The Intelligence Crimes of 9-11
Part II - Prosecuting the Officials


The first thing that was apparent to investigators on the scene of the World Trade Center, Pentagon and Pennsylvania crash sites was that a crime of mass murder and conspiracy had taken place. The next two questions that should have been asked were: how did this sort of coordinated attack against multiple targets happen, and what sort of negligence (or worse) by US officials allowed it to happen as it did?

Somewhere between question two and question three there was a disconnection. Certain obvious lines of inquiry were cut-off because the same agencies that investigated the crime were also charged with operations to detect and prevent it before it even happened. This set up a fundamental conflict of interest, quite frankly, one which is insurmountable under the present political circumstances. Namely, the Executive, Legislative and Judicial branches of the federal government are controlled by the same political party that also has a vested interest in an investigative whitewash that would exonerate the Administration and its heads of law enforcement and intelligence community from any civil or criminal culpability for the 9/11 crimes.

The 9/11 attacks may have been "allowed to happen" -an explanation that is in some ways consistent with events. Certainly, it is a possibility (nauseating to contemplate), which cannot now be ruled out altogether. In this case, the US officials in command would have had some extremely compelling motives. Possibly, the intent was less lethal -the hijackings may have ended up going terribly wrong in ways that were not anticipated by officials. Such a large loss of life may not have been entirely expected, even by al-Qaeda commanders. However, any Americans who knowingly allowed passenger airliners to crash into the World Trade Center towers and the national headquarters of the US military must have believed they were performing some sort of sacrificial purpose of overriding moral or national importance -preserving American hegemony in the Middle East, or continued access to endangered energy supplies. Was 9/11 based in some esoteric scenario planning that projected the Saudi Royals falling to a Khomeini-style revolution by 2005, and a nuclear clash of civilizations that followed, unless something dramatic happened to upset the historical trends? Perhaps there was a simple commercial motive -to drive up the cost of oil. One struggles to comprehend the moral depravity of such motives, but they must be considered, nonetheless.

The best place to obtain an answer to these questions would be before a federal grand jury.

By late 2000, the four primary 9/11 hijackers had entered the US, where they enrolled in flight training without proper visas. Separate testimony given to Congress reveals that the FBI had surveillance on al-Qaeda cell members in the US long before 9/11, and FBI headquarters had received numerous reports of suspected terrorist pilots from its field offices. In fact, Khalid al-Midhar and Nawaf al-Hazmi who hijacked Flight 77 that crashed into the Pentagon, lived in the apartment of an FBI informant in San Diego during the autumn of 2000. Several other 9/11 hijackers, including Mohamed Atta, lived with or visited the two in San Diego and in other locations. All four key 9/11 hijackers had attended US flight schools or rented aircraft. Neighbors frequently observed these individuals using PC flight simulator games, talking on cell phones outside their apartment, and being picked up in limousines late at night. Who were they talking to and meeting with? Who was listening and watching? The cover story that the FBI was kept in the dark by CIA does not hold up. The facts now indicate a different chain of events leading to 9/11 - and a different sort of intelligence failure, suggesting an entirely different set of solutions. A limited circle of ranking officials in both agencies were aware of the identities of the primary hijackers, and that they were in the US By the summer of 2001, the principal al-Qaeda members in the United States were already so closely monitored that the CIA may have thought it an acceptable risk to allow Mohamed Atta and two other al-Qaeda operatives (already under intense scrutiny by the CIA and FBI) to reenter the US in the final months of planning prior to the attack.

Obviously, something went terribly wrong at that point with this joint surveillance operation, as well as with the individual roles played by the CIA and FBI counterterrorism. At minimum -even if there was no criminal intent on the part of US officials- the heads of both agencies bear joint responsibility for the gross mishandling of the operation. The American people are now asked to believe that the 9/11 attack boils down to a failure by low-level officials to watch-list [notify other federal agencies (e.g., INS, FAA)] about the identities of known al- Qaeda operatives who held US visas. Tenet attempted to minimize the problems with US counterterrorism, and to counter the conclusion that there had been any fundamental flaws in judgment at the top. He implied that 9/11 was due to a training error affecting rank-and-file employees, a problem he assured Congress the Agency has since corrected. His prepared testimony states: "[t]here are at least two points before August 2001 when these individuals were on our scope with sufficient information to have been watch-listed. During the intense operations to thwart the Millennium and Ramadan threats, the watch-list task in the case of these two al-Qaida operatives slipped through. The error exposed a weakness in our internal training and an inconsistent understanding of watch-list thresholds. Corrective steps have been taken."

We may also consider the possibility that the crimes committed by US officials were primarily ones of omission. Even if their offenses were merely technical violations of agency rules, the watch-list issue is actually only part of a pattern of illegal and improper practices by US intelligence before 9/11. Rather than follow procedures that require surveillance of foreign terrorist suspects be formally transferred to the FBI once they enter the US, and that the Bureau seek warrants to continue surveillance operations, as required by law, there is no record of a CIA "hand-off" of these al-Qaeda operatives to the FBI. Nor is there any record that any federal agency sought a FISA surveillance warrant in this case. Either such records were withheld from Congress or, it seems more likely, regulations were not followed, and mandatory FISA court papers were not filed; thus, the CIA conducted a covert, illegal operation inside the United States -apparently, with some knowledge and cooperation of the FBI. Either course of action would have been illegal, a gross violation of the Agency's charter and the Bureau's rules. Such a major violation of law, in itself, would make decision- makers in both agencies responsible for all that happened thereafter. Potentially, US officials could be held liable for some 3,000 counts of negligent homicide, along with the attendant civil liabilities for harm to the 9/11 victims and their survivors.

Even if the letter of the law was observed, of course, the command authority is still responsible on a practical, political level. The sign on Harry Truman's desk read, "The buck stops here." Today, in the case of G.W. Bush, and DCI Tenet and FBI Director Mueller, the buck has been passed down onto the heads of the rank-and-file counterterrorism officers. This is perhaps a worse injustice than the crimes and errors that allowed 9/11 to happen to begin with. The effect of the USA Act appears to be an effort to legalize after the fact some of the then-unlawful practices committed by intelligence officials that allowed the 9/11 attack to occur.

The Myth of the Wall

The best available facts now indicate that the Bush Administration has lied to the American people and unjustly tried to scapegoat rank-and-file counterterrorism officers, most of whom themselves had been kept in the dark about the entry of al-Qaeda until mere weeks before the attack occurred.

It is not true, as unfairly alleged, that the working agents in CIA, FBI, NSA and other federal counterterrorism offices were totally incompetent and uncoordinated. They were not -they were misled and betrayed by their superiors.

It is not true, as has been claimed, that US intelligence was paralyzed by "the wall" during the summer of 2001. "The wall" was largely ignored in the al-Qaeda investigation, as it had been for a long time in such joint operations. Rather, there was no real breakdown of coordination between the Agency and the Bureau; instead, in dealing with Mr. Atta and his roommates before 9/11, the agencies operated in a cooperative but informal manner. As they had many times before, American intelligence did not officially "hand off" known terrorists to the FBI when they were observed entering the country. The FBI was not notified in the normally mandated way. When CIA learned that Atta and the others were returning to the US in the summer of 2001, there is no remaining record of written notice given the FBI in the joint Counterterrorism Center. As one examines the record closely, this is what seems to have actually happened: the ongoing CIA probe of al-Qaeda, known within the Agency as "The Plan", was considered by command authorities to be too sensitive and important to risk a breach of operational security by official notification, which would have been widely- disseminated. According to CIA Director Tenet, there was instead "informal notification" that went to a limited number of eyes.

Had the law been followed, FBI would have had to obtain FISA warrants to continue surveillance of the terrorist suspects after they entered the country. Instead, in at least one case, the FBI liaison officer at CTC was notified verbally by his Agency contact that a known al-Qaeda member had arrived at LA Airport. It has not been fully explained why this information not officially recorded at CTC, or whether it was passed up the chain of command. Both agencies are required to keep records, but in this case, the FBI and CIA testified to the Congressional committee that no record of an official pass-off was maintained. By every indication, he CIA continued to run its covert operation after al-Qaeda terrorists entered the United States, while the FBI had at least some knowledge.

The "family jewels" of US intelligence that the Bush Administration is presently trying to protect at all costs is the fact that Mr. Atta and his confederates, before they obliterated themselves, were the apparent focus of a CIA covert operation that was -for whatever reason- allowed to cross over the borders into the US Laws requiring FISA wiretaps were also ignored in the case of the al-Qaeda cells (there is no record that they were sought), [Foreign Intelligence Surveillance Act of 1978, 50 USC. § 1801-1863] as were regulations mandating a "pass-off" of surveillance to FBI within the US were violated [See Executive Order 12333 of Dec. 4, 1981, appears at 46 FR 59941, 3 CFR, 1981 Comp., p. 200, Part 2, Sec 2.5].

While Bureau liaison officers were apparently notified of the entry of Mr. Al-Midhar, official notification was not given to the Attorney General through his designate at the joint federal agency Counterterrorism Center. Such an operation appears to have breached the Agency's charter that prohibits domestic covert CIA operations and law enforcement activities. [National Security Act of 1947, 50 USC. § 401-441d] If this were to be the finding of a court or official investigation, it would also open responsible officials to liability for billions of dollars in damages in lawsuits by the victims of the 9/11 attacks. An admission or finding to this effect could politically destroy the CIA, and the Bush Administration along with it.

Inasmuch as "The Plan", the operation to neutralize Osama bin Laden, was launched during the Clinton presidency, Democratic leaders also have no real appetite for exhuming the details. All around, there are powerful interests that would prefer that the American people, in the often-repeated phrase "just get over it". Congress and President Bush, through amendment to USA PATRIOT and pardons, may well end up immunizing those responsible for breaking the law and their catastrophic breach of duty to protect the public. None of this necessarily implies that any US official really wanted 3,000 people to die on 9/11. We don't yet know why this operation ended as it did. That question will not be answered, however, except under oath before a Grand Jury or in later sworn testimony by former high officials. As to whether there is a real will to see justice done in open court, time will tell.

The closer one looks at 9/11 and subsequent events, three things become obvious:

· First, the principal hijackers were under close surveillance by US intelligence, both prior to and after their entry into the US

· Second, the FISA law and procedures governing domestic surveillance activities are not the real reason for the 9/11 intelligence "failure" -evasion of these same laws may have had a role, however, in the failure to timely notify the FBI National Security Division in New York, the National Security Law Unit in DC, and other domestic law enforcement agencies of the entry of some of the 9/11 hijackers known earlier to a limited circle of FBI and CIA officers assigned to the Agency's Counterterrorism Center.

· Third, after what happened on 9/11, handing the CIA and FBI even more power and independence with passage of the USA PATRIOT, which is a prescription for a greater disaster to come.

Seeing Through "The Wall"

"The greatest obstacle to domestic security in the war on terror is the worldview of the liberal elites." No sillier words have ever been written to sum up the American intelligence failure on 9/11 than these, written by Heather MacDonald in the Summer 2002 edition of City Journal, a glossy policy magazine published by the neo-conservative Manhattan Institute.

Ironically, no more detailed statement of the Bush Administration version of 9/11 and passionately-argued rationale for passage of the USA PATRIOT Act has thus far appeared in print than Ms. MacDonald's diatribe against Clinton-era intelligence policies. The crux of Ms. MacDonald's thesis has a familiar ring: 9/11 happened because "the liberal establishment" sabotaged and hamstrung the FBI with a bunch of foolish regulations. Her version of right-wing conspiracy theory is as follows: Janet Reno's Justice Department was riddled with "civil libertarian zealots", who erected "the wall", a bureaucratic barrier that successfully tripped up America's counterterrorism investigators in the days before the attacks.

There is one big problem with "the wall" theory and efforts to blame Clinton, liberals, and civil libertarians for the counterterrorism failure -9/11 happened on Mr. Bush's watch. For eight months, Mr. Bush's appointee, Attorney General John Ashcroft, had been in control of the Justice Department, and he could have changed operating procedures (based as they were in Presidential Orders), if indeed they were perceived then to be a real problem for FBI investigators. From all accounts, however, John Ashcroft showed little interest in counterterrorism. He launched no new initiatives to beef-up what has become known as Homeland Security. In fact, before 9/11, he proposed cuts to the FBI's counterterrorism office. That much can't be denied. It can be obscured, however, and that has been the point of the mudslinging and blame-shifting campaign of which MacDonald's City Journal piece is a part.

What Is "The Wall"? According to Ms. MacDonald, "the wall" was developed "in the airless world of civil libertarian absolutism." After the intelligence abuses of the Watergate era came to light, Congress passed the 1978 Foreign Intelligence Surveillance Act (FISA). That law set a requirement that the FBI obtain warrants to wiretap suspected spies and terrorists operating inside the country. Guidelines were put into place over the FBI's and CIA's electronic surveillance of foreign nationals. For the first time, warrants would be needed to spy on persons who could be shown to be engaged in some sort of hostile or illegal acts, such as espionage and terrorism. FISA formed the basis of what was dubbed "the wall". "The wall" needs to be put into historical perspective of the elaborate domestic spying campaigns of the recent past. The FBI's COINTELPRO operations had included some very serious crimes against American dissidents during the McCarthy era through the mid-1970s. The CIA also played a political policing role under the guise of foreign counterintelligence operations, as the Church and Pike committee investigations revealed. During the Vietnam era, Presidents Johnson and Nixon justified domestic spying on the grounds (unsupported, as it turns out) that the anti-war and civil rights movements were believed to be financed by the Kremlin. The post-Watergate FISA requirements have not been popular with many Bureau gumshoes and Agency spooks, who continue to see warrants as inconvenient paperwork.

The warrant procedures mandated by FISA are not particularly complicated. In seeking a surveillance warrant against foreign suspects in the US, FBI Investigators have to seek permission within the Justice Department from a legal office, the Office of Intelligence Policy and Review (OIPR), which would in turn apply for warrants to a three-judge court. In reality, the court has not been overly-restrictive. In its 24 years of operation, the judges have declined only one of several thousand applications for FISA wiretaps. "The wall" also mandated that intelligence investigations be separated as much as possible from criminal cases. This is actually not entirely new. For decades prior to enactment of the USA PATRIOT Act, the findings of Grand jury proceedings had been officially off-limits to intelligence. This was done to preserve the integrity of evidence that might later be introduced in court. Fourth Amendment protections previously also meant that criminal warrants could not be based on evidence obtained from FISA wiretaps. The system adjusted to this stricture by duplication and compartmentalization of functions within the FBI.

The other side of "the wall" -the statutory bar on domestic CIA spying- has proven far more problematic. By law, and in theory, the CIA is not supposed to conduct any domestic surveillance, counterterrorism, or covert operations inside the United States. These functions within the US are mandated as the reserve of the FBI. The present rules, as shaped by the 1947 law that created the CIA, and subsequent presidential directives, state that the Agency is required to notify the Attorney General of any covert operations that might spill over onto American soil if these involve significant risk to American lives or interests. The rules say the Agency must "hand-off" surveillance operations to FBI as soon as they know that potentially dangerous suspects enter country. These timely notification, warrant and pass-off requirements were not met in the case of the al-Qaeda operatives. The Agency appears to have thus violated its Charter by operating foreign agents inside the country.

When Congress created the CIA in the 1947 National Security Act (NSA), it drew the lines very sharply between the agency and the FBI in order to protect civil liberties. Thus, it prohibited the CIA from exercising any "police, subpoena, law-enforcement powers, or internal security functions." The Church Committee found that the CIA had operated with no congressional oversight. Subsequent events show the difficulty of ensuring accountability of secret agencies. Even after enactment of the Intelligence Oversight Act of 1980 requiring the CIA to keep the oversight committees fully and completely informed of its activities, it continued to operate outside the confines of the law. The Reagan White House, for example, used the CIA to end-run legal limits on US support for the Nicaraguan Contras, and CIA officials then lied to Congress about those activities.

One of the key reforms of the 1970s, in addition to the creation of the congressional oversight committees, was the attempt to enforce the original intent of the National Security Act: to create a wall between law enforcement and intelligence agencies and to eject the CIA from domestic activities. That wall has been most visible in the statutory authorities for eavesdropping: Title III governs wiretapping in the investigation of crimes and the 1978 Foreign Intelligence Surveillance Act (FISA) governs wiretapping of agents of a foreign power inside the United States for the purpose of gathering foreign intelligence. The distinction is also mirrored in the Attorney General Guidelines first promulgated by Edward Levi, which in the absence of any statutory charter for FBI investigations, set out the rules for Bureau activities. Those guidelines provide one set of rules for criminal investigations and another for gathering foreign intelligence relating to espionage or international terrorism inside the United States. The rules for gathering foreign intelligence allow the government much wider latitude to gather information about Americans and keep it secret than are allowed under the criminal investigation rules.

Perhaps the most important protection against domestic abuses by the CIA, however, resides not so much in the Attorney General Guidelines, which have since been weakened, but in the different functions assigned to the CIA and the FBI. The CIA has been confined to gathering foreign intelligence abroad regarding the intentions and capabilities of foreign powers for use by government policymakers. The FBI has been responsible for law enforcement and for counterintelligence activities inside the United States, both counterespionage and the conduct of international terrorism investigations.

"This difference in functions has been mirrored in the difference in agency methods. The CIA acts overseas and in secret, those activities are frequently illegal, and it collects information without considering individual privacy, Miranda rights, or evidence admissibility requirements. It is tasked not just with collecting information, but also with covert disruption and prevention. The agency gives the highest priority to protection of its sources and methods. In contrast, the FBI's law enforcement efforts involve the collection of information for use as evidence at trial, and its methods and informants are quite likely to be publicly identified. Perhaps most significantly, and unlike intelligence agencies, law enforcement agencies must always operate within the law."

Conclusion

9/11 was not first time that the Agency ignored the law. But, on this occasion -with the arrival of Mohammed Atta, Jarrah Khalid Almidhar and Nawaf Alhazmi- (all of whom had been watched by the CIA and FBI for many months abroad), official disregard for the law has had the most disastrous consequences. Justice, and the law require that those responsible also pay the consequences. The USA PATRIOT Act is worse than just an assault on the Constitution -it gives people false hope that the problems with US counterterrorism have been addressed. This leaves America more open than ever to further attacks, from enemies above and within, as well as from abroad.


© The News Insider 2003

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Mark G. Levey is a legal writer who lives in the Washington, DC, area. He has written for The Boston Globe, Foreign Policy, and Technical Analysis of Stocks & Commodities Magazine. He is formerly Associate Editor of Immigration Law Report. His work on 9/11-related legal issues has been widely published on the Web, including Cooperative Research/PI911, ZNet, DemocraticUnderground and the European Journal of International Law".

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Complete article at http://www.newsinsider.org/commentary/intelligence_crimes_of_911_p2.html

 


There was a backwoods congressman who opposed the U.S.-Mexican War of 1846-48. He criticized the U.S. Army even as it fought, charging that the troops had "marched into peaceful Mexican settlements, and frightened the inhabitants away from their homes." He charged that President James Polk was waging war to win votes. He was derided in some circles as a traitor, but today his face is on a coin and a memorial to his courage stands as a national monument; his name was Abraham Lincoln.

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We are veterans of the United States armed forces. We stand with the majority of humanity, including millions in our own country, in opposition to the United States' all out war on Iraq. We span many wars and eras, have many political views and we all agree that this war is wrong. Many of us believed serving in the military was our duty, and our job was to defend this country. Our experiences in the military caused us to question much of what we were taught. Now we see our REAL duty is to encourage you as members of the U.S. armed forces to find out what you are being sent to fight and die for and what the consequences of your actions will be for humanity. We call upon you, the active duty and reservists, to follow your conscience and do the right thing.

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This is a crazy world. What can be done? Amazingly, we have been mislead. We have been taught that we can control government by voting. The founder of the Rothschild dynasty, Mayer Amschel Bauer, told the secret of controlling the government of a nation over 200 years ago. He said, "Permit me to issue and control the money of a nation and I care not who makes its laws." Get the picture? Your freedom hinges first on the nation's banks and money system. Freedom is connected with Debt Elimination for each individual. Not only does this end personal debt, it places the people first in line as creditors to the National Debt ahead of the banks. They don't wish for you to know this. It has to do with recognizing WHO you really are in A New Beginning: A Practical Course in Miracles, an informational study.

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