DOJ Probe of Warrantless Surveillance Program Was Overdue

Following requests from myself, Congresswoman Zoe Lofgren (D-CA) and other House members, for an investigation of the National Security Agency’s (NSA) warrantless surveillance program, U.S. Department of Justice (DOJ) Inspector General Glenn A. Fine yesterday informed me that his office has opened a review of the agency’s involvement with the program.

In his letter to me, Fine wrote, “The OIG previously received clearances relating to the NSA program for myself and two other OIG supervisors. 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 you of the review.”

I must say that after trying for nearly a year to get DOJ to conduct an investigation of the NSA’s warrantless spy program, I am very pleased to learn that the agency’s Inspector General is finally opening an investigation that we were made to believe would never happen. While I’m glad that the White House finally relented and granted additional clearances for DOJ officials to conduct an investigation, I can’t help but be skeptical about the timing. 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.

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.

Following The New York Times’ initial reporting of the NSA warrantless surveillance program in December 2005, 39 House members sent Fine a letter asking him to investigate the initiative. Fine responded saying that such a probe fell outside of his jurisdiction and advised the House members that DOJ’s Office of Professional Responsibility would best be suited to investigate the matter. In January, three of my House colleagues — Congressman John Lewis (D-GA), Congressman Henry Waxman (D-CA), and Congresswoman Lynn Woolsey (D-CA) — joined me in writing to OPR requesting an investigation. In February, OPR Counsel H. Marshall Jarrett informed me that an investigation was in fact underway. However, Jarrett wrote me in May to inform me that he had closed the probe because his investigators were denied clearances. Attorney General Alberto Gonzales revealed in July that President Bush was the one who denied the security clearances.

Documents released by Attorney General Gonzales in July also revealed that Inspector General Fine and some of his staff had in fact been granted security clearances to examine the NSA warrantless surveillance program. Since Congresswoman Lofgren and I became aware of the fact that Inspector General Fine and his staff had security clearances to investigate the NSA warrantless surveillance program, we wrote to Fine on September 14 with some of our House colleagues to request that he conduct a very thorough and detailed investigation of how the program came about and how it has been carried out.

Among other things, we specifically requested that IG Fine investigate: whether the president, the attorney general, and the director of the NSA violated the Foreign Intelligence Surveillance Act by establishing and carrying out the program; 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 the then-Acting Attorney General refuse to reauthorize the program and why the Attorney General expressed strong reservations about the program and may have rejected it as well.

Since Fine only indicated that his office would be looking at how DOJ operates within the structure of the NSA program, I will be writing Fine a letter to demand that the OIG investigation be expanded to cover the questions included in both the September 14 letter and the letter the congressman sent to OPR in January 2006.