Attorney General Alberto Gonzalestestified before the Senate Judiciary Committee today that President Bush personally halted an internal Justice Department investigation into whether Gonzales and other senior department officials acted within the law in approving and overseeing the administration's domestic surveillance program.
President Bush made the decision to deny the security clearances for the investigators, Alberto Gonzales said in his testimony before the Senate.
The investigation, by the Justice Department's Office of Professional Responsibility, was halted when lawyers who were going to conduct the investigation were denied the security clearances that would have allowed them to view classified documents related to the surveillance program. President Bush made the decision to deny the security clearances for the investigators, Gonzales said in his testimony today.
"The president of the United States makes the decision," Gonzales said in response to a question by Sen. Arlen Specter, R-Pa., the chairman of the Judiciary Committee, who wanted to know who denied the clearances to the investigators.
The statement by Gonzales stunned some senior Justice Department officials, who were led to believe that Gonzales himself had made the decision to deny the clearances after consulting with intelligence agencies whose activities would be scrutinized, a senior federal law enforcement official said in an interview.
Gonzales was questioned by Specter in light of a May 27 story in National Journal that reported that the OPR investigation was quashed because of the refusal to allow investigators security clearances. Senior Justice Department officials told National Journal then that the investigators were seeking only information and documents relating to the National Security Agency's surveillance program that were already in the Justice Department's possession.
A senior Justice official said that the refusal to grant the clearances was "unprecedented" and questioned whether the clearances were denied because investigators might find "misconduct by those who were attempting to defeat" the probe from being conducted. The official made the comments without knowing that Bush had made the decision to refuse the clearances.
H. Marshall Jarrett, OPR's lead counsel, wrote Deputy Attorney General Paul McNulty, on April 21, 2006, to point out that while OPR was denied security clearances to conduct its inquiry, requests from prosecutors and FBI agents tasked with investigating who first leaked details of the NSA surveillance program to the New York Times were "promptly granted."
"We note...," Jarrett wrote, "that the Criminal Division's request for the same security clearances from a large team of attorneys and FBI agents were promptly granted, and that their investigation of certain news leaks about the NSA program is moving forward."
Jarrett also noted that while he and his attorneys were denied the clearances, five "private individuals" who serve on the president's "Privacy and Civil Liberties Oversight Board have been briefed on the NSA program and have been granted authorization to receive the clearances in question." Private citizens -- especially those who serve only part-time on governmental panels -- have traditionally been considered higher security risks than full-time government employees, who can lose their jobs or even be prosecuted for leaking to the press.
In sharp contrast, Jarrett noted, OPR's "repeated requests for access to classified information about the NSA have not been granted. As a result, this Office, which is charged with monitoring the integriy of the Department's attorneys and with ensuring that the highest standards of professional ethics are maintained, has been precluded from performing its duites."
During the Senate Judiciary Committee hearing today, Specter asked Gonzales, "Why wasn't OPR given clearances as so many other lawyers in the Department of Justice were given clearance?"
"The president of the United States makes decisions about who is ultimately given access, " Gonzales responded.
Pressing the attorney general further, Specter asked, "Did the president make the decision not to clear OPR?"
Gonzales responded, "As with all decisions that are non-operational in terms of who has access to the program, the president of the United States makes the decision."
Michael Shaheen, who headed the OPR from its inception until 1997, said in a telephone interview in May 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.
A spokesman for the Justice Department didn't immediately return a phone call asking for more information on Gonzales's disclosure today.
White House spokesman Tony Snow said Bush was justified in not granting the security clearances because "the Office of Professional Responsibility was not the proper venue for conducting" an inquiry of Gonzales and other government attorneys. Snow also said there was other governmental oversight in place of the NSA's program to ensure that it was being conducted within the law.
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. 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.
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.
Jarrett wrote to Hinchey in early February to say 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 Jarrett subsequently 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."
When Hinchey and other Democratic House members inquired of Jarrett as to why he was not able to obtain the necessary clearances, Jarrett wrote them back on June 8 that he could not answer their questions because to do so "would require me to disclose client confidences and internal Justice Department deliberations, which I am precluded from doing."
In a phone interview today, Hinchey said that he was "not terribly surprised by the news" that it was President Bush who stymied the Justice probe by denying the clearances. He questioned whether Bush took the action to protect his own attorney general from the inquiry.
"It was the president of the United States himself who prevented this investigation from going forward. In obstructing the investigation, he was protecting the people around him, and not protecting the Constitution," Hinchey said.
Hinchey also asserted that "Congress has been complicit" with the administration in "disregarding the Constitution by not conducting its own inquiry into the matter: This has been a rubber-stamp Congress that has not stood up to the administration and for the separation of powers provisions in the Constitution," he said.
Previous coverage of pre-war intelligence and the CIA leak investigation from Murray Waas. Shane Harris also contributed to this story.