Last week, speaking in San Francisco, Attorney General Michael Mukasey said that government agents:
"shouldn't need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that's the call that we may really want to know about. And before 9/11, that's the call that we didn't know about. We knew that there has 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….We've got three thousand people who went to work that day and didn't come home to show for that." There are just a couple major problems with this. For one, FISA--as it existed before the terrorist attacks, as it exists now, and as it would exist under the House's latest amendments bill--doesn't require a warrant for the sort of phone call Mukasey's referring to. Relatedly, if the White House knew such calls were taking place it was obligated to listen in. Its failure to do so is an indictment of itself, not of FISA (which Mukasey suggests led to the attacks and the deaths of 3000 Americans).
So either the government screwed up big time, or Mukasey--the nation's chief law enforcer--just told a whopper (perhaps with the hope that it would be repeated in the press) as part of his ongoing efforts to help the White House get its way in the FISA fight. Either way, somebody's got some 'splainin to do. And, as such, John Conyers, chairman of the House Judiciary committee, has begun asking questions.
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:
1. 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?
2. 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.
3. 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?
4. 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.