April 17, 2008

Casey, Whitehouse Urge Mukasey to Correct Remarks on FISA Safeguards

WASHINGTON, D.C.—U.S. Senators Bob Casey (D-PA) and Sheldon Whitehouse (D-RI) sent a letter to U.S. Attorney General Michael Mukasey expressing concern over a statement he made, which appears to be inaccurate, regarding Foreign Intelligence Surveillance Act (FISA) safeguards. In the letter, Senators Casey and Whitehouse asked Attorney General Mukasey to correct remarks he made on March 27, 2008 in San Francisco, CA that implied that FISA safeguards may have stopped the U.S. government from preventing the 9/11 terrorist attacks. 

“I was disappointed to hear our Attorney General convey the erroneous and grossly misleading impression that FISA due process safeguards prevented the U.S. government from intercepting Al Qaeda communications that may have stopped the horrific 9/11 attacks. Not only did the Attorney General not get his facts straight, he was only the latest Administration official to inappropriately use the tragic events of September 11th to advocate for a policy change. It is time for senior Administration officials to stop blaming legal safeguards which only serve to protect the rights of American citizens.”

“It’s troubling that Attorney General Mukasey has added his name to the growing list of Bush administration officials who have suggested – incorrectly – that FISA stood in the way of intelligence collection that could have prevented the September 11th attacks,” said Whitehouse, a member of the Senate Intelligence and Judiciary Committees and former state and federal prosecutor. “Beginning last August, this administration has tried to railroad Congress and the American people into accepting changes to FISA that unnecessarily violate Americans’ privacy. We have been working hard to put this right, and I hope the President and the administration will work with us, rather than against us.”

Full text of the letter is below:

Dear Attorney General Mukasey,

We write you today out of concern that recent public remarks you made in San Francisco on March 27th convey the impression that FISA safeguards prevented the U.S. government from intercepting Al Qaeda communications which may have helped prevent the horrific 9/11 attacks.

During the question and answer session following a speech to the Commonwealth Club, defending the Administration’s recommendations to revise the FISA statute, you stated,

“We knew that there had 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. … You’ve got 3000 people who went to work that day, and didn’t come home, to show for that.”

However, former Congressman Lee Hamilton, the Vice Chairman of the 9/11 Commission, and Dr. Philip Zelikow, the Executive Director of the 9/11 Commission, have both stated that they are unaware of the existence of any such phone call prior to the 9/11 attacks. Congressman Hamilton asserted, “I am unfamiliar with the telephone call that Attorney General Mukasey cited in his appearance in San Francisco on March 27. The 9/11 Commission did not receive any information pertaining to its occurrence.”

In a subsequent appearance last week before a Senate Appropriations subcommittee, you responded to a question from Judiciary Chairman Leahy by admitting that this phone call “didn’t come from Afghanistan” and then asserting this phone call was referenced in a February 22, 2008 letter that you and Admiral Michael McConnell, Director of National Intelligence, sent Congressman Silvestre Reyes, the Chairman of the House Permanent Select Committee on Intelligence. That letter stated the following:

“We have provided Congress with examples in which difficulties with collections under [Executive Order 12333] resulted in the Intelligence Community missing crucial information. For instance, one of the September 11 hijackers communicated with a known overseas terrorist facility while he was living in the United States. Because that collection was conducted under Executive Order 12333, the Intelligence Community could not identify the domestic end of the communication prior to September 11, 2001, when it could have stopped that attack.”

Your remarks in San Francisco, given the subsequent denials by Congressman Hamilton and Dr. Zelikow, are troubling. Our understanding is that it is patently untrue that FISA safeguards to protect due process rights for American citizens prevented the U.S. government from surveillance of communications between an Al Qaeda safe house and a suspected foreign terrorist in the United States. As the Congressional Joint Inquiry on the 9/11 attacks established in its final report in December 2002,

“Consistent with its focus on communications abroad, NSA adopted a policy that avoided intercepting the communications between individuals in the United States and foreign countries. NSA adopted this policy even though the collection of such communications is within its mission and it would have been possible for NSA to obtain FISA Court authorization for such collection. … This further evidences the slow response of the Intelligence Community to the developing transnational threat.”

In your exchange with Chairman Leahy on April 10th, you acknowledged that the U.S. government could have monitored this phone call under the existing provisions of the FISA statute. Indeed, if there was not sufficient time to obtain a FISA warrant, emergency FISA procedures as of September 2001 would have permitted 24 hours of surveillance without a warrant. Finally, the February 22nd letter states that a Presidential Executive Order, not the FISA legislation, was the governing authority that supposedly frustrated interception of this pre-9/11 phone call.

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.


Robert P. Casey, Jr., United States Senator
Sheldon Whitehouse, United States Senator


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