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Folder Title: Fitzgerald

Document Date: 10-11-2001
Document Type: Memorandum
Special Media:
From: Patrick Fitzgerald
To: Larry Thompson

Subject: re: Bin Laden investigation

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 Patrick Fitzgerald Questions

[assumes prior questioners have covered his background and his work on terrorism cases
while an Assistant United States Attorney in the Southern District of New York]

October 11.2001 Memorandum to the Attorney General

• We have seen your memorandum of October 11, 2001 to the Deputy Attorney /Y}fy ' f jlv ta
General. In many respects, it is an intelligence report, pulling together the , j^ . '
statements of many "sources." Did you think that there was no other way for the 0w*nQt
DAG to become aware of this information unless you pulled it together? jV<?r>JP

Have you seen any indication that information of "intelligence value" gathered by v^ 1
officials traditionally considered law enforcement officials is now being reported and -j- jL/v^ut, y-f£ u
disseminated to policymakers and intelligence analysts on a timely basis? I A i i\ f^/V"

Pre-9/11 FBI-DO J Cooperation and Coordination [/(AIM L

/*] Please describe your perception of the pre-9/11 working relationship between
^ Department of Justice prosecutors in U.S. Attorney's Offices and FBI agents in Field
Offices, and in particular the coordination and cooperation between the two in
terrorism investigations and prosecutions.
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( • ) How has this working relationship changed since 9/11? *\W$T^ '

• \e describe your experiences using, and the obstacles to using, criminal Q \e techniques, such as the g
(

methods, and offers of immunity from prosecution or the opportunity to plead to Gc\
reduced charges in exchange for cooperation, in terrorism investigations prior to the
9/11 attacks.
< -
• In your October 2 1 , 2003 testimony before the Senate Judiciary Committee you said 1
that taking down the FISA "wall" was "the single greatest change we needed" after
the 9/11 attacks - please explain why that is the case. Are further changes needed?

FISA Issues

• Please describe your understanding of the genesis and development of the "Wall"? Post-
9/11, the conventional wisdom seems to be that the Wall was unnecessary and not legally
required. What was your view prior to the FISA Court of Review decision of the Wall
and the policies and procedures that were created to maintain it? What was the view of
others in the Southern District and other parts of the Justice Department?

• While you were an AUSA were you aware of the problems that had surfaced in FISA
applications during the summer of 2000?
 Now that FISA-obtained information can be more freely used in criminal prosecutions, a
federal district court or court of appeals could disagree with the FISA Court of Review
and interpret the FISA statute, as amended by the PATRIOT Act, more restrictively.
What impact would such a ruling have on counterterrorism efforts within that district or
circuit?

USA PATRIOT Act

The USA PATRIOT Act has given the government new powers to combat terrorism but,
as you know, it has also caused concerns among some citizens. One area of concern is
whether special powers intended to be used to fight terrorism, such as FISA surveillance
under the "significant purpose" standard, could be misused in non-terrorism law
enforcement investigations. [An analogy here is the RICO statute, which was intended to
combat organized crime but came to be widely used for everything from business crimes
to abortion protests.] Do you believe these concerns have any merit?

If not, what internal Justice Department and FBI procedures ensure that special anti-
terrorism powers will not be misused?

What are your thoughts regarding the degree to which the Act appropriately
balances concerns for security and privacy/civil liberties. Do you think any of the
provisions go too far (i.e., that the benefit to security does not justify the loss of
privacy)?

• Sunset Provisions: A number of provisions of the PATRIOT Act will "sunset" in

December 2005 if Congress does not act to extend them or make them permanent (such
as section 215, the FISA business records provision, and section 218, the "significant
purpose" standard for FISA surveillance or searches).

o If these provisions are allowed to sunset, how significantly will it affect the
Government's ability to combat terrorism?

o Are certain of the sunset provisions more important than others in terms of
obtaining congressional extension?

o If section 218 is allowed to sunset and the standard for FISA goes back to the old
"primary purpose" standard, does the FISA Court of Review opinion provide
adequate authority for the Government to continue to combat terrorism
effectively?

o Is there a way to maintain some of these authorities and build in some added
protections to prevent the use of the more intrusive methods from being
introduced in non-terrorism related criminal trials?
Other Legal Issues

• Administrative Subpoenas: The President has said that Congress should pass a statute
giving the FBI an administrative subpoena power in anti-terrorism investigations, similar
to the administrative subpoena power the FBI has in some kinds of drug and health care
fraud investigations. The FBI already has authority to issue "National Security Letters"
in terrorism investigations to obtain three categories of information - telephone billing
information; consumer credit information; and financial institution information (now
broadly defined to include casinos, pawnshops, travel agents, vehicle sales, loan and
finance companies, and other kinds of personal financial records).

Why is the existing NSL authority inadequate and why is it essential that the FBI
be given broader administrative subpoena power?

Would the proposed administrative subpoena power be even broader than the
power under section 215 of the USA PATRIOT Act to obtain records from
businesses, libraries, etc. - which has been controversial and reportedly has not
yet been used - in that no prior judicial approval would be required for an
administrative subpoena, while section 215 requires prior approval by the FISA
Court? Why is broader administrative subpoena power necessary when section
215 is available?

• What kind and level of approval should be required for an FBI administrative subpoena -
internal FBI approval only (as for NSLs); approval by a Department of Justice attorney
(as for grand jury subpoenas); or some kind of judicial approval (as with FISA Court
approval under section 215 of the USA PATRIOT Act)?

• AG Guidelines. What is your assessment of the impact in the field of the recent
amendments to the Attorney General Guidelines? Are there areas where further
amendments are needed?

• Material Witness Statute. Prior to 9/11, to what extent did you use or consider the use
of the Material Witness statute to detain terrorist suspects?

Information Sharing. Resources. Government Organization Issues

Information Sharing: FBI-Intelligence Community. From your perspective, how

effective were the working relationships between the FBI and other agencies of the
intelligence community, and in particular the effectiveness of FBI's relationships with
CIA and NSA on counterterrorism matters prior to 9/11? How has this changed since
9/11?

• Resources. With respect to domestic intelligence collection to combat terrorism, some

experts have asserted that the need for additional resources may be greater than the need
for additional legal authorities at this time.
 • How do you assess the need for additional resources at this time, both at the
Department of Justice and at the FBI?

• Can you identify specific functions within the Justice Department and FBI where
additional resources would make the most difference - for example, technology
and computer systems; linguists and translation capability; or recruitment and
training of intelligence analysts?

MI-5. Some experts argue that having law enforcement agencies act as domestic
intelligence collectors is a good policy because law enforcement powers, particularly the
threat of criminal prosecution, give law enforcement agencies an ability to compel
information that intelligence agencies lack. Other experts argue that intelligence
collection and law enforcement are very different, and a focus on prosecution and the
collection of admissible evidence for trial hampers law enforcement agencies that also
collect intelligence/J'Do you have specific views on the ability of the FBI to perform
domestic intelligence collection while also acting as our country's lead federal law
enforcement agency?\J

)Overall Assessment of Current FBI Capabilities. What is your assessment, based

V / o n your experience as a federal prosecutor, of the FBI's current ability to detect,
disrupt, and prevent terrorist attacks upon the United States, including the FBI's
ability to perform its counterterrorism intelligence function?