FBI Oversight in the 107^th Congress by the Senate Judiciary Committee:
FISA Implementation Failures

An Interim Report by
Senators Patrick Leahy, Charles Grassley, & Arlen Specter

 

February 2003
 

Table of Contents
 

I.          EXECUTIVE SUMMARY AND CONCLUSIONS

II.         OVERVIEW OF FBI OVERSIGHT IN THE 107^th  CONGRESS

A.  The Purposes of FBI Oversight: Enhancing Both Security and Liberty

            B.  Judiciary Committee FBI Oversight Activities in the 107^th Congress

                        1.  Full Committee FBI Oversight Hearings

2.  Other Oversight Activities: Classified Hearings, Written Requests, and Informal Briefings

3.   DOJ and FBI Non-Responsiveness

III.       FISA OVERSIGHT: A CASE STUDY OF THE SYSTEMIC PROBLEMS PLAGUING THE FBI

            A.  Overview and Conclusions

            B.  Allegations Raised by Special Agent Rowley’s Letter

C.  Results of  Investigation

            1.  The Mishandling of the Moussaoui FISA Application.

2.  General Findings

3. The FBI’s Misunderstanding of Legal Standards Applicable to the FISA

     a. The FISA Statutory Standard: “Agent of a Foreign Power” 

     b. The Probable Cause Standard

i. Supreme Court’s definition of “Probable Cause”

ii. The FBI’s Unnecessarily High Standard for Probable Cause

4.          The Working Relationship between FBI Headquarters and Field Offices

5.          The Mishandling of the Phoenix Electronic Communication

6.          The FBI’s Poor Information Technology Capabilities

7.          The “Revolving Door” at FBI Headquarters

 

IV.   THE IMPORTANCE OF ENHANCED CONGRESSIONAL OVERSIGHT

 

 

 

            So, too, is oversight important in order to protect the basic liberties upon which our country is founded.  Past oversight efforts, such as the Church Committee in the 1970s, have exposed abuses by law enforcement agencies such as the FBI.  It is no coincidence that these abuses have come after extended periods when the public and the Congress did not diligently monitor the FBI’s activities.  Even when agencies such as the FBI operate with the best of intentions (such as protecting our nation from foreign threats such as Communism in the 1950s and 1960s and fighting terrorism now), if left unchecked, the immense power wielded by such government agencies can lead them astray.  Public scrutiny and debate regarding the actions of government agencies as powerful as the DOJ and the FBI are critical to explaining actions to the citizens to whom these agencies are ultimately accountable.  In this way, congressional oversight plays a critical role in our democracy.

 

            The importance of the dual goals of congressional oversight - improving FBI performance and protecting liberty - have been driven home since the 9/11 attacks.  Even prior to the terrorist attacks, the Judiciary Committee had begun oversight and held hearings that had exposed several longstanding problems at the FBI, such as the double standard in discipline between line agents and senior executive officials.  The 9/11 attacks on our country have forever redefined the stakes riding upon the FBI’s success in fulfilling its mission to fight terrorism.  It is no luxury that the FBI perform at its peak level - it is now a necessity. 

 

At the same time, the increased powers granted to the FBI and other law enforcement agencies after the 9/11 attacks, in the USA PATRIOT Act, which Members of this Committee helped to craft, and through the actions of the Attorney General and the President, have made it more important than ever that Congress fulfills its role in protecting the liberty of our nation.  Everyone would agree that winning the war on terrorism would be a hollow victory indeed if it came only at the cost of the very liberties we are fighting to preserve.  By carefully overseeing the DOJ’s and FBI’s use of its broad powers, Congress can help to ensure that the false choice between fundamental liberty and basic security is one that our government never takes upon itself to make.  For these reasons, in the post-9/11 world, FBI oversight has been, and will continue to be, more important than ever.

 

            B.  Judiciary Committee FBI Oversight Activities in the 107^th Congress

 

                        1.  Full Committee FBI Oversight Hearings

 

Beginning in July 2001, after Senator Leahy became chairman, the Senate Judiciary Committee held hearings that focused on certain longstanding and systemic problems at the FBI. These included hearings concerning: (1) the FBI’s antiquated computer systems and its belated upgrade program; (2) the FBI’s “circle the wagons” mentality, wherein those who report flaws in the FBI are punished for their frankness; and (3) the FBI’s flawed internal disciplinary procedures and “double standard” in discipline, in which line FBI agents can be seriously punished for the same misconduct that only earns senior FBI executives a slap on the wrist.  Such flaws were exemplified by the disciplinary actions taken (and not taken) by the FBI and DOJ after the incidents at Waco, Texas, and Ruby Ridge, Idaho, and the apparent adverse career effects experienced by FBI agents participating in those investigations who answered the duty call to police their own.

 

The Committee’s pre-9/11 FBI oversight efforts culminated with the confirmation hearings of the new FBI Director, Robert S. Mueller, III.  Beginning on July 30, 2001, the Committee held two days of extensive hearings on Director Mueller’s confirmation and closely questioned Director Mueller about the need to correct the information technology and other problems within the FBI.  In conducting these hearings, Committee Members understood the critical role of the FBI Director in protecting our country from criminal, terrorist, and clandestine intelligence activities and recognized the many challenges facing the new Director.

Director Mueller was questioned very closely on the issue of congressional oversight, engaging in four rounds of questioning over two days.  In response to one of Senator Specter’s early questions, Director Mueller stated “I understand, firmly believe in the right and the power of Congress to engage in its oversight function.  It is not only a right, but it is a duty.”²

            In response to a later question, Director Mueller stated:

I absolutely agree that Congress is entitled to oversight of the ongoing responsibilities of the FBI and the Department of Justice.  You mentioned at the outset the problems that you have had over a period of getting documents in ongoing investigations.  And as I stated before and I'll state again, I think it is incumbent upon the FBI and the Department of Justice to attempt to accommodate every request from Congress swiftly and, where it cannot accommodate or believes that there are confidential issues that have to be raised, to bring to your attention and articulate with some specificity, not just the fact that there's ongoing investigation, not just the fact that there is an ongoing or an upcoming trial, but with specificity why producing the documents would interfere with either that trial or for some other reason or we believed covered by some issue of confidentiality.³

 

Incoming Director Mueller, at that time, frankly acknowledged that there was room for improvement in these areas at the FBI and vowed to cooperate with efforts to conduct congressional oversight of the FBI in the future.

 

Director Mueller assumed his duties on September 4, 2001, just one week before the terrorist attacks.  After the terrorist attacks, there was a brief break from FBI oversight, as the Members of the Judiciary Committee worked with the White House to craft and pass the USA PATRIOT Act.  In that new law, the Congress responded to the DOJ’s and FBI’s demands for increased powers but granted many of those powers only on a temporary basis, making them subject to termination at the end of 2005.  The “sunset” of the increased FISA surveillance powers reflected the promise that the Congress would conduct vigilant oversight to evaluate the FBI’s performance both before and after 9/11.  Only in that way could Congress and the public be assured that the DOJ and FBI needed the increased powers in the first place, and were effectively and properly using these new powers to warrant extension of the sunset. 

 

Passage of the USA PATRIOT Act did not solve the longstanding and acknowledged problems at the FBI.  Rather, the 9/11 attacks created a new imperative to remedy systemic shortcomings at the FBI.  Review of the FBI’s pre-9/11 performance is not conducted to assess blame.  The blame lies with the terrorists.  Rather, such review is conducted to help the FBI prevent future attacks by not repeating the mistakes of the past.  Thus, the enactment of the USA PATRIOT Act did not obviate the need to oversee the FBI; it augmented that need.

 

Within weeks of passage of the USA PATRIOT Act, the Senate Judiciary Committee held hearings with senior DOJ officials on implementation of the new law and other steps that were being taken by the Administration to combat terrorism.  The Committee heard testimony on November 28, 2001, from Assistant Attorney General Michael Chertoff and, on December 6, 2001, from Attorney General Ashcroft.  In response to written questions submitted in connection with the latter hearing, DOJ confirmed that shortly after the USA PATRIOT Act had been signed by the President on October 26, 2001, DOJ began to press the Congress for additional changes to relax FISA requirements, including expansion of the definition of “foreign power” to include individual, non-U.S. persons engaged in international terrorism.  DOJ explained that this proposal was to address the threat posed by a single foreign terrorist without an obvious tie to another person, group, or state overseas.  Yet, when asked to “provide this Committee with information about specific cases that support your claim to need such broad new powers,” DOJ was silent in its response and named no specific cases showing such a need, nor did it say that it could provide such specificity even in a classified setting.⁴  In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.

 

 Beginning in March 2002, the Committee convened another series of hearings monitoring the FBI’s performance and its efforts to reform itself.  On March 21, 2002, the Judiciary Committee held a hearing on the DOJ Inspector General’s report on the belated production of documents in the Oklahoma City bombing case.  That hearing highlighted longstanding problems in the FBI’s information technology and training regarding the use of, and access to, records.  It also highlighted the persistence of a “head-in-the-sand” approach to problems, where shortcomings are ignored rather than addressed and the reporting of problems is discouraged rather than encouraged.

 

On April 9, 2002, the Committee held a hearing on the Webster Commission’s report regarding former FBI Agent and Russian spy Robert Hanssen’s activities.  That hearing exposed a deep-seated cultural bias against the importance of security at the FBI.  One important finding brought to light at that hearing was the highly inappropriate handling of sensitive FISA materials in the time after the 9/11 attacks.  In short, massive amounts of the most sensitive and highly classified materials in the FBI’s possession were made available on an unrestricted basis to nearly all FBI employees.  Even more disturbing, this action was taken without proper consultation with the FBI’s own security officials.

 

On May 8, 2002, the Judiciary Committee held an oversight hearing at which FBI Director Mueller and Deputy Attorney General Thompson testified regarding their efforts to reshape the FBI and the DOJ to address the threat of terrorism.  It was at this hearing that the so-called “Phoenix Memorandum” was publicly discussed for the first time.  Director Mueller explained in response to one question:

 

[T]he Phoenix electronic communication contains suggestions from the agent as to steps that should be taken, or he suggested taking to look at other flight schools… .He made a recommendation that we initiate a program to look at flight schools.  That was received at Headquarters.  It was not acted on by September 11.  I should say in passing that even if we had followed those suggestions at that time, it would not, given what we know since September 11, have enabled us to prevent the attacks of September 11.  But in the same breath I should say that what we learned from instances such as that is much about the weaknesses of our approach to counterterrorism prior to September 11.⁵

 

In addition, Director Mueller first discussed at this hearing that FBI agents in Minnesota had been frustrated by Headquarters officials in obtaining a FISA warrant in the Zacharias Moussaoui investigation before the 9/11 attacks, and that one agent seeking the warrant had said that he was worried that Moussaoui would hijack an airplane and fly it into the World Trade center.⁶

 

On June 6, 2002, the Committee held another hearing at which Director Mueller testified further regarding the restructuring underway at the FBI.  Significantly, that hearing also provided the first public forum for FBI Chief Division Counsel Coleen Rowley of the Minneapolis Division to voice constructive criticism about the FBI.  Her criticisms, the subject of a lengthy letter sent to Director Mueller on May 21, 2002, which was also sent to Members of Congress, echoed many of the issues raised in this Committee’s oversight hearings.  Special Agent Rowley testified about “careerism” at the FBI and a mentality at FBI Headquarters that led Headquarters agents to more often stand in the way of field agents than to support them.  She cited the Moussaoui case as only the most high profile instance of such an attitude.  Special Agent Rowley also described a FBI computer system that prevented agents from accessing their own records and conducting even the most basic types of searches.  In short, Special Agent Rowley’s testimony reemphasized the importance of addressing the FBI’s longstanding problems, not hiding from them, in the post-9/11 era.

 

As the head of the Department of Justice as a whole, the Attorney General has ultimate responsibility for the performance of the FBI.  On July 25, 2002, the Judiciary Committee held an oversight hearing at which Attorney General Ashcroft testified.  The Committee and the Attorney General engaged in a dialogue regarding the performance of the DOJ on many areas of interest, including the fight against terrorism.  Among other things discussed at this hearing were the Attorney General’s plans to implement the Terrorism Information and Prevention System (TIPS), which would have enlisted private citizens to monitor “suspicious” activities of other Americans.  After questioning on the subject, Attorney General Ashcroft testified that he would seek restrictions on whether and how information generated through TIPS would be retained.  Later, as part of the Homeland Security legislation, TIPS was prohibited altogether.

 

On September 10, 2002, the Committee held an oversight hearing specifically focusing on issues related to the FISA.  Leading experts from the DOJ, from academia, and from the civil liberties and national security legal communities participated in a rare public debate on the FISA.  That hearing brought before the public an important discussion about the reaches of domestic surveillance using FISA and the meaning of the USA PATRIOT Act.  In addition, through the efforts of the Judiciary Committee, the public learned that this same debate was already raging in private.  The FISA Court had rejected the DOJ’s proposed procedure for implementing the USA PATRIOT Act, and the FISA Court of Review was hearing its first appeal in its 20-year-plus existence to address important issues regarding these USA PATRIOT Act amendments to the FISA.  The Committee requested that the FISA Court of Review publicly release an unclassified version of the transcript of the oral argument and its opinion, which the Court agreed to do and furnished to the Committee.  Thus, only through the bipartisan oversight work of the Judiciary Committee was the public first informed of the landmark legal opinion interpreting the FISA and the USA PATRIOT Act amendments overruling the FISC’s position, accepting some of the DOJ’s legal arguments, but rejecting others.

 

These are only the full Judiciary Committee hearings related to FBI oversight issues in the 107^th Congress.  The Judiciary Committee’s subcommittees also convened numerous, bipartisan oversight hearings relating to the FBI’s performance both before and after 9/11.

 

2.  Other Oversight Activities: Classified Hearings, Written Requests, and Informal Briefings

 

The Judiciary Committee and its Members have fulfilled their oversight responsibilities through methods other than public hearings as well.  Particularly with respect to FISA oversight, Members of the Judiciary Committee and its staff conducted a series of closed hearings and briefings, and made numerous written inquiries on the issues surrounding both the application for a FISA search warrant of accused international terrorist Zacharias Moussaoui’s personal property before the 9/11 attacks and the post-9/11 implementation of the USA PATRIOT Act.  As with all of our FBI oversight, these inquiries were intended to review the performance of the FBI and DOJ in order to improve that performance in the future.

 

The Judiciary Committee and its Members also exercised their oversight responsibilities over the DOJ and the FBI implementation of the FISA through written inquiries, written hearing questions, and other informal requests.  These efforts included letters to the Attorney General and the FBI Director from Senator Leahy on November 1, 2001, and May 23, 2002, and from Senators Leahy, Specter, and Grassley on June 4, June 13, July 3, and July 31, 2002.  In addition, these Members sent letters requesting information from the FISA Court and FISA Court of Review on July 16, July 31, and September 9, 2002.  Such oversight efforts are important on a day-to-day basis because they are often the most efficient means of monitoring the activities of the FBI and DOJ.

 

3.  DOJ and FBI Non-Responsiveness

Particularly with respect to our FISA oversight efforts, we are disappointed with the non-responsiveness of the DOJ and FBI.  Although the FBI and the DOJ have sometimes cooperated with our oversight efforts, often, legitimate requests went unanswered or the DOJ answers were delayed for so long or were so incomplete that they were of minimal use in the oversight efforts of this Committee.  The difficulty in obtaining responses from DOJ prompted Senator Specter to ask the Attorney General directly, “how do we communicate with you and are you really too busy to respond?”⁷

 

Two clear examples of such reticence on the part of the DOJ and the FBI relate directly to our FISA oversight efforts.  First, Chairman Sensenbrenner and Ranking Member Conyers of the House Judiciary Committee issued a set of 50 questions on June 13, 2002, in order to fulfill the House Judiciary Committee’s oversight responsibilities to monitor the implementation of the USA PATRIOT Act, including its amendments to FISA.  In connection with the July 25, 2002, oversight hearing with the Attorney General, Chairman Leahy posed the same questions to the Department on behalf of the Senate Judiciary Committee.  Unfortunately, the Department refused to respond to the Judiciary Committee with answers to many of these legitimate questions.  Indeed, it was only after Chairman Sensenbrenner publicly stated that he would subpoena the material that the Department provided any response at all to many of the questions posed, and to date some questions remain unanswered.  Senator Leahy posed a total of 93 questions, including the 50 questions posed by the leadership of the House Judiciary Committee.  While the DOJ responded to 56 of those questions in a series of letters on July 29, August 26, and December 23, 2002, thirty-seven questions remain unanswered.  In addition, the DOJ attempted to respond to some of these requests by providing information not to the Judiciary Committees, which had made the request, but to the Intelligence Committees.  Such attempts at forum shopping by the Executive Branch are not a productive means of facilitating legitimate oversight.

 

Second, the FBI and DOJ repeatedly refused to provide Members of the Judiciary Committee with a copy of the FISA Court’s May 17, 2002, opinion rejecting the DOJ’s proposed implementation of the USA PATRIOT Act’s FISA amendments.  This refusal was made despite the fact that the opinion, which was highly critical of aspects of the FBI’s past performance on FISA warrants, was not classified and bore directly upon the meaning of provisions in the USA PATRIOT Act authored by Members of the Judiciary Committee.  Indeed, the Committee eventually had to obtain the opinion not from the DOJ but directly from the FISA Court, and it was only through these efforts that the public was first made aware of the important appeal being pursued by the DOJ and the legal positions being taken by the Department on the FISA Amendments.⁸

 

In both of these instances, and in others, the DOJ and FBI have made exercise of our oversight responsibilities difficult.⁹  It is our sincere hope that the FBI and DOJ will reconsider their approach to congressional oversight in the future.  The Congress and the American people deserve to know what their government is doing.  Certainly, the Department should not expect Congress to be a “rubber stamp” on its requests for new or expanded powers if requests for information about how the Department has handled its existing powers have been either ignored or summarily paid lip service.

 

III.       FISA OVERSIGHT: A CASE STUDY OF THE SYSTEMIC PROBLEMS PLAGUING THE FBI

 

A.     Overview and Conclusions

 

The Judiciary Committee held a series of classified briefings for the purpose of reviewing the processing of FISA applications before the terrorist attacks on September 11, 2001.   The Judiciary Committee sought to determine whether any problems at the FBI in the processing of FISA applications contributed to intelligence failures before September 11^th; to evaluate the implementation of the changes to FISA enacted pursuant to the USA PATRIOT Act; and to determine whether additional legislation is necessary to improve this process and facilitate congressional oversight and public confidence in the FISA and the FBI. 

 

We specifically sought to determine whether the systemic problems uncovered in our FBI oversight hearings commenced in the summer of 2001 contributed to any shortcomings that may have affected the FBI counterterrorism efforts prior to the 9/11 attacks.  Not surprisingly, we conclude that they did.  Indeed, in many ways the DOJ and FBI’s shortcomings in implementing the FISA - including but not limited to the time period before the 9/11 attacks - present a compelling case for both comprehensive FBI reform and close congressional oversight and scrutiny of the justification for any further relaxation of FISA requirements.  FISA applications are of the utmost importance to our national security.  Our review suggests that the same fundamental problems within the FBI that have plagued the agency in other contexts also prevented both the FBI and DOJ from aggressively pursuing FISA applications in the period before the 9/11 attacks.  Such problems caused the submission of key FISA applications to the FISA Court to have been significantly delayed or not made.  More specifically, our concerns that the FBI and DOJ did not make effective use of FISA before making demands on the Congress for expanded FISA powers in the USA PATRIOT Act are bolstered by the following findings:

 

(1) The FBI and Justice Department were setting too high a standard to establish that there is “probable cause” that a person may be an “agent of a foreign power” and, therefore, may be subject to surveillance pursuant to FISA;

(2) FBI agents and key Headquarters officials were not sufficiently trained to understand the meanings of crucial legal terms and standards in the FISA process;

(3) Prior problems between the FBI and the FISA Court that resulted in the Court barring one FBI agent from appearing before it for allegedly filing inaccurate affidavits may have “chilled” the FBI and DOJ from aggressively seeking FISA warrants (although there is some contradictory information on this matter, we will seek to do additional oversight on this question);¹⁰

(4) FBI Headquarters fostered a culture that stifled rather than supported aggressive and creative investigative initiatives from agents in the field; and

(5) The FBI’s difficulties in properly analyzing and disseminating information in its possession caused it not to seek FISA warrants that it should have sought.  These difficulties are due to:

a) a lack of proper resources dedicated to intelligence analysis;

b) a “stove pipe” mentality where crucial intelligence is pigeonholed into a particular unit and may not be shared with other units;

c) High turnover of senior agents at FBI Headquarters within critical counterterrorism and foreign intelligence units;

d) Outmoded information technology that hinders access to, and dissemination of, important intelligence; and

e) A lack of training for FBI agents to know how to use, and a lack of requirements that they do use, the technology available to search for and access relevant information.

 

We have found that, in combination, all of these factors contributed to the intelligence failures at the FBI prior to the 9/11 attacks.

 

We are also conscious of the extraordinary power FISA confers on the Executive branch.  FISA contains safeguards, including judicial review by the FISA Court and certain limited reporting requirements to congressional intelligence committees, to ensure that this power is not abused.  Such safeguards are no substitute, however, for the watchful eye of the public and the Judiciary Committees, which have broader oversight responsibilities for DOJ and the FBI.  In addition to reviewing the effectiveness of the FBI’s use of its FISA power, this Committee carries the important responsibility of checking that the FBI does not abuse its power to conduct surveillance within our borders.  Increased congressional oversight is important in achieving that goal.

From the outset, we note that our discussion will not address any of the specific facts of the case against Zacharias Moussaoui that we have reviewed in our closed inquiries.  That case is still pending trial, and, no matter how it is resolved, this Committee is not the appropriate forum for adjudicating the allegations in that case.  Any of the facts recited in this report that bear on the substance of the Moussaoui case are already in the public record.  To the extent that this report contains information we received in closed sessions, that information bears on abstract, procedural issues, and not any substantive issues relating to any criminal or national security investigation or proceeding.  This is an interim report of what we have discovered to date.  We hope to and should continue this important oversight in the 108^th Congress.

           

B.     Allegations Raised by Special Agent Rowley’s Letter

 

The Judiciary Committee had initiated its FISA oversight inquiry several months before the revelations in the dramatic letter sent on May 21, 2002, to FBI Director Mueller by Special Agent Coleen Rowley.  Indeed, it was this Committee’s oversight about the FBI’s counterintelligence operations before the 9/11 attacks that in part helped motivate SA Rowley to write this letter to the Director.¹¹

 

The observations and critiques of the FBI’s FISA process in this letter only corroborated problems that the Judiciary Committee was uncovering.  In her letter, SA Rowley detailed the problems the Minneapolis agents had in dealing with FBI Headquarters in their unsuccessful attempts to seek a FISA warrant for the search of Moussaoui’s lap top computer and other personal belongings.  These attempts proved fruitless, and Moussaoui’s computer and personal belongings were not searched until September 11^th, 2001, when the Minneapolis agents were able to obtain a criminal search warrant after the attacks of that date.  According to SA Rowley, with the exception of the fact of those attacks, the information presented in the warrant application establishing probable cause for the criminal search warrant was exactly the same as the facts that FBI Headquarters earlier had deemed inadequate to obtain a FISA search warrant.¹²

 

In her letter, SA Rowley raised many issues concerning the efforts by the agents assigned to the Minneapolis Field Office to obtain a FISA search warrant for Moussaoui’s personal belongings.  Two of the issues she raised were notable.  First, SA Rowley corroborated that many of the cultural and management problems within the FBI (including what she referred to as “careerism”) have significant effects on the FBI’s law enforcement and intelligence gathering activities.  This led to a perception among the Minneapolis agents that FBI Headquarters personnel had frustrated their efforts to obtain a FISA warrant by raising unnecessary objections to the information submitted by Minneapolis, modifying and removing that information, and limiting the efforts by the Minneapolis Field Office to contact other agencies for relevant information to bolster the probable cause for the warrant.  These concerns echoed criticisms that this Committee has heard in other contexts about the culture of FBI management and the effect of the bureaucracy in stifling initiative by FBI agents in the field.

 

In making this point, SA Rowley provided specific examples of the frustrating delays and roadblocks erected by Headquarters agents in the Moussaoui investigation:

 

For example at one point, the Supervisory Special Agent at FBIHQ posited

that the French information could be worthless because it only identified Zacharias Moussaoui by name and he, the SSA, didn’t know how many people by that name existed in France.  A Minneapolis agent attempted to surmount that problem by quickly phoning the FBI’s Legal Attache (Legat) in Paris, France, so that a check could be made of the French telephone directories.  Although the Legat in France did not have access to all of the French telephone directories, he was able to quickly ascertain that there was only one listed in the Paris directory.  It is not known if this sufficiently answered the question, for the SSA continued to find new reasons to stall.¹³

 

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 [redacted; classified].  Obviously[,] verbal presentations are far more susceptible to mis-characterization and error.¹⁴

 

Even after the attacks had commenced, FBI Headquarters discouraged Minneapolis from securing a criminal search warrant to examine Moussaoui’s belongings, dismissing the coordinated attack on the World Trade Center and Pentagon as a coincidence.¹⁵

 

Second, SA Rowley’s letter highlighted the issue of the apparent lack of understanding of the applicable legal standards for establishing “probable cause” and the requisite statutory FISA requirements by FBI personnel in the Minneapolis Division and at FBI Headquarters.  This issue will be discussed in more detail below.

 

C.  Results of Investigation

 

1.      The Mishandling of the Moussaoui FISA Application.

 

Apart from SA Rowley’s letter and her public testimony, the Judiciary Committee and its staff found additional corroboration that many of her concerns about the handling of the Moussaoui FISA application for a search warrant were justified. 

 

At the outset, it is helpful to review how Headquarters “adds value” to field offices in national security investigations using FISA surveillance tools.  Headquarters has three functions in such investigations.  The first function is the ministerial function of actually assembling the FISA application in the proper format for review by the DOJ’s Office of Intelligence Policy and Review OIPR and the FISA Court.  The other two functions are more substantive and add “value” to the FISA application.  The first substantive function is to assist the field by being experts on the legal aspects of FISA, and to provide guidance to the field as to the information needed to meet the statutory requirements of FISA.  The second function is to supplement the information from the field in order to establish or strengthen the showing that there is “probable cause” that the FISA target was an “agent of a foreign power,” by integrating additional relevant intelligence information both from within the FBI and from other intelligence or law enforcement organizations outside the FBI.  It is with respect to the latter, substantive functions that Headquarters fell short in the Moussaoui FISA application and, as a consequence, never got to the first, more ministerial, function.

 

Our investigation revealed that the following events occurred in connection with this FISA application.  We discovered that the Supervisory Special Agent (SSA) involved in reviewing the Moussaoui FISA request was assigned to the Radical Fundamentalist Unit (RFU) of the International Terrorism Operations Section of the FBI’s Counterterrorism Division.  The Unit Chief of the RFU was the SSA’s immediate supervisor.  When the Minneapolis Division submitted its application for the FISA search warrant for Moussaoui’s laptop computer and other property, the SSA was assigned the responsibility of processing the application for approval.  Minneapolis submitted its application for the FISA warrant in the form of a 26-page Electronic Communication (EC), which contained all of the information that the Minneapolis agents had collected to establish that Moussaoui was an agent of a foreign power at the time.  The SSA’s responsibilities included integrating this information submitted by the Minneapolis division with information from other sources that the Minneapolis agents were not privy to, in order to establish there was probable cause that Moussaoui was an agent of a foreign power.  In performing this fairly straightforward task, FBI Headquarters personnel failed miserably in at least two ways.

 

First, most surprisingly, the SSA never presented the information submitted by Minneapolis and from other sources in its written, original format to any of the FBI’s attorneys in the National Security Law Unit (NSLU).  The Minneapolis agents had submitted their information in the 26-page EC and a subsequent letterhead memorandum (LHM), but neither was shown to the attorneys.  Instead, the SSA relied on short, verbal briefings to the attorneys, who opined that based on the information provided verbally by the SSA they could not establish that there was probable cause that Moussaoui was an agent of a foreign power.  Each of the attorneys in the NSLU stated they did not receive documents on the Moussaoui FISA, but instead only received a short, verbal briefing from the SSA.  As SA Rowley noted, however, “verbal presentations are far more susceptible to mis-characterization and error.”

 

The failure of the SSA to provide the 26-page Minneapolis EC and the LHM to the attorneys, and the failure of the attorneys to review those documents, meant that the consideration by Headquarters officials of the evidence developed by the Minneapolis agents was truncated.  The Committee has requested, but not yet received, the full 26-page Minneapolis EC (even, inexplicably, in a classified setting).¹⁶

 

Second, the SSA’s task was to help bolster the work of the Minneapolis agents and collect information that would establish probable cause that a “foreign power” existed, and that Moussaoui was its “agent.”  Indeed, sitting in the FBI computer system was the Phoenix memorandum, which senior FBI officials have conceded would have provided sufficient additional context to Moussaoui’s conduct to have established probable cause.¹⁷  Yet, neither the SSA nor anyone else at Headquarters consulted about the Moussaoui application ever conducted any computer searches for electronic or other information relevant to the application.  Even the much touted “Woods Procedures” governing the procedures to be followed by FBI personnel in preparing FISA applications do not require Headquarters personnel to conduct even the most basic subject matter computer searches or checks as part of the preparation and review of FISA applications.

 

2.      General Findings.

 

We found that key FBI personnel involved in the FISA process were not properly trained to carry out their important duties.  In addition, we found that the structural, management, and resource problems plaguing the FBI in general contributed to the intelligence failures prior to the 9/11 attacks.¹⁸  Following are some of the most salient facts supporting these conclusions.

 

First, key FBI personnel responsible for protecting our country against terrorism did not understand the law.  The SSA at FBI Headquarters responsible for assembling the facts in support of the Moussaoui FISA application testified before the Committee in a closed hearing that he did not know that “probable cause” was the applicable legal standard for obtaining a FISA warrant.  In addition, he did not have a clear understanding of what the probable cause standard meant. The SSA was not a lawyer, and he was relying on FBI lawyers for their expertise on what constituted probable cause.  In addition to not understanding the probable cause standard, the SSA’s supervisor (the Unit Chief) responsible for reviewing FISA applications did not have a proper understanding of the legal definition of the “agent of a foreign power” requirement.¹⁹  Specifically, he was under the incorrect impression that the statute required a link to an already identified or “recognized” terrorist organization, an interpretation that the FBI and the supervisor himself admitted was incorrect.  Thus, key FBI officials did not have a proper understanding of either the relevant burden of proof (probable cause) or the substantive element of proof (agent of a foreign power).  This fundamental breakdown in training on an important intelligence matter is of serious concern to this Committee.²⁰

 

Second, the complaints contained in the Rowley letter about problems in the working relationship between field offices and FBI Headquarters are more widespread.  There must be a dynamic relationship between Headquarters and field offices with Headquarters providing direction to the efforts of agents in the field when required.  At the same time, Headquarters personnel should serve to support field agents, not to stifle initiative by field agents and hinder the progress of significant cases.  The FBI’s Minneapolis office was not alone in this complaint.  Our oversight also confirmed that agents from the FBI’s Phoenix office, whose investigation and initiative resulted in the so-called “Phoenix Memorandum,” warning about suspicious activity in U.S. aviation schools, also found their initiative dampened by a non-responsive FBI Headquarters.

 

So deficient was the FISA process that, according to at least one FBI supervisor, not only were new applications not acted upon in a timely manner, but the surveillance of existing targets of interest was often terminated, not because the facts no longer warranted surveillance, but because the application for extending FISA surveillance could not be completed in a timely manner.  Thus, targets that represented a sufficient threat to national security that the Department had sought, and a FISA Court judge had approved, a FISA warrant were allowed to break free of surveillance for no reason other than the FBI and DOJ’s failure to complete and submit the proper paper work.  This failure is inexcusable.

 

Third, systemic management problems at FBI Headquarters led to a lack of accountability among senior FBI officials.  A revolving door at FBI Headquarters resulted in agents who held key supervisory positions not having the required specialized knowledge to perform their jobs competently.  A lack of proper communication produced a system where no single person was held accountable for mistakes.  Therefore, there was little or no incentive to improve performance.  Fourth, the layers of FBI and DOJ bureaucracy also helped lead to breakdowns in communication and serious errors in the materials presented to the FISA Court.  The Committee learned that in the year before the Moussaoui case, one FBI supervisor was barred from appearing before the FISC due to inaccurate information presented in sworn affidavits to the Court.  DOJ explained in a December 23, 2002, response to written questions from the July 25, 2002, oversight hearing that:

 

One FBI supervisory special agent has been barred from appearing before the Court.  In March of 2001, the government informed the Court of an error contained in a series of FISA applications. This error arose in the description of a “wall” procedure.  The Presiding Judge of the Court at the time, Royce Lamberth, wrote to the Attorney General expressing concern over this error and barred one specifically-named FBI agent from appearing before the Court as a FISA affiant….FBI Director Freeh personally met twice with then-Presiding Judge Lamberth to discuss the accuracy problems and necessary solutions.

 

 As the Committee later learned from review of the FISA Court’s May 17, 2002, opinion, that Court had complained of 75 inaccuracies in FISA affidavits submitted by the FBI, and the DOJ and FBI had to develop new procedures to ensure accuracy in presentations to that Court.  These so-called “Woods Procedures” were declassified at the request of the authors and were made publicly available at the Committee’s hearing on June 6, 2002.  As DOJ further explained in its December 23, 2002, answers to written questions submitted on July 25, 2002:

 

On April 6, 2001, the FBI disseminated to all field divisions and relevant Headquarters divisions a set of new mandatory procedures to be applied to all FISAs within the FBI.  These procedures know as the “Woods procedures,” are designed to help minimize errors in and ensure that the information provided to the Court is accurate…. They have been declassified at the request of your Committee.

 

DOJ describes the inaccuracies cited in the FISA Court opinion as related to “errors in the ‘wall’ procedure” to keep separate information used for criminal prosecution and information collected under FISA and used for foreign intelligence. However, this does not appear to be the only problem the FBI and DOJ were having in the use of FISA.

 

An FBI document obtained under the Freedom of Information Act, which is attached to this report as Exhibit E, suggests that the errors committed were far broader.  The document is a memorandum dated April 21, 2000, from the FBI’s Counterterrorism Division, that details a series of inaccuracies and errors in handling FISA applications and wiretaps that have nothing whatsoever to do with the “wall.”  Such mistakes included videotaping a meeting when videotaping was not allowed under the relevant FISA Court order, continuing to intercept a person’s email after there was no authorization to do so, and continuing a wiretap on a cell phone even after the phone number had changed to a new subscriber who spoke a different language from the target.

 

            This document highlights the fact apart from the problems with applications made to the FISC, that the FBI was experiencing more systemic problems related to the implementation of FISA orders.  These issues were unrelated to the legal questions surrounding the “wall,” which was in effect long before 1999.  The document notes that the number of inaccuracies grew by three-and-one-half times from 1999 to 2000.  We recommend that additional efforts to correct the procedural, structural, and training problems in the FISA process would go further toward ensuring accuracy in the FISA process than simply criticizing the state of the law.

 

One legitimate question is whether the problems inside the FBI and between the FBI and the FISA Court either caused FBI Headquarters to be unduly cautious in proposing FISA warrants or eroded the FISA Court’s confidence in the DOJ and the FBI to the point that it affected the FBI’s ability to conduct terrorism and intelligence investigations effectively.²¹  SA Rowley opines in her letter that in the year before “the September 11^th acts of terrorism, numerous alleged IOB [Intelligence Oversight Board] violations on the part of FBI personnel had to be submitted to the FBI’s Office of Professional Responsibility (OPR) as well as the IOB. I believe the chilling effect upon all levels of FBI agents assigned to intelligence matters and their managers hampered us from aggressive investigation of terrorists.” (Rowley letter, pp. 7-8, fn. 7).  Although the belated release of the FISA Court’s opinion of May 17, 2002, provided additional insight into this issue, further inquiry is needed. 

 

Fifth, the FBI’s inability to properly analyze and disseminate information (even from and between its own agents) rendered key information that it collected relatively useless.  Had the FBI put together the disparate strands of information that agents from around the country had furnished to Headquarters before September 11, 2001, additional steps could certainly have been taken to prevent the 9/11 attacks.  So, while no one can say with certainty that the 9/11 attacks could have been prevented, in our view, it is also beyond reasonable dispute that more could have been done in the weeks before the attacks to try to prevent them.

 

Certain of our findings merit additional discussion, and such discussion follows.

 

3.         FBI’s Misunderstanding of Legal Standards Applicable to the FISA

 

a.   The FISA Statutory Standard: “Agent of a Foreign Power” 

In order to obtain either a search warrant or an authorization to conduct electronic surveillance pursuant to FISA, the FBI and Justice Department must establish before the FISA Court (“FISC”) probable cause that the targeted person is an “agent of a foreign power.”²²  An agent of a foreign power is defined as “any person who . . . knowingly aids or abets any person in the conduct of [certain] activities.”²³  Those certain activities include “international terrorism,” and one definition of “foreign power” includes groups that engage in international terrorism.²⁴  Accordingly, in the Moussaoui case, to obtain a FISA warrant the FBI had to collect only enough evidence to establish that there was “probable cause” to believe that Moussaoui was the “agent” of an “international terrorist group” as defined by FISA. 

 

            However, even the FBI agents who dealt most with FISA did not correctly understand this requirement.  During a briefing with Judiciary Committee staff in February 2002, the Headquarters counterterrorism Unit Chief of the unit responsible for handling the Moussaoui FISA application stated that with respect to international terrorism cases, FISA warrants could only be obtained for “recognized” terrorist groups (presumably those identified by the Department of State or by the FBI itself or some other government agency).  The Unit Chief later admitted that he knew that this was an incorrect understanding of the law, but it was his understanding at the time the application was pending.  Additionally, during a closed hearing on July 9, 2002, the Supervisory Special Agent (“SSA”) who actually handled the Moussaoui FISA application at Headquarters also mentioned that he was trying to establish whether Moussaoui was an “agent of a recognized foreign power” (emphasis added).

 

Nowhere, however, does the statutory definition require that the terrorist group be an identified organization that is already recognized (such as by the United States Department of State) as engaging in terrorist activities.  Indeed, even the FBI concedes this point.  Thus, there was no support whatsoever for key FBI officials’ incorrect understanding that the target of FISA surveillance must be linked to such an identified group in the time before 9/11.  This misunderstanding colored the handling of requests from the field to conduct FISA surveillance in the crucial weeks before the 9/11 attacks.  Instead of supporting such an application, key Headquarters personnel asked the field agents working on this investigation to develop additional evidence to prove a fact that was unnecessary to gain judicial approval under FISA.  It is difficult to understand how the agents whose job included such a heavy FISA component could not have understood that statute.  It is difficult to understand how the FBI could have so failed its own agents in such a crucial aspect of their training. 

 

The Headquarters personnel misapplied the FISA requirements.  In the context of this case, the foreign power would be an international terrorist group, that is, “a group engaged in international terrorism or activities in preparation therefore.”  A “group” is not defined in the FISA, but in common parlance, and using other legal principles, including criminal conspiracy,  a group consists of two or more persons whether identified or not.  It is our opinion that such a “group” may exist, even if not a group “recognized” by the Department of State.

 

The SSA’s other task would be to help marshal evidence showing probable cause that Moussaoui was an agent of that group.  In applying the “totality of the circumstances,” as defined in the case of Illinois v. Gates, 462 U.S. 213 (1983), any information available about Moussaoui’s “actual contacts” with the group should have been considered in light of other information the FBI had in order to understand and establish the true probable nature of those contacts.²⁵  It is only with consideration of all the information known to the FBI that Moussaoui’s contacts with any group could be properly characterized in determining whether he was an agent of such a group.

 

In making this evaluation, the fact, as recited in the public indictment, that Moussaoui “paid $6,800 in cash” to the Minneapolis flight school, without adequate explanation for the source of this funding, would have been a highly probative fact bearing on his connections to foreign groups. Yet, it does not appear that this was a fact that the FBI Headquarters agents considered in analyzing the totality of the circumstances.  The probable source of that cash should have been a factor that was considered in analyzing the totality of the circumstances.  So too would the information in the Phoenix memorandum have been helpful.  It also was not considered, as discussed further below.  In our view, the FBI applied too cramped an interpretation of probable cause and “agent of a foreign power” in making the determination of whether Moussaoui was an agent of a foreign power.  FBI Headquarters personnel in charge of reviewing this application focused too much on establishing a nexus between Moussaoui and a “recognized” group, which is not legally required.²⁶ Without going into the actual evidence in the Moussaoui case, there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application.  Given this conclusion, our primary task is not to assess blame on particular agents, the overwhelming majority of whom are to be commended for devoting their lives to protecting the public, but to discuss the systemic problems at the FBI that contributed to their inability to succeed in that endeavor.

 

b. The Probable Cause Standard

 

i. Supreme Court’s Definition of “Probable Cause” 

During the course of our investigation, the evidence we have evaluated thus far indicates that both FBI agents and FBI attorneys do not have a clear understanding of the legal standard for probable cause, as defined by the Supreme Court in the case of Illinois v. Gates, 462 U.S. 213 (1983).  This is such a basic legal principle that, again, it is impossible to justify the FBI’s lack of complete and proper training on it.  In Gates, then-Associate Justice Rehnquist wrote for the Court:

As early as Locke v. United States, 7 Cranch. 339, 348, 3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a closely related context, that “the term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation.... It imports a seizure made under circumstances which warrant suspicion.”  More recently, we said that “the quanta ... of proof” appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.  Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision.  While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”²⁷

 

The Court further stated: 

 

For all these reasons, we conclude that it is wiser to abandon the “two- pronged test” established by our decisions in Aguilar and Spinelli.  In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.  The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.  And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed.  We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.²⁸

 

Accordingly, it is clear that the Court rejected “preponderance of the evidence” as the standard for probable cause and established a standard of “probability” based on the “totality of the circumstances.”

ii.         The FBI’s Unnecessarily High Standard for Probable Cause

Unfortunately, our review has revealed that many agents and lawyers at the FBI did not properly understand the definition of probable cause and that they also possessed inconsistent understandings of that term.  In the portion of her letter to Director Mueller discussing the quantum of evidence needed to reach the standard of probable cause, SA Rowley wrote 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 upon the actual AUSA who would be assigned, might turn us down.”²⁹  The Gates case and its progeny do not require an exacting standard of proof.  Probable cause does not mean more likely than not, but only a probability or substantial chance of the prohibited conduct taking place.  Moreover, “[t]he fact that an innocent explanation may be consistent with the facts alleged…does not negate probable cause.”³⁰ 

 

On June 6, 2002, the Judiciary Committee held an open hearing on the FBI’s conduct of counterterrorism investigations.  The Committee heard from Director Mueller and DOJ Inspector General Glenn Fine on the first panel and from SA Rowley on the second panel.  The issue of the probable cause standard was specifically raised with Director Mueller, citing the case of Illinois v. Gates, and Director Mueller was asked to comment in writing on the proper standard for establishing probable cause.³¹  The FBI responded in an undated letter to Senator Specter and with the subsequent transmission of an electronic communication (E.C.) dated September 16, 2002.³²  In the E.C., the FBI’s General Counsel reviewed the case law defining “probable cause,” in order to clarify the definition of probable cause for FBI personnel handling both criminal investigations and FISA applications.

 

At the June 6^th hearing, SA Rowley reviewed her discussion of the probable cause standard in her letter.  During that testimony three issues arose.  First, by focusing on the prosecution of a potential case, versus investigating a case, law enforcement personnel, both investigators and prosecutors, may impose on themselves a higher standard than necessary to secure a warrant.³³  This prosecution focus is one of the largest hurdles that the FBI is facing as it tries to change its focus from crime fighting to the prevention of terrorist attacks.  It is symptomatic of a challenge facing the FBI and DOJ in nearly every aspect of their new mission in preventing terrorism.  Secondly, prosecutors, in gauging what amount of evidence reaches the probable cause standard, may calibrate their decision to meet the de facto standard imposed by the judges, who may be imposing a higher standard than is required by law.³⁴  Finally, SA Rowley opined that some prosecutors and senior FBI officials may set a higher standard due to risk-averseness, which is caused by “careerism.”³⁵

 

SA Rowley’s testimony was corroborated in our other hearings.  During a closed hearing, in response to the following questions, a key Headquarters SSA assigned to terrorism matters stated that he did not know the legal standard for obtaining a warrant under FISA.

 

Sen.  Specter: . . . . [SSA], what is your understanding of the legal standard for a FISA warrant?

[SSA]: I am not an attorney, so I would turn all of those types of questions over to one of the attorneys that I work with in the National Security Law Unit.

Question: Well, did you make the preliminary determination that there was not sufficient facts to get a FISA warrant issued?

[SSA]: That is the way I saw it.

Question: Well, assuming you would have to prove there was an agent and there was a foreign power, do you have to prove it beyond a reasonable doubt?  Do you have to have a suspicion?  Where in between?

[SSA]: I would ask my attorney in the National Security Law Unit that question.

Question: Did anybody give you any instruction as to what the legal standard for probable cause was?

[SSA]: In this particular instance, no.³⁶

 

The SSA explained that he had instruction on probable cause in the past, but could not recall that training.  It became clear to us that the SSA was collecting information without knowing when he had enough and, more importantly, making “preliminary” decisions and directing field agents to take investigating steps without knowing the applicable legal standards.  While we agree that FBI agents and supervisory personnel should consult regularly with legal experts at the National Security Law Unit, and with the DOJ and U.S. Attorneys Offices, supervisory agents must also have sufficient facility for evaluating probable cause in order to provide support and guidance to the field.

 

Unfortunately, our oversight revealed a similar confusion as to the proper standard among other FBI officials.  On July 9, 2002, the Committee held a closed session on this issue, and heard from the following FBI personnel:  Special Agent “G,” who had been a counterterrorism supervisor in the Minneapolis Division of the FBI and worked with SA Rowley; the Supervisory Special Agent (“the SSA”) from FBI Headquarters referred to in SA Rowley’s letter (and referred to the discussion above); the SSA’s Unit Chief (“the Unit Chief”); a very senior attorney from the FBI’s Office of General Counsel with national security responsibilities (“Attorney #1”); and three attorneys assigned to the FBI’s Office of General Counsel’s National Security Law Unit (“Attorney #2,” “Attorney #3,” and “Attorney #4”).  The purpose of the session was to determine how the Moussaoui FISA application had been processed by FBI Headquarters personnel.  None of the personnel present, including the attorneys, appeared to be familiar with the standard for probable cause articulated in Illinois v. Gates, and none had reviewed the case prior to the hearing, despite its importance having been highlighted at the June 6^th hearing with the FBI Director.  To wit:

 

Sen. Specter:   . . . . [Attorney #1] what is the legal standard for probable cause for a warrant?

[Attorney #1]:  A reasonable belief that the facts you are trying to prove are accurate.

Question:  Reason to believe?

[Attorney #1]:  Reasonable belief.

Question:  Reasonable belief?

[Attorney #1]:  More probable than not.

Question:  More probable than not?

[Attorney #1]:  Yes, sir.  Not a preponderance of the evidence.

Question:  Are you familiar with “Gates v. Illinois”?

[Attorney #1]:  No, sir.

 

          However, “more probable than not” is not the standard; rather, “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”³⁷ 

 

            Similarly, Attorneys #2, #3, and #4 were also not familiar with Gates.³⁸ Under further questioning, Attorney #1 conceded that the FBI, at that time, did not have written procedures concerning the definition of “probable cause” in FISA cases:  “On the FISA side of the house I don’t think we have any written guidelines on that….”³⁹  Additionally, Attorney #1 stated that “[w]e need to have some kinds of facts that an agent can swear to a reasonable belief that they are true,” to establish that a person is an agent of a foreign power. Giving a precise definition of probable cause is not an easy task, as whether probable cause exists rests on factual and practical considerations in a particular context. Yet, even with the inherent difficulty in this standard we are concerned that senior FBI officials offered definitions that imposed heightened proof requirements.  The issue of what is required for “probable cause“ is especially troubling because it is not the first time that the issue had arisen specifically in the FISA context.   Indeed, the Judiciary Committee confronted the issue of “probable cause” in the FISA context in 1999, when the Committee initiated oversight hearings of the espionage investigation of Dr. Wen Ho Lee.  Among the many issues examined was whether there was probable cause to obtain FISA surveillance of Dr. Lee.  In that case, there was a disagreement as to whether probable cause existed between the FBI and the DOJ, within the DOJ, and among ourselves. 

 

In 1999, Attorney General Janet Reno commissioned an internal DOJ review of the Wen Ho Lee investigation.  The Attorney General’s Review Team on the Handling of the Los Alamos National Laboratory Investigation was headed by Assistant United States Attorney Randy I. Bellows, a Senior Litigation Counsel in the Office of the United States Attorney for the Eastern District of Virginia.  Mr. Bellows submitted his exhaustive report on May 12, 2000 (the “Bellows Report”), and made numerous findings of fact and recommendations.  With respect to the issue of probable cause, Mr. Bellows concluded that:

 

The final draft FISA application (Draft #3), on its face, established probable cause to believe that Wen Ho Lee was an agent of a foreign power, that is to say, a United States person currently engaged in clandestine intelligence gathering activities for or on behalf of the PRC which activities involved or might involve violations of the criminal laws of the United States . . . .  Given what the FBI and OIPR knew at the time, it should have resulted in the submission of a FISA application, and the issuance of a FISA order.⁴⁰

 

The Bellows team concluded that OIPR had been too conservative with the Wen Ho Lee FISA application, a conservatism that may continue to affect the FBI’s and DOJ’s handling of FISA applications.  The team found that with respect to OIPR’s near-“perfect record” before the FISA Court (only one FISA rejection), “[w]hile there is something almost unseemly in the use of such a remarkable track record as proof of error, rather than proof of excellence, it is nevertheless true that this record suggests the use of ‘PC+,’ an insistence on a bit more than the law requires.”⁴¹

 

The Bellows team made another finding of particular pertinence to the instant issue.  It found that “[t]he Attorney General should have been apprised of any rejection of a FISA request . . . .”⁴²  In effect, FBI Headquarters rejected the Minneapolis Division’s request for a FISA application, a decision that was not reported to then Acting Director Thomas Pickard.  Director Mueller has adopted a new policy, not formally recorded in writing, that he be informed of the denial within the FBI of any request for a FISA application.⁴³  However, in an informal briefing the weekend after this new policy was publicly announced, the FBI lawyer whom it most directly affected claimed to know nothing of the new “policy” beyond what he had read in the newspaper.  From an oversight perspective, it is striking that the FBI and DOJ were effectively on notice regarding precisely this issue: that the probable cause test being applied in FISA investigations was more stringent than legally required.  We appreciate the carefulness and diligence with which the professionals at OIPR and the FBI exercise their duties in processing FISA applications, which normally remain secret and immune from the adversarial scrutiny to which criminal warrants are subject. Yet, this persistent problem has two serious repercussions. First, the FBI and DOJ appear to be failing to take decisive action to provide in-depth training to agents and lawyers on an issue of the utmost national importance.  We simply cannot continue to deny or ignore such training flaws only to see them repeated in the future.

 

Second, when the DOJ and FBI do not apply or use the FISA as fully or comprehensively as the law allows, pressure is brought on the Congress to change the statute in ways that may not be at all necessary.  From a civil liberties perspective, the high-profile investigations and cases in which the FISA process appears to have broken down is too easily blamed on the state of the law rather than on inadequacies in the training of those responsible for implementing the law.  The reaction on the part of the DOJ and FBI has been to call upon the Congress to relax FISA standards rather than engage in the more time-consuming remedial task of reforming the management and process to make it work better.  Many times such “quick legislative fixes” are attractive on the surface, but only operate as an excuse to avoid correcting more fundamental problems.

 

4.