Former Attorney General Alberto Gonzales mishandled notes and documents related to a counterterrorism program that he described as "probably the most classified program that exists in the U.S. government," according to a Justice Department report released today.
The Justice Department inspector general's investigation found that despite the highly sensitive nature of the National Security Agency program, which has been shrouded in secrecy for years, Gonzales not only failed to keep notes and documents related to it in proper safes, but he also kept top secret classified notes about the program unsecured at his house.
"Our investigation found that Gonzales mishandled classified materials while serving as attorney general," the report from Justice Department Inspector General Glenn Fine noted. "The evidence shows that he took [Top Secret]/[Sensitive Compartmentalized Information] notes about the NSA surveillance program to his residence and improperly stored them in a briefcase there for an indeterminate period of time."
Gonzales certainly knew the delicate nature of the material. After the existence of the program was disclosed in media reports, he said during a briefing in December 2005: "This is a very classified program. It is probably the most classified program that exists in the U.S. government, because the tools are so valuable."
The notes were related to the NSA program instituted shortly after the terror attacks of Sept. 11, 2001, that allowed warrantless wiretapping of Americans.
The notes centered on an "emergency" meeting held March 10, 2004 at the White House with congressional leaders, Vice President Dick Cheney and NSA Director Michael Hayden about aspects of the program, which intercepted domestic communications possibly linked to al Qaeda members, according to the inspector general, who interviewed Gonzales about the handling of the documents.
That meeting sparked tension between top members of the Justice Department, which found it could no longer support the authorization of the warrantless wiretapping program, and other members of the administration.
Former Deputy Attorney General James Comey and FBI Director Robert Mueller have both testified before Congress that after the meeting Gonzales, then serving as White House counsel, visited Attorney General John Ashcroft while he was hospitalized, seeking reauthorization of the surveillance program, even though Ashcroft had ceded his powers to Comey.
According to the report, Gonzales told the inspector general that his "intent in drafting the notes was to record the reactions of the congressional leaders during the meeting, as opposed to recording any operational details about the program that were discussed."
"However, Gonzales' summary also referenced [Top Secret] operational aspects of the program by his use of specific terms associated with the program. The notes also included the SCI code word used to identify the program," the report also said.
Last year, Gonzales reviewed portions of his notes as he prepared for congressional testimony about the program and the course of events that took place. Investigators found that Gonzales did not keep the documents locked in a safe he had at his residence because, "Gonzales did not know the combination," according to the report.
Gonzales was often criticized during his controversial tenure as attorney general, and was pointedly questioned about the NSA program by members of Congress for his conflicting testimony. The role Justice Department lawyers played in approving the NSA program is currently under a separate investigation by the Inspector General's Office.
The report released Monday also noted conflicting information provided by Gonzales and his interactions with White House counsel Fred Fielding.
"Gonzales told us he gave a copy of his notes to Fielding sometime after Comey's testimony," the report said. "Fielding told the OIG that Gonzales had informed him sometime after Comey testified that Gonzales had some notes concerning the March 10, 2004, meeting, but that Gonzales 'wasn't sure where they were.' Fielding added that Gonzales said he was not sure if he had left the notes at the White House or had taken them with him when he left the White House to become the attorney general. Fielding stated that Gonzales later told him he had found the notes and described for Fielding what the notes said."
"He stored these notes, along with other highly classified documents about the NSA surveillance program and a compartmented detainee interrogation program, in a safe outside his office that was not authorized to hold these documents," the report noted.
The review also found that Gonzales stored documents in a safe outside his personal office at the Justice Department that was accessed by staff who were not authorized to review the documents relating to the NSA program.
According to the report review in response to a Freedom of Information Act request, two employees on Gonzales' staff were instructed to search the safe "document by document," including any classified materials, and that one said that they "looked through every single thing in the safe."
The review found that Gonzales' handling of these classified documents violated Justice Department regulations and procedures governing the proper handling of classified material.
Although the federal criminal code contains statutes relating to the improper handling of classified documents, the Justice Department's National Security Division declined to prosecute Gonzales after the inspector general sent a report to prosecutors.
"Earlier this year, the OIG referred this matter to the Department's National Security Division (NSD) to determine whether potential criminal charges should be brought. The OIG was very cooperative in assisting the NSD in its review of the facts, including gathering additional facts at the request of the NSD," Justice Department spokesman Dean Boyd said in a statement. "After conducting a thorough review of the matter and consulting with senior career officials inside and outside of the division, the NSD ultimately determined that prosecution should be declined."
George Terwilliger, Gonzales' attorney, said in a memo in response to the inspector general's report that the former attorney general admitted that he did not handle the material properly, but said there was no breach of security.
"It is clear from the report that there is no evidence that the acknowledged shortcomings in Judge Gonzales' handling of this material resulted in any unauthorized disclosure of classified information," Terwilliger's memo said. "Judge Gonzales regrets this lapse."
In response to the review, House Judiciary Committee Chairman Rep. John Conyers, D-Mich., criticized the Justice Department for not prosecuting Gonzales.
"This misconduct concerned not only some of his handwritten notes, but also 17 secret documents on surveillance and interrogation issues, of the highest classification level," he said. "The [Justice] Department ought to explain clearly why it declined to pursue charges against Mr. Gonzales and what actions it intends to take in response to the report."