REVIEW & OUTLOOK
Meltdown at Justice
Incompetence is compromising presidential power.
Just when President Bush seemed to have beaten back the Congressional defeatists on Iraq, along comes his own Justice Department to undermine some hard-won antiterror policy gains. The incompetence at Justice is getting to be expensive for Presidential power.
The latest episode involves the FBI's failure to adequately supervise the issuance of so-called "national security letters," or administrative subpoenas for counterterrorism cases that don't require a judge's approval. Congress authorized these letters in 1986 and their scope was expanded as part of the 2001 Patriot Act. An Inspector General's audit has found that some of these subpoenas were improperly issued, and that the FBI lacked the means even to monitor how many were issued, leading to misreporting to Congress.
Some of the reaction on Capitol Hill has been typically overwrought, and the IG's audit found no evidence of intentional or criminal misuse. As a matter of law, such subpoenas are only allowed to seek certain kinds of records such as phone logs and travel information. This isn't a case of J. Edgar Hoover snooping on political enemies.
Nonetheless, the management lapses have done significant harm by allowing critics to claim that all such subpoenas should be barred. FBI Director Robert Mueller has acknowledged the foul-ups and says he's responsible, but it's astonishing that he didn't undertake his own audit much earlier. Those of us who have supported expanded government power to prevent another terror attack have done so with the expectation that the FBI and Justice will have processes in place that limit potential abuses. Mr. Mueller and Attorney General Alberto Gonzales both claimed that they did.
This is another fiasco for the FBI, which may simply be incapable of effective counterterrorism. Every independent group that has looked into the FBI--including the Robb-Silberman commission--has found that the agency is failing in that duty. Whatever discipline is handed out for this latest foul-up, the country needs to debate again whether domestic antiterror functions should be taken from the FBI and given to a new agency modeled after Britain's MI5. The FBI's culture of crime-fighting and case-building to win convictions may be incompatible with the prevention and intelligence demands of counterterrorism.
The worst outcome would be if Congress limited the administrative subpoena power in order to punish the FBI. By all accounts, these "national security letters" have proven to be useful in tracking potential terror threats. In particular, the Bush Administration shouldn't now give in to any such demands merely to appease Congress or save the jobs of Messrs. Mueller or Gonzales.
We raise that possibility because this is what seems to have happened after Justice's other recent fiasco over the firing of eight U.S. attorneys last December. Last week, under pressure from Congress, Mr. Gonzales said he and Mr. Bush wouldn't object if Congress wanted to strip him of his ability to replace U.S. attorneys without Senate confirmation and give that power to a district court judge. While a similar process prevailed before the Patriot Act, we think the ability to hire and fire attorneys is a core executive power that should not be abandoned to unelected judges.
All the more so because the worst abuses in this case seem to have been committed by Members of Congress. Senator Pete Domenici and Representative Heather Wilson, both New Mexico Republicans, have acknowledged calling U.S. Attorney David Iglesias and asking him about the status of an anticorruption probe before last year's November election. Mr. Iglesias was later sacked and he told Congress last week that he felt "leaned on" and "pressured" by Mr. Domenici's call.
The Founders separated the power to legislate from the power to prosecute because they understood the combination could lead to abuse. We still recall when John Dingell, then and now a powerful House Chairman, let his staff muscle the Clinton Justice Department to bring more indictments for "environmental" crimes in 1993. The tenor of Mr. Domenici's phone call smacks of the Dingell method.
By contrast, Mr. Gonzales had every right to put new attorneys in place. They are political appointees who serve at the pleasure of the President, and Senators are wrong to suggest that once appointed they should operate independent of Justice supervision. That's precisely the problem we've seen with "special counsels." Justice could have handled this better by saying it was time for some new energy with two years left in the Administration. Instead, Deputy Attorney General Paul McNulty claimed the dismissals were performance-related, which invited the attorneys to defend their reputations and Democrats to dig for more nefarious reasons.
By the way, these are the same Democrats who didn't raise a whimper when Bill Clinton's Attorney General Janet Reno sacked all 93 U.S. attorneys in one unclean sweep upon taking office. Previous Presidents had kept the attorneys in place until they could replace each one. That was a more serious abuse than anything known about these Bush dismissals.
Facing a Democratic Congress in its last two years, the Bush Administration is going to be under constant pressure to make concessions on antiterror policy and executive power. The Justice Department needs to be in the vanguard of defending that power, not giving it away to atone for its own blunders.
