Expanding Law Enforcement Discretion: How the Supreme Court's Post-September 11th Decisions Reflect Necessary Prudence

By Allen, John M. | Suffolk University Law Review, Summer 2008 | Go to article overview

Expanding Law Enforcement Discretion: How the Supreme Court's Post-September 11th Decisions Reflect Necessary Prudence


Allen, John M., Suffolk University Law Review


"We must find ways of reconciling security with liberty, since the success of one helps protect the other. The choice between security and liberty is a false choice, as nothing is more likely to endanger America's liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend." (1)

I. INTRODUCTION

In April 1998, Zacarias Moussaoui received extensive training at an al Qaeda terrorist camp in Afghanistan. (2) In September 2000, Moussaoui, then an al Qaeda trained operative, inquired about training at a flight school in Norman, Oklahoma via a Malaysian email account. (3) A few months later, Moussaoui arrived in Chicago, effortlessly passed through United States customs after declaring $35,000 in cash, and proceeded to Oklahoma City, Oklahoma, where he attended flight-school classes. (4) In August 2001, Moussaoui paid almost $9,000 for flight simulator training on a Boeing 747 at Pan Am Flight School in Eagan, Minnesota. (5) Typical qualifications for flight training on a Boeing 747 flight simulator include a FAA Airline Transport Pilot rating or the foreign equivalent, employment by a commercial airline, and several thousand flight hours; Moussaoui had none. (6) After Moussaoui's behavior at flight school raised a veteran airline pilot and flight instructor's suspicions, the Federal Bureau of Investigation (FBI) field office in Minneapolis initiated an intelligence investigation on August 15, 2001, which eventually led to Moussaoui's arrest for immigration violations the next day. (7) Twenty-five days later, on the morning of September 11, 2001, al Qaeda members hijacked four passenger commercial airplanes and crashed them into various targets, including the World Trade Center Towers in New York and the Pentagon in Washington, D.C., killing thousands of innocent men, women, and children. (8)

During those twenty-five days preceding the attacks, FBI agents with knowledge of Moussaoui's potential terrorist connections and radical ideas attempted, but failed, to secure a warrant to search the contents of Moussaoui's laptop. (9) Experienced federal agents plead with their superiors to search Moussaoui's laptop because they anticipated that it contained valuable information. (10) Agents did not obtain the warrant, however, until the September 11th attacks provided additional incentives to search his laptop. (11) A federal district judge eventually issued the search warrant, despite the fact that agents included no new information related to Moussaoui, other than the current terrorist attack on the United States. (12)

During the Moussaoui investigation, FBI agents struggled to overcome "probable cause" hurdles established by a demanding United States Attorney's Office and to simultaneously characterize Moussaoui as an "agent of a foreign power," a requirement for obtaining a warrant pursuant to the Foreign Intelligence Surveillance Act (FISA). (13) Stringent evidentiary burdens prevented agents from searching Moussaoui's laptop--which contained data on commercial airline cockpit layouts and computer flight simulators, and phone numbers linking Moussaoui to Mohammed Atta, the leader of the September 11th hijackers, and Atta's former roommate, Ramzi Binalshibh, a Hamburg al Qaeda cell member and coordinator of the September 11th plot--until after the deaths of thousands of innocent people. (14) The availability of this information prior to September 11th may not have prevented the tragedy; however, if it were available the government may have paid more attention to the impending threat. (15) According to now-captured Binalshibh, had Khalid Sheikh Mohammed, the mastermind of the September 11th attacks, merely known of Moussaoui's FBI arrest, he would have cancelled the attacks. (16)

The missed opportunity to search Moussaoui's laptop is indicative of the problems the United States faces to create policies balancing the protection of its citizens and maintaining the civil liberties essential to American democracy.

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