NSA Case Dropped After Lawyers Denied Clearances

A Justice Department investigation into the NSA electronic surveillance operation has been abruptly dropped after NSA denied security clearances to the DOJ lawyers.


The government has abruptly ended an inquiry into the warrantless eavesdropping program because the National Security Agency refused to grant Justice Department lawyers the necessary security clearance to probe the matter.

The inquiry headed by the Justice Department’s Office of Professional Responsibility, or OPR, sent a fax to Rep. Maurice Hinchey, D-N.Y., on Wednesday saying they were closing their inquiry because without clearance their lawyers cannot examine Justice lawyers’ role in the program. “We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program,” OPR counsel H. Marshall Jarrett wrote to Hinchey. Hinchey’s office shared the letter with The Associated Press.

NYT adds:

Mr. Hinchey said the denial of clearances was “hard to believe” and compounded what he called a violation of the law by the program itself, which eavesdrops without court warrants on people in the United States suspected of ties to Al Qaeda.

Brian Roehrkasse, a Justice Department spokesman, said that the N.S.A. program was “highly classified and exceptionally sensitive” and that “only those involved in national security with a specific need to know are provided details about this classified program.” He said the legality of the eavesdropping program had been reviewed by other Justice Department offices and by the N.S.A. inspector general.

This is, to say the least, rather dubious. Surely, there are competent investigators employed by the government who have TS/SCI clearances. By definition, conducting an inquiry under order from the Attorney General and/or Congress constitutes a “need to know.”

President Bush has the authority to overrule NSA on this. He should do so forthwith.

FILED UNDER: Congress, Intelligence, Law and the Courts, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Seav says:

    Where is Fitzgerald and his criminal conspiracy?

  2. In general I would agree with you, but I personally will reserve judgement until I know a bit more about those denied clearance.

    I do not find it beyond the pale of possibilities that the lawyers denied clearance should be denied clearance.

  3. James Joyner says:

    YAJ: Sure. I do find it highly unlikely that NO DOJ LAWYER WAS CLEARABLE, however.

  4. Maybe I missed it, but where does it say that all DOJ lawyers where deemed not clearable? What I see is “OPR has been denied security clearances for access to information about the NSA program. Beginning in January 2006, this Office made a series of requests for the necessary clearances. On May 9, 2006, we were informed that our requests had been denied.” This would suggest a much smaller set of lawyers than all DOJ lawyers. It is unclear if they had some specific names rejected, the series refers to them submitting the name of each lawyer in OPR in turn or what.

    The counsel sending the fax doesn’t provide the details. The fact that he was appointed by Reno during the Clinton administration doesn’t prove his fax is meant to be a political stunt vs a real issue, but it doesn’t disprove it either.

    I agree that if every DOJ lawyer was denied that there is a problem that needs to be addressed. But if the problem is just some hold overs from the Clinton administration who don’t pass muster, then its an entirely different affair. There are apparently a fair number of DC bureaucrats who think their judgement on what secrets should be released is dispositive. Maybe the names put forth are in that group? But I don’t see enough information to rush to judgement in either direction.

  5. McGehee says:

    But if the problem is just some hold overs from the Clinton administration who don�t pass muster…

    I would hope that would not be the reason they didn’t pass muster.

  6. legion says:

    I would hope so too, McG, but given the recent comments by the HUD secretary, it seems to be standard policy these days that if you aren’t an overt supporter of Bush, you have no voice or representation in this government…

    When they said “if you aren’t with us, you’re against us,” you thought they were talking about terrorists… 😉

  7. anjin-san says:

    Hope you are not holding your breath waiting for Bush to do the right thing. I wonder if some outside nation is going to step in and help us establish a democracy. I don’t think we have one any more.

  8. McG,

    I wasn’t suggesting that political appointment would be sufficient cause. But we have seen mid level bureaucrats from previous administrations think that it is all right to leak secrets to the press or destroy information (e.g. Berger) for political reasons. One of the ways you keep a secret is not to let others know and especially not to let those who can’t keep a secret.

    I stand by the fact that we haven’t seen enough information to know if this is the case of one lawyer denied access for cause, “all DOJ lawyers” denied access or something in between. What we have a a fax from a Clinton appointee to a democratic congressman who isn’t on the house intelligence committee. Hardly a complete set of facts now is it?

  9. slickdpdx says:

    I agree that some OPR lawyers should be cleared so they can do their job. But will most critics be satisfied with a secret investigation? I think not.

  10. Roger says:

    Does anyone really doubt this is a continuation of the cover-up? If so, I have some land for sale 150 miles due south of Hawaii . . .