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WASHINGTON — In the early months of 2001, life at the Justice Department was as placid as it had been for some time — despite the fact that a Republican regime was taking over the agency for the first time in eight years. John Ashcroft, a former Republican senator from Missouri, had just survived a brutal confirmation battle in which he was repeatedly grilled by Democratic senators fearful that he would apply his conservative values to his new position. He joined a Justice Department already in the midst of the transition, one that had gotten off to a late start thanks to the contested results of the presidential election in Florida. It was a moment when, in the era before the Sept. 11 terrorist attacks, the focus of the country was on other things. The news surrounding the department concerned big-ticket civil cases like the antitrust suit against the Microsoft Corp. Ashcroft’s critics predicted that the man who often criticized the use of federal power while in the Senate would move more to downscale the department rather than continue some of the aggressive policies of his predecessor, Janet Reno. And the Federal Bureau of Investigation’s stock was still bottoming out after waves of scandal. It feels like a long time ago. But it is a time that the Sept. 11 commission revisited last week in its attempt not only to determine the facts as they existed before the day of the dual attacks on New York and Washington, but to recapture the mindset of the period as well. Despite hopes to the contrary, last week’s hearings before the National Commission on Terrorist Attacks Upon the United States quickly degenerated into episodes of finger pointing and blame assignment. The parade of former and current federal law enforcement officials who testified succeeded in only one respect — largely shifting responsibility for the deadly attacks that killed 3,000 people on Sept. 11, 2001, away from themselves. Most notable in that regard was Attorney General Ashcroft, who fiercely rebutted criticism that he did not place a high priority on terrorism when taking office in early 2001. Ashcroft was, in fact, quickest to blame the Clinton administration for leaving his department — and the FBI — underfunded and understaffed in the battle against al Qaeda. But Ashcroft was dodging critics of his own, notably former acting director of the FBI Thomas Pickard, who offered a damning indictment of the attorney general’s priorities that spring and summer. Pickard told the commission that Ashcroft wasn’t interested in terrorism issues and that, after being briefed about potential threats to America, the new AG “didn’t want to hear about it anymore.” Ashcroft, for his part, strongly denied Pickard’s accusation in his testimony last week. And Larry Thompson, who came aboard as the deputy attorney general that May, denied Pickard’s assertion about the department’s priorities in an interview last week. Thompson, who left the DOJ in 2003, says he never saw any time when Ashcroft was not committed to counterterrorism prior to Sept. 11. Thompson says that during the summer of 2001, he regularly attended meetings with top officials of other Cabinet agencies about the growing al Qaeda threat. “We expected something would happen,” Thompson says. “But the focus was overseas.” In January 2001, while Ashcroft was still awaiting confirmation, Bush administration officials who would later play leading roles in the war on terrorism were watching over the Justice Department. The most notable were Robert Mueller III, then the acting deputy attorney general, who would soon be named by President George W. Bush to take over the FBI, and Paul McNulty, then the principal associate deputy attorney general, who would go on to head the U.S. Attorney’s Office for the Eastern District of Virginia, which would take a leading role in major terrorism prosecutions. At the time, the expectation was that the Justice Department might drop from the headlines for a time. It had gained notoriety during the 1990s for the ambivalent relationship between Reno and the Clinton White House as it was beset by the Monica Lewinsky probe and other controversies. Ashcroft and his team seemed more in harmony with the Bush administration. Observers wondered whether this Justice Department would attempt to exit gracefully from some high-profile Reno causes, such as the suits against Microsoft and the tobacco industry. With this as the backdrop, Ashcroft, perhaps, could be forgiven if terrorism wasn’t in the forefront of his mind as he took command of the department. In multiple days of testimony before the Senate Judiciary Committee during his confirmation hearing, Ashcroft was never once directly asked about his plans for combating terrorism. This, despite the fact that the bombing of the USS Cole in Yemen had occurred just three months earlier, in October 2000. Instead, senators were preoccupied with Ashcroft’s views on civil rights, abortion and gun ownership. A career politician who favored weakened federal power and who held no previous experience in law enforcement, Ashcroft was about as different from Reno as one could get. Where Reno, a former prosecutor, was a micromanager, almost to the point of extremes, Ashcroft preferred to delegate. Once confirmed, Ashcroft met for lunch with his predecessor, Reno. During her testimony last week, Reno said she handed Ashcroft three memoranda that she had sent to the FBI in the winter and spring of 2000. Each of the memos called for the bureau to improve its ability to analyze and share intelligence to protect “against emerging national security threats.” But none of the memos mentioned al Qaeda or Osama bin Laden specifically. “But what I did talk about was reflected in the memos which I gave him,” Reno testified. “Which is: If we don’t put the pieces together and connect the dots, there’s going to be something that happens.” Reno said she didn’t know what happened with her recommendations, and the Sept. 11 commission bypassed a chance to find out. None of the 10 commissioners asked Ashcroft during his testimony about the memos or whether he acted on Reno’s advice. If Ashcroft did encourage the FBI to act on Reno’s directives, there is no evidence of it before the commission. The bureau since 1999 had been working on upgrading its counterterrorism and intelligence-gathering capacity, but still sorely lacked the analytical capability and technology to evaluate potential global threats. Those initiatives weren’t particularly embraced or encouraged by the new management at the DOJ. A report delivered by the commission’s investigative staff last week stated simply that “the FBI’s new counterterrorism strategy was not a focus of the Justice Department in 2001.” Indeed, the FBI as Ashcroft took over was still trying to re-establish its reputation as one of the world’s elite law enforcement agencies, an image tarnished by a series of questionable actions during the 1990s in sieges at Ruby Ridge, Idaho, and Waco, Texas; problems with the Wen Ho Lee case; and the then-recent revelation that FBI agent Robert Hanssen served as a spy for Russia. As the commission staff report states, Ashcroft was mindful that the bureau needed “reform,” but that reform didn’t necessarily take the shape then that it would eventually take, when the bureau would be hurriedly retooled as an anti-terrorism agency after Sept. 11. In fact, as clear a statement of Ashcroft’s priorities that spring as can be made came in the Justice Department’s Fiscal Year 2002 Performance Plan, which bears the AG’s signature. Combating terrorism is listed as one of the “array of areas for which [DOJ] is responsible.” As part of the department’s first strategic goal, terrorism is listed after other objectives that include reducing violent and organized crime, apprehending child predators, minimizing the amount of gun-related offenses, cutting off the flow of illegal drugs, and sniffing out foreign espionage agents — all traditional functions of the Justice Department. “I did not see [counterterrorism] as a top item on his agenda,” Pickard testified last week. The Sept. 11 commission staff report stated that when the FBI’s top counterterrorism official at the time, Dale Watson, saw that terrorism wasn’t high on Ashcroft’s list of priorities, he “almost fell out of his chair.” Ashcroft, in testimony before the commission, defended the strategic plan while also labeling Reno as the principal architect of it. “There was no major goal of counterterrorism,” Ashcroft said. But, he added, the report cites “some additional goals to terrorism. There’s no question about that.” In May 2001, Ashcroft appeared before the Senate Appropriations Committee and testified there that “one of this nation’s most fundamental responsibilities is to protect its citizens, both at home and abroad, from terrorist attacks. The Department of Justice has no higher priority than the protection of our citizens.” And, in fact, the Bush administration’s first budget proposal included a 10 percent increase in counterterrorism funding for the Justice Department — the largest increase in five years. Much of this was in preparation for the 2002 Winter Olympic Games in Utah. But the FBI, apparently, didn’t feel the increase was enough. By this time — the early summer of 2001 — Louis Freeh, who had been director of the FBI since 1993, had resigned, and Pickard, a career FBI agent, had taken over on an interim basis. According to Pickard’s testimony last week, bureau officials were surprised to discover that a proposed DOJ budget for 2003 didn’t include any budget increases for counterterrorism over the pending FY 2002 budget. The FBI asked for more. “The proposal came back and the additional funds that we were looking for on counterterrorism were denied,” Pickard said. He testified that he asked Ashcroft whether he could appeal the decision and that Ashcroft assented. On Sept. 12, one day after the airliner attacks, Pickard received word that the appeal had been denied. (The commission staff also criticized Reno for failing to provide more resources to the bureau for counterterrorism.) That was the summer in which FBI and Central Intelligence Agency personnel monitored increasing “chatter” internationally that a large attack on U.S. interests could soon occur. The threat level was rising. Pickard said he met with Ashcroft about seven or eight times during his tenure as acting FBI director. After the second such meeting, Pickard testified, Ashcroft told him that he didn’t want to hear about intelligence regarding potential attacks any longer. Ashcroft denied that exchange ever took place. “I never did speak to him saying I did not want to hear about terrorism,” Ashcroft testified. During the hearings, several commissioners stated that presidential transitions will be one of the areas that will be addressed in their final set of recommendations. “It seems every year it takes every new administration that much longer to get its key personnel appointed and confirmed,” chairman Thomas Kean, the former governor of New Jersey, said last week. Part of that examination will include the handoff from Reno to Ashcroft. But Stuart Gerson, who participated in a transition in 1993 when he served as acting attorney general as the Clinton administration succeeded the first Bush one, says that the commission should look elsewhere for a culprit. Like controversial Sept. 11 commissioner Jamie Gorelick, Gerson served as a member of the DOJ transition team in early 2001 before Ashcroft was confirmed. He says that “it was a reasonably smooth transition. The Bush administration was not slow on the uptake. They had people ready to go. Nor do I think the Clinton administration was remiss.” Instead, Gerson says, the internal problems in the nation’s intelligence apparatus should shoulder the majority of the blame, a conclusion that in many minds was reached in the months following Sept. 11. The question remains whether the commission will agree with him. James Oliphant is a reporter for Legal Times , a Recorder affiliate based in Washington, D.C.

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