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. 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.
Glenn Greenwald responds:
These are multiple falsehoods here, and independently, this whole claim makes no sense. There is also a pretty startling new revelation here about the Bush administration's pre-9/11 failure that requires a good amount of attention.
Even under the "old" FISA, no warrants are required where the targeted person is outside the U.S. (Afghanistan) and calls into the U.S. Thus, if it's really true, as Mukasey now claims, that the Bush administration knew about a Terrorist in an Afghan safe house making Terrorist-planning calls into the U.S., then they could have -- and should have -- eavesdropped on that call and didn't need a warrant to do so. So why didn't they? Mukasey's new claim that FISA's warrant requirements prevented discovery of the 9/11 attacks and caused the deaths of 3,000 Americans is disgusting and reckless, because it's all based on the lie that FISA required a warrant for targeting the "Afghan safe house." It just didn't. Nor does the House FISA bill require individual warrants when targeting a non-U.S. person outside the U.S.
Independently, even if there had been a warrant requirement for that call -- and there unquestionably was not -- why didn't the Bush administration obtain a FISA warrant to listen in on 9/11-planning calls from this "safe house"? Independently, why didn't the administration invoke FISA's 72-hour emergency warrantless window to listen in on those calls? If what Muskasey said this week is true -- and that's a big "if" -- his revelation about this Afghan call that the administration knew about but didn't intercept really amounts to one of the most potent indictments yet about the Bush administration's failure to detect the plot in action. Contrary to his false claims, FISA -- for multiple reasons -- did not prevent eavesdropping on that call.