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 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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