Coleen Rowley is the DFL (Democratic)-endorsed candidate for Congress in Minnesota’s Second District, running against incumbent Republican (and our friend) John Kline. Rowley was the counsel for the FBI Minneapolis field office when the Minneapolis office arrested Zacarias Moussaoui in August 2001. Rowley’s candidacy is based entirely on the recognition she earned as a whistleblower chastising FBI headquarters, among other things, for preventing local agents from seeking a criminal search warrant to examine Mouussaoui’s laptop and for failing to seek a FISA warrant even though probable cause for a FISA warrant was clear, in Rowley’s opinion.
Today the Justice Department’s Office of the Inspector General rereleased its November 2004 report on the FBI’s handling of intelligence information related to 9/11 with the previously withheld chapter 4 included. Chapter 4 addresses the FBI’s investigation of Moussaoui; it (as well as other references to Moussaoui) had been withheld pending his trial. Chapter 4 paints a devastating portrait of Rowley’s performance as counsel of the Minneapolis field office during the Moussaoui investigation, contradicting her assertion that the failure to seek a criminal search warrant was attributable to anyone other than herself as well as her assertion that probable cause clearly existed for a FISA search warrant. It is a portrait of a person well over her head. The following paragraphs are taken nearly verbatim from chapter 4; page references to the report are noted for each paragraph parenthetically below.
Rowley’s first invovlement in the Moussaoui case came as agents considered whether to seek a FISA warrant or a criminal search warrant. Rowley recommended pursuing a FISA warrant because if a FISA warrant was sought after an unsuccessful attempt to obtain a criminal search warrant, it would fail a “smell test” concerning its true purpose. The local agent wanted to seek a criminal search warrant and forget about the “smell test.” Rowley thought otherwise (131).
In her famous post 9/11 letter to FBI Director Mueller, Rowley stated that she advised the local agent to seek the FISA warrant instead of the criminal warrant becaus the United States Attorney for the District of Minnesota applied an artificially high probable cause standard. The report found no evidence to support this assertion (131, note 110).
As for her advice that the local field agents seek a FISA warrant, Rowley did not know what she was talking about. She had not discussed the case with National Security Law Unit attorneys or anyone else in Washington. She had not reviewed the FISA statute or any other training material about FISA warrants. She said her advice was based on her knowledge of problems with the “smell test,” problems with the local US Attorney’s office, and “optimizing” the chances of of getting a warrant by pursuing the FISA process first (132). Asked by the Inspector General whose decision it was not to seek the criminal warrant (Minneapolis’s or Washington’s), she stated: “I thought it was kind of, I don’t know, kind of a joint thing. I thought Headquarters, somebody at Headquartes had also recommended we try FISA first, too. But I think ultimately it was [the local agent’s] decision to try FISA first or our field division’s.” (132.)
FBI headquarters declined to seek a FISA warrant based on the lack of evidence linking Moussaoui to a foreign power. After this decision was conveyed to the Minneaoplis office, no one in Minneapolis or Washington reconsidered the merits of seeking a criminal search warrant. As opposed to a FISA warrant, a criminal search warrant would not have required proof of any connection on the part of Moussaoui to a foreign power. Moreover, now that a FISA warrant had been ruled out, the “smell test” was no longer an issue. Rowley told the Inspector General that she did not know why a criminal warrant was not sought once the FISA route was exhausted. She noted that she did not have a leadership role in the case and she felt that the people involved knew what they were doing (168-169).
The Inspector General found Rowley’s assertion that probable cause cleary existed for a FISA search warrant to be misplaced (182-183). Although Rowley assumed that the US Attorney’s office would not have supported the request for a criminal search warrant because she believed that it had an unduly high standard of probable cause, this was only a guess (186).
Rowley acknowledged that her experience and knowledge of FISA were not extensive. Her responses to the Inspector General’s questions on the subject indicated that she did not fully understand FISA’s requirements (190 & note 146). Rowley acknowledged that she lacked extensive experience about FISA and that she was not in a position to advise the Minneapolis FBI field office on the issues surrounding the FISA request (206).
Contrary to the implication in her letter, which placed the blame for failing to seek a criminal warrant solely on FBI headquarters, it was Rowley herself who advised the field agents not to seek a criminal warrant. She did so without fully understanding the requirements of FISA and the difficulty of connecting Moussaoui to a foreign power. She never provided guidance or help to the field agents on this critical issue. She did not consult with the National Security Law Unit attorneys about what was required under FISA or whether attempting to seek a criminal warrant would have been a wiser course of action. Nor did she ever reconsider her initial advice that the US Attorney’s office would not seek a criminal warrant, even after the FISA route was exhausted. Along with FBI headquarters, she should share some of the criticism for the failure to carefully assess the options for obtaining a warrant (219). The Minneapolis agents did not receive sufficient support, either from their field office management, from headquarters or from Rowley (220).