FBI Intelligence Investigations: Coordination Within Justice on  
Counterintelligence Criminal Matters Is Limited (16-JUL-01,	 
GAO-01-780).							 
								 
This report reviews the coordination efforts involved in foreign 
counterintelligence investigations where the Foreign Intelligence
Surveillance Act has been or may be employed. The act, among	 
other things, established (1) requirements and a process for	 
seeking electronic surveillance and physical search authority in 
national security investigations seeking foreign intelligence and
counterintelligence information within the United States and (2) 
the Foreign Intelligence Surveillance Court, which has		 
jurisdiction to hear applications for and grant orders approving 
Foreign Intelligence Surveillance Act surveillance and searches. 
GAO found that coordination between the Federal Bureau of	 
Investigation (FBI) and the Department of Justice's (DOJ)	 
Criminal Division has been limited in those foreign		 
counterintelligence cases where criminal activity is indicated	 
and surveillance and searches have been, or may be, employed. A  
key factor inhibiting this coordination is the concern over how  
the Foreign Intelligence Surveillance Court or another federal	 
court might rule on the primary purpose of the surveillance or	 
search in light of such coordination.				
In addition, the FBI and the Criminal Division differ on the	 
interpretations of DOJ's 1995 procedures concerning		 
counterintelligence investigations. In January 2000, the Attorney
General issued additional procedures to address these		 
coordination concerns. These procedures, among other things,	 
required the FBI to submit case summaries to the Criminal	 
Division and established a protocol for briefing Criminal	 
Division officials about those investigations. In addition, the  
FBI established two mechanisms to ensure  compliance with the	 
Attorney General's 1995 procedures. These mechanisms include (1) 
requiring the Office of Intelligence Policy and Review to notify 
the FBI and the Criminal Division of investigations it believes  
meets the requirements of the 1995 procedures and (2)		 
establishing a core group of high-level officials to oversee	 
coordination issues. However, these efforts have not been	 
institutionalized in management directives or written		 
administrative policies or procedures.				 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-01-780 					        
    ACCNO:   A01392						        
  TITLE:     FBI Intelligence Investigations: Coordination Within     
             Justice on Counterintelligence Criminal Matters Is Limited       
     DATE:   07/16/2001 
  SUBJECT:   Domestic intelligence				 
	     Electronic surveillance				 
	     Federal intelligence agencies			 
	     Interagency relations				 
	     Law enforcement agencies				 
	     Military intelligence				 
	     Search and seizure 				 

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GAO-01-780
     
Report to the Ranking Minority Member, Committee on Governmental Affairs, U.
S. Senate

United States General Accounting Office

GAO

July 2001 FBI INTELLIGENCE INVESTIGATIONS

Coordination Within Justice on Counterintelligence Criminal Matters Is
Limited

GAO- 01- 780

Page i GAO- 01- 780 FBI Intelligence Investigations Letter 1

Results in Brief 3 Background 6 Scope and Methodology 9 Concern Over
Possible Adverse Consequences of Judicial Rulings

Has Been a Key Factor Impeding Coordination 11 Procedures Established to
Ensure Proper Coordination Led to

Problems 16 DOJ Has Taken Additional Action to Address Coordination, but

Some Impediments Remain 21 Mechanisms Created to Ensure Compliance With the
Procedures

Have Not Been Institutionalized 26 Conclusions 30 Recommendations for
Executive Action 32 Agency Comments and Our Evaluation 32

Appendix I Chronology of Key Events Relating to FBI/ DOJ Coordination 36

Appendix II Comments From the Department of Justice. 37 GAO Comments 43

Tables

Table 1: Key Events Relating to FBI/ DOJ Coordination 36

Abbreviations

FBI Federal Bureau of Investigation DOJ Department of Justice FISA Foreign
Intelligence Surveillance Act OIPR Office of Intelligence Policy and Review
Contents

Page ii GAO- 01- 780 FBI Intelligence Investigations

Page 1 GAO- 01- 780 FBI Intelligence Investigations

July 16, 2001 The Honorable Fred Thompson Ranking Minority Member Committee
on Governmental Affairs United States Senate

Dear Senator Thompson: Recent Federal Bureau of Investigation (FBI)
intelligence investigations identifying possible significant criminal
violations have brought to light serious problems that have limited whether
and when the FBI coordinates its investigations with the Department of
Justice?s (DOJ) Criminal Division. These investigations involved allegations
that the Peoples Republic of China was seeking to influence the 1996
Presidential election in the United States and that nuclear weapons design
secrets at the Los Alamos National Laboratory had been compromised. Timely
coordination 1 on such intelligence investigations can be important because
the Criminal Division may be able to advise the FBI on ways to (1) preserve
its intelligence sources so that they would not be compromised in the event
of subsequent prosecution and (2) enhance the evidence needed to prosecute
the alleged crimes. In addition, prosecutors need sufficient time to
familiarize themselves with a case in order to address any court proceedings
emanating from the perpetrators? arrests.

Most of the coordination problems have arisen in the context of foreign
counterintelligence investigations that involve or anticipate the use of
electronic surveillance or physical searches under the Foreign Intelligence
Surveillance Act of 1978, as amended. 2 The act was designed to strike a
balance between the government?s need for intelligence information to
protect the national security and the protection of individual privacy
rights. The act provided the first legislative authorization for wiretapping
and other forms of electronic surveillance for intelligence investigation
purposes of foreign powers and their agents in the United States. The act,
among other things, established (1) requirements and a process for

1 For this report, coordination includes the initial notification of case
activity by the FBI, subsequent consultation with the Criminal Division, and
any other exchange of information.

2 Foreign Intelligence Surveillance Act of 1978, P. L. 95- 511, 92 Stat.
1783 (1978).

United States General Accounting Office Washington, DC 20548

Page 2 GAO- 01- 780 FBI Intelligence Investigations

seeking electronic surveillance and physical search authority 3 in national
security investigations seeking to obtain foreign intelligence and
counterintelligence information 4 within the United States and (2) a special
court- the Foreign Intelligence Surveillance Court- with jurisdiction to
hear applications for and grant orders approving Foreign Intelligence
Surveillance Act surveillance and searches. Because the standards for
obtaining a foreign intelligence surveillance order are different than those
required to obtain authorization for a search or a surveillance in a
criminal investigation, there will often be situations in which it is
possible to obtain a foreign intelligence surveillance order that would not
satisfy the standards for a criminal search warrant or electronic
surveillance order.

At your request, we reviewed the current policies, procedures, and processes
for coordinating FBI intelligence investigations within DOJ, as well as
DOJ?s efforts to resolve problems that were identified in recent internal
reviews of this issue. 5 Specifically, we agreed to determine the following:

1. The key factors that have affected coordination. 2. The DOJ and FBI
policies, procedures, and processes that are in place

for coordinating with appropriate DOJ units foreign counterintelligence
investigations that indicate possible criminal violations.

3. The actions DOJ has taken to address identified coordination problems and
the concerns and impediments that remain.

3 Hereafter referred to as ?surveillance and searches.? 4 This report
focuses on the coordination efforts involved in foreign counterintelligence
investigations where the Foreign Intelligence Surveillance Act has been or
may be employed. According to DOJ, foreign counterintelligence
investigations nearly always include an inherent criminal violation (e. g.,
espionage, sabotage, or international terrorism), regardless of the
government?s ultimate decision whether or not to prosecute the target. In
some circumstances, the FBI, as a member of the intelligence community, may
collect foreign intelligence information, but such cases are less likely to
result in criminal prosecutions than foreign counterintelligence
investigations.

5 Office of Inspector General?s report on ?The Handling of FBI Intelligence
Information Related to the Justice Department?s Campaign Finance
Investigation? (July 1999). The Attorney General?s Review Team?s report on
the ?Handling of the Los Alamos National Laboratory Investigation? (May
2000).

Page 3 GAO- 01- 780 FBI Intelligence Investigations

4. The mechanisms that have been put into place to ensure compliance with
the policies, procedures, and processes.

Coordination between the FBI and the Criminal Division has been limited in
those foreign counterintelligence cases where criminal activity is indicated
and surveillance and searches have been, or may be, employed. A key factor
inhibiting this coordination is the concern over how the Foreign
Intelligence Surveillance Court or another federal court might rule on the
primary purpose of the surveillance or search in light of such coordination.
The judicially established ?primary purpose? test has been adopted as a test
by most federal courts in such foreign counterintelligence cases where
evidence gathered by surveillance and searches was challenged. Under the
primary purpose test, most federal courts have held that foreign
intelligence information may subsequently be used in criminal prosecutions
so long as the primary purpose of the Foreign Intelligence Surveillance Act
surveillance or search was to obtain foreign intelligence information.
According to officials of the Office of Intelligence Policy and Review- the
DOJ unit responsible for overseeing Foreign Intelligence Surveillance Act
surveillance and search applications- the Foreign Intelligence Surveillance
Court also has used this test to determine whether to grant DOJ?s requests
for Foreign Intelligence Surveillance Act surveillance and searches.
According to Criminal Division officials, since the act was enacted, no
court using the primary purpose test has upheld a challenge to the
government?s use of Foreign Intelligence Surveillance Act obtained
intelligence information for criminal prosecution purposes. Moreover,
according to Office of Intelligence Policy and Review officials, no
surveillance or search request has been denied by the Foreign Intelligence
Surveillance Court. These officials said that, nonetheless, FBI and Office
of Intelligence Policy and Review officials remain concerned that
coordination with the Criminal Division, on court review, could raise the
primary purpose question, and, thus, place at risk the FBI?s authorization
to use the intelligence surveillance and search tools and/ or lead to the
suppression of evidence gathered from them. On the other hand, Criminal
Division officials believe these concerns, while well- intentioned, are
overly cautious. These officials contend that their advice can help preserve
and enhance the criminal prosecution option.

Policies for coordinating FBI foreign counterintelligence investigations
involving suspected criminal violations with the Criminal Division were
promulgated by the Attorney General in procedures that were issued in July
1995. However, rather than ensuring that DOJ?s intelligence and Results in
Brief

Page 4 GAO- 01- 780 FBI Intelligence Investigations

criminal functions are properly coordinated, according to Division
officials, the implementation and interpretation of the procedures and the
previously noted concerns led to a significant decline in coordination
between the FBI and the Criminal Division. These procedures, which were in
effect at the time of our review, require, in part, that the FBI notify the
Criminal Division and the Office of Intelligence Policy and Review whenever
a foreign counterintelligence investigation utilizing authorized
surveillance and searches develops ?? facts or circumstances? that
reasonably indicate that a significant federal crime has been, is being, or
may be committed?.? 6 However, according to Criminal Division officials,
subsequent to the procedures' issuance, required notifications did not
always occur and often, when they did, were not timely. In January 2000, to
address some coordination concerns, the Attorney General issued additional
coordination procedures. These procedures (1) required the FBI to share with
the Criminal Division memorandums summarizing certain types of foreign
counterintelligence investigations involving U. S. persons, (2) established
a core group of high- level DOJ officials to identify from among the FBI?s
most critical investigations those that met the Attorney General?s
requirements for notification, and (3) established a protocol for briefing
Criminal Division officials about those investigations. Criminal Division
officials opined that these procedures had helped to improve coordination.
The core group and briefing protocol were discontinued in October 2000, but
were replaced in April 2001, by a reconstituted core group with broader
oversight responsibilities.

Despite the additional January 2000 coordination procedures and the
reconstituted core group, impediments to coordination remain. For example,
Office of Intelligence Policy and Review, Criminal Division, and FBI
officials disagreed as to the type of advice the Criminal Division may
provide the FBI on foreign counterintelligence investigations involving
Foreign Intelligence Surveillance Act surveillance and searches without
affecting possible judicial interpretations of the primary purpose of the
surveillance or searches. To address these impediments, a coordination
working group headed by the Principal Associate Deputy Attorney General
developed a decision memorandum in late 2000. The memorandum, which required
the Attorney General?s approval, recommended revisions to the 1995
procedures and detailed several options, including a preferred option,

6 The Attorney General?s procedures, in addition to establishing a
requirement and criteria for notification, set out guidelines for
coordination. The notification requirement is to be the first step in
achieving coordination.

Page 5 GAO- 01- 780 FBI Intelligence Investigations

to address the differing interpretations on the advice issue. However, as of
the completion of our review, no decision had been made on the memorandum.
Consequently, these issues continue to be impediments to coordination.
According to working group officials, among those issues discussed in the
decision memorandum were (1) the type of advice the Criminal Division should
be permitted to provide the FBI and (2) varying interpretations as to
whether certain criminal violations are considered

?significant violations? and, thus, trigger the Attorney General?s 1995
coordination procedures. Beyond the decision memorandum, an additional
impediment, according to Criminal Division officials, relates to the
adequacy and timeliness of foreign counterintelligence case summary
memorandums that the FBI provides to the Criminal Division.

Criminal Division officials, while recognizing some improvement in
coordination due to the January 2000 procedures, continue to question
whether the Attorney General?s 1995 procedures were always being followed
for notifying the Criminal Division about relevant investigations. Office of
Deputy Attorney General and FBI officials acknowledged that historically no
mechanisms had been specifically created to help ensure compliance with the
Attorney General?s 1995 procedures. Other than its routine managerial
oversight of investigations, the FBI has not had in place an oversight
mechanism specifically targeted at ensuring compliance with the Attorney
General?s 1995 procedures. Recently, however, two mechanisms have been
developed to help improve coordination with the Criminal Division. First, in
mid- 2000, the Office of Intelligence Policy and Review implemented a
practice to notify both the FBI and the Criminal Division of FBI Foreign
Intelligence Surveillance Act cases that Office attorneys believed met the
requirements of the Attorney General?s procedures. Second, with the
reestablishment of the core group in April 2001, a new high- level mechanism
has been created to oversee coordination issues. The reconstituted core
group?s principal role will be to decide whether particular FBI
investigations meet the requirements of the Attorney General?s procedures
for notification and to identify for the Attorney General?s attention any
extraordinary situations where compliance with the guidelines needs to be
considered. However, these efforts have not been institutionalized in
management directives or written administrative policies or procedures.

This report contains recommendations to the Attorney General that (1)
address the identification and proper coordination of those FBI intelligence
investigations that detect, potential or actual, criminal violations meeting
the requirements established in the Attorney General?s

Page 6 GAO- 01- 780 FBI Intelligence Investigations

1995 procedures and (2) would establish mechanisms to help ensure compliance
with the those procedures.

In its June 21, 2001, written comments on a draft of this report, DOJ said
that it has taken steps to implement two of our recommendations and that our
remaining recommendations are under review.

The main purpose of a foreign counterintelligence investigation is to
protect the U. S. government from the clandestine efforts of foreign powers
and their agents to compromise or to adversely affect U. S. military and
diplomatic secrets or the integrity of U. S. government processes. At the
same time, however, many of the foreign powers? clandestine efforts may
involve a violation of U. S. criminal law, usually espionage or
international terrorism, which falls within the federal law enforcement
community?s mandate to investigate and prosecute. As a result, foreign
counterintelligence investigations often overlap with law enforcement
interests.

To provide a statutory framework for electronic surveillance conducted
within the United States for foreign intelligence purposes, the Congress, in
1978, enacted the Foreign Intelligence Surveillance Act (FISA). The
legislative effort emerged, in part, from the turmoil that surrounded
government intelligence agencies? efforts to apply national security tools
to domestic organizations during the 1970s. For example, congressional
hearings identified surveillance abuses within the United States by
intelligence agencies that were carried out in the name of national
security. 7 FISA was designed to strike a balance between the government?s
need for intelligence information to protect the national security and the
protection of individual privacy rights. 8 In 1994, the Congress amended the
1978 act to include physical searches for foreign intelligence purposes
under the FISA warrant procedures. 9

7 See, S. Rep. No. 95- 604, at 15 (1977). 8 Id. The Senate committee report
provided that the basis for this legislation was the understanding that even
if the President had an ?inherent? constitutional power to authorize
warrantless surveillance for foreign intelligence purposes, the Congress had
the power to regulate the exercise of this authority by legislating a
reasonable warrant procedure governing foreign intelligence surveillance.

9 Intelligence Authorization Act for Fiscal Year 1995, P. L. 103- 359, 108
Stat. 3423 (1994). Background

Page 7 GAO- 01- 780 FBI Intelligence Investigations

Within DOJ, various components have responsibilities related to the
investigation and prosecution of foreign intelligence, espionage, and
terrorism crimes. The Criminal Division has responsibility for developing,
enforcing, and supervising the application of all federal criminal laws,
except those specifically assigned to other divisions. Within the Criminal
Division, the Internal Security Section and the Terrorism and Violent Crime
Section have responsibility for supervising the investigation and
prosecution of crimes involving national security. Among such crimes are
espionage, sabotage, and terrorism.

The Office of Intelligence Policy and Review (OIPR) is, among other things,
to assist the Attorney General by providing legal advice and recommendations
regarding national security matters and is to approve the seeking of certain
intelligence- gathering activities. OIPR represents the United States before
the Foreign Intelligence Surveillance Court (hereinafter, the FISA Court).
OIPR prepares applications to the FISA Court for orders authorizing
surveillance and physical searches by U. S. intelligence agencies, including
the FBI, for foreign intelligence purposes in investigations involving
espionage and international terrorism and presents them for FISA Court
review. When evidence obtained under FISA is proposed for use in criminal
proceedings, OIPR is to obtain the FISArequired advance authorization from
the Attorney General. In addition, in coordination with the Criminal
Division and U. S. Attorneys, OIPR has the responsibility of preparing
motions and briefs required in U. S. district courts when surveillance
authorized under FISA is challenged.

The FBI is DOJ?s principal investigative arm with jurisdiction over
violations of more than 200 categories of federal crimes, including
espionage, sabotage, assassination, and terrorism. To carry out its mission,
the FBI has over 11,000 agents located primarily in 56 field offices and its
headquarters in Washington, D. C. Among its many responsibilities, within
the United States, the FBI is the lead federal agency for protecting the
United States from foreign intelligence, espionage, and terrorist threats.
The FBI?s National Security and Counterterrorism Divisions are the units
responsible for countering these threats. To accomplish their task, the
National Security and Counterterrorism Divisions engage in foreign
intelligence and foreign counterintelligence investigations.

Within the Judicial Branch, FISA established a special court (the FISA
Court). The FISA Court, as noted previously, has jurisdiction to hear
applications for and grant orders approving FISA surveillance and searches.
The FISA Court is comprised of seven district court judges from seven
different districts who are appointed by the Chief Justice of the U. S.

Page 8 GAO- 01- 780 FBI Intelligence Investigations

Supreme Court to serve rotating terms of no longer than 7 years. The Chief
Justice also designates three federal judges from the district or appeals
courts to serve on a Foreign Intelligence Surveillance Review Court. The
Foreign Intelligence Review Court was established to rule on the
government?s appeals of Foreign Intelligence Surveillance Court denials of
government- requested surveillance and search orders.

As noted previously, foreign counterintelligence and law enforcement
investigations often overlap, but at the same time different legal
requirements apply to each type of investigation. For intelligence and
counterintelligence purposes, electronic surveillance and physical searches
against foreign powers and agents of foreign powers in the United States are
governed by FISA, 10 as amended. FISA, among other things, contains
requirements and a process for seeking electronic surveillance and physical
search authority in investigations seeking to obtain foreign intelligence
and counterintelligence information within the United States. For example,
FISA permits surveillance only when the purpose of the surveillance is to
obtain foreign intelligence information. FISA also requires prior judicial
approval by the FISA Court for surveillance and searches. 11 With respect to
FBI foreign counterintelligence investigations, the FBI Director 12 must
certify, among other things, to the FISA Court that the purpose of the
surveillance is to obtain foreign intelligence information and that such
information cannot reasonably be obtained by normal investigative
techniques. However, FISA also contains provisions permitting intelligence
agencies to share with law

10 FISA surveillance and searches, under certain circumstances, may be
conducted with respect to any persons, including U. S. persons (defined, in
part, to include U. S. citizens and permanent resident aliens), who, among
other things, knowingly or pursuant to the direction of an intelligence
service or network, engage in clandestine intelligence gathering activities
for or on behalf of a foreign power, which activities involve or may involve
a violation of the criminal statutes of the United States; or knowingly
engages in sabotage or international terrorism, or in activities that are in
preparation therefor; or knowingly aids or abets any person in the conduct
of such activities.

11 In certain emergency situations, in general, FISA allows the Attorney
General to authorize surveillance and searches for a limited period after
which judicial approval is needed. 12 By executive orders, in addition to
the FBI Director, the following individuals have been designated to make the
certifications required by FISA in support of applications to conduct
electronic surveillance or physical searches: the Secretaries and Deputy
Secretaries of State and Defense and the Director and Deputy Director of
Central Intelligence. Moreover, none of the foregoing officials, nor anyone
officially acting in that capacity, may make such certifications, unless
that official has been appointed by the President, by and with the advice
and consent of the Senate.

Page 9 GAO- 01- 780 FBI Intelligence Investigations

enforcement intelligence information that they have gathered that implicates
federal criminal violations. For federal criminal investigations, the
issuance and execution of search warrants, for example, is generally
governed by the Federal Rules of Criminal Procedure. 13 In addition,
electronic surveillance or wiretapping in criminal investigations is, in
general, governed by title III of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended. 14

The differing standards and requirements applicable to criminal
investigations and intelligence investigations are evident with respect to
electronic surveillance of non- U. S. persons where the requisite probable
cause standard under FISA differs from that required in a criminal
investigation. In criminal investigations, the issuance of court orders
authorizing electronic surveillance must, in general, be supported by a
judicial finding of probable cause to believe that an individual has
committed, is committing, or is about to commit a particular predicate
offense. 15 In contrast, FISA, in general, requires that a FISA Court judge
find probable cause to believe that the suspect target is a foreign power or
an agent of a foreign power, and that the places at which the surveillance
is directed is being used, or is about to be used, by a foreign power or an
agent of a foreign power.

To determine what key factors affected coordination between the FBI and the
Criminal Division, we interviewed DOJ officials, including officials from
the Office of the Deputy Attorney General, OIPR, the Criminal Division, the
Division?s Internal Security and Terrorism and Violent Crime Sections, the
Office of Inspector General, and the FBI?s National Security and
Counterterrorism Divisions and Office of General Counsel. We also reviewed
congressional committee reports and hearing transcripts regarding
intelligence coordination issues and the DOJ Inspector General?s July 1999
unclassified report on intelligence coordination problems related to DOJ?s
campaign finance investigation. In addition, we reviewed the classified
report of the Attorney General?s Review Team on the FBI?s handling of its
investigation at the Los Alamos National Laboratory.

13 Federal Rules of Criminal Procedure, Rule 41, Search and Seizure (2000).
14 P. L. 90- 351, 82 Stat. 197 (1968). 15 See title III of the Omnibus Crime
Control and Safe Streets Act of 1968, P. L. 90- 351, as amended. Scope and

Methodology

Page 10 GAO- 01- 780 FBI Intelligence Investigations

To determine what policies, procedures, and processes are in place for
coordinating foreign counterintelligence investigations that indicate
possible criminal violations within appropriate DOJ units, we reviewed
applicable laws, Executive Orders 12139 on Foreign Intelligence Electronic
Surveillance and 12949 on Foreign Intelligence Physical Searches, and copies
of existing guidance provided by DOJ and the FBI. We interviewed Criminal
Division, OIPR, and FBI officials to determine the pertinent coordination
policies, procedures, and processes in effect and their views on their
effectiveness. In order to provide you with an unclassified report, we
agreed with the Committee not to review specific cases to try to identify
instances of compliance or noncompliance with the 1995 coordination
procedures.

To determine what actions DOJ has taken to address identified coordination
problems and what concerns and impediments, if any, remain, we reviewed
certain legal requirements pertaining to disseminating and safeguarding
information from foreign counterintelligence investigations and criminal
investigations. For foreign counterintelligence investigations, we reviewed
FISA, as amended; relevant federal court cases; Executive Order 12333 on
United States Intelligence Activities; and Congressional Research Service
reports. For criminal investigations, we reviewed sections of the United
States Code

and Federal Rules of Criminal Procedure; federal court cases; and news
articles related to espionage prosecutions. In addition, we obtained and
reviewed congressional committee reports and hearing transcripts regarding
intelligence coordination issues. We also reviewed internal DOJ reports, as
mentioned earlier, the DOJ Inspector General?s unclassified report on DOJ?s
campaign finance investigation and the Attorney General?s Review Team?s
classified report concerning the FBI?s Los Alamos National Laboratory
investigation. Furthermore, we met with Criminal Division, OIPR,
coordination working group, and FBI officials to discuss the proposed
revisions to the July 1995 guidelines and any issues the working group was
unable to resolve. During our review, decision memorandums containing
recommendations concerning the coordination of FBI intelligence
investigations with the Criminal Division, prepared by the coordination
working group, remained draft internal documents. We were not provided and
did not have the opportunity to review the working group?s documents. As
such, our findings and conclusions relating to DOJ?s proposed actions and
remaining impediments are based on testimonial evidence.

To determine what mechanisms have been put into place to ensure compliance
with intelligence coordination policies and procedures, we

Page 11 GAO- 01- 780 FBI Intelligence Investigations

reviewed applicable OIPR and FBI internal policies and procedures. We also
interviewed officials from the Office of Deputy Attorney General, including
the then Principal Associate Deputy Attorney General in charge of the
intelligence coordination working group, OIPR, and the Office of the
Inspector General and FBI officials, including the the General Counsel and
representatives of the FBI?s Inspection Division.

We performed our work from May 2000 to May 2001 in accordance with generally
accepted government auditing standards. In June 2001, we requested comments
on a draft of this report from the Attorney General. On June 21, 2001, we
received written comments from the Acting Assistant Attorney General for
Administration. The comments are discussed on pages 32 and 33 and reprinted
in appendix II. DOJ also provided technical comments, which we have
incorporated where appropriate.

A key factor impeding coordination of foreign counterintelligence
investigations involving the use or anticipated use of the FISA surveillance
and search tools has been the FBI?s and OIPR?s concern about the possible
consequences that could result should a federal court rule that the line
between an intelligence and a criminal investigation had been crossed due to
contacts and/ or information shared between the FBI and the Criminal
Division. Specifically, FBI and OIPR were concerned over the consequences
should a court find that the primary purpose of the surveillance or search
had shifted from intelligence gathering to collecting evidence for criminal
prosecution. While these concerns inhibited coordination, Criminal Division
officials questioned their reasonableness and believe that they had an
adverse effect on the strength of subsequent prosecutions. A further concern
of FBI intelligence investigators, not necessarily related to the question
of the primary purpose of the surveillance or search, has been the potential
revelation of its sources and methods during criminal proceedings.

The consequences about which the FBI and OIPR were concerned included the
potential (1) rejection of the FISA application or the loss of a FISA
renewal and/ or (2) suppression of evidence gathered using FISA tools,
which, in turn, might lead to loss of the criminal prosecution. According to
OIPR officials, differences of opinion existed among OIPR, the Criminal
Division, FBI, and other DOJ officials, regarding their perceptions of the
likelihood that the FISA Court or another federal court might, upon review,
find that the line between an intelligence and criminal surveillance or
search had been crossed and, therefore, the primary Concern Over

Possible Adverse Consequences of Judicial Rulings Has Been a Key Factor
Impeding Coordination

Concerns Inhibited FBI and OIPR Coordination

Page 12 GAO- 01- 780 FBI Intelligence Investigations

purpose had shifted from intelligence gathering to a criminal investigation.
Complicating the resolution of these differences has been DOJ?s
disinclination to risk rejection of a FISA application or loss of a
prosecution, for example, by requiring the FBI to more closely coordinate
with the Criminal Division.

The FBI has long recognized that the investigative tools FISA authorized
were often the FBI?s most effective means to secure intelligence
information. However, since the mid- 1990s, FBI investigators, cautioned by
OIPR, became concerned that their interaction with the Criminal Division
regarding an investigation might result in the FISA Court denying a FISA
application, the renewal of an existing FISA, or limit the FBI?s options to
seek the use of the FISA tools at a later date should the FISA Court
interpret these interactions as an indication that intelligence gathering
was not, or no longer was, the primary purpose of the investigation. As a
result, according to the Attorney General?s Review Team- the team
established to review the FBI?s handling of the Los Alamos National
Laboratory investigation- even in foreign counterintelligence investigations
not involving FISA tools, the FBI and OIPR were reluctant to notify the
Criminal Division of possible federal crimes as they feared such contacts
could be detrimental should they decide to subsequently seek the use of FISA
tools.

According to an Associate Deputy Attorney General, resolving these concerns
is complicated because DOJ?s interactions with the FISA Court take place
during FISA proceedings before the court. Introducing new policies or
procedures during an investigation for which the court was considering a
FISA application or renewal (e. g., requiring greater coordination), might
result in the FISA Court rejecting that FISA. The official also said that
DOJ officials did not want to take such a risk.

Contacts between FBI intelligence investigators and the Criminal Division
may also raise concerns with respect to the preservation of certain evidence
in criminal prosecutions. As noted earlier, FISA provides that evidence of
criminal violations gathered during an intelligence investigation may be
shared with law enforcement and, for example, used in a criminal
prosecution. Under the primary purpose test, most courts have held that
information gathered using the FISA tools may be used in subsequent criminal
prosecutions only so long as the primary purpose of the FISA surveillance or
search was to obtain foreign intelligence information. According to Criminal
Division officials, since FISA?s Concerns Regarding Loss of

FISA Investigative Tools Concerns Regarding Loss of Evidence in a Criminal
Prosecution

Page 13 GAO- 01- 780 FBI Intelligence Investigations

enactment, no court using the primary purpose test has upheld a challenge to
the government?s use of FISA- obtained intelligence information for criminal
prosecution purposes. However, OIPR and FBI officials expressed concern that
a federal court could determine that the primary purpose of the surveillance
or search was for a criminal investigation, and, could potentially suppress
any FISA evidence gathered subsequent to that time.

According to Criminal Division officials, the FBI?s and OIPR?s more
restrictive interpretation of what could be shared with the Criminal
Division stemmed from the application of the judicially created primary
purpose test, articulated prior to the enactment of FISA. 16 Most federal
courts have adopted the primary purpose test in post- FISA cases. 17 Under
this test, most federal courts have held that foreign intelligence
information gathered using FISA tools may be used in subsequent criminal
proceedings so long as the primary purpose of the FISA surveillance or
search was to obtain foreign intelligence information.

These officials suggested that the application of the primary purpose test
had not raised potential coordination problems between the FBI and the
Criminal Division until the Aldrich Ames case. In 1994, Aldrich H. Ames, a
Central Intelligence Agency official, was arrested on espionage charges of
spying for the former Soviet Union and subsequently Russian intelligence.
The FISA Court authorized an electronic surveillance of the computer and
software within the Ames? residence. In addition, the Attorney General had
authorized a warrantless physical search of the residence. At that time,
FISA did not apply to physical searches. DOJ obtained a guilty plea from
Ames who was sentenced to life in prison without parole.

Criminal Division and FBI officials said that some in DOJ were concerned
that, had the Ames case proceeded to trial, early and close coordination
between the FBI and the Criminal Division might have raised a question as to
whether the primary purpose of the surveillance and searches of Ames?
residence had been a criminal investigation and not intelligence gathering.
According to these officials, had this question been raised, a court might
have ruled that information gathered using the FISA surveillance and/ or the
warrantless search be suppressed, thereby possibly jeopardizing Ames?

16 See, e. g., United States v. Truong Dinh Hung, 629 F. 2d 908 (1980),
cert. denied, 454 U. S. 1144 (1984). The facts in this case occurred prior
to FISA?s enactment in 1978. 17 See, e. g., United States v. Duggan, 743 F.
2d 49 (1984).

Page 14 GAO- 01- 780 FBI Intelligence Investigations

prosecution. To date, this issue remains a matter of concern to the FBI and
OIPR. OIPR officials indicated that while such a loss had not occurred
because Ames had pleaded guilty, the fear of such a loss, nonetheless, was
real.

Criminal Division officials consider OIPR?s and FBI?s concern in the Ames
case to be overly cautious. In their opinion, the coordination that occurred
during the investigation had been carried out properly and, had the case
been tried, any challenges to the evidence gathered would have been denied
and the prosecution would have been successful.

Moreover, with regard to FBI and OIPR concerns, Criminal Division officials
said that they stemmed from an unduly strict interpretation of the primary
purpose test. As noted earlier, the primary purpose test was articulated
prior to FISA. Division officials cited the opinion of the Attorney
General?s Review Team, which stated, in general, that FISA was not a
codification of the primary purpose test and that FISA, itself, with all its
attendant procedures and safeguards, was to be the measure by which such
surveillance and searches were to be judged. While recognizing that the
FBI?s and OIPR?s concerns were well- intentioned, Criminal Division
officials said that as a result of these concerns the primary purpose test
had been, in effect, interpreted by the FBI and OIPR to mean ?exclusive?

purpose. OIPR officials did not dispute this characterization of OIPR?s
historical concerns relative to primary purpose. However, these officials
said that OIPR?s current position regarding FBI and Criminal Division
coordination was based on their understanding of the FISA Court?s position
on the primary purpose issue relating to such coordination. As a result,
Division officials contend that they have been unable to provide advice that
could have helped the FBI preserve and enhance the criminal prosecution
option. For example, the Division could advise the FBI on ways to preserve
its intelligence sources against compromise during a subsequent criminal
trial. Division officials further contend that their involvement in the
investigation can help to ensure that the case the government presents for
prosecution is the strongest it can produce.

According to OIPR, whenever the government decides to pursue both national
security and law enforcement investigations simultaneously, it may have to
decide, in some instances, whether, or at what point, one of the
investigations must be ended to preserve the integrity of the other.
Criminal Division Believes

OIPR and FBI Concerns Are Overly Cautious

Concerns Regarding Revelation of Intelligence Sources and Methods

Page 15 GAO- 01- 780 FBI Intelligence Investigations

OIPR officials said that the possibility of intelligence sources and methods
being exposed, if evidence gathered during an intelligence investigation is
later used and challenged in a criminal prosecution, remains a concern of
FBI investigators. 18 If the intelligence source or method is deemed to be
of great value, DOJ may have to decide whether protection of the source or
method outweighs the seriousness of the crime and, accordingly, decline
prosecution.

As discussed previously, the primary legislation governing intelligence
investigations of foreign powers and their agents in the United States is
FISA. FISA also provides, however, that intelligence information implicating
criminal violations may be shared with law enforcement. FISA further
contains provisions to help maintain the secrecy of lawful
counterintelligence sources and methods where such information is used in a
criminal proceeding. Specifically, the act provided that where FISA
information is used, introduced, or disclosed in a trial and the Attorney
General asserts that disclosure of such information in an adversary hearing
would harm the national security of the United States, the Attorney General
may seek court review, without the presence of defense counsel, as to
whether the surveillance or search was lawfully authorized and conducted.
OIPR officials emphasized that while the act may provide for such a review,
a judge may decide that the presence of defense counsel was necessary.
Furthermore, officials asserted that, as a result, the presence of the
defendant?s attorney raised the risk that classified information reviewed
during the proceeding could be subsequently revealed, despite these
proceedings being subject to security procedures and protective orders.
Consequently, they added that intelligence investigators might be reluctant
to share with the Criminal Division evidence of a possible federal crime
that had been gathered during an intelligence investigation.

18 According to OIPR officials, the Classified Information Procedures Act,
as amended (P. L. 96- 456, 94 Stat. 2025 (1980)), mitigates against, but
does not eliminate, the risk that prosecution would involve public
disclosure of classified information not covered by the specific statutory
protections afforded FISA applications and related materials.

Page 16 GAO- 01- 780 FBI Intelligence Investigations

Stemming, in part, from concerns raised over the timing and extent of
coordination on the Aldrich Ames case, the Attorney General in July 1995
established policies and procedures for coordinating FBI foreign
counterintelligence investigations with the Criminal Division. 19 One
purpose of the 1995 procedures was to ensure that DOJ?s criminal and
counterintelligence functions were properly coordinated. However, according
to Criminal Division officials and conclusions by the Attorney General?s
Review Team, rather then ensuring proper coordination, problems arose soon
after the Attorney General?s 1995 procedures were promulgated. As discussed,
those problems stemmed from the FBI?s and OIPR?s concerns about the possible
consequences that could damage an investigation or prosecution should a
court make an adverse ruling on the primary purpose issue.

In January 2000, the Attorney General promulgated coordination procedures,
which were in addition to the 1995 procedures. 20 These procedures were
promulgated to address problems identified by the Attorney General?s Review
Team during its review of the FBI?s investigation of the Los Alamos National
Laboratory. Criminal Division officials believed that the 2000 procedures
had helped to improve coordination, especially for certain types of foreign
counterintelligence investigations.

According to DOJ officials, following the conviction of Aldrich Ames, OIPR
believed that the close relationship between the FBI and the Criminal
Division had been near to crossing the line between intelligence and
criminal investigations, thereby risking a decision against the government
if a court had applied the primary purpose test. To address the concerns
raised, in part, by the FBI?s contacts with the Criminal Division in the
Ames case, the Attorney General promulgated coordination procedures on July
19, 1995.

19 Attorney General memorandum dated July 19, 1995, ?Procedures for Contacts
Between the FBI and the Criminal Division Concerning Foreign Intelligence
and Foreign Counterintelligence Investigations.?

20 Memorandum for the Attorney General, dated January 18, 2000, ?To
Recommend that the Attorney General Authorize Certain Measures Regarding
Intelligence Matters in Response to the Interim Recommendations Provided by
Special Litigation Counsel Randy Bellows.? Procedures

Established to Ensure Proper Coordination Led to Problems

The Attorney General?s 1995 Guidelines Were Promulgated to Try to Ensure
Proper Coordination

Page 17 GAO- 01- 780 FBI Intelligence Investigations

The purposes of the 1995 procedures were to establish a process to properly
coordinate DOJ?s criminal and counterintelligence functions and to ensure
that intelligence investigations were conducted lawfully. To accomplish its
coordination purpose, the 1995 procedures, among other things, established
criteria for when and how contacts between the FBI and the Criminal Division
were to occur on foreign counterintelligence investigations. The procedures
identify the circumstances under which the FBI was to notify the Criminal
Division and set forth procedures to govern subsequent coordination that
arises from the initial contact. In investigations involving FISA, the
notification procedures established criteria that ?If in the course of an?[
foreign counterintelligence] investigation utilizing electronic surveillance
or physical searches under the Foreign Intelligence Surveillance Act? facts
or circumstances are developed that reasonably indicate that a significant
federal crime has been, is being, or may be committed, the FBI and OIPR each
shall independently notify the Criminal Division.? Following the Criminal
Division?s notification, the procedures require the FBI to provide the
Criminal Division with the facts and circumstances, developed during its
investigation that indicated significant criminal activity. 21 After the
initial notification, the FBI and the Criminal Division could engage in
certain substantive consultations.

The procedures allowed the Criminal Division to provide the FBI guidance to
preserve the criminal prosecution option; however, the procedures also
established limitations on consultations between the FBI and the Criminal
Division. To protect the intelligence purpose of the investigation, the
procedures limited the type of advice the Criminal Division could provide
the FBI in cases employing FISA surveillance or searches. Specifically, the
procedures prohibited the Division from instructing the FBI on the
operation, continuation, or expansion of FISA surveillance or searches.
Additionally, the FBI and the Criminal Division were to ensure that the
Division?s advice did not inadvertently result in either the fact or
appearance of the Division directing the foreign counterintelligence
investigation toward, or controlling it for, law enforcement purposes.

Criminal Division officials indicated that they believed the procedures
permitted the Division to advise the FBI on ways to preserve or enhance

21 The procedures also place limitations on the FBI?s contacts with U. S.
Attorneys? Offices. Except for exigent circumstances, the procedures in
investigations involving FISA require both OIPR?s and the Criminal
Division?s approval prior to any contact.

Page 18 GAO- 01- 780 FBI Intelligence Investigations

evidence for subsequent criminal prosecutions. The officials said that the
Criminal Division might be able to advise the FBI on ways to preserve its
intelligence sources, for example, by utilizing other sources to develop the
information needed in a prosecution without risking the revelation of its
more valuable sources. Moreover, the Criminal Division may also be able to
advise the FBI on ways to enhance the evidence needed for prosecution, for
example, by developing information that is needed to prove the elements of a
criminal offense.

To implement the new procedures, the FBI Director, in August 1995, sent a
memorandum with the Attorney General?s notification procedures attached to
all Special Agents In Charge of FBI field offices. The Director?s memorandum
provided guidance on the parameters of the Attorney General?s notification
procedures and methods intended to ensure compliance with them. Among the
instructions implementing the Attorney General?s procedures was an
instruction that when investigations met the Attorney General?s criteria for
notification, FBI headquarters, not field offices, ordinarily would be
responsible for notifying the Criminal Division. 22 Moreover, when those
investigations employed FISA techniques, FBI headquarters was to notify OIPR
before notifying the Criminal Division. The purpose of notifying OIPR before
the Criminal Division was so that OIPR could ensure that in subsequent
contacts between the FBI and the Division, the primary purpose of the
subject foreign counterintelligence FISA surveillance or search would
continue to be intelligence gathering. Emphasizing the importance of FBI
headquarters in the notification process, the FBI Director cautioned in his
August 1995 memorandum as follows:

?It is critical that the value of the FBI?s most sensitive and productive
investigative techniques not be affected by their use for purposes for which
they were not principally intended. Careful coordination in these matters by
[FBI headquarters] is essential in order to avoid the inappropriate
characterization or management of intelligence investigations as criminal
investigations, the potential devaluation of intelligence techniques, or the
loss of prosecutive opportunities.?

22 The implementing procedures only permit FBI field offices to contact the
Criminal Division or a U. S. Attorney?s Office directly when exigent
circumstances involving potential danger to life or property are present.
FBI and OIPR Concerns

Affected Implementation of the 1995 Procedures

Page 19 GAO- 01- 780 FBI Intelligence Investigations

According to information provided by FBI officials, after issuance of the
procedures, agents received training on them. The FBI?s Office of General
Counsel developed presentations, which according to FBI officials, were
provided to both new agent trainees at the FBI?s Quantico, VA, training
facility and to experienced special agents. Additional training on the
procedures continued in subsequent years and, on occasion, agents were sent
reminders on the importance of reporting evidence of significant federal
crimes to FBI headquarters so that it could properly coordinate them with
the Criminal Division.

According to the Attorney General?s Review Team?s report, almost immediately
following the implementation of the Attorney General?s 1995 procedures,
coordination problems arose. Rather than ensuring that DOJ?s criminal and
counterintelligence functions were properly coordinated, as intended, the
implementation and interpretation of the procedures triggered coordination
problems. Those problems stemmed from concerns FBI and OIPR officials had
over the possible legal consequences, discussed above, should the FISA Court
or another federal court rule that the primary purpose of the surveillance
or search was for criminal investigation purposes rather than intelligence
gathering. According to Criminal Division officials, coordination of foreign
counterintelligence investigations dropped off significantly following the
implementation of the 1995 procedures. The Attorney General?s Review Team
reported and Criminal Division officials confirmed that when the FBI did
notify the Criminal Division about its foreign counterintelligence
investigations, the notifications tended to occur near the end of the
investigation. As a result, during the investigations the Division would
have been playing little or no role in decisions that could have affected
the success of potential subsequent criminal prosecutions.

An FBI official acknowledged that soon after the implementation of the
Attorney General?s 1995 procedures, coordination concerns surfaced.
According to the official, after the FBI contacted OIPR about an
investigation that needed to be coordinated with the Criminal Division, OIPR
would determine whether and when such coordination should occur. Moreover,
according to OIPR and FBI officials, when OIPR did permit coordination to
take place, it participated in the meetings to help ensure that the contacts
between the agents and the prosecutors did not jeopardize the primary
intelligence purpose of the FISA?s search and surveillance tools. Thus, OIPR
became the gatekeeper for complying with the 1995 procedures. While the 1995
procedures allowed OIPR to participate in consultations between the FBI and
the Criminal Division, the procedures did not set out a gatekeeper role for
OIPR. Moreover, the

Page 20 GAO- 01- 780 FBI Intelligence Investigations

procedures permitted the Criminal Division to provide the FBI guidance aimed
at preserving its criminal prosecution option.

Subsequently, DOJ established working groups in 1996 and again in 1997 to
address coordination problems and the issues underlying FBI, OIPR, and
Criminal Division concerns. But, they were unsuccessful in resolving the
concerns. Remedial actions to address the coordination issues were not taken
until, as discussed below, (1) another working group was established in
August 1999, specifically to address the coordination of intelligence
information among the FBI, OIPR, and the Criminal Division and (2) the
Attorney General?s Review Team submitted interim recommendations to the
Attorney General in October 1999.

In January 2000, based on the Attorney General?s Review Team?s interim
recommendations, the coordination working group recommended to the Attorney
General additional procedures to address the FBI/ Criminal Division
coordination issues. These procedures were designed to stimulate increased
communication between the FBI and the Criminal Division for investigations
that met the notification criteria contained in the 1995 procedures. In
January 2000, the Attorney General approved these procedures. These
procedures, in part, required the FBI to provide the Criminal Division
copies of certain types of foreign counterintelligence case summary
memorandums involving U. S. persons. In addition, the procedures established
a briefing protocol whereby, monthly, FBI National Security Division and
Counterterrorism Division officials judgmentally were to select cases that
they believed to be their most critical and brief the Principal Associate
Deputy Attorney General and the OIPR Counsel on them. These officials
together formed what DOJ officials termed a ?core group.? During these ?core
group critical- case briefings,? Criminal Division officials were to be
briefed on those cases that the core group agreed met the criteria
established in the 1995 procedures for Criminal Division notification.
According to FBI officials, one criterion used to decide which cases to
include in the critical- case briefings was whether a suspected felony
violation was involved. 23 The briefing protocol also established procedures
for subsequent briefings of pertinent Criminal Division section chiefs and
allowed for the Criminal Division to follow up with the FBI in those
critical cases that the Division believed it needed

23 According to DOJ officials, because of the large volume of foreign
counterintelligence investigations, not all investigations implicating a
criminal violation were presented. DOJ Promulgated

Additional Procedures to Address Some Coordination Problems

Page 21 GAO- 01- 780 FBI Intelligence Investigations

more information. According to OIPR and Criminal Division officials, OIPR
maintained its gatekeeper role at these briefings. However, in October 2000,
core group meetings and the briefing protocol were discontinued. According
to DOJ officials, the briefings were discontinued because some participants
believed that these briefings somewhat duplicated sensitive- case briefings
that the FBI provided quarterly to the Attorney General and Deputy Attorney
General. Appendix I provides a chronology of key events related to the
coordination issue.

Subsequent to its 1999 interim recommendations, the Attorney General?s
Review Team, in May 2000, issued its final report to the Attorney General.
In its report, the Review Team raised additional coordination issues and
provided recommendations to resolve them. To address these issues and
recommendations, the coordination working group developed a decision
memorandum in October 2000, for the Attorney General?s approval. According
to working group officials, the memorandum recommended revisions to the 1995
procedures and included decision options for consideration for the issues on
which the working group could not reach agreement, including an option
advocated by the Office of the Deputy Attorney General. The primary issue on
which the coordination working group could not agree reflects differences of
opinion among the Criminal Division, OIPR, and the FBI as to what advice the
Division may provide the FBI without jeopardizing either the intelligence
investigation or any resulting criminal prosecution. This issue reflects the
same underlying concern- judicially acceptable contacts and information
sharing between the FBI and the Criminal Division- that affected proper
implementation of the 1995 procedures and earlier disagreements over
coordination in foreign counterintelligence FISA investigations. As of the
completion of our review, no decision on the memorandum had been made. Thus,
issues addressed in the memorandum remain. These include the advice issue
and varying interpretations of whether certain criminal violations are
considered ?significant violations? that would trigger the Attorney
General?s coordination procedures, as well as other issues. Another issue
identified that could impede coordination, but was not addressed in the
memorandum, is the adequacy and timeliness of the FBI?s case summary
memorandums. DOJ Has Taken

Additional Action to Address Coordination, but Some Impediments Remain

Page 22 GAO- 01- 780 FBI Intelligence Investigations

In May 2000, the Attorney General?s Review Team sent to the Attorney General
its final report on and recommendations to address problems identified
during its review of the FBI?s investigation of possible espionage at the
Los Alamos National Laboratory. To address those problems dealing with
coordination between the FBI and the Criminal Division, the established
coordination working group, which was led by the Principal Associate Deputy
Attorney General and included representatives from FBI, OIPR, and the
Criminal Division, was given responsibility to review the report and the
Review Team?s recommendations. In addition to the Review Team?s report, the
coordination working group considered intelligence coordination issues
raised in the DOJ Office of Inspector General?s report on DOJ?s campaign
finance investigation. On the basis of its deliberations, the coordination
working group developed a decision memorandum and sent it to the Attorney
General for approval in October 2000. According to working group officials,
the group was able to reach consensus on most issues. For example, these
officials said that the group had agreed to recommend that for clarity the
reference to the phrase

?significant federal crime? in the 1995 procedures be changed to ?federal

felony,? since they believed that the term ?significant? was too ambiguous
and that the term ?felony? would be open to less interpretation as the
particular elements comprising any particular felony violation are set out
in statute.

The working group officials told us that on issues on which the group could
not reach consensus, the memorandum presented options, including an option
advocated by the Office of the Deputy Attorney General. Specifically,
working group officials indicated that the group could not reach a consensus
regarding the permissible advice the Criminal Division should be allowed to
provide to intelligence investigators. Although the working group agreed
that the Criminal Division should play an active role in foreign
counterintelligence investigations employing FISA tools, it could not agree
on the type of advice the Criminal Division should be allowed to provide.
For example, OIPR officials indicated that they believed that the FISA Court
held a restrictive view on the issue of notification and advice and that
this view would affect the FISA Court?s decisions to authorize a FISA
surveillance or search. 24 In contrast, a working group official said that
the Criminal Division and Attorney General?s Review Team held less
restrictive views on the notification and advice issues. Criminal Division

24 OIPR officials believe that the direction of the FISA Court may be
gleaned from the orders that it issues when it grants a FISA surveillance or
search. Working Group Continued

Efforts to Address Foreign Counterintelligence Coordination Issues

Page 23 GAO- 01- 780 FBI Intelligence Investigations

officials said that FISA did not prohibit contact between investigators and
prosecutors. They said that it was inconceivable that the Division should be
left in the dark in these cases, which they characterized as being of
extraordinary importance. They argued that in these cases effective
coordination was important to develop the best case possible to bring to
prosecution. In its report, the Attorney General?s Review Team asserted that
there should be little restriction on the advice the Criminal Division
should be allowed to provide. The working group left the matter for the
Attorney General to decide.

After the Attorney General took no action on the memorandum between October
and December 2000, the working group again reviewed their positions for
possible areas of consensus and made minor changes to the memorandum, which
they resubmitted to the Attorney General in December. Since the basic
positions of the working group participants did not change materially, the
outstanding issues remained areas of disagreement. The Attorney General did
not make a decision on the recommendations before leaving office on January
20, 2001.

In March 2001, the decision memorandum was sent to the Acting Deputy
Attorney General for the Attorney General?s decision. On the basis of the
Acting Deputy Attorney General?s review, a new core group process was
implemented. As of the completion of our review, no other action had been
taken on the memorandum or the recommendations therein.

Despite reported improvements in coordination between intelligence
investigators and criminal prosecutors, in part, as a result of the
implementation of the January 2000 procedures, several of the same
coordination impediments remain. Some of these impediments stemmed from the
longstanding differences of opinion regarding possible adverse judicial
interpretations of what might be acceptable contacts and information sharing
between the FBI and the Criminal Division. Also, Criminal Division officials
expressed some concerns regarding the case summary memorandums provided by
the FBI.

Despite the efforts of the coordination working group, differences of
opinion remained regarding the possible consequences of potential adverse
judicial interpretation of the notification of the Criminal Division and the
type of advice it may provide without crossing the line between an
intelligence investigation and a criminal investigation. Furthermore, since
the Attorney General had not approved the memorandum, the working group?s
recommendation to clarify language in the 1995 procedures that Some
Impediments to

Coordination Remain Differing Opinions on the Requirements and Prohibitions
of the Attorney General?s Coordination Procedures Persist

Page 24 GAO- 01- 780 FBI Intelligence Investigations

trigger the Criminal Division?s notification was not implemented and,
therefore, that issue remains.

OIPR, FBI, and Criminal Division officials have continued to strongly differ
in their interpretation as to when the Criminal Division should be notified
of FBI intelligence investigations involving suspected significant federal
crimes, and what type of advice the Criminal Division is permitted to
provide FBI intelligence investigators without compromising the primary
purpose of the intelligence surveillance or search (i. e., risk losing a
FISA application or renewal, or future FISA request). Specifically, the
issue revolved around the officials? different perceptions of how
restrictively the FISA Court might interpret Criminal Division notification
or any subsequent advice the Division may provide. Working group officials
indicated that the pertinent parties continued to disagree on procedural
issues, such as the type of the advice that the Criminal Division should be
allowed to give. For example, a working group official suggested that
numerous categories of the types of advice the Criminal Division can provide
could be created. However, such distinctions made it difficult to determine
what advice under which circumstances could be provided without risking the
loss of FISA authority. According to working group officials, these
differences were left unresolved in the December 2000 decision memorandum.

In addition, the language indicating when the Criminal Division is to be
notified remained an issue. Although the working group?s December 2000
memorandum recommended clarifying the language in the 1995 memorandum which
triggered the Criminal Division?s notification by changing the term
?significant federal crime? to ?federal felony,? the significant federal
crime language remains in effect without the Attorney General?s approval.
OIPR officials said that the coordination workinggroup members had agreed to
the proposed change in language in order to make it clearer when the
Criminal Division was to be notified. Although the working group members
agreed, our interviews with some FBI officials, responsible for recommending
that the Criminal Division be notified, indicated that they continued to use
the significant threshold and that there were still disagreements as to its
meaning. For example, FBI Counterterrorism Division officials told us that
there still were disagreements over what constituted significant, and,
therefore, differences of opinion as to when the Criminal Division should be
notified. The officials said that these differences might have to be
resolved at the highest levels of DOJ and the FBI. These FBI officials
remained cautious regarding contacts between FBI intelligence investigators
and the Criminal Division, preferring a higher threshold. Although addressed
in the working

Page 25 GAO- 01- 780 FBI Intelligence Investigations

group?s memorandum, this issue remains pending action by the Attorney
General.

According to Criminal Division officials, while the 2000 procedures had
increased intelligence coordination, questions and concerns remained
regarding the adequacy of FBI case summary memorandums for the Criminal
Division?s purposes and the timeliness of the memorandums.

Criminal Division officials said that they had questions as to whether some
FBI case summary memorandums were sufficiently comprehensive to indicate
criminal violations. They said that while it is relatively easy to discern
from some FBI case summary memorandums whether criminal violations have been
committed, in others it is not. OIPR officials also noted that FBI case
summary memorandums were not always clear from the way they were written as
to whether intelligence investigators had reason to believe that the
criteria established by the Attorney General?s 1995 guidelines for
notification had been triggered. According to the Criminal Division and OIPR
officials, the case summary memorandum format does not require agents to
address whether or not a possible criminal violation was implicated or
contain a specific section for doing so.

Criminal Division officials also asserted that for their purposes the case
summary memorandums were not always timely. Criminal Division officials
indicated that there could be a significant time lag between the time when a
significant criminal violation was revealed or investigative actions in a
case occurred and when the memorandums were provided to the Division. They
added that the timeliness of the memorandums could be a problem, because
events can often overtake an investigation. For example, the officials said
that should an investigative target be planning to go overseas, the Criminal
Division would like to have information in a timely manner so that it can
assess its prosecutorial equities against the risk that the target may flee
the country. Division officials said that the Division only receives the
initial memorandums within 90 days after the investigation had been opened
and, subsequently, annually thereafter. Thus, the memorandums the Criminal
Division receives may not be timely enough to protect its prosecutorial
equities in a case.

No matter what impediments remain, the question exists as to how and how
often has the lack of timely coordination adversely affected DOJ
prosecutions. In its report on the FBI?s handling of the Los Alamos National
Laboratory investigation, the Attorney General?s Review Team The Criminal
Division Has

Concerns About the Adequacy and Timeliness of the Case Summary Memorandums

Page 26 GAO- 01- 780 FBI Intelligence Investigations

found that, by not coordinating with the Criminal Division at an earlier
point, the FBI?s intelligence investigation might have been harmed and that
had the Criminal Division been allowed to provide advice it could have
helped the FBI to better develop its case. Since the 1995 guidelines were
implemented, for those intelligence investigations of which they were aware,
Criminal Division officials were able to identify one other case in which
the prosecution may have been impaired by poor and untimely coordination.

Regardless of the number of prosecutions that may have been adversely
affected by poor or untimely coordination, Division officials argued that
due to the significance of these types of cases, it was important that the
strongest cases be developed and brought forward for prosecution. The
officials said that the practical effect of not being involved during an
investigation is that the Criminal Division was not aware of interviews
conducted or approaches made, such as certain types of undercover
operations, that could have helped make sure the prosecutorial equities were
preserved or enhanced. Moreover, commenting on the adverse effects of being
informed about investigations at the last minute, the officials said that it
takes time to prepare cases for prosecution. They indicated that being
informed of an investigation at the last minute could be problematic because
it takes more than 2 or 3 days to prepare search warrants or obtain orders
to freeze assets.

In addition to the impediments noted above, Criminal Division officials
continued to question whether all investigations that met the criteria of
the 1995 procedures were being coordinated. Such concerns indicate that an
oversight mechanism to help ensure compliance with the Attorney General?s
1995 coordination procedures was lacking. Office of the Deputy Attorney
General and FBI officials acknowledged that, historically, no mechanisms had
been created to specifically ensure compliance with the Attorney General?s
1995 procedures. Recently, two mechanisms have been created to help ensure
Criminal Division notification. However, both mechanisms lacked written
policies or procedures to institutionalize them and help ensure their
perpetuation.

Criminal Division officials said that while they knew which investigations
were being coordinated, they did not know whether any existed about which
they were not being notified. Furthermore, Division officials said they were
still concerned that the FBI and OIPR might not notify the Division or
provide the Division with the information in sufficient time for Mechanisms
Created

to Ensure Compliance With the Procedures Have Not Been Institutionalized

Criminal Division?s Concerns Indicate That an Oversight Mechanism Was
Lacking

Page 27 GAO- 01- 780 FBI Intelligence Investigations

it to provide appropriate advice to the investigation or protect its
prosecutorial equities in the case. Division officials also questioned
whether foreign counterintelligence investigations involving possible
federal criminal violations were being closed without the Criminal Division
being notified and, thereby, potentially affecting the Division?s ability to
exercise its prosecutorial equities in those cases. These concerns indicate
that an oversight mechanism to ensure compliance with the Attorney General?s
coordination procedures was lacking.

Historically, DOJ had not developed oversight mechanisms specifically
targeted at ensuring compliance with the 1995 requirements for notification.
DOJ officials noted that ordinarily, DOJ expects components to comply with
the Attorney General?s directives. According to the former Principal
Associate Deputy Attorney General, no mechanism existed to provide
systematic oversight of compliance with the notification procedures.

Other than its normal oversight of investigations, such as periodic
supervisory case reviews and reviews of FISA applications, the FBI did not
have a specific or independent oversight mechanism that routinely checked
whether FBI investigations complied with the 1995 procedures. FBI Inspection
Division officials said that every 3 years the Inspection Division is to
review the administration and operation of FBI headquarters and field
offices, including whether or not policies and guidelines were being
followed. The officials said that in the course of field offices
inspections, certain aspects of investigations employing FISA surveillance
or searches are reviewed, including whether the applications were properly
prepared and accurately supported and whether there were appropriate field
office administrative checks of the process. However, the Inspection
officials said that, where such investigations had detected possible
criminal violations, compliance with the Attorney General?s coordination
procedures was not an issue that Inspection reviewed. Thus, the FBI had no
assurance that foreign counterintelligence investigations that met the
criteria for notification established by the 1995 procedures were being
coordinated with the Criminal Division.

Since mid- 2000, two new mechanisms have been created to help better ensure
that FBI foreign counterintelligence investigations meeting the Attorney
General?s requirements for notification are coordinated with the Criminal
Division. First, in mid- 2000, OIPR implemented a practice aimed at
identifying from FBI submitted investigation summaries those DOJ Lacked
Oversight

Mechanisms to Ensure Compliance With Notification Requirement

Recently Created Mechanisms Should Help Better Ensure Notification

Page 28 GAO- 01- 780 FBI Intelligence Investigations

investigations that met the notification criteria established in the 1995
procedures. Then, in April 2001, DOJ reconstituted the core group and gave
it a broader role in overseeing coordination issues and in better ensuring
Criminal Division notification. However, these mechanisms have not been
institutionalized in writing and, thus, their perpetuation is not ensured.
Federal internal control standards require that internal controls be
documented. 25

OIPR officials said that, based in part on the Attorney General?s Review
Team?s findings and to ensure greater compliance with the 1995 procedures,
OIPR managers began emphasizing at weekly meetings with OIPR attorneys, and
in a February 2001 e- mail reminder to them, the importance of coordinating
relevant intelligence investigations with the Criminal Division. According
to OIPR officials, OIPR attorneys were instructed that when they reviewed
FBI FISA applications, case summary memorandums, or other FBI
communications, they were to be mindful of OIPR?s obligation to identify and
report to the Criminal Division FBI investigations involving appropriate
potential violations. When the OIPR attorneys identify FBI investigations in
which there is evidence of violations that meet the criteria established in
the 1995 guidelines, they are to notify OIPR management. Management then is
to contact both the FBI and the Criminal Division to alert them that in
OIPR?s opinion, the notification requirement had been triggered. Then,
whenever the FBI and the Criminal Division meet to coordinate the
intelligence investigation, OIPR attends to help ensure that the primary
purpose of the surveillance or search is not violated.

OIPR officials believed that its practice has been working well. In
commenting on improved coordination, both the Criminal Division Deputy
Assistant Attorney General responsible for intelligence matters and the
Chief of the FBI?s International Terrorism Section noted instances where
OIPR had contacted them to alert them to investigations that met the
criteria established by the Attorney General?s coordination procedures. As
of April 2001, the Criminal Division Deputy Assistant Attorney General
estimated that since OIPR had initiated its practice, it had contacted the
Division about approximately a dozen FBI investigations that OIPR believed
met the Attorney General?s requirements for notification.

25 Standards for Internal Control in the Federal Government (GAO/ AIMD- 00-
21. 3. 1, Nov. 1999). OIPR?s Practice Identified

FBI Investigations Meeting the Attorney General?s Notification Requirements

Page 29 GAO- 01- 780 FBI Intelligence Investigations

In April 2001, the acting Deputy Attorney General decided to reconstitute
the core group and to give it a broader role for overseeing coordination
issues. The core group, similar to the prior core group, is comprised of
several officials from the Office of Deputy Attorney General, an official
representing the Office of Intelligence Policy and Review, and the Assistant
Directors of the FBI?s National Security and Counterterrorism Divisions.
Whereas the previous core group?s role was to decide which of the FBI?s most
critical cases met the requirements of the Attorney General?s coordination
procedures and needed to be coordinated with the Criminal Division, the new
core group?s role is broader. According to an Associate Deputy Attorney
General and core group member, the new group is to be responsible for
deciding whether particular FBI investigations meet the requirements of the
coordination procedures and to identify for the Attorney General?s attention
any cases involving extraordinary situations where compliance with the
guidelines requires the Attorney General?s consideration.

According to the Associate Deputy Attorney General, the FBI is to bring to
the core group?s attention any investigation in which it is not clear that
the Attorney General?s procedures have been triggered. For example, during
an FBI investigation should it not be clear whether a criminal violation
should be considered a significant federal crime, as indicated in the
procedures, the FBI is to bring the matter to the core group for resolution.
Thus, this is a much broader scope of responsibility than the prior core
group?s which only considered the need for coordination in those critical
cases that were judgmentally selected by the FBI. Furthermore, the core
group also is to be responsible for identifying for the Attorney General?s
attention those extraordinary situations where the FBI believes there may be
good reason not to notify the Criminal Division. For extraordinary
situations, the Associate Deputy Attorney General opined that it was
expected that the number of such questions brought to the core group would
be extremely few.

While both mechanisms, if implemented properly, should help to ensure
notification of the Criminal Division, neither mechanism has been written
into policies or procedures. OIPR?s Counsel pointed out that while OIPR
would try to ensure better coordination by employing this practice, it was
not a part of OIPR?s mission. OIPR?s priority was to make sure that the FBI
had what it needed to protect national security. She added that ensuring
coordination could not be a priority for OIPR without additional attorney
resources. OIPR?s Counsel further said that OIPR frequently has had its
hands full trying to process requests for FISA surveillance and searches
Reconstituted Core Group to

Provide Broader Oversight to Coordination Issues

Mechanisms Have Not Been Institutionalized

Page 30 GAO- 01- 780 FBI Intelligence Investigations

without having to worry about the criminal implications of those cases. She
noted that over the last few years, the FBI has received a significant
number of additional agent resources and had increased its efforts to combat
terrorism, espionage, and foreign intelligence gathering. As a result, FISA
requests had increased significantly, while OIPR resources needed to process
those requests had not kept apace. 26

While the practice may be working well to date, the practice has not been
put into writing and, thus, has not been institutionalized. On the basis of
our conversations with OIPR, the Criminal Division, and FBI officials, the
extent to which OIPR has allowed coordination and advice to occur, currently
and in the past, has varied depending upon the views and convictions of the
Counsel responsible for OIPR at the time. As OIPR?s coordination practices
have varied over the years, the perpetuation of the current practice could
depend on future Counsels? views on the coordination issue and, more
importantly, how restrictively they believe the FISA Court views
coordination with the Criminal Division.

Likewise, the core group has not been institutionalized. Although at the
time of our review it had met on two occasions since its creation, according
to the Associate Deputy Attorney General there has been no written
documentation establishing the core group or defining its role and
responsibilities. Federal internal control standards require that internal
controls need to be clearly documented. Furthermore, these standards require
that such documentation appear in management directives, administrative
policies, or operating manuals.

Differing interpretations within DOJ of adverse consequences that might
result from following the Attorney General?s 1995 coordination procedures
for counterintelligence investigations involving FISA surveillance and
searches have inhibited the achievement of one of the procedures? intended
purpose- to ensure that DOJ?s criminal and counterintelligence functions
were properly coordinated. These interpretations resulted in less
coordination. Additional procedures implemented in January 2000,

26 The Conference Report related to DOJ?s appropriation for fiscal year
2001, includes additional resources for OIPR with respect to FISA
applications (H. R. Conf. Rep. 106- 1005, at 195 (2000)). According to OIPR
officials, these resources were, in part, for additional attorneys; however,
as of April 1, 2001, those resources had not as yet come on board. According
to OIPR officials, as a result, its attorney resources should double by the
end of the year. Conclusions

Page 31 GAO- 01- 780 FBI Intelligence Investigations

requiring the sharing of certain FBI investigative case summaries, creating
a core group, and instituting the core group critical- case briefing
protocol helped to improve the situation by making the Criminal Division
aware of more intelligence investigations with possible criminal
implications. Subsequently, the core group and the critical- case briefing
protocol were discontinued. However, in April 2001, a revised core group was
created with a broader coordination role. It is too early to tell how
effective a mechanism the new core group process will be for overseeing the
requirement for notification. Nevertheless, other impediments remain.

The differing interpretations comprise the main impediment to coordination.
Intelligence investigators fear that the FISA Court or another federal court
could find that the Criminal Division?s advice to the investigators altered
the primary intelligence purpose of the FISA surveillance or search. Such a
finding could lead to adverse consequences for the intelligence
investigation or the criminal prosecution. As such cases involve highly
sensitive national security issues, this is no small matter and caution is
warranted. However, this longstanding issue has been reviewed at high-
levels within DOJ on multiple occasions and Criminal Division officials
believe the concerns, while well intentioned, are overly cautious given the
procedural safeguards FISA provides. While the problems underlying the lack
of coordination have been identified, the solutions to these problems are
complex and involve risk. These solutions require balancing legitimate but
competing national security and law enforcement interests. On the one hand,
some risk and uncertainty will likely remain regarding how the FISA Court or
another federal court might upon review interpret the primary purpose of a
particular surveillance or search in light of notification of the Criminal
Division and the subsequent advice it provided. On the other hand, by not
ensuring timely coordination on these cases, DOJ may place at risk the
government?s ability to bring the strongest possible criminal prosecution.
Therefore, a decision is needed to balance and resolve these conflicting
national security and law enforcement positions.

Beyond resolving these differences, DOJ and the FBI can take several actions
to better ensure that possible criminal violations are identified and
reported and that mechanisms to ensure compliance with the notification
requirements of Attorney General?s 1995 procedures are institutionalized.
Such actions could facilitate the coordination of DOJ's counterintelligence
and prosecutorial functions.

Page 32 GAO- 01- 780 FBI Intelligence Investigations

To facilitate better coordination of FBI foreign counterintelligence
investigations meeting the Attorney General?s coordination criteria, we
recommend the Attorney General establish a policy and guidance clarifying
his expectations regarding the FBI?s notification of the Criminal Division
and types of advice that the Division should be allowed to provide the FBI
in foreign counterintelligence investigations in which FISA tools are being
used or their use anticipated.

Further, to improve coordination between the FBI and the Criminal Division
by ensuring that investigations that indicate a criminal violation are
clearly identified and by institutionalizing mechanisms to ensure greater
coordination, we recommend that the Attorney General take the following
actions:

1. Direct that all FBI memorandums sent to OIPR summarizing investigations
or seeking FISA renewals contain a section devoted explicitly to identifying
any possible federal criminal violation meeting the Attorney General?s
coordination criteria, and that those memorandums of investigations meeting
the criteria for Criminal Division notification be timely coordinated with
the Division.

2. Direct the FBI Inspection Division, during its periodic inspections of
foreign counterintelligence investigations at field offices, to review
compliance with the requirement for case summary memorandums sent OIPR to
specifically address the identification of possible criminal violations.
Moreover, where field office case summary memorandums identified reportable
instances of possible federal crimes, the Inspection Division should assess
whether the appropriate headquarters unit properly coordinated with the
Criminal Division those foreign counterintelligence investigations.

3. Issue written policies and procedures establishing the roles and
responsibilities of OIPR and the core group as mechanisms for ensuring
compliance with the Attorney General?s coordination procedures.

In written comments on a draft of this report, the Acting Assistant Attorney
General for Administration responding for Justice responded that on two of
our recommendations, the Department has taken full or partial action.
Concerning our recommendation to institutionalize OIPR?s role and
responsibilities for ensuring compliance with the Attorney General's
coordination procedures, the Acting Counsel for Intelligence Policy on
Recommendations for

Executive Action Agency Comments and Our Evaluation

Page 33 GAO- 01- 780 FBI Intelligence Investigations

June 12, 2001, issued a memorandum to all OIPR staff. That memorandum
formally articulated OIPR?s policy of notifying the FBI and the Criminal
Division whenever OIPR attorneys identify foreign counterintelligence
investigations that meet the requirements established by the Attorney
General for coordination. We believe this policy should help perpetuate
OIPR?s mechanism for ensuring compliance with the 1995 coordination
procedures beyond any changes in OIPR management. Moreover, establishing a
written policy places the Department in compliance with the documentation
standard delineated in our ?Standards for Internal Control in the Federal
Government.?

Concerning our recommendation regarding the FBI?s Inspection Division, the
Deputy Attorney General directed the FBI to expand the scope of its periodic
inspections in accord with our recommendation or explain why it is not
practical to do so and, if not, to suggest alternatives. While this is a
step in the right direction, full implementation of the recommendation will
depend on whether the FBI can expand the scope of its inspections, or
develop acceptable alternatives, to address coordination of foreign
intelligence investigations where federal criminal violations are
implicated. This, in turn, will depend on the extent to which the FBI case
summary memorandums seeking FISA renewals, or whatever medium is
subsequently used to accomplish that purpose, contains a separate section
indicating possible federal criminal violations.

Concerning our recommendation that the Attorney General establish a policy
and guidance clarifying his expectations regarding the FBI?s notification of
the Criminal Division and the types of advice the Division should be allowed
to provide, DOJ, citing the sensitivity and difficulty of the issue, said
that the Attorney General continues to review the possibility of amending
the July 1995 coordination procedures. Our report recognizes the complexity
of the issue and DOJ?s concerns about the uncertainties that any change in
the procedures will create on how the courts may view such changes in their
rulings. Nevertheless, as we pointed out, this issue has been longstanding
and the concerns that it has generated by some officials has inhibited the
achievement of one of the intended purposes of the procedures, that is, to
ensure that DOJ?s criminal and counterintelligence functions were properly
coordinated. Because such coordination can be critical to the successful
achievement of both counterintelligence investigations and criminal
prosecutions, the issue needs to be resolved as soon as possible. We remain
concerned that delays in resolving these issues could have serious adverse
effects on critical cases involving national security issues.

Page 34 GAO- 01- 780 FBI Intelligence Investigations

Concerning our two remaining recommendations-( 1) that all FBI memorandums
sent to OIPR summarizing investigations seeking FISA renewals contain a
section specifically devoted to identifying federal criminal violations and
(2) that the Attorney General institutionalize the role of the Core Group--
DOJ said that they were being reviewed, but offered no timeframe for their
resolution.

With respect to other points raised in Justice?s comments, we have
incorporated in our report, where appropriate, the Department?s technical
comments concerning our discussion of the primary purpose test and the
courts? views on it. Regarding the Department?s point that it is probably
more accurate to divide the concept of coordination into an
informationsharing component and an advice- giving component, we believe our
report adequately differentiates between the two concepts and that we
accurately report that the issue concerning the type of advice the Criminal
Division can provide has been the primary stumbling block to better
coordination. Thus, we made no change regarding this matter. Moreover, while
the Department wrote that all relevant Department components agree that
information sharing is usually appropriate for all felonies, we found and
our report notes that the timing of the information sharing has been an
issue. Furthermore, notifications tended to occur near the end of the
investigation, with the Criminal Division playing little or no role in
decisions that could effect the success of potential subsequent
prosecutions. Even with the later procedural changes to coordination, the
Criminal Division still had concerns about the timeliness issue. In this
regard, the actions DOJ said it has taken in response to our report and our
recommendation concerning FBI case summary memorandums, if implemented,
should help improve coordination timeliness.

As agreed with your office, unless you publicly release its contents
earlier, we plan no further distribution of this report until 30 days from
its issue date. At that time, we will provide copies of this report to the
Chairman of the Committee on Governmental Affairs; the Chairmen and Ranking
Minority Members of the Committee on the Judiciary and the Select Committee
on Intelligence, United States Senate; the Chairmen and Ranking Minority
Members of the Committee on Government Reform, the Committee on the
Judiciary, and the Permanent Select Committee on Intelligence, House of
Representatives; the Attorney General; the Acting Director of the Federal
Bureau of Investigation; and the Director of the Office of Management and
Budget. We will also make copies available to others on request.

Page 35 GAO- 01- 780 FBI Intelligence Investigations

If you should have any questions about this report, please call Daniel C.
Harris or me on (202) 512- 8777. Key contributors to this report were Robert
P. Glick, Barbara A. Stolz, Jose M. Pena III, and Geoffrey R. Hamilton.

Sincerely yours, Richard M. Stana Director, Justice Issues

Appendix I: Chronology of Key Events Relating to FBI/ DOJ Coordination

Page 36 GAO- 01- 780 FBI Intelligence Investigations

The following table shows key events relating to coordination of FBI foreign
counterintelligence investigations with the Criminal Division.

Table 1: Key Events Relating to FBI/ DOJ Coordination Date Event

1978 Foreign Intelligence Surveillance Act (FISA) is enacted. 1980 U. S.
Court of Appeals for the 4th Circuit sustains the application of the
?primary purpose? test in U. S. vs. Truong

Dinh Hung. Facts in the case were developed prior to FISA?s enactment. 1994
FISA is amended to include physical search authority. July 1995 Attorney
General?s coordination procedures are promulgated. 1996 DOJ working group
created to address coordination issues and concerns. The working group was
unable to resolve

the issues and concerns. 1997 Second working group created to address
continuing coordination issues and concerns. The group also was unable

to resolve them. 1999 Third coordination working group is established.
January 2000 Attorney General issues additional coordination procedures,
which establish a ?core group? and critical- case briefing

protocol and require the sharing of certain case summary memorandums. Mid-
2000 Office of Intelligence Policy and Review implements a mechanism
intended to help ensure that the FBI notifies the

Criminal Division of cases meeting the criteria for notification. October
2000 Coordination working group drafts memorandum recommending to the
Attorney General revisions to the July 1995

coordination procedures. The memorandum, with minimal revisions, was
resubmitted in December 2000. October 2000 The core group and critical- case
briefing protocol are discontinued. April 2001 The core group is
reconstituted with expanded responsibilities.

Source: GAO analysis based on legal documents and DOJ documents and
interviews.

Appendix I: Chronology of Key Events Relating to FBI/ DOJ Coordination

Appendix II: Comments From the Department of Justice

Page 37 GAO- 01- 780 FBI Intelligence Investigations

Appendix II: Comments From the Department of Justice

Note: GAO comments supplementing those in the report text appear at the end
of this appendix.

See comment 1. See comment 1.

Appendix II: Comments From the Department of Justice

Page 38 GAO- 01- 780 FBI Intelligence Investigations

See comment 1. See comment 1.

Appendix II: Comments From the Department of Justice

Page 39 GAO- 01- 780 FBI Intelligence Investigations

See comment 1. See comment 1.

Appendix II: Comments From the Department of Justice

Page 40 GAO- 01- 780 FBI Intelligence Investigations

Now on p. 30. See comment 4. See comment 3.

See comment 2.

Appendix II: Comments From the Department of Justice

Page 41 GAO- 01- 780 FBI Intelligence Investigations

See comment 5. See comment 4.

Appendix II: Comments From the Department of Justice

Page 42 GAO- 01- 780 FBI Intelligence Investigations

Appendix II: Comments From the Department of Justice

Page 43 GAO- 01- 780 FBI Intelligence Investigations

The following are GAO?s comments on the Department of Justice?s letter dated
June 21, 2001.

1. See ?Agency Comments and Our Evaluation? section. 2. DOJ suggested in its
comments that we address the question of

whether or not the 1995 coordination procedures were being applied
correctly. As we noted in the scope and methodology section of this report,
as agreed with the requester of the report, we did not review specific cases
to try to identify instances of compliance or noncompliance with the
coordination procedures.

3. DOJ also suggested in its comments that we address whether and how the
coordination procedures ought to be changed. Given that since 1995, this
issue has been studied by three high- level DOJ working groups and the
Attorney General?s Review Team and because of the concerns expressed by some
DOJ officials in our report, we believe that DOJ is in the best position to
address any changes to its procedures.

4. The Department suggested that we emphasize to a greater extent throughout
our report the sensitivity and complexity of the issues. In addition, it
provided additional language for the report to reflect the issues?
sensitivity and complexity. We agree that the issues discussed are sensitive
and complex, however, we believe the report adequately conveys these points
and, thus, we did not revise our report to address the Department?s
suggestion.

5. DOJ suggested a factual correction to recognize that two decision
memorandums were submitted to the Attorney General; one in October 2000, and
a second in December 2000. On pages 22 and 23 of our report, we discuss the
submission of both memorandums. Concerning DOJ?s suggestion that we note the
options that these memorandums presented, we did not adopt this suggestion
as DOJ had opted not to provide us with the details of its options when we
met to discuss the memorandums. GAO Comments

(182097)

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