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The Crimes of 9/11
March 1, 2003
By Mark G. Levey

The recently-concluded Congressional Joint 9/11 Inquiry confirmed that ranking Bush Administration national security and intelligence officials negligently mishandled counterterrorism operations, misconduct which makes them liable to criminal prosecution and huge civil damages [see, THE CRIMES OF 9/11: Bush Administration, CIA and FBI Misconduct Caused "Intelligence Failure", Part 1 and Part 2].

Within days of the crime, the White House was hard at work obstructing an independent commission of inquiry, and drafting legislation which would indemnify federal agents for offenses that contributed to the loss of 3,000 innocent lives on September 11, 2001. A draft of the so-called "Patriot II Act" ("The Domestic Security Enhancement Act of 2003") was leaked from the Justice Department in February. That document shows that the Bush Administration is now trying to legalize previously unlawful official acts, in particular, a domestic surveillance operation of al-Qaeda hijackers conducted without warrants, and other crimes of negligent homicide and obstruction of justice that flowed from that misguided operation. Taken together, the intelligence crimes of 9/11 and the legal cover-up that followed are an enormous and growing scandal just waiting to explode inside the Bush White House.

A Warrantless Domestic Surveillance Operation (01/15/00 - 9/11/01)

Testimony heard by the joint 9/11 committee in September and October revealed that the CIA and FBI had been running a foreign surveillance operation involving several key al-Qaeda hijackers and operations directors, and this covert operation apparently was allowed to spill over into the U.S. [see, Federation of American Scientists site for a compendium of testimony heard by the congressional panel].

Criminal violations of federal law and agency regulations occurred when CIA and FBI counterterrorism officials assigned to the CIA's Counterrerrorism Center (CTC) failed to promptly obtain warrants to surveil al-Qaeda operatives who had reentered the US on January 15 2000 after attending a terrorist summit held in Kuala Lumpur, Malaysia. That meeting was closely watched by US intelligence, an operation that involved eight CIA stations and a half dozen allied agencies. [See, Written Statement for the Record of the Director of Central Intelligence Before the Joint Inquiry Committee, 17 October 2002; and, Oral Testimony of George Tenet Before the Joint Inquiry Committee, 17 October 2002]

Tenet testified on October 17 that the CIA along with the FBI knew in advance that al-Mihdhar and al-Hazmi would be traveling to a planned al-Qaeda planning summit in Malaysia, and that the CIA informed the Bureau al-Mihdhar had been identified as an attendee:

"In December 1999, CIA, FBI, and the Department of State received intelligence on the travels of suspected al-Qa'ida operatives to Kuala Lumpur, Malaysia. CIA saw the Kuala Lumpur gathering as a potential source of intelligence about a possible al-Qa'ida attack in Southeast Asia. We initiated an operation to learn why those suspected terrorists were traveling to Kuala Lumpur" [Tenet, prepared testimony, 10/17/02].

The Malaysia meeting seen by CIA as highly important - senior al-Qaeda figures were in Kuala Lumpur. The operatives there would have routinely been added to the terrorist watch list (denying them entry into the US) - if they had not already been under surveillance. Tenet acknowledges that al-Midhar was already being surveilled:

"In early January 2000, we managed to obtain a photocopy of al-Mihdhar's passport as he traveled to Kuala Lumpur. It showed a US multiple-entry visa issued in Jeddah on 7 April 1999 and expiring on 6 April 2000. We learned that his full name is Khalid bin Muhammad bin 'Abdallah al-Mihdhar.

"We had at that point the level of detail needed to watchlist him-that is, to nominate him to State Department for refusal of entry into the US or to deny him another visa. Our officers remained focused on the surveillance operation, and did not do this." [Tenet, Prepared Testimony, Ibid.]

For unexplained reasons, Khalid al-Mihdhar and Nawaf al-Hamzi, who led the hijacking of AA Flight 77 that slammed into the Pentagon, were nonetheless subsequently allowed to enter the U.S., where they moved around the country, attending flight training, and in Al-Mindhar's case, was allowed readmission to the US on July 4, 2001 without a proper trainee visa. CIA Director Tenet testified on October 17:

"Khalid al-Mihdhar returned to the US on 4 July 2001 after nearly a year out of the country. He had spent the past year traveling between Yemen and Afghanistan, with occasional trips to Saudi Arabia. Al-Mihdhar returned to Saudi Arabia in June and on 13 June obtained a US [tourist] visa in Jeddah." [Tenet Prepared Testimony,10/17/02]

According to Tenet, the CIA learned in March 2000 that al-Mihdhar had slipped back into the country on a flight from Bangkok to LA on January 15 after having accompanied "Khallad" (an important al-Qaeda director) to a third-country. Other accounts state that the Agency knew of his entry in January. Whichever date actually applies, there is no record of a national security warrant application, and indeed no evidence that federal officers even attempted to obtain one, until mid-summer 2001.

The Joint Inquiry staff director, Eleanor Hill, concluded in her prepared statement of October 8 that al-Midhar and al-Hazmi had apparently never actually been the subject of a FISA warrant investigation, although they had been handled at CTC as if they were. Hill stated:

"[A] CIA employee advised two FBI employees in January 2000 regarding what the CIA knew about the activities of future hijacker Khalid al-Mihdhar in Malaysia, but not the fact that al-Mihdhar had a multiple entry U.S. visa. The CIA officer stated in an e-mail at the time that the FBI would be brought "into the loop" immediately as soon as "something concrete" was developed "leading us to the criminal arena or to known FBI cases." Perhaps reflecting the deadening effect of the long standing wall between CIA and FBI, the FBI agents reportedly thanked the CIA employee and "stated that this was a fine approach" even though the FISA wall did not apply in this case.

"Even in late August 2001, when the CIA advised the FBI, State Department, INS, and Customs that al-Mihdhar, al-Hazmi, and two other "Bin Laden-related individuals" were in the United States, FBI headquarters refused to accede to the New York field office's recommendation that a criminal investigation be opened, which would allow greater resources to be dedicated to the search for al-Mlhdhar. This was based on the reluctance of FBI headquarters to utilize intelligence information to draw the connection between al-Mihdhar and U.S.S. Cole bombing that would be necessary for a criminal investigation. FBI headquarters lawyers took the position that criminal investigators "CAN NOT" be involved and that any substantial criminal information that might be discovered would be "passed over the wall" according to proper procedures. Again, the FBI apparently applied the FISA "wall" procedures to a non-FISA case." (emphases added) [see, http://www.fas.org/irp/congress/2002_hr/100802hill.html]

There are a couple reasonable explanations for why the FBI acted as it did: 1) the FBI, or some parts of it, knew about the surveillance of al-Mihdhar and al-Hazmi, who by some accounts were already in the US in late 1999 (see, Newsweek, "The Hijackers We Let Escape", June 5, 2002) - these FBI counterterrorism officers may have believed that FISA warrants had already been obtained, which would allow continued surveillance after al-Mihdhar and al-Hazmi returned from Malaysia on January 15; or, 2) ranking FBI and CIA officers at CTC agreed that the operation should remain within the purvey of the Agency, which is legally prohibited from conducting solo domestic counterterrorism operations - this would mean that the surveillance of the pair (and others they made contact with) would continue to be conducted without a warrant.

These explanation at least answers the nagging question posed by a member of the FBI New York office in his September 20 testimony before the Inquiry:

"I, myself, still have two key questions today that I believe are important for this committee to answer. . . First, if the CIA passed information regarding Al-Mihdhar and Al-Hazmi to the FBI prior to the June 11, 2001 meeting - in either January 2000 or January 2001 - then why was that information not passed, either by CIA or FBI Headquarters personnel, immediately to the New York case agents, criminal or "Intel", investigating the murder of 17 sailors in Yemen when more information was requested? A simple answer of "The Wall" is unacceptable. Second, how and when did we, the CIA and the FBI, learn that Al-Mihdhar came into the country on either or both occasions, in January 2000 and/or in July 2001 and what did we do with the information?" [see, http://www.fas.org/irp/congress/2002_hr/092002fbi.html]

Unanswered questions certainly remain. If al-Mihdhar was in the U.S. until late in the summer 2000, as Tenet states, and the CIA knew about this no later than that March, why is there no record that surveillance warrants were sought during the 6-9 month period prior to his departure in autumn 2000? Since 1978, with passage of the Foreign Intelligence Surveillance Act (FISA), federal officers have been required to obtain national security warrants from a special court in order to carry out electronic surveillance of suspected foreign agents, spies and terrorists detected inside the U.S. Either al-Mihdhar (and al-Hazmi, among others) was allowed to roam around the US unhindered - openly meeting other al-Qaeda cell members and supporters, receiving funds from supporters in the U.S. and wired from abroad, and taking flight training - or else, he was indeed closely observed doing this, but without a legal warrant.

The former course - failure because of incompetence by law enforcement and national security officials to locate and surveil an al-Qaeda operative known to be at large inside the U.S. - however implausible, would amount to an act of reckless endangerment and dereliction of duty so immense as to be nearly incomprehensible, given the foreseeable and actual consequences. The latter course - the conduct of a covert operation to watch al-Mihdhar, et al., but without obtaining a FISA warrant - is entirely illegal, but certainly understandable if one assumes, as seems to have been the case, that ranking CIA and FBI counterterrorism officers believed that warrant applications would complicate or compromise the security of an immensely important mission. Unfortunately, given the actual outcome - the loss of 3,000 lives - this latter course was also manifestly reckless in conception and execution. In either case, the failure to follow legal procedures and seek warrants was a criminal act - that set off a chain of causation leading inevitably to the deadly collapse of the World Trade Center - for which responsible officials must be prosecuted.

Why would US counterterrorism take such extraordinary (and reckless) actions? The answer may well be that the al-Qaeda surveillance operation was, as Tenet acknowledged, a joint intelligence operation, involving "a half-dozen liaison services". In addition to the FBI and NSA, and Malaysian intelligence who took photos on the ground, who else was involved? The obvious answer to this is Saudi intelligence and possibly Pakistani ISI, both of which are riddled with al-Qaeda sympathizers and double-agents.

Is it possible that these same foreign intelligence agencies had extended their own covert surveillance operations inside the US, and this was going on with the knowing acquiesance of US intelligence? Furthermore, was there some misplaced reliance by American officials on the ability of these foreign agencies to maintain control over their assets within al-Qaeda. If so, this control ultimately failed, and the shape of the disaster to come was understood by all the parties on August 31, when Prince Turki Al-Faisal bin Abdulaziz Al-Saud, Head of General Intelligence ended his role as intermediary between CIA and Usama bin Laden. [see, The London Times, 10/18/02, Richard Beeston and Michael Evans, "Bin Laden Contact to Become Saudi Arabia's Man in London; Former spy chief named in September 11 lawsuit is likely to be welcomed by the diplomatic community"]

On September 4, The Saudi Gov't announced that Prince Turki's departure was "by his own request" . Prince Turki had been head of Saudi foreign intelligence for 24 years, and had just been reappointed on May 24 to a new 4-year term. By an interesting coincidence, this same day Prince Turki's "resignation" was announced, Robert Mueller was sworn in as FBI Director, and Pakistani ISI Chief Gen. Ahmed arrived in the US for consultations with the CIA, Pentagon and DIA during the following week. This chain of events squares with Senator Graham's observation that the true facts behind the 9/11 "intelligence failure" involve "a couple of foreign intelligence agencies", and these facts may become public in 50 years when the national archive records are finally opened.

Terrorism Alert Stand-Down (August-September 2001)

Furthermore, ranking Bush Administration national security and intelligence staff were aware that FBI field offices were frantically searching for these suspected terrorists, but for some as yet unexplained reason in early August, the Administration negligently stood down a high terrorism alert that had been raised earlier that summer. The Washington Post reported later that CIA Director George Tenet was "nearly frantic" with worry about terrorist threats in late June. A meeting of commanders of all federal counterterrorism agencies was held in the White House Situation Room on July 10. Nontheless, after President Bush was briefed on August 6 about terrorist threats, he retired to a long vacation at his Crawford, TX ranch. At this time, the CIA counterterrorism center and at FBI headquarters went into duck and cover mode without notifying other federal agencies of the identies of known al-Qaeda operatives in the U.S. until August 23, when four names were added to the immigration and State Department watchlists. Even then, no general alarm was sounded that might have led law enforcement or civil aviation authorities, which had several opportunities, to arrest the suspects.

Obstruction of FBI Field Investigations in New York and Milwaukee (June - September 2001)

With reckless disregard for the known dangers in the final weeks before the attack, CIA officers obstructed FBI field investigations and refused to provide FBI agents in New York and Milwaukee information that had been requested from the Agency. The CIA had surveilled several of the subjects at the al-Qaeda planning summit in Malaysia held in January 2000. When asked to provide details about this surveillance operation at a June 10 meeting with the NY FBI office, the CIA declined to turn over its dossier which would have aided agents there in obtaining warrants to track down other al-Qaeda known to be loose in the country. Similar requests from the Milwaukee Bureau field office were refused by the CIA, forcing agents there to abandon efforts to obtain warrants to open Zacarias Moussoui's laptop computer.

Section 106 - The Get Out Of Jail Free Card

In this context, we turn to Section 106 of the draft Patriot II Act. The proposed law contains a virtual "Get Out of Jail Free" card for those federal officers who by negligence, culpability, or complicity allowed al-Qaeda to carry out the largest act of mass murder in American history. The January 9 Justice Department analysis of the Act explains its significance:

Section 106: Defense of Reliance on Authorization.
50 U.S.C. 1809(b) and 1827(b) create a defense for agents who engage in unauthorized surveillance or searches, or who disclose information without authorization, if they were relying on an order issued by the FISA Court. However, there does not appear to be a statutory defense for agents who engage in surveillance or searches pursuant to FISA authorities under which no prior court approval is required--e.g., pursuant to FISA's wartime exception (50 U. S.C. 1811, 1829 & 1844), or FISA's presidential authorization exception (50 U.S.C. 1802 & 1822(a)). This provision would clarify that the "good faith reliance" defense is available, not just when agents are acting pursuant to a FISA Court order, but also when they are acting pursuant to a lawful authorization from the President or the Attorney General. [see, http://www.dailyrotten.com/source-docs/patriot2draft.html]

Laws may be applied retroactively when this benefits a criminal defendant. When Prohibition was eliminated in 1933, ongoing prosecutions for simple possession and distribution offenses were nullified. Similarly, passage of Section 106 of Patriot II would likely have the effect of halting any 9/11-related prosecution efforts to enforce FISA warrant provisions. Since violation of the FISA requirements are a core part of the offense, it is possible that prosecutions for related offenses of obstruction of justice would also have to be abandoned. With those core parts of the case gutted, obtaining a conviction for the deaths of the 3,000 victims under negligent homicide or reckless endangerment statutes would be far more difficult to obtain.

It is the recommendation of the author that the people bring pressure to bear upon Congress to convene hearings on the apparent violation of law by US officials and the Administration's attempt to engineer a cover-up. Legislation should be drafted to prohibit the retroactive immunization of officials for crimes committed that contributed to the death and destruction on 9/11. Meanwhile, a State Attorney General or District Attorney with appropriate jurisdiction over the above-mentioned acts could bring an indictment before a grand jury to determine whether charges will be handed down to prosecute under State law the crimes that occurred on 9/11. Ultimately, the solution to this injustice rests with the people of the United States to demand prosecution.

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