SEN. LEAHY: No, you mentioned the call. But nobody else seems to know about this. So can you tell me what the circumstances were on that and why FISA would have stopped it? Because nobody else seems to know about this call from Afghanistan you talked about.
We do know about the Department of Justice failing to even listen to their own FBI agents who told them about these hijackers who were learning to fly. Agent Bill Kurtz, among others, and told we've got this under control. We do know that the Department of Justice wanted to cut the budget on counterterrorism on September 10th. We do know that a lot of those signals were missed, but nobody seems to know about this phone call you talked about.
ATTY. GEN. MUKASEY: The phone call I referenced in -- by the way, it was not in the speech; it was in the question-and-answer session following the speech -- relates to an incoming call that is referred to initially -- not initially -- but is referred to in a letter dated February 22nd of this year from the DNI and me to Chairman Reyes of the House Intelligence Committee, with copies to the principal members and the chairman of the Senate Intelligence Committee.
The underlying reference is contained in a joint intelligence report of the House Intelligence Committee and the Senate Intelligence Committee. And I'm happy to provide you with a copy of that reference.
SEN. LEAHY: Would you, please?
ATTY. GEN. MUKASEY: The one thing I got wrong was the geography. It did not come from Afghanistan. I got the country wrong. But other than that, it was spot-on. And I will be happy to provide you with the page.
And the point to be made there was not that we could not have monitored it under FISA, but rather that no FISA application should have been necessary to monitor a foreign target in a foreign country.
I was speaking generally to the desirability of getting a bill passed. As you know, we've had a lot of trouble with that. But I'd be happy to get you the reference.
You're right. It's not in the 9/11 --
SEN. LEAHY: And we don't need FISA to monitor a foreign source --
ATTY. GEN. MUKASEY: Then you shouldn't need it.
SEN. LEAHY: But we didn't then, and we don't today.
The San Franciso Chronicle broke this story and in an update, finds that Mukasey seems to misunderstand the law.
Mukasey asked to explain terror call remarks
Bob Egelko, Chronicle Staff Writer
Friday, April 11, 2008
Justice Department spokesman Peter Carr issued a statement saying Mukasey "has referred to this before." It came in a letter Mukasey and Michael McConnell, the director of national intelligence, sent to the chairman of the House Intelligence Committee in February urging passage of legislation to extend the surveillance program.
The letter said one of the hijackers, while living in the United States, had "communicated with a known overseas terrorist facility." The letter didn't describe the call any further but asserted it had been mentioned in an unclassified section of the 2003 congressional report - which, as others noted, contained no apparent reference to a call from Afghanistan.
Because the government, in monitoring that call, relied on a 1981 executive order by President Ronald Reagan that focused on overseas communications, "the intelligence community could not identify the domestic end of the communication" before Sept. 11, Mukasey and McConnell wrote.
But the executive order would have allowed the government to wiretap such a call, said Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, a privacy-rights group representing phone customers who have sued over the surveillance program. He noted that the order allowed intercepting calls to the United States if the attorney general had probable cause to believe the U.S. recipient was a terrorist - a standard that easily could have been met, Opsahl said, for any message from an al Qaeda safe house.
He said the government also could have listened to the call under the Foreign Intelligence Surveillance Act, which allowed wiretapping of suspected terrorist communications from abroad for up to 48 hours - a period since extended to 72 hours - before a warrant was required from a special court that virtually always grants such requests.
Conyers' letter cited the same law and said Mukasey's San Francisco statement "appears to suggest a fundamental misunderstanding of the federal government's existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11."
An expert on surveillance law also noted that, if the government needed only to identify the U.S. destination of the call, it could have legally recorded the phone number with a pen register, a device that doesn't require wiretapping authority.
While the letter by Mukasey and McConnell raised legitimate questions about the authority the government needs to eavesdrop on some communications to the United States, it failed to explain why the call couldn't have been monitored, said Orin Kerr, a George Washington University law professor who worked on criminal surveillance at the Justice Department from 1998 to 2001.
Asked for clarification, Carr, the Justice Department spokesman, said inquiring whether current law could have been used to intercept this call "misses the central point" - which, he said, is that intelligence professionals should not need court approval before targeting foreigners.
1Federal News Service
April 10, 2008 Thursday
HEARING OF THE COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES SUBCOMMITTEE OF THE SENATE APPROPRIATIONS COMMITTEE;
SUBJECT: FISCAL YEAR 2009 APPROPRIATIONS FOR THE JUSTICE DEPARTMENT;
WITNESSES: ATTORNEY GENERAL MICHAEL MUKASEYEnhanced Coverage LinkingATTORNEY GENERAL MICHAEL MUKASEY -Search using:
Biographies Plus News
News, Most Recent 60 Days;
CHAIRED BY: SENATOR BARBARA MIKULSKI Enhanced Coverage LinkingBARBARA MIKULSKI -Search using:
Biographies Plus News
News, Most Recent 60 Days
(D-MD);
LOCATION: 192 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.
SECTION: CAPITOL HILL HEARING
LENGTH: 9697 words
Posts
No comments:
Post a Comment