November 15, 2007

Did Mukasey Insist On Reopening The TSP Investigation?

Michael Mukasey has gotten off to an auspicious start in his first week on the job as Attorney General. He has apparently convinced the Bush administration to authorize the necessary clearances to re-open the Justice probe into the role its attorneys played in the NSA's terrorist surveillance program (TSP). Congress had wanted an accounting of the establishment of legal parameters for the warrantless surveillance program, and had been stymied under Alberto Gonzales' tenure:

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."

This shift could prove interesting. The Post notes that Gonzales recommended the clearances be granted last year, but the White House overruled him. Either that turned out to be incorrect, or Mukasey may have demanded an independent investigation as a prerequisite to taking the job. The timing of the announcement -- before Mukasey even takes the oath of office -- seems rather significant in that regard.

It could also be that the White House sees Mukasey as independent enough to produce a credible investigation into what it insists is a perfectly legal program. Gonzales had a lot of baggage, even in 2006, and a clean bill of health from the former AG would have meant a lot less than one from Mukasey. The Bush administration may mean this as a show of confidence in its new AG, and as a concession to Congress.

Alternately, the clearances may have been part of a deal to ensure Chuck Schumer and Dianne Feinstein's support in the Judiciary Committee. This seems more doubtful, as Schumer publicly recommended Mukasey as a consensus pick and he would have been hard pressed to abandon Mukasey in any case. Schumer wouldn't have benefited from such a private negotiation; the netroots are still assailing him over his vote.

The investigation under Mukasey should help clear the air over the TSP. While some people do not share Mukasey's view of executive power, almost everyone considers him sufficiently independent to ensure a fair and thorough investigation. If wrongdoing occurred, we should know where, when, and who was involved in it. As long as it doesn't interfere with current national-security operations, accountability should be provided. When we give government extraordinary powers, we need to ensure that those powers are used properly.


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