Justice on a Short Leash

Why did the president cut off investigation of the NSA's domestic surveillance program?

IN HIS TESTIMONY this week before the Senate Judiciary Committee, Attorney General Alberto R. Gonzales made a startling revelation: President Bush personally blocked an internal Justice Department investigation related to the National Security Agency's domestic surveillance program. Asked by committee Chairman Arlen Specter (R-Pa.) who had decided to deny security clearances to the department's Office of Professional Responsibility (OPR), Mr. Gonzales declared that "the president of the United States makes decisions about who is ultimately given access" to information about this sensitive program. The disclosure should elevate concerns about what was already a troubling episode. Mr. Bush should permit the investigation. If he doesn't, Congress needs to get more information about what has happened.

It isn't clear what, if anything, there was for the OPR -- which investigates professional misconduct by attorneys -- to look into. A bevy of Democratic members of Congress had asked for an investigation, but their concern was really the legality of the program itself, not the behavior of Justice Department lawyers. The OPR opened an inquiry in January into "the role of Department attorneys in the authorization and oversight of warrantless electronic surveillance by the National Security Agency," and it sought security clearances to pursue it.

In a series of memos over the next few months, the head of the office, H. Marshall Jarrett, detailed his mounting frustration with the administration's failure to grant these clearances. In late April, he wrote: "Since its creation some 31 years ago, OPR has conducted many highly sensitive investigations involving Executive Branch programs and has obtained access to information classified at the highest levels. In all those years, OPR has never been prevented from initiating or pursuing an investigation."

Finally, having been "precluded from performing its duties," the office shut down its investigation.

Mr. Gonzales explained the president's actions by suggesting that the program was highly classified and that the more people who knew about it, the harder it would be to keep it secret. This explanation doesn't seem credible, because as Mr. Jarrett pointed out, lots of other Justice Department officials have been granted access. A "large team of attorneys and FBI agents," he noted, was granted clearances to investigate the leaks of the program's existence. Lawyers were granted clearances to defend the office from lawsuits. And the department's inspector general was given clearances to look into aspects of the program as well. Yet for some reason the White House blocked Mr. Jarrett.

There are many questions Congress should ask. For starters: Why was the White House so keen to prevent this investigation? Did the attorney general recommend that the clearances be granted or denied?

A few things, however, are already apparent. It is wildly inappropriate for the administration to use security clearances to stop an investigation. And it is equally so for the White House to be interfering with career law enforcement officials conducting a probe. The OPR was set up after Watergate as an internal watchdog to ensure the highest level of ethical behavior on the part of government lawyers. Having the White House block its inquiry can only fuel suspicion.