In an interview on CNN on April 20, 1995, White House Chief of Staff Leon Panetta confirmed that the Justice Department was reviewing all of the intelligence network data in order to determine whether there are any leads. D.E. 1079 at 15. Mr. Panetta stated that the investigation into the bombing clearly involves looking at communications, both within the United States and outside the United States. Id. Also, CNN's State Department correspondent Steve Hurst stated that there was bound to be a volume of cable traffic coming into the State Department and into the CIA from stations abroad concerning information about the bombing. Presumably, Mr. Hurst is proficient and knowledgeable in the operations of the State Department, and his observations are supported by other media accounts establishing an FBI directive to CIA stations to search its international sources for possible leads among foreign terrorist groups. Id. at 16.

c. CIA and NSA Investigation Protocol.

In the immediate aftermath of the bombing, the CIA searched its databases for candidates who might have the means and motive to perpetrate the bombing. The databases were also used to verity the bona fides of sources providing leads. The CIA's stations and bases submitted numerous "name traces" on individuals as a result of the bombing investigation. These traces were requests for information on individuals, including those suspected of having knowledge of the bombing. Technical assets, such as global, regional, and local communication intercepts and reconnaissance satellites, were also used to obtain or verify information about the Oklahoma City bombing.[5]

The CIA's Counterterrorism Center was the focal point for all reports. The information gathered was then sent to government analysts and other official consumers, including the Justice Department. Id. at 16-17.

Also in response to the attack the National Security Agency (NSA) promptly supplemented their existing "watch list" for domestic terrorist threats with specific terms related to the Oklahoma City bombing, potential suspects and suspect organizations. Id. at 17. A watch list enables NSA listening posts to key on specific words spoken in their global net of intercepted oral communications. The National Reconnaissance Office (NRO) was also requested to assist in the investigation of the bombing by providing satellite photography. Id.

The NSA's sole reason for being is to intercept electronic messages worldwide and analyze these interceptions for useful intelligence and national security information. As reported by the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities: The National Security Agency was created by Executive Order in 1952 to conduct 'signals intelligence' including the interception and analysis of messages transmitted by electronic means, such as telephone calls and telegrams. D.E. 1079 at 17.

Lewis Allen, a General in the United States Air Force and then-Director of the National Security Agency, testified before the Committee that the "mission of the NSA was directed to foreign intelligence obtained from foreign electrical communications[.]" Id. But in delineating the scope of the NSA's mission, the Committee pointed out that the NSA has interpreted "foreign communications" to include communication where one terminal is outside the United States. Under this interpretation, the NSA has for many years intercepted communications between the United States and a foreign country, even though the sender or receiver was American. Thus, the full range of the NSA's sphere of interceptions is virtually unlimited and unchecked. Id. at 17-18. Yet, the NSA is allowed specifically by Executive Order to assist domestic law enforcement authorities and to participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorists or narcotics activities. Id. at 18 (Executive Order 12333).

With respect to methods of interception utilized by the NSA, a Senate Select Committee has reported the following: The use of lists of words, including individual names, subjects, locations, etc., has long been one of the methods used to sort out information of foreign intelligence value from that which is not of interest. In the past, such lists have been referred to occasionally as watch lists, because the lists were used as an aid to watch for foreign activity of reportable intelligence interest. However, these lists generally did not contain names of U.S. citizens or organizations. The activity in question is one in which U.S. names were used systematically as a basis for selecting messages, including some between U.S. citizens, when one of the communicants was at a foreign location. D.E. 1079 at 18.

The system and the procedure for selection and interception has been described in the Select Committee report on the handling of the "watch lists":The information produced by the watch list activity was, with one exception, entirely a byproduct of our foreign intelligence mission. All collection was conducted against international communications with at least one terminal in a foreign country, and for purposes unrelated to the watch list activity. That is, the communications were obtained, for example, by monitoring communications to and from Hanoi.

The watch list activity specifically consisted of scanning international communications already intercepted for other purposes to derive information which met watch list requirements. This scanning was accomplished by using the entries provided to NSA as selection criteria. Once selected, the messages were analyzed to determine if the information met those requesting agencies' requirements associated with the watch lists. If the message met the requirements, the information therein was reported to the requested agency in writing. D.E. 1079 at 18-19.

Significantly, the NSA's interception of international communications sometimes includes, either incidently [sic] or accidently [sic], communications between two American citizens if one of them happens to be abroad. Id. at 19. Thus, within hours of the bombing of the Murrah Building, the NSA's supplemented watch lists would have enabled the agency to pluck a huge amount of data from its incredible volume of global electronic interceptions. The result, within this agency alone, would have been a massive amount of relevant information concerning the bombing, none of which has been given to the defense in this case.

Procedures similar to the CIA's, NSA's, and NRO's for gathering information on the bombing were employed by foreign and domestic personnel of the Department of Justice and its enforcement agencies (the FBI, the Drug Enforcement Administration (DEA), the Immigration and Naturalization Service (INS), and the U.S. Marshals); the Department of State's Bureau of Diplomatic Security (DS); the CIA's Office of Security (OS); the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF, Customs Service (USCS)), Internal Revenue Service (IRS), and Secret Service (USSS); the Postal Service's Postal Inspectors; The Department of Defense's Armed Services, Defense Intelligence Agency (DIA), Naval Criminal Investigative Service, and the Defense Investigative Service, the General Services Administration's Federal Protective Service; the Department of Transportation's Coast Guard; and the Federal Aviation Administration (FAA). Other agencies, bureaus, and departments participated in the gathering of information as well. Personnel at all levels, suspecting the bombing to be a large scale terrorist attack resulting in numerous deaths, immediately mobilized all resources at the government's disposal. The result was a mammoth investigation without political or geographic limits. Id. at 19-20.

The criminal investigation of this case included the use of the civilian and military branches of government; law enforcement, intelligence, and security agencies; foreign and domestic personnel and technical resources; and similar assets of other nations. The international scope of the investigation of this case is underscored by comments made by the Attorney General at an April 20, 1995, press conference:

[Reporter]: The government of Israel has offered its help, because it has a vast experience with this sort of thing. Do you know if we are accepting that help?
[Attorney General Reno]: We will, of course, rely on any additional resource that can possibly be involved and be utilized appropriately in bringing these people to justice. D.E. 1079 at 20.

In a 1981 Executive Order, President Reagan authorized agencies within the intelligence community to "participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers or international terrorist or narcotics activities[.]" Id. at 21 (Executive Order 12333, December 4, 1981). The intelligence community is also authorized to provide specialized equipment, technical knowledge or assistance of expert personnel for use by any department or agency or, when lives are in danger, to support local enforcement agencies. Thus, the Chief Executive of this country has authorized specifically the use of instruments of state intelligence to aid law enforcement agencies in investigating terrorist attacks.

The United States Department of State has acknowledged the federal government's use of intelligence organizations in response to terrorism: "A central element in the effective international effort to prevent and/or to bring about to justice those responsible for such attacks is the effective exchange of intelligence. The United States intelligence community is cooperating closely and effectively with other services as part of the international effort to identify those responsible[.]" Id. D.E. 1079 at 21.

In fact, a report issued from the State Department's Office of the Coordinator for Counterterrorism states: Because terrorism is a global problem, the Clinton administration is deeply engaged in cooperation with other governments in an international effort to combat terrorism: U.S. intelligence and law enforcement agencies have an active network of cooperative relations with counterparts in scores of friendly countries. D.E. 1079 at 21-22.

Such cooperative efforts have been further chronicled in the mainstream press: "In the bombing of the World Trade Center, in February 1993, the FBI, CIA and other agencies scoured the globe for leads and found many," Brian Duffy, et al., Extremism In America, U.S. New and World Report, May 8, 1995 at 30, and in the May 7, 1995, San Diego Union tribune article regarding the investigation into the car-bombing of a United States Navy captain - "[T]he CIA, the National Security Administration [sic], the Bureau of Alcohol, Tobacco and Firearms, the Naval Criminal Investigative Service and local law-enforcement agencies were involved." See D.E. 1079 at 22.

As previously noted, after the bombing the initial "crisis team" assembled in the White House Situation Room consisted of personnel from the BATF, the FBI, the Secret Service, the National Security Agency, the Central Intelligence Agency, and members of the National Security Council. Id. at 22. Military officials from the defense intelligence agencies have participated in this investigation as well. Finally, the White House Chief of Staff, Leon Panetta, confirmed that the Justice Department conducted a review of data gathered from intelligence networks, including communications from both within the United States and outside the United States. Id.

Thus, from its very inception, the investigation launched by the federal government in this case has utilized the resources of the FBI and other domestic law enforcement agencies in tandem with the intelligence gathering entities of the federal government with the imprimatur of an executive order allowing such a symbiotic relationship. In the first 48 hours after the bombing, the domestic law enforcement and intelligence agencies of the federal government were mobilized and directed toward foreign terrorists (concentrating on those from the Middle East) with no limit on available manpower, assets, technology, and without regard to geographical borders.

3. The Investigative Focus Upon Foreign Terrorists.

News reports conclusively establish that the FBI's early analysis and the judgment of other counterterrorism experts pointed towards foreign responsibility for the Oklahoma City bombing. See D.E. 1079 at 23. CBS News reported shortly after the bombing that the FBI had received claims of responsibility for the attack from at least eight organizations. Seven of the claimants were thought to have Middle Eastern connections. D.E. 1079 at 23. Steven Emerson, an expert on Islamic Jihad said: "There is no smoking gun. But the modus operandi and circumstantial evidence leads in the direction of Islamic Terrorism." The government received calls from six people saying that they were from different Muslim sects and asserting that they were responsible for the bombing. Id. at 23-24.

On April 20, 1995, the New York Times reported that federal authorities opened an intensive hunt for the perpetrators of the bombing and "proceeded on the theory that the bombing was a terrorist attack against the government, law enforcement officials said." Id. at 24. The immediate speculation according to some experts, focused on the possibility that the attack had been the work of Islamic militants, similar to those responsible for the World Trade Center bombing in February of 1993. D.E. 1079 at 24.

John Magaw, director of the Bureau of Alcohol, Tobacco and Firearms, when asked whether his agency suspected terrorists, told CNN: "I think any time you have this kind of damage, this kind of explosion, you have to look there first." The FBI even went so far as to approach the Department of Defense about including Pentagon Arabic speakers in the investigative team. Former FBI Assistant Director in Charge of Investigation and Counterterrorism Expert Oliver "Buck" Revell, was quoted as saying, "I think what we've got is a bona fide terrorist attack." Mr. Revell went on to state, "I think it's most likely a Middle East terrorist. I think the modus operandi is similar. They have used this approach." D.E. 1079 at 24.

FBI officials in Washington, speaking anonymously, suggested strongly the investigations were focusing on Middle East terrorists . . . among the leads being investigated was a television report of three males of Middle East origin who rented a brown Chevrolet pickup at the Dallas-Fort Worth International Airport. Witnesses have reported seeing three men driving away from the blast area in a similar pickup. D.E. 1079 at 25.

An FBI communique that was circulated Wednesday suggested that the attack was carried out by the Islamic Jihad, an Iranian-backed Islamic militant group. The communique suggested the attack was made in retaliation for the prosecution of Muslim fundamentalists in the bombing of the World Trade Center in February, 1993, said the source, a non-government security professional. "We are currently inclined to suspect the Islamic Jihad as the likely group," the FBI notice said. See D.E. 1079 at 25. The FBI's suspicion of an Islamic Jihad connection would have been further reinforced by a sobering fact: Oklahoma City is probably considered one of the largest centers of Islamic radical activity outside the Middle East. Id. at 26. The extensive loss of life and the targeting of a federal facility motivated law enforcement, the military, and U.S. intelligence agencies to engage in the full range of overt and covert resources located throughout the world. Their mission was two-fold: stop other possible attacks, and identify the individuals and groups responsible for the Murrah Building bombing.

The government's far-reaching efforts in pursuit of Middle Eastern suspects in this case have become part of the public record. An affidavit of FBI Special Agent Henry C. Gibbons, filed in United States v. Abraham Abdallah Ahmed, No. M-95-94-H, W.D. Okla., April 20, 1995, strongly suggests intelligence assets are being used in the bombing investigation. See D.E. 1079 (Exhibit "E"). Gibbons' affidavit explains how a Jordanian American suspect's luggage was searched in Italy, and how the suspect was detained by British authorities and then forcibly returned to the United States. Id.

That a suspect of Middle Eastern origin was promptly apprehended confirmed the widely-held suspicion that a foreign terrorist group would be implicated in the bombing. According to the New York Times, Abraham Ahmed as "caught in the dragnet that spread around the world after the bombing." The newspaper went on to state:

In his case, he was first singled out for attention in accordance with a general profile of possible suspects, including young men traveling alone to destinations like the Middle East. The profile was issued by the FBI to police agencies and airport authorities throughout the world. Mr. Ahmed lives in Oklahoma. He checked into O'Hare International Airport in Chicago on Wednesday night for a flight to Rome, with connections for a flight to Amman, Jordan. In addition to fitting the suspect profile, he was dressed in a jogging suit similar to one that a witness in Oklahoma City had reported seeing worn by a man at the scene of the explosion. D.E.1079 at 27.

The initial focus on foreign terrorist connections undeniably placed the intelligence community at the forefront of the investigatory efforts, since United States intelligence assets exist solely to protect against such foreign threats. Nor is the government's focus limited to the Middle East. The Sunday Times in London reported on February 4, 1996, that senior FBI sources have confirmed that the Bureau was "also pursuing inquiries into a possible neo-Nazi link between the Oklahoma City bombers and British and German extremists." D.E. 1079 at 27. Because of Defendant Terry Nichols' ties to the Philippines, within days of the bombing U.S. and Philippine officials began reconstructing his movements there.

An American Embassy legal attache interviewed Marife Nichols' father, Eduardo Torres, and showed him sketches of the two original bombing suspects. Id. at 27-28. Philippine intelligence agents briefly placed Mr. Torres under surveillance to make sure he was not involved with terrorism. Id. Clearly then, the tentacles of the federal government have reached out worldwide in the investigation of the bombing of the Murrah building. Compelled by the urgency of a grievous attack on the United States government itself, resources ordinarily dedicated to military and intelligence applications were brought to bear on a domestic criminal investigation. By the government's commitment of such resources to a criminal investigation, the Defendant becomes entitled to the product of these resources, so that they may be as fairly and justly applied to his defense as they are to his prosecution.

[CONTINUED IN PART SIX]

[5] On May 10, 1995, the government, as part of its investigation of the bombing of the Alfred P. Murrah Building, enlisted the aid of the 1st Infantry Division at Fort Riley, Kansas, in obtaining Global Positioning System (GPS) readings for twenty (20) geographical sites. These readings were taken by the "Magellan GPS Nav 1000." The readings were taken "for possible satellite photograph requests[.]" D.E. 1079 at 16 n.7 (Exhibit "D").