[Infowarrior] - Justice Department Probe Foiled

[Richard Forno]

ISSUES & IDEAS
Justice Department Probe Foiled

By Shane Harris and Murray Waas, National Journal
© National Journal Group Inc.
Thursday, May 25, 2006
http://news.nationaljournal.com/articles/0525nj2.htm

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.