Justice Dept. to Examine Its Use of NSA Wiretaps

By Dan Eggen
Washington Post Staff Writer
Tuesday, November 28, 2006

The Justice Department's inspector general yesterday announced an investigation into the department's connections to the government's controversial warrantless surveillance program, but officials said the probe will not examine whether the National Security Agency is violating the Constitution or federal statutes.

In a letter to House lawmakers, Inspector General Glenn A. Fine said his office decided to open the probe after conducting "initial inquiries" into the program. Under the initiative, the NSA monitors phone calls and e-mails between people in the United States and others overseas without court oversight if one of the targets is suspected of ties to terrorism.

The "program review" will examine how the Justice Department has used information obtained from the NSA program, as well as whether Justice lawyers complied with the "legal requirements" that govern it, according to Fine's letter. Officials said the review will not examine whether the program itself is legal.

The announcement signals a new level of scrutiny for the NSA program, which was launched shortly after the Sept. 11, 2001, attacks and revealed in news reports in December 2005. The program has been ruled unconstitutional by one federal judge, but Bush and other administration officials have strongly defended it as a legal and efficient way to protect the nation from terrorist attacks.

The probe comes amid a dramatically changed political environment. Democrats who have been sharply critical of the surveillance program will soon control the Judiciary and intelligence committees, which oversee Justice and the NSA. Rep. John Conyers Jr. (D-Mich.), the incoming chairman of the House Judiciary Committee, called Fine's investigation "long overdue."

Several other House Democrats said the inquiry should be broadened to include the questions of whether the program violated federal laws and how it was approved. Rep. Maurice D. Hinchey (D-N.Y.) also said he is "skeptical about the timing" of the announcement.

"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," Hinchey said in a news release.

Fine has previously declined requests from lawmakers to conduct a broader probe into the legality of the NSA program, arguing that such an inquiry is beyond his jurisdiction. Those requests were referred to the Justice Department's Office of Professional Responsibility, which was forced to abandon its effort after President Bush refused to grant security clearances to lawyers who needed them.

Fine wrote in his letter to lawmakers yesterday that the White House has promised the security clearances necessary to conduct the new investigation. White House spokeswoman Dana Perino declined to comment.

Justice spokesman Brian Roehrkasse said Fine's review "will assist Justice Department personnel in ensuring that the department's activities comply with the legal requirements that govern operation of the program."

The probe comes as a newly active presidential civil liberties board received its first detailed briefing about the NSA program. The Privacy and Civil Liberties Oversight Board, which was established by Congress and whose five members were appointed by Bush, was provided details about the workings of the NSA program last week.

One member, Lanny J. Davis, a White House lawyer in the Clinton administration, said in an interview that he was "pleasantly surprised" by the privacy protections built into the program. He declined to discuss the program in detail because of secrecy restrictions.

"I was astonished at the extent to which they are all concerned about the legal and civil liberties and privacy implications of what they were doing," Davis said. "It was a constant theme of concern, awareness and training way beyond what I expected."

Davis said the briefings convinced him that the program had been carefully constructed from the start. "It was clear that as they thought about it, they put it together in a way that minimized problems to the best extent that they could," he said.

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