WASHINGTON — For weeks, FBI agents watched six suspected al-Qaeda trainees in suburban Buffalo, looking for some clue that they were about to launch an attack. And for weeks last summer, the agents came up empty.
With the anniversary of the Sept. 11 attacks approaching, agents intercepted an e-mail that sent ripples all the way to the White House because it seemed to suggest that another assault was coming. In secret meetings, federal sources say, nervous Bush administration officials made a decision that has redefined how U.S. authorities investigate and prosecute terrorism cases.
The officials urged the FBI — which wanted more time to build a case against the group — to cut short its investigation and arrest the six men in Lackawanna, N.Y. The sources say White House officials, including President Bush and Vice President Cheney, didn't want to risk having the men elude surveillance and launch an attack.
Five months later, sources say, there's still no evidence that the Lackawanna group was planning anything.
One of the men, Faysal Galab, 26, admitted attending an al-Qaeda training camp in Afghanistan and pleaded guilty to contributing funds and services to terrorists. He faces up to 10 years in prison. The others await trial on charges that they supported terrorists by attending the camp.
But already, the case has become the template for how the Bush administration and U.S. law enforcement officials are handling thousands of terrorism probes across the nation. Desperate to prevent attacks, the FBI is stopping promising investigations and making quick arrests at even a hint of potential violence.
The strategy, blessed by the White House, mirrors the cautious approach that government officials are using in deciding whether to issue terror alerts, such as the one announced Friday.
For the FBI, it means agents have little time to develop informants inside suspected terror groups, which authorities have said is key to improving their ability to prevent attacks.
Instead, agents are moving quickly to develop cases involving charges that have ranged from document fraud to providing support to terrorists.
Prosecutors, in turn, are being asked to win convictions with less evidence than the FBI used to produce. Since Sept. 11, 2001, there have been 112 terror-related convictions in the United States; none has involved an active plot by a terror cell.
"We used to have what some called a pipe-smoking approach to investigation," a senior FBI official says. "We'd spend time waiting, triangulating and pondering [the suspects'] next move. ... The new approach is more like, 'Who cares where it goes? Let's go get the bastards.' "
The new strategy also reflects the anxiety and the political pressures that permeate the government's homeland defense efforts.
During the Lackawanna investigation, law enforcement officials were surprised by Bush's detailed knowledge of the case. Again and again, sources say, the president asked aides, "What's the Buffalo story?" CIA Director George Tenet fueled the anxiety by calling the Lackawanna group "the most dangerous bunch inside the United States."
Officials didn't say so at the time, but concern about the Lackawanna group was a "major consideration," sources say, in the decision last Sept. 10 to briefly elevate the nation's terror alert to Code Orange, which indicates a high risk of attack. The alert level was raised again last week to Code Orange because intelligence reports suggested that al-Qaeda is preparing to use biological, chemical and radiological weapons in the USA.
Another significant byproduct of the Lackawanna probe is the CIA's increasing role in domestic investigations. The FBI has been forced to accept a partnership with an agency that once focused almost entirely on foreign matters.
Meanwhile, FBI Director Robert Mueller has been trying to fend off calls in Congress for a new domestic intelligence agency. He has told his top deputies that the 95-year-old bureau's survival depends on its ability to disrupt future attacks.
In the Lackawanna case, prosecutors are breaking ground by banking on a legal theory that the defendants' travel to al-Qaeda training camps in Afghanistan is enough to convict them of providing material support to terrorists. If jurors agree and convict the five remaining defendants, sources say, the government could have a huge advantage in prosecuting suspected terror camp graduates who might be in the United States — or who might come here.
But some legal analysts warn that the case could set dangerous precedents. "It used to be considered un-American to prosecute people on the basis of who they know or where they travel or what they think or say," says Robert Precht, director of the University of Michigan Law School's public service program. "But when you have prosecutors saying, 'We have to prevent terrorism,' what jury is going to say, 'We will not convict'?"
The pressure to stop an attack
The Lackawanna case is widely viewed as a key test of the government's strategy for going after suspected terrorist cells, but other significant cases have been brought against U.S. residents in Seattle and Portland, Ore.
In Seattle, former community activist James Ujaama, 37, drew increasing attention from FBI agents last summer because of his association with a radical mosque in London linked to terrorists. U.S. authorities also suspect that he tried to help al-Qaeda establish a training camp in Oregon.
Seattle investigators describe pressure from Washington similar to that experienced by the agents involved in the Lackawanna case. "There was constant discussion about who was involved, when could we move, what was happening," a federal source says. "Underlying the whole thing was the pressure to prevent another incident."
In Seattle, the decision to arrest Ujaama was influenced by information that "suggested violence," the source says. Investigators quickly determined the threat to be unfounded, but higher-level officials already had decided to move against Ujaama. He was arrested July 22 and indicted for providing support to terrorists.
As was the case in Lackawanna, agents arrested Ujaama without knowing as much about his activities as they would have liked, and there's no evidence so far that he was plotting an attack.
"We wanted to run out [surveillance] a little longer," the source says. "But the stakes are so high here that we could not accept that risk. That standard becomes an impossible standard: Can you guarantee that the person you are watching doesn't get away from you or does something? There's no way you can guarantee that. The answer is always no."
In some cases, FBI officials in Washington, D.C., have given agents a longer leash to watch terror suspects.
Agents in Portland monitored six people there for more than a year before the suspects were indicted last fall on charges they conspired to join al-Qaeda and the Taliban to fight U.S. military forces. The agents were given the time largely because the suspects never represented an immediate threat.
"There was no, what you would call, smoking gun," says Charles Mathews III, the FBI's top agent in Portland.
The new FBI
During the hunt for potential terrorists, no official has felt more heat than the FBI's Mueller. Last month, he summoned top agents from the bureau's 56 U.S. offices to a hotel in Washington, D.C., where he told them that they had to let go of the old ways of doing business — or else.
"The mantra is, 'Let no counterterrorism lead go un-addressed,' " Mueller told reporters after his two-day session with the agents.
Mueller has spent the past two months on Capitol Hill and at the White House countering criticism of the FBI's progress in transforming itself from an agency focused on making airtight criminal cases to one that gathers intelligence.
He wasn't entirely successful. Bush last month ordered the FBI, the CIA and the Homeland Security and Defense departments to form a new unit to assess terrorist threats. It will be run by the CIA, not the FBI.
For FBI agents, the new strategy of quickly arresting terror suspects means they no longer can spend months — if not years — gathering evidence, as they have against drug rings and the Mafia. Instead, federal sources say, agents often have days to assess the threat posed by individuals or groups.
Agents in field offices also are being directed by officials at headquarters in Washington more frequently, sometimes by Mueller and Attorney General John Ashcroft personally.
"The big difference now is the ramifications are so great, particularly when you add the WMD element," a headquarters official says, referring to nuclear, biological and chemical weapons of mass destruction. If suspects hint at violence, the official says, "we take immediate action."
If the FBI doesn't have enough evidence to make arrests, agents let their targets know that they are watching them. "We want them to 'make' us," the official says. "We use that as a technique to prevent an act if we have no other lawful way to detain them."
Some veteran FBI agents say "pulling the string early" on investigations keeps agents from following suspects to their leaders.
"There is a trade-off," an agent from the South says. "But I'd rather — and I know that the [FBI] director, the [attorney general], and certainly the president would rather — err on the side of taking them down too soon."
Precht, the University of Michigan law professor, says the FBI's new approach to terrorism could undermine public confidence.
"In most cases in which the FBI is involved, if there's a conviction, we are satisfied as a community that those individuals are guilty," he says. "But when you have this other approach, where you simply go out and arrest people because of their associations or where they have traveled, who's going to think that's a reliable conviction?"
Last fall, U.S. Magistrate Judge H. Kenneth Schroeder seemed to have trouble evaluating the evidence in the Lackawanna case. "What is it that these defendants were planning?" Schroeder asked during a bail hearing.
"We're not able to say at this time what it was that they were planning or why," Assistant U.S. Attorney William Hochul answered.
Even so, Schroeder denied bail for all but one of the suspects.
Justice Department officials say a 1996 law that makes "providing material support to terrorists" a crime requires FBI agents to gather enough evidence to prove only that the defendants banded together to attend a training camp for terrorists.
Hochul said there was "no justification" for the six defendants to have trained with al-Qaeda unless they were interested in terrorism. He also said several of the defendants initially told the FBI that they hadn't been to Afghanistan; Hochul called that a "conspiracy of silence" that shows the men knew what they were doing was wrong.
Attorneys for the defendants have argued that the charge inappropriately allows authorities to punish people for their beliefs and for not volunteering information to the government.
If the defendants are convicted, Justice and FBI sources say, the government will increase its use of the "material support" charge to lock up other al-Qaeda training camp graduates who come into the USA — regardless of whether authorities have evidence of a planned attack.
A high-ranking Justice official says he understands FBI agents' desire to "catch the guy pulling the pin out of the hand grenade." But legally, he says, all that matters is suspects' conduct — namely, whether they sought and received terrorist training.
Of all the potential threats to this country, U.S. officials worry most about al-Qaeda training camp graduates. Officials believe that as many as 20,000 men trained during the 1990s in several camps in Afghanistan. Mueller says documents found in that country and interrogations of al-Qaeda operatives are helping U.S. authorities identify who went through the camps and where they might be. But the task is daunting because al-Qaeda trainees used fake names.
"We have torn the camps apart," says a top FBI official in Washington, referring to the U.S. military campaign in Afghanistan. "But where are all of the people who went through them? That keeps me awake at night."
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