WASHINGTON — 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 Holder in a campaign this month to prod the Senate into confirming Obama’s nomination of James 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-Tenn., 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 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 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 Ogden stepped down in February, 1,000 terrorism-related wiretap requests totaling perhaps 50,000 pages would have had to go before Kris’ or Holder’s eyes.
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 Grindler has the trust and respect of Holder and other senior officials.
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.”
Sen. Jeff Sessions, R-Ala., ranking member of the Senate Judiciary Committee, has cited concerns about Cole’s views on terrorism and work as a monitor from 2005 through 2009 of insurance company American International Group, a recipient of taxpayer bailout funds.
