The DOJ comments on the Mukasey controversy

Even Mukasey's own defense illustrates that the dishonest exploitation of 9/11 for ever-expanding unchecked government power continues to this day.

By Glenn Greenwald

Published April 4, 2008 1:35PM (EDT)

(updated below)

In response to the growing controversy over plainly misleading comments by Attorney General Michael Mukasey last week in San Francisco, and in response to the questions I submitted, the DOJ's Peter Carr, its Principal Deputy Director of Public Affairs, sent me the following email:

In a question-and-answer session after his Commonwealth Club speech last week, Attorney General Mukasey referenced a call between an al Qaeda safe house and a person in the United States. The Attorney General has referred to this before, in the letter he sent with Director of National Intelligence McConnell to Chairman Reyes on February 22, 2008. In that letter, contained in this link [.pdf], the Attorney General and the Director of National Intelligence explained that:
"We have provided Congress with examples in which difficulties with collections under [Executive Order 12333] resulted in the Intelligence Community missing crucial information. For instance, one of the September 11 hijackers communicated with a known overseas terrorist facility while he was living in the United States. Because that collection was conducted under Executive Order 12333, the Intelligence Community could not identify the domestic end of the communication prior to September 11, 2001, when it could have stopped that attack. The failure to collect such communications was one of the central criticisms of the Congressional Joint Inquiry that looked into intelligence failures associated with the attacks of September 11. The bipartisan bill passed by the Senate would address such flaws in our capabilities that existed before the enactment of the Protect America Act and that are now resurfacing."

This call is also referenced in the unclassified report of the congressional intelligence committees' Joint Inquiry into the 9/11 attacks.

For multiple reasons, this response heightens, rather than resolves, the severely misleading nature of Mukasey's claims. More importantly, Mukasey's comments illustrate the endless exploitation of the 9/11 attacks to demand ever-expanding power to know more and more about the activities of U.S. citizens inside the U.S., and the deceitful practice of blaming what were intelligence failures on civil liberties, safeguards and oversight, and basic Constitutional guarantees.

Several points to note about the DOJ's response:

(1) Some had speculated (not unreasonably) that perhaps Mukasey had not intended to claim that there really was an actual pre-9/11 call from an "Afghan safe house" into the U.S. that the Government failed to investigate, but rather, that he was speaking only hypothetically about the type of call that might have been missed due to FISA. The response from the DOJ makes conclusively clear that Mukasey really was (and is) claiming that there was an actual call of the type he describes.

(2) The DOJ's vague claim -- that "this call is also referenced in the unclassified report of the congressional intelligence committees' Joint Inquiry into the 9/11 attacks" -- is baffling, given that three Democratic House Chairmen (including House Judiciary Committee Chairman John Conyers) said yesterday that they've never heard of any such thing ("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"), as did 9/11 Commission Executive Director Philip Zelikow ("Not sure of course what the AG had in mind").

It's extremely unlikely -- to put it mildly -- that if an episode of such obvious significance had really occurred, nobody would know what Mukasey was talking about.

(3) There is only one reference in the Joint Inquiry report (.pdf) that has any remote similarity to what Mukasey described (p. 36), but that was a call that originated in the U.S., not in an "Afghan safe house":

Critically, the Report emphasized that FISA provided all of the authority needed to have intercepted that communication, to learn of its domestic origins and to disseminate it to the FBI and other domestic intelligence agencies. To the extent the NSA failed to do so, this had nothing to do with FISA or any other legal restraints or civil liberties, but rather, with poor intelligence practices:

The pre-9/11 failures, as the Joint Inquiry itself concluded, were failures resulting from how the NSA used its legal authorities, not from insufficient legal authorities or excessive legal restraints. Even if this were the call that Mukasey was describing -- and that is very dubious -- none of that has anything to do with FISA. Such an incident would not even have justified loosening the pre-9/11 safeguards, let alone -- after seven years of endless erosion of such safeguards -- justify any further erosion now.

This morning I interviewed Kate Martin, the director of the Center for National Security Studies and one of the nation's foremost surveillance experts. She pointed out that even prior to 9/11, the NSA commonly intercepted international communications into the U.S. and -- in numerous, broadly defined circumstances -- was authorized to disseminate what they learned to the FBI and other domestic agencies. If they failed to intercept calls involving Al Qaeda and/or failed to disseminate information to the FBI about looming terrorist attacks, it wasn't because FISA or any other laws prohibited them from doing so.

(4) Even the DOJ's own response makes clear how deceitful Mukasey's speech was. The DOJ references a passage in the Mukasey/McConnell letter where they blame restrictions imposed not by FISA, but supposedly by Executive Order 12333, which is an order issued in 1981 by Ronald Reagan. That Executive Order has nothing to do with FISA, and could have been amended or rescinded at any time by George Bush (and indeed, subsequent to 9/11, it was twice amended by Bush).

If, as Mukasey himself contends, Reagan's 1981 Executive Order prevented discovery of the 9/11 attacks (an absurd proposition for reasons set forth above), that is self-evidently no reason to eliminate FISA's warrant requirements or any other legal safeguards against eavesdropping abuses. Even assuming all of Mukasey's own premises to be true -- a wholly unwarranted concession -- it's still completely deceitful to cite this call and these impediments as a reason why FISA protections should be eroded further still (in the form of Rockefeller's Senate bill) or, worse, to suggest that FISA was somehow responsible for the 9/11 attacks.

* * * * *

Chairman Conyers should absolutely continue to demand answers from Mukasey as to whether or not this alleged call from an "Afghan safe house" that the Government failed to investigate ever actually happened. It is extremely dubious that Mukasey's claims in that regard are accurate.

But even if they were, the deceit here is manifest, and is extremely common ever since the 9/11 attack. The administration has no interest in improving its intelligence-gathering capabilities, its counter-terrorism strategies, or its ability to identify valuable information. 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. Its appetite for this is insatiable.

As Martin points out, the principal defect in counter-terrorism prior to the 9/11 attacks was an inability to identify valuable information, not legal restraints on their ability to gather it. That summer, the intelligence community knew that bin Laden was determined to strike the U.S. and that at least two of his operatives had entered the U.S. But they failed to act with the urgency or focus that such information warranted. Whatever caused their failures to prevent the attacks, it had nothing to do with safeguards and legal prohibitions.

If anything, allowing the Government to collect greater and greater amounts of surveillance data, with fewer and fewer safeguards, results in far less effective counter-terrorism efforts. As both Martin and Rep. Rush Holt have continuously pointed out, allowing the intelligence community to suck up whatever they want about Americans in some sort of blunderbuss vacuum cleaner effect, without safeguards, is far less likely to lead to the detection of actual threats than is focused, narrow, and managed intelligence-gathering activities. More safeguards and restrictions lead to better surveillance.

And yet, the Bush administration has repeatedly succeeded in using the 9/11 attacks to obtain more and more unchecked domestic spying power. And even seven years later, the Attorney General is still parading around in public and tearfully talking about the attacks in order to claim that we need to eliminate the last remaining checks on their domestic spying powers, even though those checks do not even arguably have anything to do with the failures he tearfully exploits. But that's all this administration is and has ever been -- a relentless and profoundly dishonest exploiter of the 9/11 attacks for greater power and less accountability. In that regard, Mike Mukasey has already proven himself to be a perfect addition to the team.

UPDATE: The audio of Mukasey's appearance at the Commonwealth Club is here (ht/t Jim White). The relevant excerpt from the Q-and-A session begins at roughly the 50:00 minute mark.

There is no doubt whatsoever that Mukasey is tearfully hauling out the alleged Afghan call and failure to prevent the 9/11 attacks to demand enactment of the warrantless eavesdropping powers in the Rockefeller/Cheney Senate FISA bill, and that (even leaving aside whether the episode happened as he described it) is what makes his claims so deceitful. Those two things have nothing even arguably to do with one another -- since FISA did not even arguably prevent interception and domestic dissemination of calls of that sort -- yet here is yet another Bush official, yet again, exploiting those attacks to demand more unchecked government power.

Glenn Greenwald

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