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"The

Wall"

Thefollowing comments addressthediscussioninChapter3 of the

Commission's

report,

entitled

"Counterterrorism

Evolves." These

comments focus on

the discussion found

pages 9-11 regarding

"Legal

Constraints

on the FBI and

'the

Wall.'"

Other Commission commentson thewalland theroleof the

Office

ofIntelligence Policy and Review (OIPR) are found in Chapter 6, page 35, and in Chapter

pages

14,

16, and, in particular, page 30 footnote 85. This document responds tothose pages

well.The Commission's report can be read to suggest that

OIPR

itself, withoutsupervision

from

Department leadership, undermined Departmental directives andmaintained "the wall" on its own, determining the course of the FISA program and the

disposition

individual

FISA

applications. For example, in Chapter 3, page

andrelated footnotes, the Commission makes, among others, the following commentsregarding

OIPR's

role

with respecttoinformation sharing: "The OfficeofIntelligencePolicy and Review became the gatekeeper for the flow of

FISA

information to criminalprosecutors"; "The

Office

Intelligence

Policy and Review began to drive a wedgebetweenintelligence

and

criminal matters";

"[OIPR] had

sole authority

decide whatwas presented to the FISC and therefore it wielded extraordinary power in the FISAprocess"; "Some barriers

were

proposed by OIPR in the FISA

applications

andsubsequently adopted

by the

FISC."We submit that these comments overstate the

role

OIPR played in the FISAprocess in that they portray an organization that developed its own interpretation of the

law

and Department policies, and enforced that interpretation without supervision byDepartment leadership. Instead,

submit that OIPR followed

widely acceptedinterpretation of the law, and adhered to Department policies regarding:

(1)

the sharing

intelligence information with criminal prosecutors,and (2) thenatureof therelationship between criminal prosecutors

and

intelligence agents that

was

permittedundertheprevailing viewof thelaw.

Introduction

What came to be known as "the wall" separating law enforcement andintelligence officials in the conduct of their duties has it origins in constitutionalprinciples, legislative enactments

and

reports,

and

judicial rulings,

and in

executivebranch understandings and interpretations of those authorities. From at least the

1970son,

all

three

branches of

government

shareda

common

understanding that

foreign

intelligence collection and law enforcement

were

distinct executive functions. Although

FISA

was designed to collect foreign intelligence information, it was understood thatsuch information could be used as evidence in a criminal prosecution so long as

intelligence

-- and not law

enforcement

-- was the

"primary purpose"

of the

collection.

the report describes, during the

1980s,

the Department operated largelyunder a set of unwritten rules that limited the interaction between intelligence and law

enforcement officials.

Following

the investigation of Aldrich Ames,

however,

confluence

of legal, bureaucratic and cultural factors led to the development in the

mid-

1990s

written internal Department

Justice procedures that directly regulated

the

interaction between law enforcement and intelligence officials in terrorism andespionage cases. These procedures were set forth in broad policy decisiondocuments, such a July 1995 Attorney General memorandum regarding FBI contacts

with

criminal prosecutors, as well as other more case-specific decisions that

were

taken, such a March 1995 Deputy Attorney General memorandum setting forthprocedures for conducting a particular set of related criminal and intelligenceinvestigations.These procedures

were

intended to permit a significant degree of interaction and

information

sharing between prosecutors

and FBI agents in

intelligence

cases

(so long

as prosecutors did not direct or control the investigation toward law enforcementobjectives) while at the same time ensuring that the FBI would be able to obtain orcontinue

FISA

coverage and,

later,

use the fruits of that coverage in a criminalprosecution. The manner in which the written procedures

were

interpreted andimplemented, however, resulted in far more limited information sharing andcoordination between the two sides in practice than was allowed in theory under theDepartment's procedures. Due to concerns (or confusion) about when sharing waspermitted and a perception that improper information sharing could end a career --combined with inadequate information technology and cultural issues that furtherimpeded proper information sharing and coordination -- the exchange of information

between

intelligence and law enforcement officials was not as robust as it could havebeen.

II. Interpretations and

Understandings

of FISA bv the

Legislative.

Judicial,

andExecutive Branches

Government

Congress

begin with, FISA

is an act of

Congress.

Until

the USA

PATRIOT Act,

the

FISA

statute provided that each

application

was required to contain a certification that"the purpose" of the surveillance or search was to obtain foreign intelligenceinformation. Because Congress elsewhere distinguished between law enforcement and

intelligence

functions

of the executive, see,

The

National

Security

Act of 1947(50

U.S.C. 403-3(d)(1))(theCIA

"shall

have no police, subpoena, or law enforcement

powers

or internal security functions"), the interpretation that law enforcement andintelligence

were

distinct executive functions was widely shared within the intelligencecommunity.

Federal Courts

—2—

Most courts interpreted FISA to mean that the "primary purpose" of thesurveillance had to be tocollect foreign intelligence information--something thatwasviewed

distinct

from "evidence"

to be collected for use in a

criminal prosecution.

See,

e.g.,

United States

Johnson,

952

F.2d 565,

572

Cir. 1991),

cert,

denied,

506

U.S.816(1992) ("Although evidence obtained under FISA subsequentlymay beused

criminal prosecutions

...

the

investigation

criminal activity cannot

be the

primarypurposeof the

surveillance....

The act is not to beusedas anend-run aroundtheFourth Amendment's

prohibition

of warrantlesssurveillances."

(citations

omitted));

UnitedStates

Badia,

827

F.2d 1458, 1464 (11

Cir.1987),

cert,

denied,

485

U.S.

937

(1988)

(challenged surveillance "did not have as its purpose the primary objective ofinvestigating a criminal act," but "the valid purpose of acquiring foreign intelligenceinformation");

see

also

United

States

Truong

Dinh

Hung,

629

F.2d

908

Cir.

1980)

(warrantless foreign intelligence surveillance was not permitted "once surveillancebecomes primarily a criminal investigation," or "when the government is primarilyattempting to form the basis for a criminal prosecution").

C. The Department of Justice

TheDepartmentofJustice adheredto the"primary purpose" standard.InFebruary 1995, the Department's Office of Legal Counsel (OLC) opined that courts

would

apply the primary purpose standard when reviewing the use of FISA in asubsequent criminal prosecution. OLC said that there was a

sliding

scale that allowed

differing

degreesofprosecutor involvement

depending

uponthecase:

believe that courts, in passing on the

admissibility

of evidence gatheredpursuantto

FISA

searches,arelikelytoadhereto the use of the"primarypurpose"

test....

Ofcourse,thegreatertheinvolvementofprosecutorsin theplanning and execution of FISA searches, the greater the chance that thegovernment could not assert in good faith that the "primary purpose" was thecollection of foreign intelligence. While the ultimate decision must be based on abalance of risks and rewards, we believe that there is enough elasticity to permittheinvolvementofprosecutors without runninganundue riskofhaving evidence

suppressed....

In view of the deference the courts are likely to give to thecertification of the Attorney General

that

the "primary purpose" of the search wasintelligence-gathering, both prudence and responsibility suggest

that anappropriate internal process be set up to insure that FISA certifications areconsistent with the "primary purpose" test.

One celebrated case of abusecould impair the courts' deferential standard, and perhaps more importantly,could

impair congressional and

public

trust in the executive's

responsible

use of

what must be acknowledged to be expansive powers. (Emphasis added).Thus,