Moussaoui and the Phoenix Memo
There are various issues related to Moussaoui case, but I'd now like to take a look at its connection to the Phoenix Memo; new information appeared about this after the Moussaoui trial, as an unredacted version of the DOJ's Office of Inspector General's report into the Bureau's handling of intelligence before 9/11 was released after the Moussaoui trial. It can be found here:
The previous version was heavily redacted and the whole chapter dealing with Moussaoui was absent. Having looked through it now, it seems fairly clear that one of the reasons (perhaps the main reason) that a FISA warrant was not sought to search Moussaoui's belongings (not just his computer), was that knowledge of the Phoenix EC did not circulate at FBI headquarters. When Moussaoui's belongings were searched after 9/11, evidence was found connecting him to two of the hijackers' associates: Ramzi Bin Al Shibh and Yazid Sufaat. It would have been a relatively simple matter to trace the hijackers in the US from Bin Al Shibh based on their phone calls, the fact that they lived with him for years and the surveillance of the Hamburg cell previously carried out by various agencies, including the CIA.
Basically, the reason a FISA warrant to search Moussaoui's belongings was not sought in the end is that it was thought he was not an agent of a foreign power – a requirement under the FISA Act for a warrant to be granted. Based on French information, he was known to be connected to the Chechen rebels, but the connection was a little tenuous (he had merely encouraged an acquaintance to fight for them) and there was some dispute over whether they were a proper foreign power; for example, one agent thought they weren't a foreign power for FISA purposes because they weren't hostile to the US. It was also claimed that they were not sufficiently close to Bin Laden to be considered part of his organisation (which was a foreign power for FISA purposes).
The warrant was being sought by the Radical Fundamentalist Unit, which dealt with Muslim extremists that were not Al Qaeda. The Phoenix Memo, which dealt with Al Qaeda and Al Muhjiroun operatives learning to fly in the US (primarily at Embry-Riddle University in Prescott, Arizona), was assigned to the RFU on 30 July, just over two weeks before Moussaoui was arrested. Following its assignment, it was accessed by intelligence operations specialist (IOS) Ellen, who discussed it with a colleague from the Usama Bin Laden Unit, who then discussed it with her boss. It was also accessed by IOS Robin on 22 August regarding the Moussaoui warrant (because the Phoenix Memo referenced the leader of the Chechen rebels). She printed it out and must have read it, but did not have a specific memory of reading it. “She said she did not know why she did not bring the EC to anyone's attention.” (p. 207/217)
Four National Security Law Unit attorneys were consulted about whether a FISA warrant could be obtained to search Moussaoui's belongings, but the Phoenix Memo was not mentioned to any of them. Three of the attorneys later claimed that, if they had known about the Phoenix Memo, it might not have definitively led to a warrant being issued, but it would have made a difference to their approach:
“We discussed the Phoenix EC with the four NSLU attorneys who were consulted about the Moussaoui matter. All said they had not seen the Phoenix EC before September 11. All said that the Phoenix EC itself would not have conclusively led to a FISA warrant, but three of the attorneys said that if they had seen the Phoenix EC in connection with the Moussaoui case, they would have responded differently than they did when asked about the adequacy of the Moussaoui FISA request... Susan and Tim said that if they had read the Phoenix EC at the time, they would have been concerned enough about Moussaoui to bring the matter to an OIPR attorney's attention. According to Susan, she had even asked Robin whether the FBI had any information indicating anyone was sending people to the United States for flight training, but Robin did not mention the Phoenix EC.” (p. 208/218) This meeting was five days after Robin read the memo. The other NSLU attorney, chief Spike Bowman, claimed he wouldn't have made “such connections”, so it wouldn't have made a difference.
The Senate Judiciary Committee later confirmed that “The EC contained information that was material to the decision whether or not to seek a FISA warrant in the Moussaoui case”.
If you put this together with the various other problems related to the RFU's approach to getting the warrant (rewording, downplaying, unhelpfulness), then you can't help but be suspicious. I think Susan's question: was anybody sending people to the US for flight training? is a logical one. It's hard to believe somebody who knew the answer and should have made the connection herself would get it wrong.