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9/11 REPORT’S FBI REFORMS FACE LONG ODDS The 9/11 Commission report made public last week calls for the Federal Bureau of Investigation to cede some of its authority to a new Cabinet-level national intelligence director. While criticizing the Justice Department for creating “a bureaucratic culture — that discouraged FBI agents from even seeking to share intelligence information,” the July 22 report states the FBI should remain the key agency for chasing terrorists on American soil. However, how that is accomplished and paid for would be determined by the new intelligence director. Such an arrangement would be a tough sell, according to one former Justice Department official. “At best, it’s an open question,” says Robert Litt, a partner at D.C.’s Arnold & Porter who served in supervisory positions at the Justice Department during the Clinton administration. “The bureau has resisted oversight even from the Department of Justice.” So far, the Bush administration, too, has been cool to the commission’s plan, under which intelligence officials with the FBI, the Department of Defense, and the Central Intelligence Agency would report directly to the intelligence director, who would manage the priorities and set the budget for nationwide intelligence gathering. The director would also nominate persons to head up the intelligence units in each of those agencies. The Department of Homeland Security’s intelligence operation would report to the FBI’s intelligence chief. The report states that the commission considered proposals for a new agency to replace the FBI in the country’s war on terror, noting that the department’s history has more to do with criminal justice than national security. Those ideas were ultimately rejected based on the sheer difficulty in trying to establish a new agency and because of recent efforts by FBI Director Robert Mueller III to improve the office’s counterterrorism capabilities. Mueller, who became FBI director just days before the Sept. 11 attacks, is credited with creating an Office of Intelligence focused on terrorism and setting up specialized training programs. “Our recommendation to leave counterterrorism intelligence collection in the United States with the FBI still depends on an assessment that the FBI — if it makes an all-out effort to institutionalize change — can do the job,” the report states. The report recommends that the president issue an executive order requiring the FBI to develop a specialized national security work force made up of agents, analysts, linguists, and surveillance specialists. In addition, all senior FBI managers should be certified intelligence officers — even those working solely on law enforcement matters — and all 56 field offices should employ an official responsible for national security matters. — Tom Schoenberg AIR ATTACK Just as Democratic senators successfully blocked three more federal appeals court nominees of President George W. Bush, a coalition of liberal advocacy groups announced a new advertising campaign against judicial picks whom the groups consider “out of step with the values and views of most Americans.” A one-minute television ad, sponsored by 24 groups, started running on CNN last week and will continue for several more days. The ad shows the scales of justice slowly tilting as the voice-over recites the names of Bush nominees. It isn’t the first time that television has been used in a contentious nomination fight. Supporters and opponents of the D.C. Circuit nomination of Miguel Estrada both purchased TV ads in 2003. On July 22, Senate Republicans failed to muster enough support to permit a floor vote on three nominees — Henry Saad, Richard Griffin, and David McKeague — for the U.S. Court of Appeals for the 6th Circuit. That brings to 10 the number of Bush nominees who have been filibustered. — Jonathan Groner WHITE COLLARED White collar crime litigator David Krakoff and three others have joined the D.C. office of Mayer, Brown, Rowe & Maw from the D.C. office of environmental law firm Beveridge & Diamond. Krakoff, a former federal prosecutor, along with partner Christopher Regan, counsel Ilana Sultan, and associate James Parkinson joined the firm the second week in July. Krakoff says he was attracted to Mayer, Brown for its strong practices in accounting, securities, and other areas in which “the federal government is focused on prosecuting.” Robert Brager, managing partner of Beveridge & Diamond, says Krakoff’s practice had “morphed out of the environmental crimes focus.” Brager, who says he is close friends with Krakoff, says he was sad to see the lawyers leave, but wishes them the best. “I’m sure they’ll be very successful,” he says. — Marie Beaudette BACKING BERGER When former Clinton administration National Security Adviser Samuel “Sandy” Berger found himself under investigation by the Federal Bureau of Investigation for removing classified documents from the National Archives, he called on an old Clinton White House compatriot, Lanny Breuer. “It’s no secret that I hold [Berger] in high regard,” says Breuer. “It’s a privilege to represent him.” Breuer, who was special counsel to President Bill Clinton and played a critical role on the White House legal and damage control team that handled probes into campaign fund-raising and the Whitewater affair, is now a partner at Covington & Burling. Breuer believes the case will be resolved in Berger’s favor. “We have acted from the very beginning in complete good faith and in openness,” he says. Berger acknowledges he removed some classified documents from the National Archives while researching his testimony before the 9/11 Commission, but he says the documents were inadvertently mixed in with his own papers. — Marie Beaudette PARTIAL REFUND The inquiry into the death of Vincent Foster and the so-called Filegate investigation seem a part of the distant past now, but the special court that rules on independent counsel fee petitions is still sifting through those issues. On July 20, the court, a panel of the U.S. Court of Appeals for the D.C. Circuit, awarded D. Craig Livingstone $33,922 — out of more than $235,000 that he requested — for his legal fees in coping with the Clinton-era investigation mounted by then-Independent Counsel Kenneth Starr. Livingstone, who headed the White House Office of Personnel Security, resigned his post, but was never charged with a crime. The court gave Livingstone no reimbursement for his lawyers’ work on the Foster probe. It ruled that his alleged removal of documents from Foster’s office would have ultimately come under a prosecutor’s scrutiny even if an independent counsel had not been appointed, so Livingstone did not meet a legal requirement for reimbursement. But on the “Filegate” matter, which involved requests by White House staff for FBI files on 900 people, the court gave him some of his requested fees. It found that a preliminary investigation by a prosecutor would have shown that a bureaucratic error had occurred, but that no crime had been committed. — Jonathan Groner INTERIOR ILLS Secretary of Interior Gale Norton unlawfully ended some job preferences for Native Americans who apply for positions within the Department of Interior, charges a suit filed by the Indian Educators Federation, an employee union. The suit, filed July 19 in federal court in the District, claims that a 2003 agency report interpreted the Indian Reorganization Act — which requires the department to consider Indian applicants before non-Indians — as only requiring preferences in the agency’s Office of the Deputy Special Trustee for American Indians. Richard Hirn, a lawyer for the New Mexico-based union, says preferences should be used in other offices within the agency that relate to Indian programs. Interior spokesman Dan DuBray declined to comment on the lawsuit. — Christine Hines HAPPY RETURNS When Kirkland & Ellis partner Michael Jones first started mentoring D.C. public high school students several years ago, he didn’t think he would also become a recruiter for his firm. One of the students Jones mentored, Diarra McKinney, and Diarra’s younger brother Malachi, are summer associates at Kirkland. Diarra, who will graduate from Yale Law School next year, is in the D.C. office with Jones. Stanford law student Malachi works in the San Francisco office. Jones met Diarra through the nonprofit organization Mentors Inc. when Diarra was in the ninth grade. In high school and college, Diarra spent summers working in Kirkland’s mailroom and library. Diarra says Jones’ influence helped pave his way. “Seeing Mike and the way he conducted business, seeing how hard he works . . . he gave me a different philosophy,” he says. Malachi says he, too, benefited from Jones’ mentorship of his older brother. Although Jones is not currently mentoring, he hopes to start again with his work on the firm’s diversity committee. “I’ll try to find me another Diarra,” he says. — Christine Hines

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