During a discussion of ABC's The Path to 9/11 on the September 12 broadcast of his show, Newsradio 850 KOA host Mike Rosen falsely asserted that the Foreign Intelligence Surveillance Court denied the FBI a warrant to access the laptop computer of so-called “20th hijacker” Zacarias Moussaoui immediately before the September 11, 2001, terrorist attacks. In fact, it was the FBI -- not the court, established by the 1978 Foreign Intelligence Surveillance Act (FISA) -- that determined the evidence against Moussaoui was insufficient to obtain a warrant, according to a report issued by a bipartisan group of three members of the Senate Judiciary Committee. Moreover, Rosen's description of the relevant scene from The Path to 9/11 misrepresented the historical account and ABC's fictionalized version of events surrounding the attempts to access Moussaoui's computer before the attacks.

In attacking Colorado Media Matters, Rosen previously has claimed, “I'm awfully careful about my facts.”

From the September 12 broadcast of The Mike Rosen Show:

ROSEN: The guy representing the FISA court when they were looking for a warrant to, uh, to take a look at the computer that they had confiscated from Zacarias Moussaoui -- they had him in custody, and they had his computer, and the FISA court would not allow the FBI to look at his, at the contents of his computer. Had that been allowed, the 9-11 plot might have been thwarted. That wasn't allowed.

But the character in The Path to 9/11 whom Rosen inaccurately identified as “representing the FISA court” appears to have been wearing an FBI identification badge during the scene in question. The scene did not suggest this character was “representing the FISA court.” In the program, this character -- apparently an FBI attorney -- told FBI agents they “can't” examine the contents of Moussaoui's laptop.

As Media Matters for America has noted, the issue of obtaining a warrant to search Moussaoui's computer never reached the FISA court. Much like the fictionalized version of events in The Path to 9/11, the FBI determined at the time that there was insufficient evidence to petition FISA for a warrant.

Moreover, a February 2003 bipartisan report by three members of the Senate Judiciary Committee - Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA) -- found that the FBI's evidence against Moussaoui appeared to be sufficient to obtain a FISA warrant. However, the report concluded, the FBI attorneys handling the case employed an “unnecessarily high standard” for probable cause that exceeded FISA's standard. Neither Rosen nor ABC provided audiences with this information.

According to the Senate report:

In our view, the FBI applied too cramped an interpretation of probable cause and “agent of a foreign power” in making the determination of whether Moussaoui was an agent of a foreign power. FBI Headquarters personnel in charge of reviewing this application focused too much on establishing a nexus between Moussaoui and a “recognized” group, which is not legally required. Without going into the actual evidence in the Moussaoui case, there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application.

Retired FBI agent Colleen Rowley, who was portrayed in The Path to 9/11, stated in the full version of a September 24, 2005, 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]

In a scene from the ABC miniseries The Path to 9/11, an FBI attorney rebuffs an FBI agent's request for a FISA warrant to search the contents of Moussaoui's laptop computer:

FBI ATTORNEY: I don't see the Al Qaeda connection.

ROWLEY: It's there, it's detailed -- the trips to Afghanistan, Chechnya. The French have been tailing this guy since '95 -- they claim he's Al Qaeda all the way.

MALE FBI OFFICIAL: Washington says the Chechen groups are separate from AQ --

ROWLEY: They're linked -- bin Laden is their biggest financier --

FBI ATTORNEY: That's not good enough. You have to prove Moussaoui's an agent of a foreign power. Without that, you can't go forward.

FBI AGENT PULASKI: We need to look inside his computer -- that's all this is about.

FBI ATTORNEY: I understand, but there's nothing there to justify a FISA request.

[...]

FBI AGENT PULASKI: In the Ramzi Yusef case, the laptop revealed the Bojinka plot, intended to destroy a dozen airliners in one day -- which we broke up. Last December, the Jordanians captured a laptop that we used to defend against the millennium plots. We need to get a look inside Moussaoui's computer.

FBI ATTORNEY: You can't.

FBI AGENT PULASKI: Look, this is not complicated. We are trying to stop a guy who's been taking flight training. Who's associated with radical Islamic groups --

FBI ATTORNEY: I appreciate your doing your jobs, but I have to do mine.

From the September 12 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: I thought what the movie conveyed, for those watching it -- you came away with a painful sense of frustration. You could feel for and relate to those like Harvey Keitel playing John O'Neill, the FBI agent. People who sincerely wanted to do something. Kirk was a composite character, he was a CIA operative who was back and forth through Afghanistan, where, while in Afghanistan, he was working with the General Masoud character, the charismatic general of the Northern Alliance in Afghanistan. Uh, Dick Clarke was portrayed very favorably -- he was our terrorism, anti-terrorism czar. And you got a sense of how frustrating it was for these people with good information close at hand who wanted to take action and who were thwarted at almost every turn by the government bureaucracy, by the counselors of caution. That -- by the people who err on the side of not taking chances. The State Department mentality. The excessive legalism. The guy representing the FISA court when they were looking for a warrant to, uh, to take a look at the computer that they had confiscated from Zacarias Moussaoui -- they had him in custody, and they had his computer, and the FISA court would not allow the FBI to look at his, at the contents of his computer. Had that been allowed, the 9-11 plot might have been thwarted. That wasn't allowed. Legalisms trumping action while the nation is at war. Courageous, dedicated people in the FBI and the CIA who wanted to take action and weren't allowed to take action. People who wanted to defend the nation but weren't allowed to do so because we were still in a state of denial. Because we didn't recognize the nature of the enemy. Didn't recognize the seriousness and the imminence of the threat. People who were so concerned about political considerations or political correctness.