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Before Kenneth Wainstein can get down to the dirty business of saving Americans from terrorism, he has a few things to check off his to-do list. For starters, his staff of intelligence experts, spy prosecutors, and counterterror lawyers are scattered throughout the main Justice Department headquarters and another office building several blocks away. He inherits a backlog of unprocessed applications for secret wiretapping warrants, and his counterterrorism prosecutors have been without a permanent chief for much of the year. Meanwhile, Wainstein’s even still waiting for routine items like a nameplate for his office door and business cards for his top deputies. But given the seriousness of Wainstein’s new undertaking, a little anonymity might not be a bad thing right now. Wainstein heads the Department of Justice’s new National Security Division. The well-regarded former U.S. attorney for the District of Columbia has been on the job for just three weeks�after waiting nearly five months for Senate confirmation to his post as the division’s assistant attorney general. He’s had to hit the ground at full speed. Last week he was jetting off to Europe to meet with his German counterparts, even as his new division, part of the Justice Department’s biggest reorganization in years, was assigned to supervise the case against fugitive Adam Gadahn, the 28-year-old Californian-cum-al-Qaeda spokesman indicted for treason. The new job has confronted Wainstein with a host of lingering problems that have been waiting for someone to clean up. Perhaps foremost is the backlog of unprocessed applications for secret wiretapping and search warrants requested under the Foreign Intelligence Surveillance Act. In a department much criticized for failing to share information about terrorists prior to Sept. 11, 2001, he’s also become the primary link to the government’s intelligence clearinghouse, the Office of the Director of National Intelligence. Additionally, Wainstein, 44, who supervises both criminal prosecutors and the lawyers who oversee the FBI’s intelligence collection on foreign spies and terror groups, will play a key role in deciding when to prosecute suspected terrorists, and when to hold off and have agents track them for intelligence about their associates. In short, Wainstein’s job, as he sees it, is to be the “one human being who will oversee our intelligence operations . . . and our law enforcement operations as they relate to national security,” he says. THE SECRET BACKLOG It’s a lot to chew on. The reorganization that brought Wainstein to his new post was spurred by last year’s report by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (better known as the WMD Commission) and was included in this year’s reauthorization of the Patriot Act. In assessing the Justice Department’s various anti-terror efforts, the WMD Commission found a tangled bureaucracy. The DOJ’s counterterrorism prosecutors reported to one midlevel appointee within the Criminal Division, its counterespionage prosecutors to another, and its intelligence lawyers�responsible for handling FISA warrants�to a career official who reported directly to Deputy Attorney General Paul McNulty, the DOJ’s No. 2 official. “If there is a method to this madness neither we, nor any official with whom we spoke, could identify it,” said the commission’s final report. FISA warrants, as they’re known, have garnered attention since Sept. 11 for two reasons. First, special agents in the FBI field office in Minneapolis sought one of the warrants to search the computer of would-be terrorist Zacarias Moussaoui in the month before the Sept. 11 attacks. Their request was turned down by FBI headquarters before the application could even make it to lawyers at the Justice Department for consideration. Second, the lengthy process for approving a FISA warrant application has been cited by Attorney General Alberto Gonzales and others in the Bush administration as a primary justification for why it chose an end run around FISA in creating the National Security Agency’s controversial warrantless surveillance program. Although the FISA law contains an emergency provision that allows for the processing of a warrant in a matter of hours rather than weeks, one fact that the Justice Department has been reluctant to discuss is that since at least 2004, there has been a substantial backlog of unprocessed FISA applications. It won’t disclose how bad the backlog is. That the DOJ has been unable to keep such critical paperwork flowing is mystifying to many. “It’s astounding that, even after Sept. 11, that that’s a problem,” says Michael Vatis, a former FBI official and Clinton-era Justice official who now works at the D.C. office of Steptoe & Johnson. The Justice Department has detailed lawyers from other divisions to help Wainstein’s intelligence lawyers, who are known as the Office of Intelligence Policy and Review, with the problem. But it has persisted. In July, during a Senate Judiciary Committee hearing, Sen. Mike DeWine (R-Ohio) gave Gonzales an uncharacteristically harsh tongue-lashing on the subject. “Everyone agrees we have a problem;nobody wants to talk about it publicly very much,” DeWine told Gonzales. “What in the world is more important than processing FISA cases?”At first Gonzales attempted to respond by telling DeWine that he’d been misinformed about the backlog. “You may be talking to an agent, for example, who’s not working on terrorism cases,” Gonzales told him. But that only inflamed the Ohio senator further, and eventually Gonzales conceded, “Of course there’s a problem.” Both the Justice Department and the FBI say data on the size of the backlog of unprocessed FISA applications is classified, an assertion that has drawn criticism. It is known that FBI agents must apply 45 days in advance for a renewal of a FISA wiretapping warrant. “What this administration has done is classify things that would embarrass them, as opposed to those that are truly secret,” says Nicholas Gess, a former senior DOJ official in the Clinton administration. “What is in the applications is clearly classified. But the process issues that they face are not.” Despite queries from Legal Times, neither the FBI nor the Justice Department provided an explanation as to why data on unprocessed FISA requests is classified. To fix the backlog, Gonzales has suggested that more intelligence lawyers and staff may be needed (the number has grown from 87 to 133 over the past four years) and that the FISA law may need to be streamlined. During the hearing in July, Gonzales promised to get back to DeWine with recommendations for how to improve the FISA process. “We have not heard back with formal suggestions at this point,” says Michael Dawson, a spokesman for DeWine. For its part, the Justice Department says there are several bills in Congress that could help streamline FISA. “The Department has worked, and will continue to work, with the Congress to get a bill to the president in November that makes us more secure and protects civil liberties,” says a DOJ spokesman. Wainstein says it’s also an issue he’ll be examining. “One of the mandates I got from the [attorney general] was to come in and take a look at every process in place and see how I can make it more efficient,” he says, adding that the backlog has improved since the attorney general went before Congress in July. “That’s one opportunity here.” Another possible method for reducing the backlog would be for Gonzales to delegate final approval of FISA applications to Wainstein. (Only when applications are approved by the attorney general can they be reviewed by the secret FISA court that approves the warrants.) Currently, either Gonzales or his No. 2, McNulty, must not only run the 90,000-person Justice Department but personally sign off on some 2,000 annual FISA warrant applications�each of which can be as much as an inch thick. The Patriot Act reauthorization gave Gonzales the power to shift that responsibility to Wainstein. “[Gonzales] and [McNulty] have said that once I’m on board they will take a look at it,” Wainstein says of being granted FISA signing authority. “So right now nothing has changed.” WHEN TO PROSECUTE But the part of Wainstein’s job with the highest stakes will be that which gives him the power to decide when to prosecute would-be terrorists under federal criminal law, and when to lay off and allow agents to trail suspects in the hope of gathering intelligence. Wainstein is well-aware of post-Sept. 11 critiques of the Justice Department by the intelligence community. “One of the criticisms of law enforcement in the past has been that they’ve been too quick to look to the criminal tool,” he says, noting that there should be a balance between the “needs to lock up a guy or to wait and see what kind of intelligence you can get out of the situation.” One oft-cited example is the case against the so-called al Qaeda sleeper cell in upstate New York known as the Lackawanna Six. Under threat of being declared enemy combatants and detained indefinitely by the Defense Department, all six men, who admitted to attending an al Qaeda training camp in Afghanistan, pleaded guilty to terrorism charges in 2003 and accepted sentences of six to nine years. But some former intelligence officials have suggested that the men were not imminent threats and could have been used to gather more information about the terrorist organization. “It was an opportunity that was not pursued,” John MacGaffin, a former No. 2 at the CIA, told the PBS series “Frontline” that year. Additionally, Wainstein could also end up being something of a referee between the FBI and Director of National Intelligence John Negroponte. The WMD Commission report provided alarming details of the degree to which the FBI has thwarted the Office of the Director of National Intelligence from exercising any of its statutory authority over the Bureau’s intelligence efforts. “I’m going to be working with the FBI on that,” Wainstein says. Though Wainstein has no authority over FBI Director Robert Mueller, his position and his background will give him a close view of efforts to reform the bureau. A former chief of staff and general counsel to Mueller from 2002 to 2004, Wainstein counts the FBI director as a mentor. But though Wainstein reports to the attorney general, Negroponte also had to sign off on his nomination�as required by a law intended to ensure cooperation between the two agencies. It remains unclear exactly how the FBI’s surveillance of foreign terror suspects under the FISA law, as supervised by Wainstein’s division, fits in with the NSA warrantless surveillance program. Is it possible that both the FBI�operating with a FISA warrant�and the NSA�operating without one�could both be listening in on the same conversation without being aware of each other? Even the DOJ’s National Security Division chief isn’t sure. Wainstein says he can’t answer that question “because that would require me going into operational details and also going beyond my operational understanding of the [NSA] program.” Meanwhile, Vatis and other former DOJ officials see some dissonance from a department that has allowed an administrative backlog of FISA warrants to persist for a half decade after Sept. 11 while using the slowness of the FISA process as a justification for the NSA’s warrantless surveillance program. “To call for doing away with FISA requirements seems a bit rash when the administration still has not dealt with the causes of the backlog,” says Vatis.
Jason McLure can be contacted at [email protected].

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