A September 2, 2008 report of the DOJ Inspector General motivated by an August 10, 2007 referral from the National Security Division headed by then Assistant Attorney General Kenneth Wainstein found that Alberto Gonzales had mishandled documents classified at the highest level of Top Secret/Sensitive Compartmented Information (TS/SCI). Such materials are supposed to remain under the direct personal control of an individual with authorization for them in specially designated rooms or stored in specially designated safes. The documents in question dealt with two of the Administration’s most sensitive and controversial programs: NSA’s warrantless wiretapping and detainee interrogations. They included his notes of a briefing to Congressional leaders on the NSA program and 17 other documents marked TS/SCI: among them draft and final Office of Legal Counsel (OLC) opinions concerning both the intelligence and interrogation programs, and Congressional correspondence to the Director of the CIA.
During the investigation, Gonzales’ bad memory was much in evidence. He said he could not remember receiving a briefing on security procedures in 2001 and again in 2005 when he became Attorney General (although he had signed forms acknowledging that he had). He could not remember that a safe that had been installed in his residence when he was White House Counsel was kept on after he became Attorney General. He could not remember ever having used the safe or if it was approved for SCI materials. He could not remember an instance in March 2005 when an assistant tried to find out the combination from security managers because the Attorney General did not know it. He could not remember that he had forgotten the combination.
With regard to his notes describing the March 10, 2004 briefing (the same day as the famous Ashcroft hospital visit, see item 12) of Congressional leaders discussing Acting Attorney General James Comey’s objections to the NSA warrantless wiretapping program, Gonzales could not remember the security level of the materials used or if their security level had been marked even though he knew the program was “very, very limited access” and described it in December 2005 has “one of the most highly protected in the United States government.” An NSA official at the meeting confirmed that briefing materials were marked TS/SCI. NSA officials also confirmed that portions of Gonzales’ notes contained TS/SCI information.
When Gonzales was sworn in on February 3, 2005, he took the notes from the White House in his briefcase but could not remember what he did with them afterwards. He said he might have taken them home with him and left them in his briefcase which he did not always lock. He did not put them in his safe because he did not remember that he had a safe at home, and as described above the following month could not remember the combination to it anyway. He described his removal of the notes from the White House as “instinctive”. At some point Gonzales could not recollect, he put both the notes and the other materials in question in a non-SCI approved safe at the Justice Department which both he and his assistants had access to. While his notes carried no security markings but contained TS/SCI information, the remaining documents were clearly marked TS/SCI.
Gonzales did remember looking for the notes in May or June 2007 after Comey testified before Congress and finding them in the safe just outside his office. At that time, he made a copy of them for Fred Fielding the White House Counsel. Two White House Counsel Office lawyers who had been read into the NSA program and recognized the classified nature of the notes asked Gonzales in a July 25, 2007 meeting about his security arrangements for the notes. Gonzales said that they were the only documents he had taken from the White House and that he kept them in a safe. He did not know but thought it was SCI approved. Their notes also state, “he thinks he may have taken them home to look at and probably kept in safe at home”. But of course, as he told the Inspector General investigators he could not really remember. After the White House lawyers began asking questions, Gonzales turned over the notes to Steven Bradbury the Acting head of the OLC. Shortly thereafter, Gonzales announced his resignation on August 27, 2007 to become effective on September 17, 2007. On September 14, Gonzales turned over to Bradbury the remaining documents which made up the subject of the IG’s inquiry.
The IG report concluded that Gonzales had “violated basic Department regulations and procedures governing the proper handling of such classified materials.” The IG turned over its findings to the Justice Department’s National Security Division which, unsurprisingly in this Administration which protects its own, declined prosecution of Gonzales.