A last-minute lobbying push by Attorney General Alberto Gonzales last week failed to dislodge a senator's "hold" on the nominee to take over the Justice Department's Criminal Division, leaving what some department officials say is a decision-making void during a critical period in major international terror investigations.
Gonzales aides had been counting on Alice Fisher, President George W. Bush's pick to head the Criminal Division, getting confirmed before the Senate went out of town last week for summer recess. But Michigan Democratic Sen. Carl Levin rebuffed a personal plea from the attorney general last Friday night to permit a vote on Fisher's confirmation. His reason: continued questions about what Fisher knew regarding FBI complaints about allegedly abusive interrogation techniques by the U.S. military at Guantanamo Bay, Cuba.
Levin's refusal to lift his hold on Fisher, which sources say had support from at least one and possibly two other Democratic senators, upset Gonzales aides. They say that at a time when the Justice Department must deal with the fallout from the London subway and bus bombings, the attack in Egypt and heightened anxiety about another terror incident, there is now about to be a serious vacuum at the upper levels of the department. Not only is there no confirmed chief of the Criminal Division to make major decisions for the rest of the summer, department officials note that Deputy Attorney General James Comey, who had previously announced his resignation, is due to leave office at the end of next week. President Bush's nominee to replace Comey, former deputy White House counsel Tim Flanigan, just had his confirmation hearing last week and won't be voted on until after the Senate returns on Sept. 6--and only then when the Judiciary Committee can find the time in the midst of its the far more intense hearings for Supreme Court nominee John Roberts.
"We feel like this is playing politics with national security," said one senior Justice Department official, about the Senate's failure to vote on Fisher's confirmation. The official, who asked not to be identified because of the political sensitivity of the issue, noted that Fisher, who had previously served as the chief deputy to Homeland Security Secretary Michael Chertoff when he was chief of the Criminal Division, had easily cleared the Judiciary Committee without serious objection.
Moreover, some Justice officials say they have sought to address Levin's concerns by releasing additional information about the Guantanamo issue--all to no avail. "We've bent over backward to make information available to the Senate," said the department official.
But apparently not enough, at least for Levin. The senator has raised questions about Fisher ever since he obtained a more complete copy of a May 10, 2004, internal FBI e-mail outlining bureau concerns about interrogation practices at Guantanamo. The e-mail to senior FBI counterterrorism official T. J. Harrington--sent by an agent whose name remains redacted--reported on earlier disputes between FBI agents and top generals overseeing Guantanamo about "the effectiveness (or lack thereof)" of aggressive Defense Department interrogation techniques being used at the U.S. detention facility.
"In my weekly meetings with DOJ [the Department of Justice] we often discussed DOD [Department of Defense] techniques and how they were not effective or producing [intelligence] that was reliable," the e-mail reads. The agent then listed a number of Justice Department Criminal Division officials who attended the meetings, including Fisher, who between July 2001 and September 2003, was deputy assistant attorney general in charge of the division. "We all agreed DOD tactics were going to be an issue in the military commission cases. I know [senior Criminal Division lawyer Bruce Swartz] brought this to the attention of DOD OGC [Office of General Counsel]."
But in written responses to the Judiciary Committee, Fisher denied having heard about such complaints. While acknowledging that she attended the weekly meetings referred to in the e-mail, Fisher wrote: "I do not recall that interrogation techniques were discussed at these meetings." Fisher said she did recall becoming aware of "FBI concerns" about interrogations, "but I cannot recall the content of specific meetings ... I do not recall the FBI expressing to me concerns about illegal activity at Guantanamo Bay regarding detainee treatment or mistreatment."
After receiving her responses, Levin as well as Sen. Edward Kennedy and Sen. Dick Durbin, told Justice officials that they wanted to question the FBI agent who wrote the May 10, 2004, e-mail to resolve what they saw as a conflict. Justice refused, citing longstanding policy, thereby leading to Levin's hold on Fisher's nomination. (Under longstanding custom, any individual senator can place such a hold and delay confirmation votes.) In an effort to break the logjam, Justice officials then interviewed the FBI agent on their own and then reported back that the Democratic senators were misconstruing his e-mail, according to a July 26 letter to Senate Judiciary Committee chairman Sen. Arlen Specter by William E. Moschella, assistant attorney general for legislative affairs.
Moschella said that the unnamed FBI author of the May 10 e-mail reported that the sentence referring to weekly meetings with Fisher should be "decoupled" from the sentences before and after it, which refer to discussions about the ineffectiveness of Defense Department tactics and the agreement among participants that "DOD tactics were going to be an issue in the military commission cases." In fact, according to Moschella's letter, the FBI agent only remembered discussions with Fisher about one particular detainee and his links to law-enforcement investigations; "he does not recall any conversation with or in the presence of Ms. Fisher regarding interrogation techniques or the treatment of detainees."
The answer didn't satisfy Levin who still insists on speaking directly to the FBI agent, not relying on the Justice representation of what he said, according to a Senate source who asked not to be identified because of the political sensitivity of the matter. A spokeswoman for Levin confirmed that the senator still maintained his hold on Fisher even after receiving Gonzales's phone call Friday night. But the spokeswoman said the senator was off hiking with his wife Wednesday and was unavailable for comment.
In the meantime, John Richter, a little-known former chief of staff to the former chief of the Criminal Division, Christopher Wray, will serve as acting assistant attorney general in charge of the division. The impasse, Justice officials say, couldn't come at a worse time. In a letter last Friday night to Senate Minority Leader Harry Reid seeking to dislodge the Fisher holdup, Gonzales cited "the recent terrorist bombings in London and Egypt as a reminder of the "clear and present danger that terrorism continues to pose." The State Department this week issued a new worldwide caution on terrorism, warning Americans who are traveling that "current information" indicates that Al Qaeda and affiliated groups are planning attacks against U.S. interests in "multiple regions" around the world.
In London, police and other security agencies have also remained on unusually high alert after receiving what U.S. and U.K. counterterrorism officials described as fresh and alarming intelligence suggesting further suicide attacks in central London might be imminent. The intelligence suggested that terrorists might be planning multiple simultaneous attacks, like the ones which killed more than 50 people in a wave of public transport bombings in London on July 7.
There is, as usual, little way of evaluating these reports, and one senior Justice official said today there was not undue alarm. Still, the British are taking it seriously. The intelligence information arrived shortly before last Thursday, causing Scotland Yard to order a massive uniformed police presence in and around many--if not most--London subway stations as well as busy business and shopping districts in central London. Police have maintained their high-visibility patrols and stakeouts since then.