Comments on "The Wall"

The following comments address the discussion in Chapter 3 of the

Commission's report, entitled "Counterterrorism Evolves." These comments focus on
the discussion found at pages 9-11 regarding "Legal Constraints on the FBI and 'the
Wall.'" Other Commission comments on the wall and the role of the Office of
Intelligence Policy and Review (OIPR) are found in Chapter 6, page 35, and in Chapter
8, pages 14, 16, and, in particular, page 30 footnote 85. This document responds to
those pages as well.

The Commission's report can be read to suggest that OIPR itself, without
supervision from Department leadership, undermined Departmental directives and
maintained "the wall" on its own, determining the course of the FISA program and the
disposition of individual FISA applications. For example, in Chapter 3, page 10 and
related footnotes, the Commission makes, among others, the following comments
regarding OIPR's role with respect to information sharing: "The Office of Intelligence
Policy and Review became the gatekeeper for the flow of FISA information to criminal
prosecutors"; "The Office of Intelligence Policy and Review began to drive a wedge
between intelligence and criminal matters"; "[OIPR] had sole authority to decide what
was presented to the FISC and therefore it wielded extraordinary power in the FISA
process"; "Some barriers were proposed by OIPR in the FISA applications and
subsequently adopted by the FISC."

We submit that these comments overstate the role OIPR played in the FISA
process in that they portray an organization that developed its own interpretation of the
law and Department policies, and enforced that interpretation without supervision by
Department leadership. Instead, we submit that OIPR followed a widely accepted
interpretation of the law, and adhered to Department policies regarding: (1) the sharing
of intelligence information with criminal prosecutors, and (2) the nature of the
relationship between criminal prosecutors and intelligence agents that was permitted
under the prevailing view of the law.

I. Introduction

What came to be known as "the wall" separating law enforcement and

intelligence officials in the conduct of their duties has it origins in constitutional
principles, legislative enactments and reports, and judicial rulings, and in executive
branch understandings and interpretations of those authorities. From at least the 1970s
on, all three branches of government shared a common understanding that foreign
intelligence collection and law enforcement were distinct executive functions. Although
FISA was designed to collect foreign intelligence information, it was understood that
such information could be used as evidence in a criminal prosecution so long as
intelligence -- and not law enforcement -- was the "primary purpose" of the collection.

As the report describes, during the 1980s, the Department operated largely
under a set of unwritten rules that limited the interaction between intelligence and law
enforcement officials. Following the investigation of Aldrich Ames, however, a
confluence of legal, bureaucratic and cultural factors led to the development in the mid-
1990s of written internal Department of Justice procedures that directly regulated the
interaction between law enforcement and intelligence officials in terrorism and
espionage cases. These procedures were set forth in broad policy decision
documents, such a July 1995 Attorney General memorandum regarding FBI contacts
with criminal prosecutors, as well as other more case-specific decisions that were
taken, such a March 1995 Deputy Attorney General memorandum setting forth
procedures for conducting a particular set of related criminal and intelligence
investigations.

These procedures were intended to permit a significant degree of interaction and

information sharing between prosecutors and FBI agents in intelligence cases (so long
as prosecutors did not direct or control the investigation toward law enforcement
objectives) while at the same time ensuring that the FBI would be able to obtain or
continue FISA coverage and, later, use the fruits of that coverage in a criminal
prosecution. The manner in which the written procedures were interpreted and
implemented, however, resulted in far more limited information sharing and
coordination between the two sides in practice than was allowed in theory under the
Department's procedures. Due to concerns (or confusion) about when sharing was
permitted and a perception that improper information sharing could end a career --
combined with inadequate information technology and cultural issues that further
impeded proper information sharing and coordination -- the exchange of information
between intelligence and law enforcement officials was not as robust as it could have
been.

II. Interpretations and Understandings of FISA bv the Legislative. Judicial, and

Executive Branches of Government

A. Congress

To 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 intelligence
information. Because Congress elsewhere distinguished between law enforcement and
intelligence functions of the executive, see, The National Security Act of 1947(50
U.S.C. 403-3(d)(1))(the CIA "shall have no police, subpoena, or law enforcement
powers or internal security functions"), the interpretation that law enforcement and
intelligence were distinct executive functions was widely shared within the intelligence
community.

B. Federal Courts

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 Most courts interpreted FISA to mean that the "primary purpose" of the
surveillance had to be to collect foreign intelligence information -- something that was
viewed 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, 506
U.S. 816 (1992) ("Although evidence obtained under FISA subsequently may be used
in criminal prosecutions . . . the investigation of criminal activity cannot be the primary
purpose of the surveillance.... The act is not to be used as an end-run around the
Fourth 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 of
investigating a criminal act," but "the valid purpose of acquiring foreign intelligence
information"); see also United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)
(warrantless foreign intelligence surveillance was not permitted "once surveillance
becomes primarily a criminal investigation," or "when the government is primarily
attempting to form the basis for a criminal prosecution").

C. The Department of Justice

The Department of Justice adhered to the "primary purpose" standard. In

February 1995, the Department's Office of Legal Counsel (OLC) opined that courts
would apply the primary purpose standard when reviewing the use of FISA in a
subsequent criminal prosecution. OLC said that there was a sliding scale that allowed
differing degrees of prosecutor involvement depending upon the case:

We believe that courts, in passing on the admissibility of evidence gathered

pursuant to FISA searches, are likely to adhere to the use of the "primary
purpose" test.... Of course, the greater the involvement of prosecutors in the
planning and execution of FISA searches, the greater the chance that the
government could not assert in good faith that the "primary purpose" was the
collection of foreign intelligence. While the ultimate decision must be based on a
balance of risks and rewards, we believe that there is enough elasticity to permit
the involvement of prosecutors without running an undue risk of having evidence
suppressed.... In view of the deference the courts are likely to give to the
certification of the Attorney General that the "primary purpose" of the search was
intelligence-gathering, both prudence and responsibility suggest that an
appropriate internal process be set up to insure that FISA certifications are
consistent with the "primary purpose" test. One celebrated case of abuse
could impair the courts' deferential standard, and perhaps more importantly,
could impair congressional and public trust in the executive's responsible use of
what 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 the
federal government shared a common legal understanding of the statute.

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III. Implementation of the Prevailing Legal Understandings

A. The Department of Justice

The practical effect of the prevailing legal understandings discussed above, such
as specific procedures that were required for interactions between criminal prosecutors
and FBI agents (such as separate squads of agents for intelligence and criminal
matters) and on sharing intelligence information, were implemented directly by the
Department's leadership, not by OIPR acting alone, and certainly not without the
knowledge and approval
of 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 and
intelligence as discussed above. In particular, Department leadership imposed specific
procedures for interactions between intelligence and law enforcement officials within
the Department (for example, requiring separate squads of FBI agents for intelligence
and law enforcement investigations); these restrictions were not imposed by OIPR
acting alone, and were not implemented without the knowledge and approval of the
highest levels of the
Department and the FBI. Consistent with the 1995 advice from OLC, Attorneys
General and Deputy Attorneys General established and/or maintained internal
Department procedures to ensure compliance with the "primary purpose" test.1

1 As discussed elsewhere, in the early 1980s, the Department clearly took a

different position, arguing that the primary purpose standard applied only in the context
of warrantless surveillance, and that it should not apply to surveillance authorized under
FISA. 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 of
1978: 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's
supplemental brief filed with the FISA Court of Review, "[b]etween 1984 and 1993, the
courts generally applied the "primary purpose" test, and either assumed or adopted the
dichotomy between intelligence and law enforcement under FISA." As a result, by
1995, OLC advised that it was likely that courts would follow the primary purpose
doctrine in evaluating the purpose of FISA collection.

In the Senate Five Year Report, the Senate Select Committee on Intelligence
opined, as a policy matter, rather than a legal one, that the Department should not use
FISA primarily for law enforcement, at least against certain targets. Based on concerns
that FISA's definition of "international terrorism" could reach "persons whose activities
are essentially a domestic law enforcement problem," the Committee recommended
that "the Justice Department should use Title III when it is clear that the main concern
with 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." Senate
Five Year Report at 15 (emphasis added); see also id. at 20, 25. But the Committee
recognized 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. at
14.

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 For example, the Deputy Attorney General approved the use of separate
intelligence and criminal FBI agents in a terrorism case in March 1995 following
consultations with OIPR and the United States Attorney for the Southern District of New
York. This was done apparently to enable prosecutors to have extensive
involvement in the FBI's terrorism investigations without direct OIPR supervision
(also referred to as "chaperoning"), while at the same time permitting the FBI to
obtain FISA coverage. To be sure, the March 1995 memorandum called for specific
procedures designed to facilitate coordination between the squads - such as having a
prosecutor review intelligence take and an FBI agent work on both squads
simultaneously - but such mechanisms were not always used in later cases. In any
event, the March 1995 memorandum appears to have launched the use of separate
squads and is thus relevant to events in 2001 (contrary to the report's assertions in
Chapter 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 Foreign
Intelligence and Foreign Counterintelligence Investigations" (the 1995 Procedures). As
the report correctly points out, the 1995 Procedures arose from concerns about the
handling of the Aldrich Ames case. There were concerns that extensive contacts
between 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 to
certify that the purpose of the surveillance was to obtain foreign intelligence information,
and would lead to suppression of FISA evidence in any subsequent criminal
prosecution 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 May
17, 2002 opinion. We note that after the Ames case, OIPR's original proposal to
address this issue was to modify the Attorney General's FCI Guidelines to require
coordination with OIPR - no "wall" was proposed.

Thus, the Department leadership played a central role in establishing

Department policy with respect to the sharing of intelligence information, the nature of
the relationship between criminal prosecutors and FBI agents investigating intelligence
matters, 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 in
either the fact or appearance of the Criminal Division's directing or controlling the
[intelligence] investigation toward law enforcement objectives." Because the "fact or
appearance" is vague, it was difficult for those implementing the 1995 Procedures to
determine whether a particular circumstance created an appearance problem. By its
very nature, the "appearance" standard could be, and apparently was, interpreted in a
variety of ways that resulted in confusion and disagreement within, and among,
Department components. We note that the report inaccurately states that "the Reno
procedures 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 foreign
intelligence and foreign counterintelligence investigations - whether or not the
information came from FISA or some other source - and applied in all such FBI
investigations - whether or not FISA was being 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 effect
on investigations. The 1995 Procedures were modified in 1997 when the United States
Attorney's Office for the Southern District of New York complained that they unduly
restricted access to intelligence information in non-FISA cases. The 1995 procedures
were modified in minor ways in January 2000 after the Wen Ho Lee controversy came
to light following recommendations from the Principal Associate Deputy Attorney
General. Assistant United States Attorney Randy Bellows, who was in charge of the
Attorney General's Review Team established to investigate the Wen Ho Lee matter,
had issued interim recommendations for even more extensive modifications to the 1995
Procedures than were adopted. The Attorney General declined to modify the 1995
Procedures in late 2000 in spite of recommendations from Randy Bellows and the
Principal Associate Deputy Attorney General that the procedures required extensive
modification. OIPR did not concur in the recommendations, but was not the final
decision-maker on the matter.

In early 2001, the Deputy Attorney General apparently did not forward to the
Attorney General recommendations from his staff to overhaul the 1995 Procedures. As
the Commission points out in Chapter 6, page 35, the Deputy Attorney General
modified and clarified - but did not replace - the 1995 Procedures in August 2001. We
also note that there remained significant disagreement within the Department after 9/11
about the 1995 Procedures even after 9/11.

In addition to issuing broad guidelines regarding the interaction between

intelligence investigators and criminal prosecutors, the Department leadership also
played a key role in individual cases that resulted subsequently in the adoption of
policies consistent with those determinations. For example, the Attorney General
personally directed the termination of certain FISA surveillances in 1998 based upon
her determination that related criminal investigative activities called into question the
primary purpose of the collection. Specifically, she directed the termination of certain al
Qaeda surveillances in the summer of 1998 when grand jury subpoenas were served
on two FISA targets because it was expected that they would be arrested following their
grand jury testimony. This policy was followed with respect to subsequent cases, and
eventually contributed to the Department's decision to file cases in the Millennium
period that included a "court wall." In addition, in the summer of 1998, the Attorney
General directed that the then Counsel for Intelligence Policy recuse herself from a
subset of al Qaeda FISAs related to the East Africa Embassy Bombing investigations
because of her extensive involvement in the criminal cases. The Counsel was not
recused from all al Qaeda matters, and, indeed, played an extensive role in the
Millennium-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 2001
when the Counsel departed.

More significantly, the Attorney General approved the filing of FISA applications
that included the use of "walls." Under the Act, no FISA application may be filed without
the approval of the Attorney General (or, under the statute, the Deputy Attorney
General or Acting Attorney General). Prior to 9/11, all FISA applications were signed by
the Attorney General when in town.

As a result of the determinations referred to above, over time various walls were
established, ranging from FBI field office squad supervisors acting as the wall to cases
where 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 of
involvement of prosecutors in the case. The Department proposed the use of a "court
wall" in 1999 in order to ensure approval of certain cases related to the Millennium
threat where there was a substantial nexus between the intelligence case and related
criminal matters. Again, walls were created to permit extensive interaction between
Assistant United States Attorneys and FBI agents working the criminal aspects of a
particular matter, and, at the same time, allow the FBI to obtain FISA coverage on the
same or related targets. And OIPR implemented these policies under the supervision
of the Department leadership.

B. The FISA Court

In addition to adhering to the law, as interpreted by the federal courts in

subsequent criminal cases, and following Department policies, OIPR also followed the
rulings of the FISA court. For example, in October 2000, the FISA court initiated the
idea 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 case
at issue (the chief of the FBI's International Terrorism Operation Section) said that it
would be no problem administering it. We note that the court modified the certification
requirement 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 an
appropriate caveat on their reports that contained FISA information. The court did not
require a caveat on reports that did not contain FISA information. Nevertheless, NSA
decided to put a caveat on all of its terrorism reporting because it was too difficult to
track the origin of all material reflected in a report in real time. At the time, NSA had an
independent interest in limiting dissemination of its reports to prosecutors because it
had concluded that such disclosures in the past had resulted in the compromise of
sensitive collection techniques. Once problems with the caveat were highlighted, OIPR
worked extensively to resolve issues related to the caveat at the request of the
Department's Criminal Division.

The certification requirement resulted because FISC wanted accountability for

errors in future FISA applications in light of the revelation of errors that had occurred in

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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 court
assessed it such action would have on the FBI's international terrorism program. The
court became concerned that the FBI did not take the matter of accuracy as seriously
as did the court. When another agent submitted FISA declarations containing
inaccurate information in March 2001, the court took action to send a message to the
FBI.

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 primary
purpose doctrine. Information was shared during the relevant time period in
accordance with each applicable wall. The main concern of the Department and the
FISA court was direction and control of the intelligence investigation by prosecutors, not
sharing of intelligence information with law enforcement authorities. Of course, total
and immediate sharing could be viewed as a problem if there was no non-law
enforcement foreign intelligence use made of the information.

The 1995 Attorney General Procedures (as amended), the 1995 Deputy Attorney
General Procedures, and the rulings of the FISA court and other federal courts, all
permitted the sharing of information obtained from FISA collection with criminal
investigators and prosecutors. The 1995 Procedures permitted - and, indeed, required
- intelligence sharing so long as prosecutors did not direct or control intelligence
investigations using FISA. Prior to 9/11, the FISA court approved cases where there
was extensive prosecutor interaction with FBI agents, provided that: (a) OIPR was
present during interactions; or (b) there was a separation of some sort between the
prosecutors and the intelligence investigators. In the Robert Hanssen case, the FISA
court approved applications right up until the time of arrest because the non-law
enforcement foreign intelligence purpose of the collection was clear and OIPR was
involved in the meetings between the prosecutors and FBI agents. The court was
comfortable that it understood all aspects of the case that were material to the
certification regarding the purpose of the collection. In addition, the FISA court
approved all cases in which the Department proposed separate investigations.

It is important to note that separate investigations were not required in all cases
where the potential for criminal prosecution was high, so long as the appropriate
Department procedures (such as the July 1995 Attorney General Procedures discussed
below) were followed. The FBI never had separate investigations in espionage cases
because prosecutors were not permitted to direct or control the investigation. For
example, in the Earl Pitts investigation, the Principal Associate Deputy Attorney General
determined that the Criminal Division and the United States Attorney's Office for the
Eastern District of Virginia could not direct or control the investigation even after arrest
warrants were prepared following Pitts's discovery of a surveillance device and there
was fear that he would flee.

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 After 9/11, the FISA court approved cases where there was extensive prosecutor
interaction with FBI intelligence agents because the court was personally briefed by
Director Mueller on 9/12 that he was directing and controlling the investigations in order
to provide the President with the information that he needed to make critical national
security and foreign policy decisions for the country, including decisions about whether
to go to war and, if so, with whom. The certification requirement and the court wall
were removed on September 15, 2001. The FISA court did not issue orders requiring
the government to follow the Attorney General's 1995 Procedures until after the
effective date of the USA PATRIOT Act.

The FISA court always approved sharing where there was a court wall,
approving all government motions to pass information over the wall. The court also
retroactively approved sharing that the Department had already engaged in via motions
requesting "nunc pro tune" approval. The court approved expedited oral motions as
well.

V. Conclusion

Finally, the factors that were required eventually to remove the wall are evidence
that the wall did not exist merely because of OIPR intransigence. These factors are:
(1) the 9/11 attacks; (2) an Act of Congress (USA PATRIOT Act); (3) adoption of new
Attorney General procedures in March 2002 and a motion to the FISA court seeking
approval to use the new procedures in all cases; (4) the first-ever published opinion by
the FISA court - signed by all of the members of the court at that time - rejecting the
new Attorney General procedures in part and ordering the Department to follow a
modified version of the 1995 Attorney General Procedures; (5) the first-ever appeal by
the Department to FISA Court of Review (with oral argument by the Solicitor General
himself); and (6) the first-ever opinion by the FISA Court of Review reversing the lower
court.

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