Mukasey and FISA

MUKASEY AND FISA….A couple of weeks ago Attorney General Michael Mukasey told reporters that he was taken aback by how much he’d learned about terrorist activity since taking office. “It’s surprising how varied [the threat] is, how many directions it comes from, how geographically spread out it is,” he said.

A week later he got a little more specific, as reported by Josh Gerstein of the New York Sun:

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,” Mr. Mukasey said yesterday as he took questions from the audience following a speech to a public affairs forum, the Commonwealth Club.

“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,” he said, struggling to maintain his composure.

Glenn Greenwald points out that Mukasey is being plainly misleading here. FISA has always allowed eavesdropping of foreign terrorist suspects, even if they make a call into the U.S. What’s more, NSA is allowed to eavesdrop on any source for 72 hours while they’re working on getting a warrant approved — and in a case like this, a warrant would certainly have been speedily issued. So it’s unlikely in the extreme that FISA was an impediment to our anti-terrorist efforts in this case.

But perhaps even more interesting is whether the incident described by Mukasey ever even took place:

For obvious reasons, the Attorney General’s FISA falsehoods themselves are extremely newsworthy, but it is the story he told about the pre-9/11-planning call from Afghanistan itself that is truly new, and truly extraordinary.

Critically, the 9/11 Commission Report — intended to be a comprehensive account of all relevant pre-9/11 activities — makes no mention whatsoever of the episode Mukasey described. What has been long publicly reported in great detail are multiple calls that were made between a global communications hub in Yemen and the U.S. — calls which the NSA did intercept without warrants (because, contrary to Mukasey’s lie, FISA does not and never did require a warrant for eavesdropping on foreign targets) but which, for some unknown reason, the NSA failed to share with the FBI and other agencies. But the critical pre-9/11 episode Mukasey described last week is nowhere to be found in the 9/11 Report or anywhere else. It just does not exist.

In an update, Philip Zelikow, the 9/11 Commission Executive Director, seems to confirm that the commission never heard about any such call. So did it actually happen?

To be honest, it’s not 100% clear to me from the wording of Mukasey’s answer whether he’s talking about a specific incident or whether he was making up an example on the fly of the kind of call that he says we missed before 9/11. In other words, was he lying in general, or was he lying in particular? Or was he talking about something other than a specific phone tap — like, say, the ability to data mine every call from Afghanistan to the U.S.? Perhaps some enterprising reporter with access to the Attorney General will ask him.