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It’s been a year since the Department of Justice’s National Security Division was created, bringing key criminal and intelligence units under one roof to take on the top priority: preventing terrorism. Despite a leadership void in the department and the controversy over the firings of nine U.S. attorneys in 2006, the division has managed to remain relatively unscathed. Justice Department officials say the consolidation of the counterterrorism and counterintelligence sections — which were removed from the Criminal Division and merged with the Office of Intelligence and Policy Review — has gone as well as can be expected. Attorneys supervising terrorism hunters and spy catchers now work alongside lawyers handling intelligence-surveillance requests and investigations into export control violations. Still others are overseeing unprecedented audits of the FBI’s national security operations and internal compliance reviews. “The stand-up has worked as seamlessly as one could hope,” says Brett Gerry, former head of the division’s Office of Law and Policy and now an acting assistant attorney general in the departmentwide Office of Legal Policy. “As with any bureaucratic reorganization, there are always going to be challenges.” Even though the division gets high marks for its progress, Justice officials recognize that there’s still a persistent problem with a backlog of Foreign Intelligence Surveillance Act applications due to a shortage of attorneys and an expanding workload. “We have taken a bite out of the backlog, but we still have some work there,” says Assistant Attorney General Kenneth Wainstein, the division’s chief. Justice records show that court-approved FISA applications have steadily increased from 934 in 2001 to 2,176 last year. The department did not provide exact numbers on its backlog, but in letters to Congress in January, Justice officials said the number of pending FISA requests has been reduced by 65 percent since 2004. The backlog rankles some former Justice officials, such as Nicholas Gess, who served under Attorney General Janet Reno as an associate deputy attorney general. “Anytime there’s a FISA backlog, it’s inexcusable if you don’t have enough people,” says Gess, a principal at the Bingham Consulting Group and of counsel at Bingham McCutchen. An area where the division is entering uncharted territory is in its oversight mission. The Protect America Act, passed by Congress in August and set to expire in February unless renewed, will mean more audits and reports to Congress. Similarly, the division has already begun reviews of the FBI’s national security letter program, which was criticized for abuses and errors earlier this year in an inspector general’s report. To do all this, the budget for the division’s sections has doubled since 2005, from $33 million to nearly $67 million, and the division has expanded from 183 to 294 positions. Last month the Office of Intelligence and Policy Review was officially renamed the Office of Intelligence, and it was further divided into three sections: operations, oversight, and litigation. The division’s chief admits he was not sold on the idea of a new division when the plan surfaced in 2005, because the sections had been working well since the 2001 terrorist attacks. “People had legitimate reasons to question whether this was a good idea,” Wainstein says. A recommendation by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction in 2005 led to the division’s creation, approved by Congress in last year’s renewal of the USA Patriot Act.
Pedro Ruz Gutierrez can be contacted at [email protected].

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