By Shane Harris and Murray Waas
The National Journal
Thursday 25 May 2006
An internal Justice Department inquiry into whether department officials - including Attorney General Alberto Gonzales and then-Attorney General John Ashcroft - acted properly in approving and overseeing the Bush administration's domestic eavesdropping program was stymied because investigators were denied security clearances to do their work. The investigators, however, were only seeking information and documents relating to the National Security Agency's surveillance program that were already in the Justice Department's possession, two senior government officials said in interviews.
The investigation was launched in January by the Justice Department's Office of Professional Responsibility - a small ethics watchdog set up in 1975 after department officials were implicated in the Watergate scandal. The OPR investigates allegations of official misconduct by department attorneys, not crimes per se, but it does issue reports and recommend disciplinary action. The current Justice Department inspector general has determined that OPR is the office responsible for investigating the professional actions of the attorney general involving the NSA program.
The only classified information that OPR investigators were seeking about the NSA's eavesdropping program was what had already been given to Ashcroft, Gonzales and other department attorneys in their original approval and advice on the program, the two senior government officials said. And, by nature, OPR's request was limited to documents such as internal Justice Department communications and legal opinions, and didn't extend to secrets that are the sole domain of other agencies, the two officials said.
It is not clear who denied the OPR investigators the necessary security clearances, but Gonzales has reiterated in recent days that sharing too many details about the surveillance program could diminish its usefulness in locating terrorists, and he indicated that giving OPR investigators access to the program could jeopardize it.
Gonzales said that Justice attorneys examined and approved the surveillance, and that decisions on whether to share information about it are weighed in light of national security needs. "We don't want to be talking so much about the program that we compromise [its] effectiveness," the attorney general said at a public appearance last week.
Gonzales asserted to other senior officials that only people who have been "read into the [NSA] program," meaning they know its details and have pledged not to divulge them, should be allowed access, one of the two senior officials said in an interview. Traditionally, the decision on whether to grant access to a highly classified program is made by the agency that runs it, in this case the NSA.
Rep. Maurice Hinchey, D-N.Y., and three other Democrats - John Lewis of Georgia, Henry Waxman of California, and Lynn Woolsey of California - requested the OPR investigation after the surveillance program was revealed in late 2005, and asked the agency to determine whether it complied with existing law. OPR investigates "allegations of misconduct involving department attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice," according to the office's policies and procedures.
Justice attorneys approved the NSA's warrantless eavesdropping in 2001, and Gonzales has vehemently defended President Bush's powers to order it ever since.
OPR's lead counsel, H. Marshall Jarrett, wrote to Hinchey in early February saying he had launched the investigation. "I am writing to acknowledge receipt of your January 9, 2006, letter, in which you asked this office to investigate the Department of Justice's role in authorizing, approving, and auditing certain surveillance activities of the National Security Agency, and whether such activities are permissible under existing law. For your information, we have initiated an investigation. Thank you for bringing your concerns to our attention."
But earlier this month, Jarrett again wrote [PDF] to Hinchey: "We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program. Beginning in January 2006, this office made a series of requests for the necessary clearances. On May 9, 2006, we were informed that our requests had been denied. Without these clearances, we cannot investigate this matter and therefore have closed our investigation."
Jarrett didn't say which official or agency denied the requests for clearances. Asked whether the NSA had done so, agency spokesman Donny Weber pointed to Gonzales's public comments last week. Ross Feinstein, a spokesman for the Office of the Director of National Intelligence, when asked which agency or person denied the security clearances to OPR investigators, also said Gonzales's comments of last week addressed that question.
After the clearances were denied, a reporter asked Gonzales, "Did Mr. Jarrett come to you and ask you to assist him in getting those clearances?" Gonzales replied, "It would not be appropriate, and I would not get into internal discussions or the give and take that happened between the attorney general and other folks within the Department of Justice."
"You were aware of this personally?" the reporter asked.
"Again, I'm not going to comment on anything," Gonzales replied.
Asked which agency or official decided not to grant the OPR investigators security clearances, Justice spokesman Brian Roehrkasse said, "We aren't commenting on internal decisions." He noted that the attorney general had addressed the topic in his public comments. If the decision to deny the clearances was in fact an "internal decision" of the Justice Department, that raises the prospect that Gonzales himself or another senior Justice official denied the clearances, and hence quashed the OPR investigation.
Michael Shaheen, who headed the OPR from its inception until 1997, said that his staff "never, ever was denied a clearance," and that OPR had conducted numerous investigations involving the activities of attorneys general. "No attorney general has ever said no to me," Shaheen said. He added that, over the past several years, the OPR's muscle has degraded, in part because it was stripped of its authority to pursue criminal investigations. But under the Bush administration, the weakening has been especially pronounced, Shaheen said. "I just think that the White House has so frightened everybody.... If I were still at OPR and was told I couldn't have security clearances, the first word out of my mouth ... would have been, 'Balderdash!' "
In an interview, Hinchey argued that Gonzales and other Bush administration officials have an obligation to cooperate in every manner possible with any OPR investigation: "The Justice Department has an Office of Professional Responsibility to assure that the highest ethical standards are met by those who enforce our laws. That's why we have Jarrett.... The idea that they are not going to give him the necessary security clearances to do his job and the proper oversight is absurd."
Regarding Gonzales, Hinchey said: "The attorney general has said that he does not have to allow an investigation to go forward because he has talked about the legal underpinnings of the NSA program. He has not done that because it does not have any. It is devoid of any legal underpinnings."
Hinchey has drafted a resolution of inquiry requesting that Bush, Gonzales, and Defense Secretary Donald Rumsfeld turn over documents relating to the OPR investigation's closure and the denial of security clearances. The resolution asks for "telephone and electronic-mail records, logs and calendars, personnel records, and records of internal discussions." Hinchey said he planned to get other members of Congress to sign on to the resolution this week.
The OPR investigation also set out to determine whether the NSA's surveillance activities were legal and complied with the Foreign Intelligence Surveillance Act, the sole law on intelligence-gathering inside the United States. Gonzales has averred that the legal underpinnings have already been laid out in public testimony and in detailed department analyses of the president's authority to order warrantless eavesdropping. He has also asserted that Justice's inspector general, not the OPR, has the authority to investigate whether department officials' conduct is lawful.
But in January, the Justice Department's inspector general deferred to the OPR on questions about authorization of the NSA program. In declining a request by Rep. Zoe Lofgren, D-Calif., to investigate Gonzales's role, Inspector General Glenn Fine wrote, "The actions of the attorney general or other department attorneys in providing legal advice regarding the legality of warrantless surveillance by NSA ... falls within the jurisdiction of the [OPR]." Fine then sent Lofgren's request to that office.
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Previous coverage of pre-war intelligence and the CIA leak investigation from Murray Waas. Brian Beutler provided research assistance for this report.
Hinchey Introduces Measure to Force Bush Administration to Reveal Who
Blocked Justice Dept. Probe of NSA Warrantless Surveillance Program
t r u t h o u t | Press Release
Thursday 25 May 2006
Measure would require President, Attorney General & Defense Secretary to hand over documents related to closure of investigation.
Washington, DC - In an effort to find out who blocked an internal U.S. Department of Justice (DOJ) investigation of the agency's role in the National Security Agency (NSA) warrantless surveillance program and the reasons for doing so, Congressman Maurice Hinchey (D-NY) today introduced a resolution of inquiry in the House that would force top members of the Bush administration to turn over all materials related to the termination of the probe. In January, Hinchey and three of his House colleagues requested that DOJ's Office of Professional Responsibility (OPR) conduct the investigation. OPR Counsel H. Marshall Jarrett informed Hinchey in February that a probe was underway, but on May 10 he wrote the congressman to say that the investigation had been closed because OPR was denied the necessary security clearances.
According to a National Journal article published online today, all of the information that OPR was seeking was already in DOJ's possession and did not involve any top secret data. However, OPR was still blocked from conducting its investigation. Top administration officials have refused to explain who denied the security clearances for OPR investigators that effectively closed the probe and have also failed to offer a substantive justification for shutting down the investigation. Since the administration has not been forthcoming, Hinchey introduced his resolution to require President Bush, Attorney General Alberto Gonzales, and Defense Secretary Donald Rumsfeld to turn over to Congress all documents, including telephone and electronic mail records, logs and calendars, personnel records, and records of internal discussions related to the termination of OPR's investigation.
"The Justice Department's Office of Professional Responsibility is designed to ensure that the highest ethical standards are met by those who enforce our laws. For administration officials to deny OPR officials security clearances needed to do their job and conduct the proper oversight is absurd and is contradictory to what the American people expect and deserve from their government," Hinchey said. "The Bush administration cannot get away with designing a secret, illegal spy program and then shutting down an investigation into its creation and implementation. Since the Attorney General and others have refused to be forthcoming in a genuine way on their own, this resolution of inquiry will force them to pull back the curtain of secrecy and reveal who stopped the OPR investigation and why."
Among other things, Hinchey and his colleagues - Congressman John Lewis (D-GA), Congressman Henry Waxman (D-CA), and Congresswoman Lynn Woolsey (D-CA) - specifically requested an investigation to find out who within the DOJ first authorized the domestic surveillance program and what that official's justification was for doing so; if the Bush administration had already enacted the program before getting original DOJ approval; what the reauthorization process for the surveillance initiative entails; and why, according to news reports, did then-Acting Attorney General James Comey refuse to reauthorize the program and why then-Attorney General John Ashcroft expressed strong reservations about the program and may have rejected it as well.
"Administration officials can't just go around and say that disclosing information about the evolution and execution of the NSA program would jeopardize national security because it wouldn't," Hinchey said. "We are not requesting transcripts of tapped phone calls or asking for any specific information gathered from the program. We just want to know how the administration came to develop a surveillance program that ignores the fact that this country has a Constitution."
The Hinchey measure to acquire the documents surrounding the termination of the OPR investigation is a resolution of inquiry, which is a type of bill that seeks factual information from the executive branch. A House committee must debate the Hinchey measure or else the matter can be brought directly before the full House. If the full House adopts the measure, President Bush, Attorney General Gonzales, and Defense Secretary Rumsfeld would have 14 days to present Congress with all of the requested documents.
Hinchey has also written back to OPR Counsel Jarrett in an attempt to find out what individuals and agencies refused to grant the security clearances needed for the probe.
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To view a copy of Congressman Hinchey's Resolution of Inquiry, click here.
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