About a week ago, Attorney General Michael Mukasey was talking up the Bush administration’s surveillance efforts, and raised a few eyebrows when he
April 3, 2008

About a week ago, Attorney General Michael Mukasey was talking up the Bush administration’s surveillance efforts, and raised a few eyebrows when he got choked up while discussing 9/11 and telecom immunity.

But as my friend Sarabeth explained to me yesterday, it was the comments right before Mukasey got emotional that are probably the most important.

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.

The AG’s argument seemed pretty straightforward: a terrorist suspect called the United States shortly before 9/11. If we’d known about that call in time, we might have been able to prevent the attacks. Therefore, it’s dangerous — indeed, it could be deadly — to subject the Bush administration to safeguards and oversight when it comes to surveillance.

There are two main problems with this. First, the argument is completely incoherent. Second, it’s almost certainly premised on a transparent falsehood.
Glenn Greenwald took Mukasey’s procedural claims apart quite nicely.

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.

Was there a 9/11-related call from a terrorist safe house to the U.S. before the attacks? Apparently not. No one has heard about this alleged call before now, including The 9/11 Commission, which makes no mention of this.

It’s probably because Mukasey made it up for dramatic effect, hoping that his audience would end up agreeing with the administration’s line on FISA and telecom immunity.

It’s what people who are losing an argument do — they make stuff up. Usually, we like to think the nation’s top law-enforcement official would be above this kind of stunt, but it’s helpful to know that Mukasey is, when push comes to shove, just part of the Bush gang.

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