FLASHBACK: June 10, 2002Blame Liberals for FBI's Failure

[Editor’s note: This article orginally appeared on the cover of the June 10, 2002, issue of HUMAN EVENTS.]

Watching the Democrat congressional leadership demagogueing September 11 and blaming President Bush for lack of attention to intelligence information prior to the attack should remind us of who was responsible for preventing our intelligence agencies from doing their job.

Before September 11, our government received three significant pieces of intelligence. On July 10, the FBI’s Phoenix, Ariz., office warned headquarters that large numbers of Middle Eastern students were attending flight schools and might be a future terrorist threat. It was suggested that the FBI get their names and check them out. On August 6, the CIA briefed the President and listed hijacking as one of the methods that could be used by Osama bin Laden’s terrorist group. At this point, there was no hard information that the government could use to prevent the terrorist attack.

On August 17, the FBI in Minnesota arrested Zacarias Moussaoui on immigration charges after he had aroused suspicions at a flight school he had paid $8,000 in cash to attend. Now the FBI had something. They seized Moussaoui’s computer and asked FBI headquarters for a warrant under the Foreign Intelligence Surveillance Act (FISA) to download it and tap his phone. They were turned down because FISA requires that to obtain a warrant they must show the court “sufficient specific and articulable facts to indicate that the individual’s activities are in preparation for sabotage or international terrorism.”

Kennedy’s Restrictions

In addition, they had to show that his activities may involve a violation of law. Common-sense suspicion of what Moussaoui intended to do was not enough. If they had downloaded his computer, they might have known that New York was a target, as he was studying the air currents over the city. If his friends, who didn’t know about his arrest, phoned him, the FBI might have been led to the other 19 hijackers.

The responsibility for this failure goes back to the late 1970s and the aftermath of the Church Committee (Senate) and Pike Committee (House) hysteria against the intelligence agencies. That was when FISA was passed. The prime movers were Senate Judiciary Chairman Edward Kennedy (D.-Mass.), Senate Intelligence Chairman Birch Bayh (D.-Ind.), House Judiciary Chairman Peter Rodino (D.-N.J.) and House Intelligence Chairman Edward Boland (D.-Mass.) and their staffs.

In the late 1970s, I was a professional staff member of the House Intelligence Committee. My Democrat colleagues, the committee’s chief counsel, Michael J. O’Neil, and counsel Bernard Raimo Jr., worked with leftist special interest groups such as the American Civil Liberties Union and the Center for National Security Studies to raise the barriers to make the job of our intelligence agencies more difficult.
In 1978, Kennedy explained to the House Intelligence Committee how he and Bayh worked together to “place some meaningful statutory restrictions” on electronic surveillance. One of these, he explained, was to make sure that a warrant could be issued only if it could be shown that a crime might be committed.

The late Republican Rep. John Ashbrook (Ohio) challenged Kennedy at the hearing. Ashbrook pointed specifically to the FALN terrorist group that was then planting bombs in New York. Kennedy brushed it off. A few conservative Republicans led by Ashbrook fought an unsuccessful rear guard action against the liberal Democrat majority in Congress.

There has been much talk in the press over the past several days complaining that the FBI and CIA do not exchange information. Of course they do not. Restrictions on the flow of information were put in after the Church-Pike hysteria, and were, of course, reflected in FISA, which includes a provision that no information obtained in a wiretap “shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advanced authorization of the attorney general.” This would prevent sharing FBI information even with other parts of the FBI.

If the person under suspicion is planning a terrorist action, the wiretap warrant could not be obtained if the information about this was derived “solely upon the basis of activity protected by the 1st Amendment to the Constitution.” So if someone uses his free speech protection to advocate terrorism, he can’t be wiretapped to prevent him from carrying out the threat.

This brings us to the U.S.A. Patriot Act passed by Congress after September 11. You would hope that these defects might be fixed. Some others were, but not those we are talking about in this article. The Patriot Act, like FISA, requires that a crime has been or is about to be committed before a terrorist’s phone can be tapped. The new law also requires “evidence of a criminal offense” and says the wiretap cannot be obtained “solely upon the basis of activities protected by the 1st Amendment.” Derived from FISA, the Patriot Act repeats this phrase over and over again.

The 1st Amendment protects us from the government’s preventing our freedom of speech. If we choose to exercise it in such a way that we tell the government that we intend to commit terrorist acts, the government should watch us, and even wiretap us. If a police officer stops a speeding car and sees a bumper sticker with a marijuana leaf, he would be a pretty stupid policeman if didn’t sniff the air and look into the open ashtray for handmade cigarette butts. The driver has the constitutional right to his bumper sticker, but if it tells the policeman what the driver intends to do, the policeman should not ignore it.

Even the section of the Patriot Act that bars supporters of foreign terrorist organizations from getting visas to the United States makes an exception for supporters of the Irish Republican Army and the African National Congress. Some terrorists groups are more equal than others, despite the fact that terrorists from all over the world have worked with each other since the KGB brought them together decades ago.

The pre-September 11 arrest of three IRA trainers in Colombia, working with the narco-terrorist FARC, should surprise nobody. The IRA terrorists were based in Havana. The FARC was established by the Communist Party of Colombia with the help of Cuba’s Castro dictatorship. Fidel Castro continues to give support to some who in the past were aided by the KGB.

Who succeeded in getting these pernicious elements into the Patriot Act? The ever-present Kennedy was particularly active. He was joined in the House by Rep. John Conyers (D.-Mich.), ranking member of the Judiciary Committee, who has long been active in leftist causes.

In Congress, the squeaky wheel gets greased. There are no squeakier wheels in Congress than Kennedy and Conyers. The Republicans rolled over for them because the administration needed the bill passed even with its defects.

The Democratic leadership in Congress, aided on occasion by foolish Republicans, put in place the restrictions on our intelligence community. As Congress investigates the intelligence failure of September 11, they should take a close look at the role of their liberal colleagues who bear much of the blame.