Rush Limbaugh falsely claimed that the Foreign Intelligence Surveillance Court prevented the FBI from accessing the laptop computer of Zacarias Moussaoui -- the alleged "20th hijacker" in the September 11, 2001, terrorist plot -- immediately prior to the attacks. In fact, the Moussaoui case never reached the FISA court.
Nationally syndicated radio host Rush Limbaugh falsely claimed that the Foreign Intelligence Surveillance Court (established by the 1978 Foreign Intelligence Surveillance Act, or FISA) denied the FBI a warrant to access the laptop computer of Zacarias Moussaoui -- the alleged "20th hijacker" in the September 11, 2001, terrorist plot -- immediately prior to the attacks. Limbaugh asked: "[W]hy aren't some of these judges investigated and held to account for their secret decisions?" In fact, the Moussaoui case never reached the FISA court: The FBI determined at the time that there was insufficient evidence to petition FISA for a warrant. A bipartisan Senate Judiciary Committee later concluded the FBI did have sufficient evidence, but had set too high a standard for establishing probable cause.
On the January 4 broadcast of The Rush Limbaugh Show, Limbaugh joined a caller in denouncing the "federal judge" who allegedly barred the FBI from accessing Moussaoui's computer:
CALLER: Good afternoon, Rush. One of the things that I think stands out most and it's -- it's not being talked about: We cannot go back to the courts and -- and (inaudible) to get their approval. That would lead us to the 21st [sic] hijacker and we couldn't get into his laptop 'cause we were forbidden by a judge to get in that and, "Allah, welcome, here comes 9-11."
LIMBAUGH: Haha! That's a --
CALLER: 'Cause they could not get in there.
LIMBAUGH: -- you're talking about Zacarias Moussaoui.
CALLER: That is correct, and we were on -- we were barred by a federal judge from getting into his computer. So, that's the type of protection these Democrats, these demagogues in, --
LIMBAUGH: That's exactly right. That's the right to privacy that they're talking about.
CALLER: Yeah. And then the other thing --
LIMBAUGH: He was and that -- that is an excellent point because it was all -- that was raised by the Minneapolis FBI office, I think, after 9-11; [former FBI agent] Coleen Rowley was her name. But they had the guy's laptop and they wanted to get into it, wanted to connect the dots. Judge wouldn't let them do it. You know, that -- that actually -- it -- it -- great point. Why aren't -- why aren't some of these judges investigated and held to account for their secret decisions? Everybody else is out there getting mad at the president for what he's doing in secret, the NSA for doing what it's doing in secret, but how about these judges?
CALLER: That judge had no right --
LIMBAUGH: As -- as you said, that may very well have prevented us from thwarting the 9-11 hijackers if we could have gotten into Moussaoui's computer. All this talk about the great FISA court and how judges can do no wrong and need to be involved in the process; what's their record been when their inputs been used to influence our national security? That -- that is an excellent point.
But, as Media Matters for America noted, it was the FBI -- not the FISA court -- that determined the evidence against Moussaoui was insufficient to obtain a warrant. A February 2003 Senate Judiciary Committee report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), found that the FBI's evidence against Moussaoui was, in fact, sufficient, but that the FBI attorneys handling the case employed an "unnecessarily high standard" for probable cause that exceeded FISA's own standard. Rowley, to whom Limbaugh referred, made a similar point in the full version of a December 24 letter published in The Washington Post:
The bottom line is that THE FISA LAW ITSELF WAS NOT THE REASON THE FBI FAILED TO INSPECT MOUSSAOUI'S PERSONAL EFFECTS AND COMPUTER FILES. Rather, the faulty interpretations and failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation. [emphasis Rowley's]