IC21: The Intelligence Community in the 21st Century [More Gorelick conflict of Interest]

For years, the intelligence and law enforcement communities have maintained an uneven, and at times an antagonistic relationship. This is due partly to differences in the roles and cultures of the two communities, as both have different responsibilities and objectives, as well as expectations regarding information acquisition and management, and because of differing end uses for that information. There have been other factors that have affected the interaction between law enforcement and intelligence. During the 1970's, investigations into improper domestic intelligence activities uncovered some degree of overreaching of intelligence into domestic areas. One of the results of these investigations was that the two communities tended to further distance themselves from one another over concern about further inadvertent missteps. Then, beginning in the late 1980's, two banking scandals (BCCI -- Bank of Credit and Commerce International -- and BNL -- Banca Nazionale del Lavoro) highlighted deficiencies in information management within and between the two communities. Investigators from Congress and the Intelligence Community itself recommended that problems relating to coordination and information management be remedied.

Several other phenomena have focused the attention of the Committee and others on the future relationship between the two communities. Over the past 10 years, a number of statutes have been enacted that expand the extraterritorial responsibilities of U.S. law enforcement agencies. Frequently, these laws require FBI activity in areas that also are of significant intelligence interest -- narcotrafficking, terrorism and proliferation of weapons of mass destruction. Another factor bringing the intelligence and law enforcement closer together in recent years is that traditional crime issues such as international organized crime, illegal immigration, money laundering are becoming intelligence topics as they increasingly are viewed by policy makers as threats to U.S. national security.

Although the two cultures differ in their rules, objectives, procedures, use of human sources and standards relating to the quality and quantity of information they collect, a number of procedures can be established to improve communication and coordination within the framework of existing directives and statutes. We believe that there is no need to further clarify the National Security Act of 1947, as amended, or the subsequent Executive Orders. There is a flexibility in these laws that permits a reasonable, but well-bounded, range of interpretation that will allow for improved cooperation and coordination between law enforcement and intelligence without blurring important demarcations between the missions and authorities of the two communities.

For the last two years, a careful interagency review of these intelligence/law enforcement relationships has been carried out by the Joint Task Force on Intelligence and Law Enforcement (JICLE). The JICLE has focused on legal policy, operations, information management and judicial support, and has developed recommendations and procedures in all these areas. The contribution of the JICLE in trying to resolve the many issues related to intelligence support to law enforcement is important; the growing coordination and cooperation between the intelligence and law enforcement communities is partly a result of the Task Force's efforts. Training will be essential to bring about better understanding differences in the two communities' objectives and methods, and in establishing procedures by which the two communities can interface effectively.

Of these many issues relating to intelligence support to law enforcement, this study has focused on the issues of tasking, crimes reporting, liaison, coordination of activities and assets overseas, oversight, limits on searches of Intelligence Community files, training and the reporting of law enforcement investigatory information to Congress. The recommendations made in this study focus on legislation, resource issues and overseas coordination.

With the reduction in the Russian nuclear threat and a lessening of that nation's support for insurgencies around the world, the Intelligence Community has shifted more of its resources to focus on other problems of growing importance: proliferation of weapons of mass destruction; terrorism; drug trafficking and weapons transfers -- also topics of interest to the law enforcement community.

Although, some have argued that the end of the Cold War should have reduced the problems facing law enforcement and intelligence; in fact, the opposite is true. For example, the collapse of the Soviet Union about the breakdown of a degree of authoritarianism that had suppressed to a certain level the corruption and lawlessness in that country and its Eastern Bloc neighbors. These changes, as well as technological developments that have revolutionized processes for transferring information, goods and money, have helped to provide a fertile operational field for the transnational criminal.

In the past 10 years, drug trafficking and terrorism statutes have been enacted which expand the extraterritorial application of some aspects of U.S. criminal law. As a result, the numbers of law enforcement investigators abroad has increased. Law enforcement's expanded responsibilities overseas has led to a greater interest by law enforcement in Intelligence Community information, as well as the likelihood for interaction with intelligence communities overseas activities and responsibilities.

The National Security Act of 1947, as amended, specifically authorizes the Central Intelligence Agency (CIA) to collect intelligence through human sources and other appropriate means, except the CIA shall have no "police, subpoena, or law enforcement powers or internal security function." The intention of the law was to hold intelligence separate and distinct from law enforcement activities. At the time the Act was written, there was concern about creating a monolithic central security service that history -- and observations made of totalitarian states -- had taught us was undesirable in a democratic society.

Permissible intelligence collection activities were further clarified by President Reagan's 1981 Executive Order 12333. The order provided guidance to all intelligence agencies on the scope of allowable collection and other intelligence activities. Within the limits set out in the Order, the Intelligence Community is permitted to collect a large amount of foreign intelligence that is of interest to law enforcement. Section l.4c authorizes the intelligence agencies to undertake the "collection of information concerning, and the conduct of activities to protect against, intelligence activities directed against the United States, international terrorist and international narcotics activities, and hostile activities directed against the United States by foreign powers, organizations, persons or their agents." Thus, the Order empowers the Intelligence Community to collect and analyze intelligence on the foreign aspects of traditional law enforcement concerns such as narcotics production and trafficking, international terrorism and counterintelligence.

Even as the law enforcement and intelligence communities have increased contact due to overlapping interests, problems can arise relating to coordination and cooperation because the two communities possess different rules, objectives, different sources and methods, and different standards regarding the quality of information they collect. Traditionally, intelligence agencies collect political and military intelligence for policy makers; law enforcement investigators gather information for prosecutions. There are few rules governing intelligence gathering -- it generally involves activity abroad that is illicit or undertaken with the host government's covert cooperation and does not focus on U.S. citizens. By contrast, law enforcement focuses primarily within U.S. borders, territorial waters or airspace. In enforcing those United States laws having extraterritorial application, the law enforcement emphasis is upon crimes committed by U.S. nationals or upon illegal or foreign activities that affect U.S. national security, U.S. property or U.S. nationals. Law enforcement activity outside the United States and within other countries' borders is usually undertaken overtly in cooperation with the host government.

Further, the two communities have different expectations with regard to the information they gather. Law enforcement gathers information to build a case upon which criminals can be prosecuted and sent to jail. A criminal defendant is entitled, under the Sixth Amendment of the U.S. Constitution, to a speedy public trial. The Constitution guarantees a defendant notice of the charges against him, the right to confront his accusers, the right to counsel and the right to subpoena witnesses on his own behalf. Further, the prosecution must disclose to the accused any potentially exculpatory materials that it has in its possession. In public criminal trial proceedings, law enforcement information therefore should be unclassified, and reliable and accurate enough to establish proof beyond a reasonable doubt in a courtroom. (The 1980 Classified Information Procedures Act (CIPA) provides for certain pretrial, trial and appellate procedures for criminal cases involving classified information. CIPA is designed to take into account the sometimes competing needs of the prosecution, the constitutional rights of the criminal defendant, and the national security concerns of the Intelligence Community.)

In contrast to law enforcement, the Intelligence Community gathers tremendous amounts of information based on a complex set of needs and requirements established by the policy makers it supports. This information can be collected simply to develop understanding of an issue, not necessarily in preparation for an action. Unlike law enforcement information, much of this data is of questionable reliability and obtained only on the understanding that it will not become public knowledge. The collected information is reviewed and evaluated by intelligence collectors and analysts who gauge its reliability and accuracy.

By contrast, law enforcement investigators and prosecutors obtain their case information from interviews, statements and affidavits from prospective witnesses, searches, physical or electronic surveillance, documentary information obtained for a variety of sources, grand jury proceedings and informants. Their investigative techniques must comply with constitutional mandates such as the Fourth Amendment's general prohibition against unreasonable searches and seizures and, absent circumstances fitting within specific exceptions to the general rule, its warrant requirement. Judicial decisions, statutory language, Attorney General guidelines and other internal directives may also clarify appropriate investigative limits and techniques. The statutory standards for physical searches and electronic surveillance in the foreign intelligence context differ from those applicable in a criminal investigation.

Law enforcement informant information can come from either long or short-term human sources. Long-term informants may be used to assist in a prolonged investigation of complex criminal activities or of a criminal organization, or they may be used for their assistance in more than one investigation. These valuable sources are seldom revealed in prosecutions. Instead, law enforcement investigators may develop informants whose contributions are expected to be more short-term in nature. These informants supply case-related information, and their relationship with law enforcement generally terminates when the case is closed. By contrast, human intelligence sources are almost all long-term assets recruited overseas by case officers. Additional intelligence comes from national collection capabilities that include imagery, communications and signals intelligence. These collectors gather a myriad of information -- but they are designed to be long-term capabilities to collect against certain types of targets. The key to their longevity is the understanding that they will not be compromised, such as could be the case if the information is used improperly in a law enforcement action or the source is required to testify before a grand jury or court.

Over the past 50 years, the intelligence and law enforcement communities have operated in largely different spheres, separated by mission, culture, scope of activity and law. Several major changes have occurred within the past decade that have complicated this fundamental orientation of the two, pushing them further apart or closer together. In the 1970's, scandals that involved overreaching into U.S. domestic areas by the Intelligence Community and improper domestic intelligence activities by the Law Enforcement Community were uncovered by the Watergate, Rockefeller, Church and Pike Investigations. A number of reforms came out of these investigations. One of the unwritten but significant side effects of these investigations was behavioral in nature. The years that followed the investigations were marked by some reluctance on the part of the two cultures to form interactive relationships. This over-caution was based more a perception that closer association meant increased political risk than having any basis in prohibition of law.

Since the late 1980's, several additional events have occurred that have led up to the changes in the relationship that are now occurring.

BCCI and BNL Cases: The Need for Better Intelligence and Law Enforcement Cooperation

In the late 1980's and early 1990's, there were two notable financial scandals of international dimension that highlighted problems with intelligence and law enforcement information management. In the BCCI (Bank of Credit and Commerce International) case, the CIA had used the bank for its own purposes, but also reported on the illegal activities of that organization. Investigators found the CIA reports were not made in a manner to focus law enforcement agencies on the violations occurring. A report on the BCCI affair made by two Senators to the Senate Foreign Relations Committee found that CIA analysts had failed to grasp the significance of the information they had before them as it related to violations of international banking law. Another finding was that CIA reports had not been provided to relevant agencies in a consistent manner.

In the BNL (Banca Nazionale del Lavoro of Italy) case, similar problems were uncovered. Over time, the CIA had developed a number of intelligence reports and analytical products regarding the BNL. When asked by investigators to produce a compilation of these materials, the CIA found it difficult to retrieve all relevant material in its various files. Moreover, what the CIA had provided to the Justice Department and others had been disseminated in an ad hoc fashion, a matter made worse by poor record keeping. For its part, the Justice Department was unable to retrieve records of the intelligence that had been provided to it by the CIA. The intelligence that had been provided by the CIA had been misplaced or forgotten until subsequent searches by both the Justice Department and the CIA uncovered material that probably should have been produced for the defendant or the court.

The findings of the Senate investigations of BCCI and BNL concluded that there was a need for better information management on the part of the CIA and the Justice Department. In its investigation of the BNL matter, the Senate Intelligence Committee also called for better coordination between the law enforcement and intelligence communities and for more and improved law enforcement access to intelligence files. Congressional pressure for change and the growing recognition by both communities that, because of changing law enforcement jurisdictions and world developments, the two would be working in closer proximity to each other, prompted the formation of an interagency task force to work on these problems and other issues of concern. That initial task force, and the one that followed, found this job to be larger and more complicated than anyone had anticipated.

The first task force was begun in 1993, at the behest of then Director of Central Intelligence James Woolsey and Acting Attorney General Stuart Gersen. This interagency group was headed up by Deputy Attorney General Mark Richard and CIA's General Counsel, Elizabeth Rindskopf. The task force's mission was to consider the broad range of issues that affected intelligence and law enforcement community interaction and what measures could be taken to improve coordination, with particular focus on the problems brought out in the BCCI and BNL investigations. In August 1994, the task force issued a report that included 23 recommendations to improve coordination, including the establishment of liaison offices to provide prosecutors with a better understanding of what intelligence support is appropriate. Although the report concluded that both intelligence and law enforcement have "sufficient legislative and regulatory authorities to cooperate effectively," the task force did not provide concrete resolutions of coordination issues. Rather, it recommended that working groups be formed to continue to resolve the problems outlined by the task force.

In early 1995, several groups were formed to carry out the first Richard/Rindskopf recommendations. The Intelligence Community-Law Enforcement Policy Board was established in May to meet quarterly on issues of mutual concern to the Attorney General and the DCI. The Board is co-chaired by DDCI George Tenet and Deputy Attorney General Jamie Gorelick. Membership on the Board includes all of the law enforcement and intelligence agencies, the Assistant Secretary of State for Intelligence and Research and the Defense Department's General Counsel.

Two working level groups were established to report to the Policy Board. The first is the JICLE or Joint Intelligence Community-Law Enforcement working group. This group's job is to address the specific problems identified in the Rindskopf-Richard report. A second group, the Special Task Force on Law Enforcement-Intelligence Community Coordination, has the responsibility of developing guidelines for overseas coordination between the two communities.

In the past few years, the physical and functional separation of law enforcement and intelligence has lessened. One impetus to a closer relationship has been deficiencies in information sharing brought out by the BCCI and BNL investigations. But there are also other factors that have been pushing the two communities into a closer relationship. There has been a major shift in the world order that has taken place since the fall of the Soviet Union and the end of the Cold War. There have also been changes in law responding to transnational criminal activities that are increasingly affecting the United States.

The world of the 21st Century is one that will be increasingly interconnected. The speed of transportation, efficiencies in the movement of goods and the electronic transmission of information and money represent new mediums in which transnational activities -- legal or illegal -- can flourish. The criminal enterprises that will thrive in a globalized world will inevitably cross many nations' borders. More than ever before, law enforcement agencies are finding that crimes are being visited upon the citizens of one nation by the residents of another.

Some of the more significant criminal activities that are of greatest concern to policy makers are illegal finance activities (including money laundering), car theft rings, the movement of prohibited goods, precursor chemicals, nuclear, biological or chemical weapons, and illegal toxic waste dumping. In addition, crimes such as drug trafficking, money laundering and alien smuggling that were typically of national or regional effect only a few years ago now cause problems worldwide.

There is a limited inventory of federal extraterritorial jurisdiction that includes crimes committed aboard American ships or planes; offenses which imperil or misuse our foreign commerce with other nations; misconduct, like genocide, terrorism or air piracy; overseas theft or destruction of the property of the U.S. government; the use of violence against its officers or employees, or the obstruction or corruption of the functioning of its agencies overseas. Finally, there is federal extraterritorial jurisdiction over activities outside the U.S. that result in or are intended to result in harm within the U.S., such as drug trafficking. There are also state crimes that can have extraterritorial application. These vary from state to state and include misconduct such as theft, murder or conspiracy. State laws tend to be more detailed and restrictive in purpose and interpretation.

The internationalization of crime can create a security gap for any nation. The detrimental effects of crime can be proportionately greater in smaller nations, and particularly threatening to emerging democracies. For example, most nations today are struggling with fiscal deficits. Money laundering and other criminal activities compound debt problems because very large sums of money are lost as taxable revenue. Corruption and bribery, caused by and causing criminal activities, can stand in the way of legislating effective enforcement laws. Corruption and illegal activities can stymie pro-democracy efforts because of the pressure debt problems can put on an economy and social welfare. Moreover, the presence of significant criminal activity can make it difficult for a nation to attract the commercial investment needed to make its economy grow. Thus, the inability of countries to deal with crime has a destabilizing effect; also, the criminal activities taking place within their borders can have a reach far beyond those borders.

In order to put the international wrong-doers out of business, all affected nations must be willing and prepared to enact and enforce laws that make it difficult for criminals to operate within their borders. For example, money launderers will do their worst where laws prohibiting illegal transfers of funds are lax and they can expect to escape scrutiny. They will also operate where corruption is prevalent enough to protect them from disclosure.

Transnational problems inevitably raise the issue of international cooperation as one means of response. It is interesting to consider the role of the State Department and law enforcement community in combatting international crime problems, especially as both are expanding into this area. In late 1995, the State Department renamed its Bureau for International Narcotics Matters (INM) to the Bureau for International Narcotics and Law Enforcement Affairs. At the time of the reorganization, a Deputy Assistant Secretary was designated to focus on International Crime and Policy Planning. This official is responsible for the development and implementation of foreign policy initiatives to counter international criminal threats to U.S. national interests and programs to strengthen criminal justice institutions in support of Administration of Justice/Rule of Law Programs. The State Department is urging better coordination between all entities of the Government that have an interest in international organized crime. For its part, the Justice Department is involved in a number of the Rule of Law Programs, which involve a variety of overseas training assistance activities. The law enforcement community generally has been supportive of the State Department's efforts to better coordinate these programs.

The growth in law enforcement's overseas presence and investigatory activities has produced a sharper debate over the roles of intelligence and law enforcement agencies overseas, with most discussion focusing on the degree to which the Justice Department will coordinate its activities with the Ambassador. The Justice Department has expressed a willingness to inform and coordinate with a designated embassy official regarding its activities in country. Indeed, such coordination is required by law (22 U.S. C. 3927). However, Justice draws the line at allowing any embassy official to become involved in prosecutorial decisions relating, for example, to whether a case will be pursued. Discussions on this issue are ongoing; a Memorandum of Understanding relating to coordination of law enforcement activitiesoverseas is expected sometime in 1996, as is a report from the Overseas Coordinating Group, whose task it is to resolve the myriad of coordination issues that can arise abroad.

In a recent statement, Deputy Attorney General Jamie Gorelick stated that the FBI intends to recruit informants and engage in operational activities overseas. There are varying opinions on the degree to which the FBI will be active in this area, as well as how broadly the term "informant" is to be interpreted. In reality, most law enforcement contact with informants is to be done openly, and with the knowledge and consent of the host government. As pointed out earlier in this report, use of informants is much a part of the FBI's criminal investigative repertoire. The Drug Enforcement Agency (DEA), an organization with a large cadre of officers overseas, also uses informants. Although relations have not always been perfect, by and large, where the DEA and CIA are both present in country, coordination between the two agencies has worked and should continue to improve. However, there remain a small number of instances where the FBI, in particular may become involved overseas with clandestine sources recruited in the U.S. In such cases, the FBI cooperation with the CIA on these activities is imperative, and efforts are underway on the part of both organizations to strengthen the conduct of these activities.

At a minimum, we believe that recruiting of and contact with confidential informants overseas by the law enforcement community should be coordinated through the Chief of Station. We recognize that to a great extent this is already being done, although not consistently. We understand that there will be criminal investigative activities occurring in areas that are not subject matter of interest to intelligence. In these cases, there may be benefit derived from law enforcement's use of intelligence information for contextual information, but coordination of activities themselves will not be a factor.

Increased FBI presence overseas has highlighted other issues relating to the relationship between the FBI and the CIA. For example, there has been some debate over the conduct of liaison with law enforcement and security services. Some have posited that the FBI should have sole responsibility for liaison with foreign law enforcement entities. The argument is that law enforcers relate best with other law enforcers, and the presence of CIA liaison raises the specter of possible recruitment attempts, which can have a negative influence on law enforcement cooperation. The FBI has argued that its reputation as a respected law enforcement entity could be tarnished should a CIA recruitment of a foreign security representative to go awry. DEA officials have also expressed concern that its law enforcement image might suffer in some countries should its association with the CIA become known. These arguments have some merit, but are not necessarily relevant where security and intelligence organizations are one in the same. Another factor that weakens the exclusivity argument is that corruption is frequently a significant problem overseas. Given the focus of many law enforcement investigations, it might unwise to deny the CIA potential access to those who might inform on the nature and extent of corruption in their country. For these reasons, we oppose any effort to preclude the CIA from having liaison with law enforcement overseas, although there may be cases where it would be appropriate for the FBI to be the primary liaison. The CIA has a long history of involvement with overseas security organizations and should not be denied continued contact in this area. Basically, this is a problem that can be less settled by a commitment to careful coordination between the intelligence and law enforcement communities.

Just as law enforcement must have primacy regarding any transnational activity undertaken inside the United States, we believe the CIA should have local primacy in pursuing transnational issues in foreign countries. This means the Chief of Station must have full cognizance of law enforcement activities where intelligence interests may be affected, except where such information may be specifically denied him or her due to grand jury secrecy requirements as set forth in F.R.Cr. P. Rule 6(e), which precludes disclosure of matters occurring before a grand jury.

One of the problems highlighted by the BNL and BCCI investigations is that intelligence was not conveyed to policy makers as thoroughly, meaningfully and consistently as perhaps it could have been. As discussed earlier, there were also flaws in the Justice Department's handling and management of intelligence information and reporting. As the interagency task force has sought to improve upon procedures relating to the provision of intelligence to law enforcement, two significant problems have arisen. The first questions to what degree intelligence agencies should (and can be) expected to report criminal activities to the Justice Department. The second information-related issue is the protection of intelligence files from exculpatory searches during the prosecution of a criminal or civil case.

In 1982, a Memorandum of Understanding (MOU) between the Justice Department and the Intelligence Community established Intelligence Community obligations to report evidence of criminal activity relating to intelligence assets or information uncovered during the course of collecting for other intelligence requirements. In recent years, representatives from both communities had come to recognize that some revisions of the MOU were needed to reflect changes in law and policymaker interest.

In August of 1995, a new Memorandum of Understanding was approved. As before, the MOU requires the Intelligence Community to report suspected significant criminal misconduct by officers, employees, contractors or agents. Among other things, the MOU represents an attempt to minimize the number of special reports that will be required of the Intelligence Community. Because intelligence analysts are not experts in criminal law, and for other reasons stemming from the nature of intelligence information, we believe that reporting requirements should not include possible violations of law involving third parties acquired during foreign intelligence collection. This information should be disseminated as part of routine intelligence to law enforcement agencies. Considering the unfortunate experiences of both communities relating to BCCI and BNL, we believe that making the process more efficient should be one goal of the new MOU. There is also concern that intelligence analysts are not the proper people to review all information for potential criminal activity. Attempts to train or hire intelligence analysts to perform such functions may move the Intelligence Community into proscribed law enforcement responsibilities.

Unfortunately, it is almost inevitable that at some point some tidbit of information will be overlooked by the Intelligence Community or the recipient law enforcement agencies, creating to some extent a reprise of the "banking" case problem. In light of the vulnerability to post facto judgments regarding the significance of criminal-related information, recent problems relating to "criminal" activities of human sources, and the current debate over what reporting should be required of the Intelligence Community, we may wish to consider statutory or other language that will set forth "reasonable" expectations and goals in these areas. It also may be wise to require some form of periodic reporting to Congress on some of these matters.

In the overall intelligence/law enforcement relationship, serious problems can arise when, during the course of a prosecution, the defendant feels there is reason to believe there may be exculpatory evidence related to him or her in Intelligence Community files and requests a search and a Brady (Brady v. Maryland (1963)) ruling. Searches like these pose an enormous threat to intelligence sources and methods. Yet, the closer intelligence agencies work with investigators, the more likely it is that file searches will be sought.

There are several ways to reduce risk in this area. One is to limit the use of intelligence for law enforcement purposes. Another, assuming there is a compelling benefit in so doing, is to employ parallel investigatory efforts that keep intelligence out of the investigatory record. This is frequently done in customs cases and has been effective in the drug trafficking area. Another recommendation is to establish a "Center" that would focus on the use of intelligence in prosecutions. This Center might be staffed by Intelligence Community and Justice Department lawyers. The Center would be the focal point for the Intelligence Community and law enforcement agencies once a decision has been made to use intelligence in pursuing the law enforcement action. Finally, the Justice Department is attempting to establish a protocol that governs when Intelligence Community files may or may not be searched. The Department wishes to limit searches to that intelligence used in developing cases. It does not appear that any statutory provisions to restrict discovery to protect intelligence sources are required at this time. There are concerns that legislation might be counterproductive, as such restrictions would likely to trigger greater interest in discovery actions and challenges by defense attorneys.

The intelligence and law enforcement communities agree that regardless of what standards are applied to permitting searches, the searches themselves must be conducted with maximum focus and coordination. By requiring prosecutors to closely define their search requests, the Intelligence Community may be able to conduct a timely and thorough search related to the specific framework of the search request. Specificity on the part of the request will help limit expectations that the Intelligence Community will search for every piece of information in all its files, which is burdensome and even unreasonable given the nature of much intelligence information collected.

This issue pertains to whether and how law enforcement may "task" the Intelligence Community to collect intelligence related to a specific subject matter. As the intelligence and law enforcement communities have both become increasingly involved in the international aspects of weapons proliferation, terrorism, drug trafficking, international organized crime and the like, it is not surprising that law enforcement has been eager to consume the Intelligence Community's considerable wealth of information on these subjects. Much of this information is disseminated to law enforcement and other agencies as strategic intelligence. It has followed that in seeing these capabilities, law enforcement would at times like to task the intelligence community to collect on specific subjects. Of all the issues before the Interagency Task Force, this one has been the most difficult to resolve.

As it now stands, neither the National Security Agency (NSA) nor the CIA will accept tasking. Both organizations adhere to what is called the principal purpose test, which is that the main purpose of the collection is foreign intelligence. For its part, the CIA's Operations Directorate has agreed to a "tagging" procedure and will collect in response to a law enforcement request if the information has some foreign intelligence value. As long as the subject is a foreign person engaging in terrorism or weapons proliferation or other illegal activities, the principal purpose test is no problem. Problems arise when a foreign person of interest to the Intelligence Community enters the United States, or if there is an impending arrest and prosecution. This is when problems arise relating to the protection of sources and methods in future court action, and when more rigorous analysis of law enforcement versus intelligence interests is required.

The JICLE task force has been meeting for months on the tasking issue and has concluded that both communities must steer away from tasking as much as possible. According to the report of the task force, "One way to minimize risks and ensure that case-specific collection is undertaken in a manner consistent with pertinent legal authorities is for law enforcement to provide target-specific lead information to Intelligence Community agencies. These agencies would determine if collection against that target would produce foreign intelligence. If the collection is done, the resulting information is to be disseminated to all interested consumers, as well as the law enforcement agency that provided the impetus for the collection." We believe this is the correct approach to take.

The JICLE has recommended training for intelligence and law enforcement personnel to facilitate coordination and cooperation between the two cultures, and to educate participants on the laws, regulations and procedures that make the coordination process work. For example, Justice has been developing a training program for U.S. District Court judges on national security matters, to describe circumstances when it is permissible to disclose grand jury material to the Intelligence Community, and on the applicability of CIPA to all classified information, including the identity of intelligence agents. As the JICLE recommendations are accepted and incorporated as a way of doing business, training like this will be essential. It is unclear at this point how much the training will cost or how extensive the training should be. Most likely the greatest cost associated with training will be travel expenses for trainers and trainees. The cost should not be large; it is more a matter of competing for funds with other Department needs and objectives that may necessitate congressional interest in seeing that training will be carried out. JICLE believes that investigators and prosecutors, judges, intelligence officers, defense attorneys, congressional staffers and possibly the media would benefit from education programs. One proposal was to establish a Joint Law Enforcement/Intelligence Community Training Committee to assess training needs, evaluate training options, and prepare and deliver the training. Requests for additional funds for this training should be supported in the FY 97 authorizations of the intelligence and law enforcement communities.

One of the problems raised with regard to the closer nexus of intelligence and law enforcement is proper oversight of criminal investigations to ensure that criminal investigators do not adopt less stringent intelligence collection procedures in their investigations, thus compromising the civil liberties of U.S. citizens. More specifically, there are concerns that criminal investigations might be pursued under Foreign Intelligence Surveillance Act (FISA) strictures, using bogus "intelligence requirements" as a subterfuge to avoid Fourth Amendment probable cause requirements.

There is some misunderstanding about the distinction between foreign counterintelligence (FCI) investigations and criminal investigations that has caused many to mistakenly believe one can readily supplant the other. It is true that FCI investigations may lead to a criminal prosecution, but FCI investigations are performed pursuant to Executive authority, as opposed to criminal statutes. Certain techniques are important to the successful resolution of an FCI case, including Foreign Intelligence Surveillance Court (FISC) authorized electronic surveillance and physical searches. The Truong-Humphrey case (4th Cir.) requires that FCI investigations maintain an intelligence focus. When the focus shifts from FCI to criminal, then investigators can no longer use FCI techniques. Evidence obtained through the use of FCI techniques after the focus shifts to criminal investigation would be suppressed. The use of criminal investigative techniques such as subpoenas and search warrants indicate that the investigation has a criminal focus. Therefore, investigators of FCI matters are denied the use of subpoenas, search warrants, grand jury testimony, and other traditional criminal investigative techniques.

The Justice Department does not see the relationship between these two kinds of investigations as a problem. The Office of Intelligence Policy Review (OIPR) and the Office of Legal Counsel work on intelligence gathering activities and authorities, and make legal rulings on matters such as the appropriateness of maintaining certain intelligence agents. The principal consumers of intelligence, on the other hand, are Justice Department entities such as the Drug Enforcement Agency and the Federal Bureau of Investigation, as well as the non-Justice agencies of the Treasury and Commerce. There is little overlap between the two groups in terms of common need. Moreover, the Attorney General is charged with overseeing both the monitors and the investigators.

In addition to the Justice Department overseers, oversight of FISA is considerable. FISA matters receive serious scrutiny by the FBI, OIPR and the Deputy Attorney General. FISA cases are the only Justice Department cases that are read by the Deputy Attorney General and Attorney General's staffs. Reports on FISA cases are also provided to the two Intelligence Committee.

There are two other oversight issues that were brought out by the JICLE pertaining to the provision of information to Congress. Sections 501 and 502 of the National Security Act of 1947, as amended, require the President and the DCI to keep the House and Senate Intelligence Committees "fully and currently informed of all intelligence activities . . . including any significant anticipated intelligence activity." There is no formal regulation that defines the circumstances when the Intelligence Community may discuss ongoing criminal investigations with its oversight committees. The Law Enforcement Community has concerns that in meeting the statutory oversight requirements, the Intelligence Community will feel compelled to disclose information pertaining to law enforcement investigations. The JICLE has recommended that the Intelligence Community coordinate with the Law Enforcement Community before it briefs Congress on any subject matter with law enforcement implications. A December 1995 DCI Directive (DCID 2/13-1) confirms that the Justice Department will be informed before there is congressional notification on intelligence matters that have law enforcement information. The Directive establishes procedures to ensure advance coordination and resolution of disagreements between the intelligence and law enforcement communities on the amount of information that may be provided without adversely affecting a criminal investigation or prosecution.

Another recommendation from the Task Force's report is that the Intelligence Community should apply "substantially stricter standards before providing non-oversight committees with information on ongoing criminal investigations with significant intelligence implications."

Finally, the JICLE considered current procedures for disseminating clandestinely collected foreign intelligence that identifies congressional Members or staff. The current practice is that the identities of such individuals are removed before dissemination. However, any recipient of the information -- with the exception of the President, Vice President, Secretaries of State and Defense, and the National Security Advisor -- who wants to know the actual identity may be informed of that identity upon written request. The Justice Department has been concerned that this disclosure policy poses a threat to criminal investigative responsibilities and practices. When the JICLE met on this subject, several conclusions were reached. First, there is ample opportunity under the current procedures for the agencies that have collected this information to bring their concerns to the DCI before the information is provided to Congress. Second, due to concerns about interference with ongoing criminal investigations, the DCI or CIA General Counsel would obtain Justice Department permission before providing this information to Congress. If that permission were denied, the information will not be provided. There are some who believe these procedures should be reconsidered and that reporting to Congress should only be done when there is some foreign intelligence value to the information -- as opposed to domestic law enforcement or counterintelligence.

We may wish to consider this issue itself with regard to a need for clearer standards and procedures for the provision of this investigatory information to Congress. We, indeed Congress as a whole, should resist any recommendations that would further restrict it receipt of this kind of information.

1. There is no need to further clarify the National Security Act of 1947, as amended, or the subsequent Executive Orders. There is a flexibility in these laws that permits a reasonable, but well-bounded, range of interpretation that will allow for improved cooperation and coordination between law enforcement and intelligence without blurring important demarcations between the missions and authorities of the two communities.

2. There has been debate over whether the Classified Information Protection Act (CIPA) should be amended. CIPA was enacted to provide a procedural mechanism for use in Federal criminal trials involving classified information. However, outside the Federal criminal process, there are no CIPA-like processes. Thus, some have suggested the creation of procedures similar to CIPA for use in civil matters. Those opposed to this approach believe it is unworkable and unnecessary, and would erode the viability of the state secrets privilege. Interagency review under the JICLE has concluded that there is no need for civil CIPA. Because of the complexity of this issue and the short legislative year this session, the Intelligence and Judiciary Committees may wish to study the CIPA expansion issue in the next Congress.

3. The Committee should consider statutory or other language that will set forth "reasonable" expectations and goals on Intelligence Community reporting on criminal activities. This language should convey Congressional views on the extent to which third party activities should be reported to law enforcement by the CIA and requirements pertaining to reporting on illegal actions by officers, employees, contractors or agents. The language should express legal requirements and set forth a national policy regarding the reporting of agent involvement in illegal activities, and the degree to which such activities should affect continued involvement with that agent. A balance must achieved between recognizing an agent's unsavory activities versus the value of intelligence the agent in question can provide and the validity of the requirement for intelligence that is driving the relationship between the Intelligence Community and the agent in the first place.

4. Training is essential to effective cooperation and coordination between the two communities. Consideration should be given to the need for additional funding for training in the FY 97 authorizations of the intelligence and law enforcement communities. This is an issue that should be worked with the State, Justice and Commerce Appropriations Subcommittee.

5. The Committee should continue to provide strong support to information management initiatives in the Intelligence Community.

6. Information management in the law enforcement community needs serious developmental planning and investment. Information management within the various law enforcement agencies is deficient; one result of this deficiency is poor information sharing among these agencies. The Intelligence Community, chiefly through its Centers, has built electronic data sharing links with the law enforcement community. The one exception to the link-up is the FBI, which has not participated due to the inadequacies of its ADP capabilities.

The Committee should encourage and support well-thought-out information management initiatives by the National Security Division of the FBI. Improvements here improve the work of the Division's International and Domestic Terrorism Sections. Information management upgrades for the FBI's Criminal Division, as well as other law enforcement agencies, are outside the Committees's oversight responsibilities. However, the Committee should discuss the importance of these needs with appropriations staff.

7. During the course of this study, the Committee became convinced that within the body of investigatory information obtained by law enforcement, there is important strategic information that is of value to others in the law enforcement or Intelligence Communities. Without better information management capabilities, at this time it is fruitless to require law enforcement to disseminate this information. However, plans for such dissemination should be a factor in planning for future information management systems.

8. We feel it is unwise to pronounce categorically which agencies (intelligence or law enforcement) should or should not develop or have contact with human sources overseas. Applying a rigid directive to an area where there are an endless variety of cases and unique circumstances would probably do more harm than good. However, we believe that all anticipated and existing contacts with confidential informants, in areas where intelligence and law enforcement interests overlap, should be coordinated through the Chief of Station. The Chief of Station should be consulted prior to any effort of a law enforcement agency to engage in clandestine activities. Any unresolved problems should be resolved at the headquarters level of the parties involved in a disagreement.

9. Some have suggested that the FBI routinely act as the lead law enforcement agency for the purpose of coordinating law enforcement activities in a foreign country with the Ambassador. Because there may be other U.S. law enforcement entities in country that are not Justice Department organizations, designating the Justice Department as their representative, at least in a coordinating role, is too cumbersome and unrealistic.

10. There will be occasions when conflicts will arise overseas between law enforcement objectives and competing national security interests. We believe these problems can best be resolved if, from the outset, the Ambassador and the Chief of Station are kept reasonably informed of law enforcement objectives and plans so that all parties may weigh the implications of a law enforcement investigation or action in a particular country before it takes place. In cases where it is agreed that a law enforcement activity is not problematic or that these interests should granted primacy over other national security issues, similar interagency discussions in country also would serve to improve coordination and information sharing. In cases where differences arise that cannot be resolved in country, before investigations or other law enforcement activities are initiated, or State Department or intelligence activities are undertaken that it is believed could adversely affect a law enforcement action, We believe the conflict should be resolved at the highest necessary levels of government in Washington.

11. Some have argued that only U.S. law enforcement should conduct liaison with foreign law enforcement entities. We disagree with this premise, as set forth in a series of points made earlier in the body of this study. The CIA should be permitted to collect information from any foreign individual or entity deemed by the DCI or his designated representative to be of intelligence interest. Moreover, for the purposes of coordination, the Chief of Station should be kept fully advised of the law enforcement liaison activities of all law enforcement agencies in country where intelligence and law enforcement interests overlap. This level of coordination should in no way require the unauthorized disclosure to the Chief of Station of restricted law enforcement investigatory information or cede to the Chief of Station any prosecutorial authority.

The lack of cooperation between law enforcement and intelligence is historical - but only after the banking scandals in the late 80's were the "walls thrown up" -

Gorlick served on panels to "work out the differences" in the early 90's.

This study was done in 96 - none of the recommendations were worked out in all of the years prior to 9/11 which would have allowed the agencies to interoperate - and Bush should have immediately come up with a way to do it and implement it prior to 9/11, thus saving the WTC etc...

"Because intelligence analysts are not experts in criminal law, and for other reasons stemming from the nature of intelligence information, we believe that reporting requirements should not include possible violations of law involving third parties acquired during foreign intelligence collection. This information should be disseminated as part of routine intelligence to law enforcement agencies." ... And that is precisely why the arrested terrorist, Moussaui, did not lead law enforcement to stop the 911 hijackings, why law enforcement investigations into the African embassy bombings did not cause alarm regarding al Qaeda and outr hoemland, why TWA 800 had to be fuzzed over by the CIA, etc.. GoreLick should be under scrutiny, instead of questioning and setting policy suggestions!

The vacuous-brained assertion should be highlighted for its absurdity: "... and Bush should have immediately come up with a way to do it and implement it prior to 9/11, thus saving the WTC etc..." The media are portraying these issues just as you've framed your sarcasm. Sickening, isn't it!

It is bad enough that she blocked the flow of intelligence between the 2 agencies as well as intelligence from the field to those higher up in command, but now she is blocking the truth with her presence on that commission. I cannot believe she would have the audacity to be present there. Step down Jamie Gorelick!!!!! The 9-11 victim's family need to realize her actions created an opportunity for 9-11 to happen.

Great find. We really need to step things up so that the average Joe learns about this conflict of interest. The lame stream media is obviously just going to ignore it.

FOX legal beagle says GORELICK should be removed from the commission - too great a conflict of interest.

The Judge has spoken!!!

13 posted on 04/14/2004 9:31:28 AM PDT by Ernest_at_the_Beach (The terrorists and their supporters declared war on the United States - and war is what they got!!!!)

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IC21: The Intelligence Community in the 21st Century

Staff Study
Permanent Select Committee on Intelligence
House of Representatives
One Hundred Fourth Congress

XIII. Intelligence and Law Enforcement

Remove Jamie Gorelick

IC21: The Intelligence Community in the 21st Century

Staff Study Permanent Select Committee on Intelligence House of Representatives One Hundred Fourth Congress

XIII. Intelligence and Law Enforcement

Remove Jamie Gorelick

Staff Study
Permanent Select Committee on Intelligence
House of Representatives
One Hundred Fourth Congress