Democrats Blast Mukasey for 9/11 Call Remarks

Bob Egelko
SF Chronicle
April 15, 2008

(04-14) 17:51 PDT Washington -- Attorney General Michael Mukasey's assertion that an unmonitored terrorist phone call before the Sept. 11 attacks showed the need for more government wiretapping authority drew a scathing retort Monday from Democrats on the House Judiciary Committee, who accused him of rewriting history and ducking questions.

In a March 27 appearance before the Commonwealth Club in San Francisco, Mukasey said the 2001 terrorist attacks could have been prevented if the government had been able to determine the destination of a call from a known safe house in Afghanistan to the United States.

In a written response to questions from Judiciary Committee leaders, who said such a phone call had never come up in post-Sept. 11 investigations, Mukasey said Thursday that the call hadn't come from Afghanistan, but from another nation he declined to name. But he said the incident still showed that Congress was interfering with efforts to monitor terrorist communications, with catastrophic results.

On Monday, committee Chairman John Conyers, D-Mich., and two Democratic colleagues issued a statement saying they wanted "answers, not public relations spin."

In an accompanying letter to Mukasey, they said the phone call he now appears to be describing was reviewed in 2003 by congressional intelligence committees, which found that the National Security Agency had intercepted the message but failed to relay it to other intelligence agencies.

"The failure to utilize the information in this call had nothing to do with limitations in (the Foreign Intelligence Surveillance Act), contrary to what your March 27 speech appeared to suggest," the House members said. "Instead, the problem was NSA's narrow interpretation of its authority," a policy that the agency later changed on its own.

"Far from supporting the administration's position on reform of the Foreign Intelligence Surveillance Act, the incident referred to in your March 27 speech leads to precisely the opposite conclusion," said the letter, signed by Conyers and Reps. Jerrold Nadler, D-N.Y., and Bobby Scott, D-Va., chairmen of the subcommittees on the Constitution and crime.

They also said Mukasey's letter did not answer one of their central questions: whether U.S. intelligence agencies could have monitored the phone call under a provision in the surveillance law that allowed wiretapping without a warrant for up to 48 hours in an emergency. That period has since been increased to 72 hours.

Instead of responding to their inquiry, the House members said, Mukasey's letter launched into a general discussion of the warrant requirement, found it too cumbersome, and concluded that the Judiciary Committee was questioning the need to modernize the surveillance law. The 30-year-old law was enacted in the aftermath of the Watergate scandal.

The attorney general's conclusion was "disingenuous at best," the House members wrote, because the House has passed a bill that would broaden federal agents' authority to intercept messages between U.S. residents and suspected foreign terrorists, with limited court review.

President Bush has promised to veto the House bill because it would not grant retroactive immunity to telecommunications companies that have shared their records with the government. The Senate has passed a version that would protect the companies from several lawsuits that have been consolidated before a federal judge in San Francisco.

"The administration's refusal to engage in meaningful discussions with House Democrats on (Foreign Intelligence Surveillance Act) reform has become untenable," Conyers and his colleagues wrote. "The time has come for meaningful negotiations on this important subject."

Justice Department spokesman Peter Carr said the agency was reviewing the letter.

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