Reviewing selise's excellent transcipt against yesterday's Appropriations subcommittee audio, I hear one sentence by Mukasey differently, which, if accurate, would indicate that the Attorney General does not understand basic FISA rules, then or now. To wit, here's how I hear the end of the Leahy/Mukasey interchange:

Attorney General Michael Mukasey:

"The one thing I got wrong was the geography. It did not come from Afghanistan. I got the country wrong. Other than that, it was spot on. And I will be happy to provide you with the page. And the point to be made there was not that we could not have monitored it under FISA, but rather that no FISA application should have been necessary to monitor a foreign target in a foreign country. I was speaking generally to the desirability of getting a bill passed - as you know, we've had a lot of trouble with that. But I'll be happy to get you the reference - it's, you're right, it's not in the 9/11..."

Senator Leahy: "And we don't need FISA to monitor a foreign, a foreign source."

Mukasey: "Didn't you need it?"

Leahy: "We didn't then and we don't today. Thank you."

Unfortunately, Leahy is talking over Mukasey at the beginning of that italicized comment (which occurs at about 58:30 into the committee hearing). But it still sounds to me like Mukasey is asking Leahy, indicating a state of confusion about FISA's requirements, and Leahy then answers accordingly, to which Mukasey does not respond. Mukasey may be 'putty in their hands' if he is this easily led astray. Because selise's transcript is "spot on" with regard to Mukasey's explanation for why he thought this call made his case for a revised FISA (per the bolding above).

Regarding the FISA requirement as discussed by Mukasey and Leahy--if the incoming call (now from an unknown country) was to a "US Person", then I don't understand either Mukasey or Leahy. Leahy is saying FISA doesn't apply, but it would. Mukasey is saying FISA "shouldn't" [per selise's transcript] apply, but it should. Again, this is if the call recipient is a "US Person". Is this correct?

- casual_observer

As you answered yourself later, c_a, that isn't correct.

To elaborate a bit: Knowing when a FISA warrant is needed requires knowing where the "target" of the surveillance is, or at least it did in 2001, pre-Protect America Act. Only when a U.S. Person in the U.S. is to become the "target" of surveillance would a FISA warrant be required. Until that point, as with this apparent targeting of an Al Qaeda phone in Yemen (thanks for the great information, Kevin Fenton), all calls to and from that phone, regardless of where the calls came from or were going to are 'fair game' for NSA surveillance outside the bounds of FISA - warrant-free. As casual_observer rightly points out in a follow-up comment, any 'innocent' calls from or to U.S. persons in the U.S. incidentally collected during the targeting of that foreign phone would simply need to be minimized, under longstanding practice. If, however, NSA translators figured out what was being said, found it suspicious and decided there was probable cause to suspect terrorist activity by the person at the U.S. number in contact with Yemen, and whose phone they thus likewise wanted (the FBI) to target for surveillance [so as to start collecting the content of all calls to and from that U.S. phone] - then and only then does FISA come into the picture for the NSA/FBI.

I cranked up the volume, and replayed it a few more times, and now I can hear the same thing that selise, omooex and bamage are hearing on the audio (thanks for the helpful feedback):

Senator Leahy: "And we don't need FISA to monitor a foreign, a foreign source."

Attorney General Mukasey: "You shouldn't need it."

Senator Leahy: "Well, we didn't then and we don't today. Thank you..."

http://appropriations.senate.gov/Media/2008_04_10_Watch_the_April_10th_CJS_Hearing_Featuring_Attorney_Gen_Mukasey.ram

Mukasey was responding as though Leahy was agreeing with him that a revised FISA "shouldn't" require a warrant "to monitor a foreign target in a foreign country," and Leahy then proceeded to disabuse Mukasey of the notion that a revision to FISA was necessary for that to be the case, to which Mukasey had no response.

The upshot is Attorney General Mukasey being so impossibly vague with regard to needed revisions to FISA - (apparently) because he is incapable of explaining the stored email problem [that's the 'foreign to foreign' issue of U.S.-based ISP servers] coherently or forthrightly - that he is reduced to either intentionally or unintentionally misleading the Senate. Someone (Feinstein, who was up next) really should have followed up on the answers Leahy got out of Mukasey. Somehow, though, Members of Congress are forever "out of time" when precise answers on important points are nearing or needed...