Yesterday, Senator Leahy asked tough questions [Audio Excerpt MP3, 2.75MB] and this morning the San Francisco Chronicle continued its investigation of the mysterious phone call that Attorney General Mukasey referenced while speaking at the Commonwealth Club in San Francisco a few weeks ago. During the questions after his speech, Mukasey said that the government:
shouldn't need a warrant when somebody picks up the phone in Iraq 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 ... 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.
Mukasey then got very emotional, and claimed the attacks of 9/11 were a direct result of this intelligence failure. In other words, the Attorney General is saying that the attacks on 9/11 could have been prevented if only our intelligence agencies had not been restricted by what he saw as unfair and unreasonable civil liberties protections. This is a gross distortion of the facts and the law, as the nation's top lawyer well knows.
The DOJ later clarified that it was an "call between an al Qaeda safe house and a person in the United States," and yesterday, Mukasey testified that the "One thing I got wrong" was that it wasn't really Afghanistan. The incident has been very controversial, and House Judiciary Committee Chairman John Conyers has sent a letter to Mukasey demanding answers.
Our legal analysis of the authority to wiretap this call follows after the break.
Pursuant to the version of the Foreign Intelligence Surveillance Act (FISA), 50 USC 1801, applicable from December 3, 1999 to October 25, 2001, no court order would be required if:
1. The surveillance occurred outside the United States. So the CIA, the NSA and other aspects of the Intelligence Community were free to tap that call in Afghanistan or any other foreign country.
2. The surveillance was of a radio communication (i.e. if the safe house was using cellular or satellite phones), regardless of location.
3. The surveillance was NOT intentionally targeting "a particular, known United States person who is in the United States."
Since the the call came from an "al Qaeda safe house" in a foreign country and the government did not "know precisely where it went," it could not have been targeting any United States person in the United States.
Thus, the government had a number of options to conduct the surveillance, and the only scenario in which FISA would even come into play would be if the surveillance was to occur on a wire facility in the United States.
Even then, under FISA prior to the October 2001 Patriot Act amendments, the Attorney General could authorize surveillance for up to 48 hours before applying for a FISA court order. The AG would need to "reasonably determine" that the target was a group engaged in international terrorism (or activities in preparation therefor), or an agent of such a group.
Under the situation described by Mukasey, the government knew that the call came from an "al Qaeda safe house." Under the government's standards, "Probable cause exists when facts and circumstances within the applicant's knowledge and of which he/she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that the proposed target of the surveillance is an agent of a foreign power."
Therefore, it would seem reasonable for the Attorney General to determine that the target in Afghanistan was an agent of al Qaeda, permitting surveillance under FISA's emergency provisions.
Accordingly, Mukasey's example shows the opposite of this point that the Foreign Intelligence Surveillance Act, as it existed prior to the Patriot Act, was sufficient to allow the government to conduct surveillance on the call.
Executive Order 12333
Faced with criticism, the Department of Justice has subsequently asserted that what Mukasey really meant was:
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.
On its face, this is not an argument for amendments or changes to FISA (such as the Protect America Act or the FISA Amendment Act of 2007), it is an argument for changes to Executive Order 12333. However, since 2001, the President did change Executive Order 12333, with Executive Orders 13284 (2003) and 13355 (2004) (FISA has also been updated since the call described by Mukasey).
Executive Order 12333 was signed by President Reagan in 1981, and provides the general framework for U.S. intelligence activities, and it also addresses electronic surveillance. "[A]gencies are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General." EO 12333, para. 2.4.
In April 2000, NSA Director General Michael Hayden testified about the procedures established by the Executive Order 12333 on the NSA:
Under E.O. 12333 and implementing regulations signed by the Secretary of Defense and approved by the Attorney General, NSA must obtain the Attorney General's approval before conducting electronic surveillance directed against a U.S. person abroad. The Attorney General must have probable cause to believe that the person is an agent of a foreign power, either an officer or employee of a foreign power, or a spy, terrorist, saboteur, or someone who aides or abets them.
As noted above, the AG would have had probable cause to believe that the person abroad was a terrorist for the phone call described by Mukasey. So, even if the target abroad, living in the safe house, was a U.S. person, the AG could have authorized surveillance under EO 12333.
Hayden also noted that, under the rules implementing EO 12333, "no information, to, from, or about a U.S. person may be retained unless the information is necessary to understand a particular piece of foreign intelligence or assess its importance." This would have prevented the NSA from retaining the information acquired if that information had no intelligence value. However, the call described by Mukasey, he asserts, would have prevented 9/11. Certainly, EO 12333 would not have prevented the NSA from retaining such as call.
Accordingly, it does not appear that either FISA or Executive Order 12333 would have prevented the government from conducting surveillance on the call described by Mukasey. Instead, the example shows that the law was sufficient, and any failure lay in the hands of the Executive Branch.