Bush Blocked Internal Justice Probe of Wiretaps

Times Staff Writer

President Bush personally sidetracked an internal Justice Department probe into the warrantless domestic surveillance program earlier this year, even as other Justice officials were assigned to defend the program in court and investigate who may have leaked information about it to the news media, according to administration officials and documents released Tuesday.

Raising new questions about the administration’s accountability for secret anti-terrorism programs, the White House acknowledged Tuesday that Bush withheld security clearances that attorneys within the Justice Department’s Office of Professional Responsibility said they needed to investigate whether department lawyers had acted properly in approving and overseeing the controversial spy program run by the National Security Agency.

The Office of Professional Responsibility, which is the Justice Department’s internal ethics unit, had been asked by congressional Democrats in January to review the role that department officials played in the creation and operation of the program that intercepted millions of overseas telephone calls and e-mails originating in the U.S. The program was designed to gather intelligence on possible terrorists.

The Justice Department unit was forced to abandon the probe in April because of its inability to obtain the necessary clearances, although until Tuesday it was unclear who made the decision to withhold them. Officials said they could not recall a case where an investigation by the professional-responsibility unit had been blocked since the unit was created after the abuses of the Watergate era.


Bush’s involvement -- revealed by Atty. Gen. Alberto R. Gonzales in testimony Tuesday before the Senate Judiciary Committee and later elaborated upon by White House Press Secretary Tony Snow -- added fuel to the debate over one of the administration’s most intensely debated anti-terrorism moves.

The government has used the program, launched shortly after the Sept. 11 attacks, to monitor international communications by people on U.S. soil in cases where NSA analysts suspect terrorists may be involved. Such surveillance normally requires judicial warrants, but the administration has argued that warrants are unnecessary in part because of the inherent constitutional power of the president to conduct war.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) suggested at the hearing Tuesday that the administration was employing a double standard. Other Justice Department lawyers were given security clearances to defend the NSA program against legal challenges and to pursue government officials suspected of leaking details of the program to the New York Times, which broke the story in December, Specter said.

“With so many other lawyers in the Department of Justice being granted clearance, it raises the obvious question of whether there was some interest on the part of the administration in not having that opinion given,” Specter said.

“The president of the United States makes decisions about who is ultimately given access,” Gonzales responded.

“Did the president make the decision not to clear OPR?” Specter asked.

“As with all decisions that are nonoperational, in terms of who has access to the program, the president of the United States makes the decision because this is such an important program,” Gonzales said.

Later, speaking to reporters at the White House, Snow said Bush believed that the legality of the program was already being considered by others in the government and that the president was concerned about widening the circle of people who knew about the program for fear that it might be further compromised. The administration has said that the program’s operations are regularly reviewed by the general counsel of the NSA, as well as by the agency’s inspector general, among others.

“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. The Office of Professional Responsibility was not the proper venue for conducting that,” Snow said.

“What he was saying is that in the case of a highly classified program, you need to keep the number of people exposed to it tight for reasons of national security, and that’s what he did.”

But Democrats who requested the original investigation called on Bush to reverse his stand. They had asked the professional-responsibility unit to investigate reports of internal discord within the Justice Department about the legality of the program and to pursue such questions as whether the administration had enacted the program before the department weighed in with a legal opinion.

Rep. Maurice D. Hinchey (D-N.Y.), a driving force behind the investigation, said he was concerned that the administration was trying to “cover up” problems with the program. Hinchey and other Democrats, including Rep. Henry A. Waxman of Los Angeles and Rep. Lynn Woolsey of Petaluma wrote Bush on Tuesday asking him to reconsider.

“We respectfully ask that you stop impeding the OPR investigation and allow OPR to do its job,” the lawmakers told Bush. “If the NSA program is justified and legal, as you yourself have indicated, then there is no reason to prevent this investigation from continuing.”

On Tuesday, the Justice Department also released copies of correspondence between OPR chief H. Marshall Jarrett and members of Gonzales’ staff detailing Jarrett’s frustrations with seeking clearances for his staff.

Jarrett said a large team of attorneys and agents assigned to a criminal investigation aimed at identifying who may have illegally leaked information about the program to the news media had promptly received security clearances. He noted that other administration figures -- including members of an administration privacy and civil liberties oversight board -- had been told about the NSA program.

“In contrast, our repeated requests for access to classified information about the NSA program have not been granted,” Jarrett said in a March 21 letter to Deputy Atty. Gen. Paul J. McNulty. “As a result, 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 its duties.”

Jarrett told McNulty in an April 21 letter that the failure to obtain clearances was unprecedented. “Since its creation 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,” Jarrett wrote.

“OPR has never been prevented from initiating or pursuing an investigation.”