DOJ Probes NSA Spying, Democrats Suspicious
Tuesday 28 November 2006
To view the letter that Congresswoman Zoe Lofgren (D-Calif.) sent to the DOJ click here
The Justice Department's Office of the Inspector General announced Monday that it will immediately launch a probe into
the agency's involvement with the National Security Agency's domestic surveillance program, raising suspicions among
Democrats, who believe the timing of the investigation is an attempt by the Bush administration to circumvent
Congressional hearings into the issue when they assume control of the House in January.
For nearly a year, Congressman Maurice Hinchey (D-NY) and Congresswoman Zoe Lofgren (D-Calif.) have led the charge
among House Democrats in calling for a federal investigation into the legality of the NSA's warrantless wiretap program.
News of the clandestine domestic spying operation, which President Bush said he had authorized in 2002 to track
terrorists, was reported by the New York Times in December 2005. The Times exposé angered members of the House, who said
they were never informed by the White House about the eavesdropping program - which on its face appeared to be taking
place in violation of the law. Eavesdropping on Americans had required intelligence officials to obtain a surveillance
warrant from a special court and show probable cause that the person they wanted to monitor was communicating with
suspected terrorists overseas. But Bush said that the process for obtaining such warrants under the 1978 Federal
Intelligence Surveillance Act was, at times, "cumbersome."
In a letter written December 22, 2005, to the Senate Select Committee on Intelligence, Assistant Attorney General
William E. Moschella wrote that the "president determined it was necessary following September 11 to create an early
warning detection system. FISA could not have provided the speed and agility required for the early warning detection
In August, a federal judge in Detroit ruled that the NSA program was unconstitutional and said it should end. The
Justice Department got a stay on the ruling, which allowed the wiretaps to continue pending the appeal.
Despite numerous letters that Hinchey, Lofgren and 37 other House Democrats have sent the Department of Justice
inspector general Glenn Fine during the course of 2006, Fine responded in writing that it wasn't his job to investigate
the wiretap program, suggesting that Hinchey write to another office within the Justice Department - the Office of
Professional Responsibility (OPR). Hinchey was told in February by Marshall Jarrett that an investigation was under way,
but Jarrett wrote to Hinchey in May that the probe was being shut down because OPR officials were unable to obtain the
security clearances that would have enabled them to conduct a sweeping investigation.
"I am writing to inform you that 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 explained in his letter to
Hinchey. "Beginning in January 2006, this office made a series of requests for the necessary clearances. 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."
During a hearing before Congress in July, Attorney General Alberto Gonzales testified that it was President Bush who
personally rejected the security clearance requests. But Bush suddenly and without reason changed his position on the
matter on October 20 and authorized the security clearances, according to Lofgren's office. On Monday, a Justice
Department official hand-delivered a letter to Hinchey that had been written by Fine stating that inspector general
would begin a "review" of the National Security Agency's eavesdropping program. This led Hinchey to suspect that the
White House is trying to undercut Congress's ability to conduct hearings into the legality of the NSA program when they
become the majority in January.
The inspector general "previously received clearances relating to the NSA program for myself and two other OIG
supervisors," Fine wrote in the letter to Hinchey dated November 27. "After conducting initial inquiries into the
program, we have decided to open a program review that will examine the Department's controls and use of information
related to the program and the Department's compliance with legal requirements governing the program. On October 20,
2006, I made a formal request to the attorney general for additional clearances for OIG staff to conduct this program
review. The attorney general forwarded the request to the White House, which makes the decisions on clearance requests
relating to the program. Last week, I received word that the request for clearances for the OIG staff to conduct this
review would be granted. As a result, the OIG has opened this program review, and I wanted to inform of the review."
Still, despite the White House's belated show of support, Hinchey said the investigation clearly doesn't go far enough,
because it doesn't delve into the legality of the surveillance. Hinchey intends to fire off another letter to Fine
demanding that the investigation be expanded to determine whether domestic surveillance is taking place in violation of
the law, and moreover, whether President Bush and Gonzales abused their power in authorizing the program. Moreover,
Hinchey said he is skeptical of the timing of the investigation.
"I wonder whether this reversal is only coming now after the election as an attempt to appease Democrats in Congress
who have been critical of the NSA program and will soon be in control and armed with subpoena power," Hinchey said.
"While it is important to learn how DOJ officials have handled the NSA program and determine whether any information
gathered from the program such as phone numbers has been used inappropriately, we need Inspector General Fine to expand
his probe to examine how the warrantless spy program was born, how it evolved, and what laws may have been violated by
administration officials as they implemented the program."
Jeff Lieberson, a spokesman for Hinchey, said in an interview Monday that the investigation "seems like a pre-emptive
move by the administration now that the Democrats control Congress. I think they are trying to stave off Congressional
hearings. I suspect that may be their thinking as to why they put this letter out now."
Kyra Jennings, a spokeswoman for Lofgren, agreed. She said the new Democratic Congress still has the authority to hold
hearings into the NSA program while the Inspector General's Office conducts its investigation. Lieberson said he
believes that is exactly what will transpire come January.
"I would be surprised if Democrats didn't look into the wiretaps despite the fact that the inspector general is
investigating," Lieberson said. Jennings added that while the timing of the probe may be questionable, "we'll find out
in due time whether this is a serious effort or a diversion."
A spokeswoman for Fine said she was not authorized to comment on the record. But she said on background that when the
inspector general denied calls for an investigation earlier this year, it was because he did not have the "jurisdiction
to review attorneys providing legal advice to the White House regarding oversight and the legality of the surveillance."
While that issue hasn't changed, the spokeswoman said, the inspector general now has the ability to "open a program
review." The spokeswoman would not comment on the timing of the investigation.
is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy
crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a
Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to
land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001.
Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote
speaker at more than two dozen energy industry conferences around the country.