Conyers to Mukasey: So You Did Spin Shamelessly, Didn’t You?

(Updated with selise’s YouTube showing Leahy confronting Mukasey on his misrepresentation.) 

I really really like this letter Conyers, Nadler, and Scott sent to Attorney General Mukasey on his claim that they could have prevented 9/11 if only FISA hadn’t been preventing them. In it, they basically nail DOJ on its non-responsive response to their earlier letter asking about Mukasey’s claim. If you recall, the prior letter basically gave Mukasey a few choices: either Mukasey completely misunderstands FISA, the Administration withheld information from the 9/11 Commission, or the Administration screwed up.

These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11,

The underlying truth that DOJ won’t admit, of course, is that Mukasey misrepresented the incident in an attempt to make a case for FISA that doesn’t actually hold up.

In an apparent attempt to avoid admitting Mukasey has been spinning wildly, DOJ wrote a non-responsive response back–it turned the question into a general question about FISA legislation, rather than specific question about whether Mukasey misrepresented the facts.

We are writing about the April 10, 2008, letter from Brian Benczkowski in response to our letter of April 3, 2008, concerning disturbing recent revelations about apparent pre-9/11 failures and subsequent abuses of civil liberties by the Administration. While we appreciate the promptness of the April 10 letter, we are extremely concerned about its failure to address several of our specific inquiries.


In addition, however, the April 10 letter does not respond to several of our requests. Our letter did not, as you characterize it, generally inquire “why FISA’s emergency provisions were not an adequate substitute for the authorities the Government has obtained under the Protect America Act.” Rather, our inquiry concerned the specific phone call about which you spoke. We asked whether the then-existing emergency provisions would have allowed interception of the specific call at issue, if indeed the foreign portion of the call was a known terrorist location. To the extent that your response set forth an argument for the PAA or the Administration’s preferred version of FISA reform, it was non-responsive to our request for information. Based on the clarifications in the April 10 letter, we understand that the answer to our actual question was that, in fact, then-existing FISA provisions would have allowed the interception and dissemination of the phone call, but that it was NSA’s then-existing narrow interpretation of Executive Order 12333 that was the problem. Please explain promptly if that is not the case.

The Conyers response, then, effectively demands that DOJ specifically answer the question: is it not true that Mukasey misrepresented the facts about this incident to make a case for FISA that does not hold up?

What I particularly like about the letter, aside from the fact that it demands DOJ admit that Mukasey was spinning wildly, is the way it then uses Mukasey’s spinning to implicate negotiations on FISA.

Finally, our letter did not, as the April 10 letter suggests, “question the very premise for the joint congressional and executive branch effort over the past year to modernize FISA.” To the contrary, we have been deeply involved in that effort, conducting numerous hearings and passing two separate bills in the past six months.


The Administration’s refusal to engage in meaningful discussions with House Democrats on FISA reform has become untenable. The time has come for meaningful negotiations on this important subject. We remain willing and able to have such discussions, and we urge that you and others in the Administration agree to do so promptly.

It’s a subtle move, I guess. But as we get more reports that the Republicans are giving up the FISA fight, we’ll be in a position to actually negotiate a real bill. Having gotten both DOJ and DNI to acknowledge that the fear-mongering they used to justify the more expansive FISA in the Senate would put Democrats in a stronger position to negotiate, because it’ll pressure Mukasey and McConnell to actually limit their calls to the information they need, rather than the information that David Addington’s over-heated authoritarian imagination dreamed up a need for.

27 replies
  1. MarieRoget says:

    Good morning, ew. Any thoughts on whether the Repubs truly intend to give up the FISA fight? It just seems too good a piece of news to be really happening…

  2. klynn says:

    I enjoy when you present Conyers or Waxman letters…

    A little O/T

    This paired with mention of Andrew Card had me wondering…I do not remember the outcome of this letter from Waxman to Andrew Card:

    President May Have Known of Constitutional Defect Before Bill Signing

    Rep. Waxman asks the White House to respond to information that the Speaker of the House called President Bush to alert him that the version of the Reconciliation Act he was about to sign differed from the version that passed the U.S. House of Representatives. Rep. Waxman writes: “If the President signed the Reconciliation Act knowing its constitutional infirmity, he would in effect be placing himself above the Constitution.”

    What ever happened to this? I, for some reason cannot remember. Went to Waxman’s website only to find there was no response letter posted. Can you remind me about what happened on this? I’m not finding anything.

  3. JimWhite says:

    Having gotten both DOJ and DNI to acknowledge that the fear-mongering they used to justify the more expansive FISA in the Senate would put Democrats in a stronger position to negotiate, because it’ll pressure Mukasey and McConnell to actually limit their calls to the information they need, rather than the information that David Addington’s over-heated authoritarian imagination dreamed up a need for.

    I’m really starting to think that is why they are backing off, especially the Mukasey spin lies. With further debate on FISA, the Republicans will be forced to confront Mukasy’s San Francisco speech directly. When they do, they lose. When you couple that with the total failure of the fear-mongering in the Heritage Foundation’s countdown clock and the Freedom’s Watch commercials, they have nothing left.

  4. radiofreewill says:

    “The underlying truth that DOJ won’t admit, of course, is that Mukasey misrepresented the incident in an attempt to make a case for FISA that doesn’t actually hold up.”

    This is The Critical Issue with Mukasey, as I see it.

    He gets teary-eyed – he has a mood swing – over certain Ideological cues, like 911, that causes him to lose sight of the Law, in favor of his emotion-laden personal values.

    Getting emotional over 911 happens to a lot of people, however, in our Professional Government Employees – We Expect them to set-aside their personal feelings in order to render fair and equitable Service with Integrity.

    In this way, Mukasey is effete like Bush, and ‘blind’ in many of the same spots – and they both over-compensate with chest-beating faux manliness.

    Under marital stress, Hillary made-up the Sniper story – not a good sign in a potential Commander in Chief.

    Under ideological stress, Mukasey made-up the prevent-911/FISA phone call story – not a good sign in the guy wearing Shield Number One in National Law Enforcement of the Constitution.

    Under fire, Bush made-up excuses for, and tried to hide, his War Crimes.

    The common factor is Character Weakness, and in this case – you’ve harpooned Mukasey from the skiff of Our Truth Whaler.

    Now, it’s time to hang-on and see how far he can run…the big boat will catch-up to us…eventually.

  5. selise says:

    for anyone who missed seeing leahy’s questioning of mukasey during the senate appropriations committee hearing last week, i made a short youtube of that bit (ripped from the committee feed, so the quality is not as good as when i rip from c-span on cable tv)

  6. looseheadprop says:

    I love it when they keep at it like this. Wish it would move a teensy bit faster though. The pace is like watching paint dry.

    But, a big LHP shout out to COnyers, nadler , and Scott–you’re doing good guys!

    • Quzi says:

      This is one time I would enjoy watching paint dry…

      Thanks for Conyers’ letter.

      I think this bears repeating again and again…

      The underlying truth that DOJ won’t admit, of course, is that Mukasey misrepresented the incident in an attempt to make a case for FISA that doesn’t actually hold up.

  7. oldtree says:

    You have left out one other option in your summary conclusion. When nothing else fits, why not include the obvious as a potential solution?
    Our country shows no concern for soldiers, American soldiers in harms way.
    Our country shows no concern for it’s own citizens in New Orleans, in fact, knowingly poisoned any that required help.
    Our country shows no respect for human life whatsoever, unless it is unborn.

    Isn’t it about time we begin assuming the attack of 9/11 is just a part of the charade? We can’t ignore that everything points to our government knowing all about the people and the events, prior to their happening. Good reporting includes all the facts. We have enough hard evidence now, regardless of the government claiming it is false. They have claimed that everything we have learned was untrue. In a civilized world, it would be enough for a new trial.

  8. LS says:

    So, Mukasey is saying that foreign target was not able to be monitored because FISA prevented it…but then Leahy says you don’t need FISA to monitor a foreign target in a foreign country now or then. If they had, indeed, been monitoring the calls with or without FISA, they would know who was called and where…So, I think that they are making up this whole call thing entirely and covering their butts, because they never monitored those calls in the first place, and they are using FISA as an excuse for their F’ups…without a doubt…EW you are right on.

    Mukasey says…we know calls were made….well duh…but we don’t know where they were made to…well duh…if they weren’t being monitored in the first place, you wouldn’t, now would you.

    Per LHP – Ridiculous.

  9. Hmmm says:

    Maybe it was hoovered up, and they found it afterwards when they looked into the database, and somebody on the inside wouldn’t let them totally bury it. So Mukasey’s lame leak+dodge move might, perhaps, be their way to minimize the impact of the release.

  10. JohnLopresti says:

    I thought the early part of the Q+A following Mukasey’s SF talk March27 set somewhat of a straightforward tone, see excerpt below; it had the rhythm and delivery of a standup comic routine, replete with NewYorkism trenchant ironies of the sort someone such as I who grew up in the suburbs there, could appreciate, specifically, his self-effacing description of the process by which his nomination to the attorney general post developed. In the following passage the AG admits he knows but little about the topic. My guess is the other political appointees are providing the much of the content of Mukasey’s letters to Conyers’ committee. There may be merit, too, to the early assessment that he confused two events with respect to the telephone call nonlistening ‘legal proscription’. FBI’s ethos long has been protective of its ability to be first to take the most risk to safeguard civilian life within territorial US. So, Mukasey’s energies seem aligned with that esprit de corps, but his getting events confused in his storygelling for the purpose of asking for even wider permissions from congress detracts from his cred. I suppose the difference in speechmaking Q+A is the answers tend to be a bit extemporaneous, whereas letters to congress are composed with the best administration argumentation vetted with party hacks.

    From a transcript, a little of his routine on that occasion:

    “Cranston (moderator synthesizing questions from audience): It is probably no surprise to you, we have gotten a number of questions about terrorism, the threat, the response. One question was because obviously you were quite knowledgeable because of some of the cases that you had as a judge, about terrorism in the US. Have you learned a lot since you have become the AG? Could you give us your comments on what you see today compared to when you were a judge.

    “Mukasey: Sure. I thought I was knowledgeable. In a way, I am nervous to think that I was chosen because it was thought that I was knowledgeable, because, compared to what I thought I knew before…I get a briefing every morning, goes from roughly 7:30 ’til 10 past 8, from the CIA and FBI on what it is that is out there. It is varied. It is persistent. It comes from sources and in places that are all of them…it is enormously dangerous. It is way beyond, way beyond anything that I knew or believed. So, if I was picked for the level of my knowledge of what I actually see, that was a massive piece of false advertising, to which I am admitting to, I guess, in the privacy of this room (titter of laughter). I have to say only on my own behalf that I was not the one who advertised it. (moderator chuckling). But, seriously, there’s a lot goin’ on out there, and we are doing, and trying to do, a lot to stop it.”

  11. rkilowatt says:

    JLopresti @ 14
    “FBI’s ethos long has been protective of its ability to be first to take the most risk to safeguard civilian life within territorial US. So, Mukasey’s energies seem aligned with that esprit de corps,…”

    ummm, like catching bank robbers? or like horrendous neglect of lynchings and civil rights violations?

    There seems to be awesome misunderstanding of the difference between “liberty” and the nebulous word “freedom”. “Freedom” only has meaning as “freedom from” something, as freedom from starvation or disease or tryanny.

    The FBI has a skinny timeline on protecting “liberty”, which is freedom from tyranny.

  12. JTMinIA says:

    At what point do the telecoms tell Jello that they now want substitution? That Jello needs to decide whether he wants to protect the Administration or keep receiving the telecom’s money? It seems to me that if there isn’t a move for substitution soon, the telecoms might get nothing. That’s fine with me, but substitution could very well speed the investigation up quite a bit.

    • bmaz says:

      I am not quite sure what you mean by “substitution”, but there has been nothing, and I mean nothing, to indicate that the telcos do not already have indemnification. If, by “substitution”, you mean that the telcos are excused from further participation in the civil lawsuits and that the government stand in place as the only defendant, that is a remarkably bad idea. It would only enhance the ability of the government to hide behind privileges and immunities, and would rob the plaintiffs of the ability to play the telcos off of the government, and vice versa, to the plaintiff’s advantage.

  13. JTMinIA says:

    Yes, that’s close to the kind of substitution I meant. I think it was Specter’s amendment, maybe Whitehouse’s, maybe the two of them together. The idea, I thought, was to eliminate any financial argument against moving forward. But if also makes the case harder to investigate, then forget it.

    But my point was more that the telecoms might see any chance for protection as waning and, therefore, might push Jello (in particular) to compromise. That would be a nice sign.

    • bmaz says:

      I don’t believe they are all that worried about it; in fact they have pretty much said so. It is only the Administration that has been having apoplectic fits. Quite frankly, if I were the telcos, I would not trust the Administration to carry my precious water; they simply are not competent nor trustworthy enough. As long as I had indemnification, I would want to fight for myself.

  14. JTMinIA says:

    Why aren’t they worried? Is it because they are Too Big to be Sued (a fully-owned subsidiary of Too Big to Fail) or are they safe behind some secret piece of paper where the Administration promises — cross my heart and hope to die (i.e., we’ll take the fall) — that it was all legal?

    • bmaz says:

      The latter, plus a corresponding promise by the Administration to cover any losses and costs of defense incurred by the telcos.

      • looseheadprop says:

        BTW, I got a blast email form Leahy today saying he wants the Senate to revist the FISA bill and make it look just like the House Bill.

        It may be PR, but it’s the kind I like to hear

      • JTMinIA says:

        How can the Admin promise to cover all loses? I thought only Congress had the power to spend money.

        Or am I still thinking in terms of a gov’t with three branches? … silly me.

  15. nightlight says:

    For some perverse reason I can’t explain, I was reading the 911 Commission Report the other day and came across this on page 248 in Chapter 7:

    The month of August was busy, as revealed by a set of contemporaneous Atta-Binalshibh communications that were recovered after September 11.

    My eyebrows went up . . . What kind of communications? How were they “recovered”? Why are the contents of other communications simply and matter-of-factly included in the 9-11 Commission’s narrative, while this one has this odd descriptor?

    It certainly sounds like an admission of hoovering to me. If so, how did they know the contents of the other conversations yet not act upon them? Was it only a matter of too few translators? Any reason other than that leads to unsettling conclusions all around.

  16. JamesJoyce says:

    The dysfunctional logic of American’s leaders acting as fascist is reprehensible. Protecting “corpo aristocrats” and business interests opposed to the constitution and the Republic. Gross!!!!!

    911 preventable? They had the “intel” and still failed America… as they fail America today!

  17. KevinFenton says:

    It wasn’t just one call and the person the hijackers in the US were speaking to was in Yemen, not Afghanistan. The phone was registered to Ahmed al-Hada, an al-Qaeda operative deeply involved in the 1998 embassy and 2000 USS Cole attacks. His daughter was married to Khalid Almihdhar, one of the Pentagon hijackers, and the NSA started monitoring them in 1998, if not before.

    Pulitzer-prize winning author Lawrence Wright says:

    “The NSA, not wanting to bother with applying to the FISA court for permission to distribute essential intelligence, simply restricted its distribution. For example, in San Diego, Mihdhar made eight calls to the Hada phone to talk to his wife, who had just given birth, which the NSA did not distribute at all. There was a link chart on the wall of the “bullpen” – the warren of cubicles housing the I-49 squad – showing the connections between Ahmed al-Hada’s phone and other phones around the world. It provided a map of al-Qaeda’s international reach. Had the line been drawn from the Hada household in Yemen to Hazmi and Mihdhar’s San Diego apartment, al-Qaeda’s presence in America would have been glaringly obvious.”
    The Looming Tower, pp. 343-4

    The eight calls mentioned by Wright are from/to a phone in one of the hijacker’s apartments between February and June 2000. There are other calls, made from other phones and at other times (including after the Cole bombing). One key question here is how many calls did the NSA intercept but fail to trace and why?

    The 9/11 Commission knew about this, but failed to point it out properly in their report (there are two cryptic mentions of the calls on pages 87-88 and 222). Why did they do that?

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