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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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