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New York Post.

Coverup Of The Year
December 30, 2002

By William Tucker

Time magazine chose three female "whistleblowers" as its "Person of the Year" for 2002.

One is Coleen Rowley, the Minneapolis FBI official who wrote a memo upbraiding Washington for halting the probe of Zacarias Moussaoui, the alleged "20th hijacker." Time's editors call her "the FBI's public conscience... 'The bureau could be great,' was her message, if only it put the goal of protecting Americans above the goal of protecting itself, if only agents were not rewarded for sitting still."

"If we can't trust the institutions charged with tracking terrorists to do the job," the editors wind up, "homeland defense will be an empty phrase. The Coleen Rowleys of the federal work force will be the ones who will let us know what's going on."

But why did agents "sit still" when it came to investigating the suspicious Moussaoui? Somehow Time never gets around to telling that part of the story.

To find out what Rowley was actually fighting, you have to read Heather Mac Donald's City Journal article, "
Why the FBI missed 9/11" (Excerpted in The Post on Oct. 27). The Moussaoui mess-up was not a matter bureaucratic inertia. It was not a matter of administrators "sitting still." It was the direct result of four decades of liberal reform of the justice system on behalf of criminal suspects.

Moussaoui was arrested in August 2001 when instructors at a Minneapolis flight school became suspicious of his behavior. He had overstayed his visa, which was the ground for his arrest. But FBI investigators - using their heads - tried to pursue their suspicions by searching the hard drive of his computer. On it, they would have found the e-mail addresses of several other 9/11 conspirators.

Unfortunately, they ran into "The Wall."

"The Wall" is a set of restrictions superimposed by Janet Reno's Justice Department in 1995. As Mac Donald details, "The Wall erected a mind-boggling and ultimately lethal set of impediments to cooperation among all relevant anti-terrorist personnel."

Specifically, FBI staffers investigating foreign espionage were no longer allowed to share information with staff members investigating domestic crimes. Even if the agents were sitting at adjoining desks, their communications had to be cleared first through Washington.

But Washington higher-ups were restricted by the Fourth Amendment, which states that search warrants cannot be issued "except on probable cause and particularly describing the places to be searched and the things to be seized."

Since the 60s, the Supreme Court has expanded "probable cause" to mean that the police cannot act on "suspicions," "hunches" or what might be called "common sense." Instead, they must have hard evidence that a crime has already been committed before they begin to investigate.

When asked by Minneapolis officials for permission to open up a computer, Washington higher-ups responded strictly according to the rules. What's your probable cause? they asked. All you've got is a guy who's overstayed his visa and is taking flight lessons. That's not evidence of a crime.

By the terms imposed by the Supreme Court, they were absolutely right. Of course, these legalistic distinctions have never taken account of the experienced judgment of trained professionals.

Police officers have complained for decades that the rules do not allow them to think. They say these restrictions only benefit guilty people, that no harm is suffered when innocent people are investigated, that crimes will go uninvestigated and that public safety will be endangered.

All this has made no impression on the courts. The civil liberties of individuals - even guilty individuals - always trump the interests of the public at large.

And that's why Coleen Rowley and her colleagues in Minneapolis were not allowed to look in Moussaoui's computer. The FBI's "suspicions" were not sufficient to override concerns about Moussaoui's civil liberties.

It's nice to know some law-enforcement official has finally rebelled against this extreme approach. It's even nicer to know she has made the cover of Time for doing so.

It's just too bad Time didn't bother to tell us the story.

©2002 New York Post

About Heather Mac Donald: articles, bio, and photo



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