Who Will Be the Red Flag Scapegoats?

W A S H I N G T O N, May 18, 2002 -- The missed signals that the intelligence community, including the FBI, supposedly overlooked that theoretically could have warned of or even prevented the Sept. 11 terrorist attacks became red flags this past week. And some members of Congress seemed out for blood.

I wrote last week about the eight-page message from the FBI's Phoenix field office to headquarters that included one paragraph about concerns regarding certain Middle Eastern students at Arizona flight schools.

Much has also been made of the request from the Minneapolis field office to headquarters seeking a national security warrant on accused "20th hijacker" Zacarias Moussaoui after he aroused suspicions while attending Minnesota flight schools. Finally, Wednesday night came the revelation that President Bush had received a vague intelligence warning that Osama bin Laden might hijack an airliner.

So now we have a genuine furor. For the foreseeable future, we'll all be either chasing or reading about variations on the theme of who-knew-what-when. I'll leave the questions about the CIA's briefings of the president, and the political ramifications of the ensuing uproar, to others. I'm interested in where that message went; whether anyone dealing with Moussaoui also saw it; and what this says about FBI procedures.

All this is not-entirely-coincidentally coming at a time that FBI Director Robert Mueller is very publicly planning a reorganization of the bureau, the major centerpiece of which is to devote more resources to counterterrorism and the analysis of intelligence.

So as we tear into what happened last July and August with these various communications between FBI officials, the ones in charge now will be ruefully shaking their heads and repeating their new mantra: this is why we need to make these changes. This is why we need new technology, more analysts, more translators, more agents, more money.

I'm not saying any of that is wrong — but the focus on the lack of adequate electronic systems, the dearth of analysts and translators, the need for more agents all plays into Mueller's current plans for retooling the FBI. I might also add that even while the bureau suffers from these revelations now, potentially this means that when the joint intelligence committees actually begin their hearings in June, it'll all be old news by then. This is one of the FBI's favorite public relations ploys.

Currently it appears that both the Phoenix message and the information about Moussaoui did not climb any higher at headquarters than the unit chief level in the Counterterrorism Division. If this is accurate, it means the following levels were never informed about these arguably vital clues: section chief, deputy assistant director, assistant director, deputy director, director. That would mean officials six rungs down received and alone dealt with these messages.

One source says the Phoenix message stayed in the Bin Laden Unit of Counterterrorism, except for being forwarded to two field offices, including New York City. Another official maintained the Phoenix message was in addition shared with the chief of the Radical Fundamentalists Unit, or RFU.

That could be significant, because that guy was also handling the Moussaoui matter. But as one Hill staffer cogently noted, "It's one or the other; it's so hard to tell what happens at the FBI!" A message might list several recipients, but it's hard to prove each one actually got it.

The Phoenix message was dated July 10; the Moussaoui matter began Aug. 17. Did the RFU chief, when he was handling the suspicions of Minneapolis about this guy who wanted to fly big airliners, who wanted to simulate flying the Heathrow-to-JFK route, ever stop and say: "Hey, Fred, get me that EC from about five weeks ago; where was it from, Phoenix? Maybe there's something funny going on in U.S. flight schools?"

As one FBI agent noted, it would stand to reason that a unit chief who was paying attention should put the two items together; that's what they get paid for. Especially considering the bureau's deplorable lack of a decent electronic filing system, the only cross-checking that gets done "is in the minds of the human beings over whose desks [such messages] pass."

DNA Legislative Cornucopia

Sen. Joseph Biden, D-Del., chaired a hearing this past week to consider several initiatives to deal with DNA issues. And when we're talking DNA, we're talking backlogs.

There's the backlog of samples collected from convicted offenders that have not yet been analyzed and entered into a database. There's the backlog of samples that haven't even been taken from such offenders. There's the backlog of crime scene samples that haven't been analyzed and entered. And then there are all the unanalyzed rape kits sitting on shelves while statutes of limitations tick away.

Biden pointed out that one of the most basic questions is a complete mystery: the numbers of these backlogs. He suggested the number of untested rape kits may now have climbed to an astonishing 500,000. But he quickly added that there is no current, accurate, reliable number. So one of the things his legislation would do is require Attorney General John Ashcroft to survey every law enforcement agency and find out just how bad the situation is.

His bill would also send more funds to states and locals to expand their DNA programs; set up a training program for sexual assault examiners; increase funds to the FBI to improve the software in the national database; and authorize federal indictments for sex offenses against a DNA profile when the perpetrator remains unknown. Such "John Doe" indictments would be rare since rape is not usually charged as a federal crime, but Biden wants to set a standard that states might emulate.

The FBI's new assistant director in charge of its lab, Dwight Adams, testified about CODIS, the Combined DNA Index System, which was basically software developed by the bureau in the early 1990s. But Adams told me that CODIS is now way over capacity — he testified it is a victim of its own success — because it was originally designed for only sexual assault victims.

But states have kept expanding the universe of convicts from whom samples should be taken, until now 19 of them are collecting from all felons. And three states have laws on the books to collect from arrestees. Another hindrance is that not all states are members of NDIS, the national database that actually joins state and federal banks.

So the reality is that the backlogs are expanding as fast as the states expand their laws — but the states are writing legislation without spending the funds to implement it.

As Adams pointed out, even having the data of all convicted offenders collected and analyzed and entered into databases will not solve crimes if the rape kits remain on the shelves. The system won't work until backlogs of both crime scenes and convicted offenders are both erased.

Sarah Hart, head of Justice's National Institute of Justice, testified about the administration's steps and bragged of many accomplishments (quite a few of which were actually achieved prior to January 2001). But she acknowledged the enormity of the backlog issue, pointing out that when Florida added just one felony to its list of offenses for which samples would be collected, it added 40,000 samples in just one year.

Hart said the administration supports testing all felons, allowing John Doe indictments, extending statutes of limitations, and generally increasing databank capacity. But she made clear she's opposed to Biden's suggestion that the attorney general be required to go to the states and count the backlog.

She pointed out that the "business of law enforcement is very fragmented," with more than 17,000 different police departments, making the task virtually impossible. Far better, she suggested, to spend the funds on expanding capacity.

Hart recently exasperated Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., by refusing to spend $750,000 on a pilot program to provide post-conviction DNA testing in cases where the test results could conceivably result in the freeing of innocent persons.

The backlog issue was vividly humanized with the testimony of rape victim Debbie Smith, a Virginia housewife who was brutally attacked in her own home while her policeman husband slept upstairs. For more than six years she suffered unbearable fear that her attacker would return and kill her, as he had threatened to do if she dared to report the crime. Her health and happiness were ruined, and she even considered suicide to escape from the tormenting nightmares. Her husband suffered terrible guilt, not only for not preventing the attack, but for insisting that she report the crime — seemingly to no avail.

After six long years of this, the commonwealth of Virginia finally got around to entering a certain offender sample into its database. There was an instant match with the offender in the Smith case.

And the worst irony: The bad guy had been locked up, for another rape, since a few months after Smith was attacked. But because of the backlog, she was denied the comfort of knowing that she was safe from further attack for more than six years. She said at long last she felt she could breathe again; "the healing had begun and peace had come at last." I won't say there wasn't a dry eye in the house — I couldn't see clearly enough myself.

Sen. Maria Cantwell, D-Wash., has introduced the "Debbie Smith Act" that would pay for the testing of 20,000 rape kits currently gathering dust in labs and on police evidence shelves. Sen. Hillary Rodham Clinton, D-N.Y., has introduced similar legislation.

Smith told the hearing, "It breaks my heart to see shelf after shelf filled with old, untested rape kits, each kit representing a life in turmoil." And she rather pointedly added to her prepared statement: "We have no idea where Osama bin Laden is hiding. But we have within our grasp the ability to hunt down the terrorists in our midst."

Reporters Entranced

This is one of the strangest stories I've ever told. Last week, as I've previously noted, Mueller appeared before Senate Judiciary Committee for the first time since his confirmation hearing last summer.

The stated purpose of the hearing was to explain his plans for phase two of his reorganization. But because the story had broken about the Phoenix memo, much of his testimony necessarily revolved around that issue. Senators of course also raised the Moussaoui issue, as I have done above.

About an hour and a half into the hearing, Mueller was being questioned by Sen. Richard Durbin, D-Ill. Here's part of that exchange:

Sen. Durbin: "Do you believe, as you testify today, that the FBI ignored a clear warning about the pending events of Sept. 11 by not responding properly to this memorandum?

Mr. Mueller: "Yes, I would disagree with that statement. I think the recommendations of the agent are something that we should have more aggressively pursued. I do not believe that it gave the signpost of that which would happen on Sept. 11.

"Of the warnings that we had — the stopping of Moussaoui, the arrest of Moussaoui, brought the bureau, and particularly the agent in Minneapolis, to the belief that this individual is the type of individual that could and might be the type of individual to take a plane and hijack it. And in fact, if I'm not mistaken, in one of the notes, the agent in Minneapolis mentioned the possibility of Moussaoui being that type of person that could fly something into the World Trade Center."

According to a senior FBI official, "No, he's not mistaken." The agent really did say that in his notes; the director really did testify to that effect, in an open hearing, in front of a couple dozen reporters, including the best and brightest on the Justice beat.

And not one single solitary reporter who was there that day wrote one syllable about the director saying one of his agents had speculated that Moussaoui wanted to fly something into the World Trade Center!

The only reporter who noticed it was the Newsweek guy ,who didn't even attend the hearing, and who only caught it by reading the transcript. I have not yet gone back to review the tape, to see if by chance it might show that every reporter in the room had been simultaneously hit by a thunderbolt, or fallen into a coma.

It was around 3:30, so maybe all of our biorhythms were equally low. Subsequently, of course, several of us have managed to rouse ourselves and return to the transcript and write authoritatively about that which we had failed earlier to notice. But fundamentally — this cannot be explained by any rational means.

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.