Andrew C. McCarthy
Slowly but surely it's September 10 again, a retreat into Clinton-era counterterrorism, when we played cops-and-robbers while jihadists played for keeps....
On Thursday, Josh Meyer of the Los Angeles Times broke the story that the FBI is edging the CIA out of the business of fighting international terrorism. Under the bureau’s “global justice” initiative, Meyer reported that “FBI agents will have a central role in overseas counter-terrorism cases. They will expand their questioning of suspects and evidence-gathering to try to ensure that criminal prosecutions are an option.” Who needs a War on Terror, or even an “overseas contingency operation,” when all the world’s a crime scene?
If you’re thinking, “Hey, we’ve seen this movie before,” you’re right. Slowly but surely, it’s September 10 again, a retreat into Clinton-era counterterrorism, when radical Islam prosecuted a war while we tried to prosecute radical Islam in court, playing cops-and-robbers while jihadists played for keeps.
In 1993, one jihadist cell bombed the World Trade Center. The FBI had been positioned to prevent the attack: They’d had an informant infiltrate the cell in late 1991. He gathered intelligence about an ongoing bombing plot for months, but in midstream, the bureau ham-handedly switched gears from intelligence-collection to law-enforcement protocols. The informant, spooked at the prospect of becoming a publicly identified witness rather than a never-disclosed secret source, objected. To show him who was boss, the FBI showed him the door. But in booting him, they lost their only window on the cell — which bombed the Twin Towers seven months later.
One attack does not a jihad make. Radical Islam followed up with a more ambitious plot to bomb various New York City landmarks — a plot stopped only because the same informant agreed to re-infiltrate the cell. But by 1994, plans were under way to murder the pope, murder the president, and blow up U.S. jumbo jets in flight over the Pacific. By 1996, Osama bin Laden was publicly calling for the global slaughter of Americans while Hezbollah and Iran were killing 19 members of the U.S. Air Force at Khobar Towers in Saudi Arabia.
The government’s response? Its obsession at the time was the fear that federal judges might think the FBI was abusing its national-security wiretapping power — using it as a pretext for conducting ordinary criminal investigations. So in 1995, the Justice Department raised a regulatory “wall.” The effect was to bar intelligence agents and criminal investigators from “connecting the dots.” More significant, the wall fostered an ethos of risk-aversion. The message to career-minded agents was: “Take heed: The mere hypothetical (and highly unlikely) possibility of civil-liberties violations is of greater concern to us than the potential of jihadist mass-murder attacks.”
And what good is risk-aversion if you can’t export it? In 1995, President Clinton signed Presidential Decision Directive 39, making the FBI, with its matrix of law-enforcement procedures, the government’s lead counterterrorism agency — even overseas, which had been the preserve of the CIA and the military, agencies operating under the quaint notion that where you have enemies and exigencies, rather than criminals and crime-scenes, you need a different, less onerous set of rules.
How effective was the Brave New World of “global justice”? As the FBI struggled to set up CSI-Khobar, the mullahs and the Saudi royal family competed to see who could laugh the hardest. When the bureau asked President Clinton to intercede on its behalf — to help induce the Saudis to cooperate in their Clinton-preferred criminal investigation of Iran — the FBI was given a curt cold shoulder. After all, pushing too hard might jeopardize the strategy of “engagement” — the last quest for the grand deal with Iran, to be followed, of course, by the next quest for the grand deal with Iran. A terrorist strike against American military personnel would have to take a back seat.
Meantime, continuing to flex those muscles, the Justice Department indicted Osama bin Laden for conducting an international terrorist conspiracy. Less than two months later, the “defendant” bombed the United States embassies in Kenya and Tanzania. As you may have heard, this fugitive is still at large. So are most of his co-defendants. Though about two dozen terrorists were indicted in the conspiracy, only five have been convicted in the eleven years since the attack — something to bear in mind the next time President Obama ridicules military commissions for only convicting three terrorists in seven years.
To be fair, a sixth embassy-bomber, Mamdouh Mahmud Salim, was also apprehended. But Salim never made it to trial. Salim is the highest-ranking member of al-Qaeda ever brought into the civilian justice system — a shining symbol to the Muslim world that even those who savage us should be afforded all the majesty of the Bill of Rights. Unfortunately, no one explained this to Salim. He, instead, saw his American constitutional right to meet with counsel (to effectuate his American constitutional right to prepare for trial) as an opportunity to kidnap his American taxpayer-funded lawyers in an escape attempt. He was recaptured, but not before maiming a prison guard, jabbing a shiv through his eye and several inches into his brain.
By 2000, al-Qaeda was bombing the U.S.S. Cole in the Port of Aden, nearly sinking the destroyer and killing 17 members of the U.S. Navy. The FBI transferred CSI-Khobar to Yemen. Our friends the Yemenis proved to be about as cooperative as our friends the Saudis — with an assist from Clinton’s top diplomat, who decided our crack investigators were culturally insensitive to their hosts (never mind that those hosts were more than a little sensitive to their fellow fundamentalists in al-Qaeda). These were the days before we figured out that Islamic terrorism is caused by George W. Bush, Gitmo, and waterboarding — the old days, when the regnant narrative was that Islamic terrorism is caused by overly aggressive criminal investigations, inherently unfair trials, and, of course, Israel.
Meantime, Zacarias Moussaoui was arrested on immigration charges in Minnesota after his flight-school instructor came to suspect he might be a terrorist plotting to hijack an airplane. FBI headquarters denied its agents' request to seek a national-security warrant to search Moussaoui’s computer. There wasn’t sufficient probable cause, the bureau decided. While the bureau was missing clues of the 9/11 conspiracy, the FBI’s national-security agents simultaneously learned that Khalid al-Midhar and Nawaf al-Hazmi had succeeded in getting into the United States despite being reputed al-Qaeda operatives. In August, a national-security agent pleaded with headquarters that the bureau’s criminal investigators be directed to help locate the terrorists. Absolutely not, said headquarters — allowing that kind of cooperation would breach the “wall” between intelligence and law-enforcement.
A few weeks later, Midhar and Hazmi crashed American Airlines Flight 77 into the Pentagon — the same day two other sets of suicide hijackers annihilated the Twin Towers, while only the heroism of doomed passengers staved off a similar atrocity in Washington.
Yes, we’ve seen this movie before. And we know how it ends.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
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