Justice Department's Black Site

[Guest guest]

Liberty Beat

Justice Department's Black Site

The administration censors internal probe of lawbreaking by the Oval

Office and the NSA

by Nat Hentoff

June 4th, 2006 2:52 PM

 

What could they be hiding?

 

The president has already made clear that his definition of what is

legal applies to virtually anything he chooses to authorize in the

name of national security. . . . Mr. Bush's doctrine, which some call

the " new imperial presidency, " strikes at the heart of America's

constitutional separation of powers. Lead editorial Financial Times,

May 13

 

Having reported on the Justice Department since Robert Kennedy—with

very minimal concern for civil liberties—was attorney general, I've

learned to respect one of its divisions, the Office of Professional

Responsibility. It was created in 1975, and its investigators look

into ethical lapses and misconduct by the lawyers in the department.

Their current oversight range includes the Office of Legal Counsel,

the Criminal Division, and the National Security Division.

 

In January, four congressional Democrats—Maurice Hinchey of New York,

John Lewis of Georgia, and Henry Waxman and Lynn Woolsey of

California—asked the Office of Professional Responsibility to find out

who in the Justice Department told the president and General Michael

Hayden (then head of the National Security Agency) that it was legal

for the NSA to engage in warrantless eavesdropping on Americans as

well as in collection of their records (as recently revealed by USA

Today). A corollary question was whether George W. Bush started the

eavesdropping program even before he told the Justice Department he

was doing it.

 

As Republican senator Chuck Hagel of Nebraska put it succinctly on ABC

News' This Week on December 14—before the confirmation hearing of

General Hayden to become CIA director— " Who set that policy? " Hagel

didn't find out during that hearing, nor do he or the rest of us know

now, because the probe by the Office of Professional Responsibility

has been stopped cold.

 

On May 11, H. Marshall Jarrett, the OPR's counsel, told Congressman

Hinchey that the investigation was over because the National Security

Agency—obviously involved in the probe—refused to grant the OPR's

lawyers security clearance to proceed to look into the NSA's

classified programs. Said the frustrated Mr. Jarrett: " Without those

clearances, we cannot investigate this matter and therefore have

closed our investigation. "

 

In covering the Justice Department all these years, I was particularly

impressed by the integrity of the former head of OPR for a quarter

century—Michael Sheehan. Hearing that the investigation into who

authorized the president and Michael Hayden to violate the Foreign

Intelligence Surveillance Act had been closed down, Sheehan told

National Public Radio on May 12:

 

" No one in OPR for the 24 years I was there was denied the necessary

clearance, ever, and much less one that brought to a conclusion an

investigation. That just makes it smell the worse. "

 

And Larry Sims, a former deputy at the Justice Department whose

service there started in the Reagan administration, added:

 

" To say that an agency can block an investigation by refusing to give

[OPR] federal investigators the clearances they need is just

astounding. "

 

Moreover, Bruce Fein, a prominent conservative constitutional lawyer,

called this internal gag rule " bizarre " at, of all places, the Justice

Department.

 

Speaking of this historic ruling from on high that one branch of the

executive department can rule that another branch can't investigate

it, Fein, as he often does, sheds light on this darkness:

 

" Well, [all executive branches] are beholden to the president of the

United States. He decides what is to be unearthed, what is to be

disclosed, and it's clear that Mr. Bush is deciding he won't permit an

investigation as to the legal advice he received about the warrantless

surveillance program of the National Security Agency. "

 

This would not be the first time in this administration that an

investigation of the Justice Department demanded by members of

Congress was shut down. Ari Shapiro, National Public Radio's astute

investigative reporter, noted in the interview with Fein that " in

February, the White House blocked a Senate inquiry into the NSA's

eavesdropping by refusing to allow former attorney general John

Ashcroft [father of the Patriot Act] and his deputy to testify before

the Senate Judiciary Committee about reported internal controversy

over the program. "

 

Soon after 9-11, Vice President Dick Cheney foretold how deep and

pervasive the secrecy of this administration would become when he

said: " We also have to work the dark side. . . . We've got to spend

time in the shadows " —while the rest of us are increasingly in the

dark. I strongly recommend you watch a characteristically first-rate

documentary by Frontline scheduled for broadcast on PBS June 20.

Titled The Dark Side, the program features, among others in the

administration, the inimitable Vice President Cheney.

 

On May 11, Republican Arlen Specter, chair of the Senate Judiciary

Committee, wrote Attorney General Alberto Gonzales, who is no stranger

to operating in the shadows: " I cannot understand why the Department

has denied the clearances necessary for this . . . internal

oversight. " And he asked Gonzales to " forward all memoranda, documents

or notes " concerning that decision.

 

And Senator Patrick Leahy, ranking minority member of the Senate

Judiciary Committee, also wrote to Gonzales: " You and the President

have often alluded to the Executive Branch monitoring itself. This is

a clear indication of how inadequate such internal monitoring is. I

join Chairman Specter's request for a full explanation of these

actions. As an immediate matter you should reverse this effort to

stonewall, and proceed to provide the clearances and access to

information that is needed for OPR to conduct a thorough investigation

into these matters. "

 

Since the attorney general has to ask the boss in the Oval Office

whether to accede to these senators' requests, maybe the president's

press secretary, Tony Snow, will let us know when the president will

allow his own Justice Department's investigators to tell the

senators—and us—who told him and General Michael Hayden that they are

above the law.

 

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