Justice Dept.'s National Security Division draws mixed reviews 4 years

By Jerry Markon
Washington Post Staff Writer
Wednesday, October 6, 2010; 12:07 AM

Four years ago, the wall came tumbling down at the Justice Department.

Not a literal wall, but the operational one separating intelligence and law enforcement investigations, the archaic structure considered to be one of the causes of the government's failure to prevent the Sept. 11, 2001, attacks.

The department created a National Security Division, combining criminal prosecutors and intelligence lawyers into one unit that President George W. Bush vowed would help "connect the dots before the terrorists strike." A little-noticed, yet key post-Sept. 11 reform, it was the first new Justice Department division created since 1957.

Four years later, justice officials say the division is performing as promised, melding counterintelligence and law enforcement, and helping to prevent attacks. They point to a thwarted plot to bomb New York City's subways last year. More defendants were charged in federal court last year than in any year since 2001 with the most serious types of terrorism violations, amid growing concern about homegrown terrorist plots.

"We have never seen a threat environment like the one we've been facing, since Sept. 11,'' said Assistant Attorney General David S. Kris, who heads the unit. "It has been a crucible for this division, and I think it has resulted in a proof of concept: It turns out it was a good idea to create the National Security Division. It really works.''

Others offered mixed appraisals of the unit, which is based at Justice Department headquarters and has grown from 202 staffers to nearly 350. Advocates for open government have faulted it for aggressively pursuing leaks of classified information. And, under the Obama administration, congressional Republicans have accused the unit of returning to a pre-Sept. 11 mind-set that fails to emphasize intelligence and preventing attacks.

"The National Security Division is a good concept,'' said Sen. Christopher S. Bond (Mo.), the top Republican on the Intelligence Committee. "But I am increasingly concerned that they are returning to a law enforcement approach. They talk a good game, but they treat terrorists as normal criminal defendants.''

Congressional Democrats and former Justice Department officials praise Kris's legal savvy and the unit's aggressive approach to breaking up terrorist plots, and Laurence H. Silberman, a senior judge on the U.S. Court of Appeals for the D.C. Circuit, said it is "doing an excellent job."

"They fully understand the imperatives of the intelligence community and that sometimes prosecution is a useful tool and sometimes it's not,'' Silberman said.

It was a 2005 report on the government's intelligence failures, from a commission co-chaired by Silberman, that led to the new division. In a memorable phrase, the report said the Justice Department's national security structure was "madness.''

For two decades before the Sept. 11 attacks, FBI agents and prosecutors focused on criminal investigations had been segregated from government agents focused on intelligence-gathering against foreign spies and international terrorists - the so-called wall. The structure had grown out of changes in federal law stemming from a string of abuses by government agents in the 1960s and 1970s, including spying on antiwar activists.

With separate teams of intelligence and law enforcement agents sometimes focused on the same terrorist targets - and not sharing information - the wall would be cited as a key reason the government failed to prevent the Sept. 11 attacks. The passage of the USA Patriot Act after the attacks led to numerous reforms at the FBI and other agencies.

But the Justice Department's structure didn't change. Counterterrorism and counterespionage prosecutors reported to separate bosses and worked in the Criminal Division alongside those prosecuting other crimes. A separate Office of Intelligence Policy and Review handled applications for secret surveillance warrants in intelligence investigations.

"We were separate in almost every way,'' said George Z. Toscas, who is the deputy assistant attorney general over counterterrorism and counterespionage.

The new division, launched on Sept. 26, 2006, was designed to change that. Intelligence lawyers and criminal prosecutors now work together when a threat is identified - in partnership with U.S. attorneys' offices and the FBI - in what are considered broad national security investigations. Toscas and Tashina Gauhar, the deputy assistant attorney general for intelligence, have offices next to each other and say they are in constant communication. The division is the liaison between Justice Department headquarters and the intelligence community.

"It's terribly significant that we created a division, because it affects the way people think of themselves,'' Kris said. "A division creates a fundamental sense of identity, which is 'I'm a national security division lawyer, my job is to protect national security.' ''

The unit's leaders, most of whom are career Justice Department employees who have worked under several administrations, say they will use criminal prosecutions or intelligence methods, whichever is best. Intelligence investigations sometimes never lead to charges and can result, for example, in terrorism or espionage suspects being recruited as double agents.

"It's not necessarily our job just to prosecute people,'' Toscas said. "We could work on an investigation for years and be perfectly happy with the fact that we are gaining intelligence. . . . That is a cultural change.''

The new structure, officials said, contributed to the rapid resolution of the recent cases of 10 Russian spy suspects, who pleaded guilty and were swapped for four jailed Russians.

And officials cited last September's breakup of the subway plot allegedly led by Colorado airport shuttle driver Najibullah Zazi. They said the investigation started as an intelligence probe but led to criminal charges against nine people, including a senior al-Qaeda leader, and to useful intelligence about that organization.

"From me all the way to the line attorneys working on it,'' Kris said, "we had them in the same room all the time talking to one another, along with full and very very rapid sharing of information, people working literally as a team in a way that I think is genuinely new.''

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