(Update - Department of Justice responds to Mukasey controversy over 9/11 comments)
A letter has been sent by leaders of the House Judiciary Committee to Attorney General Michael Mukasey, demanding that he explain a recent public statement that federal authorities failed to intercept a call from suspected terrorists in Afghanistan prior to the 9/11 attacks, when doing so could have prevented the attacks from taking place.
Mukasey blamed that failure on a lack of the sort of warrantless wiretapping authority that the administration has now called on Congress to provide. However, there has never been any previous mention of such a call, and the Judiciary Committee letter -- signed by Chairman John Conyers and two subcommittee chairs -- points out that the law that existed at the time would have allowed the call to be intercepted immediately, with permission granted retroactively by the FISA court.
That letter has been noted by blogs, such as Talking Points Memo, but does not appear to have gained any attention from the mainstream media.
Blogger Glenn Greenwald, who has covered the Mukasey incident extensively, originally believed that "he just made this up out of whole cloth in order to mislead Americans into supporting the administration's efforts to eliminate spying safeguards and basic constitutional liberties and to stifle the pending surveillance lawsuits against telecoms."
However, Greenwald has now received an email from the Department of Justice's Principal Deputy Director of Public Affairs, citing both a reference by a 2002 Congressional Joint Inquiry to an untraced call between one of the 9/11 hijackers and "a known overseas terrorist facility" and a Feb. 22, 2008 letter from Mukasey and Director of National Intelligence Mike McConnell blaming the failure to intercept that call on FISA restrictions.
With that clue, Greenwald found a mention in the Congressional report of a call from one of the 9/11 hijackers which could have easily been intercepted, except that "consistent with its focus on communications abroad, NSA adopted a policy that avoided intercepting the communications between individuals in the United States and foreign countries ... even though the collection of such communications is within its mission andit would have been possible for NSA to obtain FISA Court authorization for such collection."
The report added that NSA believed the FBI should be responsible for monitoring domestic calls but had not actually developed a plan for it to do so.
"The administration has no interest in improving its intelligence-gathering capabilities, its counter-terrorism strategies, or its ability to identify valuable information," Greenwald concludes. "Its only interest is to obtain greater and greater domestic spying powers with fewer and fewer oversights -- based on the premise that as long as they know Everything, we'll all be safe."
The Judiciary Committee letter also includes a reiteration of an earlier demand that the text of the so-called Yoo Memorandum -- a secret 2001 Office of Legal Counsel opinion suggesting that Fourth Amendment protections against unreasonable searches and seizures do not apply in cases of terrorism -- be provided to Congress.
The letter, signed by House Judiciary Committee Chairman John Conyers, Jr. (D-MI), Subcommitee Chairmen Jerrold Nadler (D-NY) and Robert C. Scott (D-VA), appears below.
April 3, 2008
The Honorable Michael Mukasey
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
Dear Mr. Attorney General:
We are writing about two disturbing recent revelations concerning the actions and inactions by the Department of Justice and the federal government to combat terrorism. These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government's existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11, and the partial disclosure of the contents of a secret Department memorandum concerning Executive Branch authority to combat terrorism, which has been previously requested to be provided to Congress. We ask that you promptly provide that memorandum and that you clarify your public statement in accordance with the questions below.
First, according to press reports, in response to questions at a March 27 speech, you defended Administration wiretapping programs and proposals to change the Foreign Intelligence Surveillance Act (FISA) by referring to a pre-9/11 incident. Before the 9/11 terrorist attacks, you stated, "we knew that there had been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn't know precisely where it went. You've got 3,000 people who went to work that day, and didn't come home, to show for that."1
This statement is very disturbing for several reasons. Initially, despite extensive inquiries after 9/11, I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have helped prevent the 9/11 attacks. In addition, if the Administration had known of such communications from suspected terrorists, they could and should have been intercepted based on existing FISA law. For example, even assuming that a FISA warrant was required to intercept such calls, as of 9/11 FISA specifically authorized such surveillance on an emergency basis without a warrant for a 48 hour period.2 If such calls were known about and not intercepted, serious additional concerns would be raised about the government's failure to take appropriate action before 9/11.
Accordingly, we ask that you promptly answer the following questions:
Were you referring to an actual pre-9/11 incident in the portion of your statement quoted above? If not, what were you referring to?
Do you believe that a FISA warrant would have been required to intercept a telephone call from a known terrorist safe house in Afghanistan to the United States in 2001? If so, please explain.
Even assuming that such a warrant would have been required, do you agree that even before 9/11, FISA authorized emergency interception without a warrant for a 48-hour period of phone calls from a known terrorist safe house in Afghanistan to the United States?
Assuming that you were referring to an actual pre-9/11 incident in your statement, please explain why such phone calls were not intercepted and appropriately utilized by federal government authorities in seeking to prevent terrorist attacks.
Second, in the March, 2003 Office of Legal Counsel (OLC) memorandum publicly released on April 1, 2008, the contents of a secret October, 2001 OLC memorandum were partially disclosed. Specifically, the 2003 memorandum explains that in an October 23, 2001 memorandum, OLC "concluded that the Fourth Amendment had no application to domestic military operations."3 On two prior occasions in letters of February 12 and February 20, 2008, Chairman Conyers requested that the Administration publicly release the October 23, 2001, memorandum.4 The memorandum has not been received despite these specific requests.
Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States. The people of the United States are entitled to know the Justice Department's interpretation of the President's constitutional powers to wage war in the United States. There can be no actual basis in national security for keeping secret the remainder of a legal memorandum that addresses this issue of Constitutional interpretation. The notion that the President can claim to operate under "secret" powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy. We ask that you promptly release the October 23, 2001, memorandum.
Please provide your responses and direct any questions to the Judiciary Committee office, 2138 Rayburn House Office Building, Washington, DC 20515 (tel:202-225-3951; fax: 202-225-7680). Thank you for your cooperation.
John Conyers, Jr.
Chairman, Committee on the Judiciary
Chairman, Subcommittee on the Constitution, Civil Rights and Civil Liberties
Robert C. "Bobby" Scott
Chairman, Subcommittee on Crime, Terrorism and Homeland Security