Why Did the White House Reverse Course on Domestic Spying?

By Thomas D. Williams
t r u t h o u t | Report
www.truthout.org

Friday 26 January 2007

Several leading Democratic congressmen Thursday called on US Department of Justice Inspector General Glen Fine to expand the IG's investigation of the warrantless government surveillance program aimed at alleged domestic and foreign terrorist suspects.

Congressman Maurice Hinchey (D-NY) and several of his House colleagues, including Henry Waxman (D-Calif.), chairman of the House Committee on Oversight and Government Reform, said they wanted Fine to determine why the Bush administration recently reversed course by placing the program back under more immediate supervision of the Foreign Intelligence Surveillance Court.

They sent a detailed letter to Fine Thursday. His press office did not respond to questions asking for reactions to a very recent letter. Dean Boyd, a press spokesman for Attorney General Alberto R. Gonzales, said, "It is obvious that we just received it (the letter) so we are reviewing it and do not have immediate comment." Press spokespersons for Hinchey and Waxman said that because the letter was just sent out to Fine, naturally it was too soon for the congressmen to receive the IG's response.

The congressmen's letter additionally urged Fine to examine a series of specific questions related to the creation and evolution of investigations using, without court orders, electronic eavesdropping and physical searches of persons allegedly engaged in espionage or international terrorism. In response to requests from Hinchey and others, in November, Fine opened an investigation into the National Security Agency program, but said it would only be focused on how the Department of Justice operated within the project's overall structure.

The operations additionally involve monitoring emails and using pen registers to list telephone numbers of those calling into suspect telephone lines. Those under investigation can be forced to produce books, records, papers, documents, and other items - again, without court orders.

The surveillance enterprises had been conducted since October 2001 with the consent of President George Bush, allowing no immediate oversight or approval from judges of the Foreign Intelligence Surveillance Court. The Foreign Surveillance Act, putting such investigations under the control of the secret court, first became law in 1978.

A week ago, Attorney General Alberto R. Gonzales, in a letter to the leaders of the Senate Judiciary Committee, reversed the controversial Bush administration policy, putting the investigations back under control of the court, which consists of 11 federal judges. Now intelligence officers, instead of using their own authority, will have to show the court "there is probable cause to believe" that one of the parties is a member of al-Qaeda or an associated terrorist group.

Congressional Democrats and civil rights advocates have consistently charged that investigations conducted without court approvals violate a host of constitutional protections for those being monitored.

The program is being challenged by several lawsuits. A year ago, for instance, The Electronic Frontier Foundation filed a class-action lawsuit against AT&T and accused the telecommunications company of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its "massive, illegal program to wiretap and data-mine Americans' communications." And, on July 20, 2006, a federal judge denied the government's and AT&T's motions to dismiss the case, allowing the lawsuit to go forward.

"We hope that the administration's recent announcement that the Foreign Intelligence Surveillance Court will be overseeing the NSA surveillance program will not (interfere with) the fact that this (inspector general) investigation is very necessary and important," Hinchey, Waxman, and their three House colleagues wrote to Fine. "More than ever, we are determined to find out the answers about the origins and evolution of the program. Thus, we request that you broaden your investigation."

The congressmen specifically requested that Fine get to the bottom of why the administration abruptly reversed course and will now allow the spy program to run through court, when the administration originally suggested that the court's judges were unable to expeditiously handle the demands of the program. They wanted to know 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, and who within the Department of Justice first authorized the operations. They also demanded to know what the authorizing official's justification was for doing so, in light of the supposed fact that the Bush administration had already enacted the program without any such approval.

Hinchey, Waxman and their colleagues additionally asked Fine what the reauthorization process for the surveillance initiative entails, and why the attorney general reportedly expressed strong reservations about the program.

"Did President Bush and Attorney General Gonzales finally realize that they were, in fact, defying the Constitution, or is there some other reason why the program has been moved to the court?" asked Hinchey. "Is the court providing blanket approval for the program, or will there be case-by-case reviews of the program?"

In January 2006, Hinchey and three of his House colleagues requested that DOJ's Office of Professional Responsibility conduct an investigation. That agency's counsel, H. Marshall Jarrett, informed Hinchey in February that a probe was underway, said the congressman. But, Jarrett told Hinchey that the investigation had been closed because his representatives were denied the necessary security clearances.

Attorney General Gonzales testified before Congress in July that President Bush was the one who denied the security clearances. Documents released by Gonzales at that time also revealed that Inspector General Fine and some of his staff had, on the other hand, been granted security clearances to examine the NSA warrantless surveillance program.

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Thomas "Dennie" Williams is a former state and federal court reporter, specializing in investigations, for the Hartford Courant. Since the 1970s, he has written extensively about irregularities in the Connecticut Superior Court and Probate Court systems for disciplining both judges and lawyers for misconduct. His stories about the corrupt activities inside the Hartford Probate Court helped encourage a federal grand jury probe, leading to the conviction of the court's investigator for corrupt activities - the first attempted impeachment of a judge or any official in the state's history - and a legislative probe that resulted in major changes of the court's disciplinary system for state lawyers. Another of his investigative inquiries in the 1980s led to the forced resignation of a Superior Court judge who was hiring and appointing friends and relatives for lucrative court duties. His most recent freelance stories exposed failings of the Connecticut Judicial Review Council, investigating misconduct by Superior Court judges and the regular eighteen-month delays in deciding State Appellate Court cases. He has received numerous awards for his investigative and in-depth reporting.