Beverley Lumpkin: Halls of Justice

It's passed, it's signed; now all terrorists, and even suspected terrorists, had best beware.

First may I say that some unheralded staffer in the House of Representatives deserves credit for coming up with the name of this act. Whereas in the Senate it was rather modestly named The Uniting and Strengthening of America Act ("USA Act"), the final legislation as passed adopted the House name: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism - or USA Patriot Act.

I've written so much about this legislation in the past several weeks that I promise not to bore you again, but feel I must point out how positively fierce Attorney General John Ashcroft was in his speech Thursday to the mayors about how he plans to implement these new tools.

Moreover, the attorney general announced a new aggressive policy of using literally any offense no matter how minor to pick up and charge suspected terrorists.

In a somewhat odd analogy, he several times invoked Bobby Kennedy's war against organized crime, when mobsters were charged with violations of the Migratory Bird Act, or indicted for lying on a federal home loan application. Do people really remember those long-ago actions, or was he (she cynically asked) invoking Kennedy's name to ward off the civil libertarians?

In a later background briefing, two Justice officials made clear they are prepared to charge people with crimes that would normally fall way off the radar screen, just to get suspected terrorists off the streets.

They pointed out these are real laws, and nobody has the right to violate any of them; it's just that in the normal course of executing prosecutorial discretion, some laws are rarely wielded. If they subsequently should become satisfied that the suspect is not in fact a terrorist, then maybe he can make bond on his penny-ante crime.

As to the new legislation itself, one official in particular was positively exhilarated at the new tools soon to be in his hands. Two provisions that he cited as "most immediately useful" were the expanded powers to access routing information on e-mails; and information-sharing between criminal investigators and the intelligence community.

He promised that as to these two provisions "we could literally deploy within minutes of the signing of the bill."

Intriguingly, as to the info-sharing, he added that "there are files on the intelligence side that are ready to go and be looked at on the criminal side." Reporters clamored in vain for answers as to what kind of intelligence files, and how many, and how long they had been piling up.

But the official did reiterate the administration's argument about lowering the wall between criminal and intelligence work: that they can now share intelligence with the criminal side without fear of compromising their ability to continue the intelligence-gathering.

Although no judge had ever ruled that intelligence-side warrants had to be shut down once an investigation had shifted to the criminal side, this is something that prosecutors had feared for so long that it had become a reality. Now, they "can look at making cases and putting people in jail" while the intelligence community continues to gather more information on suspects.

On the flip side, they can now share information collected by a grand jury during a criminal probe with intelligence officials without having to go first through the laborious process of gaining a court order to make it legal.

One set of provisions in the new law that have not gotten much public attention would tighten up the laws against those who obtain or possess biological or chemical agents. The deficiencies in current law were underscored in the mid-'90s when the FBI caught white supremacist Larry Wayne Harris with vials of bubonic plague.

Under current law there's a requirement that the biological agent be used, or threatened to be used, as a weapon. But Harris had not actually threatened anyone; ultimately he was convicted of wire fraud.

Now Congress has created two new explicit crimes: One prohibits certain restricted persons (convicts, fugitives, mentally incompetent, etc., including non-resident aliens from countries that support terrorism) from possessing certain biological agents. The second forbids any person from possessing "any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose."

I regret that I must point out, however, that the proposed McDade fix did not survive conference with the House. Gentle readers will recall my fixation on the fix, which would undo the most deleterious provisions of a law passed three years ago that seemed merely and innocently to require federal prosecutors to comply with local ethics rules but in actuality has wreaked havoc with the criminal justice system, resulting, in the most egregious case, in the total shutdown of all undercover operations in the state of Oregon.

In fact, according to The New York Times, Oregon's senators briefly considered a hold or filibuster on the final anti-terrorism package if the McDade fix were not reinstated.

They complained that because no covert operations could be conducted in their state, it was tantamount to an open invitation to terrorists to come to Oregon. But reportedly Senate Majority Leader Tom Daschle promised that, "this will come back again and again, and we will continue to send it to the House again and again."

I was told by one Senate staffer that despite all their pushing to keep the McDade fix in the final bill, the House was dead-set against it, and the administration did not really push for it. Without that extra impetus from the White House or Justice, they didn't have a chance.

A senior Justice official implicitly confirmed that for me when he acknowledged that the important thing had been to get the anti-terrorism package passed; that they had to recognize they couldn't get everything they wanted all at once; but that McDade remains an important issue and they would indeed try again.

FBI Then and Now

It's become almost a mantra for Justice and FBI officials, from Ashcroft on down, in the past six weeks, that their most important priority now is prevention of future terrorist acts.

That point underlay Ashcroft's speech to the mayors, when he talked about locking up suspected terrorists on virtually any pretext or technicality. But the next obvious step was spelled out for me in interviews for ABCNEWS Radio with two top officials: the FBI's mission is radically changing, and thus the bureau itself will evolve into an agency very different from its past.

Of course the FBI has already moved far from the days of Hoover's FBI, when agents focused on bank robbers and stolen cars and avoided messy things like organized crime. But now in order to focus on preventing further terrorist acts, the bureau may have to drop other current priorities that can better be handled by other agencies, whether federal — like DEA for drug crimes — or state and local — like violent crime, and yes, bank robberies.

Because neither Ashcroft nor FBI Director Robert Mueller has explicitly laid out the new structure or mission of the bureau, top officials were reluctant to spell it out. But Assistant FBI Director John Collingwood acknowledged reality: "I think we're already a different agency."

He elaborated, "We've always had some focus on prevention, consistent with the strategic plan that was adopted two or three years ago. But we've never done any investigation or any prevention effort to the scale that we're doing right now. So the director's considering a number of things that recognize this sort of new world order, and the role that we'll play in that domestically."

Assistant Attorney General for the Criminal Division Michael Chertoff also spoke of the importance of the prevention mission: "We're looking not at just the people who did something that already happened, and how to bring them to justice. We're looking at everybody out there who is fomenting terrorism, aiding and abetting or financing terrorism, or who is in league with terrorists and lying in wait.

"And what we want to do is … to build cases against those people so we can arrest them and convict them before they do something. And that's a plenty big challenge, and I don't think anybody feels that there's anything more important that they could be doing than identifying those people and going after them."

How Not to Keep a Job

Just a few weeks ago, an assistant special agent in charge of the Memphis, Tenn., office got a nice promotion to inspector at headquarters.

He reported for duty right about the time the anthrax attacks began. Since he was not yet immersed in PENTTBOM, according to one agent, and he was "fresh," he was put in charge of coordinating the anthrax probe. But just 10 days into his tenure, last weekend (so the story goes), he decided to fly back to Memphis for the weekend.

When he came back to work the following Monday morning, one agent told me, he was informed that others had been working flat-out for six weeks with NO days off, and if he couldn't muster any more energy than that, they'd find somebody else. So now, according to another agent, the erstwhile anthrax czar has been shipped off to Mississippi.

The new Mr. Anthrax is Tom Carey, lately the assistant special agent in charge for counterterrorism in the Washington field office. Carey's had a fair amount of experience in counterterrorism, beginning on a counterterrorism squad in the Washington field back in the late 1980s.

During that time he was the case agent on the matter of UTA 772, a French airliner shot down over Chad in the spring of 1989, known to the bureau as CHADBOM. Here's hoping he's already well-rested.

Beverley Lumpkin has covered the Justice Department for 15 years for ABCNEWS. Halls of Justice appears every Friday.