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WASHINGTON — David Kelley arrived in Washington, D.C., on the evening of Sept. 11, 2001, still dusted with debris from the fallen towers of the World Trade Center. He showered, changed and in the early hours of Sept. 12, got to work deep within the headquarters of the Federal Bureau of Investigation. The deputy U.S. attorney for the Southern District of New York, Kelley had helped investigate and convict terrorists before — but never in a case with this level of devastation. From the South came Randy Bellows, senior litigation counsel at the Eastern District of Virginia, home to the Pentagon, which sustained the second deadliest hit that day. Bellows is an authority on national security and the law. He wrote the report on the espionage prosecution of nuclear scientist Wen Ho Lee and had recently secured a guilty plea from former FBI agent and Russian spy Robert Hanssen. Both he and Kelley were bona fide stars in prosecutor circles. But like the districts they represented, they couldn’t have been more different. Kelley was pure protein. With his slicked-back hair and suspenders, he looked like Central Casting’s image of the take-no-prisoners New York prosecutor. Soft-spoken and sober-suited, Bellows was brilliant and unfailingly polite. Where Kelley was hard-charging, Bellows was methodical. When Bellows arrived at FBI headquarters, he found a sign taped to the door of the conference room Kelley and the team from New York had procured. The sign read “SDNY ONLY.” By most accounts, it was a tense and awkward beginning to what has grown into an unprecedented alliance between two federal prosecuting offices in a world where law enforcement’s role has changed utterly. Sept. 11 ushered in a paradigm in which law enforcement officials on the state and federal levels had to shelve turf consciousness and open wide the lines of communication. On the federal level, Sept. 11 also shifted the management of cases to a centralized command structure based at 950 Pennsylvania Ave., N.W. — the headquarters of the Justice Department. The attacks drew the New York and Virginia districts together almost immediately. Prosecutors from all over the country were at FBI headquarters working on the investigation, tagged PENTTBOM, but the location of the Pentagon and World Trade Center, and the massive loss of life suffered at those places, resulted in lawyers and investigators from New York and the Eastern District handling the bulk of warrants and grand juries. They were suddenly on the same team and, together, they felt the responsibility for preventing another deadly attack. “Those were dark days,” says Robert Spencer, the Eastern District’s chief of counterterrorism. “We were all sitting in headquarters wondering when the next one was coming.” Spencer is prosecuting alleged Sept. 11 conspirator Zacarias Moussaoui with Kenneth Karas, his counterpart in New York, and David Novak from the EDVA’s Richmond office. “Certainly, in those early days, a lot of the material witness warrants and a lot of what was being done was driven by a real concern that the next big one was around the corner,” says Karas, whom press reports have said is likely to be nominated for a seat on the U.S. District Court for the Southern District of New York. “In hindsight, some people might be critical, but at the time we had no idea what was going to happen.” Prior to Sept. 11, the Southern District of New York had a lock on terrorism cases, especially those involving al Qaeda. Kelley won convictions of two men involved in the 1993 bombing of the World Trade Center. And Karas and Patrick Fitzgerald, now the U.S. attorney in Chicago, successfully prosecuted six conspirators in the 1998 bombings of the U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. The SDNY also won convictions of four other conspirators in the 1993 attacks, as well as of influential cleric Sheikh Omar Abdel Rahman. So established was the Southern District’s role as the al Qaeda district that when FBI agents went to Eastern Africa to look into the embassy bombings, they went with the understanding that if it turned out to be al Qaeda, the Southern District of New York would get the case. If not, D.C. would take it. The Southern District indicted Osama bin Laden in 1998 for terrorism-related crimes, and on Sept. 11, a grand jury investigation into al Qaeda was ongoing. Before Sept. 11, New York not only prosecuted the terrorism cases without much input from other districts, but it also had a lot of independence from Main Justice. Throughout the terrorism work the SDNY did in the 1990s, “our posture towards DOJ was always one of coordination. It wasn’t a situation where everything was cleared by Main Justice,” Karas says. Fitzgerald says it “was the right formula at the time.” The AUSAs on the terrorism team enjoyed an excellent relationship with Jim Reynolds, then the terrorism section chief at the DOJ. Reynolds, Fitzgerald says, was their de facto advocate who let them know what meetings in Washington the prosecutors needed to attend and which ones weren’t a good use of their time. “He watched out for us in Washington. And at the same time we looked out for him by saying, ‘Here’s what’s going on, so you don’t find out about it at a meeting,’” Fitzgerald says. “It worked, because at the time you could get things done more quickly outside of Washington.” When the planes hit, however, “terrorism needed to be addressed with a national scope,” Spencer says. “The SDNY had done an excellent job prosecuting terrorist cases before that. We moved into a different model on that day.” Eastern District prosecutor Rob Spencer was in the Alexandria division offices the morning of Sept. 11. After the plane smashed into the Pentagon, he and then-interim U.S. Attorney Kenneth Melson went to the site to assess the damage firsthand. Shortly thereafter, then-DOJ Criminal Division chief Michael Chertoff decided to assemble a 9-11 task force that included Spencer and Kelley. Complicating matters was the fact that, at the time of the attacks, President Bush’s picks for U.S. attorney in the Southern District of New York, the Eastern District of Virginia and other key districts had not yet been confirmed. Within two weeks of the attack, though, Paul McNulty was approved by the Senate and sworn in as U.S. attorney for the EDVA. It was no secret that James Comey, the Eastern District’s deputy in charge of the Richmond office, was a front-runner for the top prosecutor’s job. Comey had earned a name for himself earlier as an AUSA in Manhattan, and in Richmond, Va., he had launched Project Exile, a gun prosecution program later adopted by Main Justice for national use. Former U.S. Attorney Helen Fahey had given Comey near absolute authority for the Richmond division. Comey had the resume, but McNulty had the political connections: He shepherded Attorney General John Ashcroft through his confirmation process and led the DOJ transition team after Bush was elected president. The day after his swearing in, McNulty headed to Richmond. “[Comey] was for all practical purposes the U.S. attorney in Richmond,” McNulty says. “He knew that with me coming in, that would change. He was very gracious and accommodating. That showed a lot of character.” Comey turned out to be not only gracious, but indispensable in solidifying the relationship between the EDVA and New York. Prosecutors from the Eastern District and New York were on site at the FBI’s Strategic Integration Operations Center 24 hours a day, but the working relationship between the two districts was still strained in the first weeks after Sept. 11. “I thought, ‘What do I have that I can use to fix this? I have Jim Comey in Richmond,’” McNulty recalls. From his days as an AUSA in New York, Comey still had a lot of friends in the office, in particular, Kelley. “I told him, ‘I need you to go to SIOC immediately, even if for just a week or two,’” and pave the way for other EDVA prosecutors to work alongside the New Yorkers, McNulty says. Later that fall, the president tapped Comey to be U.S. attorney for the SDNY, and Comey took over in December. One of his first moves was to make Kelley his deputy. “One of Jim’s strengths is that he’s straightforward and he listens,” says Fitzgerald, his Chicago counterpart. “At the end of the day, if he thinks a case belongs in the SDNY, he’ll explain it well and he’ll be respectful about it. At the same time, he’ll listen, and if another district makes the better case for having it, he’ll agree to it.” But the EDVA is the Justice Department’s designated venue for terrorism cases. Since Sept. 11, the Eastern District “has served as a kind of primary office of support for the [Justice] Department’s anti-terrorism efforts,” McNulty says. He notes that the USA Patriot Act allows a single district to act as a clearinghouse for warrants around the country. McNulty also acknowledges that he is perceived as “the guy who is close to headquarters,” a perception that might help squelch any turf disputes early in desirable cases. Because Main Justice after Sept. 11 began to take a more active role in coordinating and administering terrorism-related cases, McNulty at times still had to fight to make sure his people got prime assignments. He recalls that Chertoff called him in December 2001, when the so-called American Taliban, John Walker Lindh, was being flown to the United States. “[Chertoff said,] ‘We’re going to bring Walker Lindh to Dulles, and you’re going to get the case, but I’ve got to have Kelley do the case,’” McNulty recalls. “And I said, ‘No way. I’ve got to have my guy do the case.’” Kelley had been working on the Lindh matter practically from the moment the 20-year-old was captured in Mazar-e-Sharif, Afghanistan, in November 2001. McNulty figured that he had to “think of someone to put on this case for whom Chertoff has enormous respect and has such stature that Kelley won’t say no.” McNulty picked Bellows, the national security and intelligence specialist, and John Davis, from the EDVA’s Richmond office. “The first couple of meetings, [Bellows and Kelley] were the odd couple,” McNulty says. But the intense pace of work dissolved their surface differences. And in their near-daily meetings with Chertoff deputies Alice Fisher and David Nahmias, they were a unified team. So much so that by July, when they had crafted a plea bargain acceptable to Lindh, his attorneys and the White House that resulted in a 20-year prison term for Lindh, Kelley and Bellows had forged a robust friendship. In 2002, Bellows was appointed as a Fairfax County Circuit Court judge. At his swearing-in ceremony, Kelley was among the friends he mentioned by name. “One of the things that has helped pull Virginia and New York together is, we have to work together in dealing with the Department of Justice,” McNulty says. Comey adds that while “issues of turf don’t disappear, they’re easier to resolve because our commitment to the nation as a whole hangs over those issues. It sounds corny, but it’s true.” Siobhan Roth is a reporter for Legal Times , a Recorder affiliate based in Washington, D.C.

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