Officials Fault Case Bush Cited

In confirming the existence of a top-secret domestic spying program, President Bush offered one case as proof that authorities desperately needed the eavesdropping ability in order to plug a hole in the counter-terrorism firewall that had allowed the Sept. 11 plot to go undetected.

In his radio address Saturday, Bush said two of the hijackers who helped fly a jet into the Pentagon -- Nawaf Alhazmi and Khalid Almihdhar -- had communicated with suspected Al Qaeda members overseas while they were living in the U.S.

“But we didn’t know they were here until it was too late,” Bush said. “The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.”

But some current and former high-ranking U.S. counter-terrorism officials say that the still-classified details of the case undermine the president’s rationale for the recently disclosed domestic spying program.

Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns -- not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.

The incident Bush referred to involved at least six communications between the hijackers in San Diego and suspected terrorists overseas.

The current and former counter-terrorism officials, who requested anonymity, said there were repeated phone communications between a safe house in Yemen and the San Diego apartment rented by Alhazmi and Almihdhar. The Yemen site already had been linked directly to the Al Qaeda bombings of two U.S. embassies in Africa in 1998 and to the 2000 bombing of the U.S. destroyer Cole in Yemen, several current and former U.S. counter-terrorism officials familiar with the case said.

Those links made the safe house one of the “hottest” targets being monitored by the NSA before the Sept. 11 attacks, and had been so for several years, the officials said.

Authorities also had traced the phone number at the safe house to Almihdhar’s father-in-law, and believed then that two of his other sons-in-law already had killed themselves in suicide terrorist attacks. Such information, the officials said, should have set off alarm bells at the highest levels of the U.S. government.

Under authority granted in federal law, the NSA already was listening in on that number in Yemen and could have tracked calls made into the U.S. by getting a warrant under the Foreign Intelligence Surveillance Act.

Then the NSA could have -- and should have -- alerted the FBI, which then could have used the information to locate the future hijackers in San Diego and monitored their phone calls, e-mail and other activities, the current and former officials said.

Instead, the NSA didn’t disclose the existence of the calls until after Sept. 11, according to these officials and U.S. documents produced in two independent inquiries.

“The NSA was well aware of how hot the number was ... and how it was a logistical hub for Al Qaeda, and it was also calling the number in America half a dozen times after the Cole and before Sept 11,” said one senior U.S. counter-terrorism official familiar with the case.

The joint congressional inquiry found that the NSA and the FBI independently had learned of the “suspected terrorist facility in the Middle East” by 1998, and that the NSA had disseminated several reports of communications to and from the undisclosed location.

“However, NSA and the FBI did not fully coordinate their efforts, and, as a result, the opportunity to determine Almihdhar’s presence in the United States was lost,” the 2002 report said.

Like other current and former officials, the senior counter-terrorism official would only speak on condition of anonymity, citing the classified nature of the intercepts and the controversy that has engulfed the secret program since its disclosure last week.

NSA officials declined to comment Tuesday; a spokeswoman for Lt. Gen. Michael V. Hayden -- the former NSA chief who now is the No. 2 official in the newly created Office of the Director of National Intelligence -- said she could not discuss the issue.

This week, Hayden said that the program to eavesdrop without obtaining FISA warrants was necessary to respond to fast-moving terrorist threats, and that getting a FISA warrant was inefficient and slow.

But NSA and Bush administration officials were urged repeatedly by members of the joint inquiry and by the Sept. 11 commission to recommend FISA reforms that they felt were needed, said Eleanor Hill, staff director of the joint inquiry and former inspector general for the Pentagon.

She also said congressional committees held hearings on whether FISA needed an overhaul to better track international terrorism communications.

“The question was always asked of these witnesses: ‘What do you need?’ ... There was plenty of time to raise this issue,” Hill said Tuesday. “You don’t just take it upon yourself to circumvent FISA. That attitude ignores the absolutely critical need for oversight.”

Atty. Gen. Alberto R. Gonzales said this week that the administration had discussed possible reforms to FISA with members of Congress. “We were advised that ... that was not something we could likely get,” he said.

The joint inquiry and the Sept. 11 commission that came after it referred indirectly to the calls from Yemen to San Diego. But neither report disclosed what the NSA gleaned from the calls, or why they were never disclosed to the FBI. The current and former counter-terrorism officials also said they did not know or could not comment.

“I don’t know if they got half the conversation or none of it or hung up or whatever,” the senior counter-terrorism official said. “All I can tell you is we didn’t get anything from it -- we being the people at the FBI who could have done something about it. So were they sitting on it? I don’t know.”

The officials from U.S. intelligence, law enforcement and counter-terrorism agencies said they agreed to discuss the case -- and Bush’s reference to it -- because they did not believe it supported the administration’s position that the FISA court should be circumvented in certain high-profile and urgent terrorism cases.

“It’s total hubris. It’s arrogance by the people doing this,” said a second senior U.S. counter-terrorism official. “This is a 24-hour thing, and you can get these kinds of warrants immediately. I think they are just being lazy.”