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Top Democrats demand Attorney
General provide 9/11 memorandum
RAW
STORY
Friday, April 4, 2008
A letter to Attorney General Michael Mukasey demands
he explain a recent public statement in favor of warrantless wiretapping
that suggests that federal authorities, prior to the 9/11 attacks,
failed to intercept a call from suspected terrorists in Afghanistan,
when doing so could have prevented the attacks from taking place.
The FISA law that existed at the time, the letter points out,
would have allowed such a call to be intercepted and permission
granted by the courts retroactively to do so.
Also in the letter is a repeated demand that a secret 2001 Office
of Legal Counsel memorandum, outlining the Executive Branch's
authority in combating terrorism, be provided to Congress.
The letter, signed by House Judiciary Committee Chairman John
Conyers, Jr. (D-MI) and Subcommitee Chairmen Jerrold Nadler (D-NY)
and Robert C. Scott (D-VA), appears below.
(Article continues below)
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April 3, 2008
The Honorable Michael Mukasey
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
Dear Mr. Attorney General:
We are writing about two disturbing recent revelations concerning
the actions and inactions by the Department of Justice and the
federal government to combat terrorism. 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, and the partial disclosure of the contents of a
secret Department memorandum concerning Executive Branch authority
to combat terrorism, which has been previously requested to be
provided to Congress. We ask that you promptly provide that memorandum
and that you clarify your public statement in accordance with
the questions below.
First, according to press reports, in response to questions at
a March 27 speech, you defended Administration wiretapping programs
and proposals to change the Foreign Intelligence Surveillance
Act (FISA) by referring to a pre-9/11 incident. Before the 9/11
terrorist attacks, 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 3,000 people who went to work
that day, and didn't come home, to show for that."1
This statement is very disturbing for several reasons. Initially,
despite extensive inquiries after 9/11, I am aware of no previous
reference, in the 9/11 Commission report or elsewhere, to a call
from a known terrorist safe house in Afghanistan to the United
States which, if it had been intercepted, could have helped prevent
the 9/11 attacks. In addition, if the Administration had known
of such communications from suspected terrorists, they could and
should have been intercepted based on existing FISA law. For example,
even assuming that a FISA warrant was required to intercept such
calls, as of 9/11 FISA specifically authorized such surveillance
on an emergency basis without a warrant for a 48 hour period.2
If such calls were known about and not intercepted, serious additional
concerns would be raised about the government's failure to take
appropriate action before 9/11.
Accordingly, we ask that you promptly answer the following questions:
- Were you referring to an actual pre-9/11 incident in the portion
of your statement quoted above? If not, what were you referring
to?
- Do you believe that a FISA warrant would have been required
to intercept a telephone call from a known terrorist safe house
in Afghanistan to the United States in 2001? If so, please explain.
- Even assuming that such a warrant would have been required,
do you agree that even before 9/11, FISA authorized emergency
interception without a warrant for a 48-hour period of phone
calls from a known terrorist safe house in Afghanistan to the
United States?
- Assuming that you were referring to an actual pre-9/11 incident
in your statement, please explain why such phone calls were
not intercepted and appropriately utilized by federal government
authorities in seeking to prevent terrorist attacks.
Second, in the March, 2003 Office of Legal Counsel (OLC) memorandum
publicly released on April 1, 2008, the contents of a secret October,
2001 OLC memorandum were partially disclosed. Specifically, the
2003 memorandum explains that in an October 23, 2001 memorandum,
OLC "concluded that the Fourth Amendment had no application
to domestic military operations."3 On two prior occasions
in letters of February 12 and February 20, 2008, Chairman Conyers
requested that the Administration publicly release the October
23, 2001, memorandum.4 The memorandum has not been received despite
these specific requests.
Based on the title of the October 23, 2001 memorandum, and based
on what has been disclosed and the contents of similar memoranda
issued at roughly the same time, it is clear that a substantial
portion of this memorandum provides a legal analysis and conclusions
as to the nature and scope of the Presidential Commander in Chief
power to accomplish specific acts within the United States. The
people of the United States are entitled to know the Justice Department's
interpretation of the President's constitutional powers to wage
war in the United States. There can be no actual basis in national
security for keeping secret the remainder of a legal memorandum
that addresses this issue of Constitutional interpretation. The
notion that the President can claim to operate under "secret"
powers known only to the President and a select few subordinates
is antithetical to the core principles of this democracy. We ask
that you promptly release the October 23, 2001, memorandum.
Please provide your responses and direct any questions to the
Judiciary Committee office, 2138 Rayburn House Office Building,
Washington, DC 20515 (tel:202-225-3951; fax: 202-225-7680). Thank
you for your cooperation.
Sincerely,
John Conyers, Jr.
Chairman, Committee on the Judiciary
Jerrold Nadler
Chairman, Subcommittee on the Constitution, Civil Rights and
Civil Liberties
Robert C. "Bobby" Scott
Chairman, Subcommittee on Crime, Terrorism and Homeland Security
cc: Hon. Lamar S. Smith
Hon. Trent Franks
Hon. Louie Gohmert
Hon. Brian Benczkowski
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