© National Journal Group Inc.
Thursday, March 15, 2007
Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.
Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work.
It is unclear whether the president knew at the time of his decision that the Justice inquiry -- to be conducted by the department's internal ethics watchdog, the Office of Professional Responsibility -- would almost certainly examine the conduct of his attorney general.
Had it not been quashed, a Justice Department inquiry into the domestic eavesdropping program would likely have examined the actions of Alberto Gonzales.
Sources familiar with the halted inquiry said that if the probe had been allowed to continue, it would have examined Gonzales's role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general.
Both the White House and Gonzales declined comment on two issues -- whether Gonzales informed Bush that his own conduct was about to be scrutinized, and whether he urged the president to close down the investigation, which had been requested by Democratic members of Congress.
Current and former Justice Department officials, as well as experts in legal ethics, question the propriety of Gonzales's continuing to advise Bush about the investigation after learning that it might examine his own actions. The attorney general, they say, was remiss if he did not disclose that information to the president. But if Gonzales did inform Bush about the possibility and the president responded by stymieing the probe, that would raise even more-serious questions as to whether Bush acted to protect Gonzales, they said.
President Bush's shutting down of the Justice Department probe was disclosed in July. However, it has not been previously reported that investigators were about to question at least two crucial witnesses and examine documents that might have shed light on Gonzales's role in authorizing and overseeing the eavesdropping program.
Investigators from the Office of Professional Responsibility notified senior aides to Gonzales early last year that the first two people they intended to interview were Jack Goldsmith, who had been an assistant attorney general for the Office of Legal Counsel, and James A. Baker, the counsel for Justice's Office of Intelligence Policy and Review. Both men had raised questions about the propriety and legality of various aspects of the eavesdropping program, which was undertaken after September 11 as an anti-terrorism tool.
H. Marshall Jarrett, the head of OPR, informed senior Justice officials in a January 20, 2006, memo that he had "asked the Office of Legal Counsel to provide information and documents in its possession relating to the [National Security Agency] program." The memo also said that the office had asked Baker to "submit to an interview concerning the NSA program and its relationship to the department's dealings with the [Foreign Intelligence Surveillance Act] court."
Law enforcement officials said that Gonzales's senior aides then informed him that OPR wanted to launch its inquiry by interviewing Goldsmith and Baker.
Goldsmith and others within the Office of Legal Counsel had clashed with Gonzales when Gonzales had been a strong advocate of the eavesdropping program during his tenure as White House counsel. Then-Attorney General John Ashcroft and then-Deputy Attorney General James B. Comey shared some of the same concerns as Goldsmith about the program's legality, according to interviews with current and former officials and to published accounts.
The Justice Department officials told Gonzales and other White House aides in early 2004 that they would not support the reauthorization of the program, which was first authorized in 2002, unless changes were made to bring it into legal compliance.
Although the White House agreed to the modifications, some members of Congress, legal scholars, and several federal judges continued to express reservations that the program was outside the law or was unconstitutional. On January 17 of this year, the Bush administration altered the controversial program, saying it would no longer allow eavesdropping without warrants on electronic communications between individuals within the U.S. and individuals abroad having suspected terrorist ties. The administration agreed that all requests for electronic eavesdropping would, as was the case before the program's inception, be subject to judicial review by a special federal court under the Foreign Intelligence Surveillance Act.
Worries At Justice
A senior federal law enforcement official said that after OPR launched its inquiry in early 2006, Justice Department political appointees were concerned that the internal ethics office might conclude that Gonzales or other administration officials had sidestepped the law in the authorization and oversight of the program.
OPR did not have a mandate to determine whether the eavesdropping program itself was illegal or unconstitutional. Rather, the office was to investigate "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.
Baker, the counsel for Justice's intelligence office -- and the second official whom OPR investigators were eager to interview -- had warned the presiding judge of the FISA court that authorities improperly used information from the program to obtain surveillance warrants submitted to the court, Justice officials recalled in interviews.
If the Justice inquiry had been allowed to continue, Baker would almost certainly have been asked about any discussions he had with Gonzales and his top aides regarding these issues, according to officials close to the inquiry.
Jarrett undertook his investigation after receiving a request on January 9, 2006, from Rep. Maurice Hinchey, D-N.Y., and three other House Democrats. Hinchey and the other lawmakers were responding to a December 16, 2005, New York Times article that disclosed the program's existence.
In his January 20 memo, Jarrett asked that he, four other attorneys in his office, and two administrative aides receive security clearances so that they could proceed with their investigation. OPR had never before been denied security clearances in its three-decade existence, according to former Justice Department officials. And the Bush administration had granted such clearances to a score of other Justice officials, enabling them to learn classified details of the program, as well as to a group of private citizens on a presidential privacy board.
Stephen Gillers, a law professor at the New York University School of Law and an expert on legal ethics issues, questioned Gonzales's continued role in advising Bush in any capacity about the probe after he learned that his own conduct might be scrutinized: "If the attorney general was on notice that he was a person of interest to the OPR inquiry, he should have stepped aside and not been involved in any decisions about the scope or the continuation of the investigation."
Robert Litt, a principal associate deputy attorney general during the Clinton administration, agreed. Gonzales "should have recused himself. He should not have played a role in an investigation that touches upon him."
An even more serious issue, according to Gillers, Litt, and others is whether Gonzales informed Bush that the investigation was going to examine his actions. "Did the president know that Gonzales might have been shutting down the police force when it was looking into his own behavior?" Gillers asked.
Charles Wolfram, a professor emeritus of legal ethics at Cornell University Law School, said that if Gonzales did not inform the president, Gonzales ill-served Bush and abused "the discretion of his office" for his own benefit. However, if Gonzales did inform Bush that the probe might harm Gonzales, then "both [men] are abusing the discretion of their offices," Wolfram said.
When it was disclosed in July that Bush himself had halted the OPR investigation, White House press secretary Tony Snow said that the president's decision was justified because the eavesdropping program was already subject to other executive branch oversight. "The Office of Professional Responsibility was not the proper venue for conducting that." Snow also said that the president's denial of the security clearances was warranted because "in the case of a highly classified program, you need to keep the number of people to it tight for reasons of national security, and that was what he did."
Contacted by National Journal, Dana Perino, a White House spokeswoman, declined to comment about any conversations that took place between President Bush and his attorney general: "The White House does not comment on private conversations that the president has with his senior advisers and his Cabinet. And that has been, and will continue to be, our standard operating procedure. The attorney general is one such close adviser to the president."
Perino also said that any discussions between Bush and Gonzales regarding the OPR investigation were appropriate because "the terrorist surveillance program is a highly classified national security tool to fight the global war on terror."
According to accounts that Gonzales and his aides gave to others in the department, Gonzales did advise Bush on the issue of the OPR inquiry.
In a March 21, 2006, memo citing his inability to obtain security clearances, Jarrett, the head of OPR, wrote to Paul McNulty, the deputy attorney general, complaining that OPR was being "precluded from performing its duties."
In contrast, Jarrett noted, the administration promptly approved "the Criminal Division's request for the same security clearances for a large team of attorneys and FBI agents that was investigating who initially leaked details of the NSA eavesdropping program to The New York Times."
Jarrett continued: "We have also learned that individuals involved in the Civil Division's response to legal challenges to the NSA program and responses to [Freedom of Information Act] litigation have received the same clearances. And according to the recent press reports, the five private individuals who make up the Privacy and Civil Liberties Oversight Board have been briefed on the NSA program and have been granted authorization to receive the clearances in question.
"In contrast, our repeated requests for access to classified information about the NSA program have not been granted. 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."
A senior federal law enforcement official said in an interview that granting clearances to nongovernmental citizens while refusing to grant them to department attorneys demonstrates "that the decision not to grant clearances to OPR had everything to do with politics and nothing to do with keeping national security secrets."
Current and former Justice Department officials called Bush's actions unprecedented in the office's history.
Michael Shaheen, who headed OPR from its inception until 1997, told National Journal last May 27 that his staff "never, ever was denied a clearance" and that OPR had conducted numerous investigations involving the activities of other attorneys general. "No attorney general has ever said no to me," Shaheen said. "If I were still at OPR and was told I couldn't have security clearances, the first word out of my mouth ... would have been, 'Balderdash!'"
After Jarrett was unable to obtain the security clearances, he wrote to the members of Congress who had asked him to undertake the inquiry. "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," Jarrett said in a letter to Rep. Hinchey dated May 10, 2006. "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."
Hinchey and other Democratic House members asked Jarrett why he was unable to obtain the necessary clearances; Jarrett's superiors, according to government records and to interviews, instructed him not to inform Congress that President Bush had made the decision.
Jarrett thus wrote back to Hinchey and three other House Democrats 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."
On July 18, Gonzales himself disclosed that President Bush had halted the OPR probe. His disclosure came in response to a question by then-Senate Judiciary Committee Chairman Arlen Specter, R-Pa., in light of a May 27 National Journal story that raised questions as to who made the decision to deny OPR its security clearances.
Previously, Justice Department officials had suggested that the decision was made within the Justice Department itself, or because the National Security Agency did not want to grant those clearances.
The most detailed public explanation about the president's actions is contained in a July 27, 2006, letter from Assistant Attorney General William Moschella to members of the Senate Judiciary Committee:
"The president decided that protecting the secrecy and security of the program requires that a strict limit be placed on the number of persons granted access to information about the program for nonoperational reasons. Every additional security clearance that is granted for the [terrorist surveillance program] increases the risk that national security may be compromised."
Federal law enforcement officials said that Gonzales and his top aides learned about OPR's plans to scrutinize the attorney general from Jarrett. OPR's chief informed senior Justice officials that he wanted to review records of the Office of Legal Counsel, where Goldsmith and his aides had questioned the legality of some aspects of the NSA program, and to also interview Baker, who had raised other reservations about the implementation and auditing of the program. Both Goldsmith, now a Harvard Law School professor, and Baker declined to comment for this story.
Goldsmith, in particular, would have been a key witness to the OPR probe; as assistant attorney general in charge of the Office of Legal Counsel, he began to develop reservations about the legality of certain aspects of the NSA eavesdropping program, according to published reports and interviews with current and former administration officials.
Almost immediately after being named as head of the legal counsel office, Goldsmith became a thorn in the side of the White House and, more particularly, to Vice President Dick Cheney, his then-chief of staff, I. Lewis "Scooter" Libby, and his then-counsel, David Addington.
When he was named to his post, Goldsmith "seemed like a natural fit," a February 2006 Newsweek article recounted. "He was brilliant, a graduate of Oxford and Yale Law School, and he was a conservative." Over time, however, he became "the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers" against the White House's legal claims that the president should have "virtually unlimited powers in the war in terror."
Goldsmith had invoked the ire of Cheney and Addington shortly after joining Justice, when he considered withdrawing a former opinion by his office that allowed the use of torture against terrorism suspects.
"In frequent face-to-face confrontations," the article said, Addington "attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk."
Even worse, in the view of Cheney and Addington, Goldsmith began to question the legality of various aspects of the NSA eavesdropping program. Goldsmith found a sympathetic ear and ally when James Comey was appointed deputy attorney general in late 2003. A no-nonsense federal prosecutor who at the time of his appointment was the U.S. attorney general for the Southern District of Manhattan, Comey eschewed politics within an administration that demanded political loyalty, senior Justice officials recalled in interviews. Comey supported Goldsmith's contentions that absent significant changes to the eavesdropping program, portions of it were illegal.
Comey certainly would have been interviewed at length during the OPR probe, according to sources close to the investigation. Earlier, he had earned the enmity of some in the White House, a former senior administration official recalled in an interview, when Comey named a special prosecutor to investigate who leaked the identity of CIA officer Valerie Plame to the media.
"Comey showed us that he was a guy who wouldn't be kept on a leash," said a former White House official, "in an administration that likes to keep everybody on a short leash."
In March 2004, while then-Attorney General Ashcroft was in the hospital, Comey faced down the White House, asserting that he wouldn't reauthorize the eavesdropping program unless it was brought within the law. Ultimately, a compromise was reached and the NSA eavesdropping program was reauthorized with the changes recommended by Goldsmith and Comey.
That Goldsmith, Baker, and Comey might be questioned as part of a Justice Department inquiry "must have raised the specter of a waking nightmare for the AG," a former senior Justice Department official said in an interview.
In the meantime, it is unlikely that Congress will find out anytime soon what Bush and Gonzales discussed regarding the OPR investigation.
Justice officials wrote then-Senate Judiciary Committee Chairman Specter on July 17, 2006: "Consistent with long-standing executive practice, documents that reflect internal deliberations about these matters [will] not be produced."