Friday, June 2, 2006
Ours is a world of nuclear giants and ethical infants.
— Omar Bradley, 1948 Armistice Address
It was so easy it’s odd that that the administration waited until now to bring it to an end.
In mid-February, 2006, the Justice Department ethics office decided it should conduct an investigation of some department lawyers who approved what was known as the National Security Agency’s domestic surveillance program. It was a reasonable thing to investigate since there were a lot of people who wondered if in approving the program the lawyers might have broken some law.
The NSA’s domestic surveillance program, it turned out, had been in effect for some time but had not been disclosed to the American people. The disclosure was made in December 2005, when the New York times reported that contrary to what Mr. Bush’s playmate, Dick Cheney, and others had repeatedly told the American people, George Bush had come up with a neat new way of doing spying that did not involve using the relatively harmless decoder rings he’d gotten as a child in cereal boxes but instead involved listening in on phone conversations of U.S. citizens even if they were not talking with people in foreign countries. Mr. Bush did this without obtaining the approval of the Foreign Intelligence Surveillance court (FISA) that was established in 1978 to review the Attorney General’s applications for authorization to conduct electronic surveillance to obtain foreign intelligence information. Until Mr. Bush came up with that nifty new approach the rule had been if the NSA wanted to eavesdrop on phones and e-mail message in the United States it was required to first obtain a court order from the FISA court.
News that N.S.A. was conducting warrantless searches of a new and different kind upset those who thought its conduct unconstitutional. News of the New York Times news that the N.S.A. was conducting warrantless searches of a new and different kind upset George Bush who did not like the idea that newspapers were telling people when he was breaking the law. As he said, although not in these exact words, he is the president of the United States and if he does something it is not against the law.
As a result of the news, two sets of investigations were launched. One was launched by the Justice Department’s Office of Professional Responsibility (OPR) in mid-February, 2006 and its purpose was to inquire into the conduct of the lawyers who approved the N.S.A.’s domestic surveillance program. Prior to its inauguration both Attorney General John Ashcroft and his chief deputy, James Comey, had let it be known that they had doubts as to the legality of the program. (As a result of their concerns approval was withheld for a time and the program was suspended.) The OPR investigation was to see which Justice Department lawyers ultimately approved the program and whether, in so doing, they violated the ethical rules governing their conduct.The other investigation was begun by the administration and had nothing to do with ethics, a subject as foreign to George Bush as the correct pronunciation of the word “nuclear”. It had to do with finding out who told the New York Times that George Bush was breaking the law. Mr. Bush has no compunctions about lying or breaking the law but dislikes being held up to public ridicule when his transgressions become known. One of the investigations has now come to a halt. The other is presumably ongoing.
On May 10 H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility said he’d called off the investigation into the ethical conduct of justice department lawyers. He wrote Maurice Hinchey, a New York Democratic Congressman that “we have been unable to make meaningful progress in our investigation because O.P.R. has been denied security clearances for access to information about the N.S.A.program.” He told the Congressman he’d been trying since January to get clearances that would enable his investigators to do their work but had been unsuccessful. “Without these clearances, we cannot investigate this matter and therefore have closed our investigation”, he told the congressman.
Explaining the administration’s fear of ethical inquiries, Brian Roehrkasse, a spokesman for the department, said that the program of spying on American citizens was “highly classified and exceptionally sensitive.” The legality of the program had been reviewed by other Justice Department officials, said Mr. Roehrkasse, blissfully ignorant of the fact that those are the very officials whose ethics were being questioned.
Not all investigations are over, however. The criminal inquiry into who told the New York Times that the administration was again engaging in criminal activity is ongoing. Although I have no first hand knowledge of this, I’m confident all necessary security clearances to undertake that investigation have been granted. Mr. Bush is probably not surprised by that. Neither should we be.