Administration censors internal probe of lawbreaking by the Oval Office and the NSA: The uneven scales of Bush Justice

By Nat Hentoff:

Having reported on the Justice Department since Robert Kennedy—with very minimal concern for civil liberties—was attorney general, I've learned to respect one of its divisions, the Office of Professional Responsibility. It was created in 1975, and its investigators look into ethical lapses and misconduct by the lawyers in the department. Their current oversight range includes the Office of Legal Counsel, the Criminal Division, and the National Security Division.

In January, four congressional Democrats—Maurice Hinchey of New York, John Lewis of Georgia, and Henry Waxman and Lynn Woolsey of California—asked the Office of Professional Responsibility to find out who in the Justice Department told the president and General Michael Hayden (then head of the National Security Agency) that it was legal for the NSA to engage in warrantless eavesdropping on Americans as well as in collection of their records (as recently revealed by USA Today). A corollary question was whether George W. Bush started the eavesdropping program even before he told the Justice Department he was doing it.

As Republican senator Chuck Hagel of Nebraska put it succinctly on ABC News' This Week on December 14—before the confirmation hearing of General Hayden to become CIA director—"Who set that policy?" Hagel didn't find out during that hearing, nor do he or the rest of us know now, because the probe by the Office of Professional Responsibility has been stopped cold.

On May 11, H. Marshall Jarrett, the OPR's counsel, told Congressman Hinchey that the investigation was over because the National Security Agency—obviously involved in the probe—refused to grant the OPR's lawyers security clearance to proceed to look into the NSA's classified programs. Said the frustrated Mr. Jarrett: "Without those clearances, we cannot investigate this matter and therefore have closed our investigation."

In covering the Justice Department all these years, I was particularly impressed by the integrity of the former head of OPR for a quarter century—Michael Shaheen. Hearing that the investigation into who authorized the president and Michael Hayden to violate the Foreign Intelligence Surveillance Act had been closed down, Shaheen told National Public Radio on May 12:

"No one in OPR for the 24 years I was there was denied the necessary clearance, ever, and much less one that brought to a conclusion an investigation. That just makes it smell the worse."

And Larry Sims, a former deputy at the Justice Department whose service there started in the Reagan administration, added:

"To say that an agency can block an investigation by refusing to give [OPR] federal investigators the clearances they need is just astounding."