Dear Mr. Fine:

We are writing to renew our request that you open an investigation into the involvement of the Department of Justice (DOJ) in the warrantless electronic spying on Americans by the National Security Agency (NSA) with the support of DOJ.  Your involvement is even more imperative now that officials in the Office of Professional Responsibility (OPR) have been denied the required security clearances to conduct an OPR investigation into the program.

The need for such an investigation is made all the more necessary in light of the revelations that the NSA has been compiling a massive database of the telephone call records of tens of millions of Americans by obtaining consumer data from some of the major telecommunications companies, in violation of federal laws.  See Title III of the Foreign Intelligence Surveillance Act, 50 USC §§ 1841-46; the Stored Communications Act, 47 USC § 222; and the Electronic Communications Privacy Act, 18 USC §§ 2702, 2707.  Questions abound about whether the administration has misstated the facts and overstated its legal authority to conduct both this monitoring program and the warrantless wiretapping program revealed in December 2005.  These programs warrant a full internal investigation by OIG.   

The inspector general’s office must undertake its own investigation; otherwise there will be no review of the programs’ legality, whether it was ethical for DOJ attorneys to participate in the programs, or of the appropriate use of the department’s resources.  Should the programs go unexamined, the rule of law would be undermined.

The president has refused to follow federal laws requiring a court order for such surveillance, and he has refused to fully inform all members of select congressional committees as required by law, 50 U.S.C § 413.  Attorney General Alberto Gonzales, in turn, has refused to appoint a special counsel, even though all of the legal requirements for such an appointment have been met.  www.aclu.org/safefree/general/23184leg20051221.html (the appointment of a special counsel is warranted, under 28 C.F.R. part 600.1, because federal criminal law requires court orders for electronic surveillance of Americans; Attorney General Gonzales has a conflict of interest regarding the decision to investigate given his involvement in this affair; and an investigation is in the public interest).  And now the administration has refused to give OPR access to materials essential to its investigation.

The president should not have the power to place entire programs and policies off limits, simply by declaring them too secret even for government investigators to review.  No president can be allowed such expansive power. 

Even though the department has asserted, in essence, that OPR has exclusive jurisdiction to investigate DOJ employee misconduct, OIG has overlapping jurisdiction to investigate DOJ personnel and programs to detect and deter abuse and misconduct, and promote the integrity of the Justice Department’s primary mission, enforcing federal law.  Additionally, OIG personnel are well positioned to conduct such an investigation because they already have security clearances beyond the usual Top Secret clearance held by all Justice Department attorneys, including those in OPR.

OIG has a responsibility to investigate violations of federal law, abuses of power, and wasteful government activities, under 5 U.S.C. App.  As you know, the Foreign Intelligence Surveillance Act (FISA) requires the attorney general and department employees, including agents of the Federal Bureau of Investigation, when undertaking a foreign intelligence/anti-terrorism investigation to comply with federal statutes regarding electronic surveillance of people in this country, physical searches of Americans’ homes, and monitoring of the call records of American residents.  All of these require certifications by the attorney general, as the top law enforcement officer in the country, and approval by the Foreign Intelligence Surveillance Court.  Plainly, the attorney general’s implementation of or non-compliance with the legal requirements of FISA is within OIG’s jurisdiction. 

In addition, section 1001 of the USA Patriot Act requires OIG to investigate abuses of civil liberties by officials and employees of the Justice Department.  The Patriot Act modified FISA but did not remove the requirement that the attorney general obtain court orders to allow the NSA or other agencies to engage in electronic eavesdropping or monitoring of Americans.  The deliberate and secret refusal to follow federal laws that include such protections for Americans’ civil liberties is inherently abusive.  This conduct warrants a thorough and complete investigation by OIG.  

Investigative reports also indicate that the wiretapping program is wasting precious anti-terrorism resources to spy on innocent Americans.  The administration refuses to disclose even to Congress how much money is being spent on the illegal secret monitoring programs, but according to a January 17, 2006 article in The New York Times, “F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators.”  In addition, the press reported that “[I]n bureau field offices, the N.S.A. material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more ‘calls to Pizza Hut,’ one official, who supervised field agents, said.”

These reports indicate that the department’s complicity in the NSA’s illegal programs has led to the waste of FBI resources in addition to unwarranted intrusions into the private lives of Americans.  Your office has unambiguous authority and responsibility to investigate whether such a program is wasteful as well as how the constitutional and statutory civil liberties of American residents have been violated.

We respectfully suggest that such an investigation should include a determination of the extent to which the NSA spy program has resulted in the FBI opening investigations of and compiling dossiers on innocent Americans – Americans about whom there is no probable cause to believe are conspiring with al Qaeda or other hostile foreign powers.  The investigation should also determine whether, in pursuing the program or the fruits of the program, FBI agents followed the Attorney General Guidelines – including provisions relating to standards for examining the lives of ordinary Americans, no matter whether such probes are called “preliminary inquiries” or “investigations.”

OIG should also investigate whether the clearance process for department employees is being used as a pretext by administration officials to obstruct OPR’s investigation.  If the decision to bar the OPR investigation is allowed to stand, it will seriously undermine the power not just of OPR but of OIG to investigate any matter in which national security is claimed, allowing any administration to keep breaches of federal law secret from the department’s own internal investigative bodies.  It would have the untenable effect of placing the new Assistant Attorney General for National Security and all attorneys in that directorate off-limits from investigation by OIG and OPR. 

President Bush’s program to spy on Americans without court orders is being allowed to operate without a professional internal investigation of the laws and rules violated, without any judicial oversight to protect the rights of individuals under our Constitution and statutes, and without any meaningful oversight hearings conducted by a Congress controlled by the same party as the president. 

In the absence of such checks on presidential power, our laws and our rights will mean nothing more than what the president says and says secretly.  In the infamous words of President Nixon, “when the president does it that means that it is not illegal.”  President Richard M. Nixon Interview with David Frost, May 19, 1977, republished in The New York Times, May 20, 1977, p. A16.  Congress repudiated that argument when it enacted FISA to prevent any president from claiming an inherent, unlimited power to spy on Americans in the name of gathering foreign intelligence.  It is this very law that the president and some DOJ employees have violated.

What is at stake is whether our nation shall be governed by the rule of law rather than by the dictates of men and women at the Justice Department acting at the behest of the president and in defiance of the laws they have sworn to faithfully execute.  Surely, the Office of Inspector General will not subordinate itself to the will of administration officials who wish to keep these violations of the law concealed.  Using the clearance process to shut down an investigation by OPR is simply an excuse for the administration’s obstruction of any and all serious inquiries into its failure to follow FISA and uphold our fundamental freedoms under the First and Fourth Amendments.

These and related questions are plainly within the purview of OIG, and I urge you to thoroughly investigate them.  Thank you for your consideration.

Sincerely,

Anthony D. Romero
Executive Director
American Civil Liberties Union