AP article on new DOJ probe of domestic spying program failed to note that Bush blocked previous one

››› ››› JOSH KALVEN

In reporting on the Justice Department's probe into the Bush administration's warrantless domestic surveillance program, the Associated Press left out the fact that President Bush had effectively shut down a previous probe -- by the department's Office of Professional Responsibility -- by denying investigators the necessary security clearances.

In a November 27 article, Associated Press staff writer Lara Lakes Jordan reported that the Department of Justice (DOJ) had launched a probe into the department's handling of information gleaned using the Bush administration's warrantless domestic surveillance program. But while Jordan noted that Glenn A. Fine, the DOJ's inspector general, had previously declined requests to investigate the legality of the eavesdropping program in early 2006, she left out the fact that the department's Office of Professional Responsibility (OPR) had been forced to abandon a separate probe into DOJ lawyers' involvement in the program after President Bush personally denied investigators the necessary security clearances.

Following the public disclosure in December 2005 of the warrantless domestic surveillance program authorized by Bush and operated by the National Security Agency (NSA), Rep. Zoe Lofgren (D-CA) and numerous other Democrats requested that Fine begin an immediate investigation into whether the program violated the law. In early January 2006, Fine announced that he did not have the jurisdiction to investigate the legality or constitutionality of the program. He then deferred the request to OPR, which "reviews allegations of attorney misconduct involving violation of any standard imposed by law, applicable rules of professional conduct, or Departmental policy" and "serves as the Department's contact with state bar disciplinary organizations."

Soon after, OPR launched a probe into the DOJ's "role in authorizing, approving and auditing certain surveillance activities of the National Security Agency, and whether such activities are permissible under existing law." But in May 2006, the office informed members of Congress that it had been forced to abandon the investigation because members of the office had "been denied security clearances for access to information about the NSA program." Attorney General Alberto R. Gonzales later disclosed, during his July 18 testimony before the Senate Judiciary Committee, that Bush himself had refused to grant the necessary clearances to OPR investigators.

In her November 27 article, Jordan reported that Fine had that day informed House Judiciary Committee members of his decision "to open a program review that will examine the department's controls and use of information related to the [NSA] program." According to a November 28 New York Times article by reporter Eric Lichtblau, an official in Fine's office, speaking on grounds of anonymity, stated that the current investigation will not "review the legality or constitutionality of the program":

An official with the inspector general's office, who spoke on condition of anonymity, said the office's position had not changed since it declined to review the program in January. "It was beyond our jurisdiction, and it still is beyond our jurisdiction, to review the legality or the constitutionality of the program, and that's not what we're doing here," the official said.

In the original version of the AP article, Jordan noted both that Fine had declined to investigate the legality of the program earlier in the year and that OPR investigators had subsequently been denied the security clearances necessary to carry out their separate probe. She did not report, however, that Bush himself withheld the clearances:

Earlier this year, Fine's office said it did not have jurisdiction to open an investigation into the legality of the administration's domestic eavesdropping program. At the time, Fine's office referred calls for an inquiry to the Justice Department's Office of Professional Responsibility, which reviews allegations of misconduct involving employees' actions when providing legal advice.

The Office of Professional Responsibility was denied extra security clearances to conduct an investigation that would include looking at some classified documents and other information that the Justice Department already possesses.

But in subsequent versions of the article, reference to the OPR investigation was left out entirely, despite the mention that Democrats had "questioned the timing of the review." From the later version, which appeared in the November 28 print edition of the Los Angeles Times and on numerous news websites:

Democrats also questioned the timing of the review. Fine's letter noted that his office asked the White House on Oct. 20 for additional security clearances that were approved just last week -- following the Nov. 7 elections that gave Democrats control of Congress.

Noting Democrats' renewed power to subpoena Bush administration officials next year, Rep. Maurice Hinchey, D-N.Y., questioned that Fine's investigation "is only coming now after the election as an attempt to appease Democrats" who have been critical of the NSA program.

By contrast, McClatchy Newspapers staff writer Marisa Taylor's November 27 article provided the history of the earlier attempts to investigate DOJ lawyers' involvement in the warrantless surveillance program:

In January, Fine declined a request from Lofgren and other Democrats for a more sweeping probe, saying his office lacked jurisdiction.

"Congress needs to craft legislation so that terrorists can be the subject of surveillance while the Constitution of the United States is honored," Lofgren said. "To do that, a full investigation into the program as a whole, not just the (Justice Department's) involvement, will be necessary."

After turning down the request, Fine had referred it to the Justice Department's Office of Professional Responsibility, which reviews allegations of wrongdoing by Justice Department employees. But the Office of Professional Responsibility was denied security clearances to conduct the investigation.

Attorney General Alberto Gonzales later revealed that President Bush had personally refused to grant the security clearances.

[...]

A spokeswoman for the Inspector General's office declined to comment on what had prompted the investigation.

Rep. Maurice Hinchey, D-N.Y., said he was "skeptical about the timing."

"I wonder whether this reversal is only coming now after the election as an attempt to appease Democrats in Congress," he said.

In his New York Times article, Lichtblau similarly reported that Bush had previously "personally refused security clearances" for OPR lawyers:

Last December, more than three dozen Democrats called for the Justice Department inspector general, Glenn A. Fine, to open an investigation.

Mr. Fine declined at the time, saying a review of the program's legality fell outside his jurisdiction. He referred the matter to another arm of the Justice Department, the Office of Professional Responsibility. That office sought to examine ethical issues surrounding the roles played by Justice Department lawyers in the eavesdropping program. But its review was blocked this year when Mr. Bush personally refused security clearances for its investigators.

Washington Post staff writer Dan Eggen also informed readers that Bush had been responsible for blocking the earlier OPR probe. From his November 28 article:

Several other House Democrats said the inquiry should be broadened to include the questions of whether the program violated federal laws and how it was approved. Rep. Maurice D. Hinchey (D-N.Y.) also said he is "skeptical about the timing" of the announcement.

"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 in a news release.

Fine has previously declined requests from lawmakers to conduct a broader probe into the legality of the NSA program, arguing that such an inquiry is beyond his jurisdiction. Those requests were referred to the Justice Department's Office of Professional Responsibility, which was forced to abandon its effort after President Bush refused to grant security clearances to lawyers who needed them.

Posted In
Justice & Civil Liberties, Domestic Spying
Network/Outlet
Associated Press
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