President Bush personally blocked a Justice Department office from investigating the role of department lawyers in creating and overseeing the NSA's warrantless eavesdropping program, according to Attorney General Alberto Gonzales.
The revelation from the attorney general came as the department released documents sent late Monday night to Congress in which the chief of the internal unit, the Office of Professional Responsibility (OPR), repeatedly implored his bosses to grant him the security clearances to conduct his investigation.
"The president of the United States makes decisions about who is ultimately given access ... As with all decisions that are non-operational in terms of who has access to the program, the President of the United States makes the decision," Gonzales said in testimony before the Senate Judiciary Committee.
The memos from OPR chief H. Marshall Jarrett to Deputy Attorney General Paul McNulty, in February, March and April of this year show that while Gonzales publicly told the Senate that OPR was investigating, Jarrett was complaining to higher-ups that he was "unable to move forward" because of the lack of security clearances for himself and six staff members.
According to Jarrett's memos, he was told by one superior that he did not know when the request would be considered, but at the same time, "a large team of attorneys and agents" in the Department's Criminal Division had quickly been cleared to investigate the leak of information about the NSA program to the New York Times. Further, the Civil Division, which would litigate legal and FOIA challenges involving the NSA program, got clearances for some its people; and, writes Jarrett, "Five private individuals who make up the Privacy and Civil Liberties Oversight Board" have been briefed on the program and given security clearances.
White House Spokesman Tony Snow confirmed the president's decision and defended the administration's rejection of a Justice Department investigation of whether lawyers acted lawfully. "There were proper channels for doing legal review. In effect, the legal review is done every 45 days and the attorney general himself was involved in it. The Office of Professional Responsibility was not the proper venue for conducting that," Snow said.
In January, 40 members of Congress asked the Office of Professional Responsibility to open an investigation. In April, the office announced it was closing its investigation — and now the documents reveal Jarrett's private frustrations in moving forward.
The White House response: "In a case of a highly classified program, you need to keep the number of people exposed to it tight for reasons of national security. And that's what he (President Bush) did."
In his April 21 memo, Jarrett writes OPR, which was created in 1975 in the wake of the Watergate scandal, has never been prevented from initiating or pursuing an investigation, adding that OPR has conducted many "highly sensitive investigations involving Executive Branch programs and has obtained access to information classified at the highest levels."