Justice Dept. Reopens Surveillance Probe

By Dan Eggen
Washington Post Staff Writer
Wednesday, November 14, 2007

The Justice Department said yesterday that it has reopened an internal investigation of the role played by its lawyers in the administration's warrantless surveillance program, marking a notable policy shift just days into the tenure of new Attorney General Michael B. Mukasey.

The investigation by the Office of Professional Responsibility was abandoned in July 2006 after President Bush refused to give security clearances to the OPR lawyers conducting the investigation, according to documents and congressional testimony.

That rebuff represented an unusually direct White House intervention into the Justice Department's internal affairs and came under sharp criticism from congressional Democrats, who were eager to learn about the involvement of Justice Department lawyers in the National Security Agency's domestic spying program.

H. Marshall Jarrett, the OPR's chief counsel, wrote in a letter to several lawmakers yesterday that lawyers in his office "recently received the necessary security clearances and are now able to proceed with our investigation." He said the investigation will focus on "the role of Department of Justice attorneys in the authorization and oversight of warrantless electronic surveillance . . . and in complying with the Foreign Intelligence Surveillance Act."

The announcement comes during the first week on the job for Mukasey, who was narrowly confirmed by the Senate last Thursday and was sworn into office Friday. He will participate in a public swearing-in ceremony this morning with Bush and Chief Justice John G. Roberts Jr., officials said.

Rep. Maurice D. Hinchey (N.Y.), one of four House Democrats who originally requested the OPR investigation, said he was "pleasantly surprised" by the news and said he is hopeful it meant the administration will be more open under Mukasey.

According to testimony and correspondence with Congress, Mukasey's predecessor, Alberto R. Gonzales, had recommended granting OPR security clearances in 2006 but was overruled by Bush. It is unclear what prompted Bush to change his mind, and the White House declined to explain the shift. Justice Department spokesman Brian Roehrkasse said he could not say when the decision was made, or whether Mukasey played any role in it.

Hinchey also said he hopes the results of the OPR investigation will be made public. Jarrett wrote in his letter to lawmakers that "we will advise you of the results of our investigation when we have completed it."

The warrantless surveillance program, authorized by Bush in late 2001, allowed the NSA to monitor communications between the United States and abroad without court oversight when one of those involved was believed to be linked to the al-Qaeda terrorist network. The effort led to fierce disagreements about the program's legality, and it prompted a revolt by Justice and FBI officials in early 2005 until Bush agreed to make changes.

During his confirmation hearing last month, Mukasey alarmed many Democrats by testifying that there may be occasions when the president's powers as commander in chief could trump a federal law requiring that a special court approve intelligence-related wiretaps, such as those used by the NSA. Mukasey also refused to say whether he considered an interrogation technique called waterboarding to be illegal torture, leading many Senate Democrats to oppose his confirmation last week.


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