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Justice Department Reopens Probe Into Warrantless Domestic Spying

The Bush administration has reversed course and will finally allow the Justice Department to investigate the warrantless spying program.
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The Bush administration has reversed course and will now allow a Justice Department inquiry to move forward regarding whether former Attorney General Alberto Gonzales and other government attorneys acted within the law in authorizing and overseeing the administration's domestic warrantless wiretapping program, the Department informed Congress today.

President Bush had previously shut down the investigation by taking the extraordinary step of denying investigators security clearances necessary for them to move forward. Bush had intervened to sideline the Justice Department probe despite severe objections of career Justice Department officials, members of Congress, and perhaps even his own Attorney General, that he not do so. Gonzales wrote Congress shortly before his resignation that Bush thwarted the investigation even overruling Gonzales' advice to Bush that he allow the inquiry to move forward.

In a letter sent today to Rep. Maurice Hinchey (D-NY), H. Marshall Jarrett, the head of Justice's Office of Professional Responsibility, which will conduct the investigation, wrote: "We recently received the necessary security clearances and are now able to proceed with our investigation."

It is unclear what led to the reversal by the Bush administration to allow the investigation to move forward. Today's letter from the Justice Department to Hinchey and other members of Congress comes only days after former federal court judge Michael Mukasey was sworn in as attorney general. It also could not be learned tonight whether President Bush himself had personally reversed his own decision to allow investigators to be granted the necessary security clearances to commence their investigation.

The reversal came after more than half a dozen members of Congress -- including four members of the Senate Judiciary Committee -- protested the termination of the OPR probe when the National Journal disclosed that Gonzales continued to advise President Bush about whether to allow the investigation to proceed even after Gonzales learned that his own conduct was going to be a central focus of the inquiry.

The OPR investigation was closed down shortly after Jarrett, the OPR chief, informed his superiors that he wanted to interview two senior Justice Department attorneys who had clashed with Gonzales over the legality of the warrantless surveillance program.

Hinchey, who requested the investigation in the first place, praised Mukasey for allowing the investigation to move forward: "It seems like an extraordinary beginning. We may have an Attorney General who understands his obligations and responsibilities are to the people of the United States and not the president."

The news that the OPR probe will proceed comes not long after the Justice Department's Inspector General, Glenn A. Fine, informed Congress that he is conducting an investigation as to whether Gonzales gave false or misleading testimony to Congress about the warrantless eavesdropping program.

Senior career Justice Department officials were concerned when the OPR probe was originally disclosed that it may have been a political effort to deflect criticism of the administration's eavesdropping program as well as Gonzales' own conduct, a former and current Department attorney have said in interviews.

More recently, HuffPost reported that Department officials were concerned that Gonzales continued to oversee a criminal leak investigation as to who leaked details of the surveillance program to the New York Times. Several Department officials who were under scrutiny or questioned during the leak inquiry were likely to be crucial witnesses regarding Gonzales in the OPR probe.

Stephen Gillers, a professor of legal ethics at New York University, said in an interview that he believed that Gonzales had acted improperly in overseeing the leak probe while witnesses in that probe were potential witnesses against him in a potential OPR inquiry:

"Gonzales should have stayed out of the leak investigation once it began to focus on potential witnesses against him. By overseeing it, Gonzales himself in a position to hurt the careers and reputations of subordinates whose cooperation was needed in the separate investigation of him They are likely to recognize this added vulnerability--it's hard enough as it is to provide evidence against your boss--which will in turn intimidate them from saying that invites retribution."

Jack Goldsmith, the former head of the Justice Department's Office of Legal Counsel, who had clashed directly with Gonzales over the legality of some aspects of the warantless surveillance program, while Gonzales was White House counsel, wrote in a recent memoir that he felt intimidated by the fact that Gonzales was involved in the leak investigation.

Goldsmith had been interviewed by FBI agents during the leak program and also questioned by a federal grand jury as well, although he has never been considered a subject in the case.

"What angered me most about the subpoena I received," Goldsmith wrote, was "the fact that it was Alberto Gonzales' Justice Department that had issue it... I had spent hundreds of very difficult hours at OLC, in the face of extraordinary resistance, trying to clean up the legal mess that then-White House counsel Gonzales.. and others had created in designing the foundations of the Terrorist Surveillance Program."

The OPR investigation had previously been shut down after Jarrett, the OPR chief, had informed his superiors that he wanted to interview Goldsmith and review memos questioning the legality of the surveillance program by Goldsmith and other attorneys in the Office of Legal Counsel. It now appears likely that Goldsmith will be among the first witnesses interviewed during the OPR inquiry.

Murray Waas, "What Did Bush Tell Gonzales?," the Atlantic, Sept. 26, 2008.

Murray Waas, "The Case of the Gonzales Notes," the Atlantic, Sept. 26, 2008.

Frank Rich, "When Will Fredo Be Whacked?," New York Times, March 25, 2007.

Murray Waas, "Internal Affairs," National Journal, March 15, 2007.

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