Mukasey's 'non responsive' explanation of pre-9/11 intercept criticized

The Justice Department has acknowledged that Attorney General Michael Mukasey was mistaken when he told a San Francisco crowd that intelligence agencies couldn't trace a pre-9/11 phone call from Afghanistan to the United States.

Whether he was deliberately lying or simply misinformed is still an open question, but the administration is sticking to the general arguments Mukasey outline, provoking intense furor from House Democrats.

Mukasey's deputy said the attorney general was referring to a phone call placed not from Afganistan but another unidentified country before the attacks of Sept. 11, 2001. In an April 10 letter to members of the House Judiciary Committee, Deputy Assistant Attorney General Brian Benczkowski stuck to the general line being advanced by Mukasey and others in the Bush administration -- that limitations on foreign intelligence collection within the US meant to protect Americans civil liberties hindered efforts to detect the 9/11 plot before it happened.

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The comments, and subsequent reaction to them, come as Congress and the White House spar over how to properly update the Foreign Intelligence Surveillance Act, which was enacted in 1978 after Congress learned that the nation's intelligence apparatus had been turned on Americans. President Bush has pushed for broad authorities for the National Security Agency to eavesdrop on calls involving US persons, while House Democrats have sought a more measured approach that provides extra oversight and civil liberties' protections.

Mukasey's comments, Benczkowski said, were in reference to an incident that was referred to in an earlier letter to House Intelligence Committee Chairman Sylvestre Reyes.

Benczkowski argued that compliance with FISA, which only applies to American, not foreign, targets, "comes at the price of diverting analysts from their primary purpose of tracking terrorist and other foreign threats."

In a scathing response to Benczkoski's letter, Judiciary Chairman John Conyers and others on the committee didn't quite call "bullshit" on the Justice Department, but they came about as close as possible as one can when engaging in the overly reverential art of correspondence between government officials.

The the extent that your response set forth an argument for the PAA or the Administration's preferred version of FISA reform, it was non-responsive to our request for information. Based on the clarifications of the April 10 letter, we understand that the answer to our actual question was that, in fact, then-existing FISA provisions would have allowed the interception and dissemination of the phone call, but that it was the NSA's then-existing narrow interpretation of Executive Order 12333 that was the problem. Please explain promptly if that is not the case

Salon's Glenn Greenwald, who has been closely covering the FISA debate, notes that another letter from Sens. Bob Casey (D-PA) and Sheldon Whitehouse (D-RI) further criticizes Mukasey's statements.

Regrettably, since well before you became Attorney General, senior Administration officials have made questionable assertions about FISA safeguards hampering the ability of our intelligence community to detect terrorist threats. They have advanced the incorrect impression that unnecessary legal safeguards allowed Al Qaeda operatives to plot the most deadly terrorist attack in American history. It is regrettable that you have now joined this pattern. Based on our regard for your office, and the principle that public debate over political issues should be based on facts, we urge you to correct the remarks you made on March 27th in San Francisco.

"There is simply no avoiding the fact, as Casey and Whitehouse make clear, that Mukasey simply lied in his speech in order to exploit the 9/11 attacks for political gain," Greenwald writes regarding the recent letters. "Needless to say, lying that way is tawdry and reprehensible, but it's not a crime and Mukasey isn't going to be prosecuted for it. "