Thanks to www.cooperativeresearch.org
Sherry Sabol is not a name known to most of those who have examined the events of 9/11, let alone the general public, but the import of what she told investigators after the attacks cannot be overstated. Sabol was an attorney with the FBI’s National Security Law Unit (NSLU) who was consulted in late August 2001 about an application for a warrant to search Zacarias Moussaoui’s belongings and the search for Khalid Almihdhar. Both these investigations had the potential to prevent 9/11, but both failed to do so.
Sabol gave advice that turned out to be wrong in both cases – she said that the FBI did not have enough evidence to get a search warrant for Moussaoui’s belongings and that the search for Almihdhar should be an intelligence investigation. However, in both cases the blame can be placed on the FBI agents who asked for the consultations, Rita Flack and Michael Maltbie in the Moussaoui case, and Dina Corsi in the search for Almihdhar, who failed to provide Sabol with the relevant information and documentation. Had Sabol been given the relevant facts, she may well have given better advice and the attacks have been prevented. What’s more, Sabol later claimed that Corsi misrepresented her advice to an FBI agent investigating the USS Cole bombing. If Sabol is right, that means Corsi intentionally sabotaged the search for Almihdhar.
Zacarias Moussaoui and Rita Flack
Sabol was consulted about the Moussaoui case on August 27 by Maltbie and Flack of the FBI’s Radical Fundamentalist Unit. This consultation was broadly similar to those with another three attorneys also asked about the case: Sabol received an oral briefing about Moussaoui, but not the relevant documentation from the Minneapolis field office, even though Maltbie brought it to the meeting. Instead of supporting the application for a warrant under the Foreign Intelligence Surveillance Act, the two RFU agents were negative about its chances and downplayed Moussaoui’s terrorism connection.
The Justice Department’s inspector general later found that Minneapolis had gathered sufficient information for a warrant to be issued and that the withholding of the documentation from Sabol and other attorneys was a key factor in the failure to get a search warrant and prevent 9/11. According to testimony by FBI agent Aaron Zebley at Moussaoui’s 2006 trial, the evidence in Moussaoui’s belongings that the Minneapolis field office wanted to search linked Moussaoui to no less than eleven of the 9/11 hijackers.
However, what is really noteworthy about the consultation with Sabol is that, in Sabol’s version, one of the questions she asked was whether anybody was sending people to the US for flight training. Although this is a perfectly logical question to ask, Maltbie later claimed not to recall it, and Flack said Sabol never asked whether Middle Easterners were training at US flight schools. That’s what they told the Justice Department’s inspector general and that’s what it says in a substitution for testimony at Moussaoui’s trial.
Ken Williams and the Phoenix Memo
At this point, at least one agent in the bureau correctly suspected that bin Laden was sending pilots to train in the US – Ken Williams of the FBI’s Phoenix office. The previous month Williams had written the “Phoenix Memo,” a communication that hypothesised radical Islamists were learning to fly in the US and suggested that the bureau investigate this. The memo, which reached FBI headquarters in late July, was only seen by a few people, but, as luck was have it, one of them was Flack. Although she later claimed not to recall reading it at all, the FBI’s computer records show that she not only accessed it, but also printed it out.
The connection between the Phoenix Memo and the Moussaoui investigation is abundantly clear – the memo theorised radical Islamists were coming to the US to learn to fly, and look! here is one of those radical Islamists. However, Flack claims that she failed to appreciate this and that she did not discuss the memo with anyone. Clearly, she should have shown it to Maltbie, their boss at the RFU Dave Frasca, to whom the Phoenix memo was actually addressed, the Minneapolis field office and Sabol.
It is hard to resolve the dispute between Sabol and Flack – it is basically Flack’s word against Sabol’s – but the same cannot be said for the second case Sabol was involved in, the search for Khalid Almihdhar.
Khalid Almihdhar and Dina Corsi
Sabol was consulted about the search for Khalid Almihdhar the next day, August 28, but a deal of background is required to understand the ins and outs. The consultation was the result of a dispute between Steve Bongardt, a FBI New York field office agent working on the Cole bombing investigation, and two FBI headquarters employees, Dina Corsi of the Usama bin Laden unit and Tom Wilshire, a CIA manager on loan to the FBI who was a consultant to the boss of Corsi’s boss. Wilshire also figured in the Moussaoui case, where he was the most senior official at FBI headquarters who was seriously involved in the case.
The CIA had known Khalid Almihdhar, who is said to have died aboard Flight 77 when it hit the Pentagon, had a US visa as far back as January 2000, but a series of bizarre coincidences had allegedly frustrated its attempts to notify the FBI of this. However, on August 22 an analyst on loan from the FBI to Alec Station, the CIA’s bin Laden unit, found out about the visa, checked with the INS to determine whether Almihdhar was still in the US, and then called Corsi at the FBI without asking her superior’s permission to do so (this is the obstacle on which one of the previous attempts to notify the FBI in January 2000 had floundered).
Corsi was initially shocked by the news, as she was aware that Almihdhar played some sort of role in the Cole bombing, and called the New York field office, saying that it would conduct a search for Almihdhar so he could be interviewed about that attack. Corsi also told the news to Wilshire, the CIA manager who had blocked the previous notification in January 2000. Wilshire was aware al-Qaeda was planning a big attack on US interests and that Almihdhar would likely be involved in the attack, so the fact Almihdhar had arrived in New York must have been highly significant to him. However, neither he nor Rich B, his old boss at Alec Station who also knew this, seems to have taken the trouble to point this out to anyone.
Steve Bongardt and the “Wall”
This is where the “wall” comes in. Corsi told the New York field office that the search for Almihdhar should be an intelligence investigation. Bongardt and some other New York agents protested, saying (correctly, as it turned out) that it should be done as a part of the criminal investigation into the Cole bombing. They also said it would be easier to find Almihdhar within a criminal investigation because of the better tools available to criminal investigators. Corsi claimed that the “wall” prevented the information being shared with criminal agents, as it was intelligence information (note: this is nonsense, the “wall” did not prevent anything being shared with anyone, it merely required that the passage of some, not all types of intelligence information be approved before it could be shared with prosecutors. In some cases, arguably including the search for Almihdhar, the “wall” actually mandated that intelligence information be passed to prosecutors).
Bongardt, a criminal agent, requested that Corsi get an opinion from an FBI lawyer, and Corsi approached Sabol. According to Corsi, Sabol was asked two questions (1) should the search for Almihdhar be an intelligence or criminal investigation, and (2) if the search were an intelligence investigation, could a criminal investigator be present at an interview of Almihdhar. Corsi consulted Sabol and then wrote back to Bongardt saying that Sabol had told her the search should be an intelligence investigation and that a criminal investigator could not be present at an interview of Almihdhar, if he were located. Bongardt, stymied, was stood down.
The problem for Corsi is what happened when internal investigators asked Sabol for her account of the consultation. Sabol agreed that she had recommended the search be an intelligence investigation. However, Corsi had not given her all the relevant facts, for example Sabol was not informed that Almihdhar had lied on his visa application form, a criminal offence. What’s more, Sabol said that she never told Corsi a criminal investigator could not be present at an interview and that she would not have said that (note: the “wall” did not prevent a criminal investigator from being present at such interview).
Sherry Sabol or Dina Corsi
The choice here is stark, either Sabol is telling the truth or Corsi is. The import of Sabol’s claim is that Corsi deliberately misrepresented her advice to Bongardt, ensuring that less resources were devoted to the search for Almihdhar. In the event, the search was assigned to a single rookie agent, the only intelligence agent available in New York, who already had an urgent case to deal with. Unsurprisingly, the rookie failed to locate Almihdhar before 9/11. After the attacks, Bongardt turned up information about him within hours.
How to resolve the conflict between Sabol and Corsi? Well, one cannot help but note, as the 9/11 Commission did, that Corsi’s e-mail that allegedly misrepresented Sabol’s advice was not copied to Sabol, so she had no opportunity to correct Corsi. However, other actions by Corsi over the summer cast light on her intentions. For example, Corsi, who was assigned to support the Cole investigation, was aware that a key figure in the investigation, al-Qaeda leader Khallad bin Attash, had attended an important al-Qaeda meeting in Kuala Lumpur in January 2000, but she withheld this from the Cole investigators. In addition, the passage to the Cole investigators of some of the intelligence information that Bongardt needed to search for Almihdhar under a criminal investigation was approved by the NSA’s general counsel on August 28 at Corsi’s request, but Corsi still continued to insist to Bongardt that day and the next that he could not search for Almihdhar within a criminal investigation as he could not have the information whose passage to him had just been approved by the NSA at her request! What clearer proof of malfeasance could one want?
Let us hope that, at some point in the not too distant future, the investigation into 9/11 will be reopened and that, in the great tradition of the FBI, both Dina Corsi and the ubiquitous Tom Wilshire will be polygraphed and asked what the hell they were doing.
August 20, 2001 and After: Key Justice Department Unit Not Consulted about Moussaoui Warrant Request
A key Justice Department unit, the Office of Intelligence and Policy Review (OIPR), is not consulted about a request to search Zacarias Moussaoui’s belongings. Although it is this office that would submit an application for a search warrant under the Foreign Intelligence Surveillance Act, the legal aspects of the application are discussed only with the National Security Law Unit, which is beneath the OIPR (see August 22-28, 2001). FBI officials discuss what they think the OIPR will want in a warrant application, but do not ask it directly. Sherry Sabol, an attorney in the lower National Security Law Unit, will later say that she would have contacted the OIPR to discuss a possible warrant application, if FBI headquarters agents had not withheld information from her (see August 22-28, 2001). When shown the relevant documentation for the Moussaoui case after 9/11, the OIPR’s general counsel will say he would have considered the application and, if submitted, he “would have tied bells and whistles” to a comment by Moussaoui’s imam that Moussaoui and an associate wanted to “go on jihad” (see August 17, 2001). [US Department of Justice, 11/2004, pp. 132-166, 182-4, 201 pdf file] However, a memo from Attorney General John Ashcroft issued in May to improve the efficiency of the FISA process recommended communications between field offices, FBI headquarters, and the OIPR. In addition, the OIPR and the FBI should hold regular monthly meetings to discuss FISA warrants. It is unclear if such a meeting is held in the three weeks between Moussaoui’s arrest and 9/11. However, one of the people supposed to attend such meetings is Spike Bowman, chief of the National Security Law Unit, who is involved in the Moussaoui case (see August 28, 2001). [US Department of Justice, 5/18/2001 pdf file]
August 22-28, 2001: Phoenix Memo Withheld from FISA Attorneys in Moussaoui Case
The FBI’s Minneapolis field office drafts an application for a FISA warrant to search Zacarias Moussaoui’s belongings and sends it to the Radical Fundamentalist Unit (RFU) at FBI headquarters. From there, the application is sent to four attorneys at the FBI’s National Security Law Unit, as it needs to be legally cleared by them before being submitted to the FISA Court. All four attorneys are doubtful that the application contains enough evidence to secure a warrant. Although they are aware that Moussaoui is connected to Chechen rebels, they do not believe the FISA court will consider the Chechen rebels to be a foreign power. Moreover, they do not think the connection between the Chechens and bin Laden is strong enough to make Moussaoui an agent of al-Qaeda. However, the attorneys are not given the relevant documentation. For example, they are not informed that the FBI was warned in April that the Chechen rebel leader and Osama bin Laden were planning an attack against the US (see Before April 13, 2001). Nor are they provided with a copy of the Phoenix Memo, in which Arizona FBI agent Ken Williams correctly theorized that bin Laden was sending agents to the US to train in flight schools (see July 10, 2001). Attorney Sherry Sabol will later say that she asked RFU agents Mike Maltbie and Rita Flack whether there was any evidence of people being sent to the US for flight training. Flack, who read the Phoenix memo five days before (see August 22, 2001), said no. Maltbie will later say he does not recall this and Flack will deny it. [US Department of Justice, 11/2004, pp. 139-160 pdf file; US Department of Justice, 3/1/2006 pdf file; US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006 pdf file] The Department of Justice’s Office of Inspector General will later criticize Flack for failing to inform the attorneys of the memo. [US Department of Justice, 11/2004, pp. 208 pdf file] Sabol and two of the other attorneys will say that they would have taken actions to support the application if they had known about the Phoenix Memo. However, they do not believe that material from the Phoenix memo would have been enough to secure the FISA warrant. [US Department of Justice, 11/2004, pp. 146-8, 158-160, 208 pdf file]
August 28-29, 2001: FBI Headquarters Allegedly Misrepresents Attorney’s Advice, Ensuring Search for Hijacker Almihdhar Is Intelligence Investigation
FBI headquarters agents Dina Corsi and Rod Middleton contact Justice Department lawyer Sherry Sabol to ask her opinion on the search for hijacker Khalid Almihdhar, but Sabol will later say that Corsi misrepresents her advice to other agents. Corsi contacts Sabol, an attorney at the National Security Law Unit, to ask her about legal restrictions on the search for Khalid Almihdhar, because of an argument she has had with New York agent Steve Bongardt about whether the search should be an intelligence or criminal investigation (see August 28, 2001 and August 28, 2001). Corsi will later tell Bongardt that Sabol told her that the information needed for the investigation cannot be passed on to criminal agents at the FBI, only intelligence agents, and that if Almihdhar is located a criminal agent cannot be present at an interview. [US Department of Justice, 11/2004, pp. 307-8 pdf file] Corsi’s understanding of the issue is wrong and the “wall”, which restricted the passage of some intelligence information to criminal agents at the FBI, does not prevent the information in question being shared with criminal agents (see August 29, 2001). The 9/11 Commission will comment that Corsi “appears to have misunderstood the complex rules that could apply to the situation.” [9/11 Commission, 7/24/2004, pp. 271] In addition, Sabol will later insist that her advice was very different than what Corsi claims it is. She will deny saying a criminal agent could not interview Almihdhar, arguing that she would not have given such inaccurate advice. She will also say the caveat on the intelligence information from the NSA would not have stopped criminal agents getting involved and, in any case, the NSA would have waived the caveat, if asked (note: the NSA did so at Corsi’s request just one day earlier (see August 27-28, 2001), but presumably Corsi does not tell Sabol this). [9/11 Commission, 7/24/2004, pp. 271] Further, Corsi apparently does not tell Sabol that Almihdhar is in the US illegally. The illegal entry is a crime and means criminal FBI agents can search for him (see August 29, 2001).