Amid C.I.A. Shake-Up, Questions About F.B.I.

Four months after the 9/11 commission’s report on intelligence failures leading up to the terrorist attacks of Sept. 11, a shakeup at the Central Intelligence Agency is underway. Resignations are piling up throughout the intelligence community-but not at the Federal Bureau of Investigation, which had its own counterterrorism mishaps before Sept. 11, according to the commission report.

The C.I.A. dismantles threats overseas; the F.B.I. works inside the U.S. That rough division of labor places the responsibility for keeping the 19 hijackers from boarding planes on Sept. 11 squarely in the F.B.I.’s hands.

So far, the reorganization of intelligence procedures has been the focus-most recently, at a Saturday evening Senate session this past weekend that lasted well into the night. The F.B.I. and C.I.A. didn’t share intelligence, the conventional wisdom in the capital goes, and therefore the clues to the planned attack went unnoticed. The public has the impression that even if the F.B.I. had dug up the names of the hijackers in the summer of 2001, the bureau couldn’t have found or detained them in time.

In fact, recently revealed documents, and a close study of small details made public in the course of the 9/11 commission’s study, show that the F.B.I. may have been several phone calls away from burrowing into the plot in late August 2001.

In a little-noticed exchange at the commission’s hearings this spring between commission member John Lehman and former F.B.I. official Thomas Pickard, the bureau’s acting director in the summer before the attacks, Mr. Lehman asked Mr. Pickard (according to the official transcript): “As you know, very shortly after the September 11th attack, some of the commercial databases like Axion, ICSO (ph), ChoicePoint, so forth were queried and nearly all of the 19 hijackers were very prominently covered, with addresses, credit cards, locations et cetera. Why did not the F.B.I. make use of those commercial databases before 9/11?”

“We were prohibited from utilizing a lot of those commercial databases by statutes and things like that,” Mr. Pickard replied. “That was one of the benefits of the Patriot Act, as I understand it.”

In this exchange, Mr. Pickard maintained that an F.B.I. agent capable of querying the databases for the names of the hijackers prior to 9/11 would have found them-their addresses and credit cards, at any rate-because the hijackers had lived openly in the U.S. and had used their real names to accumulate a string of ID’s like drivers’ licenses. But by law, Mr. Pickard maintained, this trove of information was off-limits to the F.B.I.

But the F.B.I., then as now, is a client of the largest U.S. database containing public records about individuals: ChoicePoint, the bête noir of civil libertarians, and a company that made $796 million in 2003. Sources there and at the F.B.I. confirmed that the agency regularly taps this service for key information on people it seeks for criminal and intelligence investigations. In a mouse click, the database retrieves information like current phone numbers, for instance, through the F.B.I.’s secure ChoicePoint access. And in late August 2001, the F.B.I. had an investigation underway into two of the men who turned up on 9/11 as hijackers-Khalid al Mihdhar and Nawaf al Hazmi. The F.B.I. wanted to question them about the U.S.S. Cole bombing; the task of finding them was given to a counterterrorism agent in New York.

Both were on the State Department’s TIPOFF terrorist watch list.

“Searches of readily available databases,” the 9/11 commission report notes, “could have unearthed” al Mihdhar’s and al Hazmi’s California drivers’ licenses, car registrations and telephone listings. A search on al Hazmi’s car registration “would have unearthed a license check” by the police in South Hackensack, N.J., that “would have led to information placing Hazmi in the area and placing Mihdhar at a local hotel for a week in early July, 2001.” ChoicePoint also had up-to-date telephone listings for both men.

From there, it might have been possible to turn up al Hazmi and al Mihdhar in Paterson, where they’d been living with a group of the other hijackers. Al Hazmi was spending some time flying cross-country on the type of plane he would later hijack on 9/11.

“There was information about the people who turned out to be hijackers in the ChoicePoint databases prior to 9/11, that’s a true statement,” ChoicePoint chairman and chief executive Derek Smith confirmed.

How does he know? The F.B.I. got a court subpoena for ChoicePoint to go through its records and pull out what it had on al Hazmi and al Mihdhar after the Twin Towers fell. Why the F.B.I. didn’t do this before 9/11, Mr. Smith can’t say, but he confirmed that the F.B.I. didn’t seek this information before 9/11. With 20 days left before the attacks, would questioning these two men have been enough to prevent them? And why would Mr. Pickard tell the commission that he wasn’t allowed to do before Sept. 11 what his agency did do immediately after-but before the signing of the Patriot Act?

On Aug. 23, 2001, a New York F.B.I. agent, Robert Fuller, new to the International Terrorism Squad, was told to find al Mihdhar and al Hazmi after the C.I.A. finally shared the information that both were in the U.S.

Another agent had labeled the lead “routine,” meaning that Agent Fuller had 30 days to find his targets. He scanned local New York databases, checked the New York hotel listed on al Mihdhar’s July 2001 J.F.K. airport entry form as his destination and, when that failed to turn him up, let the matter drop. This was a fumbling of standard procedure: Al Mihdhar was being sought in connection with the F.B.I.’s criminal investigation of the Cole bombing, so consulting commercial databases was fair game.

Basic procedure at the F.B.I. is to tap Lexis-Nexis and databases like ChoicePoint to locate the targets of criminal or intelligence investigations if initial efforts to find them fail.

“People leave a trail behind them, especially in this society,” said former F.B.I. counterterrorism chief Steve Pomerantz. “Certainly, probably the easiest and the most effective way is publicly available material-utility records, business records. Think of things you do everyday that leave a trail.”

An F.B.I. spokesman said that while it’s not standard procedure to check commercial databases in every case, if “it would benefit the investigative effort, yes.” Why it never happened in the 20 days between Aug. 23 and Sept. 11 isn’t known: Until now, Agent Fuller hasn’t been identified or interviewed by the press. He declined a request from The Observer to be interviewed for this article.

But the F.B.I. explains its failure this way: “On Aug. 23, we were given two names by the C.I.A.-al Hazmi and al Mihdhar,” said an official who asked that his name be withheld. “With no specificity of a threat or a bombing or anything-just that they’d been at a meeting in Malaysia with an individual associated with the Cole bombing …. [The C.I.A.] had reason to believe they may possibly have gone to the U.S. We didn’t put [a public] alert out then-we didn’t have any information that these people were involved in a plot or were a threat to anybody.”

Why no urgency? “We didn’t have that type of information that says these particular two were bad people.”

The C.I.A. had handed over al Hazmi’s and al Mihdhar’s names for questioning in the Cole bombing; al Mihdhar had attended a meeting in Malaysia with top Al Qaeda suspects and had other known jihadist connections; the F.B.I. had requested the State Department to add both men to its watch list; Washington was rife with warnings of an impending terrorist attack (“the system was blinking red” were the F.B.I. official’s words)-and the urgency wasn’t there?

“Everybody was saying, ‘You should have done the query before’-but we didn’t have a lot of names to do the query before, and the information we had on these two individuals was very scant,” the official maintained. “We didn’t identify them until post-9/11-and they were very compartmentalized. If we had found these two, they may not have been able to tell us anything.”

Al Hazmi certainly could have told the F.B.I. quite a lot: He was Mohammed Atta’s second-in-command for the 9/11 attacks. But the F.B.I.’s spokesman insists that the bureau did all it could. Don’t forget, he said, the F.B.I. had no information that al Mihdhar or al Hazmi were about to attack the U.S. “The most we could have done was interview them. We didn’t have any legal process to arrest them.”

The 9/11 commission begs to differ. Its report says that the F.B.I.’s failure to locate and interview the only hijackers whose names it had beforehand was of terrible import: “Many F.B.I. witnesses have suggested that even if Mihdhar had been found, there was nothing the agents could have done except follow him onto the planes. We believe this is incorrect. Both Hazmi and Mihdhar could have been held for immigration violations or as material witnesses in the Cole bombing case. Investigation or interrogation of them, and investigation of their travel and financial activities, could have yielded evidence of connections to other participants in the 9/11 plot. The simple fact of their detention could have derailed the plan. In any case, the opportunity did not arise.”

To date, no individuals have been held accountable at the F.B.I. for the failure of the bureau’s 70-some investigations into Islamic extremism in the U.S. to turn up any clues to 9/11; or its ignoring of the July 2001 memo from an agent in the Phoenix office warning that Osama bin Laden had undertaken an effort to send foreign students to train at U.S. flight schools; or its failure to search Zacarias Moussaoui’s computer after his mid-August 2001 arrest; or its overarching failure to conceive of a 9/11-like event happening in the U.S.

Agent Fuller continues to work in counterterrorism. He will probably testify in January at the trial of the Yemeni sheik Mohammed Ali Hassan al-Moayad, who is accused of providing money, weapons, equipment and recruits to Al Qaeda and Hamas. The case will apparently go on despite the fact that the chief confidential informant involved, a Yemeni immigrant, set himself on fire in front of the White House to protest his treatment by F.B.I. agents. In the F.B.I. sting operation, Mr. al-Moayad was taped in Europe telling the confidential informant (who was posing as an Al Qaeda sympathizer) and another intelligence agent that he’d funneled millions of dollars to Mr. bin Laden and was his spiritual advisor.

One of the individuals connected to the defendants in this case was another Yemeni who owned a gas station in New Jersey, near where the two 9/11 hijackers lived before the attacks.

Too bad those calls to al Hazmi and al Mihdhar never got made.