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 Shaheen***. Hearing that the investigation into who authorized the president and Michael Hayden to violate the Foreign Intelligence Surveillance Act had been closed down, Shaheen 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.
***Correction: We originally presented this person’s surname as Sheehan. It is Shaheen.