The Erection of a Wall Between Intelligence and Law Enforcement Investigations

8/9/2019 The Erection of a Wall Between Intelligence and Law Enforcement Investigations

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S E O R E TLegal Barriers to Information Sharing:

The Erection of a Wall Between Intelligence and Law Enforcement InvestigationsCommission on Terrorist Attacks Upon the United States

Staff MonographBarbara A. GreweSenior Counsel for Special ProjectsAugust 20, 2004

As the threat of t er ror ism from radical Islamic groups developed) the FBI had both lawenforcement and intelligence responsibilities in response to th e threat. And it haddifferent tools to use depending on whether its investigation was designated as anintelligence matter Of a criminal matter. For criminal matters it could apply for and usetraditional criminal warrants. For intelligence matters it could apply to a special court,known as the Foreign Intelligence Surveillance Court (FISC), for warrants pursuant tothe Foreign Intelligence Survei11anceAct (FISA) of 1978.1 This law governs electronicsurveillance and physical searches of foreign powers and their agents within the UnitedStates. This divergence in purposes for the respective types of investigations andconcerns about using intelligence techniques to advance law enforcement interests led toinformation sharing barriers being erected between the investigations. This paper willdescribe the history and development of the various baniers and their impact on the 9/11story.The History of Tensions Between Intelligence and Criminal Investigations.Issues regarding the sharing of information between intelligence and criminalinvestigations did not arise suddenly in the summer of 200 1 . There was a long history ofconcerns about how the FBI collected intelligence activities within the United States andwhat was done with the information that it gathered.The FBI's domestic intelligence gathering dates from the 1930s. With World War IIlooming FBI Director J. Edgar Hoover, at President Franklin Roosevelt's direction,added to the FBI's duties investigation of possible espionage, sabotage, or subversion.After the war, foreign intelligence duties were assigned to the newly established CentralIntelligence Agency. The CIA was expressly precluded from engaging in domestic lawenforcement activities.' Domestic intelligence responsibilities remained with the FBI.J SOU.S. c. 1801 et seq. As enacted in 1978, fISA permitted orders authorizing electronic surveil lance.It d id n ot re fe r to physical searches. In 1 99 4, th e s ta tu te w a s a me nd ed to p er mit o rd er s a uth or iz in g physicalsearches. Pub. L. No. 103-359,108 Stet. 3423,3443 (Oct . 14,1994); 50 U .S .C . 18211829.2 See, The National Securi ty Act of J 947 (SO U.S.C. 4033(d)(l) (the CIA "shall have no police, subpoena,or law enforcement powers or internal security functions).

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S E O R E TThus, the FBI was in the unique position of having dual intelligence and law enforcementresponsibilities.Under Hoover the FBI's domestic intelligence activities expanded greatly. The FBIestablished a covert action program that operated from 1956 to 1971 against domesticorganizations and, eventually, domestic dissidents. The FBI spied on numerous politicalfigures, especially ones Hoover sought to discredit, and authorized unlawful wiretaps andsurveillance. Two years after Hoover's death in 1972, congressional and news mediainvestigations of the Watergate scandals of theNixon administration evolved into generalcongressional investigations of foreign and domestic intelligence by the Church and Pikecommittees.' As a result, the FBI's Domestic Intelligence Division was dissolved andreforms were recommended that were "designed to build a wall between federal lawenforcement and the nation's intelligence community.:"

To protect individual rights and guard against abuse, the attorney general was givenauthority over domestic intelligence-gathering activities. In 1976, Attorney GeneralEdward Levi adopted domestic security guidelines to regulate intelligence collection inthe United States. The FBI's domestic intelligence activities were governed by theseguidelines. These guidelines were periodically modified by subsequent attorneys generalbut their basic purpose remained the same. SOver time, the attorney general's authority to approve intelligence surveillance andsearches also changed. Traditional criminal search warrants or electronic surveillancerequire a federal judge's approval and a finding that there is probable cause that a crimewas being or had been committed. For many years, however, the attorney general couldauthorize surveillance and physical searches of foreign powers and agents of foreignpowers without any court review or approval. 6 Perceived abuses of this authority led tocalls for reform. Some suggested that this authority should be eliminated and onlytraditional criminal warrants should be permitted.In 1978 Congress passed the Foreign IntelJigence Surveillance Act (FISA). This lawregulated intelligence collection directed at foreign powers and agents of foreign powersin the United States. It was a compromise. FISA did not require traditional court approval3 See generally. Kathyrn Olmsted, Challenging the Secret Govenunent: The Post Watergate Investigationsof the CIA and FBr (Univ. of North Carolina Press, 1996)",see also Jim McGee and Brian Duffy, MainJustice: The Men and Women Who Enforce the Nation's Criminal Lows and Guard Its Liberties (Simon &Schuster 1996) at 30810.4 McGee and Duffy at 309.S See John T. Elliff, "Symposium: National Security and Civil Liberties: The Attorney General's Guidelinesfor FBllIwestigations," Come" Law Review, vol, 69 (April I984); McGee and Duffy at 310-311.6 The Attorney General's authority lO issue electronic surveillance or physical searches was contained inExecutive Order 12333. The Supreme Court, while holding that electronic surveillance within the UnitedStates t o p ro te ct n at io na l s ec ur it y against domest ic threats requires a warrant, n ot ed it s h ol di ng d id notextend to electronic surveillance that protects notional security from foreign threats. See United States v .K eith, 40 7 U .S . 2 97 (1 97 2);

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S E O R E Tof a warrant, but established a special new court, the Foreign Intelligence SurveillanceCourt (FISC), to review re qu ests f or su rv eilla nc e p urs ua nt to this law. The Department ofJustice created an Office of Intelligence Policy and Review (OlPR). OIPR would beresponsible, inter alia, for presenting surveillance applications to the FISA court.'Because of longstanding concerns regarding the use of non-criminal warrants to obtainevidence for criminal matters the 1978 act was interpreted by the courts, the Congress,and the Justice Department, to require that a search be approved only if its "primarypurpose" was to obtain foreign intelligence information." The FISA application processrequired a certification from a high-ranking Executive Branch official, such as theDirector of the FBI, that the purpose of the desired surveillance was to obtain foreign. intelligence information." In other words, the FISA process could not be.usedte. circumvent traditional criminal warrants to build a criminal case or to sp y upon domestictargets unrelated to foreign powers. If a prosecution became or was perceived to havebecome the primary purpose of FISA coverage, the FISA court could terminate thesurveillance and the criminal court could suppress any ofthe information obtained orderived from the FISA coverage. The Justice Department interpreted these rulings tomean that criminal prosecutors could be briefed on FISA-related information but couldnot direct or control its collection." 'There was, however, some recognition that evidence collected via a FISA warrant couldbe used in subsequent criminal proceedings. How and when it could be used was thesubject of significant debate." Through the 19805 and early 19908 informal information

7 See McGee and Duffy, supra, at 312-314.8 The statute only referred to "a purpose" being foreign intelligence collection. The courts, however,believed that to ensure that the FISA process was not misused for c rim in al i n ve st ig a ti v e purposes, foreignintell igence coUection had to be the "primary" purpose of the surveil lance. For a history of the primarypurpose standard see, In Re Sealed Case, 310 F.3d 717 (per curiam) (FISC Ct. of Rev. Nov. 18, 2002). Forcongressional interpretation see Implementation of the Foreign Surveillance Act, H.R. Rep. No. 98-738,98th Cong., 2d Sess. 14 (1984) at 49; The Foreign Intelligence Surveillance Act oj J 978: The First FiveYears, S. Rep. No. 98-660, 98th Cong., 2d Sess.(l984) at 10-11 (because "international terrorism" mayreach individuals whose activities are essentially a domestic law enforcement problem, the JusticeDepartment should use criminal surveillance tools when it is clear that the main concern with respect to aterrorist group is criminal prosecution). For Department of Justice interpretation see DOJ Memorandum toVatis from Dellinger, "Standards for Searches Under Foreign Intelligence Surveillance Act," FeD. 14, 1995.1nOctober 200] , the USA PATRlOT Act amended FISA by replacing "the purpose" with a "significantpurpose." See "Uniting and Strengthening America by Providing Appropriate Tools Required to Interceptand Obstruct Terrorism Act of2001" (USA Patriot Act), Pub. L. No, 107-56, 115 Stat. 272 (Oct. 26,2001)Section 2189 The FISA application also must include the approval of the attorney general based upon his or her findingthat "it satisfies the criteria and requirements of such application" as set forth in the statute. 50 U.S.C, 1804(0), 1823(3) , Thus, the attorney general implicitly certifies that the purpose of the FISA coverage is "too bta in fo re ig n in te ll ig en ce i nf or ma ti on ."10 Final Report oj (he Attorney General 's Review Team 01/ the Handling oj the Los Alamos NationalLaboratory investigation, Chapter 20, at 71 I (May 2000) (hereinafter AGRT Report].1 1 See Supplemental Brief for the United States, InRe: Sealed Case, No. 0200 I, FISC Ct. of Rev., (Sep,25 ,2002) pp. 11-19.

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S E O R E Tsharing procedures allowed FBI agents to brief criminal prosecutors on what was beingcollected during FISA surveillances. There were no written guidel ines governing suchcontacts. The prosecutors understood that they could not manipulate the process to directth e FISA collection to advance their criminal matters. 12 Whether and when the FBIshared i nf ormatio n p er tin en t to possible c r imina l inves tigat ions was l ef t so le ly to thejudgment of the FBI. There were no requirements that OIPR be apprised of suchinformation sharing. J3The Creation of the July 1995 ProceduresThe prosecution of Aldrich Ames for espionage in early 1994 raised concerns about theprosecutors' role in intelligence investigations. Over the course of th e A m es investigationFBI Director Freeh and Attorney General Reno signed nine certifications that theinformation being sought was for the purpose of collecting foreign intelligenceinformation. Some of these certifications were made after a decision had been made tocriminally prosecute Ames and he was talking to the prosecutors."Richard Scruggs, th e acting head o f O IP R, became worried that because of the numerousprior consultations between FBI agents and criminal prosecutors, the judge handling thecriminal case might rule that the FISA warrants had been misused. If that happened,Ames might escape conviction. Scruggs complained to Attorney General Reno about theabsence of any information sharing controls. 15 Almost immediately Scruggs began

12 AGRT Repor t at 7 11 .13 !ft. a t 7 12 . A la n K o rn blu m, w h o w a sa d ep uty c hie f o f O IP R d urin g th is tim e, su gg este d th at th ere w a san in fo rm al ru le re ardin w hen FISA in fo nn atio n c ou ld b e sh are d. H e n ote d F IS A w a rra nts w e re g oo d fo r9 0 d ay s. 9/11 Classified Information h us, th ere w a slittle infonnatlOD go ere unng e st survei ance peno an 1 e 0 S are so ere w no n ee d fo r th ea ge nts to c on ta ct p ro se cu to rs. T he su rv eilla nc e w o uld th en b e a pp ro ve d fo r a no th er 9 0 d ay s a nd th ec er tific atio n w o uld n ot h av e a ny c on ta ct w i th c rim in al p ro se cu td ~~ to re no rt. C o lle ctio n w o uld o ro ce ed fo rth e n ext 9 0 d ay s a nd th en th e su rv eilla nc e w o uld b e re ne w ed 1

9/11 Classified InformationI,~ AGRTReport at 713.

I~ A s o ne w itn ess re po rte d, S cru gg s w e nt to th e A tto rn ey G en era l a nd " gin ne d h er u p" a bo ut th e F BI'sc on ta cts w i th p ro se cu to rs. S cru gg s w a s c on ce rn ed th at th e F IS A statute h ad b ee n v io la te d a nd th at th eA t to r ney Gene ra l' s cert i ficat ions were inaccurate. S cru gg s w a rn ed th e A tto rn ey G en er al th at sh e m ig hthave 10 testify in th e A m es c as e re ga rd in g b er a uth or iz atio n o f s ea rc he s. The A tto rn ey G en era l w a s v er yupset by w h at S cru gg s h ad to ld h er a nd sh e in stru cte d S cru gg s to "m ake su re th is d id n ot h ap pe n a ga in ."A G RT R ep ort a t 7 13 ; se e a lso , C om m issio n in te rv ie w R ic ha rd S cru gg s (May 2 6,2 00 4) ; M cG ee and Duffy,s up ra , a t 334~36.

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S cr ug gs c am e L o Main J u st ic e in 1 99 3 a t th e re qu es t of A tto rn ey G en era l R e no . H e b ad b ee n a p ro se cu to rin th e U n ite d S ta te s A tto rn ey 's O ffic e in M iam i w hile R eno w as chie f s t at e p rosecu to r inMiami. They ha dw o rk ed to ge th er o n so m e m a tte rs . S cr ug gs h ad s ig nific an t e xp er ie nc e o n foreign i n te ll ig en ce ma t te r s wh i leR e no b ad little . S he carne t o r el y h ea v il y on h is e xp er ti se i n t hi s a re a. Commission i nt er v iew R i cha rdScruggs ( M a y 26, 2 0 0 4) .

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S E O R E Timposing information sharing procedures for FISA material. As a result, OIPR becamethe gatekeeper for the flow of FISA information to criminal prosecutors. The FBI was notpermitted to brief criminal prosecutors on information gathered from FISA surveillancewithout OrPR's approval. 16Scruggs believed that these procedures should be formalized to protect the FISA processand forestall the possibility that the FISC would deny surveillance warrants or that thecriminal courts would suppress FISA information. In June 1994 he sent a memorandumto FBI General Counsel Howard Shapiro proposing an addition to the attorney generalguidelines governing the conduct of foreign intelligence investigations. Scruggs'sproposal would require that any questions regarding possible criminal prosecutionsarising out of foreign intelligence investigations first be' referred to OIPR. OIPR wouldcoordinate any necessary responses with the Criminal Division of the Department ofJustice or any of the United States Attorney's Offices (USAO). His proposal barred FBIHeadquarters or any FBI field agents from contacting the Criminal Division or anyUSAO without prior consultation with OlPR.17That same month Scruggs sent a memorandum with a more detailed proposal to theprincipal deputy attorney general, the Office of Legal Counsel, the chief of the CriminalDivision, chiefs of several sections within the Criminal Division, Shapiro, and FBIDeputy Director Robert "Bear" Bryant. Scruggs proposed that there be a "Chinese wall"to divide attorneys as well as investigators who were working on intelligence from thoseworking on criminal investigations. This is the first known proposal to create an internalwall between agents within the FBI. OTI>Rwould work with the FBI on any foreignintelligence or foreign counter intelligence matters. None of the investigators or attorneysworking on the intelligence matters could institute criminal process. Rather anyinformation relevant to a criminal matter would have to be passed to prosecutors andcriminal agents for instituting criminal process. IS This proposal led to more than a year'sdebate over the nature of appropriate procedures.Scruggs circulated several proposals in 1994 but failed to reach concurrence on any set ofprocedures. In December 1994 Deputy Attorney General Gorelick asked Michael Vatis,who was head of the Executive Office for National Security (EONS), to set up a workinggroup to develop procedures. 19 The selection of EONS to lead the effort was significant16 A fte r A m es p led guilty, F BI H ea dq ua rters sen t " wo rd" o ut tha t the re w ou ld b e n o m ore c on tacts w ithp ro se cu to rs in FC r i nve s ti ga ti ons w i t hou t OIPR 's p erm is sio n. D ep uty D ire cto r B ry an t w a rn ed a ge nts th atviolating this new rule was a "career stopper." AGRT Report at 713-14.P D O] M em orandum to S hapiro from S cru gg s, "A mendm ent of the FeI G u id elin es ," J un e 2 9 , 1 99 4.IS D O J M e m or an du m to G arla nd , e t. a l. f ro m S cr ug gs , " Co un te rin te llig en ce v . C rim in al In ve stig atio ns ,"(undated).19 Commission interview Jamie Gorelick (Jan. 9,2004); Commission interview Michael Valis (Jan. 21,2 00 4) . E ON S w as p art of the joint staff o f th e A tto rn ey G en er al a nd th e D ep uty A tto rn ey G en er al. W h enGorelick assumed the Deputy Attorney General position she recommended that she and the AttorneyG en er al h av e s ma ll p er so na l staffs and th at th er e b e a la rg er s ta ff th at they w ou ld s ha re fo r issu es ofc on ce rn to b oth o f th em .

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S E C R E Tbecause EONS w ould not be affected by the procedures and thus could be a neutralarb iter am on g com petin g in terests. 20One of the first tasks of the w orking group w as to ask the O ffice of L egal Counsel (OL C)for an opinion on the necessity of the primary purpose standard ." O n January 19, 1995,O Le issued a draft opinion indicating tha t although the law did not clearly require aprim ary purpose standard) courts w ere likely to apply such a standard anyw ay. Therefore,it w as necessary for the D epartm ent to b e p re pa re d to defen d its F IS A w arran ts undersuch a standard . O LC recom mended that an appropriate internal process be estab lished toinsure that F IS A certifications are consistent w ith the "prim ary purpose" test. 22The FB I, the C rim inal D iv ision , and OIPR weighed in on their respectiv e v iew sregarding possib le procedures. N one quarreled w ith the use of the prim ary purposestan dard. T he FBI argued that it still should be ab le to seek advice and guidance fromprosecutors although it proposed language that any contacts betw een the FBI and theC rim in al D iv isio n sh ou ld n ot " in ad verten tly resu lt in the fact or appearance of theC rim in al D iv ision co ntro llin g th e in tellig en ce in vestig ation ." T he FBI and th e CriminalD iv ision objected to O IPR being th e gatekeeper for in formation sharing with th eC rim inal D iv ision. T he C rim inal D iv ision com plained that O IPR appeared to b e a do ptin ga v iew that a case is either entirely an intelligence m atter or entirely a crim inal m atter.The FBI agreed that both O IPR and the C rim inal D iv ision should approve any FB Icontacts w ith the U nited States A ttorney's O ffices (U SA Os) because the necessarysensitiv ity to the issues and experience "treading this fine line" will often be absent inth os e o ff ic es . 23Drafts of w hat w ould becom e the A ttorney General's procedures w ere c ircu latedb eg in nin g in F eb ru ary 1995 . 24 The procedures had tw o governing princip les: first, therew as a duty to share relevant inform ation w ith the C rim inal D iv ision and second, there20 Commiss ion i nt er vi ew R i ch ar d S cr ug g s (M ay 26, 2 0 0 4 ) " Commiss ion i nt er vi ew J am i e Go re li ck ( Ju n e 4,2 0 0 4) ..21 C o mm iss io n in te rv ie w M i ch ae l V atis ( Ja n. 2 1 ,2 0 0 4) : C o mm iss io n in te rv ie w J am ie G or elic k ( Ja n. 9 ,2 0 04 ). A s le ga l c ou nse l to th e a tto rn ey g en era l, O L C's o pin io ns w e re th e fin al w o rd o n a ny le ga l issu eswithin th e Dep ar tmen t o f J us ti ce .12 T h is d ra ft o p in io n w a s o ff ic ia ll y is su ed in fin al form o n F eb ru ary 1 4, 1 99 5. T he fin al o pin io n re pe ate d th ed ra ft o pin io n's a dv ic e. S ee D O ] M e m or an du m to V atis f ro m D e llin ge r, " Sta nd ard s fo r S ea rc he s U n de rF ore ig n In te llig en ce S urv eilla nc e A c t, " F eb . 1 4, 1 99 5 .23 S ee F B I M e m ora nd um to D e pu ty D ir ec to r E xe cu tiv e O ffic e o n N a tio na l S ec urity fr om G en era l C o un se lF e de ra l B u re au o f I nv e st ig at io n , "A cc es s t o C r im i na l D i vi si on A t to rn e ys by FBI Coun te rin te l li genceAgents , or Jan. 3 0. 1 99 5; D OJ M em orandu m to V atis from R ey no ld s, " Pro ce du re s fo r C o nta cts B e tw e en F B Ia nd C r im i na l D i vi si on D u ri ng F o re ig n I nt el li ge nc e a nd Co un te ri nt el li ge nc e I nv e st ig at io n s, " F e b. 7 , 1 9 95 ;FB] M e mo ra nd um to V atis f rom Sh ap ir o. " Pr oc ed u re s f or C o nt ac ts B e tw e e n FBI a n d C rim in al D i vi si onD u rin g F o re ig n I nt el li gen ce and Co u nt er in te ll ig en c e I nv e st ig a ti on s, " F eb . 7 , 1 9 95 .24 S ee D O ] M em ora nd um to B ry an t, e t. a l. fro m V atis, "P ro ce du re s fo r C on ta cts B etw ee n F BI a nd C rim in alD i vi si on D u ri ng F o re ig n I nt el lig e nc e a nd Co u nt er in te ll ig en c e I nv e st ig a ti on s, " F e b. 3 , 1 9 95 ; DO}M em orandum to Bryan t, e t. 8 1 . f rom Va ti s, " Pr oc ed ur es f or C on ta cts B etw e en FB I a n d C r im i na l D i vi si onD u r i n g Foreign I n t e l l i g e n c e an d C o u n te r i n t e l l i ge n ce I nv e s t i ga ti on s ," F eb . 1 0 , 1 9 95 .

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had to be an appropriate process to govern such sharing so that there was no improperdirection and control by prosecutors. In mid-April, Vatis sent a memorandum to theAttorney General, through the Deputy Attorney General, with draft procedures attached.He indicated that all of the affected components had concurred in the procedures."Gorelick responded by asking for the corrunents of Mary Jo White, United StatesAttorney for the Southern District of New York."White raised two objections. First, she requested that whenever the FBI notified theCriminal Division about foreign intelligence information, i t should at the same timenotify the relevant USAO. Second, she wanted to ensure that the specific procedures thathad already been worked out and issued as instructions by the Deputy Attorney Generalshould remain in effect. 27The FBI, OIPR, and the Criminal Division all objected to the proposal that notification begiven to the USAO at the same time it was given to the Criminal Division. The FBIargued that policy decisions regarding whether a case should be handled as anintelligence matter or a law enforcement matter needed to be made at headquarters level.It also argued that most USAOs had little experience in handling intelligence matters andthat, unlike the Criminal Division, the USAO's sole equity in the process was to bringcriminal prosecutions. This would, it argued, upset the delicate balance betweenintelligence and law enforcement concerns. Finally, it noted that the level ofconsultations with the USAO in the Ames case was a significant factor in determiningthere was a need for procedures. The Criminal Division argued that the FBI needed asingle point of contact to ensure that any contacts with criminal prosecutors wereproperly documented. It also noted that early on in an investigation venue may not beclear so that deciding which USAO to contact would be unclear. 28

2S D O J M e mo ra nd um fo r th e A tto rn ey G en era l fro m V atis, "P ro ced ure s fo r C o ntac ts B etw e en F BI an dCriminal Division During Fore ign In te l ligenc e an d Coun te r in tel ligenc e Inve s tigat ions, " A pril 1 2, 1 99 5.2G D OJ M em orandu m fo r Deputy At to r ney Gener a l f rom Vatis, " Pro ce du re s fo r C o nta cts B etw e en F B I a ndt he C r im i n al Division Concer n ing Fo re ig n I nt el li gen ce and Foreign Counterintelligence Investigations,"M a y 2 4 , 1 99 5; C o mm is sio n in te rv ie w J am ie G ore lic k ( J W 1 e 4 , 2 0 04 ). A s U nite d S tate s A tto rn ey fo r th eS o ut he rn D is tr ic t o f New Yo rk , Wh it e had s ignificant exper ience in leading coun t er te rr or ism ca se s . He ro ff ic e wo u ld t hu s have a p ra ctic al p ers pe ctiv e to o ffe r o n th e p ro po se d p ro ce du re s. G or elic k a lso a sk ed fo rth e v ie w s o f M i ch ae l S tile s, th e U n ite d S ta te s A tto rn ey fo r th e E aste rn D istric t o f P en ns ylv an ia . W h itep ro vid ed c om m en ts o n b eh alf o f S tiles a s w ell.'27 The se p r oc edu r es will be discussed in the next section.28 See DO] Memorandum to Valis from Hams, "Procedures [o r C o nta cts B etw e en F B I a nd C rim in alD i vi si on D u rin g F o re ig n Intelligence a nd Co un te ri nt el li ge nc e I nv e st ig a tio n s, " M a y 2 2 , 1 9 95 ; f B IM e mo ra nd um to V atis fro m Sbapiro, "Procedures for Contacts B etw e en F B I a nd C rim in al D iv is io n D u rin gFo re ig n I n te ll ig en ce and Coun te ri n te ll ig enc e Investigations," May 22 ,1995 .T here are 96 U SA Os in t he Un i te d States, o ne fo r each federal district c ou rt. E ac h U SA O m ay o nly h an dlem atte rs fo r w h ich th ey h av e v en ue - m ea nin g th at th e c ou rts w o uld d ete rm in e th e m atte r to b e sufficientlylin ke d to th at g eo gra ph ic a re a to p erm it a p ro se cu tio n 10 b e b ro ug ht th ere . T he C rim in al D iv is io n, h ow e ve r,h a s n at io nw id e ju ri sd ic ti on a nd m a y ha nd le ma tt er s i n a ny f ed er al d is tr ic t c ou rt .

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S E O R E TO IPR still w as no t satisfied. In add ition to rejecting W hite 's sug gestions, S crug gscom plained that the procedures still p rov ided too m uch opportunity for the FB I to m eetw ith the C rim inal D iv ision . H e argued the FB I w anted to m eet w ith the C rim inalDivision on the "m ost m undane issues" and th e Crimin al D iv is io n exhibited now illing ness to defer su ch m eeting s despite the p otential leg al issu es created by th emeetings. He c omp la in ed that the C rim inal Division w elcom ed su ch m eeting s on its"overly optimistic" v iew of the law . Scruggs arg ued th at theonly way to ensu re that suchcon tacts betw een the FB I and the C rim inal Division did not create legal issues for O JPRwas fo r OIPR to decline to forw ard to the atto rney general any FIS A app lications w hereO IPR believed the FB I and the C rim inal D iv ision had had too m any contacts." InlateMay Vatis rejected OIPR's com plain ts an d declined to make OIPR t he g a te k ee p er . Henoted that ifOIPR believ ed there w ere too m any contacts in any particu lar case, it cou ldcom e to the deputy attorney general to reso lv e the m atter. 30In m id-June W hite m ade one last set o f com ments to the procedures in a m em orandumaddressed to R eno." W hite said that she believed Vatis and her staff "had w orked outa cc ep ta ble in stru ctio ns" fo r fo re ig n in te llig en ce a nd f ore ig n c ou nte rin te llig en ceinvestigations in the SDN Y. She noted, how ever, that it w as " hard to be totallycom fortable w ith instructions p rohib iting the FB I from contacting the USAO w hen suchproh ib itions w ere no t legally required. She argued that if it w as leg ally perm issib le forthe FBI to con tact the C rim inal D ivision, it w as leg ally p erm issib le fo r it to contact theUSAO. She conceded, however, that she understood that tighter con trols reduced the riskof im proper con tacts and D OJ not w anting the FB I to au tom atically con tact :USAOS.32O n Ju ly 14 Vatis fo rw arded a final d raft to Gorelick th ro ug h h er p rin cip al deputy MerrickG arland. T his v ersion incorp orated som e m inor chang es p rop osed by W hite, including aprov ision that w ould p erm it the A tto rney G eneral to exem pt p articu lar inv estig ationsfrom the procedures. H e also agreed at W hite 's request to draft a separate m em orandumthat indicated these p rocedures d id not supersede the procedures already in p lace for theSDNY as a result of the M arch m em orandum . H e rejected White's request to b ring theU SA Os in to the process earlier in cases w here there w as no FISA w arran t in placebecause if the USAO w as involved in the m atter p rior to a FIS A application , it w ould bevery d ifficult to assu re the F ISC that the F ISA 's p rim ary purpose w as intelligence asopposed to crim inal. H e defended the procedures, argu ing that there cannot be a separate

29 D O J M em orand um to V atis from S cru gg s, "C om m ents on P ro ced ures fo r C ontacts B etw ee n F BI a ndC rim i na l D iv is io n Du ri ng F or eig n Intelligence and Counterin te ll igence Investigations," M ay 25, 1995.)0 D O J M e m or an du m f or t he D ep uty A tto rn ey G en era l f ro m V atis , " Pr oc ed ur es f or C on ta cts B etw e en F B ]a nd C ri m in al D iv is io n Du ri ng F o re ig n I nt ell ig en ce a nd F or ei gn C o un te ri nt el lig en ce I nv es tig ati on s, " May24,1995.3) Although 1 1 co py of the m em ora nd um w as a lso a dd re ssed to V alis, it w a s s en t d ir ec tly to R en o. W itn es se sin dic ate d th at W h it e b ad a v er y c lo se r el ati on sh ip with R en o and w ou ld ofte n g o d irectly to h er on issu es o fim p or ta nc e in ste ad o f g oin g th ro ug h th e u su al c ha in o f c om m an d.3 2 S ee DO ] Memor andum to Reno f rom Whit e, " In st ru ct ions R e FI and Fe! I nv e st ig at ions ," J une 13 , 1 995 .

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- S E C R E T -set of procedures-for one U SA O.33 Garland recom mended that Gorelick approve theprocedures and forw ard them to R eno for approval. Gorelick concurred and forw ardedthem to Reno." ".On Ju ly 19 , 1995 , the.i'Procedures-for Contacts Betw een the FBI and the C rim inalD iv ision C oncern ing F oreig n Intellig ence and F oreig n C ou nterintellig enceInvestigations" w ere issued by the A ttorney.General. The procedures required that theC rim inal D iv ision b e notified w hen a foreig n cou nterintellig ence (FeI) o r f or ei gnin telligence (FI) inv estigation dev eloped facts or circum stances that "reasonably indicatethat a significant federal crime has been, is being, o r m ay.be com mitted." The FISA courtofficially incorporated these procedures in future FISA orders as accepted procedures togovern inform ation sharing. -,

\

It is im portant to understand w hat these procedures did and did not doFirst, theseprocedures only applied to inform ation gathered by the FBI as part o f an inte~ij8 ,~IM ... ......in v i ti n . The did not control inform ation athered b the C IA or the NSA

Second , despite O IPR 's proposals to the contrary, these procedures said nothing aboutin form ation sharing w ithin the FBI. FBI agents w orking intelligence m atters could freelyshare in form ation w ith agents w orking on parallel crim inal m atters. The only controlsw ere on inform ation sharing betw een the FBI and crim inal p rosecutors.Th ird, the procedures com pelled inform ation sharing w hen there w as ev idence of asignificant crim inal offense. Both the FBI and OIPR had an independent obligation tonotify the C rim inal D iv ision w hen tills threshold w as m et. The procedures clearlyrejected OIPR's v iew that it should hav e the g atekeeper role in deciding w hat intelligenceinformation should or could be shared w ith crim inal prosecutors. They did not baninform atio n sharing u nder any circu mstances.F inally , the lim its on inform ation sharing w ere solely on the adv ice-giv ing role ofprosecutors, not the sharing itself The procedures specifically endeavored to preven tev en the appearance of direction and control. They lim ited the type of adv ice that thecrim inal prosecutors cou ld g ive to agents w orking on the intelligence m atters. Suchadv ice cou ld preserve the possib ility of a crim inal prosecu tion bu t could not directactiv ities so as to enhance such a prosecution.

33 See D OJ M em orandum for the D eputy A ttorney Genera l from Vatis , "P rocedures for Contacts B etw eenF BI an d C rim in al D iv isio n D urin g F oreig n In tellig en ce an d F oreig n C ou nterin tellig en ce In vestig atio ns,"July 14, 1995 ..34 C om missio n in terv iew Jam ie G orelic k (JW1C 4, 2 00 4) ; H andw ritten m em orandum to A ttorney G eneralf rom Go re li ck (undated) .

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S E O R E TIn a memorandum attached to the procedures the Attorney General indicated that theseprocedures did not supersede the March 4, 1995 , memorandum issued by Gorelick thatgoverned cases in the Southern District of New York. This edict was at White's request.To understand why White wanted this memorandum to remain in effect, one mustunderstand the genesis and purpose of that memorandum.The March 1995 Gorelick MemorandumMary Jo White became the United States Attorney for the Southern District of New York(SDNY) in the spring of 1993, shortly after the first World Trade Center bombing and thediscovery of the so-called Landmarks Plot to simultaneously bomb New York Citytunnels and landmarks. Her attorneys and the FBI agents in the New York Field Officeworked tirelessly to bring to prosecution the perpetrators of the attack and the plot.By the early spring of 1995 the trial of the plotters was underway. During the trial theFBI learned of death threats against the judge, the prosecutors, and witnesses at the trial.Criminal pen registers on relevant telephones were already in place to try to learn whowas behind the threats. Itwas decided, however, that these techniques were not providingadequate information, and there was continuing concern for the safety of governmentofficials and witnesses. White and her staff suggested that an intelligence investigation beopened to aggressively address the ongoing threats."Because any intelligence surveillance or physical searches within the United Statesrequired a FISA warrant, the FBI would need to convince OIPR to present a warrantapplication to the Foreign Intelligence Surveillance Court. The FBI believed. however,that because there was already an open criminal matter on these individuals and thethreats, OIPR would reject such an application because it would appear that the prima. . . . ..

This request was very troubling to OIPR/'There is ample evidence tha,t.,s~'m~.iridividualsin OIPR believed that once it was decided that a case would becomea criminal matter,the inte11igenceinvestigation had to be terminated. This view wasnot.without some basisin the law. The seminal case on the prj-marypurpose standar,9;tJ~ted States v, TruongDinh Hung, supported such a view.3~,/Thecourt in Truon~/wtuch involved a pre-FISAsearch but was decided after the passage of FISA, upheld the admission of evidencegathered in the intelligence investigation prior to thematter becoming a criminalinvestigation. Once the Criminal Pivision wrote.amemorandum indicating that it was35 C o mm is sio n i nt erv ie w Mary Jo ~te (May 17 1 , 2 9 0 i i ) ~ C on un issio n i.n terv ie w R ic ha rd S cru gg s (May 2 6,~ r , . .\ ::CUJ . . ... IComrrUssion inte rv iew R ic ha rd S cr ug gs (May37 United S ta le s v . Truong D inh H~ng;;6~9.. p:1 (r 9 08 (4th C ir. 1980 ).

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. SECRE fgoing to open a criminal matter, the court held the primary purpose was no longerintelligence and all information gathered after that point was suppressed." The Truongcase became the foundation for subsequent cases holding that the primary purposestandard also applied to surveillance authorized under FISA.Because the New York case was already a criminal matter and criminal surveillance hadalready been conducted, OIPR worried that the FISC would conclude that a FISAapplication at this point would be an effort to conduct an end run around the criminalprocess. Moreover, because the SDNY was involved in the request for the FISAsurveillance, there was a serious risk that the court would believe that the SDNY wasdirecting and controlling the intelligence investigation. Thus, any such application wouldbe rejected b y th e court. In OlPR's view, these facts presented the worst case scenario fora FISA application. Certainly such a request was unprecedented in the 17-year history ofFISA.39Recognizing the seriousness of the matter, however, Scruggs and his deputy, AllanKornblum, flew to New York to meet with White and her staff to discuss how to proceed.Scruggs said that while he was in New york, he and White's staff negotiated a possiblememorandum to attach to the FISA application to persuade the court that the primarypurpose of this particular surveillance was collection of intelligence informationregarding the possible plot to kill individuals involved in the criminal matter." Scruggsrecalled that the resulting memorandum was drafted by one of White's attorneys.

J8 x g . at 9 15 1 6 (W arran tless fo reig n in tellig en ce su rv eillan ce n ot p erm itted o nce "su rv eillan ce b eco mesprimarily a crim in al in vestig atio n" or "w hen th e g ov er nm en t is p rim a rily a tte m ptin g to f or m th e b as is for acriminal prosecution.") .39 C o mm is si on i nt er vi ew Al an Ko rn bl um (May 1 9 , 2 0 0 4 ); C om missio n in terv iew R ich ard S cru gg s (May26,2004) ..f0 !Q . K ornblum recalled no resolution of the disagreem ents betw een Scruggs and W hite during the m eetinghe attended. K ornblum believed that Scruggs never w ould have agreed to the terms of this memorandumw itho ut o utsid e in fluen ce an d th ou gh t th at While m ust have gone to Gorelick to have her force Scruggs tocom prom ise. W hite denies that she did so. M oreov er, because W hite believ ed G orelick shared Scruggs'sv i ew s r eg a rd in g the need to shut dow n the c rim in al c ase b efo re o pen in g an i nt el li ge nc e c as e, White wouldnot hav e view ed G orelick as a sym pathetic listener. As there is n o c on tem po ra neo us e vid en ce o f G ore lick 'sv iew s o n co nd uctin g parallel in vestig atio ns, w e can no t sa y w heth er W hite 's b eliefs w ere g ro un ded in fact .T here is ev id en ce, h ow ev er. that R en o shared S crug gs' v iew and req uired in tellig en ce inv estig atio ns to beterm inated once a case m oved to a grand jury. Gorelick said she w as not consulted by W hite or her staffregarding the M arch m emorandum and w as not involved in its d ra ftin g o r fo rm ula tio n. C om m issio ninterview Mary Jo White (May J 7 , 2004)~ Commission interview Jamie G or el ic k (J un e 4, 2004). Scruggsconfirm ed that Gorelick had no role in d raftin g th e M arch p ro cedu res. C om missio n in terv iew R ich ardScruggs (May 26,2004).Scruggs did not recall K ornblum being present at the m eeting w here the disagreem ents w ere hammered out .This suggests that there may have been tw o separate trips to New York, the first one that K ornblumatten ded an d a sec on d o ne thot he di d n o t. S c rugg s ha d a d is ti nc t r ec ol le ctio n o f a n a ll -d ay me etin g wherethe term s of th e m e m o r a n d u m were deba ted a n d f in al ly agr eed upon.

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Onceagreement was reached on the terms of the memorandum, it was decided that theparties could not enforce the terms of the agreement on their own. They agreed that theyneeded a senior official (or in the words of one witness - Han adult") to issue thememorandumas a set of orders to the SDNY, the FBI, and OlPR. They decided to askGorelick to issuethe memorandum. Scru s briefed Gorelick on the memorandum andshe a reed to si n i t '

The memorandum was described as a treaty between OIPR and the SDNY, Each of theaffected parties agreed to its terms, It covered the two existing terrorism matters thenunder investigation by the SDNY, 42 Most significantly, it permitted the SDNY todesignate one of its attorneys who would have access to all information collected by thesurveillance to determine what information needed to be shared with the criminalprosecutors. This attorney had been involved in the criminal matter and thus would havea good basis to understand what needed to be shared. OIPR had no role in reviewing thegathered information or deciding what could or could not be shared with criminalinvestigators or prosecutors.Several provisions, however, were included to appease OIPR's continuing concernsregarding the purpose of the surveillance. First, the parties included language to the effectthat the proposed procedures went even further than the law required. Scruggs said thisself-serving language was added to satisfy the FISA court's concerns about theunprecedented agreement. Second, Scruggs was able to insert a provision creating notonly a wall between the FBI and the SDNY but also a wall between the FBI investigatorsworking on the criminal case and those assigned to the new intelligence matter. Hebelieved this was essential to the court approving the application. This echoed aprovision that Scruggs had unsuccessfully proposed be included in the generalprocedures that were being drafted at the same time as this memorandum."

1 2

41 C om m issio n in terv iew R ich ard S cru gg s (May 2 6, 2 00 4) ; C om m issio n in terv iew Mary Jo W hite (M ay 17 ,2 00 4)~ DO ] M em orandum to W hite, et. 8 1 . fro m G orelick, "In stru ctio ns o n S ep arat io n o f C ertain F oreig n.Counterintel ligence and C rim inal Investigations," M ar. 4 , 1995 . .~2 At the lim e of this m emorandum , the SDNY had not yet opened a criminal case related to B in L adin and3 1 Qaeda. That would no t occur unt i l over a y ea r l at er .4J C orru nissio n in terv iew R ich ard S cru gg s (M ay 26. 2004). It should be recognized that a lthough thism em orandum w as negotiated during the tim e the A ttorney General's general procedu res w ere beingdebated, the tw o p rocesses w ere w holly unre lated. Vatis, w ho w as direc ting the group considering thegeneral procedures, w as no t inv olv ed in the draft ing o r approv al of this m em orandum , T his m em orandumonly dealt w ith tw o specific cases in New York w hile the general procedures w ould govern all foreignintelligence matters countrywide, F in ally , th ese p ro ce du re s c on ta in ed provisions th at w ere significantlyd iffe re nt th an th e g en era l p ro ce du re s su bse qu en tly approved in July.

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The memorandum had tw o primary lim its on coordination : neither the SDNY nor theC rim inal D iv ision could exercise any direction or contro l ov er the intelligenceinv estigation and the in telligence inv estigators could onJy share portions of theirinvestigative m em oranda w ithout approval from FBI headquarters and O lPR . It alsocontained sharin g req uirem en ts. If intellig ence in vestig ators d ev elop ed inform atio n that"reasonably indicated" the com mission of a "significant federal crim e," they w erere qu ired to n otify c rim in al in ve stig ato rs.As the term s of this agreem ent offered the SDNY access to all of t he in te ll igenc egathered pursuan t to the FISA surveillance and prov ided no role for OIPR in th e p ro ce ss)it is not su rprising that the SDNY requested that these prov isions rem ain in effect w henthe Attorney General's procedures w ere issued in July . The m em orandum only related,how ev er, to the tw o specific m atters identified w ithin . It had no applicability to any o thercases going forw ard and thus, as w ill be seen later, had no role in the ev ents in thesum mer of 2001.Reports of Problems With the July 1995 Procedures and Efforts at ReformThe July 1995 procedures w ere in tended to perm it a re aso na ble d eg re e o f in fo rm atio nsharing betw een FB I agents conducting intellig ence inv estigations and C rim inal D iv isionprosecutors. They w ere also in tended, how ever, to ensure that the FBI w ould be able toobtain con tinuing FISA coverage and later be able to use the fiuits of such coverage inc rim in al c as es . If the FISA court or a subsequent crim inal court held that the primarypurpose w as som ething other than intelligence collection, renew al of coverage could bedenied or ev idence cou ld be suppressed. A s all parties to the procedures agreed, thiscou ld be a very delicate balance w ith substan tial risks to national security if the processwas not adeq uately m anag ed. All agreed that som e m anagem ent w as required. Theydisagreed as to how this m anagem ent should be ex ercise d. A s a resu lt th e p ro ced ure sw ere w idely m isu nderstood and m isapplied. T his resulted in far less inform ation sharingand coordination betw een the FBI and the C rim inal D iv isio n in practice than w as allow edin theory under the July 1995 procedures.O IPR 's leadership w as very risk averse and thus took a very conservative approach as tohow much information sharing could take place and w hen . It believ ed that the earlier andthe m ore frequent the contact betw een the FBI and the C rim inal D iv ision., the m ore likelythatthe court w ould find that the primary purpose standard w as no t met." D uring thedeb ate ov er the p rocedu res OIPR arg ued that inform ation sharing should be m inim ized44 See C om mission in terv iew A lan K ornb lum (M ay 19 ,2 00 4) . A ll the parties agreed that the prim arypurpose test governed the process. Even the SDN Y, w hich w ould later question som e of the procedures. didno t dispute th e ap plica bility of the prim ary p urp ose te st. Se e S DN Y M em oran du m to While from Fitzgeraldan d Khuz arni , "C la ri fi ca ti on o f F IS A ru le s in C ase o f O ng oing Counterterrorism In vestigatio ns," A pr. 2 2,1996. The dispu te w as over w hat the l es t me ant when it cam e to inform ation sharing . Ev en different O IPRcounsel d id not agree on the im plication of the test. S cruggs noted that w hen Jim M cAdam s becam e head ofO IPR , M cA dam s believ ed that S cruggs had been too conserv ativ e and loosened the contro ls som ew hat.Commission in te rview RichardScruggs ( M a y 26, 2004).

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and w orried that the FB I and the C rim inal D iv ision w anted to m eet more often thanO IPR deem ed w ise." O ver tim e O lf'R , and eventually the FISC itself, began to see m erecontacts betw een the FBI and the C rim inal D iv ision as a proxy for im proper d irectionand control. S ig nifican tly , O lPR v iew ed its r ol e p r ima r il y as an officer of the FISA courtand therefo re resp onsib le for stew ardsh ip of the co urt's resp onsib ilities. It viewed its roleas an advocate for its i ns ti tu ti on al c li en ts as secondary." This w o u ld m a te ria lly affecthow O IPR handled the subsequent p rob lem s that arose regard ing FISA app lications.

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AJthough OIPR had been u nsu ccessfu l at p ersuading the working group to m ake it th egatekeeper in th e Ju ly 1995 procedures, OIPR continued the ro le it had adop ted duringthe m onths preceding the issuance of the procedures. The FBI w ent along w ith thisapproach . The agents w orking the intelligence m atter w ould first ap proach the FBI'sO ffic e o f G en era l C ou nse l (aGe) attorneys for advice on w hether inform ation should beshared w ith the C rim inal D iv ision . The O GC attorneys w ou ld refer the agen ts to OlPR.OIPR w ould m ore often than not recom mend that the agents not con tact the C rim inalDivision." Tills approach w as reinforced by D epu ty FBI D ir ec to r B ry an t's d ec lar atio nthat too much inform ation sharing could be a career stopper for an FB I agent. A s a result,the in form ation flow betw een the FBI and the C rim inal D iv ision on foreign intellig encem a tt er s w i th er ed .The procedures and the Southern District of New YorkIn December 1995 W hite forw arded to R eno , then a few days later to Gorelick, am em orand um w ritten by her staff reg arding perceiv ed p roblem s w ith addressingterro rism as an in telligence m atter v ersu s as a c rim in al m a tte r. The New Yorkprosecutors argued that terrorism shou ld be addressed using crim inal processes asopposed to in te llig en ce te ch niq ue s." W h ite a dd ed so me c orru ne nts to th e end of the~ ~ D ep uty C ou nse l K o rn blu m b elie ve d th at FC I g oa ls o f a n in ve stig atio n " sh ou ld b e c om p le te d, o r v eryn ea rly so , b efo re th e C rim in al D iv isio n is n otifie d" o f a p oss ib le c rim in al c ase . U n de r th is v ie w , n on otific atio n sh ou ld o cc ur u ntil th e F BI w as p re pa re d to e nd its F IS A c ov era ge . A GR T R ep ort at 7 23 . S eea lso D O J M em oran du m to V atis fro m S cru gg s,." Co mm en ts o n Pro ce du re s fo r C on ta cts B etw e en F Bl a ndC rim in al D iv is io n D u ri ng F o re ig n I nte ll ig en ce a nd Co un te rin te ll ig en ce I nv e sti ga ti on s, " M a y 2 5 , 1 9 95 .A lth ou gh th is lin ea r v ie w o f c ase s b ein g in te llig en ce a nd th en m o vin g to w ard c rim in al m ig ht h av e b ee npalatable in ordinary e sp ion ag e c a se s, this model did n ot f it terrorism c a se s. I nt el li gen ce r eg a rd in g po ss ib lete rr orism a lw a ys is e vid en ce o f 8 c rim in al o ff en se . M o re ov e r, b ec au se o f t he d an ge rs p o se d b y t er ro ri st s,w a it in g to i ni ti at e c rim i na l p ro ce ed in gs u nt il a ft er a n i nt ell ig en ce in v es tig at io n w a s c omp le te d is n ei th erp ra ctic al n or w is e. W h en th e 1 9 95 p ro ce du re s w e re c re at ed , h ow e v er , they w e re d ev elo pe d w i th F elinvestigations in m in d. T he sp ecia l n ee ds a nd requirements o f c ou nt er te rr or is m c as es w e re n o t c on si de re d.Commis si on i nt er v iew Larry P ar kin so n ( Fe b. 2 4 ,2 0 0 4 ).46 James McAdams testimony, Senate Select COI11II l l tteen Intell igence, Dec. 9 , 1 99 5.0 1 7 FBI fax, Pa rkin so n to S eika ly , O ct. 8 , 1 99 7; D O ] M em ora nd um to V alis, c t. a l. fro m S eika ly , "M in utesof the O ctober 1 6, 1 99 7, M eeting of the D OJ W orking G roup on Sharing of FI an d FeI I nf o rma ti on ," Oc t.20 ,1997 .4B S ee S ON Y M em orandum to W hile from B om b T eam II, D ec. 5 , I 99 5.T his position w as no t surprisin g asth e p ro se cu to rs h ad n o a uth ority to d ire ct in te llig en ce te ch niq ue s b ut h ad su ch a uth ority in cr imina l mat te r s.T hu s, fo r th em to b e in vo lv ed in th e d ire ctio n a nd c on tro l o f te rro rism m atte rs they had to be h an d le d a s

( c on t inued . .. )

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S E O R E Tmemorandum in which she echoed the view that terrorism should be approached as acriminal, not intelligence, issue. She argued that by using a criminal approach therewould not be unnecessary walls. She argued that the July procedures concerningcommunications built unnecessary walls and that there was no need to keep prosecutorsin the dark orto prohibit them from giving advice." She did not, however, provide anyevidence that information relevant to the SDNY had not made its way to the SDNYattorneys because of the July 1995 procedures.In response to this memorandum, on the same day White's memorandum was sent toGorelick, a deputy counsel in OIPR sent a memorandum to Principal Deputy AttorneyGeneral Garland analyzing White's comments. The counsel argued that most of White'sdifficulties stemmed from "a fundamental lack of understanding" of the purpose ofintelligence investigations. He claimed that many of the examples of issues raised byWhite had previously been resolved by the Joint Intelligence Community LawEnforcement (JfCl.E) working group and the July 1995 procedurea." There is noevidence that any action was taken in response to the SnNY memorandum at this time.In April 1996 two SDNY attorneys wrote to White suggesting that there be a clarificationof the FISA rules in the case of ongoing counterterrorism cases. They argued thatalthough the March 1995 memorandum was somewhat more flexible than the July 1995procedures, they believed the March memorandum unnecessarily limited thedissemination of non-FISA human source information. The memorandum did notdistinguish between information gathered via FISA surveillance or other non-FISAtechniques. SJThe authors indicated that they agreed with OLC's analysis and conclusions regardingthe application of the primary purpose standard. They also noted that the July proceduresdid not address agent-to-agent contact and suggested that appropriate "Chinese walls" beput in place between squads investigating intelligence cases and those handling criminalcases. In addition to proposed additions to the procedures, they proposed adding languagethat "the procedures outlined below go beyond what is legally required. ,,52 Attached tothe memorandum was a series of questions regarding the meaning of the 1995 procedures48( ... cont inued)c rim i na l m a tt er s, n o t a s i nt el li ge nc e ma tt er s. Wh a te v er t he merits o f th eir a rg um en ts a s to th e v alu e o fc rim i na l t er ro ris m in v es ti ga ti on s, n o o n e w a s g o in g t o v o lu n ta ri ly g iv e up u si ng a ny i nt el lig e nc e t oo ls justto give th e S D NY t he a bi li ty t o d ir ec t a nd c on tr ol t he i nv e st ig a tio n s.~9 H e r p os itio n d id n ot d iffe re ntia te b etw e en F B I c om m u nic atio ns w i th th e C rim in al D iv is io n a nd with th eS ON Y . A s h er p rio r c om m en ts o n th e p ro ce du re s fo cu se d so le ly o n a tte mp tin g to p ut th e SONY o n th es am e f oo tin g a s th e C rim in al D iv is io n, th ese c om m e nts a pp ea r to b e re ite ra tin g h er e ar lie r p os itio n th at b adb ee n u na nim o usly re je cte d b y a ll th e p artie s in t he wo r ki ng g ro u p, i nc lu d in g t he C r im i na l D i vi si on .50 See DO] M e mo ra nd um to G arla nd fro m G allin gto n, " M ary Jo W h ite M e mo ," D ec . 2 7 , 1 99 5.Sl See SDNY M e m ora nd um to W h ite fr om F itz ge ra ld a nd K h u za m i, " Cla rific atio n o f F IS A ru le s in C ase o fO n g oi ng Co u nt er te rr or is m I nv e st ig at io n s, " Ap r. 22. 1996 .S2 T his la ng ua ge is id en tic al to th e la ng ua ge th at th e SDNY a nd O IP R a gre ed to in se rt in t he M a r chm e m o r a n du m s i g ne d by Gorelick.

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S E O R E Tand suggested answ ers. The intent w as to prov ide guidance to agen ts in the fieldreg arding the m eaning of the procedures.In June 1996 a memorandum w as drafted for the A tto rney General to issue exp laining theJu ly 1995 procedures. The draft indicated that i t had come to her attention that the Ju lyp rocedures had been construed to proh ib it com munications betw een intelligence andcrim inal inv estigations of a conunon target. That draft said such a conclusion "w asincorrect." The m em orandum insisted that tim ely in form ation sharing w as required andthat it w as only "uncoord inated and unnecessary" com munications that had to beavo ided. The m em orandum apparen tly w as never issued . S3L ater that sam e month, Jim M cAdam s, then head of O IPR , sen t a m em orandum to W hitein response to the A pril m emorandum from her staff. M cAdam s told W hite that she andher staff had construed the A ttorney General's p rocedures to be far m ore prohib itive as tocom mu nications betw een intelligence and crim inal ag ents on p arallel inv estig ations thanthey w ere intended to be. H e contended that although the orig inal procedures causedangst at the outset, they created far few er prob lem s than an ticipated by som e. H ebelieved that m ost o f the p rob lem s relating to the procedures stem med fromm isunderstand ing them . H e also prov ided edited answ ers to the questions proposed bythe New York prosecu tors. H e argued that there w ere m any w ays to hav e con tactbetw een the FBI and prosecutors w ithout v iolating the procedu res. S4In O ctober, W hite sent a m emorandum to M cAdam s, thanking him for h is w ork onarriv ing at a consensus on the m eaning of the Ju ly 1995 procedures. She indicated thather staff realized in m eeting w ith relevant parties that in m any instances they had beentalking past each other. She noted that w hen they w orked through concrete exam ples theyrealized that they "could by and large accom plish w hat w e think needs to beaccomplished. nShe added, how ever, that they still had concerns about Part B of thep rocedures (w hich gov ern inform ation ' sharing in cases w here no FISA surveillance w asyet in p lace) . ssThe next month W hite and som e of her staff m et w ith the A tto rney General and theD eputy A tto rney G eneral to d iscuss rem aining concerns w ith the July 1 995 procedures.In a m emorandum to R eno and Gorelick in advance of the m eeting , M cAdam s offeredh is op inion that m any of the SDNY's concerns w ere due to m isu nderstanding s regard ingn See dra f t Memorandum to As si st an t A tt or ne y G e ne ra l, C rim in al D iv is io n, e t. a l. f rom R eno ,"M e mo ra nd um o f Ju ly ) 9 , 1 99 5, R eg ard in g Contacts B etw e en th e F B I a nd th e C rim in al D iv isio nConcer n in g Fo re ig n I nt el li ge nc e a nd F or ei gn Co un te ri nt el li ge nc e Investigations," June 1 3, 1 996. W hen asim ila r m em ora nd um w a s p ro po se d in late 1997 , it w a s s ug ge ste d th at is su in g a memorandum thatessentially e ch oed th e original m em orandum but suggested this tim e the A ttorney General really m eant itwou ld n ot b e te rr ib ly e ff ec tiv e .54 D O] M em orandu m to W hite from M c A da ms , " OIP RJF B I R esp on se s to Q u estio ns & Answe rs Reg ar di ngFISA procedures an d G uid elin es ," J un e 2 8, 1 99 6.S5 S O NY M e mo ra nd um to M c Ad uill.') f ro m W h ite , OCl 4 , 19 96 (attaching S ON Y m em orandu m to W hitef rom F it zg er al d a nd Kh u za rn i, "FISA I ss ue s, " Oc t. 2 , 1996.

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- S E C R E Tthe p rocedures. H e said o ther concerns m erely reflected the SDNY 's "angst" over 0 01control over FIS A and FrSA -deriv ed inform ation that might be relevant to a SDNY case.He concluded that there w ere no disagreem ents am ong the parties regarding Part A of theprocedures but there were still issues regarding Part B.S 6 The meeting led to extendeddiscussions regarding the application of Part B of the procedures to the SDNY.F in ally in Ju ly 1997 the A tto rney G eneral authorized an excep tion to Part B of theprocedures for th e SONY. Under this "annex" to the 1995 procedures, FB I agentsworking on intelligence matters where no FISA warrant was in place could contact thenational security coordinator in the SDNY without obtaining prior approval from theCriminal Division. This annex was good for one year and could be renewed. It wasrenewed annually thereafter. This apparently resolved the SDNY's concerns as there isno evidence of further complaints regarding the procedures. 57Broader complaints regarding application of the proceduresGeneral concerns about the application of the procedures persisted, however, so that inOctober 1997 the Attorney General announced that she wanted to improve informationsharing between the FBI and the Criminal Division in foreign intelligence matters. Sheestablished a working group consisting of OIPR, the FBI, and the Criminal Division torecommend changes. It was chaired by Daniel Seikaly, Deputy Director of EONS.During the working group meetings the FBI conceded that its agents were going to OIPRto ask permission to approach the Criminal Division rather than contacting the CriminalDivision directly as mandated by the 1995 procedures. The Criminal Divisioncomplained that the FBI Office of General Counsel and OlPR had opined that merecontacts between investigators and the criminal Division created an appearance ofimproper direction and control. It also complained that it had heard that if too muchcontact occurred that OIPR would refuse to present any further FISA applications in theparticular case. Seikaly concluded that the Attorney General's memorandum was being"ignored" by both the FBI and OIPR.S8OIPR was asked to explain why it was recommending that the FBI not immediatelynotify the Criminal D iv isio n w hen it obtained information relevant to a p ossib le crim inalinvestigation. Allan Kornblum responded that immediate notification might lead theS6 D O] M em orandum for the A ttorney General from M cAdam s, "Procedures Concerning ForeignC ou nte rin te llig en ce In ve stig atio ns, " No v. IS, 1996.57 See D OJ M em orandum for K eeney, et. a! . from R eno, "Annex to Procedures for Contacts Betw een theF BI an d th e C rim in al D iv isio n C on cern in g F oreig n In tellig en ce an d F oreig n C ou nterin tell ig en ceInvest igat ions," Aug. 29,1997. W e found no explanation w hy it t oo k n ea rl y eight months a ft er t he m e et in gto issu e th is m em ora nd um . It likely reflected an earlier exp ressed co ncern reg ard in g th e d ifficu lty o ftre ati ng o ne USAO d iffe re ntly t ha n th e o th ers. As w o uld l ate r be argued, if t he m o di fi ed p ro ce du re s werele ga lly p erm issib le f or o ne o ffic e, it w as legally perm issib le for all o ffices. T he SD NY w as treatedd if fe re n tl y b e ca u se it bad a lev el o f exp ertise notfo und in m o st o th er o ff ic es .~8 AGRT Report at 7 0 9; see also DO ] M emorandum to Vatis, et. al. from Seikaly, "M in utes o f th e O cto ber1 6, 1 99 7, M eeting o f th e D O] W orking G roup o n Sh aring ofFI and FCllnform atio n," O ct. 2 0, 1 997 .

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S E C R E TFISC to conclude that the purpose of the warrant was actually criminal) not foreignintelligence. Although it was suggested that there be some modification to thecertification regarding the purpose of the surveillance, Kornblum objected because theyhad been using the same form for 19 years and he was concerned that the court wouldobject to any changes. The working group disbanded without any change in theprocedures or how they were applied. S9In July 1999 the Department of Justice Office of Inspector General (OIG) issued a reportregarding the handling of information in the Department's campaign financeinvestigation. The OIG report found that the 1995 procedures were "largelymisunderstood and often misapplied, resulting in undue reluctance among FCI agents toprovide information to criminal investigators and prosecutors. ,,60 The report noted furtherthat despite the fact that the procedures that were adopted rejected Scruggs' originalproposal that the FBI not provide information to the Criminal Division without OIPR'sapproval, the FBI operated as if that proposal had been adopted. Even FBI DeputyDirector Bryant incorrectly believed that the procedures required OIPR approval beforethe FBI could provide intelligence information, whether from human sources or FISA-derived, to the Criminal Division. As a result) FBI agents internalized the message thatsharing intelligence information of any kind might engender criticism. This approach"needlessly chilled" information sharing between the FBI and the Criminal Division. TheOrG found that the FBI and OIPR simpJy ignored the information sharing requirementsof the 1995 procedures."The DIG also indicated that the 1995 procedures were vaguely written and thusrecommended that they be rewritten to make clear what a reasonable indication that" asignificant criminal offense" was or will be committed means.In August 1999, in response to the DIG findings, Deputy Attorney General Eric Holderestablished a working group to address intelligence sharing problems between agents andprosecutors.f No reforms were ever developed as a result of this group.In October ]999~ Randy Bellows, who was leading the Department's investigation intothe handling of the Los Alamos Laboratory investigation, wrote to Reno to warn that the~9 M in ute s o f O cto be r 7 , 1 99 7, M e etin g of W o rk in g G ro up o n S ha rin g o fF I & FCr Information, O ct. 1 4,1 99 7; D O J M e mo ra nd um to V atis, e t. a l. fro m S eik aly , " M in ute s o f t he O cto be r 1 6, 1 99 7, M e etin g o f th eD OJ W orking G rou p o n S haring ofF I and F eI In fo rm atio n," O ct. 2 0, 1 997 . O ne su gg estio n w as to h av eth e A tto rn ey G en er al " re as se rt th e v alid ity o f th e P ro ce du re s b ut it w a s c on clu de d th at it d id n ot m a ke s en sefo r th e A tto rn ey G en er al to is su e a memorandum that s ai d "And Ie ally m e an it th is tim e ." A G R T R e po rtat 722.60 Dep ar tm e n t o r J us ti ce O f fi ce o f I ns pe ct or G e ne ra l report, "The Handling of FBI I n te l li gence ln fonna tionR ela te d to the Justice Department's Campa ig n F in a nc e I nv e st ig at io n ," J ul y 1 9 99 , at 256 .6) lQ . at 328-330, 343-344.5l S ee M e mo ra nd um to B ry an t, e t. a l. f rom Ho ld er , " C re at in g S p ec if ic Wo r ki ng G r ou p s, a n d E st ab li sh in gTimetables , to Res ol v e Ou t st and ing I ssues Re la ted to In te ll igence Mat te r s: ' A ug . 3 , 1 99 9. Go re li ck l ef t th eD e pa rtm en t o f J us ti ce in May 1 99 7 . H o ld er b ec am e th e n ew D e pu ty A tto rn ey G en er al in J ul y th a t y e ar .

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- S E O R E T -relationship betw een the F BI and the C rim inal D iv ision in foreign intelligence m attersw as "dysfunctional." I-Ie argued that the July 1 99 5 p ro ced ures th at req uired in fo rm atio nsharing needed to be "scrupulously follow ed." H e identified tw o central prob lem s, F irst,there w as a lack of notification to the C rim inal D iv ision of FC T investigations that m ightresu lt in a crim inal prosecution. S econd, there w as insuffic ient opportunity for theC rim inal D iv ision to give m eaningfu l adv ice concerning m atters that could im pact uponcrim inal prosecution , The A ttorney General form ed a rev iew team to consider therecom mendations from the AGR T report."In D e cembe r 1999, during the high terror alert surrounding the M illennium , O IPRpresented an unprecedented num ber of FISA applications to the court. B ecause ofexisting related crim ina) cases, including the prosecutions of the 1 998 E ast A fricaem bassy bom bings suspects and the outstanding indictm ent against B in Ladin, ' O IPR andthe court agreed that additional inform ation sharing controls w ere needed to ensure thatthe new FISAs w ere intended to ' ther fi r i n in H i n e n t enhance exi tinc rim in a l ma tt er s

9 /1 1 C la ss if ie d I nf or ma ti on

64 As a resu lt, at a tim e w hen portions 0 t e ustrce~ ~ ~ - - ~ - - - - - - ~ - - ~epartm ent w ere consi enng w ays to modify the 1995 procedures to increaseinform ation sharing , elsew here m ore b arriers to such sharing w ere b eing erected .The AGRT team issued its final report in M ay 2 0 0 0 . A s expected . it found that the FBIand O IPR w ere routinely ignoring the inform ation sharing requirem ents of the 1995procedures. The report concluded that "excluding the C rim inal D iv ision from FC Iinvestigations w as not an isolated event. .. It has been a way of doing business for O IPR ,acq uiesced in by the FBI, and inexplicab ly indulged by the D epartm ent of Justice.?" Thereport also urged that the 1995 procedures be rew ritten . It noted that there w as"considerable uncertain ty and difference of opinion concem ing the nature and extent ofthe advice that the C rim inal D iv ision m ay give once notified of an Fe! in ve stig atio n, a sw ell as the m eaning and application of the 'p rim ary purpose'< ru le.?"On October 6,2 0 0 0 , the A ttorney General's rev iew team assigned to rev iew the L osA lam os report's recom mendations presented proposals for reform of the 1995procedures. A lthough all of the affected parties agreed that the inform ation sharingprov isions needed to be m ade clearer and enforced, disagreem ents rem ained about thenature of adv ice that the C rim inal D iv ision could prov ide to the intelligence63 L e tte r to R en o fro m B ello w s, O cto be r 1 9, 1 99 9. I n Ja nu ary 2 0 00 , w h ile w a itin g fo r th e [m al A G RTreport w i th i ts f in al recommendations, th e Attomey General issued an order requiring the FBI toperiodically p ro vid e th e Criminal Divis ion with r el ev a nt l et te rh ea d memo ra nd a t ha t describe ongoingin te l ligence mat ters. This was viewed as a way to a ss is t th e C rim in al D iv is io n kn ow w hat it might need too bta in m ore in fo rm atio n to ro te ct o ssib le c rim in al e u itie s.64 .6)~~""",,,~p~~""'"'e"'----------""66 ! Q . at 7 1 0

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- SECRE tinv estigators. The issue w as w hether the C rim inal D iv ision could only prov ide adv ice toprotect p ossib le crim inal inv estig atio ns o r w heth er it could also prov ide adv ice designedto enhance a c rim in a l i nv e st ig a ti on . OIPR con tended that the only approp riate p urposefor adv ice w as to p ro tect a possib le crim inal inv estigation." The o thers believed thatenhancing adv ice could be g iv en as long as the C rim inal D iv ision d id not d irect that suchactions be taken . The proposal fo rw arded to the A ttorney General rejected O IPR 'sposition and adv ised that enhancing adv ice w as perm issib le.The proponents of the reform s believed that the A ttorney General w as p repared toap prov e the p rop osal as form ulated. But at an October 6 m eeting w ith the A tto rneyGeneral, she rejected the proposal and to ld the parties to go back and develop a plan thatall, inc1uding OIPR would agree on."While the D epartm ent of Justice w as considering reform s to the 1995 procedures toin cre ase in fo rm atio n sh arin g, the FISA court - w ith O IPR 's concurrence - im posedadd itional restric tions. O ver the course of2 0 0 0 O IPR had inform ed the FISA court ofnum erous errors in prio r F ISA applications, particu larly as to the existence and nature ofany p arallel crim inal inv estig ations. T he cou rt reacted b y im posing add itional restrictionso n inform atio n sharing . F or all B in L ad in -related FISAs the court ordered that noinform ation ob tained from su ch FrSAs cou ld b e sh ared w ith crim inal p rosecu tors(including the United States Attorney's Office in New York or anyone in the C rim inalD iv ision ) or FBI agents w orking on any related crim inal m atter w ithout the court'spermission."In N ovember 2 0 0 0 the court added a requirem ent that no one in the FB I or theD ep artm ent o f Ju stice, in clu ding p erso ns w orking so lely on in tellig en ce inv estig atio ns,could see any F ISA m aterial before signing a form acknow ledging that they understoodthe restric tions on sharing any of the inform ation they obtained ." O ne atto rney in theFBrs National Security L aw Unit reported at the tim e that, based on his d iscussions w ith67 K o rn bJ um h ad p re vio us ly a rg ue d th at th e C rim in al D iv isio n c ou ld o nly b e in vo lv ed in a n F C!in ve stig atio n u nd er th e 1 99 5 p ro ce du re s o nly f or " de fe ns iv e" p ur po se s, s o a s n o t to " sc re w u p" a c rim in alc ase ." A G RT R ep ort a t 7 2 7 . O th ers su gg este d th at th e C rim in al D iv isio n c ou ld g iv e a dv ic e to e nh an ce af u tu re c rim in a l p r os e cu t io n 8S lo ng a s th ere w a s n o a dv ic e re ga rd in g FJSA coverage. IQ . '68 O n e in div id ua l p re se nt a t th e m e etin g in dic ate d th e p artic ip an ts w e re s ur pris ed th at th e A tto rn ey G en er ald id n ot a do pt th e p ro po sa l. H e n ote d th at they h ad re ce iv ed in dic atio ns th at s he in te nd ed to a pp ro ve th ec ha ng es. B ut w h en th e A tto rn ey G en era l c am e to th e m ee tin g sh e c am e a cc om pa nie d b y F ra n F ra go sT ow n se nd , th en h ea d o f O IPR . The p a rt ic ip ant s b elie ve d th at T ow n se nd h ad lo bb ie d R e no p rio r to th em e etin g a nd c on vin ce d h er th at O IP R 's p os itio n w a s c or re ct. C o m mis sio n in te rv ie w D a vid K r is (May 19,2004L C o nu nis sio n in te rv ie w J am e s B a ke r ( Ju ne 17,2004).69 T h is e ff ec ti ve ly r ei ns ti tu te d t he c o ur t w a ll t ha t w a s f ir st im po se d in D ec em be r 1 99 9 a nd re mo ve d inMarch 2000 w h en th e re le va nt M i lle nn iu m F IS A s h ad b ee n te rm in ate d.70 O n e F B I s up erv iso ry a ge nt re fe rr ed to th is fo rm a s " a c on te m pt le tte r." T his fo rm a ssu re d th atin fo rm a tio n s ha rin g w o uld e ss en tia lly c om e to a h alt b ec au se a ge nts b eg an to f ea r th ey w o uld lo se th eirjobs if a ny i nte ll ig en ce i nf orm at io n w a s s ha re d w i th c rim in a l i nv e st ig at or s. D e pa rtm en t o f J us ti ce O f fi ce o fIn sp ec to r G en era l re po rt, " A R ev ie w o f th e F B I's H a nd lin g o f In te llig en ce I nfo rm a tio n R e Ja te d to th eS ep temb er 1 1 Attacks" ( he re in afte r DO J 1 0 9 11 l report), July 2 , 2004, p. 44 .

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OIPR, he believed the FISA court would no longer permit criminal prosecutors to giveany advice to the FBI agents working on intelligence matters. The attorney also believedthat the court's wall was about to be applied to more FISA applications and thussupersede the 1995 procedures entirely."The parties returned in December that year w ith sligh t modifications but still nounanimity on reform. OIPR continued to insist that Criminal Division advice had to berestricted. The Attorney General again rejected the proposal on the grounds that it wasnot unanimous."The December reform attempt also suffered from the court's unhappiness with thenumerous factual errors in the applications it had received, including erroneousdescriptions of the walls between intelligence and criminal investigations. Reformproponents recognized that even if the Attorney General had approved the reforms, theFISA court would also have had to approve the new procedures. The reform proponentsrecognized that the court would be unlikely to approve any changes that sought toincrease information sharing, let alone expand the type of advice the prosecutors couldprovide to intelligence agents. Thus, achieving reform would likely require an appeal tothe FISC court of review. This was considered particularly risky because the court ofreview had never before convened. Moreover, one of its judges had previously indicateddoubts about the constitutionality of the FISA statute. Thus an appeal could risk theability to obtain future FISA warrants. 73The problems with errors in FISA applications continued. On March 9, 200 I, ChiefJudge Lamberth of the FISA court wrote to Attorney General John Ashcroft that becauseof the continued errors on a series of FISA applications, the FISA court was banning asupervisory FBI agent who had been involved in preparing the particular applications. 74A few days later an Assistant Deputy Attorney General forwarded to the AttorneyGeneral a proposal for reform of the 1995 procedures that was virtually identical to theproposal presented to Reno in December 2000. It is unclear what happened to theproposal. Although the proponent believes he had been told that the memorandum hadbeen forwarded to Ashcroft, there is no record that it ever made it past the DeputyAttorney General's office. In any event, no action was taken on the proposal. Thedifficulty of achieving court agreement to reform had only magnified as the applicationerrors continued."In July 2001 the General Accounting Office (GAO) issued a report criticizing the FBIand OIPR for not complying with the information-sharing requirements of the 1995

71 S ee e mail fro m A in ora to Pa rkin son , "F YI-S pec ial S essio n of th e F IS C," N ov . 1 7) 2 00 0.12 C om m issio n in te rv ie w D av id K r is (May 19 , 2004 ) .7 3 Id.74 -S ec L ette r to A ttorn ey G en era l A sh croft fro m C hief Ju dg e L am berth , M arch 9, 2 00 1.75 Commission i nt er vi ew Dav id Kris ( M a y \9,2004).

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procedures." This w as the third report by a governm ent agency in as m any years thatind icated that the 1995 procedures w ere no t w orking as planned. But again , the tim ing forany reform aim ed at increasing inform ation sharing w as poor.On August 6 , 2 0 0 1) D eputy A ttorney General L arry Thom pson issued a m em orandumaffirm ing the 1995 procedures bu t clarifying that ev idence of "any federal felony" w as tob e im m ed iate ly re po rte d by the FBI to the C rim inal Division." Prior to issuing them em orandum Thompson had m et w ith the FISA court judges to ensu re that the courtw ou ld no t start rejecting FIS A ap plications b ecau se it disap prov ed of the prop osedm odifications. A fter receiv ing the necessary assu rances, he issued the m em orandum ." Inlight o f the add itional barriers to in form ation sharing im posed by the court over the p riortw o years, these m odifications w ere un likely to have any m easurable im pact oninform ation sharing. A gen ts had already becom e extrem e leery abou t sharing anyintellig ence in form ation w ith agen ts w orking on crim inal m atters. T he 1 995 p rocedu resrem ained in effect until after Septem ber 1 1, 2 00 1.79The Erection of Internal FBI WallsBy the Sununer of 2 0 0 I, internal w alls betw een FB I agents w orking on in telligencem atters and FBI agents w orking on crim inal m atters w ere in p lace, at least in m attersrelating to B in L ad in . These w alls did not preclude inform ation sharing betw een theagen ts but governed the circum stances and m eans by w hich the in form ation cou ld beshared. W e sought to determ ine w hen and w hy such procedures w ere im plem ented .The July 1995 procedures w ere silent on the issue ofin fonnation sharing w ith in the FBI.W e found no w itnesses w ho recalled w hen internal FB I in form ation sharing proceduresw ere first institu ted . Jim Baker, head of O IPR since 2 0 0 1 , said he w as no t aw are of anydocum ents estab lish ing internal FB I w alls. H e believ ed the concept w as already in p lacew hen he arrived in 1996.80 Form er FB I G eneral C ounsel L arry Parkinson believed that

7 6 G AO re po rt, " FB I In te llig en ce In ve stig atio ns: C oo rd in atio n W ith in Ju stic e o n C ou nte rin te llig en ceC rim inal M aners is L im ited," July 2 00 1.77 Memorandum to Cher to ff , e t. 81. from Thompson, " In te llig en ce S ha rin g," A ug . 6; 2 0 0 1 .78 Com mission interv iew D avid K ris (M ay J 9,2004) .79 The belief that the FISA court w ould have been unlikely to approve an y o f th e sig nifica nt refo rm sproposed.in late 2 00 0 or early 2 00 1 w as w ell-founded. E ven w hen the Justice D epartm ent finally forw ardedsignificant r ef orm p ro po sa ls a fte r the passage of th e P at ri ot A ct, which changed inter alia th e requirementthat fo reig n in telligen ce b e th e p urpo se 1 0 a sig nifican t pu rp ose, the F ISA co urt unanimously re je cte d so meo f th e key reform s. S ee,/II R e A ll M a tte rs S ub mi ue d to Foreign Intelligence Surveillance C ou rt , 2 18F.Supp.2 d 61 1 (FISC M ay 1 7,2 00 2) . A s predicted, the first-ever appeal to the FISA Court of R eview w asneeded t o o b ta in c ompl et e refo rm . S ee 1 1 1 re Sealed Case, supra, 3 1 0 F.3d 7 17 . Some have suggested that inthe absence of the U SA Patriot Act, conv incing the FISA Court of Rev iew to accep t the refo rm s w ou ldhave been difficult. C onv incing the court that despite a nearly 2 0-year long, essentially unanim ousinterpretation of the FISA statu te to impose a primary p urp ose stan dard, it sh ould su dden ly h old oth erw isew ould hav e been challenging. T hus, it i s u n cl ea r that an y real reform w ould have been possib le prior to9 /11 .80 C om m is sio n in te rv ie w J am es B ak er (Mar. I, 2 0 0 4) .

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the absence of such procedures was an oversight. 81 Given the fact that Scruggs hadoriginally proposed such walls prior to the creation of the July 1995 procedures and theMarch 1995 memorandum included them, it appears more likely that the parties to theJuly 1995 procedures intentionally rejected internal FBI walls. We found no documentsreporting any discussion of such walls during the development of the July 1995procedures.The absence of discussion may also be a reflection that there was no perceived need forinternal FBI walls to satisfy the primary purpose standard. Although the FBI haddifferent designations for investigations depending on whether they were an intelligenceor criminal matter - terrorism intelligence investigations were designated as 199 casesand criminal terrorism investigations were designated as 265 cases - the FBI did notdistinguish between agents. A ll agents attended the same academy and received most oftheir training in how to conduct criminal cases. Any agent on a counterterrorism squadcould work both 199 and 265 cases. These separate designations for different types ofinvestigations were an internal administrative matter for the FBI and had no impact onwhether criminal charges could be instituted. 82More significantly perhaps, FBI agents had no authority to actually institute criminalproceedings. Only Department of Justice prosecutors could open a case in a grand jury,present witnesses, and obtain an indictment. Applications for criminal warrants and thefiling of criminal charges in the district court required approval of a prosecutor. Theseries of cases applying the primary purpose standard routinely found that cases becamecriminal when prosecutors became involved. They did not consider what internaldesignation the FBI used to file its cases and did not look to see whether an agent worean intelligence or criminal hat. Itwas solely the presence of prosecutors that changed thenature of the cases in the courts I eyes. Thus, while prosecutors could not direct or controlthe FISA process, any FBI agent could do SO.83Another significant factor was that OIPR did not believe that there should or could beparallel intelligence and criminal cases. Both Scruggs and Kornblum had argued thatonce a criminal case was instituted, the FISA coverage needed to be terminated." Manyof the court cases appeared to share this sequential view of intelligence and criminal

81 Commi ss io n i nt er v iew Larry Pa rk in s on (F eb . 2 6 ,2 0 0 4 ) .tfl Thus, p os t 9 11 1 th e F B I r em o ve d such a n a rti fi cia l d is ti nc tio n a nd a ll c ou n te rt er ro ri sm c as es w e re'd es ig n at ed a s 3 1 5 ma tt er s,83 T h is d emo ns tr at es t ha t t he c ou rts f oc us ed s ol el y 01 1 p os it io ns w i th in t he r es pe ct iv e a ge nc ie s a s o pp o se d toth e sk ill se ts o f th e re le va nt p artie s. T hu s, Larry P ar kin so n. a t t he t im e fBi Depu ty G e ne ra l C o un se l, c ou ldprovide a ny a dv ic e to t he in te ll ig en ce a ge nt s c on du ct in g th e e sp io na ge i nv e st ig ati on a ga in st E ar l P it tsw i th ou t ra is in g O IP R's c on ce rn s a bo ut ru nn in g a fo ul o f t he primary p u rp os e s ta nd ar d. T h is i s d es pi te th efa ct th at P ark in so n h ad p re vio usly b ee n a n A ss is ta nt U n ite d S ta te s A tto rn ey a nd th us w o uld h av e b ee n v eryk no w le dg ea ble a bo ut w h at w o uld b e h elp fu l to a ny fu tu re c rim in al in ve stig atio n. T his sa m e a dv ic e fro mso m eo ne siltin g a cro ss th e s tre et in D O J's C rim in al D iv isio n w o uld h av e b ee n c on sid ere d tro ub le so m e.114Commissioo in te rv ie w Ja m es B ak er ( M ar, 1 ,2 0 0 4) ; C om m is sio n in te rv ie w R ic ha rd S cru gg s ( M ay 2 6,2 0 04 )~ A GR T R epO I1 a t 7 2 3 .

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S E C R E Tcases. Because the centra) concern was not information sharing but rather direction andcontrol, agents who gathered information via a FISA warrant could use the information ina subsequent criminal case. And because the FISA coverage would have been terminated,there were no direction and control concerns. This would prevent the need to keep agentsseparate. Indeed, in one of its memoranda commenting on the proposed 1995 procedures, .the SDNY mentioned that OIPR apparently had no objection to the same agent who hadworked on the intelligence matter and obtained FISA material working on the subsequentcriminal case."This linear approach - first intelligence case and then criminal case - worked fairly wellin traditional FeI matters. An investigation of a potential spy was first an intelligenceinvestigation to determine who and what were involved. When this information wasgathered criminal charges could be instituted, the individual would be arrested, his accessto sensitive materials would end, and the criminal case could proceed.As the respective parties would come to realize, terrorism cases were not so neat. Therecould be multiple plots and overlapping participants, and bringing criminal chargesagainst one set of individuals did not end the need for ongoing intelligence. This wasclearly demonstrated with regard to Bin Ladin. He was first indicted in June 1998 but hewas not apprehended and he continued to plan and execute more terrorist acts. In August1998 he directed the East Afiica embassy bombings and a superseding indictment wasbrought.' Concerns about additional plots around the Millennium required extensiveintelligence gathering about possible future acts while Bin Ladin remained criminallycharged for prior acts. These scenarios altered the traditional view of sequentialinvestigations."Thus, it is clear why an internal FBI wall was in place in the March 1995 memorandumbut not the July 1995 procedures. In the cases covered by the March memorandum thesequence of cases had been reversed - the criminal case preceded the intelligence case.Thus, OrPR was concerned that agents who were working on an active criminal case-and thus working closely with and often at the direction of criminal prosecutors - couldbe perceived to be directing FISA coverage for the ongoing criminal case. The Julyprocedures, however, implicitly presumed sequential cases."While the Inspector General's report on campaign finance) the AGRT report on thehandling of the Wen Ho Lee case, and GAO's report on jnformation sharing were criticalof how the July 1995 procedures were being applied, none mentioned any internal FBIwalls. The issues in those matters focused solely on information sharing between the FBI8S S ee S D NY M e m ora nd um to W h ite fr om F itz ge ra ld a nd K h uz arn i, " Cla rific atio n o f F I SA ru le s in C as e o fO n go in g Co un te rte rr or is m I nv e sti ga tio n s, " Ap ri l 2 2 , 1 9 96 .86 See, ~ C om mission interv iew Jam es B aker (M ar. l , 2004) ( te rr or is m

The Erection of a Wall Between Intelligence and Law Enforcement Investigations

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