Backpedal

Michale Mukasey faced a Senate hearing last week and had to wiggle away from his claims that FISA caused 9/11, or whatever he intimated.

On his third question, Leahy asked Mukasey to clarify a recent comment he made in San Francisco where he implied that the failure to listen in on a phone call from Afghanistan to the United States prior to the Sept. 11, 2001 attacks had cost 3,000 lives.

"Nobody else seems to know about this. Can you tell me what the circumstances were and why?" Leahy said.

"The phone call I referenced relates to an incoming call that is referred to in a letter in February of this year to House Intelligence Committee Chairman [Silvestre] Reyes [(D-Texas)] from Director of National Intelligence Mike McConnell and I," Mukasey said.

"One thing I got wrong. It didn't come from Afghanistan. I got the country wrong," Mukasey continued without specifying the country where the call originated [...]

Mukasey, who used the phone call as an example to highlight the intelligence shortcomings before 9/11, did not explain why he included the comment to argue for expanded surveillance powers in a question-and-answer session after his speech on March 27.

"No FISA [Foreign Intelligence Surveillance Act] application should have been necessary to monitor a foreign target in a foreign country," Leahy reminded Mukasey. "We didn't need it then. And we didn't need it today."

He seems to think that if he can just muddy it up enough, if he can give the phone number but with the area code missing, he can get out of this.

John Conyers says no.

Based on the April 10 letter and other information from the Department, it now appears that the incident mentioned in your March 27 remarks concerned phone communication between a future 9/11 hijacker while in the U.S. and a known terrorist facility in the Middle East, which was in fact discussed by the Congressional intelligence committees in their report on 9/11. As the committees explained, however, the failure to utilize the information in this call had nothing to do with limitations in FISA, contrary to what your March 27 speech appeared to suggest. Instead, the problem was NSA’s narrow interpretation of its authority to collect and disseminate data on U.S. persons following its acquisition under Executive Order 12333. Your letter to Chairman Reyes recognizes this. As the Congressional intelligence committees’ joint inquiry pointed out, “NSA adopted this policy even though the collection of such communications is within its mission and it would have been possible for NSA to obtain FISA Court authorization for such collection…. NSA did not, however, develop a plan with the FBI to collect and to ensure the dissemination of any relevant foreign intelligence to appropriate domestic agencies.”1 In the wake of the 9/11 attacks, the NSA changed this policy. Although a number of changes to FISA have been enacted since the attacks of September 11, this change in NSA policy did not require Congressional action, and FISA had nothing to do with the failure to intercept and utilize effectively the intelligence at issue. We hope that you will clarify your remarks accordingly.

In addition, however, the April 10 letter does not respond to several of our requests. Our letter did not, as you characterize it, generally inquire “why FISA’s emergency provisions were not an adequate substitute for the authorities the Government has obtained under the Protect America Act.” Rather, our inquiry concerned the specific phone call about which you spoke. We asked whether the then-existing emergency provisions would have allowed interception of the specific call at issue, if indeed the foreign portion of the call was a known terrorist location. To the extent that your response set forth an argument for the PAA or the Administration’s preferred version of FISA reform, it was non-responsive to our request for information. Based on the clarifications in the April 10 letter, we understand that the answer to our actual question was that, in fact, then-existing FISA provisions would have allowed the interception and dissemination of the phone call, but that it was NSA’s then-existing narrow interpretation of Executive Order 12333 that was the problem. Please explain promptly if that is not the case.

Our April 3 letter also asked for a copy of the secret Office of Legal Counsel Memorandum of October 23, 2001, concerning the purported authority to conduct certain military or other activities within the United States. Quite recently, you testified to a Senate Committee that the portion of that memorandum that has been publicly revealed – the claim that “the Fourth Amendment had no application to domestic military operations” – may no longer be operative, though you did not state whether this or other conclusions in the memo have been withdrawn.2 This testimony underlines further the need for release of this memorandum, and we ask that you promptly reply to our request that you do so.

Of particular interest is that (still classified) October 2001 memo. If the OLC asserted a right to defy the Fourth Amendment I want to know if it remains operative.

At some level, it's fun to watch these functionaries squirm, until you realized they've wrecked the country, that is.