Coleen Rowley's blog

Republican Control Threatens Our Security

Fri, 14 Apr 2006 11:04:41 -0700

This piece was originally posted at The Huffington Post. Coleen Rowley is a Democratic Candidate for Minnesota's Second Congressional District. You can visit her here: www.coleenrowley.com.

Iran announced that it has successfully enriched uranium, putting the world on notice that it’s serious about joining the nuclear club. Critics of the Bush administration are quick to point out that it didn’t have to be this way: if Bush had been more interested in trying to solve problems than flexing American muscle, he might have engaged in a more serious effort to find a diplomatic solution to the threat of a nuclear Iran. If he had better understood how an American show of force would be received in the Middle East, he might have thought twice before invading Iraq (recent revelations cast doubt on the possibility that he even thought once before charging toward “regime change”). If he hadn’t been so busy promoting factually suspect evidence of a threat from Iraq, he might have paid more attention to the real threat growing in Iran.

Bush’s defenders will argue that now is not the time for pointing fingers, and that Democrats should offer solutions instead. Here’s my solution: Democratic control of Congress.

Those who cry out I’m exploiting a threat to our nation’s security for political gain have it exactly backwards. I’m running for Congress because Republican control of government is a threat to our national security! It was a Republican administration that, despite numerous warnings from Richard Clarke and U.S. intelligence, ignored the threat from Osama bin Laden. Bush did not take notice of the CIA’s Presidential Brief in August 2001 about Al Qaida being determined to attack. Meanwhile, Attorney General Ashcroft ranked terrorism as his lowest priority and told the FBI’s acting director that summer that he didn’t want to hear anything about terrorism.

It was a Republican administration who resisted the creation of the 9/11 commission, and then stonewalled it. And it has been a Republican administration and Congress which has systematically blocked Democratic efforts to implement the commission’s recommendations.

It is a Republican Senate, and in particular Republican Senate Intelligence Committee chair Pat Roberts who have blocked investigations into the administration’s misuses of prewar intelligence to prop up public support for an invasion of Iraq. It was a Republican administration who ignored the advice of experienced generals and invaded the country with fewer than half the recommended number of troops, without sufficient body armor to protect our troops, and without a plan to secure the peace. It is a Republican administration and its ever-shrinking pool of supporters who demand that our troops remain in an Iraqi shooting gallery even as the country descends into civil war.

And as the nuclear threat rises in Iran, George Bush sees not a problem requiring a careful, engaged, painstakingly negotiated solution, but an opportunity:

“A government consultant with close ties to the civilian leadership in the Pentagon said that Bush was ’absolutely convinced that Iran is going to get the bomb’ if it is not stopped. He said that the President believes that he must do ‘what no Democrat or Republican, if elected in the future, would have the courage to do,’ and ’that saving Iran is going to be his legacy.’”

Three years ago, George Bush invaded a country which posed no imminent threat to the U.S. and as a consequence, almost 2,370 American troops have died, thousands more are injured, the government is running record deficits, our military readiness has been compromised, and our borders, ports, nuclear and chemical plants still aren’t secure. A nuclear Iran is a real threat, and there’s no reason to expect a better outcome unless Congress fulfills its constitutional responsibility to check the Executive’s actions, something this Republican Congress has been famously unwilling to do.

Bullying and Threats Cannot Smokescreen the Truth

Thu, 12 Jan 2006 22:21:05 -0800

elevated from the diaries ~ Rowley is a candidate for Congress in Minnesota's 2^nd District
Bullying and Threats Cannot Smokescreen the Truth

This blog originally was posted at Huffingtonpost

Two days ago, President Bush continued his strategy of smokescreening the truth by criticizing what he called "irresponsible debate" over the war in Iraq. He would love to have us forget how we got into that quagmire in the first place and now he pleads with us to stay the course of his grave mistake.

Mr. Bush's comments apparently were targeted at Democrats like myself who are campaigning for Congress. As an "honest critic," I'm happy to respectfully respond.

Let me go back to May 2002 when I was an FBI agent and Minneapolis Legal Counsel for the FBI. I wrote a 13-page memo, addressed to Director Mueller and copied to two senators working on the Joint Intelligence Committee Inquiry, exposing some of the issues that had kept the FBI from preventing 9-11. I had discovered that after something as bad as 9-11 happened, there is a tendency for people to want to gloss over their mistakes and sweep them under the rug. Unraveling the truth of what has occurred in such a situation is painful, to say the least, and many would rather say, "Let's just go forward from here." Many (especially in the FBI hierarchy) thought of me as a traitor for even admitting that mistakes had been made, but others in our country appreciated my honesty.

So when I testified to the Senate Judiciary Committee in 2002, my statement went to great lengths to identify the reasons why it's necessary to insist on the utmost integrity, complete frankness and honesty, even after a horrible event has already occurred. Perhaps the most compelling of all the reasons I gave for the need for such brutal honesty in fully and truthfully unraveling mistakes was so we can learn from the mistakes and fix them so that we do better in the future. The problem with not looking back, with the less painful "just go from here" approach, is that it rarely, if ever, will lead to the most appropriate solution or remedy that actually best addresses the current state of affairs.

Talk about mistakes, I voted for Mr. Bush in 2000. Why, you ask? Because I had been working in government for years and believed Mr. Bush when he called for clean, honest, open government; believed him when he promised to avoid creating huge deficits and claimed he would be cooperative in world affairs -- and then Mr. Bush turned right around and reversed his position in almost every area. I learned from my mistake so well that now I'm running for Congress to try to help repair the damage Mr. Bush has done to this country and the world.

Unfortunately, Mr. Bush has yet to come clean and level with the American people about his own mistakes, such as his decision to order U.S. military troops to invade and occupy Iraq. Minnesota's Second District Congressman John Kline was apparently privy to the Bush Administration's inside information and "rolled out" his own campaign for war on Iraq several months ahead of even Bush and Cheney. Mr. Kline, like Bush and Cheney, has never admitted his mistakes either. All three insist their initial reasons for invasion really don't matter now, that we're in Iraq and we're stuck. They warn those who disagree with Mr. Bush and who debate in search of the truth and a better way forward -- people like myself -- that we are "aiding the enemy."

Wrong. We are aiding and assisting America so that we don't compound the problem and so the same mistakes are not repeated in the future. I think the people of Minnesota and of our country know this and want me and other congressional candidates to fight for the right to debate and speak the truth. I will continue to do so even if Mr. Bush and his surrogate Mr. Kline call me names. I went through tough FBI training and can take it. Having been part and parcel of the serious domino chain of errors that has transpired up to and since 9-11, I see it as a duty to continue to insist on the utmost integrity including the unraveling of the serious errors made by the Bush Administration.

"Irresponsible"? The irresponsible Republicans have run the economy into a deficit ditch, abandoned millions of our jobs to other countries, wallowed in a culture of corruption financed by the likes of Jack Abramoff, eavesdropped on American citizens without warrants and led us into a quagmire of death in Iraq. The most responsible thing Democrats like me can do is take back the House and Senate in 2006 by speaking the truth all the way.

Further Intelligence Exploration

Mon, 09 Jan 2006 13:12:32 -0800

elevated from the diaries ~Rowley is a Congressional Candidate
Further Intelligence Exploration

I agree with "artappraiser" that French, German and other European intelligence/law enforcement agencies have historically been far more aggressive and effective in combating terrorism than U.S. agencies. It was the French intelligence agency, for example, which, in August 2001, quickly provided the FBI with detailed information about Moussaoui's connections to Chechen fighters (who in turn were connected to Osama Bin Laden) and about Moussaoui's other potential terrorism connections. Since 9-11, European law enforcement/intelligence have detected and prevented numerous acts of terrorism, more than I think we have in the U.S. Partly that's also because the threat of terrorism has always been greater in Europe, - they've actually experienced far more acts of terrorism by a variety of different groups but also due now to their large North African (and other Middle Eastern) immigrant population, individual members of which might be predisposed to align with Al Qaeda. For these reasons, point #4 of my February warning to Director Mueller questioning launching a pre-emptive strike upon Iraq in connection with the "war on terrorism" illustrated the irony and hypocrisy of U.S. criticism of France and Germany in the lead up to the war. Here Bush and his cronies were disparaging France and others for being soft on terrorism just because they would not go along with attacking Iraq when in actuality, the French and others were extremely aggressive and effective in detecting and dismantling the true terrorist threats. Furthermore, this disparagement and go-it-alone attitude placed critical liaison relationships at risk.

It's hard to generalize, but from what I know, European laws do give greater powers to law enforcement and intelligence gathering. Even Canadian eavesdropping laws, because their "minimization" requirements are less than in the U.S., are this way. (U.S. minimization rules for both criminal and intelligence monitoring are odd creatures that have ended up as quite complicated, hard to train and apply in a practical way, and ultimately defying common sense. The "FISA wall" which created the separation between criminal and intelligence matters was also one of the results.) My opinion is that U.S. law enforcement is/was uniquely saddled with some of these procedural technicalities, especially in the area of electronic/wire communications monitoring, actually due to past abuses of the type that occurred during the 1960's and early `70's that led to the Church Committee findings and to the FISA law.

But don't get me wrong here: I'm certainly not saying that this area, the most sensitive and potentially intrusive of law enforcement and intelligence techniques should be unregulated and free from restrictions and oversight. It's just a lot more complex than what I have time for right now, but you can get a better idea of my views from my paper my paper entitled "Balancing Civil Liberties with the Need for Effective Investigation" which was published October 2004 as Chapter 30 in the Milton Eisenhower Foundation's book entitled: "Patriotism, Democracy and Common Sense: Restoring America's Promise at Home and Abroad."

To summarize, we ought not to be using 9-11 and the need to detect and disrupt terrorism as an excuse for unjustified military interventions. Use of the military is a very rough tool and structurally ill equipped to deal with isolated cells of terrorists scattered throughout the world. The threat of terrorism is real and is actually far worse since Bush and his cabal launched their invasion/occupation of Iraq. Intelligence and law enforcement tools are preferable to the use of the military in that they are much more surgical/precise and allow authorities to target true terrorists without killing and disturbing innocent civilians, inflaming populations - all of which engender more terrorism.

When it comes to the distinction between use of intelligence and law enforcement, we need to consider going back to the law enforcement model which is based on criminal prosecution (and the criminal procedure that emanates from the Constitution, mostly from the 4th, 5th and 6th Amendments). Time-tested law enforcement methods, constrained by long-standing criminal law, and perhaps supplemented with intelligence methods, should form the backbone of our efforts to combat terrorism. Any remaining odd technicalities that may have grown up but unnecessarily hamper investigation and serve no real purpose should be openly discussed and done away with. (Since the "FISA wall" has come down, I personally know of no others at the present time, but...)

The emergency or exigent circumstances exception has always existed under the 4th Amendment to allow warrantless searches. For 13 years, I taught law enforcement officers about the various exceptions to the 4th Amendment. And the emergency exception is one of the diciest because judges often tend to second-guess a police officer's judgment on what constitutes an emergency. Everyone remembers Los Angeles police detective Fuhrman jumping over the fence to search O.J. Simpson's property under that rationale and how he was later criticized for it. But I believe that the emergency exception is like a valve that allows some pressure to be released and allows the general rule to stand that warrants should be obtained before a search into a private area is conducted.

That's why FISA law already contains a good emergency exception for warrantless surveillance for up to 72 hours. Such an exception, however, must remain exactly that, an exception. It must be sporadically employed and limited to true emergencies. If the exception begins to swallow the rule, it no longer is an exception and the underlying situation or law needs to be examined.

So why did Bush believe it necessary to abrogate the need to seek FISA approval for monitoring American citizens? Why couldn't he have used the extremely permissive 72-hour emergency exception under existing FISA law? I have only a couple of good guesses: the numbers, perhaps in the hundreds or thousands, made it too inconvenient to be chasing after the Attorney General to get his signature on each and every "emergency." Remember that former Attorney General Ashcroft was treated as a mini-God. Very few underlings would have the audacity and political incorrectness of approaching him to ask for his approval for a specific "emergency" let alone if the numbers of these on a daily basis were too great to even be feasible to get his personal approval for. There is also the issue of fearing that the numbers of such A.G. authorized "emergencies" might at a given point, become known. The fear would be of a public outcry when the number became known, and people were able to perceive that the exception had swallowed the rule. I've long argued that the mere numbers of each and every technique authorized under the Patriot Act, i.e. national security letters, FISA searches, and emergency searches should be periodically reported at least to Congressional oversight committees (and perhaps made public) for this very reason, that it would serve, without divulging any data whatsoever that needs to be kept secret, as a way to gain some judiciousness and accountability into the system. The long-sighted view would welcome more public reporting as deterring the public outcry of the type we've seen with over-use of national security letters, FISA surveillances/searches, and now warrantless NSA monitoring.

Contrary to some analysts, Moussaoui no justification for Bush's program

Mon, 26 Dec 2005 22:50:01 -0800

elevated from the diaries ~Rowley is a Congressional Candidate
Contrary to some analysts, Moussaoui no justification for Bush's program

In the past week, many Republicans have used the Moussaoui case as justification for President Bush's attack on our civil liberties. I subsequently wrote a letter to the editor setting the record straight to the WaPo which published an abbreviated version. The following is the complete letter.

As legal counsel to the Minneapolis FBI Division and witness to the entire Moussaoui case, I can tell you that these assertions are not just factually wrong, they miss the real problems that existed within our intelligence gathering superstructure. I wrote a 13 page memo and testified before Congress on these very failures. Yet, some individuals continue to misapply and misrepresent what I said.

more after the jump

This last week, we learned President Bush secretly ordered the National Security Agency to conduct a domestic spy program that entails no judicial oversight. In defense of this controversial program, a number of Republicans rely upon the case of Zacarias Moussaoui as justification for Bush's attack on our privacy and civil liberties.

Moussaoui is the only individual to be charged in connection with the 9-11 attacks and has pled guilty but is fighting the death penalty. He contends that he was not directly involved with the attacks on 9-11 but was instead to participate in a second-wave attack. He awaits a "death penalty phase" hearing. Although detained on immigration charges since August 16, 2001, the FBI failed to sufficiently investigate Moussaoui pre 9-11. If searches of his personal effects and laptop had been authorized, Moussaoui's connections to the 9-11 hijackings may have emerged and it is possible that 9-11 could have been prevented.

Republican commentators such as William Kristol and Rush Limbaugh claim FISA procedures, and the legal impediments they impose, prevented FBI agents from acting. Consequently, they maintain President Bush is justified in abrogating FISA law to order the NSA to eavesdrop on Americans.

MYTH #1: THE JUSTICE DEPARTMENT DECIDED THERE WAS NOT SUFFICIENT EVIDENCE TO GETR A FISA WARRANT TO ALLOW THE INSPECTION OF MOUSSAOUI'S COMPUTER FILES.

No evidence whatsoever was presented at any time to the Justice Department of Moussaoui's suspicious flight training and ties with terrorism. The Justice Department's Office of Intelligence Policy and Review, which handles FISA matters, was never contacted. Furthermore, no contact was made either with criminal attorneys in the Department of Justice or with the U.S. Attorney's Office. Therefore, no decision was ever made by Department of Justice personnel regarding the given evidence and its application to FISA or criminal standards.

In fact, the subsequent intelligence committees' inquiry, Inspector General investigation, and 9-11 Commission all decided that a sufficient connection between Moussaoui and a foreign power (or international terrorist group) DID EXIST to have satisfied the FISA standard. Likewise, criminal prosecutors advised (after the fact) that they would have proceeded forward to seek a search warrant of Moussaoui's belongings based on the information known in August 2001.

As it turned out, faulty interpretations and widely-varying perceptions of FISA procedures, especially what the "FISA wall" entailed, played a big role in the FBI's determination not to contact DOJ, and not to move forward until after the 9/11 attacks occurred. There was also the little problem that the FBI's national security law unit lawyer had not actually read for himself the facts that Minneapolis agents had provided but, instead, had relied upon a short, verbal briefing by the first-line supervisor. When 9-11 happened, however, and it was painfully clear in hindsight that the FBI had botched it, this same lawyer's (the lawyer who had not read it) pronouncement of insufficient probable cause served as a convenient blanket defense to protect all of the underlying governmental incompetence. My 2002 memo punched a hole in that blanket defense and led to some truth being unraveled.) The bottom line is that THE FISA LAW ITSELF WAS NOT THE REASON THE FBI FAILED TO INSPECT MOUSSAOUI'S PERSONAL EFFECTS AND COMPUTER FILES. Rather, the faulty interpretations and failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation.

MYTH #2: ROWLEY DEPICTED THE LEGAL MECHANISM FOR SECURITY WARRANTS UNDER FISA AS BURDENSOME AND RESTRICTIVE, A VIRTUAL ROADBLOCK TO EFFECTIVE LAW ENFORCEMENT.

It's true that the "FISA wall" problem did play a role in preventing the effective sharing and analysis of information pre 9-11. But to the extent that the "FISA wall" issue was problematic, (and in fact, there is no denying it was a problem, even if it all turned out to be more a problem of misperception and faulty interpretations), it was remedied when the Patriot Act brought down the "wall" shortly after 9-11 that prevented effective sharing of national security intelligence with criminal investigators and/or criminal attorneys.

My original memo to FBI Director Mueller contained a description of "probable cause" as meaning more probable than not, or if quantified, a 51% likelihood. I believed that the information gathered in August 2001 about Moussaoui satisfied the probable cause standard because a federal district judge did, in fact, find ample probable cause to grant a criminal search warrant on September 11th, the day of the attacks. The only material additions were the 9-11 attacks. When I testified to the Senate Judiciary Committee in June, 2002, Senator (and former U.S. Attorney) Arlen Specter made sure I was aware that probable cause, as viewed in the Gates "totality of the circumstances" test, could be seen as even less than a 51% likelihood. The more expansive view of probable cause was subsequently incorporated into FBI General Counsel legal opinions, which means that the minimum threshold of probable cause is even lower than I, and other legal commentators, would have previously thought.

MYTH #3: THE FISA PROCESS IS NOT QUICK OR FLEXIBLE ENOUGH TO DETECT AND THWART TERRORISTS.

The FISA process has always been a secret process which contains effective emergency provisions. These emergency provisions allow the attorney general enormous power to authorize secret "emergency" electronic surveillance and searches before any court order is granted, or an application is made, for up to 72 hours. No application is even necessary if the surveillance is terminated before the 72 hour "emergency" period ends. In fact, Minneapolis agents were so convinced of the urgency of the situation involving Moussaoui that they requested use of this emergency provision, not the regular FISA process.

Unfortunately, this would have required Attorney General Ashcroft, who had just ranked terrorism as his lowest priority in early August 2001, to appreciate the danger and sign off on the "emergency". And it would have required then FBI Acting Director Pickard to take the emergency request to Ashcroft after he (Ashcroft) had rebuked him (Pickard) earlier that summer, as Pickard testified to the 9-11 Commission, saying "he (Ashcroft) didn't want to hear any more about terrorism." Given these circumstances, FBI Headquarters quickly gave up on Minneapolis' request to seek AG approval for use of this emergency provision.

But myths aside, Moussaoui did not escape inspection because the FISA law was not permissive enough. And with the further changes wrought by the Patriot Act, bringing down the FISA wall and making the FISA process even more permissive, it is certainly not a good argument for Bush to skirt the law now.

Oversight and the Abuse of Power

Mon, 19 Dec 2005 11:35:49 -0800

Rowley is a former FBI Agent and candidate for Congress
Oversight and the Abuse of Power

Last week, the NY Times reported that in 2002 President Bush secretly authorized the National Security Agency to eavesdrop on Americans inside the United States. His executive order empowered the NSA to monitor e-mails and phone calls of perhaps thousands of Americans without obtaining a warrant to do so. Later, Bush acknowledged the order and added he would continue the domestic spying program indefinitely.

Meanwhile, Senator Feingold successfully blocked an up-and-down vote on a problematic Patriot Act reauthorization bill that entailed systemic threats to our civil liberties.

Governmental oversight and its relationship to the abuse of power are central to both cases.

Gathering intelligence is crucial to our national security. Tracking phone calls and monitoring e-mails when properly applied can literally prevent attacks from occurring on American soil. However, ordinary, law-abiding Americans should not be subject to such intrusive surveillance. We have a constitutional right to be free from unlawful searches and seizures. To ensure that our rights are respected, we need a check on those who gather intelligence, we need watchers who watch the watchers.

The absence of oversight opens the door to abuse. In a perfect world, our agencies would investigate only those persons who threaten our security. Unfortunately, history proves that government agencies can and do abuse the powers we give them, making diligent oversight an absolute necessity to intelligence operations.

For example, the Foreign Intelligence Surveillance Act (FISA) was the practical and legal compromise that emerged after uncovering a number of civil liberties abuses conducted by the FBI in 1978. During the 1960's, with the fear of Communism in full force, FBI Director J. Edgar Hoover ordered numerous surveillances (sometimes termed 'black bag jobs') on political and civic leaders such as Martin Luther King with questionable justification. Moreover, Hoover's COINTELPRO operation took pro-active disruptive steps that went far beyond passive investigation. Although national security law was unclear up to 1978, high level FBI officials were nonetheless indicted which had, paradoxically, a paralyzing effect upon those FBI agents trying to detect and monitor actual Soviet spies. Enveloped in this Cold War context, the FISA compromise established a secret court of judges who could authorize these intrusive types of surveillance when the express purpose is national security. Even though flaws exist in the process, FISA judges still provide some independent oversight to evaluate the government's reasons for monitoring certain citizens.

In light of this history, Bush's executive order abrogating the requirement to obtain a FISA judge's approval for NSA monitoring of communications involving U.S. citizens is not just alarming, but extremely shortsighted. Our founding fathers believed in a system of checks and balances, whereby one branch of the government keeps the other in line. At present, there is a great need to reform the FISA and the Patriot Act to insert greater accountability into the process.

That FISA was created long before modern terrorism means there are many bugs still to be worked out. One of the main areas of concern is the perpetual secrecy that now accompanies all terrorism-related applications as well as all espionage-related ones. Unfortunately, perpetual secrecy has the potential to undermine governmental accountability. And there is no reason that, with regard to terrorism, the perpetual secrecy clause cannot be modified to more temporary secrecy, and more in line with criminal provisions in the Constitution. Without such reforms and improved oversight, the intelligence community is structurally flawed in that there is little if any check on agencies' and the executive branch's power.

I applaud Sen. Feingold's efforts to improve the Patriot Act and urge our leaders to balance judiciously civil liberties with the need for effective investigation.