When Attorney General John Ashcroft was roused from his hospital bed in March 2004 to discuss the NSA's illegal domestic spying program, he probably did not expect his role in domestic spying would elicit scrutiny from the media, let alone his own Justice Department. But yesterday National Journal reported that Ashcroft's conduct is one of the subjects of an "internal Justice Department inquiry."
And it turns out that inquiry has been closed for very questionable reasons.
Before considering the investigation of Justice Department officials conduct in overseeing illegal domestic spying, it is worth remembering that these officials had their own doubts about the program. The only reason that the White House disturbed Ashcroft in his hospital bed was that his deputy, James Comey, refused to approve the spying program because of his concerns about its legality. Here's how James Risen explained it in The New York Times:
Accounts differed as to exactly what was said at the hospital meeting between Mr. Ashcroft and the White House advisers. But some officials said that Mr. Ashcroft, like his deputy, appeared reluctant to give Mr. Card and Mr. Gonzales his authorization to continue with aspects of the program in light of concerns among some senior government officials about whether the proper oversight was in place at the security agency and whether the president had the legal and constitutional authority to conduct such an operation. It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it.
To determine whether Ashcroft and current Attorney General Alberto Gonzales acted properly in overseeing the spying program, the Justice Department launched an official probe in January. But it didn't get very far.
Why? Because the investigators were denied the security clearances needed to do their work. And now National Journal reports those rejections are suspect. Two senior government officials told the magazine that the investigators "were only seeking information and documents relating to the National Security Agency's surveillance program that were already in the Justice Department's possession." Whoever denied the clearance (it might have been the NSA itself, it might have been DOJ high-ups or even Gonzales himself; no one is sure) is basically saying the DOJ's internal watchdog can't review documents already in the DOJ's possession. Michael Shaheen, who directed the office handling the internal investigation from its founding until 1997, said his staff was "never, ever" denied a clearance, and it conducted numerous investigations of Attorneys General.
As Jack Balkin put it:
Note the irony: While private phone company employees at AT&T and other corporations must have sufficient security clearances to know what is going on in the NSA program--because they are helping to run it--the Justice Department's own ethics lawyers do not. It's a convenient way to forestall any investigation into wrongdoing.
To get to the bottom of this mess, New York Congressman Maurice Hinchey just introduced a measure to force President Bush, Secretary Rumsfeld and Attorney General Gonzales to turn over their documents regarding the investigation, including their telephone and email records, logs and calendars and records of internal discussions. Those are the same kind of personal communications that the NSA is monitoring to spy on millions of Americans, so it should be interesting to see how Bush and his appointees criticize or resist this request.
Hinchey's office says he is also specifically requesting:
An investigation to find out who within the DOJ first authorized the domestic surveillance program and what that official's justification was for doing so; if the Bush administration had already enacted the program before getting original DOJ approval; what the reauthorization process for the surveillance initiative entails; and why, according to news reports, did then-Acting Attorney General James Comey refuse to reauthorize the program and why then-Attorney General John Ashcroft expressed strong reservations about the program and may have rejected it as well.
Hinchey explained his objectives in a statement yesterday: "The Bush administration cannot get away with designing a secret, illegal spy program and then shutting down an investigation into its creation and implementation. Since the Attorney General and others have refused to be forthcoming in a genuine way on their own, this resolution of inquiry will force them to pull back the curtain of secrecy and reveal who stopped the OPR investigation and why."
That is true, and the Administration should not get away with it. But while Rep. Hinchey fights to stop this abuse of power, other members of Congress are working just as energetically to cover it up.
Senator Arlen Specter and Senator Mike DeWine are pushing legislation to provide a smokescreen for domestic spying and to undermine legitimate legal challenges to the spying, including our case, CCR v. Bush. I have written posts about both of their bills before, so I will spare the details today and focus instead on how people are fighting back against DeWine.
Mike DeWine's solution to warrantless domestic spying is to offer more warrantless domestic spying. That is literally what his bill would do. Here's how I explained it in an earlier report:
Currently warrantless surveillance is, with very limited exceptions, illegal and punishable as a felony. The DeWine bill would legalize warrantless surveillance of international calls and emails whenever the president decides going to the court established by FISA is too much trouble. Periodic after-the-fact briefings by the President to small committees of Congressional leaders would replace judicial oversight entirely.
My organization, the Center for Constitutional Rights, believes that his constituents in Ohio have a right to know about it. We created a simple, educational advertisement that we hope to run in Ohio newspapers:
That sums it up pretty well, right?
To learn more or to help us run the ad, click here.
You can urge your Senators to oppose the DeWine bill here.
And if you have ideas for other ways and messages to fight back against Senator DeWine's spying smokescreens, leave them in the comments section and I'll reply to them in a follow-up. Thanks for reading.