DOJ Probes NSA Spying, Democrats Suspicious

To view the letter that Congresswoman Zoe Lofgren (D-Calif.) sent to the DOJ click here.

The Justice Department's Office of the Inspector General announced Monday that it will immediately launch a probe into the agency's involvement with the National Security Agency's domestic surveillance program, raising suspicions among Democrats, who believe the timing of the investigation is an attempt by the Bush administration to circumvent Congressional hearings into the issue when they assume control of the House in January.

For nearly a year, Congressman Maurice Hinchey (D-NY) and Congresswoman Zoe Lofgren (D-Calif.) have led the charge among House Democrats in calling for a federal investigation into the legality of the NSA's warrantless wiretap program.

News of the clandestine domestic spying operation, which President Bush said he had authorized in 2002 to track terrorists, was reported by the New York Times in December 2005. The Times exposé angered members of the House, who said they were never informed by the White House about the eavesdropping program - which on its face appeared to be taking place in violation of the law. Eavesdropping on Americans had required intelligence officials to obtain a surveillance warrant from a special court and show probable cause that the person they wanted to monitor was communicating with suspected terrorists overseas. But Bush said that the process for obtaining such warrants under the 1978 Federal Intelligence Surveillance Act was, at times, "cumbersome."

In a letter written December 22, 2005, to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "president determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."

In August, a federal judge in Detroit ruled that the NSA program was unconstitutional and said it should end. The Justice Department got a stay on the ruling, which allowed the wiretaps to continue pending the appeal.

Despite numerous letters that Hinchey, Lofgren and 37 other House Democrats have sent the Department of Justice inspector general Glenn Fine during the course of 2006, Fine responded in writing that it wasn't his job to investigate the wiretap program, suggesting that Hinchey write to another office within the Justice Department - the Office of Professional Responsibility (OPR). Hinchey was told in February by Marshall Jarrett that an investigation was under way, but Jarrett wrote to Hinchey in May that the probe was being shut down because OPR officials were unable to obtain the security clearances that would have enabled them to conduct a sweeping investigation.

"I am writing to inform you that we have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program," Jarrett explained in his letter to Hinchey. "Beginning in January 2006, this office made a series of requests for the necessary clearances. On May 9, 2006, we were informed that our requests had been denied. Without these clearances, we cannot investigate this matter and therefore have closed our investigation."

During a hearing before Congress in July, Attorney General Alberto Gonzales testified that it was President Bush who personally rejected the security clearance requests. But Bush suddenly and without reason changed his position on the matter on October 20 and authorized the security clearances, according to Lofgren's office. On Monday, a Justice Department official hand-delivered a letter to Hinchey that had been written by Fine stating that inspector general would begin a "review" of the National Security Agency's eavesdropping program. This led Hinchey to suspect that the White House is trying to undercut Congress's ability to conduct hearings into the legality of the NSA program when they become the majority in January.

The inspector general "previously received clearances relating to the NSA program for myself and two other OIG supervisors," Fine wrote in the letter to Hinchey dated November 27. "After conducting initial inquiries into the program, we have decided to open a program review that will examine the Department's controls and use of information related to the program and the Department's compliance with legal requirements governing the program. On October 20, 2006, I made a formal request to the attorney general for additional clearances for OIG staff to conduct this program review. The attorney general forwarded the request to the White House, which makes the decisions on clearance requests relating to the program. Last week, I received word that the request for clearances for the OIG staff to conduct this review would be granted. As a result, the OIG has opened this program review, and I wanted to inform of the review."

Still, despite the White House's belated show of support, Hinchey said the investigation clearly doesn't go far enough, because it doesn't delve into the legality of the surveillance. Hinchey intends to fire off another letter to Fine demanding that the investigation be expanded to determine whether domestic surveillance is taking place in violation of the law, and moreover, whether President Bush and Gonzales abused their power in authorizing the program. Moreover, Hinchey said he is skeptical of the timing of the investigation.

"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. "While it is important to learn how DOJ officials have handled the NSA program and determine whether any information gathered from the program such as phone numbers has been used inappropriately, we need Inspector General Fine to expand his probe to examine how the warrantless spy program was born, how it evolved, and what laws may have been violated by administration officials as they implemented the program."

Jeff Lieberson, a spokesman for Hinchey, said in an interview Monday that the investigation "seems like a pre-emptive move by the administration now that the Democrats control Congress. I think they are trying to stave off Congressional hearings. I suspect that may be their thinking as to why they put this letter out now."

Kyra Jennings, a spokeswoman for Lofgren, agreed. She said the new Democratic Congress still has the authority to hold hearings into the NSA program while the Inspector General's Office conducts its investigation. Lieberson said he believes that is exactly what will transpire come January.

"I would be surprised if Democrats didn't look into the wiretaps despite the fact that the inspector general is investigating," Lieberson said. Jennings added that while the timing of the probe may be questionable, "we'll find out in due time whether this is a serious effort or a diversion."

A spokeswoman for Fine said she was not authorized to comment on the record. But she said on background that when the inspector general denied calls for an investigation earlier this year, it was because he did not have the "jurisdiction to review attorneys providing legal advice to the White House regarding oversight and the legality of the surveillance." While that issue hasn't changed, the spokeswoman said, the inspector general now has the ability to "open a program review." The spokeswoman would not comment on the timing of the investigation.

Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

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