I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, April 18, 2008

Casey/Whitehouse letter to Mukasey

For Immediate Release

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

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

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

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

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