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Tilting at Windmills

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April 3, 2008
By: Kevin Drum

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.

Kevin Drum 1:36 PM Permalink | Trackbacks | Comments (40)

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Comments

My fundamental question: in light of their available option with FISA for the gov't, was why would they be so adamant regarding this effort in the first place? What is the incentive?

Posted by: Boorring on April 3, 2008 at 1:44 PM | PERMALINK

There is no consequence to lying to reporters or to Congress. It would be surprising if he didn't just make stuff up. The tears were a nice touch.

Posted by: AJ on April 3, 2008 at 1:46 PM | PERMALINK

Maybe it's just impossible to make an honest case for the Administration's surveillance activities, but I'll stick my neck out here and generalize: A dishonest attorney general is not a good attorney general. As a matter of fact, a dishonest attorney is not a good attorney.

Posted by: Boolaboola on April 3, 2008 at 1:54 PM | PERMALINK

Perhaps some enterprising reporter with access to the Attorney General will ask him.

Perhaps it will rain barbecued ribs.

Posted by: Quaker in a Basement on April 3, 2008 at 1:58 PM | PERMALINK

Perhaps it will rain barbecued ribs.

That would be sooooooo delicious!

Posted by: drjimcooper on April 3, 2008 at 2:00 PM | PERMALINK

*.

Posted by: mhr on April 3, 2008 at 2:06 PM | PERMALINK

If such a phone call did happen, and there was no wire-tap of it, how does Mukasey know about it to be talking about it now?

Posted by: Robert Earle on April 3, 2008 at 2:14 PM | PERMALINK

"Liberals will deny that there is any such thing as muslim fanatics and if there were, that they mean the United States any harm."

And conservatives will continue to fail to address the fundamental underlying question, which is:

Exactly what part of existing FISA law would prevent the Administration or any of its agencies from going ahead with a wiretap in such a pressing circumstance, then going to the utterly sympathetic FISA court after the fact for approval/warrant if in fact said circumstance was actually pressing? In other words, exactly what portion of existing FISA law is so restrictive that the Bush Administration needs to break this law and/or change it?

Why do conservatives hate America as outlined in the US Constitution and subsequent constitutionally-compliant law?

Posted by: speedtats on April 3, 2008 at 2:20 PM | PERMALINK

Robert, that's an easy one...two scenarios:

1. Mukasey knew about this phone call because it WAS wiretapped and then the Administration did nothing, thereby if not causing than at least allowing the needless and preventable deaths of thousands of Americans.

2. Mukasey is making it up and is thus lying.

Has to be one or the other. You decide if you'd rather believe that an American Administration deliberately allowed the deaths of Americans for whatever reason, or if we've got another lying partisan for an AG.

Posted by: speedtats on April 3, 2008 at 2:25 PM | PERMALINK

Exactly my point

Posted by: Robert Earle on April 3, 2008 at 2:27 PM | PERMALINK

That Mukasey was able to tell this misleading anecdote makes him a liar... that he was able to get choked up over it makes him a damn good liar!

Posted by: Jim G on April 3, 2008 at 2:31 PM | PERMALINK

If such a phone call did happen, and there was no wire-tap of it, how does Mukasey know about it to be talking about it now?

Because said m00zlim terraist called the NSA and politely told them something along the lines of "Hey spyd00dz! In 30 secs - from this very phone whose Caller ID is on your monitor right now - I'm calling my homies in da states to chat in details about my evil plan to murder thousands of Americans, but damned if I'll tell ya who I'm gonna call. Now suck on that".

And of course the spyd00dz went "Dang! We're sooo fucked, no way in hell we can intercept that call legally, like never! So we'll just have to abstain." And abstain they did - but they did meticulously make a note of the incident on paper and put it in one of those little "When in severe need of inducing fright into the general public, break the glass and utilize the contents" glass thingies on the wall.

Gotta have gone down that way ... ;-)

Regards.

Posted by: Ole on April 3, 2008 at 2:34 PM | PERMALINK

Its remarkable that we can ponder whether the AG is lying "in general" or lying "in particular" about a matter of public importance. One wonders what the next eight months will bring.

Posted by: rk on April 3, 2008 at 2:44 PM | PERMALINK

Can he possibly be so confused that he is conflating a *call which WAS intercepted (on 9/10) but not TRANSLATED in time?

It would be entirely consistent for these Korsakoff ridden relics to transform their bureaucratic failure into a claim of justification for more power.

*www.cnn.com/2002/US/06/20/911.warning/

Posted by: jollyroger on April 3, 2008 at 2:47 PM | PERMALINK

Mukasey is a creepy man who looks as if he just walked out from a conference of funeral directors.

He does not deserve the benefit of doubt, not because of thwe way he looks, but because of his unwavering support for extra-constitutional activities of his superiors.

Posted by: gregor on April 3, 2008 at 2:48 PM | PERMALINK

The point, of course, is that things like the Geneva conventions, habeas, & safeguards against unreasonable searches & seizures are no match for fictitious examples & remote hypotheticals. Mukasey's is just the latest example of their shorter version: "You'll never be safe until I run out of imaginary scenarios with which I can scare the piss out of you." Civil rights -- and especially human rights -- are for chumps.

Surrender now, Dorothy.

Posted by: junebug on April 3, 2008 at 2:49 PM | PERMALINK

It was not a specific claim of a phone call, and it was not generated extemporaneously, "on the fly". It was carefully constructed, just like, "we don't want the wake-up-call to be a mushroom cloud" which also didn't specifically claim Saddam had an ongoing nuclear program, or saying "people like Saddam Hussein hit the US on 9/11".

They are carefully crafted statements meant to generate a misperception in the target listener. The fact that they are so carefully arranged, without technically lying, actually proves they are intentionally misleading, and not off-the-cuff.

Politicians being sick nasty manipulators of speech and emotion is bad enough, it's bad enough to use the memory of a very real tragedy in this way. It would probably get enough outrage, if we had a real media willing to take on this mythology. (But scaring people over terrorism is too lucrative to the media's bottom line and aligns with the media's own ideological biases).

But misleading statements aren't new, really. The part that should hang the guy is where claims FISA didn't allow such eavesdropping in the past. He's the Attorney General of the United States. Tasked with fighting terrorism. He can't claim he doesn't know this basic fact. He's caught in an outright lie.

Where is the fucking outrage?

Posted by: luci on April 3, 2008 at 3:02 PM | PERMALINK

Well done, Robert Earle.

It's akin to (favorite story alert) Perot's watch dog that chased off 4 armed men. It's wonderful to think about that dog giving a detailed report (including specs on the arms they were carrying), but (let's be frank) I don't think it happened the way Perot reported it. Mukasey told a whopper. A big fat egregious whopper.

Posted by: Jeffrey Davis on April 3, 2008 at 3:03 PM | PERMALINK

In other words, was he lying in general, or was he lying in particular?

As Greenwald points out, either Mukasey is a lying sack of shit just making this stuff up or the Bush administration was grossly negligent pre-9/11, never acted on these calls, and should never be trusted with national security. Which is it?

And when exactly is the "liberal" media going to cover this story?...[crickets]...MSM?...hello?...anyone? Oh, that's right, the "liberal" media is too busy analyzing whether Obama's bowling ability qualifies for the Presidency.

Posted by: ckelly on April 3, 2008 at 3:27 PM | PERMALINK
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.

The idea of "the government really wants to know" exception to the warrant requirement of Fourth Amendment would be amusing if it wasn't coming from the Attorney-General of the United States.

Forget fulfilling the oath to uphold the Constitution required of all public officers, is it too much to ask that the Attorney-General at least pretend to have a passing respect for and familiarity with the Constitution and the general concept of limited government?

(This is, of course, all beside the question of whether he is painting a dubious interpretation of how a counterfactual proposition would have worked out as if it were a historical fact that was part of the chain of events culminating in the failure to prevent the 9/11 attacks.)

Posted by: cmdicely on April 3, 2008 at 3:51 PM | PERMALINK
As Greenwald points out, either Mukasey is a lying sack of shit just making this stuff up or the Bush administration was grossly negligent pre-9/11, never acted on these calls, and should never be trusted with national security. Which is it?

I think the most likely answer, based on all we know, is that Mukasey is a lying sack of shit just making this stuff up and the Bush Administration was grossly negligent pre-9/11, failed to act on a variety of intelligence (because, as then-National Security Advisor Rice explained to the 9/11 commission, no one told them they should do anything), and should never be trusted with national security.

Posted by: cmdicely on April 3, 2008 at 3:54 PM | PERMALINK

Al Franken used to talk about the Bureau of Rush's Butt as a source of (mis)information on the Limbaugh program. Perhaps there is a similar facility in Mukasey's rear end.

But I think cmdicely at 3:54 has it right. The answer is lying and negligence.

Posted by: thersites on April 3, 2008 at 4:17 PM | PERMALINK

>"...either Mukasey is a lying sack... or the Bush administration was grossly negligent pre-9/11, never acted on these calls... Which is it?"

There is a third option.

The third option is that certain elements in the intelligence community, our 'allies', and parties inside the Bush administration knew about 9-11 in advance and either did nothing or obstructed the distribution of information deliberately.

Consider the following facts:

1) Ariel Sharon abruptly cancels a planned New York trip scheduled for 9-11.
2) 60+ Israeli Mossad agents were in the USA during the summer of '01. Some of the agents wre 'coincidentally' living in the same apartment complex where the hijackers were living while they received flight training. The agents were expelled en masse from the US several weeks after the attack. Fox News prepared a two-part investigative report about this... part one was shown one timeslot... then the reports completely disappeared... including purging any records of their existence from the FOX web site.
3) A group of Mossad agents were in position to film the towers as they went down from the roof of a 'fake' business located across the river. The group was observed dancing and singing as the towers fell. A bystander saw them and called police who later arrested them entering the New Holland tunnel in a white van. (The van tested positive for explosives). A few days later they were expelled from the US without explanation). The 'owner' of the warehouse was also questioned briefly and then (inexplicably) allowed to leave the US for Israel (again without explanation). Capping ot off, last year one of the Mossad agents involved in the incident appeared on an Israeli TV show... and was asked what they were doing on the warehouse roof with sophisticated video equipment. The answer was: "We were there to film the towers come down"... [you can probably see the clip on YouTube unless it's been pulled by now].
4) Willie Brown receives a mystery phone call call telling him to stay away from New York on the morning of September 11th. Wisely, he stays home.
5) US govt pulls high-ranking officials off commercial airline flights in late summer '01.
6) Inexplicable lack of action over the FBI agent's discovery that suspicious persons were receiving flight training on commercial airliners... oddly the training doesn't include takeoff and landing procedures.

Above is all fact... not tinfoil-hat ravings about hidden explosives, controlled demolitions, missile attacks (etc). Just facts.

Is this all a big coincidence or was it a conspiracy? You make the call.

Posted by: Buford on April 3, 2008 at 4:17 PM | PERMALINK

Above is all fact... not tinfoil-hat ravings

Sure. That's what the government wants us to think!

Posted by: Quaker in a Basement on April 3, 2008 at 4:49 PM | PERMALINK

Every time the AG speaks aka lies, I thank Schumer and Feinstein for their amazing wisdom.

Posted by: jen flowers on April 3, 2008 at 4:52 PM | PERMALINK

Until Bush became president I didn't think we'd ever see an attorney general as bad as Edwin Meese, who really had no idea what the 4th amendment was about, but we've had three in a row who are more dangerous, if not as dumb.

Posted by: anandine on April 3, 2008 at 5:35 PM | PERMALINK
They are carefully crafted statements meant to generate a misperception in the target listener. The fact that they are so carefully arranged, without technically lying, actually proves they are intentionally misleading, and not off-the-cuff.
With this administration's AGs (and with most other administration mouthpieces), the general procedure is: (A) parse the statements carefully noting all possible interpretations (B) rank the possible interpretations in most-outrageous to least-outrageous order (C) pick the most outrageous interpretation - it is probably the correct one


Posted by: Bill Arnold on April 3, 2008 at 6:05 PM | PERMALINK

"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 a point of fact, the call that came before 9/11 didn't come from Iraq. It came from Afghanistan. Or Saudi Arabia. Or Egypt. But not from Iraq.

This is just one more attempt by the Bush administration to conflate Saddam's Iraq with Al Qaeda. Don't they know any other tricks? This one's getting pretty stale.

Posted by: Punditbot on April 3, 2008 at 6:22 PM | PERMALINK

It seems apparent to me, but unremarked upon in the media, that the only rationales for this administration insisting that they need a freer hand in gathering information that they could legally gather before are 1) to make a political issue (i.e., its 100% BS) pr 2) they cannot (or don't dare) present their "evidence" for probable cause because it was gathered illegally, using torture, or consisted mostly of third hand hearsay. There was even some ex-DOJ officials who explicitly made the claim that the pobable cause standard was too restrictive, until they realized that they didn't even need to make a rational argument for expanding FISA (which the administration initially denied wanting or needing) because the press gave them a pass on the actual factually inconsistencies of their other 'arguments.'

Posted by: jhm on April 3, 2008 at 6:55 PM | PERMALINK

> It seems apparent to me, but unremarked upon in
> the media, that the only rationales for this
> administration insisting that they need a freer
> hand in gathering information that they could
> legally gather before are 1) to make a political
> issue (i.e., its 100% BS) pr 2) they cannot (or
> don't dare) present their "evidence" for probable
> cause because it was gathered illegally, using
> torture, or consisted mostly of third hand
> hearsay.

You left out (3): Karl Rove started getting copies of domestic intelligence, both legally and illegally gathered, and using it to destroy his/Bush's political opponents from the day Bush took office. And that is starting to look increasingly likely to me.

Of course it could be a combination too.

Cranky

Posted by: Cranky Observer on April 3, 2008 at 7:23 PM | PERMALINK

Not to mention this stupid shit.

Officials "shouldn't need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States

Jeebus, it's probably just Blackwater or Hallibuton on the phone, I mean, if it's from IRAQ.

Attorney General Michael Mukasey, that nasty, mangy, completely disingenuous BSer doesn’t mention Pakistan at all. Yeah, bin Laden is still out there, somewhere in Pakistan BUT binny certainly is not anywhere in Iraq.

AG Mukasey is really beginning to sound every bit as stupid, dumb and lazy, as well as completely unprofessional, and completely unqualified as the previous kiss-Bush-ass AG, Gonzales. It's quite clear that Mukasey is a pig that only Karl Rove could love.

Maybe Mukasey just doesn’t really recall what Rove told him to say – it might work better if he feigns dementia completely and drool a little bit on his shirt, seeing as how he is almost too old for the cushiony position that, like I said, looked like a favoritism retirement position to me, the sort of thing the GOP exclusively cultivates for unqualified people, that places folks based purely favoritism methods.

Anymore, the GOP is just another name for outhouse.

Posted by: me-again on April 3, 2008 at 7:30 PM | PERMALINK

I'd like to see Mukasey documented telling the TRUTH for once. (possibly impossible)

Posted by: Mike Meyer on April 3, 2008 at 7:40 PM | PERMALINK

"Perhaps some enterprising reporter with access to the Attorney General will ask him."

An enterprising reporter with access is as an oxymoronic job description as I've ever seen.

Posted by: jm on April 3, 2008 at 8:25 PM | PERMALINK

Mukasey is a creepy man who looks..

Mukasey looks like a middle aged Himmler.

Posted by: Brojo on April 3, 2008 at 9:08 PM | PERMALINK

Evidently Hillary's Tiny Tears routine has started to catch on, God help us. Prepare yourself for an epidemic of sensitive White House officials and military men blubbering whenever Congressmen ask them upsetting questions during hearings. (Come to think of it, we already had that once with Ollie North, but I was hoping everyone had forgotten about his routine by now.)

Posted by: Bruce Moomaw on April 3, 2008 at 11:28 PM | PERMALINK

"In other words, was he lying in general, or was he lying in particular?"

LOL, well said.

Posted by: Nancy Irving on April 3, 2008 at 11:30 PM | PERMALINK

"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."

Um, huh???

But this isn't true at all. FISA has always prohibited "electronic surveillance", which is defined as "the acquisition by an electronic, mechanical, or other surveillance device of the
contents of any wire communication to or from a person in the United States, without the
consent of any party thereto".

What is Greenwald talking about? I don't get it.

Posted by: Jack on April 4, 2008 at 12:10 AM | PERMALINK

No, Jack.

FISA didn't and doesn't "prohibit" surveillance.

FISA regulates surveillance of "U.S. persons" and of non-"U.S. persons" differently.

For instance, the definition of "agent of a foreign power" is different depending on whether or not a possible agent is or isn't a "U.S. person".

And FISA has never simply defined a "U.S. person" as a "person in the United States".

Posted by: Goober Pease on April 4, 2008 at 1:52 AM | PERMALINK

If anyone noticed, Mukasey also confused Iraq and Afghanistan.

First, he states "when somebody with a phone in Iraq picks up a phone and calls somebody in the United States," alluding to this having happened before 9/11, but then says "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."

No wonder Mukasey lost his composure. Maybe he's not used to lying on the orders of the Bush administration and he had a moment where his conscience weighed in, knowing that he'd been ordered to try to link the al Qaeda attacks on 9/11 to both Iraq and Afghanistan. Or maybe he's trying to suggest that some member of al Qaeda in Iraq might call someone in the United States, even though there wasn't an al Qaeda in Iraq before Bush launched his preemptive, unprovoked attack on Iraq in March 2003. Who knows. Maybe someone in Congress will get to the bottom of Mukasey's twisted explanations.

Posted by: The Oracle on April 4, 2008 at 3:52 AM | PERMALINK

Bruce,

So Hillary's one batch of unshed tears is equated with a toy, a doll, and a movement in politics? What about Romney? He actually cried repeatedly. To mention her and not him is either sexism or faulty memory. What I would gather from both examples is that any show of emotion may be effective in the short term but not in the long term.

Posted by: jen flowers on April 4, 2008 at 10:11 AM | PERMALINK




 

 

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