Jonathan Turley
http://www.NewsAndOpinion.com | The media and the public love a reformer. This may explain the reaction this week to the Rowley memo, a thirteen-page letter from FBI agent Coleen Rowley criticizing the investigation of Zacarias Moussaoui. Rowley has been portrayed by national publications like TIME in almost breathless terms as a cross between Martin Luther and Annie Oakley. What is astonishing is how little of her memo has actually been read or quoted beyond its most sensational suggestions, such as the notion that Rowley and her colleagues might have been able to prevent the Sept. 11th attacks. On closer examination, there is little support for such suggestions and the most disturbing elements of the memo have gone completely unreported.
Rowley's criticism of the FBI largely turns on their disagreement over the meaning of probable cause. Rowley insists that there was probable cause to secure a search warrant for Moussaoui's computer and personal effects. The FBI headquarters disagreed and it was right.
On August 15, 2001, Moussaoui was arrested by the Immigration and Nationalization Service (INS) on a charge of overstaying his visa. At that time, the Minnesota office only had an "overstay" prisoner and a suspicion from an agent that he might be a terrorist because of his religious beliefs and flight training. If this hunch amounted to probable cause, it is hard to imagine what would not satisfy such a standard.
Rowley, however, insists that the FBI was wrong because the warrant was ultimately approved on Sept. 11th after the attacks. This warrant contained the same information from the Minnesota office that was viewed as insufficient before the attacks. Rowley rejects the notion that the attacks in any way "improved or changed" the basis for probable cause. In her view, if probable cause existed on Sept. 11th, it must have existed before Sept. 11th. This is simply wrong as a matter of law. The attacks were extremely material to whether there was probable cause against Moussaoui. To suggest that these attacks did not "improve or change" the basis for probable cause reveals a fundamental misunderstanding of this legal standard.
Rowley also places importance on a French report that "confirmed [Moussaoui's] radical fundamentalist Islamic" affiliations. This report, however, was extremely vague and discounted not only by the FBI but by other intelligence and foreign agencies. Finally, Rowley notes that their suspicions were magnified by Moussaoui's refusal to permit a search of his property. However, Moussaoui's assertion of a constitutional right cannot be used as a "signal [that] he had something to hide."
What emerges from the memo is a disturbing view of such constitutional standards. For example, Rowley states that she believed that agents should not have been deterred in their interrogations by Moussaoui's invocation of his right to remain silent and to have counsel. Instead, Rowley suggests that a limited "public safety exception" should be expanded to virtually negate those protections of the Fifth Amendment. This exception has been used to allow police to question a suspect at a crime scene about the location of a discarded gun in order to protect children and citizens. Rowley would use this exception in cases like Moussaoui where there is a suspicion and a desire for continued interrogation. Such an exception would not only swallow the rule in the Fifth Amendment, but it could easily extend to Sixth Amendment protections as well.
The Rowley memo, however, does contain some new and important information. One such fact relates to the use of a controversial secret court that is little known to most Americans. It has long been suspected that agents have used the Foreign Intelligence Surveillance Act (FISA) Court in cases where they lack evidence to secure a constitutional warrant. Viewed by many as facially unconstitutional, the FISA court allows the government to search citizens without a showing of probable cause.
The citizens never know that their homes and computers were the subject of a search. Under federal law, this court cannot be used as an alternative to a conventional warrant simply because there is insufficient evidence to meet the constitutional standard. Rowley, however, confirms this unlawful practice. When it was determined that the Minnesota office lacked probable cause, she suggested that they simply file for a FISA secret search "as a tactical" option. This explains why, even before Sept. 11th, FISA searches annually equaled or exceeded the number of federal wiretap warrants for all other crimes ranging from drugs to kidnapping. We are gradually shifting searches from the Fourth Amendment process to a secret court that is neither mentioned nor consistent with the Constitution. Ironically, this is the one aspect of the memo that has received no attention in the media or in Congress.
The Rowley memo is now being used to support reforms announced this week by the FBI. Ironically, these "reforms" cut back on "reforms" implemented after such scandals as the Richard Jewell and Wen Ho Lee investigations. Those abusive investigations involved hunches that were allowed to mutate into full investigations with disastrous consequences. In the Jewell case, agents were allowed to proceed on little evidence and then became committed to their ill-conceived theory. Not only do such investigations produce terrible abuses, but they diminish the effectiveness and resources in pursuing more substantial leads. Had Rowley articulated her views of the Constitution after the Jewell case, she would have been viewed as a reactionary rather than a reformer.
In reality, there was very little information on Moussaoui's computer and it is highly unlikely that this information would have led to the terrorism plot. Anything, of course, is possible. However, the suggestion that concerns over constitutional rights prevented Rowley and company from stopping the attacks is absurd.
What is compelling is Rowley's criticism of the failure to share information within the FBI and the failure to collect available intelligence on individuals like Moussaoui. Such criticisms of FBI incompetence are, of course, well-established and well-known. However, the specific failings that she describes in the Moussaoui case actually show a level of scrutiny and judgment that was missing in earlier cases. There is need for structural reform but we should not allow the FBI to "reform" itself into a prior image.
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JWR contributor Jonathan Turley teaches constitutional law at George Washington University Law and has served as counsel in a variety of national security and espionage cases. Comment by clicking here.
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