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We discuss this and other systemic problems that this case revealed in the analysis section of this chapter. |
FBI and CIA discussions about the Cole investigation in May and June 2001 The fourth opportunity for the FBI to have acquired intelligence information about Hazmi and Mihdhar � including Mihdhar�s possession of a U.S. visa, Hazmi�s travel to the United States, and the source�s identification of [INFORMATION REDACTED] � occurred in May and June 2001 when the CIA and FBI Headquarters discussed the status of their information concerning the Cole attack. |
Once again, these discussions could have caused the FBI and the CIA to focus on the other persons attending [INFORMATION REDACTED], and thereby led the FBI to search for Mihdhar and Hazmi earlier than it did. |
But, as we describe below, the FBI did not obtain the critical information about the identification of [INFORMATION REDACTED] despite several interactions in May and June 2001 between the FBI and the CIA about Khallad. |
Background The Cole investigation As discussed above, the FBI�s investigation on the Cole attack was led by the FBI�s New York Field Office.150 One of the case agents investigating the Cole attack was an agent who we call �Scott,� and who was assigned to the New York FBI�s counterterrorism squad that handled only al Qaeda investigations (the �Bin Laden squad�).151 After serving eight years in the U.S. Navy as a fighter pilot, in April 1996 Scott became a special agent in the FBI�s New York Office. |
In July 1996 he was assigned to the TWA Flight 800 investigation because of his experience as a military pilot. |
Shortly after the East African embassy bombings in August 1998, he was transferred to the New York�s Bin Laden squad to assist with the embassy bombings investigation, and then was assigned as one of the case agents on the investigation the Cole attack. |
The New York FBI was assisted on the Cole investigation by several Intelligence Operations Specialists (IOS) assigned to the UBL Unit and the Radical Fundamentalist Unit (RFU) at FBI Headquarters. |
One of the primary IOSs who worked on the Cole investigation was an IOS who we call �Donna.� She had joined the FBI in 1988 as a clerk while she completed her college education. |
After graduating from college in 1995, she entered the FBI�s language training program and became a Russian language specialist working on foreign counterintelligence matters. |
In November 1997, she became an Intelligence Research Specialist (IRS), and a year later was assigned to assist the RFU on the East African embassy bombings investigation. |
In 2000 she was permanently assigned as an IOS in the UBL Unit and was assigned to work on the Cole investigation in October 2000. |
With regard to Donna�s work on the Cole investigation, she stated that she and the other UBL Unit IOSs conducted the investigation as directed by the New York Field Office, sent out requests for information to other law enforcement and intelligence agencies, obtained budget enhancements to support the investigation, and performed other duties in support of the investigation. |
She and the other UBL IOSs often traveled to New York where they met with the Cole agents and worked on the investigation. |
The wall and the caveat on NSA information The information relevant to this section of the report includes NSA information disseminated about Mihdhar in late 1999 and early 2000. |
As noted in Chapter Two, by the summer of 2001 NSA counterterrorism intelligence information could not be disseminated within the FBI without adhering to certain procedures and protocols. |
At this time, the FBI was required by the Department and the FISA Court to keep criminal investigations separate from intelligence investigations, a policy which was commonly referred to as �the wall.� Information obtained from FISA intercepts and search warrants had to be screened by someone not involved in the criminal investigation and then �passed over the wall� from the intelligence investigation to the criminal investigation. |
The FISA Court became the screening mechanism for FISA information obtained from al Qaeda intelligence investigations that the FBI wanted to pass to criminal investigators. |
As described in Chapter Two, in response to notification that there had been many errors in FISA applications approved by the FISA Court, the Court imposed additional restrictions before information could be shared. |
First, based on the FISA Court�s concerns about the errors in the FISA applications, the FBI directed that only intelligence agents were permitted to review FISA intercepts and materials seized pursuant to a FISA warrant (called �FISA-obtained material�) or any CIA and NSA intelligence provided to the FBI based on information obtained through FISA search or intercept (called �FISA-derived� material) without further Court approval. |
The Court required anyone who reviewed the FISA-obtained or FISA-derived intelligence to sign a certification acknowledging that the Court�s approval was required for dissemination to criminal investigators. |
Because FISA-obtained information often was passed from the FBI to the NSA and the CIA, the question was raised to the FISA Court whether the FBI was required to obtain certifications from all NSA or CIA employees who reviewed the FISA-obtained material. |
The Court exempted the NSA and CIA from the certification but required that the two agencies note on any intelligence shared with the FBI if it was FISA-derived. |
This was referred to as �a caveat.� When made aware of this requirement, the NSA reported to the Department of Justice that for the NSA to determine in real-time which counterterrorism intelligence that it had acquired was FISA-derived would delay dissemination of the information. |
As a result, the NSA decided to indicate on all its counterterrorism intelligence provided to the FBI as being FISA-derived so that it could not be disseminated to criminal agents or prosecutors without approval from the NSA.152 Therefore, when the FBI wanted to pass this NSA intelligence to criminal investigators, it had to contact the NSA General Counsel�s Office to determine whether the information was in fact FISA-derived before it could be passed.153 Discussions in May 2001 In May 2001, the potential connection of [INFORMATION REDACTED] was again discussed by CIA personnel. |
FBI personnel also discussed Khallad in reference to his nexus to the Cole attack. |
There were also discussions between the CIA and FBI in reference to the [INFORMATION REDACTED]. |
But, as described below, the identification of [INFORMATION REDACTED], such as Hazmi and Mihdhar, were not addressed during these May discussions between the FBI and the CIA. |
John�s inquiries about Khallad Between the early January 2001 debriefing of the source and May 2001, the CIA�s focus on whether Khallad, the suspected mastermind behind the Cole attack, had attended [INFORMATION REDACTED] appears to have subsided. |
In May 2001, John, a former Deputy Chief of the Bin Laden Unit, who by that time was detailed to ITOS in FBI Headquarters, had continuing concerns about [INFORMATION REDACTED], especially whether they had any nexus to the Cole attack.154 John also noted to the OIG that during this period there were heightened concerns in the Intelligence Community about the threat of an imminent terrorist attack in Southeast Asia. |
CIA records show that on May 15, 2001, John accessed the March 2000 cable stating that Mihdhar, Hazmi, and another person had traveled to Bangkok from Malaysia on January 8, 2000. |
The cable also stated that Hazmi had left Bangkok on January 15, 2000, flying from Bangkok to Hong Kong and then to Los Angeles. |
Around this same time in May, John began inquiring about the Malaysia meetings with a CTC analyst, who we call �Peter,� at CIA Headquarters. |
John said he knew that Peter had been �down in the weeds� and knew the �nuts and bolts� of the Cole investigation because Peter had been assigned to prepare a CTC report on who was responsible for the Cole attack. |
Peter told the OIG that his area of expertise and focus since August 1999 was the Arabian Peninsula. |
He said that because the Cole attack took place in Yemen, he was assigned to develop an intelligence report on who was responsible for the Cole attack. |
He completed his report in January 2001, finding that UBL/al Qaeda was circumstantially tied to the attack. |
Peter stated that while working on the Cole report he regularly interacted with the IOSs in the FBI�s UBL Unit. |
By the spring 2001, he was no longer working directly on the Cole attack, and had moved on to potential threats in Saudi Arabia and Yemen. |
However, Peter said he had a continued interest in the Cole information and continued to gather information on an ad hoc basis. |
According to John, he and Peter discussed [INFORMATION REDACTED], and Peter provided him with a copy of the timeline of events related to the Cole investigation that Peter had compiled as part of his work on the Cole attack.156 In addition, John said they discussed [INFORMATION REDACTED]. |
John and Peter were aware that Quso had stated that he was supposed to take money to a person named �Khallad� [INFORMATION REDACTED] but had met him in Bangkok instead in January 2000. |
John told the OIG that Peter had posited that perhaps [INFORMATION REDACTED]. |
In an e-mail to Peter in mid-May 2001, John noted that Mihdhar had arranged his travel to Malaysia and was associated with [INFORMATION REDACTED].157 In addition, John wrote that he was interested because Mihdhar was traveling with two �companions� who had left Malaysia and gone to Bangkok, Los Angeles, and Hong Kong and �also were couriers of a sort.� John noted in the e-mail that �something bad was definitely up.� Peter replied in an e-mail dated May 18, �My head is spinning over this East Asia travel. |
Do you know if anyone in [the CIA�s Bin Laden Unit] or FBI mapped this?� Discussions among FBI and CIA employees Around this same time, FBI IOS Donna and other FBI IOSs working on the Cole investigation were focusing on Quso�s connection to Bangkok and his trip to deliver money to Khallad. |
The FBI, like the CIA, was aware that in January 2000 [INFORMATION REDACTED]. |
According to an FBI document drafted by Donna in May 2001, Quso had claimed that on January 6, 2000, he and Ibrahim Al-Nibras went to Bangkok first but were unable to travel on to Kuala Lumpur because of problems with their travel documents, and Khallad had traveled to Bangkok to meet them there instead. |
The FBI began researching telephone numbers that appeared to be connected to Quso�s trip and requested that several Legat Offices contact local law enforcement authorities to obtain subscriber information. |
Donna told the OIG that she and others were tracking the information related to the telephone numbers associated with Quso in an attempt to determine the truth of his statements. |
In addition, she said that she was focused on the identity and whereabouts of Khallad, since he was the purported mastermind of the Cole attack. |
At some point before the end of May 2001, John discussed with Donna the East Asian travel of Quso. |
In response to Peter�s May 18 e-mail that asked whether anyone had �mapped� the East Asia travel, John replied in an undated e-mail that �key travel still needs to be mapped� and stated �[Donna] sounds really interested in comparing notes in a small forum expert to expert so both sides can shake this thing and see what gaps are common.� In addition to reviewing the East Asia travel of several Bin Laden operatives in January 2000, [INFORMATION REDACTED]. |
John obtained three of them. |
John told the OIG that he had not read the cable stating that the joint source had identified Khallad in the photographs, but he was aware that an identification of Khallad in the photographs had been made. |
At the end of his e-mail to Peter, John stated that he had obtained three surveillance photographs of Mihdhar in Malaysia, but he did not see �Khallad� in any of the photographs, [INFORMATION REDACTED].158 In response to John�s e-mail, Peter wrote in an e-mail dated May 24 that he had thought one of the [INFORMATION REDACTED]. |
Peter added that Donna and another FBI IOS in the UBL Unit, who we call �Kathy,� were meeting with Peter on May 29 to discuss the Cole investigation. |
[INFORMATION REDACTED] On May 24, Donna sent John an e-mail stating that a meeting with Peter and others was �tentatively scheduled� for May 29 for �an in depth discussion about the Cole.� We were unable to determine with certainty whether a meeting with Peter, Donna, and Kathy actually took place on May 29. |
None of the witnesses had notes of any such meeting, nor were there any e-mails discussing the meeting after it would have taken place. |
The witnesses told the OIG that they could not recall whether a meeting took place on May 29. |
For example, when asked whether she knew Peter, Kathy told the OIG that his name sounded familiar and that she may have met him, but she did not recall a meeting on May 29, 2001, about the Cole investigation. |
A May 29 e-mail from Peter to Mary indicates that he met with Mary earlier in the day, but it does not identify the other participants or what was discussed. |
However, it is clear that at some point before the end of May 2001, Donna became aware of the existence of the Kuala Lumpur photographs in January 2000. |
Donna told the OIG that she recalled John printing one of the CIA photographs on the printer in his office at FBI Headquarters, and Donna acknowledged that she obtained two other Kuala Lumpur photographs from him. |
According to Donna, Peter had raised the photographs in a discussion with her prior to her obtaining the photographs from John, although she said that she did not recall the details of their discussion about the photographs. |
Donna said she did recall that, at the time, Peter had posited that one of the photographs could relate to Quso, which if true would contradict Quso�s statements about going only to Bangkok and not going to Malaysia. |
According to Donna, the FBI was attempting to determine the veracity of Quso�s information, so the photographs potentially were connected to the Cole investigation. |
She stated, however, that outside of this potential connection, the photographs were �another piece of a thousand things coming in� at the time. |
She said that if Quso were determined to be in the photographs, then the photographs would have become significant to the Cole investigation. |
Donna also told the OIG that she did not recall a �substantive conversation� with John about the photographs or the Malaysia meetings. |
Donna told the OIG that she wrote on the back of the photographs what John told her about the photographs, which included that �Khalid Al-Midar� traveled from Sana, Yemen, via Dubai, to Kuala Lumpur on January 5, 2000, and he was in Kuala Lumpur between January 6 and 8. |
She also wrote Khalid Mihdhar�s name on the back of the photograph in which he had been identified. |
[INFORMATION REDACTED] Donna also said that no one told her that Mihdhar had a U.S. visa or that Hazmi had traveled to the United States. |
John told the OIG that he did not recall anything about his discussion with Donna when he printed the Kuala Lumpur photographs for her. |
John said he recalled that at the time the FBI was trying to �nail down Quso�s story.� [INFORMATION REDACTED] John emphasized that the FBI was focused on the Cole investigation, not the Malaysia meetings. |
[INFORMATION REDACTED] Peter told the OIG that he recalled talking to FBI IOSs, including Donna, about mapping the telephone number information based on information provided by Quso. |
[INFORMATION REDACTED] June 11, 2001, meeting Planning for the meeting Around the same time that Donna was discussing Quso and the Cole investigation with Peter and John, she also was planning a meeting at the New York FBI Office to discuss the Cole investigation. |
The planned participants for the New York meeting included personnel from FBI Headquarters, the CIA�s CTC, and the New York FBI agents working on the Cole investigation. |
FBI documents show that Donna began organizing the meeting as early as May 24. |
There was no record of an agenda for the meeting, and no supervisors were involved in the preparation for this meeting or were consulted regarding what should be accomplished at the meeting. |
Donna told the OIG that she organized the meeting in an effort to consolidate information and determine what further action was warranted on the Cole investigation. |
She stated that the purpose of the meeting at the New York FBI Office was to address unresolved issues and produce additional leads or other activities focusing on the Cole investigation. |
According to a May 24 e-mail by Donna, the meeting was �to discuss our direction, particularly as it relates to Nashiri.�159 Donna stated that she planned to take the Kuala Lumpur photographs with her to New York to find out whether the New York FBI Cole agents, who had met and debriefed Quso, could identify him in the photographs. |
She said that if Quso was in the photographs, the FBI would have reason to question Quso�s statement that he had not gone to Malaysia but had met Khallad in Bangkok instead. |
Sometime after obtaining the Kuala Lumpur photographs from John, Donna queried CTLink for the name Khalid al-Midhar [sic], which John had provided to her and which she had noted on the back of one of the photographs.160 In CTLink she discovered the NSA information from late 1999 and early 2000 referencing Mihdhar�s planned travel to Malaysia and [INFORMATION REDACTED]. |
She also queried ACS about Mihdhar but did not obtain any additional information about him. |
Mary, an FBI detailee to the Bin Laden Unit who worked as a CTC desk officer, also attended the June 11 meeting, as did Peter, the CTC analyst. |
According to Mary, Donna invited her to the meeting and told her the meeting was intended for information sharing and as a �brainstorming session� concerning the Cole investigation. |
Mary told the OIG she had recently been given the assignment by CTC management of �getting up to speed� in her spare time on the [INFORMATION REDACTED]. |
Mary said that she had not yet begun reviewing the Malaysia meetings at the time of Donna�s invitation. |
According to Peter, the meeting was also described to him as an �information sharing and brainstorming session� to determine whether any further leads should be pursued. |
Peter said that he heard about the meeting from Mary and contacted Donna about attending because he was interested in learning what the New York FBI agents had uncovered in their investigation of the Cole attack. |
According to FBI personnel in New York, Donna told them that FBI Headquarters and CIA personnel had indicated they had �information to share� regarding the Cole investigation. |
The FBI New York personnel anticipated the meeting would be a mutual exchange of information. |
Scott, one of the New York case agents on the Cole investigation, said he was told that the CIA representatives who would be attending the meeting wanted a briefing on the Cole investigation. |
On his own initiative, Scott arranged for David Kelley, an AUSA from the SDNY who was assigned to the Cole matter, to discuss with the CIA representatives other issues related to the Cole investigation, one of which was the impact on the prosecution if some of the targets of the Cole investigation were captured or detained outside the United States. |
The June 11 meeting On June 11, the meeting was held in a conference room at the FBI�s New York Field Office. |
We could not determine with certainty all the participants at the meeting. |
There was no list of attendees, and the witnesses could not recall exactly who was there. |
However, we confirmed that Donna, Mary, Peter, Scott, and another New York agent assigned to the Cole investigation who we call �Randall,� attended. |
AUSA Kelley attended for part of the meeting. |
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