Bush blocked probe of NSA spy program, Gonzales says

Investigation of domestic surveillance was sought by Democrats

July 19, 2006|By SIOBHAN GORMAN | SIOBHAN GORMAN,SUN REPORTER

WASHINGTON -- President Bush personally blocked an internal Justice Department investigation of the National Security Agency's warrantless surveillance program earlier this year, Attorney General Alberto R. Gonzales said yesterday.

The review had been requested by Democratic critics of the program, and Justice Department lawyers said in April that they were denied the security clearances needed to conduct the review. The administration had not acknowledged until now that it was Bush's decision to thwart the investigation.

The denial of security clearances to lawyers from the Office of Professional Responsibility, which reviews ethical and legal conduct at the department, has frustrated critics, including Senate Judiciary Committee Chairman Arlen Specter, who had been pushing for a court examination of the program.

Under questioning from Specter, a Pennsylvania Republican, at a committee hearing yesterday, Gonzales indicated that Bush made the decision to deny Justice Department lawyers access to information about the NSA program.

Direct answer

The answer was far more direct than his response at a news conference in May, when Gonzales refused comment.

An internal Justice Department memo in April, released yesterday, said the administration had granted clearances to a "large team of attorneys and FBI agents" to investigate news leaks of the NSA program. Lawyers defending the department against lawsuits involving the program also had no trouble getting clearances, according to the memo.

"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.

Gonzales would not say why the clearances were denied, but White House press secretary Tony Snow told reporters that the president felt the review by the Office of Professional Responsibility was unnecessary because the program had undergone other legal reviews, as the administration has repeatedly said. The presidential order authorizing the program states that it must be reviewed by the White House every 45 days.

"You need to keep the number of people exposed to it tight for reasons of national security. And that's what [Bush] did," said Snow.

Legal scholars said the president has the authority to deny security clearances to government officials, unless Congress passes a law saying he cannot.

University of Richmond law professor Carl Tobias said that even if Congress were to pass a law requiring the Justice Department office to investigate the program, Bush would likely argue that his constitutional war powers allow him to block the probe.

"We're in the same stalemate," he said.

The Justice Department's Office of Professional Responsibility began its investigation after four House Democrats requested it in January.

Democratic Rep. Maurice D. Hinchey of New York, who has been among those trying to force the administration to disclose who had denied clearances to the Justice Department lawyers, wants Bush to re-open the investigation.

Letter to 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," Hinchey said yesterday in a letter to Bush.

Specter, who has attempted to forge a compromise over the NSA program's legality, announced last week that Bush had agreed to submit the program for review by the secret court that issues search warrants in national security cases.

But the deal came with a number of additional requirements. And yesterday, Senate Democrats raised objections. They argued in a letter that the agreement amounted to an end-run around requirements to obtain warrants to eavesdrop on Americans.

Their objections highlighted the fragility of the deal and raised questions about whether it would garner sufficient support from Congress, Tobias said.

For example, Specter's proposal would redefine key terms in the 1978 law that created the secret court and its warrants. Democrats argued that would mean that "many types of surveillance that now require a warrant will no longer require one if your bill is enacted."

Legal jeopardy

Senate Democrats also said that a recent Supreme Court decision striking down the administration's military tribunals had put the NSA program in legal jeopardy.

Sen. Russ Feingold of Wisconsin said the Supreme Court ruling suggests that the court would not accept either of the administration's arguments for the legality of the NSA program: that congressional action authorizing the use of force against the perpetrators of the Sept. 11 attacks and the president's wartime powers give him the authority to eavesdrop in this country.

Gonzales repeatedly maintained, however, that the president's inherent wartime powers permit him to eavesdrop inside the United States, regardless of the recent ruling on military tribunals.

"I continue to believe that a majority of this court would find that the electronic surveillance of the enemy during a time of war is fundamentally incident to waging war," he told the committee.

siobhan.gorman@baltsun.com

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