At Justice, New Pressure To Release Documents

by Carrie Johnson

At his confirmation hearing last October, attorney general nominee Michael B. Mukasey assured senators that "there isn't going to be any stonewalling" over congressional requests on his watch.

Key lawmakers are now calling on the Justice Department to live up to that promise.

The release last week of a Justice Department memo that authorized the military to pursue harsh interrogation techniques has ignited new demands for documents that underpin the Bush administration's most sensitive policies, including the treatment of detainees and the warrantless surveillance of U.S. citizens.

Despite repeated congressional requests, some made as long as three years ago, key legal opinions and other department documents remain under wraps. That has prompted Democrats to accuse the Bush administration of trying to run out the clock.

Sen. Patrick J. Leahy, the Vermont Democrat who chairs the Judiciary Committee, said the department has been somewhat more responsive under Mukasey than under his predecessor, Alberto R. Gonzales. But, Leahy said, "what slight improvement there has been does not overcome the department's continued failure to provide . . . the secret justifications of presidential lawlessness that we have sought for years."

Justice Department spokesman Peter Carr said that officials spend "an enormous amount of department time and resources" responding to congressional inquiries, and that they have replied to more than 500 questions from lawmakers this year. "We agree that there is always room for improvement in our effort to be responsive to Congress," Carr said.

At the same time, he said, many requests cover sensitive issues that require cutting through a thicket of pending lawsuits and classified documents, as well as checking with other government agencies and the White House. All those efforts can interfere with prosecutors' day-to-day work, he added.

"The people in the department who must answer these inquiries are many of the same people who are making key operational decisions in the war on terrorism," Carr said.

Mukasey, a retired federal judge, was sworn in to his new job in November. He inherited from Gonzales a contentious relationship with Congress and a shortage of personnel.

More than a dozen senior Justice Department officials resigned last year as congressional and internal probes of political interference intensified, adding to the disarray at Washington headquarters. In 2007, officials spent 30,000 hours responding to Congress over the firing of nine U.S. attorneys, the department said.

The management void showed, congressional aides said, as letters went unanswered for months. Hundreds of questions posed to Gonzales at a July oversight hearing were answered by Justice officials more than six months later, in January, on the eve of Mukasey's first appearance before the Senate Judiciary Committee.

Replies to follow-up questions posed to FBI Director Robert S. Mueller III shortly after a March 2007 hearing were provided to the Senate in late January, in a document marked "current" as of July 31, 2007, according to a copy.

As the Gonzales-era responses lagged, new questions arose. In the past three months, the Senate Judiciary Committee has demanded data on lucrative corporate monitoring contracts that Justice Department officials awarded without competitive bidding. The information has not been provided.

But most of the pending legislative requests cover national security. Senate Armed Services Committee Chairman Carl M. Levin (D-Mich.) spotlighted the issue in a floor speech nearly three years ago but is still waiting for key policy memos on detainee treatment, aides said this week.

Rep. John Conyers Jr., another Michigan Democrat and chairman of the House Judiciary Committee, last week renewed his request for a complete version of an October 2001 policy memo covering presidential war powers within the United States. "The notion that the President can claim to operate under 'secret' powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy," Conyers wrote.

Some of the information at issue dates to the early months of the Bush administration, when authorities developed a secret electronic surveillance program after Sept. 11, 2001, that allowed government officials to snoop without warrants. Lawmakers have long sought a key legal opinion covering that activity and a later document that amended it.

Justice Department officials have said that they deserve credit, however, for releasing -- last Tuesday -- a 2003 opinion approving harsh military interrogation tactics. "Following a request of Senator Levin, DOD [the Defense Department] conducted a declassification review and determined that it would be appropriate to declassify the memorandum at this time," Justice spokesman Brian Roehrkasse said.

"The public disclosure . . . represents an accommodation of Congress's oversight," he added. But the American Civil Liberties Union, which had sued to obtain the document under the Freedom of Information Act, maintains that it was released "as the result" of that lawsuit, and that otherwise its existence would not be public.

Other documents requested by Congress could shed light on the reasons the Bush administration fired the nine U.S. attorneys and what role the White House and political appointees may have played. House lawyers recently sued to gain access to that material and to witnesses, after the Bush administration cited executive privilege and refused to hand them over.

But Senate Democratic aides said they doubt that controversial legal opinions drafted after the Sept. 11 attacks and in ensuing years will see the light of day until a new president assumes office in January.
© 2008 The Washington Post