Gonzales' unprecedented efforts to block a FISA investigation

The denial of security clearances by the attorney general and the president in order to block an investigation by OPR was the first ever such denial.

Published March 16, 2007 1:29PM (EDT)

(updated below - updated again)

Last July, it was revealed that the Office of Professional Responsibility in the Justice Department -- the office "responsible for investigating allegations of misconduct involving Department attorneys" -- repeatedly attempted to investigate whether DOJ lawyers acted improperly concerning their role in the President's warrantless eavesdropping program, but finally stopped their investigation because the President refused to give them the security clearances they needed to conduct the investigation.

Yesterday, Murray Waas reported in National Journal that it was Alberto Gonzales who advised the President to deny those clearances even after Gonzales "learned that his own conduct would likely be a focus of the investigation." The investigation which they blocked "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."

The attempt to obstruct OPR's investigation by refusing its investigators security clearances has always been extremely suspicious and impossible to defend, and this story never really received the attention it merited. Not only have virtual armies of DOJ lawyers and other officials been given security clearance to work on the "Terrorist Surveillance Program," but even more incriminatingly, the President granted multiple security clearances of the type sought by OPR in order to allow the DOJ to investigate the leak of the NSA program to The New York Times.

Thus, when it came to trying to find and punish the whistleblower, the President granted all the security clearances the DOJ needed. But when it came to investigating whether the DOJ lawyers, including Alberto Gonzales, acted improperly, perhaps even illegally, the President blocked the investigation, at Gonzales' behest, by (as always) invoking and exploiting national security concerns to deny the necessary clearances.

Denial of the clearances to OPR is an extraordinary act. In June, 2006, Gonzales appeared before the Senate Judiciary Committee and either refused to answer or claimed he was unable to answer a long list of questions on countless topics. He agreed at the hearing to provide follow-up answers in writing. But for the next six months, the DOJ ignored that promise and provided nothing. It was only once Democrats took over Congress did the DOJ finally get around to answering those inquiries, and did so in the form of a January 18, 2007 letter from the DOJ's Richard Hertling (recently posted by the FAS here - .pdf).

One of the questions Gonzales was repeatedly asked was whether a security clearance had ever been previously denied to OPR. He continuously refused to answer, but was finally forced to in the January, 2007 letter:


What makes the denial of these clearances to OPR -- the first ever in its history -- even more extraordinary and suspicious is the sheer numbers of government employees who have been granted these clearances for other purposes. In an April 21, 2006 letter from the OPR's Marshall Jarrett to Gonzales arguing for such clearances, Jarrett listed but a sampling of others who have been granted these same clearances:

The plainly illegal warrantless eavesdropping program is still, in my view, the area in which real investigations are most needed. And this obstructed OPR investigation is part of a clear, broader pattern whereby all such investigations into the NSA program have been blocked.

The administration has fought vigorously to prevent every possible avenue for scrutiny of their conduct -- from the court cases challenging the legality of the NSA program which they continue to try to impede, to prior attempted Congressional investigations by the Senate Intelligence Committee, and even to internal scrutiny such as the investigation which OPR sought to conduct. This OPR avenue was almost certainly of particular concern to them -- hence the unprecedented efforts to block it -- because DOJ attorneys knew that the warrantless eavesdroppoing program was illegal -- and internal DOJ documents which they have repeatedly refused to disclose almost certainly reflect that knowledge -- and yet the DOJ lawyers authorized the program even in the face of their knowledge of its unlawfulness.

The central purpose of FISA is to require oversight outside of the executive branch for any eavesdropping conducted on Americans because of the decades-long history of abuse of the eavesdropping power. We still do not know how the administration exercised that power in secrecy for five years when they were breaking the law, and it is long past time to find out.

And Alberto Gonzales' plainly improper role in blocking an investigation which would have encompassed his own behavior should be added to the growing list of evidence showing just how corrupt he is. Despite all of that, it is imperative to keep in mind that there is nothing special about Alberto Gonzales. What he is, first and foremost, is a Bush loyalist, and his behavior is always a reflection, an outgrowth, of how the President thinks and how this administration has conducted itself for years.

UPDATE: House Judiciary Committee Chairman John Conyers wrote a letter (.pdf) to Gonzales yesterday about this matter, citing Waas' article and directing Gonzales to "immediately address" this question: "did you advise the President that the OPR inquiry should be shut down and did you inform the President that your own conduct would be a subject of the inquiry?" (h/t Bamage).

There is one reason and one reason only why there is suddenly such a tidal wave of revelations concerning extreme misconduct by the Bush administration: namely, the subpoena power which the American people vested in the Democrats last November. Democrats are unlikely to do anything about the war in Iraq and multiple other critical items, and that is just as disgraceful and infuriating as one can express. But the real promise of a Democratic victory in November was always the investigative power -- the ability to expose the true extent of corruption and wrongdoing of the entire Bush edifice. That process is only beginning -- there is much, much more to come -- but it is a vital prerequisite for demonstrating to Americans just how pervasive and deliberate has been the criminality of this Government, aided and abetted for years by their limitlessly loyal Republican Congressional servants.

UPDATE II: A similar letter to Gonzales which also cites Waas' article -- signed by Senate Judiciary Committee members Feingold, Kennedy, Durbin and Schumer -- is here. (.pdf). That letter demands that, "due to the seriousness of this matter," Gonzales answer questions about the story "as soon as possible, and in no case later than Tuesday, March 20."

These were the kinds of demands for information -- designed to learn what the Executive branch was doing -- that were completely ignored by the administration for years and, to their ultimate disgrace, continuously blocked by Congressional Republicans, whose only goal for the last six years has to been to prevent the Leader from having any oversight at all. These demands for information can no longer be ignored. I assume (or at least hope) that Congressional Democrats realize that getting actual, truthful information is going to take more than just a letter or even a subpoena, but at the very least, their ability to demand information keeps these stories alive and enables further inquiry.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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