http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/04/11/MNRH103EK8.DTL&hw=mukasey&sn=001&sc=1000

Two weeks after Attorney General Michael Mukasey tearfully told a San Francisco audience the Sept. 11 terrorist attacks could have been prevented if the government had been able to wiretap a phone call from Afghanistan, the Justice Department is still trying to explain what he meant, and a congressional leader is demanding answers.
Among the questions posed by House Judiciary Committee Chairman John Conyers, D-Mich., to Mukasey is whether any such phone call actually occurred and, if so, why the government wasn't able to use its legal and technological powers to monitor it.
The attorney general, speaking to the Commonwealth Club on March 27, defended President Bush's program of wiretapping calls between Americans and suspected foreign terrorists without court authorization and said no warrant should be needed to eavesdrop on a phone call from Iraq to the United States.
Before Sept. 11, 2001, Mukasey said, "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."
He paused, seemed to stifle tears, then continued, "You've got 3,000 people who went to work that day, and didn't come home, to show for that."
Difficult to verify

It seemed like a sensational disclosure - a phone call that, if traced and monitored, could have allowed authorities to thwart the attacks - but it has proved difficult to verify.
A 2003 joint congressional inquiry mentioned phone messages between one of the Sept. 11 hijackers and an al Qaeda safe house - in the Middle East, not Afghanistan - but said the messages were intercepted by the National Security Agency, which failed to share them with other agencies.
The bipartisan commission that investigated the Sept. 11 attacks issued a report that did not mention any phone call like the one Mukasey described. Former Rep. Lee Hamilton, D-Ind., vice chairman of the commission, said in a statement this week that the panel "did not receive any information pertaining to (the call's) occurrence."
Conyers was also mystified. In a letter to Mukasey on April 3, the congressman said he had found no reference to such a call, "despite extensive inquiries after 9/11."
After several requests, Justice Department spokesman Peter Carr issued a statement saying Mukasey "has referred to this before." It came in a letter Mukasey and Michael McConnell, the director of national intelligence, sent to the chairman of the House Intelligence Committee in February urging passage of legislation to extend the surveillance program.
The letter said one of the hijackers, while living in the United States, had "communicated with a known overseas terrorist facility." The letter didn't describe the call any further but asserted it had been mentioned in an unclassified section of the 2003 congressional report - which, as others noted, contained no apparent reference to a call from Afghanistan.
Because the government, in monitoring that call, relied on a 1981 executive order by President Ronald Reagan that focused on overseas communications, "the intelligence community could not identify the domestic end of the communication" before Sept. 11, Mukasey and McConnell wrote.
Authorization to wiretap?

But the executive order would have allowed the government to wiretap such a call, said Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, a privacy-rights group representing phone customers who have sued over the surveillance program. He noted that the order allowed intercepting calls to the United States if the attorney general had probable cause to believe the U.S. recipient was a terrorist - a standard that easily could have been met, Opsahl said, for any message from an al Qaeda safe house.
He said the government also could have listened to the call under the Foreign Intelligence Surveillance Act, which allowed wiretapping of suspected terrorist communications from abroad for up to 48 hours - a period since extended to 72 hours - before a warrant was required from a special court that virtually always grants such requests.
Conyers' letter cited the same law and said Mukasey's San Francisco statement "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."
An expert on surveillance law also noted that, if the government needed only to identify the U.S. destination of the call, it could have legally recorded the phone number with a pen register, a device that doesn't require wiretapping authority.
While the letter by Mukasey and McConnell raised legitimate questions about the authority the government needs to eavesdrop on some communications to the United States, it failed to explain why the call couldn't have been monitored, said Orin Kerr, a George Washington University law professor who worked on criminal surveillance at the Justice Department from 1998 to 2001.
Asked for clarification, Carr, the Justice Department spokesman, said inquiring whether current law could have been used to intercept this call "misses the central point" - which, he said, is that intelligence professionals should not need court approval before targeting foreigners.
He said the department was reviewing Conyers' letter and would respond to it.
Online resource

The letter from Conyers to Mukasey can be viewed at: links.sfgate.com/ZCZL
E-mail Bob Egelko at begelko@sfchronicle.com.