Posted on 06/02/2002 9:05:51 AM PDT by Dog Gone
The media and the public love a reformer. This may explain the reaction this week to a 13-page letter from FBI agent Coleen Rowley criticizing the investigation of Zacarias Moussaoui.
Rowley has been portrayed by national publications such as Time magazine in almost breathless terms as a cross between Martin Luther and Annie Oakley.
What is astonishing is how little of her memo actually has been read or quoted beyond its most sensational suggestions, such as the notion that Rowley and her colleagues might have been able to prevent one or more of the Sept. 11 attacks.
Rowley's criticism of the FBI largely turns on 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. FBI headquarters disagreed, and it was right.
On Aug. 15, 2001, Moussaoui was arrested by the Immigration and Nationalization Service 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 believes that the FBI was wrong because a warrant was ultimately signed on Sept. 11 after the attacks. That warrant contained the same information that was deemed 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. 11, it must have existed before Sept. 11. This is simply wrong as a matter of law. The attacks were obviously material to establishing probable cause against Moussaoui.
Rowley also places importance on a French report that "confirmed (Moussaoui's) radical fundamentalist Islamic" affiliations. This report was extremely vague and discounted by the FBI and other intelligence and foreign agencies.
Finally, Rowley says suspicions in her Minnesota field office were magnified by Moussaoui's refusal to permit a search. But 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 constitutional standards.
Rowley states that she believed agents should not have been deterred in their interrogations by Moussaoui's invocation of his right to remain silent and to have counsel. Instead, she suggests that a limited "public safety exception" should be expanded to virtually negate those protections of the Sixth Amendment.
The Rowley memo 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 court in cases where they lack evidence to secure a constitutional warrant. Viewed by many as unconstitutional,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 it simply file for a FISA secret search as a tactical option.
We are gradually shifting searches from the Fourth Amendment process to a secret court that is neither mentioned nor consistent with the Constitution. This is the one aspect of the memo that has received no attention.
The Rowley memo is now being used to support reforms announced Wednesday 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.
Not only do such investigations produce abuses, but they diminish the agency's effectiveness and resources in pursuing more substantial leads.
Some of Rowley's criticisms of the FBI incompetence are well-established. There is need for structural reform, but we should not allow the FBI to "reform" itself into a prior image.
Turley teaches constitutional law at George Washington University and has served as counsel in a variety of national-security and espionage cases.
... We are gradually shifting searches from the Fourth Amendment process to a secret court that is neither mentioned nor consistent with the Constitution ...A little too gradually, I should think.
That's not the most depressing thing, it's to be expected. What's really depressing is the number of US citizens (including FReepers) who agree with them.
Finally, Rowley says suspicions in her Minnesota field office were magnified by Moussaoui's refusal to permit a search. But Moussaoui's assertion of a constitutional right cannot be used as a "signal (that) he had something to hide."If the bad guys can use our laws to kill us, it is well past time to make some drastic changes. What I'm afarid we're seeing is the Dems once again are worried that someone might point a finger at the Clinton administration ( read bash ).Instead of doing everything possible to protect this nation the Dems will interject politics, and this is clearly no time for such nonsense.
It's now known that the terrorists were schooled in "how to manipulate the US system" - why can't our pundits and other officials understand this? While I don't advocate a police state or infringement on personal rights, I do think we have to understand the new world we now live in since 9/11. The enemies of America use our weaknesses against us - they've studied us well. The liberal PC crowd has done much over the last several decades to weaken our country - it's time to bring sanity back into the picture. Can we be a free and open country who welcomes LEGAL immigrants - I think so, but only if we start using common sense and SCREEN all who want to live here. Frankly, I would stop ALL visas for at least one year to give us a chance to locate, deport, legalize the thousands of illegals now in this country.
America is made up of immigrants BUT they should - as in the old days - become AMERICANS - not hyphenated Americans. It's one thing to honor the "memory" of your former country and customs - it's another to have that "memory" supercede the customs and country of your new home.
However, we want law enforcement to investigate the hell out of that suspicious guy who lives down the street.
That's not the most depressing thing, it's to be expected. What's really depressing is the number of US citizens (including FReepers) who agree with them.
How right you are! This group is lead by the "well if you didn't do anything wrong, why do you care" people. I always wonder who they think the government is? It's that a$$ behind the desk at the Post Office, your accountant neighbor who drinks too much gin every night, the purchasing agent who takes his vacations with a lobbyist every year, the FBI agent who gives files to Clinton, the State Department manager ..... oh what the he!! most of them don't give a rats rear ......
This happens all the time and well before 9-11. For example, the "bad guys" use the second amendment to buy guns. Then they rob stores, banks, and shoot people. The answer isn't to revoke the second amendment, but to enforce the laws and punish the criminals. Similarly, the exercise of privacy rights may result in some additional terrorism. I am willing to run that risk, because I think the loss of our rights is a far more serious problem than the terrorists killing some of us.
Remember how "safe" the Germans felt once Hitler got into power and took away all their rights so that he could protect them better? parsy the far-sighted.
In the Name Of Security
The patriot act sticks in my craw
because it’s really a Gestapo Law
now the FBI gets more powers
to spy on us for 24 hours
In the name of security
Let’s not forget history
of what happened in Germany
the majority went along
gathered together in throngs
In the name of security
Cameras here, cameras there
cameras everywhere
on the corners, in the mall
as our freedoms fall
attached to traffic lights
losing our privacy rights
In the name of security
Soon we’ll get ID cards
as they build more prison yards
they want us to watch the other guy
an entire nation to spy
In the name of security
Giving power to strangers,
to people we don’t know
presents future dangers
as their power continues to grow
In the name of security
Benjamin Franklin said it best
want to be like all the rest?
trade liberty for security
then, only those in power will be free
In the name of security
Some may think I’m paranoid
just making a lot of noise
don’t forget the FBI files
some of us are still riled
Justification has begun
we must keep terrorists on the run
in the name of security
you must give up your privacy
Give it up for security
Copyright © 2002 By John J. Lindsay. All Rights Reserved
June 1, 2002
Myself, I can't see the Bill of Rights in that light. I don't buy the notion that 9/11 happened because the federal govt doesn't have enough power.
Scrapping the BOR may make some people feel safe today. Again, WRONG!
Probable cause for a search warrant is not as strict as the kind of evidence "beyond a reasonable doubt" that a jury needs to convict. It only needs to be enough to justify a search for further evidence--including some likelihood that such evidence will be found in the place to be searched.
As for protecting our civil liberties, the best way to do that is to have reasonable, responsible justices and an honest and competent FBI. Which is why the FBI needs a major housecleaning, which Mueller unfortunately is incapable of doing.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.