Congressman Maurice Hinchey (NY22) :: Press Release :: Hinchey, Colleagues Call For U.S. Dept. of Justice Inspector General To Conduct Full Investigation Of NSA Warrantless Surveillance Program

Washington, D.C. - Deeply concerned about the constitutionality of the National Security Agency's (NSA) warrantless surveillance program and the Bush administration's failure to adequately justify the initiative, Congressman Maurice Hinchey (D-NY) and 41 of his House colleagues today called on U.S. Department of Justice (DOJ) Inspector General Glenn A. Fine to conduct a full investigation and report to them with a detailed explanation of the program's evolution and implementation. The House member's call for a probe comes on the heels of President Bush's acknowledgement that the NSA warrantless surveillance program is on shaky legal ground and in need of legislative support from Congress.

Following The New York Times' initial reporting of the NSA warrantless surveillance program in December 2005, 39 House members sent Fine a letter asking him to investigate the initiative. Fine responded saying that such a probe fell outside of his jurisdiction and advised the House members that DOJ's Office of Professional Responsibility would best be suited to investigate the matter. In January, Hinchey and three of his House colleagues wrote to OPR requesting an investigation. In February, OPR Counsel H. Marshall Jarrett informed Hinchey that an investigation was in fact underway. However, Jarrett wrote Hinchey in May that he had closed the probe because his investigators were denied clearances. Attorney General Alberto Gonzales revealed in July that President Bush was the one who denied the security clearances. Documents released by Gonzales also revealed that Inspector General Fine and some of his staff had in fact been granted security clearances.

"It's been nearly nine months since the NSA warrantless surveillance program became public knowledge and Congress knows as much about the program as we knew when it was first reported in The New York Times because the Bush administration has kept us in the dark about the details of this program," Hinchey said. "A thorough investigation by Inspector General Fine would finally shed light on how the NSA warrantless surveillance program was born, how it evolved, and how it is carried out today. For the Bush administration to come in and set up this Big Brother program and simply refuse to answer substantive questions in any real way and expect us to endorse it is simply unacceptable. We certainly want to do everything possible to monitor terrorists, but we must work together to find ways to accomplish that goal without treating the Constitution as a voluntary set of rules."

Since it is now known that Department of Justice Inspector General Fine and his staff have the security clearances needed to investigate the NSA warrantless surveillance program, we are now writing him to ask that he conduct a very thorough and detailed investigation on how the program came about and how it has been carried out. Among other things, Hinchey and his colleagues specifically requested that IG Fine investigate: whether the president, the attorney general, and the director of the NSA violated the Foreign Intelligence Surveillance Act by establishing and carrying out the program; who within the DOJ first authorized the domestic surveillance program and what that official's justification was for doing so; if the Bush administration had 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 why the Attorney General expressed strong reservations about the program and may have rejected it as well.

Last month, a federal judge in Michigan ruled the NSA warrantless surveillance program was unconstitutional. The Bush administration has appealed that ruling, but comments last week by the president show that he recognizes the program is on shaky legal ground and in need of legislative backing by Congress. The president said, "The surest way to keep the program is to get explicit approval from the United States Congress. So today I am calling on the Congress to promptly pass legislation providing additional authority for the terrorist surveillance program, along with broader reforms in the Foreign Intelligence Surveillance Act."

Hinchey and his 41 other colleagues argued in their letter to Fine that the NSA program, "...goes against the protocol established in the Foreign Intelligence Surveillance Act (FISA). Under that Act, Foreign Intelligence Surveillance Courts were established to review and authorize the type of surveillance that the president authorized under the NSA spying program. Since 1978, only a handful of requests for surveillance have been denied. If the president believed that the current system of getting authorization 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. Instead of coming to Congress and making a suggestion, the president -- on his own -- authorized a program that allows for the warrantless surveillance of American citizens in a way that seems in direct conflict with FISA as well as the Fourth Amendment to the Constitution."

Following up on Bush's recent acknowledgment that the program is legally unsound without further congressional action, Hinchey added, "By appealing to Congress for additional authority, President Bush is essentially acknowledging that his warrantless surveillance program is legally weak. Quite frankly, the president should have come to Congress years ago when he first wanted to develop this program not after the fact."

Among other responsibilities, the role of the Inspector General is to conduct independent investigations, audits, and reviews of agency personnel and activities to detect any misconduct, fraud, and abuse.

The full text of the letter from Hinchey and his 41 House colleagues to Fine follows:

Glenn A. Fine, Inspector General

United States Department of Justice

950 Pennsylvania Avenue, N.W., Suite 4706

Washington, DC 20530-0001

Dear Inspector General Fine:

Ever since The New York Times broke the news about the National Security Agency's (NSA) warrantless spying program, we have actively tried to get more information from DOJ about the details of the program. To date, our questions remain unanswered. Thirty-nine members of this Congress sent you a letter on December 20, 2005 asking that you investigate the program. You responded to that letter stating that an investigation of this program "falls outside the jurisdiction of the OIG. Specifically, the actions of the Attorney General or other Department attorneys in providing legal advice regarding the legality of warrantless surveillance by NSA relates to the legal duties of the Department attorneys, which falls within the jurisdiction of the Department's Office of Professional Responsibility (OPR), not OIG."

However, as you know, the office that you asserted would be the appropriate office, the Office of Professional Responsibility, was unable to get the necessary security clearances to conduct an investigation. On the same day that we found out that it was President Bush who denied the Office of Professional Responsibility the necessary security clearances, we also found out that your office is now charged with investigating the program and has received the necessary security clearances. Thus, we write you today, in yet another effort, to receive answers to our questions and get a better understanding of the NSA's warrantless spying program.

As you are aware, this program goes against the protocol established in the Foreign Intelligence Surveillance Act (FISA). Under that Act, Foreign Intelligence Surveillance Courts were established to review and authorize the type of surveillance that the president authorized under the NSA spying program. Since 1978, only a handful of requests for surveillance have been denied. If the president believed that the current system of getting authorization 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. Instead of coming to Congress and making a suggestion, the president -- on his own -- authorized a program that allows for the warrantless surveillance of American citizens in a way that seems in direct conflict with FISA as well as the Fourth Amendment to the Constitution.

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

We look forward to finally receiving a response to these questions as well as receiving any other related information you may discover during the course of such an investigation. Since we have been waiting since January to receive answers to our questions about this program, your timely effort in this regard will be much appreciated and will assure the American people that its government is committed to working within the law and holding its leaders accountable for any inappropriate or illegal actions.