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The Justice Department is in the final stages of presenting President George W. Bush with a proposal to overhaul the department’s counterterrorism efforts. The most dramatic option being considered would create a new national security division within the Justice Department — a move that would transfer responsibility for fighting terrorism from the Criminal Division to a new counterterrorism czar at the upper levels of the department. In a May 25 interview with Legal Times, Attorney General Alberto Gonzales laid out arguments in support of reorganization. “Fighting terrorism is the No. 1 priority of the department. Yet we don’t have a centralized point within the department that addresses solely terrorism-related issues,” he said. While the plan seems to be gaining momentum, it faces institutional resistance from the Criminal Division, which stands to lose a high-profile and heavily funded piece of its portfolio. A more modest scenario — one that might be more palatable to Criminal Division loyalists and civil libertarians — would establish a new intelligence division, but leave the Criminal Division intact. Earlier last month, Gonzales provided a preliminary report to the White House outlining the findings of an internal review of the department’s organization. Justice Department leaders have kept the review under tight wraps, and several senior officials interviewed for this article, including Gonzales, would not say whether the report formally endorsed one proposal. The review was triggered in part by a March 31, 2005, report from the bipartisan commission on intelligence led by Senior Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit and former Sen. Charles Robb, D-Va. The commission’s report calls for the creation of a national security division that brings together the department’s counterterrorism, counterespionage and intelligence functions. The White House has said it will respond to the commission’s recommendations by July 1. Gonzales identified a number of reasons it would make sense to adopt some version of the proposal. “There’s a lot of interagency work that occurs within the administration to deal with terrorism-related issues. If I’m not available for a high-level meeting or if [Deputy AG James] Comey is not available, we sometimes don’t have, in my judgment, the adequate level of representation for the department at these meetings,” Gonzales said. He also noted concerns that the broad mission of the Criminal Division, which also includes combating traditional offenses like corporate fraud and drug trafficking, prevents its senior officials from directing sufficient attention to national security matters. “The Criminal Division may already have so much on its plate that it’s difficult to allocate the appropriate resources and energy and time [to counterterrorism],” he said. Gonzales declined to get into the specifics of his advice to the president. “Until the president makes a decision, it’s a work in progress,” he said. One former Justice official who examined similar issues for the current administration says some change is all but certain. “It’s really, really important to maximize national security capabilities and find the right way of ordering resources but to do it in a way that doesn’t disrupt ongoing efforts,” says the former DOJ official. “The mere fact that you’re changing the organization chart doesn’t mean a whole lot by itself.” INTERNAL RESISTANCE No matter which of the two paths the White House takes — or even if it opts to make no major changes — the decision is sure to be controversial, especially within Main Justice, where officials are already divided over the value of a major reorganization. Before leaving the Justice Department May 6, former Criminal Division chief Christopher Wray lobbied against any plan that would strip off elements of the Criminal Division, say two senior Justice Department officials who spoke on the condition of anonymity. Wray declined to comment. According to the two officials, Wray argued that separating espionage and terrorism prosecutors from the Criminal Division would cause confusion and bureaucratic headaches and isolate lawyers working on national security cases. Since the Sept. 11 attacks, the department’s strategy has been to throw the book at suspected terrorists using a wide range of criminal charges, from making false statements to credit card fraud. Then-Attorney General John Ashcroft frequently likened the approach to the Justice Department’s crackdown on organized crime in the 1960s, when AG Robert Kennedy was said to arrest mobsters for spitting on the sidewalk. Criminal Division officials maintain that separating terrorism lawyers from other prosecutors would undermine the department’s “spitting on the sidewalk” approach. Similar arguments carried the day when they were advanced by then-Criminal Division chief Michael Chertoff following the Sept. 11 attacks. “Post-9/11, the strategy was to have FBI agents and terrorism prosecutors thinking about their ability to bring other sorts of criminal charges. Separating criminal prosecution from national security prosecution creates a tension with that approach,” says Cadwalader Wickersham & Taft partner Michael Horowitz, who served as Chertoff’s chief of staff from 2001 to 2002. Proponents of the plan to create a national security division say the reform would produce a more coherent national security strategy and make the Justice Department more accessible to other intelligence agencies. “Right now, the Justice Department components that handle national security issues are scattered far and wide, and there is no real umbrella structure to hold those pieces together,” says David Kris, a former DOJ lawyer who worked on intelligence issues in the Bill Clinton and current Bush administrations. “When other members of intelligence community want to coordinate with the Justice Department, they may not know where to go.” Supporters liken the approach to an American version of Britain’s MI-5 intelligence service and argue that a new division should de-emphasize prosecution and focus on the broader goal of preventing terrorism. Stewart Baker, who was general counsel of the Silberman-Robb commission, says many of the Criminal Division objections seem driven by turf consciousness. “There’s always someone who loses in a bureaucratic reorganization, and a lot of the time it’s easier to say no than to make something happen,” says Baker, a partner with Steptoe & Johnson. “In this case, because of the report, it’s going to be hard for the White House to let bureaucratic foot dragging stop a good idea from being implemented.” HARSH WORDS The Silberman-Robb report does not mince words in its appraisal of the Justice Department’s current structure, calling it “awkward” and “outdated.” The panel’s harshest criticism is aimed at the Federal Bureau of Investigation, which it says has failed to adapt from a crime-fighting agency to an effective intelligence agency. Under the commission’s plan for Main Justice, the Counterterrorism and Counterespionage sections of the Criminal Division would be joined with the Office of Intelligence Policy and Review, which is responsible for processing top-secret warrants under the Foreign Intelligence Surveillance Act, or FISA. “[B]ringing [the OIPR] closer to its institutional counterparts like the Counterespionage and Counterterrorism sections would give the office better insight into actual intelligence practices and make it better attuned to operational needs,” the commission report states. Currently, the OIPR exists as a free-floating entity and reports directly to the deputy attorney general. The Silberman-Robb commission found that despite legal changes made by the Patriot Act, a cultural divide remains between the OIPR and the Criminal Division. Judge Richard Posner of the 7th U.S. Circuit Court of Appeals calls the commission’s proposal “extremely sensible.” “I’ve read it takes an average of 46 days for the Justice Department to process a request for a warrant under FISA. That’s ridiculous. There’s been some breakdown in communication between the FBI and Justice Department lawyers,” says Posner, whose latest book, “Catastrophe: Risk and Response,” analyzes possible approaches to the threat of terrorist attacks. The more-limited proposal to create an intelligence division that would not split off counterterrorism altogether from the Criminal Division is backed by a number of DOJ officials who believe that it would bring many of the same benefits as a national security division without as much risk. An assistant attorney general for intelligence would oversee the retooling of FBI intelligence efforts and serve as a contact for other intelligence agencies. Because the largest component in such a division would be the OIPR, one senior DOJ official says the plan is sometimes referred to as “OIPR on steroids.” The proposal is also likely to win a warmer reception from civil libertarians who want to keep some barriers in place between intelligence gathering and law enforcement. Activists on both ends of the political spectrum are generally suspicious of close collaboration between the OIPR and prosecutors because FISA surveillance offers fewer protections for targets than those authorized by ordinary criminal courts. “We would not want to see FISA become a tool for criminal prosecutions,” says Kate Martin, director of the Center for National Security Studies. Gonzales’ goals seem very different. “One of the benefits that came out of the Patriot Act is this focus on sharing information,” he said. “Looking forward, anything that we do, we have to do in a way that makes certain we don’t re-erect those walls.”

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