Michael Mukasey's tearful lies

Bush's new attorney general follows in Alberto Gonzales' footsteps perfectly with slavish, fact-free devotion to the president's whims.

By Glenn Greenwald
Published March 29, 2008 12:35PM (EDT)

(updated below - Update II)

Michael Mukasey has conclusively proven himself to be an exact replica of Alberto Gonzales -- slavishly loyal to every presidential whim and unbound by even the most minimal constraints of truth while serving those whims. Speaking in San Francisco this week, Mukasey demanded that the President be given new warrantless eavesdropping powers and that lawbreaking telecoms be granted amnesty. To make his case, Mukasey teared up while exploiting the 3,000 Americans who died on 9/11 and said this:

Officials "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."

At that point in his answer, Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America's anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. . . . We've got three thousand people who went to work that day and didn't come home to show for that," he said, struggling to maintain his composure.

At the time of the attacks, Mr. Mukasey was the chief judge at the federal courthouse a few blocks away from the World Trade Center.

These are multiple falsehoods here, and independently, this whole claim makes no sense. There is also a pretty startling new revelation here about the Bush administration's pre-9/11 failure that requires a good amount of attention.

Even under the "old" FISA, no warrants are required where the targeted person is outside the U.S. (Afghanistan) and calls into the U.S. Thus, if it's really true, as Mukasey now claims, that the Bush administration knew about a Terrorist in an Afghan safe house making Terrorist-planning calls into the U.S., then they could have -- and should have -- eavesdropped on that call and didn't need a warrant to do so. So why didn't they? Mukasey's new claim that FISA's warrant requirements prevented discovery of the 9/11 attacks and caused the deaths of 3,000 Americans is disgusting and reckless, because it's all based on the lie that FISA required a warrant for targeting the "Afghan safe house." It just didn't. Nor does the House FISA bill require individual warrants when targeting a non-U.S. person outside the U.S.

Independently, even if there had been a warrant requirement for that call -- and there unquestionably was not -- why didn't the Bush administration obtain a FISA warrant to listen in on 9/11-planning calls from this "safe house"? Independently, why didn't the administration invoke FISA's 72-hour emergency warrantless window to listen in on those calls? If what Muskasey said this week is true -- and that's a big "if" -- his revelation about this Afghan call that the administration knew about but didn't intercept really amounts to one of the most potent indictments yet about the Bush administration's failure to detect the plot in action. Contrary to his false claims, FISA -- for multiple reasons -- did not prevent eavesdropping on that call.

Mukasey was even more dishonest in demanding amnesty for lawbreaking telecoms. According to today's admiring Wall St. Journal Editorial, this is what Mukasey said on that subject:

The AG also addressed why immunity from lawsuits is vital for the telecom companies that cooperated with the surveillance after 9/11. "Forget the liability" the phone companies face, Mr. Mukasey said. "We face the prospect of disclosure in open court of what they did, which is to say the means and the methods by which we collect foreign intelligence against foreign targets." Al Qaeda would love that.

Mike Mukasey was a long-time federal judge and so I feel perfectly comfortable calling that what it is: a brazen lie. Federal courts hear classified information with great regularity and it is not heard in "open court." There are numerous options available to any federal judge to hear classified information -- closed courtrooms, in camera review (in chambers only), ex parte communications (communications between one party and the judge only). No federal judge -- and certainly not Vaughn Walker, the Bush 41 appointee presiding over the telecom cases -- is going to allow "disclosure in open court of . . . . the means and the methods by which we collect foreign intelligence." And Mukasey knows that.

Worse, FISA itself (50 USC 1806(f)) explicitly provides that telecoms are permitted to present any evidence in support of their defenses in secret (both in camera and ex parte) to the judge and let the judge decide the case based on it. Just go read 50 USC 1806(f) of FISA; it's as clear as day. In fact, it doesn't merely permit, but explicitly requires, the federal judge to review evidence in secret whenever the Attorney General requests that ("the United States district court in the same district . . . shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application the application, order, and such other materials relating to the surveillance.").

Beyond that, the key provision of the House's FISA bill expressly provides that any classified information in the telecom lawsuits shall be submitted in secret to the federal judge. Mukasey's claims that these lawsuits will result in disclosure of classified information in open court is a complete lie -- term used very advisedly.

Worse still, think about what Mukasey is actually saying. His argument means that government officials must be free to break the law in a classified intelligence setting with impunity, because we can't risk subjecting them to a court of law since, presumably, we can't trust our country's federal judges with classified information and so it's preferable to allow lawbreaking by our highest government officials. That's a pretty extraordinary -- and pretty reprehensible -- argument for a former federal judge and current Attorney General to be making. I hope Dianne Feinstein and Chuck Schumer are very proud.

Michael Mukasey can cry all he wants about the 9/11 attacks. But neither he nor the rest of the Bush administration are the proprietors of those attacks. There were millions of New Yorkers in Manhattan on 9/11 other than Michael Mukasey, who lived and worked there for a long time. Neither Mike Mukasey nor his tearful pleas for unchecked government surveillance power and the erosion of the rule of law are representative of them.

To the contrary, the substantial majority of New Yorkers -- and huge majorities of Manhattanites -- vehemently reject the Bush/Cheney agenda of dismantling our constitutional framework and basic safeguards in the name of these sorts of fear-mongering and manipulative appeals. Unlike Mukasey and other Bush followers, most New Yorkers have ceased quivering in fear long ago -- if they ever did -- and have had their resolve to defend our basic constitutional liberties strengthened, not obliterated, as a result of the 9/11 attack and the subsequent, self-serving exploitation of it by Mukasey's White House bosses. And under no circumstances do Mukasey's tears provide license for this tidal wave of lies in defense of presidential lawlessness, from our nation's highest "law enforcement officer."

* * * * *

Jane Hamsher, Howie Klein and I are working this weekend on creating the content for the various ads that are going to run, beginning April 23, aimed at Democrat Chris Carney of Pennsylvania -- the clear winner (loser) of the poll which asked which Bush Dog Democrat should be targeted. Carney has ceaselessly supported the worst aspects of the Bush agenda and was one of only five House Democrats to vote against the House FISA bill because he wanted to pass the Rockefeller/Cheney bill.

The ad campaign and its purposes were described here. Close to $50,000 was raised in two days, which allows for an extremely hefty, potent package of television, radio and newspaper ads in Carney's district, which we're in the process of creating.

I have some preliminary ideas, but if you have suggestions and concepts for what these ads should convey and how they should be shaped, please email me. In order to keep the email load manageable, I'd really appreciate it if only those people who give some real thought to this and create what they believe is a unique and powerful message actually send me their ideas. It can be anything from the broad topic or general content strategy to a full-scale copy-written television, radio or newspaper ad.

Please review the post I linked to above in order to keep the purpose of the ad in mind. The purpose is to undermine and weaken Carney in the eyes of his largely conservative district by conveying why it is that his Bush-loyal support for warrantless eavesdropping and telecom amnesty -- and his general refusal to fulfill his constitutional duty to provide oversight of the President -- violates the values of that district's voters.

UPDATE: When Hillary Clinton teared up in New Hampshire, here's what Maureen Dowd and the very serious band of National Security Journalists at The New York Times said about it:

When I walked into the office Monday, people were clustering around a computer to watch what they thought they would never see: Hillary Clinton with the unmistakable look of tears in her eyes.

A woman gazing at the screen was grimacing, saying it was bad. Three guys watched it over and over, drawn to the "humanized" Hillary. One reporter who covers security issues cringed. "We are at war," he said. "Is this how she'll talk to Kim Jong-il?"

We're at war. Is tearing and crying how Mike Mukasey intends to deal with Sleeper Cells and other scary Al Qaeda threats? I wonder if national security reporters at The New York Times are now going to be raising those same questions about Mukasey's toughness. Actually, I don't wonder that at all.

UPDATE II: The San Francisco Chronicle reported on the Mukasey speech and is asking some of the right questions:

Mukasey did not specify the call to which he referred. He also did not explain why the government, if it knew of telephone calls from suspected foreign terrorists, hadn't sought a wiretapping warrant from a court established by Congress to authorize terrorist surveillance, or hadn't monitored all such calls without a warrant for 72 hours as allowed by law. The Justice Department did not respond to a request for more information.

As indicated, FISA didn't require a warrant for that call, but these questions have to be pursued. Mukasey can't be allowed to drop such a deceitful little bombshell like this -- blaming FISA for the Bush administration's failure to detect the 9/11 attacks -- and then refuse to answer basic questions about his incredibly manipulative claims.

Glenn Greenwald

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