WASHINGTON - The Justice Department refused to prosecute former Attorney General Alberto Gonzales for improperly — and possibly illegally — storing in his office and home classified information about two of the Bush administration's most sensitive counterterrorism efforts.
Mishandling classified materials violates Justice Department regulations, and removing them from special secure facilities without proper authorization is a misdemeanor crime.
A report issued Tuesday by the Justice Department's inspector general says the agency decided not to press charges against Gonzales, who resigned under fire last year.
The report by Inspector General Glenn A. Fine found that Gonzales risked exposing at least some parts of the National Security Agency's terrorist surveillance program, as well as interrogations of terrorist detainees. Some aspects of the surveillance program explicitly referred to in the documents were "zealously protected" by the NSA, the report found.
Fine referred the case to the Justice Department's National Security Division to see if charges should be brought against Gonzales. But prosecutors dropped the case after an internal review that began earlier this year, said Justice Department spokesman Dean Boyd.
"After conducting a thorough review of the matter and consulting with senior career officials inside and outside of the division, the NSD ultimately determined that prosecution should be declined," Boyd said in a statement.
The lack of charges against the nation's former top law enforcement officer infuriated the Democratic chairman of the House Judiciary Committee, John Conyers, D-Mich., who demanded to know why.
Lawyers for Gonzales acknowledge he did not store or protect the top secret papers — a set of handwritten notes about the surveillance program and 17 other documents — as he should have. But they say he did not intend to risk letting unauthorized people see them, and there's no evidence that occurred.
The report is the latest to take Gonzales to task for mismanagement at the department during his 31 months as attorney general. The criticism could foreshadow the results of an ongoing investigation by Fine's office about Gonzales' role in the 2006 firings of nine U.S. attorneys. That inquiry is expected to be finished within months.
"Like all other department employees, Gonzales was responsible for safeguarding classified materials, familiarizing himself with the facilities available to him ... for storing these materials and observing the rules and procedures for the proper handling of classified materials," Fine's report stated. "Our investigation found that Gonzales did not fulfill these obligations and instead mishandled highly classified documents about the NSA surveillance program and a detainee interrogation program."
In a statement Tuesday afternoon, Conyers said he was "shocked" by the report's findings that he said only adds "to an already troubling record of the Justice Department under this administration and under Mr. Gonzales."
"The department ought to explain clearly why it declined to pursue charges against Mr. Gonzales and what actions it intends to take in response to the report," Conyers said.
Three years ago, former national security adviser Sandy Berger pleaded guilty to removing classified documents from the National Archives and hiding them under a construction trailer. He was fined $50,000 and ordered to perform community service. He was barred from viewing classified material.
Berger, who said he took the documents to help prepare for testifying about the Sept. 11 terror attacks, told a federal judge that he "let considerations of personal convenience override clear rules of handling classified material." Berger, who served under President Bill Clinton, later surrendered his law license.
At issue for Gonzales is how and where he stored the sensitive compartmentalized information, or SCI, which is among the most sensitive levels of classified top secret documents and usually concern national security cases. They are supposed to be stored only in special safes or facilities that can be accessed only by certain people with SCI security clearances.
At the Justice Department, however, Gonzales kept the documents in a safe in a fifth-floor office in the attorney general's suite — which is not considered an SCI facility. In 2006, investigators found, the safe was searched by two employees who did not have SCI clearances but who looked through it "document by document" for papers requested through the Freedom of Information Act.
The report also found that Gonzales took some SCI documents — specifically, notes about the surveillance program — to his house in suburban Virginia when he was moving from his secure counsel's office at the White House in early 2005 to the Justice Department.
Although he initially said he believed he kept the documents in a safe at his home, Gonzales later told investigators he did not know the combination of the safe. He said he may have kept the papers in his briefcase and did not always lock it.
In a response to the report, Gonzales' lawyers indicated the former attorney general was merely forgetful or unaware of the proper way to handle the top secret papers.
"Judge Gonzales regrets this lapse," concluded the lawyers' response, written by Gonzales attorney George Terwilliger.
However, Tuesday's report showed Gonzales was briefed on how to properly handle SCI material both while at the White House and at the Justice Department.
As a result of the security breach, Gonzales could lose any remaining security clearances he may still have. Fine's investigators alerted the NSA and the Justice Department's internal security officials to alert them that the top secret information may have been compromised.
The Justice Department report can be found at: http://www.usdoj.gov/oig/special/s0809/final.pdf">http://www.usdoj.