As the weeks passed, our morning meetings became increasingly upbeat. The focus shifted from problems with the Yemenis or Ambassador Bodine to progress that was being made on various fronts. There was a sense that we were getting closer and closer to nailing those responsible. And then a new problem arose.
Before we arrived in Yemen, there had been some confusion about what information could be shared between intelligence and criminal investigators. In 1995, Attorney General Janet Reno had instituted new rules concerning the division between criminal and intelligence investigations, partly because of alleged problems with the use of the Foreign Intelligence Surveillance Act (FISA) in past investigations. FISA governs the conduct and use of surveillance and physical searches of foreign powers and their agents inside the United States.
There are some differences between intelligence and criminal investigations: in a criminal investigation, in order to listen in on someone’s conversation, you first need probable cause and a judge’s approval. For intelligence gathering, you need reasonable suspicion, a much lower bar. Attorney General Reno’s guidelines were meant to ensure that criminal investigators and prosecutors were not taking advantage of lax rules on the intelligence side to obtain information for their cases. But the rules never were designed to prevent FBI agents from cooperating when they were working on the criminal and intelligence sides—definitely not when the efforts were part of the same case. Yet that is how the guidelines came to be interpreted, despite objections from field agents.
When Steve Bongardt, the on-the-scene liaison with the CIA, initially asked the CIA for information, he was told, absurdly, that they would give it to him but that he couldn’t share it with the rest of us. The CIA team said that they couldn’t share intelligence with criminal agents. Steve refused to not pass on information. “What use is it,” he asked, “to have information and not share it with the agents on the ground who need it to apprehend the terrorists?” The CIA said that if he was going to pass it on, they wouldn’t share the intelligence.
For an investigation to proceed effectively, and for the United States to meet its national security goals and arrive at a successful outcome, the two sides need to work in tandem. After John O’Neill arrived on the ground, we briefed him on this “new issue” between criminal and intelligence that Steve and our team were facing. John made an agreement with a senior CIA official, Hank Crumpton, to let the CIA attend all our meetings, and vice versa. The agreement worked well initially. In the evenings we would meet with the CIA officers and analysts and update them on information we had gained during the day, and they, in turn, gave us the intelligence connected to our case.
While we were working with Hank and the CTC officials in Aden, Steve Bongardt moved to Sanaa to liaise with the embassy and the appropriate Yemeni agencies. Soon he began reporting problems with the [3 words redacted], which was withholding intelligence-related material. Absurdly, this included material we had shared with them in Aden, expecting them, in turn, to share it with Steve in Sanaa. We began to suspect something was afoot.
Part of the problem was that Steve was dealing with the [5 words redacted] Sanaa, whose rank within the agency was lower than Hank’s, and lower, too, than the members of the CTC team he had been dealing with in Aden. Because the Sanaa [1 word redacted] was further down the CIA chain of command, the CTC team in Aden bypassed their own man, instead sending information straight to CIA headquarters. To complicate matters, the [1 word redacted] fell under the agency’s Near East division rather than strictly under CTC jurisdiction.The state of affairs understandably left the [1 word redacted] upset, and he took it out on Steve and the FBI, claiming we wouldn’t give him information. And when we later moved to Sanaa, we no longer dealt with Hank and the CTC— they had left the country—but only with the [1 word redacted], from whom we got minimal information: apparently he was exacting his revenge. Information sharing began to be a one-way street. We didn’t retaliate; that would have been doubly absurd—punishing not the CIA but our country by making us less safe.
The idea of not sharing information with us because we were on the criminal side was nonsense. The FBI is also an intelligence agency. It deals with sensitive intelligence on a daily basis. The bureau respects and is fully aware of the differences between intelligence and law enforcement. We had been building cases against terrorist networks, foreign intelligence networks, and state sponsors of terrorism, and had never incurred any violations. The CIA had worked with us on many of these cases without dispute.
The claim that criminal agents could have no access to intelligence reports was a false reading of the FISA rules, especially as FISA rules don’t necessarily apply to intelligence gained overseas. The 9/11 Commission found that the guidelines had been misinterpreted, and not only by the CIA; many in FBI headquarters had done so, too, much to our frustration. This error was identified by the 9/11 Commission as one factor in the failure to stop the attacks on New York and Washington. The commission found that the procedures governing information sharing between intelligence and criminal sides “were almost immediately misunderstood and misapplied.” It also found that the Office of Intelligence Policy and Review (OIPR), the FBI leadership, and the United States Foreign Intelligence Surveillance Court (FICA) built barriers, discouraging information sharing. At the time, we tried explaining that the rules were being misread, but to no avail.
Even after he left Yemen, right up till 9/11, Steve Bongardt was furiously battling “the wall,” as it came to be known. Often he would demand of people who were refusing him access to intelligence: “Show me where this is written that we can’t have access to intelligence.” They couldn’t, but they would insist it was the law. It was a widespread misconception that no one at the top ever refuted. These problems—the problems identified by the 9/11 Commission—started in Yemen. Day by day it got worse. At one point I got the Pink Floyd CD
When I returned from Yemen I met with a delegation from the Department of Justice, led by Fran Townsend, to discuss intelligence-sharing problems. The meeting was convened in my supervisor Pat D’Amuro’s conference room. “Imagine an instance where one agent on a squad is handling intelligence,” I said to the delegates, “and another is handling the criminal investigation. It’s likely that one agent would have half of the plot, and the other would have the other half. And yet they won’t be allowed to piece it together. Imagine if someone wants to bomb the World Trade Center and our agents are unable to connect the dots since one half isn’t allowed to tell the other half what it knows.”
I said this not because I thought there was an attack coming, but because until 9/11, the previous major terrorist attack in the United States had been the 1993 bombing of the World Trade Center. The delegates were sympathetic and understood our problem, but in government it is very difficult to change anything, and nothing happened.
11. The Human Polygraph Machine
Witnesses who had seen Nashiri and the other al-Qaeda operatives around the Tawahi apartment told us that they had observed some of the suspects visiting a mechanic in the area. We tracked him down, and he confirmed the visits. He told us that the suspects had carried AK-47s and that they had brought in a white Dyna pickup truck and asked for a steel plate to be added to one of its sides.
Terrorists add steel plates to trucks that are to be used as conveyances for bombs; the plates help to direct the explosion toward the target. The trucks used in the East African embassy bombings, for example, were modified this way (they were Dyna trucks, too). We started investigating the truck in question in this case and found the dealership that had sold it. The truck had been purchased by Jamal al-Badawi—the second time that Badawi’s name had appeared.
The Yemenis searched for the truck but were unable to find it. This meant, most likely, that it was still available, fitted for a possible suicide attack. Sources told us that Yemeni extremists were becoming increasingly agitated by the U.S. presence in the country, and the U.S. National Security Agency had picked up chatter traffic (the term used for intelligence collected using technical means to eavesdrop and intercept e-mail) about an immiment attack. With every American in Aden packed into a single hotel, it was clear where the most effective strike would be. We heightened all our security, strengthening the hotel perimeter protection; and the Yemenis blocked off one side of the street with cement blocks.
John, Kevin Donovan, and I were having a meeting one evening in October in the command post when we heard shooting outside. When we realized that we weren’t being shot at, we edged toward the side of the windows to see if we could make out what was going on. A minute later Bob Hickey, the on-the-ground commander of the FBI hostage rescue team that was responsible for protecting us, rushed into our room and said that he was going to send some of his team outside to check what was going on.
