It wasn't in front of the Judiciary Committee, but it might be a portent of things to come, given Leahy's interest in talking to Mukasey. Yesterday he appeared at a budget hearing in the Subcommittee on Commerce, Justice, Science, and Related Agencies, on which Leahy and Feinstein sit. They each had more than budgets in mind.
Leahy asked Mukasey about his false assertion in a recent speech that the U.S. had received intelligence about calls from a "safe house in Afghanistan" just prior to 9/11, but weren't able to act upon it because of FISA laws:
On his third question, Leahy asked Mukasey to clarify a recent comment he made in San Francisco where he implied that the failure to listen in on a phone call from Afghanistan to the United States prior to the Sept. 11, 2001 attacks had cost 3,000 lives.
"Nobody else seems to know about this. Can you tell me what the circumstances were and why?" Leahy said.
"The phone call I referenced relates to an incoming call that is referred to in a letter in February of this year to House Intelligence Committee Chairman [Silvestre] Reyes [(D-Texas)] from Director of National Intelligence Mike McConnell and I," Mukasey said.
"One thing I got wrong. It didn’t come from Afghanistan. I got the country wrong," Mukasey continued without specifying the country where the call originated.
Mukasey, who used the phone call as an example to highlight the intelligence shortcomings before 9/11, did not explain why he included the comment to argue for expanded surveillance powers in a question-and-answer session after his speech on March 27.
"No FISA [Foreign Intelligence Surveillance Act] application should have been necessary to monitor a foreign target in a foreign country," Leahy reminded Mukasey. "We didn’t need it then. And we didn’t need it today."
So what was Mukasey talking about and how did it have anything to do with FISA? We still don't know. In the letter he references, there is this:
We have provided Congress with examples in which difficulties with collections under the Executive Order resulted in the Intelligence Community missing crucial information. For instance, one of the September 11th 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.
This explanation has come up before, when the DoJ responded to Glenn Greenwald's inquiry, and it failed under the scrutiny of both Glenn and emptywheel. What that Joint Inquiry concluded was that, while there may have been problems with intelligence agency coordination, the problem was not that FISA--or any other law--prevented intelligence activities, but that NSA chose not to follow up on this lead. So Mukasey continues to evade the real points--what has this to do with FISA, and why didn't the 9/11 Commission have this information.
Feinstein had little more luck trying to pry an answer out of him as to whether the yet-to-be released Yoo memo on the Fourth Amendment has been withdrawn:
..."I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo....
[Extended back and forth in which Mukasey refused to directly answer the question]
...Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board."
When Feinstein pronounced herself satisfied, Mukasey said, "with due respect, I don't think there's anything really new about that answer." He went on to imply that Yoo's discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. "The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."
"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.
"Without regard to the Fourth Amendment?"
"Yes."
"My understanding is that is not operative."
Because that memo has not been declassified, we don't know what was the "crucial aspect of that memo." Nor is it at all clear that the memo, like the infamous torture memo, has been withdrawn. Or whether this memo provided the legal rationale for warrantless wiretapping. What is clear is that, while he might be more adept at avoiding answering questions to Senators than his predecessor, he's no more inclined to tell the truth. But that's no reason to not haul his ass up to the Hill on at least a weekly basis to try.
There's no time like the present. Senator Leahy should schedule a hearing for Mr. Mukasey before the Judiciary Committee dedicated to just these questions.
