Dispatches from the Creation Wars

Mukasey’s Lies About FISA

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.
HL Mencken

One of the primary reasons that alternative media outlets like the Michigan Messenger exist is because the mainstream media seems to have a terrible time stating a simple truth, no matter how well supported or easily proven it may be. Far too many newspapers, magazines and TV pundit shows opperate on the premise that in order to be “balanced” or “objective” they must present the claims of two opposing sides and not take a stand on which side is telling the truth, even when the truth is, to borrow a hackneyed old phrase, as plain as the nose on their face. Because I disagree with that premise, let me counter it with this plain and simple statement: the Bush administration is lying to you.

That will come as a shock to few, of course; every government lies to its constituents and anyone who doubts that is hopelessly naive. But the lies coming from this administration about warrantless wiretaps, terrorism and the Foreign Intelligence Surveillance Act (FISA) elevate mendacity and arrogance to an art form. Hardly a day goes by without some new blatant falsehood escaping the lips of an administration official, falsehoods that are easily checked up on by any reporter — or for that matter, any citizen — with the ability to do a google search. Allow me to demonstrate.


The Bush administration has made much of the issue of telecom immunity. They have for months been demanding that Congress pass a law that gives the telecoms complete immunity from all lawsuits stemming from their cooperation with government surveillance efforts, even if those efforts are found to be unconstitutional. They’ve defended this with the repeated claim that without such immunity, the telecoms will be bankrupted by frivolous lawsuits costing “billions of dollars.” This despite the fact that the ACLU’s lawsuit on behalf of Studs Terkel and others against AT & T asks for no damages whatsoever. But that pales next to the lie that just came from Michael Mukasey, the new attorney general.

On March 27th, Mukasey gave a speech to the Commonwealth Club in San Francisco. The prepared text of his speech focused on political corruption and many news outlets reported that he had promised a crackdown on bribes and other forms of corruption. A couple of outlets mentioned that in the Q & A portion of his appearance, he was asked about the government’s surveillance efforts in the war on terror and the telecom’s cooperation in those efforts. But not a single mainstream media outlet that I can find called him on a couple of major lies he told in this regard. Like this one, reported in a positive op-ed at the Wall Street Journal:

“Forget the liability” the phone companies face, Mr. Mukasey said. “We face the prospect of disclosure in open court of what they did, which is to say the means and the methods by which we collect foreign intelligence against foreign targets.”

When I first read this, my jaw dropped. Michael Mukasey is a former Federal judge who has handled multiple terrorism cases in the past. Surely he knows that such issues would never be discussed in open court, they would be heard either in camera (literally “in chamber,” a court proceeding that takes place in private rather than in open court, almost always invoked in cases involving national security) or ex parte (proceedings where only one party, in this case the defendants in such a case, would present classified material to the judge alone, without the plaintiffs present)? Of course he knows that; he’s held many such hearings himself. He’s simply lying.

But to make the lie even more blatant, consider this: the FISA law explicitly requires that hearings to consider that sensitive information must be held both in camera and ex parte. Here’s the relevant text from the FISA act:

(f) In camera and ex parte review by district court

Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.

It doesn’t get much more clear than that. Mukasey is lying. But that’s not the only lie he told during his speech last week. In fact, the other lie is far worse for the administration’s credibility. During the Q & A, Mukasey claimed that the administration knew there was a call between an Al Qaeda safehouse in Afghanistan and someone in the US just prior to 9/11, but that FISA prevented them from intercepting or tracing the call that might have helped avoid 9/11. And he told this while getting all weepy eyed about the whole thing. The New York Sun reports the scene and the direct quote:

Attorney General Mukasey, in an emotional plea for broad surveillance authority in the war on terror, is warning that the price for failing to empower the government would be paid in American lives. 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.”

At that point in his answer, Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. “We got three thousand. … 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.

The transcription is slightly wrong there. Having listened to the audio myself (you can find it here, at about the 50:30 mark), he clearly says there “had” been such a call and is referring to a call before 9/11. But I submit to you that it was not his composure Mukasey was struggling to hold on to but his integrity. The claim that the administration was prevented from surveilling that call because of FISA is either a flat out lie or is evidence of rank incompetence on the part of those charged with such surveillance.

There are two reasons for this. The first is that the administration, if they had evidence that this particular place was an Al Qaeda safe house, they could have (and obviously should have) asked for a standing warrant from the FISA court to intercept any calls from that safe house to the United States (they would need no such warrant for any calls from that house to anywhere outside the US). Such orders are authorized by FISA and last for 120 days (and can be extended indefinitely). If the administration failed to do so, that clearly brings their competence into question.

Far more importantly, though, even without a standing order for such surveillance, there was nothing in the law to prevent them from intercepting that call and then going to the FISA court and asking for a retroactive warrant. Again, this is clearly authorized by the FISA law. Here is the relevant text:

(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that–
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

The attorney general can authorize such surveillance and then go to the FISA court within 72 hours to get a retroactive warrant. And bear in mind that the FISA court has, according to experts, denied a grand total of 3 requests for a warrant in 30 years of existence. There was nothing in the FISA law that could have legally prevented them from intercepting that call. Mr. Mukasey is lying, either about the existence of that call or about the administration being unable to intercept it.

And the reaction of the mainstream media to those lies? The Wall Street Journal’s editorialists praised Mukasey as “an Attorney General worthy of the current moment.” The New York Sun reported the fact that he got all choked up but never questioned the truth of what he said. Only the San Francisco Chronicle, as far as I’ve seen, even bothered to ask the right questions:

Mukasey did not specify the call to which he referred. He also did not explain why the government, if it knew of telephone calls from suspected foreign terrorists, hadn’t sought a wiretapping warrant from a court established by Congress to authorize terrorist surveillance, or hadn’t monitored all such calls without a warrant for 72 hours as allowed by law. The Justice Department did not respond to a request for more information.

Ironically, Mr. Mukasey in his speech quoted Teddy Roosevelt. Perhaps he should have quoted his cousin, Franklin Delano Roosevelt, or at least offered a paraphrase that seems to express the Bush administration’s approach to governance: we have nothing to sell but fear itself. And you would hear talk this blunt from the mainstream media if they hadn’t long ago transformed from government watchdog into passive lapdog, eager for a pat on the head and a scratch on the belly.