While Moussaoui's actions were suspicious, there was nothing to tie him to a foreign power or foreign political faction, a requirement to obtain a FISA warrant to wiretap his calls or search his computer. French intelligence officials said only that he had connections to radical Islamic extremists. When the FBI finally was able to look at his hard drive after the events of September 11 provided more evidence linking him to the hijackers, it found information about airplanes, crop dusting, and wind currents. That in itself would not add to the evidence needed to obtain approval to conduct electronic surveillance of him under FISA.
Because of the lack of evidence, FBI lawyers at headquarters told the Minneapolis agent they could not support either a FISA or criminal warrant. Lacking that, the FBI decided to turn him over to the INS. He was incarcerated on August 16 because his visa had expired.
Chertoff, for one, thought that if the wall between the FBI and Justice Department on FISA applications had not existed, agents working with prosecutors and Justice Department legal advisers might have devised a way for the FBI to develop the information needed to obtain authorization to intercept Moussaoui's communications.
As part of new antiterrorism legislation, Chertoff inserted language that would make it even clearer that a counterintelligence or counterterrorism investigation could morph seamlessly into a criminal case without posing any legal problems. Now information learned from FISA wiretaps and bugs could be used for prosecutions if "a significant purpose" rather than "the primary purpose" of the original application was to obtain intelligence. It was a semantic change that demonstrated that FISA as originally enacted never prohibited prosecutors and FBI agents from consulting with each other when FISA applications were considered. Yet the harmful attitudes spawned by Richard Scruggs, the Justice Department's counsel for the Office of Intelligence Policy and Review who first claimed that such a demarcation was required, lived on. Even after the change in the law, agents and prosecutors were still wary of consulting with each other. When I told him that nothing had, in fact, changed, Chertoff said, "I think there has been a change in thinking, but I think we have more work to do."
"It's about turf and control, not about what's right for the country," said former spy prosecutor John Martin.
Besides the FISA problem, civil libertarians, privacy advocates, extreme conservatives, and tech industry lobbyists had succeeded over the years in imposing restrictions that made no sense on FBI investigative operations. To be sure, Americans should always be wary of the FBI's power. The bureau is a paramilitary organization that responds to its leader. Should a politically motivated director take over, it is possible he or she could order illegal activities that might initially be concealed.
Of the bureau's ten directors, three — William J. Burns, J. Edgar Hoover, and William S. Sessions — abused their position. A fourth, Louis J. Freeh, almost destroyed the bureau through colossal mismanagement born of sheer donkeylike stubbornness and arrogance. As with presidents, FBI directors wield tremendous power and are constantly courted, and this can lead to a sense of entitlement.