Same old FBI

Posted: Mar 10, 2003 12:00 AM

WASHINGTON -- It defies credibility that FBI Director Robert Mueller did not reply to an e-mail letter from agent Coleen Rowley, whose previous whistle-blowing earned her Time's person-of-the-year status. She was not alone. For an even longer period, Mueller ignored a written complaint from a U.S. senator.

Last Tuesday, the very day a frustrated Rowley gave her latest whistle-blowing letter to two newspapers, Republican Sen. Arlen Specter of Pennsylvania confronted the non-responsive FBI chief face-to-face. Rowley contended that the FBI is unprepared to cope with a terrorist onslaught following a U.S. attack on Iraq. Specter was concerned that Mueller had not quickly corrected the FBI's unduly heavy burden of proof that played a part in the intelligence failure leading to the Sept. 11, 2001, terrorist attacks.

Apart from the substance of this criticism, Mueller's decision to ignore a world-class whistle-blower and a particularly tenacious senator suggests not all that much has changed at the FBI. J. Edgar Hoover's arrogance toward the outside world permeated the Bureau's culture and has not been obliterated. Even after 9-11, local police chiefs complain the FBI still resists sharing information with them.

The Bush administration brooks no criticism of the FBI, but Specter surely does. After Rowley's famous letter last May accusing FBI headquarters of hampering any investigation of alleged 20th hijacker Zacarias Moussaoui, she and Mueller were questioned by Specter in a June 6 hearing. The senator contended the FBI was setting too high a standard of "probable cause" to issue an investigative warrant under the Foreign Intelligence Surveillance Act (FISA).

In a closed-door hearing July 9, seven FBI officials (including four lawyers) questioned by Specter showed they were not familiar with a 1983 Supreme Court opinion by then Associate Justice William Rehnquist. That decision defined probable cause as "circumstances which warrant suspicion." Rowley had revealed that the FBI was using the wrong standard -- 51 percent probability of wrongdoing. Specter wrote to Mueller on July 10 pointing out that his agency still had not applied the proper standard.

The senator's letter fell into the FBI's black hole. Not until Sept. 12 did Specter receive a reply -- from since retired John Collingwood, the Bureau's assistant director for public and congressional affairs. As reporters experienced during his long service, Collingwood revealed nothing. But on Sept. 16, the FBI finally put out a memorandum -- more than a year after the terrorist attacks -- somewhat vaguely outlining a proper standard for probable cause.

Specter concluded that pursuing this one-sided correspondence with the FBI director was a fool's errand and that he had to confront Mueller personally and publicly. The opportunity came last Tuesday at a Judiciary Committee hearing, when Specter asked Mueller a blunt question. When "you get a letter of utmost importance" involving the Moussaoui case, "don't you feel you have an obligation to respond?"

"I do, Senator," Mueller replied, "and I wish we had gotten a response to you sooner." Mueller then delivered a largely impenetrable apologia for the FBI's performance. Specter, once the district attorney of Philadelphia, would not give him a pass. The FBI officials who had testified in closed session last year, said Specter, "were applying the wrong standard. Do you disagree with that? I don't see how you can. It's there in black and white."

Mueller did disagree, with a legal argument Specter described as trying "to split a hair." While denying hair-splitting, Mueller admitted no error and requested more "extensive dialogue." That did not satisfy Specter, who said the Sept. 16 memo "is hard to figure out and does not accurately quote" the Rehnquist decision. "I just think something is fundamentally wrong," he added, "and it goes to the most important issue facing America today, and that is to apprehend terrorists."

"Every night I go to bed, Senator," Mueller responded, "understanding that every day in this job I deal in life and death." That was the quote that made the next morning's newspapers, and apparently satisfied Judiciary Committee Chairman Orrin Hatch. "You've brought about a sea change," Hatch told Mueller, "and you deserve an awful lot of credit for it." To Arlen Specter, however, it looks like the same old FBI, and that is not reassuring.