Correction to This Article
A Dec. 25 A-section article about Justice Department wiretaps included an incorrect middle initial for David S. Kris, assistant for national security to Attorney General Eric H. Holder Jr.

As application approvals drop, work on secret wiretaps grows, U.S. government sources say

Washington Post Staff Writer
Friday, December 24, 2010; 11:32 PM

Even as the Justice Department reports a two-year decline in the number of wiretap applications approved by a secret U.S. intelligence court, the workload of Justice Department lawyers assigned to request and oversee such sensitive surveillance activities appears to be growing.

The activity by the department's National Security Division, which is responsible for obtaining authorization from a secret court to tap Americans' telephone calls and e-mails and conduct other surveillance, was a prominent factor cited by Attorney General Eric H. Holder Jr. in a campaign this month to prod the Senate into confirming President Obama's nomination of James M. Cole to serve as Holder's deputy.

The deputy attorney general oversees the division "and is called upon to make crucial time-sensitive decisions to protect the American people" in counterterrorism investigations, eight former deputies wrote Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) on Dec. 1, urging a vote for Cole.

In the absence of a Senate-confirmed deputy, the group noted, "There is at least one critical statutory responsibility that an Acting Deputy cannot perform - signing applications to the Foreign Intelligence Surveillance Court."

By law, only the attorney general or his assistant for national security, David W. Kris, may sign off on wiretap applications for the court. If neither is available, a designated acting attorney general - for now, usually Associate Attorney General Thomas J. Perelli - may approve them, but he or she must be Senate-confirmed.

They face a critical task. In fiscal 2009 alone, the FISA court approved 1,320 applications, documents that a former chief judge of the court said in 2007 "usually run 40 to 50 pages."

If those trends continued, in the 10 months since former deputy David W. Ogden stepped down in February, 1,000 terrorism-related wiretap requests would have had to go before two sets of eyes, Kris or Holder's - applications totaling perhaps 50,000 pages.

Even assuming that Kris reviewed 99 percent of them, having Cole on board would provide some relief and an extra pair of eyes, people close to the process said.

"The attorney general is feeling oppressed," said one associate with whom Holder spoke recently about the urgent need for a Senate vote. "He is in a bind. I think he's feeling that undertow."

Spokesmen for Holder declined to comment. In public and private, Justice officials say that the department's leadership has handled the heavier workload without difficulty, and that acting deputy Gary G. Grindler has the trust and respect of Holder and other senior officials.

"Only a Senate-confirmed deputy can sign FISA applications to wiretap suspected terrorists," Reid spokeswoman Regan Lachappelle said in a statement. "Unfortunately, some on the other side of the aisle have chosen to stall and delay a vote on this nomination, putting our national security at risk."

McConnell spokesman Don Stewart said Senate Democrats could call for a vote to bring up Cole's nomination at any time but have chosen not to. "They filed cloture motions on 'don't ask, don't tell.' They've filed cloture on a lot of things, but not this one. I don't know why they've prioritized that way."


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