIHQ SSA
deliberately further undercut the FISA effort by not adding the further
intelligence information which he had promised to add that supported Moussaoui's
foreign power connection and making several changes in the wording of the
information that had been provided by the Minneapolis Agent, the Minneapolis
agents were notified that the NSLU Unit Chief did not think there was sufficient
evidence of Moussaoui's connection to a foreign power. Minneapolis personnel
are, to this date, unaware of the specifics of the verbal presentations
by the FBIHQ SSA to NSLU or whether anyone in NSLU ever was afforded the
opportunity to actually read for him/herself all of the information on
Moussaoui that had been gathered by the Minneapolis Division and the French
intelligence service. Obviously verbal presentations are far more susceptible
to mis-characterization and error. The e-mail communications between Minneapolis
and FBIHQ, however, speak for themselves and there are far better witnesses
than me who can provide their first hand knowledge of these events characterized
in one Minneapolis agent's e-mail as FBIHQ is "setting this up for
failure." My only comment is that the process of allowing the FBI
supervisors to make changes in affidavits is itself fundamentally wrong,
just as, in the follow-up to FBI Laboratory Whistleblower Frederic Whitehurst's
allegations, this process was revealed to be wrong in the context of writing
up laboratory results. With the Whitehurst allegations, this process of
allowing supervisors to re-write portions of laboratory reports, was found
to provide opportunities for over-zealous supervisors to skew the results
in favor of the prosecution. In the Moussaoui case, it was the opposite
-- the process allowed the Headquarters Supervisor to downplay the significance
of the information thus far collected in order to get out of the work of
having to see the FISA application through or possibly to avoid taking
what he may have perceived as an unnecessary career risk.7 I understand
that the failures of the FBIHQ personnel involved in the Moussaoui matter
are also being officially excused because they were too busy with other
investigations, the Cole bombing and other important terrorism matters,
but the Supervisor's taking of the time to read each word of the information
submitted by Minneapolis and then substitute his own choice of wording
belies to some extent the notion that he was too busy. As an FBI division
legal advisor for 12 years (and an FBI agent for over 21 years), I can
state that an affidavit is better and will tend to be more accurate when
the affiant has first hand information of all the information he/she must
attest to. Of necessity, agents must continually rely upon information
from confidential sources, third parties and other law enforcement officers
in drafting affidavits, but the repeating of information from others greatly
adds to the opportunities for factual discrepancies and errors to arise.
To the extent that we can minimize the opportunity for this type of error
to arise by simply not allowing unnecessary re-writes by supervisory staff,
it ought to be done. (I'm not talking, of course, about mere grammatical
corrections, but changes of some substance as apparently occurred with
the Moussaoui information which had to be, for lack of a better term, "filtered"
through FBIHQ before any action, whether to seek a criminal or a FISA warrant,
could be taken.) Even after September 11th, the fear was great on the part
of Minneapolis Division personnel that the same FBIHQ personnel would continue
their "filtering" with respect to the Moussaoui investigation,
and now with the added incentive of preventing their prior mistakes from
coming to light. For this reason, for weeks, Minneapolis prefaced all outgoing
communications (ECs) in the PENTTBOM investigation with a summary of the
information about Moussaoui. We just wanted to make sure the information
got to the proper prosecutive authorities and was not further suppressed!
This fear was probably irrational but was nonetheless understandable in
light of the Minneapolis agents' prior experiences and frustrations involving
FBIHQ. (The redundant preface information regarding Moussaoui on otherwise
unrelative PENTTBOM communications has ended up adding to criminal discovery
issues, but this is the reason it was done.)
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- 7) Although the last thing the FBI or the country needs
now is a witch hunt, I do find it odd that (to my knowledge) no inquiry
whatsoever was launched of the relevant FBIHQ personnel's actions a long
time ago. Despite FBI leaders' full knowledge of all the items mentioned
herein (and probably more that I'm unaware of), the SSA, his unit chief,
and other involved HQ personnel were allowed to stay in their positions
and, what's worse, occupy critical positions in the FBI's SIOC Command
Center post September 11th. (The SSA in question actually received a promotion
some months afterward!) It's true we all make mistakes and I'm not suggesting
that HQ personnel in question ought to be burned at the stake, but, we
all need to be held accountable for serious mistakes. I'm relatively certain
that if it appeared that a lowly field office agent had committed such
errors of judgment, the FBI's OPR would have been notified to investigate
and the agent would have, at the least, been quickly reassigned. I'm afraid
the FBI's failure to submit this matter to OPR (and to the IOB) gives further
impetus to the notion (raised previously by many in the FBI) of a double
standard which results in those of lower rank being investigated more aggressively
and dealt with more harshly for misconduct while the misconduct of those
at the top is often overlooked or results in minor disciplinary action.
From all appearances, this double standard may also apply between those
at FBIHQ and those in the field.
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- 8) The last official "fact" that I take issue
with is not really a fact, but an opinion, and a completely unsupported
opinion at that. In the day or two following September 11th, you, Director
Mueller, made the statement to the effect that if the FBI had only had
any advance warning of the attacks, we (meaning the FBI), may have been
able to take some action to prevent the tragedy. Fearing that this statement
could easily come back to haunt the FBI upon revelation of the information
that had been developed pre-September 11th about Moussaoui, I and others
in the Minneapolis Office, immediately sought to reach your office through
an assortment of higher level FBIHQ contacts, in order to quickly make
you aware of the background of the Moussaoui investigation and forewarn
you so that your public statements could be accordingly modified. When
such statements from you and other FBI officials continued, we thought
that somehow you had not received the message and we made further efforts.
Finally when similar comments were made weeks later, in Assistant Director
Caruso's congressional testimony in response to the first public leaks
about Moussaoui we faced the sad realization that the remarks indicated
someone, possibly with your approval, had decided to circle the wagons
at FBIHQ in an apparent effort to protect the FBI from embarrassment and
the relevant FBI officials from scrutiny. Everything I have seen and heard
about the FBI's official stance and the FBI's internal preparations in
anticipation of further congressional inquiry, had, unfortunately, confirmed
my worst suspicions in this regard. After the details began to emerge concerning
the pre-September 11th investigation of Moussaoui, and subsequently with
the recent release of the information about the Phoenix EC, your statement
has changed. The official statement is now to the effect that even if the
FBI had followed up on the Phoenix lead to conduct checks of flight schools
and the Minneapolis request to search Moussaoui's personal effects and
laptop, nothing would have changed and such actions certainly could not
have prevented the terrorist attacks and resulting loss of life. With all
due respect, this statement is as bad as the first! It is also quite at
odds with the earlier statement (which I'm surprised has not already been
pointed out by those in the media!) I don't know how you or anyone at FBI
Headquarters, no matter how much genius or prescience you may possess,
could so blithely make this affirmation without anything to back the opinion
up than your stature as FBI Director. The truth is, as with most predictions
into the future, no one will ever know what impact, if any, the FBI's following
up on those requests, would have had. Although I agree that it's very doubtful
that the full scope of the tragedy could have been prevented, it's at least
possible we could have gotten lucky and uncovered one or two more of the
terrorists in flight training prior to September 11th, just as Moussaoui
was discovered, after making contact with his flight instructors. If is
certainly not beyond the realm of imagination to hypothesize that Moussaoui's
fortuitous arrest alone, even if he merely was the 20th hijacker, allowed
the hero passengers of Flight 93 to overcome their terrorist hijackers
and thus spare more lives on the ground. And even greater casualties, possibly
of our Nation's highest government officials, may have been prevented if
Al Qaeda intended for Moussaoui to pilot an entirely different aircraft.
There is, therefore at least some chance that discovery of other terrorist
pilots prior to September 11th may have limited the September 11th attacks
and resulting loss of life. Although your conclusion otherwise has to be
very reassuring for some in the FBI to hear being repeated so often (as
if saying it's so may make it so), I think your statements demonstrate
a rush to judgment to protect the FBI at all costs. I think the only fair
response to this type of question would be that no one can pretend to know
one way or another.
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- Mr. Director, I hope my observations can be taken in
a constructive vein. They are from the heart and intended to be completely
apolitical. Hopefully, with our nation's security on the line, you and
our nation's other elected and appointed officials can rise above the petty
politics that often plague other discussions and do the right thing. You
do have some good ideas for change in the FBI but I think you have also
not been completely honest about some of the true reasons for the FBI's
pre-September 11th failures. Until we come clean and deal with the root
causes, the Department of Justice will continue to experience problems
fighting terrorism and fighting crime in general.
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- I have used the "we" term repeatedly herin
to indicate facts about others in the Minneapolis Office at critical times,
but none of the opinions expressed herin can be attributed to anyone but
myself. I know that those who know me would probably describe me as, by
nature, overly opinionated and sometimes not as discreet as I should be.
Certainly some of the above remarks may be interpreted as falling into
that category, but I really do not intend anything as a personal criticism
of you or anyone else in the FBI, to include the FBIHQ personnel who I
believe were remiss and mishandled their duties with regard to the Moussaoui
investigation. Truly my only purpose is to try to provide the facts within
my purview so that an accurate assessment can be obtained and we can learn
from our mistakes. I have pointed out a few of the things that I think
should be looked at but there are many, many more.8 An honest acknowledgment
of the FBI's mistakes in this and other cases should not lead to increasing
the Headquarters bureaucracy and approval levels of investigative actions
as the answer. Most often, field office agents and field office management
on the scene will be better suited to the timely and effective solution
of crimes and, in some lucky instances, to the effective prevention of
crimes, including terrorism incidents. The relatively quick solving of
the recent mailbox pipe-bombing incidents which resulted in no serious
injuries to anyone are a good example of effective field office work (actually
several field offices working together) and there are hundreds of other
examples. Although FBIHQ personnel have, no doubt, been of immeasurable
assistance to the field over the years, I'm hard pressed to think of any
case which has been solved by FBIHQ personnel and I can name several that
have been screwed up! Decision-making is inherently more effective and
timely when decentralized instead of concentrated.
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- Your plans for an FBI Headquarters' "Super Squad"
simply fly in the face of an honest appraisal of the FBI's pre-September
11th failures. The Phoenix, Minneapolis and Paris Legal Attache Offices
reacted remarkably exhibiting keen perception and prioritization skills
regarding the terrorist threats they uncovered or were made aware of pre-September
11th. The same cannot be said for the FBI Headquarters' bureaucracy and
you want to expand that?! Should we put the counterterrorism unit chief
and SSA who previously handled the Moussaoui matter in charge of the new
"Super Squad"?! You are also apparently disregarding the fact
the Joint Terrorism Task Forces (JTTFs), operating out of field divisions
for years, (the first and chief one being New York City's JTTF), have successfully
handled numerous terrorism investigations and, in some instances, successfully
prevented acts of terrorism. There's no denying the need for more and better
intelligence and intelligence management, but you should think carefully
about how much gate keeping power should be entrusted with any HQ entity.
If we are indeed in a "war", shouldn't the Generals be on the
battlefield instead of sitting in a spot removed from the action while
still attempting to call the shots?
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- I have been an FBI agent for over 21 years and, for what
it's worth, have never received any form of disciplinary action throughout
my career. From the 5th grade, when I first wrote the FBI and received
the "100 Facts about the FBI" pamphlet, this job has been my
dream. I feel that my career in the FBI has been somewhat exemplary, having
entered on duty at a time when there was only a small percentage of female
Special Agents. I have also been lucky to have had four children during
my time in the FBI and am the sole breadwinner of a family of six. Due
to the frankness with which I have expressed myself and my deep feelings
on these issues, (which is only because I feel I have a somewhat unique,
inside perspective of the Moussaoui matter, the gravity of the events of
September 11th and the current seriousness of the FBI's and United States'
ongoing efforts in the "war against terrorism"), I hope my continued
employment with the FBI is not somehow placed in jeopardy. I have never
written to an FBI Director in my life before on any topic. Although I would
hope it is not necessary, I would therefore wish to take advantage of the
federal "Whistleblower Protection" provisions by so characterizing
my remarks.
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- Sincerely
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- Coleen M. Rowley
Special Agent and Minneapolis Chief Division Counsel
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