- The Washington Times - Tuesday, July 18, 2006

An investigation by Justice Department lawyers into President Bush’s domestic terrorist surveillance program was blocked by the administration, Attorney General Alberto R. Gonzales said yesterday.

Mr. Gonzales told the Senate Judiciary Committee that the National Security Agency program, which eavesdropped without warrants, was important in the war on terrorism and that the president determines who has access to it.

His comments were in response to questions by Committee Chairman Arlen Specter, Pennsylvania Republican, who said the Justice Department’s Office of Professional Responsibility (OPR) was not allowed to investigate the propriety of the department’s legal advice approving the electronic surveillance program.

Mr. Specter said 40 House members asked for the probe, which was halted when repeated requests for clearance were denied. He said department criminal and civil division lawyers were given clearances for potential prosecutions or the defense of civil cases.

“With so many other lawyers in the Department of Justice being granted clearance, it raises the obvious question of whether there was some interest on the part of the administration in not having that opinion given,” he said.

“Why wasn’t OPR given clearance, as so many other lawyers in the Department of Justice were given clearance?”

Mr. Gonzales said he was confident the program’s constitutionality would be upheld by a pending review by the Foreign Intelligence Surveillance Act (FISA) court — part of a deal negotiated last week clearing the way for a review in exchange for a bill to update electronic surveillance laws.

The 1978 FISA law requires warrants from the court for intelligence-related eavesdropping inside the United States. The NSA program targets overseas telephone calls and e-mails of Americans with suspected ties to terrorists. OPR said in May that it could not pursue the investigation because it could not obtain security clearance to examine the program.

White House spokesman Tony Snow said the NSA program is reviewed every 45 days by senior officials, including Mr. Gonzales, and the president did not consider OPR to be the “proper venue.” He said that in a highly classified program, “you need to keep the number of people exposed to it tight for reasons of national security,” and that was what Mr. Bush did.

Mr. Gonzales has steadfastly defended the program. A Justice Department briefing paper said that as commander in chief and chief executive, Mr. Bush has the constitutional authority to authorize the program. It said Congress confirmed that authority when it passed the Authorization for Use of Military Force in 2001, giving Mr. Bush the authority “under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”

The paper said the program is narrowly focused, aimed only at international calls and targeting al Qaeda and related groups, has safeguards in place to protect the civil liberties of Americans and applies only to communications in which one person is outside the United States. It also said the program focuses only on “members of al Qaeda and affiliated groups.”

Mr. Specter has questioned the president’s constitutional authority to conduct wiretapping, and critics have said the NSA program improperly bypassed the FISA court established by Congress to approve or reject secret surveillance or searches of foreign nationals and U.S. citizens suspected of terrorism or espionage.

Sen. Patrick J. Leahy of Vermont, the Senate Judiciary Committee’s ranking Democrat, said the administration’s offer to submit the program to a secret review would “deprive American citizens of the right to challenge domestic wiretapping in open court.”

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