Justice Sees No Misconduct in Conflict Between VP and ISOO

The Department of Justice Office of Professional Responsibility has declined to open an investigation into allegations that Justice Department attorneys improperly refused to respond to the Information Security Oversight Office when it challenged the Office of the Vice President’s failure to cooperate with ISOO’s oversight of the classification system.

In a January 2, 2008 complaint, the Federation of American Scientists had argued that, under the terms of the President’s executive order, the Justice Department was obliged to render an opinion on the executive order’s applicability to the Office of the Vice President when ISOO asked for it. Yet Justice attorneys at the Office of Legal Counsel refused to do so.

The Office of Professional Responsibility was not persuaded.

“We have concluded that the facts do not raise an issue of attorney misconduct that requires an investigation by this office,” wrote H. Marshall Jarrett, OPR Counsel in a February 14 letter to FAS (pdf).

“This matter does not involve an allegation of affirmative malfeasance, but rather, the alleged improper failure to perform an act,” he wrote.

Furthermore, the Justice Department’s handling of the matter appeared to be consistent with the support of the Vice President’s position against oversight that was expressed by the White House counsel, Mr. Jarrett said.

Finally, he suggested, if there are still questions of interpretation of the executive order that remain unresolved, “the ISOO may request an opinion from the Department clarifying the matter.”

The Department’s prior refusal to render such an opinion was the basis of the original complaint.