One of the big arguments advanced by the right is that Bush’s warrantless domestic spying program could have prevented 9/11. The Washington Post gave Bill Kristol and Gary Schmitt space to make this argument on December 20:
Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI’s attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don’t rise to the level of probable cause under FISA.
One problem: Kristol and Schmitt are completely wrong. Coleen Rowley, a former FBI agent who testified before the Senate Judiciary Committee in 2002, wrote into the Washington Post to correct them:
[N]o evidence of Moussaoui’s suspicious flight training and ties with terrorism was presented to the Justice Department. The department was never contacted and so did not decide anything; therefore, no decision was ever made regarding the given evidence and its subsequent application to FISA standards.
That means the FISA procedures were not the reason the FBI failed to inspect Moussaoui’s computer files. Rather, the FBI’s failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation.
Kristol and Schmitt conclude their op-ed sanctimoniously: “to engage in demagogic rhetoric about ‘imperial’ presidents and ‘monarchic’ pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.”
The law, even for the President, is not discretionary. What’s foolish and irresponsible is to use phony evidence to advance outlandish claims in one of the nation’s most widely read newspapers.
UPDATE: Rowley posted the unabbreviated version of her letter on The Agonist.