Guys in Suits: on a Mission
OK, they may look like accountants, but this team of government lawyers is a key cog in the war on terror
In its temporary second-floor offices at Main Justice-as the department's headquarters in Washington is known to insiders-the new National Security Division is starting to settle into a rhythm. Wainstein and his team of career prosecutors, including Chief of Staff Charles Steele, described to U.S. News how they are engaged in a top-to-bottom retooling of the department's national security mandate.
One of the top priorities is dealing with the Foreign Intelligence Surveillance Court. Established under 1978's Foreign Intelligence Surveillance Act, the court comprises 11 sitting judges, each chosen by the chief justice of the Supreme Court. FISA Court judges take turns reviewing surveillance applications.
Civil libertarians and many defense attorneys view the court, which meets in a secure conference room at Main Justice, as a rubber stamp because there is no opposing counsel present and because it has approved all but four of the nearly 12,000 applications for FISA warrants over the past decade. But the court has asked for numerous modifications of applications over the past few years, and rejected four of them in 2003, blaming numerous FBI errors. A year later, several FISA Court judges expressed their anger-and one resigned in protest-after Bush, arguing that he needed "speed and agility" in the war on terrorism, bypassed the court entirely and issued an executive order authorizing the National Security Agency-without the benefit of a court order-to listen in on and record international communications by U.S. residents with known or suspected ties to terrorist groups. President Bush's recent decision-after sustained pressure from Congress and civil-liberties groups-to place the NSA program under the FISA Court means the issue now resides, along with that other 600-pound gorilla, right on Wainstein's desk.
Since the 9/11 attacks, the number of FISA applications presented to the court has skyrocketed, and the new NSA program is only going to add further to the workload-and the scrutiny. "We don't know enough about what is really going on," says Caroline Fredrickson of the American Civil Liberties Union, "to know if, in fact, the new program complies with the law."
Wainstein says he's comfortable with the legal theory behind the program to seek surveillance warrants from the FISA Court. The OIPR has streamlined its operations and reduced FISA processing delays, he says, to allow for that "speed and agility" that Bush complained was missing from the approval process. For the past three months, Matthew Olsen, who now oversees OIPR, says he has been "looking behind the curtain," reviewing more than 50 cases and meeting individually and as a group with all the FISA Court judges. Olsen wants to make whatever changes may be necessary in the new system before inertia sets in. "It's sort of a one-time window, and we should take advantage of it," he says. "And so far, the response has been positive."
The National Security Division's law and policy chief, Brett Gerry, has been working on proposed legislation to modernize the FISA statute. "One of the fundamental changes needed," says Gerry, "is changing the definition of electronic surveillance in the statute" to ensure that the law reflects the revolution in telecommunications.
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