Hinchey Officially Calls for U.S. Department of Justice Investigation Into Development & Legality of Secret Domestic Surveillance Program

Hinchey Officially Calls for U.S. Department of Justice Investigation Into Development & Legality of Secret Domestic Surveillance Program
January 9, 2006

Says President Cannot Circumvent Constitution; Must Work With Congress to Find Legislative Solutions That Would Help Track Potential Terrorists While Protecting System of Checks & Balances

Kingston, NY - Deeply concerned about the constitutionality and precedent of President Bush's secretly authorized domestic surveillance initiative being conducted without warrants, Congressman Maurice Hinchey (D-NY) today formally called for a U.S. Department of Justice (DOJ) investigation into the development and legality of the program. Hinchey and three of his House colleagues this week will send a letter to H. Marshall Jarrett, DOJ's Counsel for the Office of Professional Responsibility asking for an investigation into how the surveillance program came about, the involvement and objections of DOJ officials regarding the program, and the overall legality of the initiative.

"We respectfully request that you conduct an internal investigation to determine what role DOJ played and continues to play in this domestic surveillance program and whether such an initiative is permissible under law," Hinchey and his colleagues wrote in the letter to be sent to Jarrett. "We all want the United States to be as effective as possible in tracking potential terrorists and bringing them to justice. Congress is wholly committed to protecting the United States and its people. However, this protection can and should be accomplished in a manner that upholds and respects the Constitution. Circumventing the legal framework of the Constitution is not a justifiable way to accomplish this goal."

Last month, The New York Times disclosed that shortly after the September 11, 2001 terrorist attacks, President Bush authorized the National Security Agency (NSA) to conduct domestic surveillance operations without warrants and beyond the authority of the Foreign Intelligence Surveillance Act (FISA). Under current law, all specific surveillance requests described in FISA require approval from the Foreign Intelligence Surveillance Court (FISC). Under FISA, the Administration has to disclose to the Administrative Office of the United States Courts how many applications were made to the FISC for electronic surveillance and physical search. Only a handful of requests for surveillance have been denied since, which has caused Hinchey to further question why the Administration felt that the court process for getting a warrant was insufficient.

Among other things, Hinchey and his colleagues specifically want to find out: who within DOJ first authorized the domestic surveillance program and that official's justification for doing so; had the Administration already enacted the program before getting original DOJ approval; what the reauthorization process for the surveillance initiative entails; and why, according to news reports, did the then-Acting Attorney General refuse to reauthorize the program and the Attorney General express strong reservations about the program and may have rejected it as well.

"If the president felt that current law did not adequately allow him to monitor potential terrorists then he should have worked with Congress to find a legislative solution that would have enabled him to do so," Hinchey said. "Failing to tell the Congress about a domestic surveillance initiative sends a signal that the president disregards the system of checks and balances established in the Constitution. In addition to raising constitutional concerns, the president's decision to order warrantless surveillance has the potential to create a slippery slope in which the Executive Branch allows itself to have the power and authority of the Legislative and Judicial Branches."

In addition to calling for DOJ's Counsel for the Office of Professional Responsibility to conduct an investigation, Hinchey has sought other ways to uncover the development of the secret surveillance program. Last week, Hinchey cosigned a letter authored by House Judiciary Committee Ranking Member John Conyers (D-MI) to President Bush asking that he present Congress with all information related to the development and administration of the warrantless surveillance initiative. Additionally, Hinchey is cosponsoring a measure that Conyers authored, that if passed by Congress, would require Attorney General Alberto Gonzales to present Congress with all documents in his possession relating the approval and implementation of the secret surveillance program.

Hinchey is circulating the letter to Jarrett amongst his House colleagues and plans to send the letter no later than mid-week.

The text of Hinchey's letter to Jarrett follows:

January 9, 2006

H. Marshall Jarrett, Counsel
Office of Professional Responsibility
950 Pennsylvania Avenue, N.W., Suite 3266
Washington, D.C. 20530

Dear Mr. Jarrett:

The New York Times' disclosed last month that President Bush secretly authorized the National Security Agency (NSA) to conduct domestic surveillance operations without warrants and beyond the authority of the Foreign Intelligence Surveillance Act (FISA). This action by the president raises very serious questions about the constitutionality of such a directive. Subsequent news reports have made it clear that top officials at the U.S. Department of Justice (DOJ) had knowledge of the program and also raised serious concerns about its legality. As such, we respectfully request that you conduct an internal investigation to determine what role DOJ played and continues to play in this domestic surveillance program and whether such an initiative is permissible under law.

We all want the United States to be as effective as possible in tracking potential terrorists and bringing them to justice. Congress is wholly committed to protecting the United States and its people. However, this protection can and should be accomplished in a manner that upholds and respects the Constitution. Circumventing the legal framework of the Constitution is not a justifiable way to accomplish this goal.

The president's decision to unilaterally order warrantless surveillance creates a dangerous precedent. First, the president's decision sidesteps the established procedure of receiving court permission to conduct surveillance. Currently, specific surveillance requests described in FISA require approval from the Foreign Intelligence Surveillance Court (FISC). Each year, the Administration pursuant to FISA, has to disclose to the Administrative Office of the United States Courts how many applications were made to FISC for electronic surveillance and physical searches. Since 1978, only a handful of requests for surveillance have been denied. Second, if the president believed that the current system of getting authorization of surveillance was an ineffective and burdensome way to track alleged terrorists he should have worked with Congress to present his case and find a legislative solution.

To help determine the scope of the domestic surveillance initiative and DOJ's role in the matter, we request that you investigate the following questions:

· When did DOJ first authorize the president's request for the NSA to conduct domestic surveillance without warrants? What was the process that led to that authorization?

· Did the Administration enact the surveillance initiative prior to DOJ's approval? If so, when and how was the program originally implemented?

· What is the process for reauthorizing the program and how often does reauthorization occur? Has DOJ reauthorized the program every time?

· Why did then-Acting Attorney General James Comey object in 2004 to the reauthorization of the surveillance program?

· Following Comey's refusal to sign off on the reauthorization of the surveillance program, White House Chief of Staff Andrew Card and then-White House Counsel Alberto Gonzales visited then-Attorney General John Ashcroft -- for whom Comey was filling in -- in the hospital as he recovered from gallbladder surgery to obtain his reauthorization of the surveillance program. According to The New York Times, Ashcroft raised objections to the program, but it is unclear whether he eventually gave his permission. Did Ashcroft reauthorize the program while in the hospital or did the White House move forward with the initiative without his approval?

· What percentage of the surveillance conducted under this presidential authorization involved communications in which both parties were located within the United States?

· What were DOJ's criticisms and justifications of the monitoring both prior to and after DOJ's audit of the program in 2004?

We look forward to receiving your response to these questions as well as any other related information you may discover during the course of such an investigation. Your timely effort in this regard will be much appreciated and will help assure the American people that its government is committed to working within the law and holding its leaders accountable for their actions.

Sincerely,

Maurice Hinchey,
Henry Waxman,
John Lewis,
Lynn Woolsey

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