Justice Dept National Security Division Draws Criticism

The Department of Justice National Security Division (NSD) that was formed in 2006 by the merger of several DOJ intelligence and national security elements is attracting criticism from some intelligence officials who say that it is biased in favor of the FBI or, alternatively, that it lacks the agility that an intelligence organization needs.

NSD was established in response to a recommendation of the 2005 Silberman-Robb Commission on Weapons of Mass Destruction. NSD combined the Office of Intelligence Policy and Review (OIPR), which processed applications for domestic surveillance under the Foreign Intelligence Surveillance Act, together with Criminal Division sections on Counterespionage and Counterterrorism in order, the WMD Commission said (pdf), to “give the [united] office better insight into actual intelligence practices and make it better attuned to operational needs.”

Though it has gone unremarked, NSD is now led largely by former officials of the Federal Bureau of Investigation.

The Division head, J. Patrick Rowan, was a special counsel in the FBI. Matthew G. Olsen, who now heads the NSD Office of Intelligence (formerly OIPR), was also an FBI special counsel. (Previously, OIPR was led by James A. Baker, a career civil servant.) Charles Steele, who serves as section chief for Intelligence Operations in the Office of Intelligence, is a former chief of staff to the FBI director.

“OIPR’s strength was its independence,” wrote one Secrecy News correspondent who is an intelligence community employee. “Now it seems to function as an arm of the FBI. This is a step back to the 1960s.”

That claim was disputed by an intelligence official in another agency, who said the fact that these individuals worked at FBI is “almost irrelevant. There is a problem, but that’s not it.”

“The problem,” this official said, “is that every one is a former prosecutor. None of them knows much about intelligence or about FBI operations. They’re very good at what they do, but what they do is not intelligence.”

NSD, this official said, is “broken.” “The counterespionage section is stuck in the 1980s. Counterterrorism is pretty good. Oversight works okay, up to a point.” But, from his perspective, the FISA review process is still “infected” with a law enforcement mentality.

FISA reviewers at NSD “keep asking for things they don’t need and should not have,” he said. Like what? Like “who is the source of this information?” or “How much was this source paid?”

Doesn’t the record number of FISA authorizations (pdf) being processed by NSD provide compelling evidence that inappropriate barriers to surveillance, if any, have been lowered?

“Not really,” according to the official. “The high numbers are largely due to renewals” of previous authorizations. “The cases get a better scrub from FBI than from NSD.”

Is he proposing that intelligence officers staff the NSD? “No, you need lawyers, but lawyers with stronger intelligence backgrounds. There aren’t so many of those.”

Current and former Justice officials contacted by Secrecy News declined to comment. Inquiries to the Justice Department Office of Public Affairs were not answered.