In chapter 2, we described the growth of a new kind of terrorism, and a new terrorist organization--especially from 1988 to 1998, when Usama Bin Ladin declared war and organized the bombing of two U.S. embassies. In this chapter, we trace the parallel evolution of government efforts to counter terrorism by Islamic extremists against the United States.
We mention many personalities in this report. As in any study of the U.S. government, some of the most important characters are institutions. We will introduce various agencies, and how they adapted to a new kind of terrorism.
3. 1 FROM THE OLD TERRORISM TO THE NEW:
THE FIRST WORLD TRADE CENTER BOMBING
At 18 minutes after noon on February 26, 1993, a huge bomb went off beneath the two towers of the World Trade Center. This was not a suicide attack. The terrorists parked a truck bomb with a timing device on Level B-2 of the underground garage, then departed. The ensuing explosion opened a hole seven stories up. Six people died. More than a thousand were injured. An FBI agent at the scene described the relatively low number of fatalities as a miracle. 1
President Bill Clinton ordered his National Security Council to coordinate the response. Government agencies swung into action to find the culprits. The Counterterrorist Center located at the CIA combed its files and queried sources around the world. The National Security Agency (NSA), the huge Defense Department signals collection agency, ramped up its communications intercept network and searched its databases for clues. 2 The New York Field Office of the FBI took control of the local investigation and, in the end, set a pattern for future management of terrorist incidents.
Four features of this episode have significance for the story of 9/11.
72 THE 9/11 COMMISSION REPORT
First, the bombing signaled a new terrorist challenge, one whose rage and malice had no limit. RamziYousef, the Sunni extremist who planted the bomb, said later that he had hoped to kill 250, 000 people. 3
Second, the FBI and the Justice Department did excellent work investigating the bombing. Within days, the FBI identified a truck remnant as part of a Ryder rental van reported stolen in Jersey City the day before the bombing. 4
Mohammed Salameh, who had rented the truck and reported it stolen, kept calling the rental office to get back his $400 deposit. The FBI arrested him there on March 4, 1993. In short order, the Bureau had several plotters in custody, including Nidal Ayyad, an engineer who had acquired chemicals for the bomb, and Mahmoud Abouhalima, who had helped mix the chemicals. 5
The FBI identified another conspirator, Ahmad Ajaj, who had been arrested by immigration authorities at John F. Kennedy International Airport in September 1992 and charged with document fraud. His traveling companion was Ramzi Yousef, who had also entered with fraudulent documents but claimed political asylum and was admitted. It quickly became clear thatYousef had been a central player in the attack. He had fled to Pakistan immediately after the bombing and would remain at large for nearly two years. 6
The arrests of Salameh, Abouhalima, and Ayyad led the FBI to the Farouq mosque in Brooklyn, where a central figure was Sheikh Omar Abdel Rahman, an extremist Sunni Muslim cleric who had moved to the United States from Egypt in 1990. In speeches and writings, the sightless Rahman, often called the “Blind Sheikh, ” preached the message of Sayyid Qutb’s Milestones, characterizing the United States as the oppressor of Muslims worldwide and asserting that it was their religious duty to fight against God’s enemies. An FBI informant learned of a plan to bomb major New York landmarks, including the Holland and Lincoln tunnels. Disrupting this “landmarks plot, ” the FBI in June 1993 arrested Rahman and various confederates. 7
As a result of the investigations and arrests, the U.S. Attorney for the Southern District of New York prosecuted and convicted multiple individuals, including Ajaj, Salameh, Ayyad, Abouhalima, the Blind Sheikh, and Ramzi Yousef, for crimes related to the World Trade Center bombing and other plots.
An unfortunate consequence of this superb investigative and prosecutorial effort was that it created an impression that the law enforcement system was well-equipped to cope with terrorism. Neither President Clinton, his principal advisers, the Congress, nor the news media felt prompted, until later, to press the question of whether the procedures that put the Blind Sheikh and Ramzi Yousef behind bars would really protect Americans against the new virus of which these individuals were just the first symptoms. 8
Third, the successful use of the legal system to address the first World Trade Center bombing had the side effect of obscuring the need to examine the character and extent of the new threat facing the United States. The trials did not bring the Bin Ladin network to the attention of the public and policymakers.
COUNTERTERRORISM EVOLVES 73
The FBI assembled, and the U.S. Attorney’s office put forward, some evidence showing that the men in the dock were not the only plotters. Materials taken from Ajaj indicated that the plot or plots were hatched at or near the Khaldan camp, a terrorist training camp on the Afghanistan-Pakistan border.
Ajaj had left Texas in April 1992 to go there to learn how to construct bombs.
He had met Ramzi Yousef in Pakistan, where they discussed bombing targets in the United States and assembled a “terrorist kit” that included bomb-making manuals, operations guidance, videotapes advocating terrorist action against the United States, and false identification documents. 9
Yousef was captured in Pakistan following the discovery by police in the Philippines in January 1995 of the Manila air plot, which envisioned placing bombs on board a dozen trans-Pacific airliners and setting them off simultaneously.
Khalid Sheikh Mohammed--Yousef ’s uncle, then located in Qatar--was a fellow plotter ofYousef ’s in the Manila air plot and had also wired him some money prior to the Trade Center bombing. The U.S. Attorney obtained an indictment against KSM in January 1996, but an official in the government of Qatar probably warned him about it. Khalid Sheikh Mohammed evaded capture (and stayed at large to play a central part in the 9/11 attacks). 10
The law enforcement process is concerned with proving the guilt of persons apprehended and charged. Investigators and prosecutors could not present all the evidence of possible involvement of individuals other than those charged, although they continued to pursue such investigations, planning or hoping for later prosecutions. The process was meant, by its nature, to mark for the public the events as finished--case solved, justice done. It was not designed to ask if the events might be harbingers of worse to come. Nor did it allow for aggregating and analyzing facts to see if they could provide clues to terrorist tactics more generally--methods of entry and finance, and mode of operation inside the United States.
Fourth, although the bombing heightened awareness of a new terrorist danger, successful prosecutions contributed to widespread underestimation of the threat. The government’s attorneys stressed the seriousness of the crimes, and put forward evidence ofYousef ’s technical ingenuity. Yet the public image that persisted was not of cleverYousef but of stupid Salameh going back again and again to reclaim his $400 truck rental deposit.
3. 2 ADAPTATION--AND NONADAPTATION--IN THE LAW ENFORCEMENT COMMUNITY
Legal processes were the primary method for responding to these early manifestations of a new type of terrorism. Our overview of U.S. capabilities for dealing with it thus begins with the nation’s vast complex of law enforcement agencies.
74 THE 9/11 COMMISSION REPORT
The Justice Department and the FBI
At the federal level, much law enforcement activity is concentrated in the Department of Justice. For countering terrorism, the dominant agency under Justice is the Federal Bureau of Investigation. The FBI does not have a general grant of authority but instead works under specific statutory authorizations.
Most of its work is done in local offices called field offices. There are 56 of them, each covering a specified geographic area, and each quite separate from all others. Prior to 9/11, the special agent in charge was in general free to set his or her office’s priorities and assign personnel accordingly. 11
The office’s priorities were driven by two primary concerns. First, performance in the Bureau was generally measured against statistics such as numbers of arrests, indictments, prosecutions, and convictions. Counterterrorism and counterintelligence work, often involving lengthy intelligence investigations that might never have positive or quantifiable results, was not career-enhancing.
Most agents who reached management ranks had little counterterrorism experience. Second, priorities were driven at the local level by the field offices, whose concerns centered on traditional crimes such as white-collar offenses and those pertaining to drugs and gangs. Individual field offices made choices to serve local priorities, not national priorities. 12
The Bureau also operates under an “office of origin” system. To avoid duplication and possible conflicts, the FBI designates a single office to be in charge of an entire investigation. Because the New York Field Office indicted Bin Ladin prior to the East Africa bombings, it became the office of origin for all Bin Ladin cases, including the East Africa bombings and later the attack on the USS Cole. Most of the FBI’s institutional knowledge on Bin Ladin and al Qaeda resided there. This office worked closely with the U.S. Attorney for the Southern District of New York to identify, arrest, prosecute, and convict many of the perpetrators of the attacks and plots. Field offices other than the specified office of origin were often reluctant to spend much energy on matters over which they had no control and for which they received no credit. 13
The FBI’s domestic intelligence gathering dates from the 1930s. With World War II looming, President Franklin D. Roosevelt ordered FBI Director J. Edgar Hoover to investigate foreign and foreign-inspired subversion--Communist, Nazi, and Japanese. Hoover added investigation of possible espionage, sabotage, or subversion to the duties of field offices. After the war, foreign intelligence duties were assigned to the newly established Central Intelligence Agency.
Hoover jealously guarded the FBI’s domestic portfolio against all rivals.
Hoover felt he was accountable only to the president, and the FBI’s domestic intelligence activities kept growing. In the 1960s, the FBI was receiving significant assistance within the United States from the CIA and from Army Intelligence.
The legal basis for some of this assistance was dubious.
Decades of encouragement to perform as a domestic intelligence agency abruptly ended in the 1970s.Two years after Hoover’s death in 1972, congres
COUNTERTERRORISM EVOLVES 75
sional and news media investigations of the Watergate scandals of the Nixon administration expanded into general investigations of foreign and domestic intelligence by the Church and Pike committees. 14 They disclosed domestic intelligence efforts, which included a covert action program that operated from 1956 to 1971 against domestic organizations and, eventually, domestic dissidents.
The FBI had spied on a wide range of political figures, especially individuals whom Hoover wanted to discredit (notably the Reverend Martin Luther King, Jr. ), and had authorized unlawful wiretaps and surveillance. The shock registered in public opinion polls, where the percentage of Americans declaring a “highly favorable” view of the FBI dropped from 84 percent to 37 percent. The FBI’s Domestic Intelligence Division was dissolved. 15
In 1976, Attorney General Edward Levi adopted domestic security guidelines to regulate intelligence collection in the United States and to deflect calls for even stronger regulation. In 1983, Attorney General William French Smith revised the Levi guidelines to encourage closer investigation of potential terrorism.
He also loosened the rules governing authorization for investigations and their duration. Still, his guidelines, like Levi’s, took account of the reality that suspicion of “terrorism, ” like suspicion of “subversion, ” could lead to making individuals targets for investigation more because of their beliefs than because of their acts. Smith’s guidelines also took account of the reality that potential terrorists were often members of extremist religious organizations and that investigation of terrorism could cross the line separating state and church. 16
In 1986, Congress authorized the FBI to investigate terrorist attacks against Americans that occur outside the United States. Three years later, it added authority for the FBI to make arrests abroad without consent from the host country. Meanwhile, a task force headed byVice President George H. W. Bush had endorsed a concept already urged by Director of Central Intelligence William Casey--a Counterterrorist Center, where the FBI, the CIA, and other organizations could work together on international terrorism. While it was distinctly a CIA entity, the FBI detailed officials to work at the Center and obtained leads that helped in the capture of persons wanted for trial in the United States.
The strengths that the FBI brought to counterterrorism were nowhere more brilliantly on display than in the case of Pan American Flight 103, bound from London to New York, which blew up over Lockerbie, Scotland, in December 1988, killing 270 people. Initial evidence pointed to the government of Syria and, later, Iran. The Counterterrorist Center reserved judgment on the perpetrators of the attack. Meanwhile, FBI technicians, working with U. K. security services, gathered and analyzed the widely scattered fragments of the airliner.
In 1991, with the help of the Counterterrorist Center, they identified one small fragment as part of a timing device--to the technicians, as distinctive as DNA.
It was a Libyan device.Together with other evidence, the FBI put together a
76 THE 9/11 COMMISSION REPORT
case pointing conclusively to the Libyan government. Eventually Libya acknowledged its responsibility. 17 Pan Am 103 became a cautionary tale against rushing to judgment in attributing responsibility for a terrorist act. It also showed again how--given a case to solve--the FBI remained capable of extraordinary investigative success.
FBI Organization and Priorities In 1993, President Clinton chose Louis Freeh as the Director of the Bureau.
Freeh, who would remain Director until June 2001, believed that the FBI’s work should be done primarily by the field offices. To emphasize this view he cut headquarters staff and decentralized operations. The special agents in charge gained power, influence, and independence. 18
Freeh recognized terrorism as a major threat. He increased the number of legal attachי offices abroad, focusing in particular on the Middle East. He also urged agents not to wait for terrorist acts to occur before taking action. In his first budget request to Congress after the 1993 World Trade Center bombing, he stated that “merely solving this type of crime is not enough; it is equally important that the FBI thwart terrorism before such acts can be perpetrated. ”
Within headquarters, he created a Counterterrorism Division that would complement the Counterterrorist Center at the CIA and arranged for exchanges of senior FBI and CIA counterterrorism officials. He pressed for more cooperation between legal attachיs and CIA stations abroad. 19
Freeh’s efforts did not, however, translate into a significant shift of resources to counterterrorism. FBI, Justice, and Office of Management and Budget officials said that FBI leadership seemed unwilling to shift resources to terrorism from other areas such as violent crime and drug enforcement; other FBI officials blamed Congress and the OMB for a lack of political will and failure to understand the FBI’s counterterrorism resource needs. In addition, Freeh did not impose his views on the field offices. With a few notable exceptions, the field offices did not apply significant resources to terrorism and often reprogrammed funds for other priorities. 20
In 1998, the FBI issued a five-year strategic plan led by its deputy director, Robert “Bear” Bryant. For the first time, the FBI designated national and economic security, including counterterrorism, as its top priority. Dale Watson, who would later become the head of the new Counterterrorism Division, said that after the East Africa bombings, “the light came on” that cultural change had to occur within the FBI. The plan mandated a stronger intelligence collection effort.
It called for a nationwide automated system to facilitate information collection, analysis, and dissemination. It envisioned the creation of a professional intelligence cadre of experienced and trained agents and analysts. If successfully implemented, this would have been a major step toward addressing terrorism systematically, rather than as individual unrelated cases. But the plan did not succeed. 21
First, the plan did not obtain the necessary human resources. Despite des
COUNTERTERRORISM EVOLVES 77
ignating “national and economic security” as its top priority in 1998, the FBI did not shift human resources accordingly. Although the FBI’s counterterrorism budget tripled during the mid-1990s, FBI counterterrorism spending remained fairly constant between fiscal years 1998 and 2001. In 2000, there were still twice as many agents devoted to drug enforcement as to counterterrorism. 22
Second, the new division intended to strengthen the FBI’s strategic analysis capability faltered. It received insufficient resources and faced resistance from senior managers in the FBI’s operational divisions. The new division was supposed to identify trends in terrorist activity, determine what the FBI did not know, and ultimately drive collection efforts. However, the FBI had little appreciation for the role of analysis. Analysts continued to be used primarily in a tactical fashion--providing support for existing cases. Compounding the problem was the FBI’s tradition of hiring analysts from within instead of recruiting individuals with the relevant educational background and expertise. 23
Moreover, analysts had difficulty getting access to the FBI and intelligence community information they were expected to analyze. The poor state of the FBI’s information systems meant that such access depended in large part on an analyst’s personal relationships with individuals in the operational units or squads where the information resided. For all of these reasons, prior to 9/11
relatively few strategic analytic reports about counterterrorism had been completed.
Indeed, the FBI had never completed an assessment of the overall terrorist threat to the U.S. homeland. 24
Third, the FBI did not have an effective intelligence collection effort. Collection of intelligence from human sources was limited, and agents were inadequately trained. Only three days of a 16-week agents’ course were devoted to counterintelligence and counterterrorism, and most subsequent training was received on the job. The FBI did not have an adequate mechanism for validating source reporting, nor did it have a system for adequately tracking and sharing source reporting, either internally or externally. The FBI did not dedicate sufficient resources to the surveillance and translation needs of counterterrorism agents. It lacked sufficient translators proficient in Arabic and other key languages, resulting in a significant backlog of untranslated intercepts. 25
Finally, the FBI’s information systems were woefully inadequate. The FBI
lacked the ability to know what it knew: there was no effective mechanism for capturing or sharing its institutional knowledge. FBI agents did create records of interviews and other investigative efforts, but there were no reports officers to condense the information into meaningful intelligence that could be retrieved and disseminated. 26
In 1999, the FBI created separate Counterterrorism and Counterintelligence divisions. DaleWatson, the first head of the new Counterterrorism Division, recognized the urgent need to increase the FBI’s counterterrorism capability. His plan, called MAXCAP 05, was unveiled in 2000: it set the goal
78 THE 9/11 COMMISSION REPORT
of bringing the Bureau to its “maximum feasible capacity” in counterterrorism by 2005. Field executives told Watson that they did not have the analysts, linguists, or technically trained experts to carry out the strategy. In a report provided to Director Robert Mueller in September 2001, one year after Watson presented his plan to field executives, almost every FBI field office was assessed to be operating below “maximum capacity. ”The report stated that “the goal to ‘prevent terrorism’ requires a dramatic shift in emphasis from a reactive capability to highly functioning intelligence capability which provides not only leads and operational support, but clear strategic analysis and direction. ”27
Legal Constraints on the FBI and “the Wall”
The FBI had different tools for law enforcement and intelligence. 28 For criminal matters, it could apply for and use traditional criminal warrants. For intelligence matters involving international terrorism, however, the rules were different. For many years the attorney general could authorize surveillance of foreign powers and agents of foreign powers without any court review, but in 1978 Congress passed the Foreign Intelligence Surveillance Act. 29This law regulated intelligence collection directed at foreign powers and agents of foreign powers in the United States. In addition to requiring court review of proposed surveillance (and later, physical searches), the 1978 act was interpreted by the courts to require that a search be approved only if its “primary purpose” was to obtain foreign intelligence information. In other words, the authorities of the FISA law could not be used to circumvent traditional criminal warrant requirements. The Justice Department interpreted these rulings as saying that criminal prosecutors could be briefed on FISA information but could not direct or control its collection. 30
Throughout the 1980s and early 1990s, Justice prosecutors had informal arrangements for obtaining information gathered in the FISA process, the understanding being that they would not improperly exploit that process for their criminal cases. Whether the FBI shared with prosecutors information pertinent to possible criminal investigations was left solely to the judgment of the FBI. 31
But the prosecution of Aldrich Ames for espionage in 1994 revived concerns about the prosecutors’ role in intelligence investigations. The Department of Justice’s Office of Intelligence Policy and Review (OIPR) is responsible for reviewing and presenting all FISA applications to the FISA Court. It worried that because of the numerous prior consultations between FBI agents and prosecutors, the judge might rule that the FISA warrants had been misused. If that had happened, Ames might have escaped conviction. Richard Scruggs, the acting head of OIPR, complained to Attorney General Janet Reno about the lack of information-sharing controls. On his own, he began imposing informationsharing procedures for FISA material. The Office of Intelligence Policy and Review became the gatekeeper for the flow of FISA information to criminal prosecutors. 32
COUNTERTERRORISM EVOLVES 79
In July 1995, Attorney General Reno issued formal procedures aimed at managing information sharing between Justice Department prosecutors and the FBI. They were developed in a working group led by the Justice Department’s Executive Office of National Security, overseen by Deputy Attorney General Jamie Gorelick. 33 These procedures--while requiring the sharing of intelligence information with prosecutors--regulated the manner in which such information could be shared from the intelligence side of the house to the criminal side.
These procedures were almost immediately misunderstood and misapplied.
As a result, there was far less information sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the department’s procedures. Over time the procedures came to be referred to as “the wall. ” The term “the wall” is misleading, however, because several factors led to a series of barriers to information sharing that developed. 34
The Office of Intelligence Policy and Review became the sole gatekeeper for passing information to the Criminal Division. Though Attorney General Reno’s procedures did not include such a provision, the Office assumed the role anyway, arguing that its position reflected the concerns of Judge Royce Lamberth, then chief judge of the Foreign Intelligence Surveillance Court. The Office threatened that if it could not regulate the flow of information to criminal prosecutors, it would no longer present the FBI’s warrant requests to the FISA Court. The information flow withered. 35
The 1995 procedures dealt only with sharing between agents and criminal prosecutors, not between two kinds of FBI agents, those working on intelligence matters and those working on criminal matters. But pressure from the Office of Intelligence Policy Review, FBI leadership, and the FISA Court built barriers between agents--even agents serving on the same squads. FBI Deputy Director Bryant reinforced the Office’s caution by informing agents that too much information sharing could be a career stopper. Agents in the field began to believe--incorrectly--that no FISA information could be shared with agents working on criminal investigations. 36
This perception evolved into the still more exaggerated belief that the FBI
could not share any intelligence information with criminal investigators, even if no FISA procedures had been used. Thus, relevant information from the National Security Agency and the CIA often failed to make its way to criminal investigators. Separate reviews in 1999, 2000, and 2001 concluded independently that information sharing was not occurring, and that the intent of the 1995 procedures was ignored routinely. 37 We will describe some of the unfortunate consequences of these accumulated institutional beliefs and practices in chapter 8.
There were other legal limitations. Both prosecutors and FBI agents argued that they were barred by court rules from sharing grand jury information, even though the prohibition applied only to that small fraction that had been presented
to a grand jury, and even that prohibition had exceptions. But as inter
80 THE 9/11 COMMISSION REPORT
preted by FBI field offices, this prohibition could conceivably apply to much of the information unearthed in an investigation. There were also restrictions, arising from executive order, on the commingling of domestic information with foreign intelligence. Finally the NSA began putting caveats on its Bin Ladin--related reports that required prior approval before sharing their contents with criminal investigators and prosecutors. These developments further blocked the arteries of information sharing. 38
Other Law Enforcement Agencies The Justice Department is much more than the FBI. It also has a U.S. Marshals Service, almost 4, 000 strong on 9/11 and especially expert in tracking fugitives, with much local police knowledge. The department’s Drug Enforcement Administration had, as of 2001, more than 4, 500 agents. 39 There were a number of occasions when DEA agents were able to introduce sources to the FBI
or CIA for counterterrorism use.
The Immigration and Naturalization Service (INS), with its 9, 000 Border Patrol agents, 4, 500 inspectors, and 2, 000 immigration special agents, had perhaps the greatest potential to develop an expanded role in counterterrorism.
However, the INS was focused on the formidable challenges posed by illegal entry over the southwest border, criminal aliens, and a growing backlog in the applications for naturalizing immigrants. TheWhite House, the Justice Department, and above all the Congress reinforced these concerns. In addition, when Doris Meissner became INS Commissioner in 1993, she found an agency seriously hampered by outdated technology and insufficient human resources. Border Patrol agents were still using manual typewriters; inspectors at ports of entry were using a paper watchlist; the asylum and other benefits systems did not effectively deter fraudulent applicants. 40
Commissioner Meissner responded in 1993 to the World Trade Center bombing by providing seed money to the State Department’s Consular Affairs Bureau to automate its terrorist watchlist, used by consular officers and border inspectors. The INS assigned an individual in a new “lookout” unit to work with the State Department in watchlisting suspected terrorists and with the intelligence community and the FBI in determining how to deal with them when they appeared at ports of entry. By 1998, 97 suspected terrorists had been denied admission at U.S. ports of entry because of the watchlist. 41
How to conduct deportation cases against aliens who were suspected terrorists caused significant debate. The INS had immigration law expertise and authority to bring the cases, but the FBI possessed the classified information sometimes needed as evidence, and information-sharing conflicts resulted.
New laws in 1996 authorized the use of classified evidence in removal hearings, but the INS removed only a handful of the aliens with links to terrorist activity (none identified as associated with al Qaeda) using classified evidence. 42 Midlevel INS employees proposed comprehensive counterterrorism pro
COUNTERTERRORISM EVOLVES 81
posals to management in 1986, 1995, and 1997. No action was taken on them.
In 1997, a National Security Unit was set up to handle alerts, track potential terrorist cases for possible immigration enforcement action, and work with the rest of the Justice Department. It focused on the FBI’s priorities of Hezbollah and Hamas, and began to examine how immigration laws could be brought to bear on terrorism. For instance, it sought unsuccessfully to require that CIA
security checks be completed before naturalization applications were approved. 43 Policy questions, such as whether resident alien status should be revoked upon the person’s conviction of a terrorist crime, were not addressed.
Congress, with the support of the Clinton administration, doubled the number of Border Patrol agents required along the border with Mexico to one agent every quarter mile by 1999. It rejected efforts to bring additional resources to bear in the north. The border with Canada had one agent for every 13. 25 miles. Despite examples of terrorists entering from Canada, awareness of terrorist activity in Canada and its more lenient immigration laws, and an inspector general’s report recommending that the Border Patrol develop a northern border strategy, the only positive step was that the number of Border Patrol agents was not cut any further. 44
Inspectors at the ports of entry were not asked to focus on terrorists. Inspectors told us they were not even aware that when they checked the names of incoming passengers against the automated watchlist, they were checking in part for terrorists. In general, border inspectors also did not have the information they needed to make fact-based determinations of admissibility. The INS
initiated but failed to bring to completion two efforts that would have provided inspectors with information relevant to counterterrorism--a proposed system to track foreign student visa compliance and a program to establish a way of tracking travelers’ entry to and exit from the United States. 45
In 1996, a new law enabled the INS to enter into agreements with state and local law enforcement agencies through which the INS provided training and the local agencies exercised immigration enforcement authority. Terrorist watchlists were not available to them. Mayors in cities with large immigrant populations sometimes imposed limits on city employee cooperation with federal immigration agents. A large population lives outside the legal framework.
Fraudulent documents could be easily obtained. Congress kept the number of INS agents static in the face of the overwhelming problem. 46
The chief vehicle for INS and for state and local participation in law enforcement was the Joint Terrorism Task Force (JTTF), first tried out in New York City in 1980 in response to a spate of incidents involving domestic terrorist organizations. This task force was managed by the NewYork Field Office of the FBI, and its existence provided an opportunity to exchange information and, as happened after the firstWorld Trade Center bombing, to enlist local officers, as well as other agency representatives, as partners in the FBI investigation.
The FBI expanded the number of JTTFs throughout the 1990s, and by
82 THE 9/11 COMMISSION REPORT
9/11 there were 34. While useful, the JTTFs had limitations. They set priorities in accordance with regional and field office concerns, and most were not fully staffed. Many state and local entities believed they had little to gain from having a full-time representative on a JTTF. 47
Other federal law enforcement resources, also not seriously enlisted for counterterrorism, were to be found in the Treasury Department.
Treasury housed the Secret Service, the Customs Service, and the Bureau of Alcohol, Tobacco, and Firearms. Given the Secret Service’s mission to protect the president and other high officials, its agents did become involved with those of the FBI whenever terrorist assassination plots were rumored.
The Customs Service deployed agents at all points of entry into the United States. Its agents worked alongside INS agents, and the two groups sometimes cooperated. In the winter of 1999--2000, as will be detailed in chapter 6, questioning by an especially alert Customs inspector led to the arrest of an al Qaeda terrorist whose apparent mission was to bomb Los Angeles International Airport.
The Bureau of Alcohol, Tobacco, and Firearms was used on occasion by the FBI as a resource. The ATF’s laboratories and analysis were critical to the investigation of the February 1993 bombing of theWorld Trade Center and the April 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. 48
Before 9/11, with the exception of one portion of the FBI, very little of the sprawling U.S. law enforcement community was engaged in countering terrorism.
Moreover, law enforcement could be effective only after specific individuals were identified, a plot had formed, or an attack had already occurred.
Responsible individuals had to be located, apprehended, and transported back to a U.S. court for prosecution. As FBI agents emphasized to us, the FBI and the Justice Department do not have cruise missiles. They declare war by indicting someone. They took on the lead role in addressing terrorism because they were asked to do so. 49
3. 3 . . . AND IN THE FEDERAL AVIATION
The Federal Aviation Administration (FAA) within the Department of Transportation had been vested by Congress with the sometimes conflicting mandate of regulating the safety and security of U.S. civil aviation while also promoting the civil aviation industry.The FAA had a security mission to protect the users of commercial air transportation against terrorism and other criminal acts. In the years before 9/11, the FAA perceived sabotage as a greater threat to aviation than hijacking. First, no domestic hijacking had occurred in a decade. Second, the commercial aviation system was perceived as more vulnerable to explosives than to weapons such as firearms. Finally, explosives were
COUNTERTERRORISM EVOLVES 83
perceived as deadlier than hijacking and therefore of greater consequence. In 1996, a presidential commission on aviation safety and security chaired byVice President Al Gore reinforced the prevailing concern about sabotage and explosives on aircraft. The Gore Commission also flagged, as a new danger, the possibility of attack by surface-to-air missiles. Its 1997 final report did not discuss the possibility of suicide hijackings. 50
The FAA set and enforced aviation security rules, which airlines and airports were required to implement. The rules were supposed to produce a “layered”
system of defense. This meant that the failure of any one layer of security would not be fatal, because additional layers would provide backup security.
But each layer relevant to hijackings--intelligence, passenger prescreening, checkpoint screening, and onboard security--was seriously flawed prior to 9/11. Taken together, they did not stop any of the 9/11 hijackers from getting on board four different aircraft at three different airports. 51
The FAA’s policy was to use intelligence to identify both specific plots and general threats to civil aviation security, so that the agency could develop and deploy appropriate countermeasures. The FAA’s 40-person intelligence unit was supposed to receive a broad range of intelligence data from the FBI, CIA, and other agencies so that it could make assessments about the threat to aviation.
But the large volume of data contained little pertaining to the presence and activities of terrorists in the United States. For example, information on the FBI’s effort in 1998 to assess the potential use of flight training by terrorists and the Phoenix electronic communication of 2001 warning of radical Middle Easterners attending flight school were not passed to FAA headquarters.
Several top FAA intelligence officials called the domestic threat picture a serious blind spot. 52
Moreover, the FAA’s intelligence unit did not receive much attention from the agency’s leadership. Neither Administrator Jane Garvey nor her deputy routinely reviewed daily intelligence, and what they did see was screened for them.
She was unaware of a great amount of hijacking threat information from her own intelligence unit, which, in turn, was not deeply involved in the agency’s policymaking process. Historically, decisive security action took place only after a disaster had occurred or a specific plot had been discovered. 53
The next aviation security layer was passenger prescreening. The FAA
directed air carriers not to fly individuals known to pose a “direct” threat to civil aviation. But as of 9/11, the FAA’s “no-fly” list contained the names of just 12 terrorist suspects (including 9/11 mastermind Khalid Sheikh Mohammed), even though government watchlists contained the names of many thousands of known and suspected terrorists. This astonishing mismatch existed despite the Gore Commission’s having called on the FBI and CIA four years earlier to provide terrorist watchlists to improve prescreening.The longtime chief of the FAA’s civil aviation security division testified that he was not
even aware of the State Department’s TIPOFF list of known and suspected ter
84 THE 9/11 COMMISSION REPORT
rorists (some 60, 000 before 9/11) until he heard it mentioned during the Commission’s January 26, 2004, public hearing. The FAA had access to some TIPOFF data, but apparently found it too difficult to use. 54
The second part of prescreening called on the air carriers to implement an FAA-approved computerized algorithm (known as CAPPS, for Computer Assisted Passenger Prescreening System) designed to identify passengers whose profile suggested they might pose more than a minimal risk to aircraft.
Although the algorithm included hijacker profile data, at that time only passengers checking bags were eligible to be selected by CAPPS for additional scrutiny. Selection entailed only having one’s checked baggage screened for explosives or held off the airplane until one had boarded. Primarily because of concern regarding potential discrimination and the impact on passenger throughput, “selectees” were no longer required to undergo extraordinary screening of their carry-on baggage as had been the case before the system was computerized in 1997. 55 This policy change also reflected the perception that nonsuicide sabotage was the primary threat to civil aviation.
Checkpoint screening was considered the most important and obvious layer of security. Walk-through metal detectors and X-ray machines operated by trained screeners were employed to stop prohibited items. Numerous government reports indicated that checkpoints performed poorly, often failing to detect even obvious FAA test items. Many deadly and dangerous items did not set off metal detectors, or were hard to distinguish in an X-ray machine from innocent everyday items. 56
While FAA rules did not expressly prohibit knives with blades under 4 inches long, the airlines’ checkpoint operations guide (which was developed in cooperation with the FAA), explicitly permitted them. The FAA’s basis for this policy was (1) the agency did not consider such items to be menacing, (2) most local laws did not prohibit individuals from carrying such knives, and (3) such knives would have been difficult to detect unless the sensitivity of metal detectors had been greatly increased. A proposal to ban knives altogether in 1993
had been rejected because small cutting implements were difficult to detect and the number of innocent “alarms” would have increased significantly, exacerbating congestion problems at checkpoints. 57
Several years prior to 9/11, an FAA requirement for screeners to conduct “continuous” and “random” hand searches of carry-on luggage at checkpoints had been replaced by explosive trace detection or had simply become ignored by the air carriers. Therefore, secondary screening of individuals and their carry-on bags to identify weapons (other than bombs) was nonexistent, except for passengers who triggered the metal detectors. Even when small knives were detected by secondary screening, they were usually returned to the traveler.
Reportedly, the 9/11 hijackers were instructed to use items that would be undetectable by airport checkpoints. 58
In the pre-9/11 security system, the air carriers played a major role.As the
COUNTERTERRORISM EVOLVES 85
Inspector General of the Department of Transportation told us, there were great pressures from the air carriers to control security costs and to “limit the impact of security requirements on aviation operations, so that the industry could concentrate on its primary mission of moving passengers and aircraft. . . . [T]hose counterpressures in turn manifested themselves as significant weaknesses in security. ”A longtime FAA security official described the air carriers’ approach to security regulation as “decry, deny and delay” and told us that while “the air carriers had seen the enlightened hand of self-interest with respect to safety, they hadn’t seen it in the security arena. ”59
The final layer, security on board commercial aircraft, was not designed to counter suicide hijackings. The FAA-approved “Common Strategy” had been elaborated over decades of experience with scores of hijackings, beginning in the 1960s. It taught flight crews that the best way to deal with hijackers was to accommodate their demands, get the plane to land safely, and then let law enforcement or the military handle the situation. According to the FAA, the record had shown that the longer a hijacking persisted, the more likely it was to end peacefully. The strategy operated on the fundamental assumption that hijackers issue negotiable demands (most often for asylum or the release of prisoners)
and that, as one FAA official put it, “suicide wasn’t in the game plan” of hijackers. FAA training material provided no guidance for flight crews should violence occur. 60
This prevailing Common Strategy of cooperation and nonconfrontation meant that even a hardened cockpit door would have made little difference in a hijacking. As the chairman of the Security Committee of the Air Line Pilots Association observed when proposals were made in early 2001 to install reinforced cockpit doors in commercial aircraft, “Even if you make a vault out of the door, if they have a noose around my flight attendant’s neck, I’m going to open the door. ” Prior to 9/11, FAA regulations mandated that cockpit doors permit ready access into and out of the cockpit in the event of an emergency.
Even so, rules implemented in the 1960s required air crews to keep the cockpit door closed and locked in flight. This requirement was not always observed or vigorously enforced. 61
As for law enforcement, there were only 33 armed and trained federal air marshals as of 9/11. They were not deployed on U.S. domestic flights, except when in transit to provide security on international departures. This policy reflected the FAA’s view that domestic hijacking was in check--a view held confidently as no terrorist had hijacked a U.S. commercial aircraft anywhere in the world since 1986. 62
In the absence of any recent aviation security incident and without “specific and credible” evidence of a plot directed at civil aviation, the FAA’s leadership focused elsewhere, including on operational concerns and the ever-present issue of safety. FAA Administrator Garvey recalled that “every day in 2001 was like the day before Thanksgiving.” Heeding calls for improved air
86 THE 9/11 COMMISSION REPORT
service, Congress concentrated its efforts on a “passenger bill of rights, ” to improve capacity, efficiency, and customer satisfaction in the aviation system.
There was no focus on terrorism. 63
3. 4 . . . AND IN THE INTELLIGENCE COMMUNITY
The National Security Act of 1947 created the position of Director of Central Intelligence (DCI). Independent from the departments of Defense, State, Justice, and other policy departments, the DCI heads the U.S. intelligence community and provides intelligence to federal entities.
The sole element of the intelligence community independent from a cabinet agency is the CIA. As an independent agency, it collects, analyzes, and disseminates intelligence from all sources. The CIA’s number one customer is the president of the United States, who also has the authority to direct it to conduct covert operations. 64 Although covert actions represent a very small fraction of the Agency’s entire budget, these operations have at times been controversial and over time have dominated the public’s perception of the CIA.
The DCI is confirmed by the Senate but is not technically a member of the president’s cabinet. The director’s power under federal law over the loose, confederated “intelligence community” is limited. 65 He or she states the community’s priorities and coordinates development of intelligence agency budget requests for submission to Congress.
This responsibility gives many the false impression that the DCI has line authority over the heads of these agencies and has the power to shift resources within these budgets as the need arises. Neither is true. In fact, the DCI’s real authority has been directly proportional to his personal closeness to the president, which has waxed and waned over the years, and to others in government, especially the secretary of defense.
Intelligence agencies under the Department of Defense account for approximately 80 percent of all U.S. spending for intelligence, including some that supports a national customer base and some that supports specific Defense Department or military service needs. 66 As they are housed in the Defense Department, these agencies are keenly attentive to the military’s strategic and tactical requirements.
One of the intelligence agencies in Defense with a national customer base is the National Security Agency, which intercepts and analyzes foreign communications and breaks codes.The NSA also creates codes and ciphers to protect government information. Another is the recently renamed National Geospatial-Intelligence Agency (NGA), which provides and analyzes imagery and produces a wide array of products, including maps, navigation tools, and surveillance intelligence. A third such agency in Defense is the National Reconnaissance Office. It develops, procures, launches, and maintains in orbit
COUNTERTERRORISM EVOLVES 87
information-gathering satellites that serve other government agencies.
The Defense Intelligence Agency supports the secretary of defense, Joint Chiefs of Staff, and military field commanders. It does some collection through human sources as well as some technical intelligence collection. The Army, Navy, Air Force, and Marine Corps have their own intelligence components that collect information, help them decide what weapons to acquire, and serve the tactical intelligence needs of their respective services.
In addition to those from the Department of Defense, other elements in the intelligence community include the national security parts of the FBI; the Bureau of Intelligence and Research in the State Department; the intelligence component of the Treasury Department; the Energy Department’s Office of Intelligence and Counterintelligence, the former of which, through leveraging the expertise of the national laboratory system, has special competence in nuclear weapons; the Office of Intelligence of the Coast Guard; and, today, the Directorate of Intelligence Analysis and Infrastructure Protection in the Department of Homeland Security.
The National Security Agency The National Security Agency’s intercepts of terrorist communications often set off alarms elsewhere in the government. Often, too, its intercepts are conclusive elements in the analyst’s jigsaw puzzle. NSA engineers build technical systems to break ciphers and to make sense of today’s complex signals environment.
Its analysts listen to conversations between foreigners not meant for them. They also perform “traffic analysis”--studying technical communications systems and codes as well as foreign organizational structures, including those of terrorist organizations.
Cold War adversaries used very hierarchical, familiar, and predictable military command and control methods. With globalization and the telecommunications revolution, and with loosely affiliated but networked adversaries using commercial devices and encryption, the technical impediments to signals collection grew at a geometric rate. At the same time, the end of the Cold War and the resultant cuts in national security funding forced intelligence agencies to cut systems and seek economies of scale. Modern adversaries are skilled users of communications technologies. The NSA’s challenges, and its opportunities, increased exponentially in “volume, variety, and velocity. ”67
The law requires the NSA to not deliberately collect data on U.S. citizens or on persons in the United States without a warrant based on foreign intelligence requirements. Also, the NSA was supposed to let the FBI know of any indication of crime, espionage, or “terrorist enterprise” so that the FBI could obtain the appropriate warrant. Later in this story, we will learn that while the NSA had the technical capability to report on communications with suspected terrorist facilities in the Middle East, the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and