FISA Fight: Watch Mukasey Spin

That Mukasey has been trying to exploit 9/11 in order to make a case for a bad FISA bill, including retractive amnesty, seems to be no longer in question.

But now he, and his DoJ staff, seem to be digging an ever deeper hole. A brief recap: in remarks to the Commwealth Club last week, Mukasey basically said that FISA laws prevented the intelligence community from following through on "a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States." 9/11 Commission Director Zelikow hadn't heard this story, nor had Judiciary Chair Conyers. This obviously gave rise to the question, what in the hell was Mukasey talking about--another intelligence failure by the administraiton in the days before 9/11? A story made up out of whole cloth to try to justify gutting FISA?

Glenn followed up with the DoJ attempting to get clarification. Here's the response:

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.

So what does this clarify in regards to Mukasey's comments last week? Nothing. In the letter, they specifically say that the call was made from inside the U.S., but Mukasey said the call was made from Afghanistan, a detail that is important in terms of the law. Also note that the letter stresses that it was the Reagan era Executive order 12333 and not FISA. In fact, EO 12333 has nothing to do with FISA.

This defense from the DOJ hardly strengthens Mukasey's case against FISA, as Glenn notes, because the Congressional Joint Inquiry referenced concluded something very different:

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.

Emptywheel has more investigation here, and reaches a similar conclusion:

In any case, it's ultimately not clear whether the Joint Inquiry--and therefore both intelligence committees in Congress--learned any significant detail about the call Mukasey describes, at least not before 2002. If they did, though, they clearly have a dramatically different understanding of why NSA didn't fully access that call than Mukasey currently does. And if the Joint Inquiry was told all the details about that call, then Mukasey is, once again, claiming FISA prevented NSA from doing something that it in fact did not prevent.

What this whole episode has revealed, and continues to reveal is that this administration--particularly the point men McConnell and Mukasey--will say anything to get the Rockefeller/Cheney bad FISA bill passed. Gratuitously exploiting 9/11 is just par for the course. The question now is whether Democrats in Congress, especially Jay Rockefeller who has carried their intelligence water for far too long, will continue to fall for it.