White House Blocked Spy Program Probe

WASHINGTON, July 18, 2006 — -- The Justice Department's internal investigative arm repeatedly tried to get security clearances for investigators to examine the role Justice Department lawyers played in the National Security Administration eavesdropping program -- but was ultimately blocked by the White House from conducting the internal review, according to documents and testimony presented today at a Senate Judiciary Committee hearing.

A series of memos between the Office of Professional Responsibility (OPR), and senior Justice Department officials shows the difficulty OPR staff had in trying to get the security clearances they needed to properly review the program, known as the Terrorist Surveillance Program (TSP). Attorney General Alberto Gonzales revealed the issue today before an oversight hearing of the Senate Judiciary Committee.

"As with all decisions that are non-operation in terms of who has access to the program, the President of the United States makes the decision," Gonzales told the committee.

A letter sent Monday to Chairman of the Senate Judiciary Committee Sen. Arlen Specter, R-Pa., from Assistant Attorney General William Moschella notes, "decisions to provide access to classified information about the TSP for non-operation purposes are made by the President of the United States... every security clearance that is granted for the TSP increases the risk that national security may be compromised."

Revelations about the NSA program in the New York Times last year sparked controversy because the program, which is intended to intercept conversations of suspected al Qaeda members, allowed U.S. intelligence and counterterrorism officials to eavesdrop on U.S. residents without a warrant or judicial notification. Terrorism wiretaps of U.S. citizens have traditionally been approved by the secretive Foreign Intelligence Surveillance Court located at the Justice Department.

In a memo dated Jan. 20, 2006, the head of OPR, H. Marshall Jarrett, wrote to officials at the top levels of the Justice Department asking that seven employees in his office be granted security clearances as part of their investigation into "the role of Department attorneys in the authorization and oversight of warrantless electronic surveillance by the National Security Agency... in compliance with the Foreign Intelligence Surveillance Act."

Less than a month later Jarrett was still seeking access for his attorneys to conduct their review.

Jarrett sent a memo to Deputy Attorney General Paul McNulty noting that Criminal Division lawyers and FBI agents investigating the media leak had been given access. "A large team of attorneys and agents assigned to the case (the same clearances we have requested) was promptly granted, and that investigation is moving forward," he wrote.

During the hearing today, Specter expressed concerns about OPR not being given access to look at the actions of Justice Department attorneys in approving the NSA Program.

"It is very difficult to understand why OPR was not given clearance so that they could conduct their investigation... in approving the electronic surveillance program in the context where many lawyers in DOJ, in the Criminal Division and Civil Division, were given clearance," Specter said.

The request for the internal Justice Department review of the NSA program came after requests by Reps. Maurice Hinchey, D-N.Y., Henry Waxman, D-Calif., Rep. John Lewis, D-Ga., and Lynn Woolsey, D-Calif.. Eventually, as many as 40 other members of Congress would inquire about the OPR investigation.

In a memo Jarrett sent to McNulty on March 21, he again pointed out that his requests for security clearances had been blocked.

"OPR has been unable to move forward with its investigation," he said.

Citing requests to top Justice Department officials, including the deputy attorney general, Principal Deputy Attorney General William Mercer, and a request to Gonzales' deputy chief of staff Courtney Elwood, Jarrett notes, "To my knowledge, none of the requests has been acted upon."

In the March memo, Jarrett noted that other lawyers at the Justice Department were granted security clearances.

"We have also learned that individuals involved in the Civil Division's response to the legal challenges to the NSA program and response to [Freedom of Information Act] litigation have received the same clearances," he wrote. "Our repeated requests for access to classified information about the NSA program have not been granted."

In his March memo, Jarrett attempted to remind senior Justice officials about the role of the internal watchdog office, which was established in the wake of the Watergate scandal, after abuse and misconduct by Justice Department officials came to light. Jarrett has served as the head of the watchdog office since 1998 and was appointed by Attorney General Janet Reno.

"This office, which is charged with monitoring the integrity of the Department's attorneys and with ensuring that the highest standards of professional ethics are maintained has been precluded from performing it duties," he wrote.

In April, Jarrett gave up his request and noted that his investigation was shut down.

"Since its creation some 31 years ago, OPR has conducted many highly sensitive investigations involving Executive Branch programs and has obtained access to information classified at the highest levels," he stated in an April 21, 2006 memo. "In all those years, OPR has never been prevented from initiating or pursuing an investigation."

The Bush administration says that the problem was that the OPR had no business getting involved in an investigation of what its attorneys were doing.

"There were proper channels for doing legal review, and in fact, a legal review was done every 45 days, and the attorney general, himself, was involved in it," White House spokesman Tony Snow said at a briefing today. "The Office of Professional Responsibility was not the proper venue for conducting that."

The four members of Congress who initially requested the internal Justice Department investigation have sent a letter to the White House asking Bush to rethink his decision.

"We are perplexed and cannot make sense of your denial of these security clearances," the letter said. "Our request did not ask OPR to give us the intricate details of the NSA program; we understand that such a request would not even be within OPR's jurisdiction. There appear to be no reasonable grounds for blocking this investigation. Not only does your denial of their request for a security clearance not make sense, it is unprecedented."

Attorney General Gonzales and other administration officials have maintained that there has been extensive oversight of the NSA program. The attorney general has testified before Congress three times on the issues and answered more than 250 questions for the record.

Justice Department officials say the program continues to be reviewed every 45 days by officials at Justice, and by the NSA's inspector general. A proposal between the administration and Specter announced last week will allow the NSA program to undergo a judicial review by the 10 federal judges sitting on the FISA court.