9/11, al Qaeda, FISA, Mike Lee, Patriot Act, President Trump, Rand Paul

Renew the Patriot Act provisions or risk another 9/11

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A police officer plays Taps in The Pit at the WTC's Ground Zero on the 1st anniversary of 9/11.

A police officer plays Taps in The Pit at the WTC’s Ground Zero on the 1st anniversary of 9/11

Before the Patriot Act, the FBI would have been stymied had it conducted a counter-terrorism investigation involving a now infamous American agent of a foreign power.

Anwar al-Awlaki was born in the United States.

Apparently, Senators Rand Paul and Mike Lee believe the only thing worth remembering about him is President Obama “illegally” had him killed in Yemen using a Hellfire missile. (No matter that al-Awlaki: had sent “panty bomber” Abdulmuttalab to blow up a passenger plane over Detroit; attempted to blow up a DHL cargo airplane in flight; had become the well-publicized spiritual leader of Al Qaeda in the Arabian Peninsula (AQAP); and was heavily guarded in Yemen’s remote tribal areas – sending Americans into those wilds to arrest him would have been difficult and dangerous.)

Others vividly recall that al-Awlaki twice met with 9/11 hijackers.

I agree with former federal prosecutor Andrew C. McCarthy that the collection of metadata should be abolished. Further, I agree that federal judges are unqualified to conduct national security. Republicans and Democrats in Congress have repeatedly abdicated their oversight responsibilities of our intelligence community. Now, some Republicans are seeking to give the FISA court even more authority; far too many Democrats – who seek to vest America’s foreign enemies with our Constitutional Rights – are cheering them on.

Senators Paul and Lee seem to assume America could also safely let the business records and roving wiretap provisions of the Patriot Act expire after March 15, 2020.

Yet Americans would be less safe, and what would have happened had the FBI investigated Anwar al-Awlaki before 9/11 helps to demonstrate why. He was an American and without a suspected crime to bring before a federal criminal court judge, the FBI’s counter-intelligence investigators would have needed to clear each subpoena for business records and wiretap with the FISA court.

The background

In late 1999, Saudi Arabia informed our CIA that members of al Qaeda were about to meet in Malaysia. While Khalid al-Mihdhar was en route to there, the CIA had a foreign intelligence agency enter his hotel room and copy his passport which included an open-ended visa to the United States.

Khalid al-Mihdhar was known by the FBI to be the son-in-law of Ahmed al-Hada who ran al Qaeda’s telecommunications relay in Yemen. In 1998, U.S. embassy (Nairobi) bomber Mohamed Rashed Daoud Al-Owhali told the FBI he called al-Hada’s phone number to relay messages to Osama bin Laden. The FBI’s NYC field office was investigating the two embassy bombings and conducting counter-terrorism investigations of al Qaeda; al-Mihdhar entering America would have caused the FBI to investigate.

In January of 2000, the CIA failed to inform the FBI that future hijacker al-Mihdhar had a visa to enter the United States.

That April, the CIA then failed to tell the FBI that al Qaeda member and future hijacker Nawaf al-Hazmi (who the CIA observed with al-Mihdhar in Malaysia) arrived in Los Angeles from Thailand on January 15, 2000. The CIA did not know that al-Mihdhar was also on that plane; the agency with the authority to investigate inside the United States (the FBI) soon discovered it after 9/11.

Further, in 2006, the CIA’s Inspector General reported that none of the “50 to 60” people at the CIA who read – before 9/11 – about al-Mihdhar’s visa and al-Hazmi’s arrival in Los Angeles had complied with the CIA’s own directive requiring those officers to place the two on the terror watch list.

What might have been

What if the CIA had ensured their January 2000 cable was sent to the FBI? And what if the FBI placed al-Mihdhar on the terror watch list, opened up an investigation, and he was spotted when he arrived in Los Angeles the following week?

To that point, al-Mihdhar and al-Hazmi had committed no federal crime. It would have necessitated an intelligence investigation that would have almost certainly led to al-Awlaki.

And al-Awlaki’s travels almost certainly would have led the FBI to Hamburg, Germany. (More on this in a moment.)

An FBI informant lived in the same apartment complex and socialized with al-Hazmi and al-Mihdhar. The latter had a home phone for his apartment, using his real name, and was listed in the San Diego directory. But except for nine phone calls to his father-in-law’s number in May of 2000 after his wife gave birth in Yemen, he did not use that phone to communicate with anyone involved in the 9/11 plot. (The NSA did not routinely investigate calls between known foreign threats and those in America before the Patriot Act due to, as former FBI Director Robert Mueller later testified, “an abundance of caution for the privacy of U.S. persons.”) 

The FBI’s informant also observed two Saudi Arabians from those once secret ‘28 pages’ socializing with al-Mihdhar and al-Hazmi. One of those Saudis lived in that same apartment complex in San Diego. Both regularly attended prayers services conducted by al-Awlaki. Both received significant funding from the Saudi government (which had also funded the mosque).

If fact, one of those Saudis brought al-Mihdhar and al-Hazmi to meet al-Awlaki at that mosque within days of their arrival in January of 2000.

The other Saudi communicated with Ramzi bin al-Shibh in Germany by both phone and email several times during 2000 supposedly (per those emails) looking for a wife to marry.

And bin al-Shibh was the plot communications relay between 9/11 mastermind Khalid Sheikh Mohammed and lead hijacker Mohamed Atta.

That same Saudi’s last communication with bin al-Shibh was in December 2000 just days after al-Hazmi and Flight 77 hijacker pilot Hani Hanjour moved from San Diego to the East Coast. (al-Mihdhar left the country in June of 2000 and returned to America in 2001.) Hanjour and al-Hazmi then visited al-Awlaki at his new mosque in Virginia. The latter had moved there during the fall of 2000.

Anwar al-Awlaki traveled extensively. That same fall, he spent a week in Europe including several days in Hamburg, Germany. The first thing a hotel there asks for when you register is your passport to confirm your identity. Strangely, Germany’s investigators were unable to find out where al-Awlaki stayed while there.

Atta and bin al-Shibh operated out of Hamburg.

Atta first came to America in June of 2000 and he traveled frequently. After 9/11, the FBI’s search of flight records revealed a Mohamed Atta flew on the very same flight number – just one day later – direct from Frankfurt to San Francisco as al-Awlaki did immediately after visiting Hamburg. The FBI never determined either Atta’s or al-Awlaki’s whereabouts for several days after those flights. Then, al-Awlaki showed back up in San Diego and Atta traveled to the East Coast a few days later.

Andrew McCarthy pointed out that the business provision of the Patriot Act, “also known as Section 215, simply gives intelligence agents the same kind of power that criminal investigators have to compel production of documents.” Before the Patriot Act was enacted, the FBI could not issue a subpoena, a National Security Letter, concerning al-Awlaki during an intelligence investigation. 

When al-Awlaki returned from Hamburg, the FBI would have had to go to the FISA court every time they needed business records as they tracked him after he arrived in San Francisco and perhaps met with Atta.

How did al-Awlaki communicate ahead of time with those he visited with in Hamburg during the fall of 2000? After 9/11, the FBI did not find communications from his known devices to anyone in Hamburg. Yet had they conducted an intelligence investigation, they would not have been authorized to conduct a roving wiretap of his communications; the law, prior to the Patriot Act, did not authorize it.

Perhaps the Saudi who called and emailed Ramzi bin al-Shibh communicated for him with al-Awlaki’s hosts in Hamburg. Or perhaps al-Awlaki used other phones or communication methods such as emailing from computers outside his home. Alas, we’ll never know.

If the Patriot Act provisions expire, we will resume taking the same risks we took while an American agent of al Qaeda assisted in the mass murder of 3,000 people here. We’ll risk another 9/11 – or worse. President Trump and every Member of Congress should take that into consideration.

9/11, 9/11 Commission, Bush, Clinton, Homeland Security, September 11

9/11 Commission mission failure; withheld key documents are owed to the American people

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Update, October 5, 2019:

While nearly all of the more than 1200 memorandums for record summarizing the interviews conducted by the 9/11 Commission have been reviewed for classification, unfortunately three other key documents remain hidden — perhaps deliberately so as to avoid embarrassing officials — from the American people.

They are the 9/11 Commission’s: transcription of the ten Commissioners interviewing then President Bush and VP Cheney in the Oval Office in April 2004; 7000-word summary of a review of more than 300 related Presidential Daily Briefs to Presidents Clinton and Bush (43); and 78-page staff monograph on National Security Council work on counter-terrorism 1998 to 9/11.

Multiple FOIAs, declassification review requests, and appeals have been filed for them to no effect. We will keep trying.

— July 28, 2014 original post follows —

By January 14, 2009, only 35% of the 9/11 Commission’s staff documents had been processed by the National Archives. They are Congressional records not subject to the Freedom of Information Act. There are nearly 2,000 memorandums for record (MFRs) of the summaries and transcripts of interviews conducted by 9/11 Commissioners and staff, as well as the briefings they received.

117 MFRs are still pending declassification review. Key interviews among them illustrate the 9/11 Commissioners’ lip service last week to transparency. They briefly called for declassification on page 39 of their 49-page “update” to their original 2004 recommendations:

“The job of fully informing the American people is incomplete, however. The commission’s records, including summaries of our interviews and important intelligence and policy documents, are held by the National Archives. Some of those documents and records remain classified and are thus unavailable to the public. Authority to declassify those documents rests with the agencies that created them.”

On July 21, 2004, 9/11 Commissioners met to decide when to release this body of work. Richard Ben-Veniste asked: “Is the theory here the great cover-up of partisan differences?” The notes of the meeting do not show he received an answer. Regardless, the vote was 6 to 3 to kick the responsibility 4 1/2 years down the road. [1]

What motivated Samuel “Sandy” Berger in 2004 to steal classified documents from the National Archives while he acted as former President Bill Clinton’s designated representative to the 9/11 Commission? The answer may be within the 9/11 Commission interviews of Richard Clarke, George Tenet, and Sandy Berger held by the National Security Counsel. [See correction at Note 4].

Surely the Commission asked former CIA Director Tenet what efforts were made to alert the NSC and President Clinton on the movement of al Qaeda operatives immediately preceding and following the Millennium terrorist attacks plots.

On January 15, 2000, two known al Qaeda operatives, future 9/11 hijackers Nawaf al-Hazmi and Khalid al-Mihdhar, arrived in Los Angeles. During December 1999, the CIA had tracked their movements in Southeast Asia, observed their meeting with Walid bin Attash (now at Guantanamo awaiting military commission trial alongside Khalid Sheikh Mohammed), and covertly photocopied the open-ended U.S. visas within their passports. Beginning in March 2000 and before September 11, 2001, more than 50 people at the CIA knew they had entered the United States.

The 9/11 Commission staff also prepared a 78-page monograph of NSC counterterrorism efforts from 1998 to 9/11. Yet the 9/11 Commissioners have never publicly spoken of its existence which is not classified. I filed for declassification review of it in 2009.

In addition, there is the still classified (by the FBI) 9/11 Commission interview of former FBI Director Louis Freeh. Subsequent to my April 2009 request, a previously unheard of staff monograph was declassified in June 2009. [2] It was prepared by staffer (and former DOJ IG) Barbara Grewe on the intelligence sharing “Wall.” It concluded: “Simply put, there was no legal reason why the information could not have been shared.” Indeed. A MFR declassified and released on January 15, 2009 of 9/11 Commission staff interviews of former Deputy Attorney General Jamie Gorelick states in part:

“Gorelick said she did not know anything about how the wall was structured within the FBI. She did not believe that the FBI was required to erect a wall between intelligence and criminal agents, particularly those on the same squad and working related intelligence and criminal cases. She said she was surprised that the FBI interpreted the provisions that way.”

Strangely, the 9/11 Commissioners reminded no one that Executive Director Philip Zelikow and Commissioner Jamie Gorelick had authored a 7,000-word summary [3] of presidential daily briefs (PDBs). It is in former President George W. Bush’s records. It has been subject to declassification review by the NSC since January 20, 2014 as federal statute mandates a 5-year delay after a President leaves office. And there is the still classified MFR summarizing the President Bush-Vice President Cheney interview conducted by all 10 Commissioners.

Massive finger pointing as the WTC Pile, Pentagon, and a field outside of Shanksville still smoldered would have distracted key government personnel then scrambling to rally our Nation’s defense, and it would not well serve us now. Yet the American people must know the rest of the story. 2,978 names and the face of a 9/11 firefighter on a funeral mass card that I’ve long carried in my wallet haunt me; we owe it to them and future generations.

The 9/11 Commissioners can finally raise their voices and fulfill their charter to provide a “complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness.” I pray they do.

Originally posted on July 28, 2014

Note 1: Also present were “PZ” Philip Zelikow and “GC” General Counsel Daniel Marcus.

Note 2:
Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations
Commission on Terrorist Attacks Upon the United States
Staff Monograph
Barbara A. Grewe
Senior Counsel for Special Projects
August 20, 2004

Note 3: Zelikow confirmed its existence in a 2011 Reuters report.

Note 4: Tenet’s interview remains pending declassification review by the CIA while Clarke’s and Berger’s interviews are being held back by the NSC.