Michael Mukasey, U.S. attorney general from 2007 to 2009, spoke at Alston & Bird on Thursday. (Photo by John Disney/Daily Report)
National intelligence leaks in the name of exposing what the leakers claim is an unconstitutional invasion of privacy by the U.S. government are wrong-minded and causing a multifaceted crisis, including giving terrorists and countries unfriendly to the U.S. critical state secrets, former U.S. Attorney General Michael B. Mukasey said at an appearance in Atlanta on Thursday.
“It is not simply the leaks themselves that have done and continue to do the damage,” he said, referring specifically to the revelations last year that the National Security Agency was collecting telephone users’ records. “There has been a cascade of misinformation about the NSA’s intelligence-gathering capability that has generated pressure from the left and the right in the political spectrum to severely restrict the gathering of intelligence that is this country’s first, and in some cases only, line of defense.”
Mukasey delivered his remarks to about 130 attendees at a lunch sponsored by the Atlanta Lawyers’ Chapter of the Federalist Society at the offices of Alston & Bird. He was the attorney general from November 2007 to January 2009 in the administration of President George W. Bush.
Prior to that, he was a U.S. district judge for the Southern District of New York. Mukasey presided over the trial of Omar Abdel Rahman, known as the “blind sheik,” and nine co-defendants. Rahman was convicted of a conspiracy that included the 1993 bombing of the World Trade Center and plans to blow up the Holland Tunnel and the United Nations, among other things. Mukasey is now a partner in Debevoise & Plimpton in New York.
One of the main flashpoints in the debate about whether the U.S. intelligence community is overstepping its constitutional boundaries is the government’s collection of telephone metadata—the calling number, the number called, the date and duration of the call. Critics complain that the collection of the information by the NSA at the behest of the FBI, which has to seek an order from the Foreign Intelligence Surveillance Court, is an invasion of privacy.
The metadata is not owned by the telephone user, Mukasey said. The companies already have the information and it belongs to them, he said.
Mukasey put it in the parlance of Fourth Amendment law: “It is not information in which anyone has any legitimate expectation of privacy and so is not constitutionally protected.”
His comments on the metadata collection and the Fourth Amendment echo those made by retired U.S. Supreme Court Justice John Paul Stevens on Wednesday in a talk at Georgia State University. Stevens concluded similarly that the government’s collection of metadata intelligence isn’t a violation of a person’s privacy under the Fourth Amendment.
Mukasey also said one of the main leakers from the intelligence community, ex-NSA contractor Edward Snowden, mischaracterizes his actions of stealing classified information during his tenure with the government. Mukasey said Snowden frames his actions as “about truth-telling,” with truth-telling being the highest virtue in a democracy. Mukasey said the country’s founders were “practical men who understood the need for keeping government secrets.”
The topic strayed from national security during the question-and-answer period. One attendee asked what executive agency has the worst problems.
Without hesitation, Mukasey said, “the IRS. Among the long and despicable history of being misused, the current excesses are beyond anything we’ve seen.”