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Murray Waas

Don't forget the cover-ups

COMMENTARY | May 11, 2009

As a lot of public officials in Washington have learned over the years, sometimes it's not the crime, it's the cover-up. Investigative reporter Murray Waas thinks any investigation of the Bush years should examine the efforts by top officials to shield their behavior from scrutiny. Sixth in a series of articles calling attention to the things we still need to know about torture and other abuses committed by the Bush administration after 9/11.

A president personally intervenes to stop an investigation of his own administration.

Does that sound like big news to you? Back in July 2006, when then-attorney general Alberto Gonzales acknowledged to a congressional committee that President George W. Bush had personally blocked a Justice Department investigation into the administration's controversial secret domestic spying programs earlier that year, the story never made it onto the front pages, then sank like a stone.

But ask investigative journalist Murray Waas what he thinks an official investigation looking into the abuses of the Bush administration should focus on, and the first thing that comes to mind is: The cover-ups.

So Waas wants to know: “Did Bush and Gonzales stymie investigations of themselves by denying search clearances to OPR?”

The Justice Department’s Office of Professional Responsibility had launced an internal investigation into whether department lawyers had acted properly in approving and overseeing the controversial spy program run by the National Security Agency. But Bush’s decision in early 2006 to deny those lawyers the security clearances they needed to conduct their investigation stopped the inquiry dead in its tracks.

The Justice Department insisted that Gonzales didn’t know that he himself was a target of the investigation when he asked Bush to quash it, but Waas wrote in the National Journal in March 2007 that Gonzales had in fact “learned that his own conduct would likely be a focus of the investigation” before their conversation.

Denying the security clearances to the OPR attorneys was not only an unprecedented occurrence in that office's history, it also came in stark contrast to the enthusiastic way in which security clearances were dished out to a different group of attorneys: Those charged with finding out who leaked information about the program to the press in the first place.

So Waas also wants to know: “Did Bush and Gonzales push for investigations of whistleblowers and leakers to deflect attention and intimidate anyone in government from talking?”

As it happens, we still don’t know very much about the secret NSA program. But one of the few things we do know is that there was a dramatic rebellion in March 2004 when then-deputy attorney general James Comey, backed up by other senior Justice Department officials, refused to reauthorize the program as it was then constituted because they found some aspects of it blatantly illegal. Gonzales, then the White House counsel, was sent to then-attorney general John Ashcroft’s hospital bedside in a futile attempt to get him to overrule Comey.

Bush eventually amended the program, but not before briefly reauthorizing it as it was, despite the Justice Department objections. A key element of the administration’s justification for doing so was that Bush had been told that Gonzales and Vice President Cheney had met with the eight congressional leaders who receive briefings about covert intelligence programs --  and that those leaders had said they wanted the surveillance program to continue despite the Justice Department’s refusal to certify that it was legal.

But three of the four Democratic leaders at that meeting have disputed the administration’s description of what happened. And in September 2008, Waas wrote for the Atlantic that the Justice Department was “investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes” several days after the meeting took place, “so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program.”

So Waas wants to know: “Did Gonzales fabricate notes?”

Just a few weeks ago, Jeff Stein  reported for CQ that Rep. Jane Harman was overheard on a 2005 National Security Agency wiretap agreeing to intervene in the federal investigation of two pro-Israel lobbyists in exchange for help in getting a coveted congressional post. “Justice Department officials decided there was sufficient evidence to initiate and FBI investigation of Harman. But at the last minute, Attorney General Alberto R. Gonzales aborted the plan, saying that he needed Harman’s help defending the administration’s warrantless wiretap program,” Stein wrote.

Neil A. Lewis reported for the New York Times that “Gonzales told the director of the [CIA], Porter J. Goss, to hold off on briefing lawmakers about the conversation between Ms. Harman and an Israeli intelligence operative despite a longstanding government policy to inform Congressional leaders quickly whenever a member of Congress could be a target of a national security investigation.

“One reason Mr. Gonzales intervened, … former officials said, was to protect Ms. Harman because they saw her as a valuable administration ally in urging The New York Times not to publish an article about the National Security Agency's program of wiretapping without warrants.”

Harman, as ranking member of the House Intelligence Committee, was the fourth Democratic member of the “Gang of Eight” during that March 2004 meeting about the NSA program and Comey’s rebellion.

So Waas wants to know: “Did they protect Jane Harman in hopes of having somebody who would lie on their behalf  -- and confirm that members of Congress were encouraging the administration to continue the NSA program?”

-- Dan Froomkin


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