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JUSTICE DEPARTMENT'S BLACK SITE: THE ADMINISTRATION CENSORS INTERNAL PROBE OF LAWBREAKING BY THE OVAL OFFICE AND THE NSA
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""To say that an agency can block an investigation by refusing to give [OPR] federal investigators the clearances they need is just astounding.""
villagevoice.com/news/0623,hentoff,73418,6.html [link to villagevoice.com]
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
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."
[link to www.villagevoice.com]
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