sk b9 agency comments 2 of 2 fdr- doj comments on the wall 165

8/14/2019 SK B9 Agency Comments 2 of 2 Fdr- DOJ Comments on the Wall 165

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Comments on "The Wall"The following comments address the discussion in Chapter 3 of theCommission's report, entitled "Counterterrorism Evolves." These comments focus on

the discussion found at pages 9-11 regarding "Legal Constraints on the FBI and 'theWall.'" Other Commission comments on the wall and the role of the Office ofIntelligence Policy and Review (OIPR) are found in Chapter 6, page 35, and in Chapter8, pages 14, 16, and, in particular, page 30 footnote 85. This document responds tothose pages as well.

The Commission's report can be read to suggest that OIPR itself, withoutsupervision from Department leadership, undermined Departmental directives andmaintained "the wall" on its own, determining the course of the FISA program and thedisposition of individual FISA applications. For example, in Chapter 3, page 10 andrelated footnotes, the Commission makes, among others, the following commentsregarding OIPR's role with respect to information sharing: "The Office of IntelligencePolicy and Review became the gatekeeper for the flow of FISA information to criminalprosecutors"; "The Office of Intelligence Policy and Review began to drive a wedgebetween intelligence and criminal matters"; "[OIPR] had sole authority to decide whatwas presented to the FISC and therefore it wielded extraordinary power in the FISAprocess"; "Some barriers were proposed by OIPR in the FISA applications andsubsequently adopted by the FISC."

We submit that these comments overstate the role OIPR played in the FISAprocess in that they portray an organization that developed its own interpretation of thelaw and Department policies, and enforced that interpretation without supervision byDepartment leadership. Instead, we submit that OIPR followed a widely acceptedinterpretation of the law, and adhered to Department policies regarding: (1) the sharingof intelligence information with criminal prosecutors, and (2) the nature of therelationship between criminal prosecutors and intelligence agents that was permittedunder the prevailing view of the law.I. Introduction

What came to be known as "the wall" separating law enforcement andintelligence officials in the conduct of their duties has it origins in constitutionalprinciples, legislative enactments and reports, and judicial rulings, and in executivebranch understandings and interpretations of those authorities. From at least the 1970son, all three branches of government shared a common understanding that foreignintelligence collection and law enforcement were distinct executive functions. AlthoughFISA was designed to collect foreign intelligence information, it was understood thatsuch information could be used as evidence in a criminal prosecution so long asintelligence -- and not law enforcement -- was the "primary purpose" of the collection.

As the report describes, during the 1980s, the Department operated largelyunder a set of unwritten rules that limited the interaction between intelligence and law


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enforcement officials. Following the investigation of Aldrich Ames, however, aconfluence of legal, bureaucratic and cultural factors led to the development in the mid-1990s of written internal Department of Justice procedures that directly regulated theinteraction between law enforcement and intelligence officials in terrorism andespionage cases. These procedures were set forth in broad policy decisiondocuments, such a July 1995 Attorney General memorandum regarding FBI contactswith criminal prosecutors, as well as other more case-specific decisions that weretaken, such a March 1995 Deputy Attorney General memorandum setting forthprocedures for conducting a particular set of related criminal and intelligenceinvestigations.

These procedures were intended to permit a significant degree of interaction andinformation sharing between prosecutors and FBI agents in intelligence cases (so longas prosecutors did not direct or control the investigation toward law enforcementobjectives) while at the same time ensuring that the FBI would be able to obtain orcontinue FISA coverage and, later, use the fruits of that coverage in a criminalprosecution. The manner in which the written procedures were interpreted andimplemented, however, resulted in far more limited information sharing andcoordination between the two sides in practice than was allowed in theory under theDepartment's procedures. Due to concerns (or confusion) about when sharing waspermitted and a perception that improper information sharing could end a career --combined with inadequate information technology and cultural issues that furtherimpeded proper information sharing and coordination -- the exchange of informationbetween intelligence and law enforcement officials was not as robust as it could havebeen.II. Interpretations and Understandings of FISA bv the Legislative. Judicial, andExecutive Branches of Government

A. CongressTo begin with, FISA is an act of Congress. Until the USA PATRIOT Act, the

FISA statute provided that each application was required to contain a certification that"the purpose" of the surveillance or search was to obtain foreign intelligenceinformation. Because Congress elsewhere distinguished between law enforcement andintelligence functions of the executive, see, TheNational Security Act of 1947(50U.S.C. 403-3(d)(1))(the CIA "shall have no police, subpoena, or law enforcementpowers or internal security functions"), the interpretation that law enforcement andintelligence were distinct executive functions was widely shared within the intelligencecommunity.

B. Federal Courts

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Most courts interpreted FISA to mean that the "primary purpose" of thesurveillance had to be to collect foreign intelligence information -- something that wasviewed as distinct from "evidence" to be collected for use in a criminal prosecution.See, e.g., United States v.Johnson,952 F.2d 565, 572 (1st Cir. 1991), cert, denied, 506U.S. 816 (1992) ("Although evidence obtained under FISA subsequently may be usedin criminal prosecutions ... the investigation of criminal activity cannot be the primarypurpose of the surveillance.... The act is not to be used as an end-run around theFourth Amendment's prohibition of warrantless surveillances." (citations omitted));United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987), cert, denied, 485 U.S. 937(1988) (challenged surveillance "did not have as its purpose the primary objective ofinvestigating a criminal act," but "the valid purpose of acquiring foreign intelligenceinformation"); see also United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)(warrantless foreign intelligence surveillance was not permitted "once surveillancebecomes primarily a criminal investigation," or "when the government is primarilyattempting to form the basis for a criminal prosecution").

C. The Department of JusticeThe Department of Justice adhered to the "primary purpose" standard. InFebruary 1995, the Department's Office of Legal Counsel (OLC) opined that courtswould apply the primary purpose standard when reviewing the use of FISA in asubsequent criminal prosecution. OLC said that there was a sliding scale that alloweddiffering degrees of prosecutor involvement depending upon the case:We believe that courts, in passing on the admissibility of evidence gatheredpursuant to FISA searches, are likely to adhere to the use of the "primarypurpose" test.... Of course, the greater the involvement of prosecutors in theplanning and execution of FISA searches, the greater the chance that thegovernment could not assert in good faith that the "primary purpose" was thecollection of foreign intelligence. While the ultimate decision must be based on abalance of risks and rewards, we believe that there is enough elasticity to permitthe involvement of prosecutors without running an undue risk of having evidencesuppressed.... In view of the deference the courts are likely to give to thecertification of the Attorney General that the "primary purpose" of the search wasintelligence-gathering, both prudence and responsibility suggest that anappropriate internal process be set up to insure that FISA certifications areconsistent with the "primary purpose" test. One celebrated case of abusecould impair the courts' deferential standard, and perhaps more importantly,could impair congressional and public trust in the executive's responsible use ofwhat must be acknowledged to be expansive powers. (Emphasis added).Thus, OIPR did not create the interpretation and understanding of FISA that

served as the analytic foundation of the wall. On the contrary, all three branches of thefederal government shared a common legal understanding of the statute.

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III. Implementation of the Prevailing Legal UnderstandingsA. The Department of JusticeThe practical effect of the prevailing legal understandings discussed above, such

as specific procedures that were required for interactions between criminal prosecutorsand FBI agents (such as separate squads of agents for intelligence and criminalmatters) and on sharing intelligence information, were implemented directly by theDepartment's leadership, not by OIPR acting alone, and certainly not without theknowledge and approvalof the highest levels of the Department and the FBI.

At the highest levels of the Department, the Department's implementation of the"primary purpose" doctrine reflected the dichotomy between law enforcement andintelligence as discussed above. In particular, Department leadership imposed specificprocedures for interactions between intelligence and law enforcement officials withinthe Department (for example, requiring separate squads of FBI agents for intelligenceand law enforcement investigations); these restrictions were not imposed by OIPRacting alone, and were not implemented without the knowledge and approval of thehighest levels of theDepartment and the FBI. Consistent with the 1995 advice from OLC, AttorneysGeneral and Deputy Attorneys General established and/or maintained internalDepartment procedures to ensure compliance with the "primary purpose" test.1

1 As discussed elsewhere, in the early 1980s, the Department clearly took adifferent position, arguing that the primary purpose standard applied only in the contextof warrantless surveillance, and that it should not apply to surveillance authorized underFISA. See Implementation of the Foreign Intelligence Surveillance Act, H.R. Rep. No.98-738, 98th Cong., 2d Sess. 14 (1984); The Foreign Intelligence Surveillance Act of1978: The First Five Years, S. Rep. No. 98-660, 98th Cong., 2d Sess. 20, 12 (1984)(hereinafter, "Senate Five Year Report"). However, as stated in the government'ssupplemental brief filed with the FISA Court of Review, "[b]etween 1984 and 1993, thecourts generally applied the "primary purpose" test, and either assumed or adopted thedichotomy between intelligence and law enforcement under FISA." As a result, by1995, OLC advised that it was likely that courts would follow the primary purposedoctrine in evaluating the purpose of FISA collection.

In the Senate Five Year Report, the Senate Select Committee on Intelligenceopined, as a policy matter, rather than a legal one, that the Department should not useFISA primarily for law enforcement, at least against certain targets. Based on concernsthat FISA's definition of "international terrorism" could reach "persons whose activitiesare essentially a domestic law enforcement problem," the Committee recommendedthat "the Justice Department should use Title III when it is clear that the main concernwith respect to a terrorist group is domestic law enforcement and criminal prosecution,

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even if the surveillance will also produce some foreign intelligence information." SenateFive Year Report at 15 (emphasis added); see also id. at 20, 25. But the Committeerecognized that the issue was "left largely to the Executive branch," and that FISA"leaves the FBI and Justice Department with difficult choices and responsibilities." Id. at14.

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For example, the Deputy Attorney General approved the use of separateintelligence and criminal FBI agents in a terrorism case in March 1995 followingconsultations with OIPR and the United States Attorney for the Southern District of NewYork. This was done apparently to enable prosecutors to have extensiveinvolvement in the FBI's terrorism investigations without direct OIPR supervision(also referred to as "chaperoning"), while at the same time permitting the FBI toobtain FISA coverage. To be sure, the March 1995 memorandum called for specificprocedures designed to facilitate coordination between the squads - such as having aprosecutor review intelligence take and an FBI agent work on both squadssimultaneously - but such mechanisms were notalways used in later cases. In anyevent, the March 1995 memorandum appears to have launched the use of separatesquads and is thus relevant to events in 2001 (contrary to the report's assertions inChapter 8, page 30, n. 85).

As the Commission is well aware, the Attorney General promulgated the July 19,1995 "Procedures for Contacts between the FBI and the Criminal Division in ForeignIntelligence and Foreign Counterintelligence Investigations" (the 1995 Procedures). Asthe report correctly points out, the 1995 Procedures arose from concerns about thehandling of the Aldrich Ames case. There were concerns that extensive contactsbetween the FBI and prosecutors went too far, were not reported to the FISA court,jeopardized ongoing FISA collection because the FBI Director might not be able tocertify that the purpose of the surveillance was to obtain foreign intelligence information,and would lead to suppression of FISA evidence in any subsequent criminalprosecution of Ames. These concerns lead to the creation of the "chaperone"requirements in the 1995 procedures, and, were later reflected in the FISA court's May17, 2002 opinion. We note that after the Ames case, OIPR's original proposal toaddress this issue was to modify the Attorney General's FCI Guidelines to requirecoordination with OIPR - no "wall" was proposed.

Thus, the Department leadership played a central role in establishingDepartment policy with respect to the sharing of intelligence information, the nature ofthe relationship between criminal prosecutors and FBI agents investigating intelligencematters, and the need to apprize the FISA court of such matters.The 1995 Procedures required that the Criminal Division "ensure that advice

intended to preserve the option of a criminal prosecution does not inadvertently result ineither the fact or appearance of the Criminal Division's directing or controlling the[intelligence] investigation toward law enforcement objectives." Because the "fact orappearance" is vague, it was difficult for those implementing the 1995 Procedures todetermine whether a particular circumstance created an appearance problem. By itsvery nature, the "appearance" standard could be, and apparently was, interpreted in avariety of ways that resulted in confusion and disagreement within, and among,Department components. We note that the report inaccurately states that "the Renoprocedures applied only to FISA information." See Chapter 8, page 30, n. 85. In fact,

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the 1995 Procedures applied to all information collected by the FBI during foreignintelligence andforeign counterintelligence investigations - whether or not theinformation came from FISA or some other source - and applied in all such FBIinvestigations - whether or not FISA wasbeing used in a particular case.

Perhaps more significantly, Attorneys General modified - but did not replace -the 1995 Procedures after there were complaints about their implementation and effecton investigations. The 1995 Procedures were modified in 1997 when the United StatesAttorney's Office for the Southern District of New York complained that they undulyrestricted access to intelligence information in non-FISA cases. The 1995 procedureswere modified in minor ways in January 2000 after the Wen Ho Lee controversy cameto light following recommendations from the Principal Associate Deputy AttorneyGeneral. Assistant United States Attorney Randy Bellows, who was in charge of theAttorney General's Review Team established to investigate the Wen Ho Lee matter,had issued interim recommendations for even more extensive modifications to the 1995Procedures than were adopted. The Attorney General declined to modify the 1995Procedures in late 2000 in spite of recommendations from Randy Bellows and thePrincipal Associate Deputy Attorney General that the procedures required extensivemodification. OIPR did not concur in the recommendations, but was not the finaldecision-maker on the matter.

In early 2001, the Deputy Attorney General apparently did not forward to theAttorney General recommendations from his staff to overhaul the 1995 Procedures. Asthe Commission points out in Chapter 6, page 35, the Deputy Attorney Generalmodified andclarified - but did not replace - the 1995 Procedures inAugust 2001. Wealso note that there remained significant disagreement within the Department after 9/11about the 1995 Procedures even after 9/11.

In addition to issuing broad guidelines regarding the interaction betweenintelligence investigators and criminal prosecutors, the Department leadership alsoplayed a key role in individual cases that resulted subsequently in the adoption ofpolicies consistent with those determinations. For example, the Attorney Generalpersonally directed the termination of certain FISA surveillances in 1998 based uponher determination that related criminal investigative activities called into question theprimary purpose of the collection. Specifically, she directed the termination of certain alQaeda surveillances in the summer of 1998 when grand jury subpoenas were servedon two FISA targets because it was expected that they would be arrested following theirgrand jury testimony. This policy was followed with respect to subsequent cases, andeventually contributed to the Department's decision to file cases in the Millenniumperiod that included a "court wall." In addition, in the summer of 1998, the AttorneyGeneral directed that the then Counsel for Intelligence Policy recuse herself from asubset of al Qaeda FISAs related to the East Africa Embassy Bombing investigationsbecause of her extensive involvement in the criminal cases. The Counsel was notrecused from all al Qaeda matters, and, indeed, played an extensive role in theMillennium-related cases, among others. The Attorney General did not modify her

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decision before she left office, and the recusal remained in effect through May 2001when the Counsel departed.

More significantly, the Attorney General approved the filing of FISA applicationsthat included the use of "walls." Under the Act, no FISA application may be filed withoutthe approval of the Attorney General (or, under the statute, the Deputy AttorneyGeneral or Acting Attorney General). Prior to 9/11, all FISA applications were signed bythe Attorney General when in town.

As a result of the determinations referred to above, over time various walls wereestablished, ranging from FBI field office squad supervisors acting as the wall to caseswhere the court was the wall. In general, the level of the wall depended on two factors:(1) the non-law enforcement foreign intelligence value of the case; and (2) the level ofinvolvement of prosecutors in the case. The Department proposed the use of a "courtwall" in 1999 in order to ensure approval of certain cases related to the Millenniumthreat where there was a substantial nexus between the intelligence case and relatedcriminal matters. Again, walls were created to permit extensive interaction betweenAssistant United States Attorneys and FBI agents working the criminal aspects of aparticular matter, and, at the same time, allow the FBI to obtain FISA coverage on thesame or related targets. And OIPR implemented these policies under the supervisionof the Department leadership.

B. The FISA CourtIn addition to adhering to the law, as interpreted by the federal courts insubsequent criminal cases, and following Department policies, OIPR also followed therulings of the FISA court. For example, in October 2000, the FISA court initiated theidea of the certification requirement and ordered it only after consulting with the FBI

about potential negative effects of such a requirement. The FBI declarant on the caseat issue (the chief of the FBI's International Terrorism Operation Section) said that itwould be no problem administering it. We note that the court modified the certificationrequirement as soon as the Department so requested with respect to CIA and NSA.Instead of a certification requirement, it was agreed that NSA and CIA would put anappropriate caveat on their reports that contained FISA information. The court did notrequire a caveat on reports that did not contain FISA information. Nevertheless, NSAdecided to put a caveat on all of its terrorism reporting because it was too difficult totrack the origin of all material reflected in a report in real time. At the time, NSA had anindependent interest in limiting dissemination of its reports to prosecutors because ithad concluded that such disclosures in the past had resulted in the compromise ofsensitive collection techniques. Once problems with the caveat were highlighted, OIPRworked extensively to resolve issues related to the caveat at the request of theDepartment's Criminal Division.

The certification requirement resulted because FISC wanted accountability forerrors in future FISA applications in light of the revelation of errors that had occurred in-9-


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the past. Court did not bar agents from appearing before the court in November 2000,even though it considered that option, because of the negative impact the courtassessed it such action would have on the FBI's international terrorism program. Thecourt became concerned that the FBI did not take the matter of accuracy as seriouslyas did the court. When another agent submitted FISA declarations containinginaccurate information in March 2001, the court took action to send a message to theFBI.IV. The Wall and Permissible Information Sharing

Finally, with respect to information sharing in general, we submit that "the Wall"had doors and windows, and that intelligence sharing was permitted under the primarypurpose doctrine. Information was shared during the relevant time period inaccordance with each applicable wall. The main concern of the Department and theFISA court was direction and control of the intelligence investigation by prosecutors, notsharing of intelligence information with law enforcement authorities. Of course, totaland immediate sharing could be viewed as a problem if there was no non-lawenforcement foreign intelligence use made of the information.The 1995 Attorney General Procedures (as amended), the 1995 Deputy AttorneyGeneral Procedures, and the rulings of the FISA court and other federal courts, all

permitted the sharing of information obtained from FISA collection with criminalinvestigators andprosecutors. The 1995 Procedures permitted - and, indeed, required- intelligence sharing so long as prosecutors did not direct or control intelligenceinvestigations using FISA. Prior to 9/11, the FISA court approved cases where therewas extensive prosecutor interaction with FBI agents, provided that: (a) OIPR waspresent during interactions; or (b) there was a separation of some sort between theprosecutors and the intelligence investigators. In the Robert Hanssen case, the FISAcourt approved applications right up until the time of arrest because the non-lawenforcement foreign intelligence purpose of the collection was clear and OIPR wasinvolved in the meetings between the prosecutors and FBI agents. The court wascomfortable that it understood all aspects of the case that were material to thecertification regarding the purpose of the collection. In addition, the FISA courtapproved all cases in which the Department proposed separate investigations.

It is important to note that separate investigations were not required in all caseswhere the potential for criminal prosecution was high, so long as the appropriateDepartment procedures (such as the July 1995 Attorney General Procedures discussedbelow) were followed. The FBI never had separate investigations in espionage casesbecause prosecutors were not permitted to direct or control the investigation. Forexample, in the Earl Pitts investigation, the Principal Associate Deputy Attorney Generaldetermined that the Criminal Division and the United States Attorney's Office for theEastern District of Virginia could not direct or control the investigation even after arrestwarrants were prepared following Pitts's discovery of a surveillance device and therewas fear that he would flee.

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After 9/11, the FISA court approved cases w here there w as extensive prosecutorinteraction with FBI intelligence agents because the court was personally briefed byDirector Mueller on 9/12 that he was directing and controlling the investigations in orderto provide the President with the information that he needed to make critical nationalsecurity and fore ign policy decisions for the country, including decisions about whetherto go to war and, if so, with whom. The c ertification requirement and the court wallwere removed on September 15, 2001. The FISA court did not issue orde rs requiringthe governme nt to follow the A ttorney General's 1995 Procedures until after theeffective date of the U SA PATRIOT Act.The FISA court always approved sharing whe re there w as a court wall,approving all government motions to pass information over the wall. The court alsoretroactively approved sharing that the Department had already engaged in via motionsrequesting "nunc pro tune" approval. The court approved expe dited o ral motions aswell.

V . ConclusionFinally, the facto rs that we re required eventually to remove the wall are evidencethat the wall did not exist mere ly because of OIPR intransigence. These facto rs are:(1) the 9/11 attacks; (2) an Act of Cong ress (USA PAT RIOT A ct); (3) adoption of newAttorney Gene ral procedures in March 2002 and a motion to the FISA cou rt seekingapproval to use the new procedures in all cases; (4) the first-ever published opinion bythe FISA court - signed by all of the members of the court at that time - rejecting thene w Attorne y General procedures in part and ordering the Department to follow amodified ve rsion of the 1995 A ttorney General P rocedures; (5) the first-ever appeal bythe Department to FISA Court of Review (with oral argument by the S olicitor Generalhimself); and (6) the f irst-ever opinion by the FISA Court of Review reversing the lowercourt.

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sk b9 agency comments 2 of 2 fdr- doj comments on the wall 165

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