Letter from Sen. Charles Grassley (R-IA) to FBI Director Robert Mueller.
Re: Foreign Intelligence Surveillance Act (FISA).
Date: January 9, 2003.
Source: Office of Sen. Grassley.

Editor's Note: The date of the letter below contains a typographical error. It should read January 9, 2003, rather than January 9, 2002.

January 9, 2002

The Honorable Robert Mueller
Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, D.C.  20535

Dear Director Mueller:

I am writing to express my concern and inquire about an award you recently gave to Marion “Spike” Bowman for “meritorious service.” 

Mr. Bowman, as deputy general counsel who is in charge of the FBI’s National Security Law Unit, has a great deal of authority at the FBI over the use and processing of warrants sought under the Foreign Intelligence Surveillance Act (FISA), one of the FBI’s most important tools against terrorists. 

As you know, the FBI has experienced serious problems with the FISA process over the last several years.  These problems are well documented by the May 2000 Bellows report, a July 2001 GAO report, the May 2002 Foreign Intelligence Surveillance Court’s ruling and the Joint inquiry of the Intelligence Committees.

The case of Zaracarias Moussaoui, who has been charged in connection with the terrorist attacks of Sepetmber 11, 2001, is a prime example of the FBI’s problems with FISA warrants.  The 26-page Electronic Communication from the Minneapolis Division contained information that a reasonable person would have concluded is sufficient to obtain a FISA warrant.  The application should have gone forward to the Justice Department and the FISA court. 

Instead, Supervisory Special Agent Michael Maltbie concluded there was not enough information to go forward with the application.  Incredibly, SSA Maltbie removed certain information before making a presentation of questionable accuracy and length to the National Security Law Unit.  Mr. Bowman has said he concurred with SSA Maltbie that there was insufficient evidence to move forward with the FISA warrant application.  Even after Mr. Bowman was made aware of the information that had been removed from the application, he maintained that even with that information the application still should not have gone forward.

If the application for the FISA warrant had gone forward as it should have, and had a warrant been granted as I believe it would have, agents would have found information in Moussaoui’s belongings that linked him both to a major financier of the hijacking plot working out of Germany, and to a Malaysian Al Qaeda boss who had met with at least two other hijackers while under surveillance by intelligence officials.

In light of the consequences of the decision not to even attempt to seek the FISA warrant, and Mr. Bowman’s concurrence with that, it is shocking then that you gave Mr. Bowman the award known as the “Presidential Rank of Meritorious Service.” 

By granting this award and a monetary bonus, you are sending the wrong signal to those agents who fought – sometimes against senior FBI bureaucrats at headquarters – to prevent the attacks.  This also fits with a disturbing pattern of rewarding wrongdoing or mistakes by top officials at the FBI that I hoped would end during your tenure.  Also, you have said that the FBI must admit its mistakes, but it seems that is not happening in this case.

To my knowledge, agents who were investigating leads on the hijacking plot prior to September 11, 2001, have neither been thanked nor awarded by you or other headquarters officials in any official way.  Agents in Minnesota who investigated Moussaoui and the agent in New York who tried to investigate Khalid Al-Mihdhar should be held up as models of FBI agents seeking to prevent terrorism.  Instead, you have given an award and extra money to a bureaucrat at headquarters who is seen by many as having stymied the work of field agents.

I ask that you personally review the Judiciary Committee transcript of the closed hearing held on July 9, 2002 about the FBI’s FISA problems.  This transcript contains troubling comments and answers from Mr. Bowman and others in the National Security Law Unit.  Any reasonable person who reads the transcript will seriously question the competence of the National Security Law Unit.

To better understand why you gave the award to Mr. Bowman, please answer the following questions.

I would appreciate a full response in writing by Monday, January 27.