Top Democrats demand Attorney General explain remarks about pre-9/11 phone call

April 6, 2008

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Muriel Kane
April 3, 2008

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:

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.

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.

Sincerely,

John Conyers, Jr.
Chairman, Committee on the Judiciary

Jerrold Nadler
Chairman, Subcommittee on the Constitution, Civil Rights and Civil Liberties

Robert C. “Bobby” Scott
Chairman, Subcommittee on Crime, Terrorism and Homeland Security

cc: Hon. Lamar S. Smith
Hon. Trent Franks
Hon. Louie Gohmert
Hon. Brian Benczkowski

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