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MEMORANDUM FOR THB ATTORNEY GENERAL

FROM: TH^ DEPUTY ATTORNEY GENERAL

SUBJECT: Establishing a Working Group, under the leadership

of the Office of the Deputy Attorney General, to
resolve outstanding issues related to intelligence
investigations -

PURPOSE: To secure your approval to create a Working Group,

under the leadership of the Office of the Deputy
Attorney General, to resolve outstanding issues
related to intelligence investigations

TIMETABLE: As soon as possible.

There are a number of critical issues that the Department
must address regarding the conduct of intelligence
'investigations. Some of these issues, kut not all, are discussed
or raised in the following three reports: ;
•• "U.S. National Security and Military/Commercial
Concern! with the people's Republic of China," by the
House select c^otomittee on U-S.^tional Security and
Military7Comniierci?il Cbnce|rn$ >?i^ the People's Republic
; of Chin|f, declassified report, orated May 1999 (Select
Committee Report). .
• "The Hilling of FBI |htfe|iLigi!icj|;.Jji^ptmt:ion. Related
• to the Jju^^ • -
Investigation,11 by insi>efet|>r.. ,.dli|^riilMichael R.
Bromwich, dat^d July 1^'...$$$.$,. (GIG ExejCutiye Summary)
« "Science at its Best*. :Sec.ujrity::;^t•'dLt^;|»ogi:et: A Report
oh Secrt^ity Pro^
by the President's F6tei,gnt^
declassified report, reiease date .June 1999 (PFIAB
.Report).1 '• '-....; . ; ,,: ; /H ,:/.-.•

% !>' ^

'The citations to in thif metnorandura are to

unclassified
 f or the Attorney (General Page 2
SUBilECT: Establishing a Working Group to Resolve Issues Related
to Ihtelligence Investigations

While certain issues are already under consideration by a& hoc

groups in the Department, I recommend that the Office of the
Deputy Attorney General form one overall Working Group,
comprising representatives from the FBI, CRM, OIPR, OLC, OLA,
.JMD, and other affected components, as appropriate, to examine
fully the issues described below. Smaller sub-groups will likely
be formed to address particular matters .
*I. IMPROVING INTELLIGENCE INVESTIGATIONS
1. What steps can be taken by the FBI's National
Security Division (FBI/NSD) to improve its data
systems <^qt intelligence matters?2 What additional
training Is necessary?3
2. What steps can be taken by the FBI/NSD to hone its
ability itjo produce finished intelligence products
in a timely fashion?*

*The OIG found that " [t] he FBI' s procedures for culling
information from its teletypes and electronic communications and
inputting it into its databases essentially make it impossible
for the FBI to state with confidence that a^database search has
yielded all information, in the FBI's files about a particular
subject." (OIG Summary at 19) . The OIG further found that many
FBI personnel "were not well versed in the use of the FBI's
database systems," and that the belief that the FBI's Automated
Case Support System (ACS) was "not secure from unauthorized
access . . - prompted agents to forego entering information into
the [ACS] system," (Id.) .
JThe OIG concluded that rtsupplementary training for agents, who
are principally responsible for the" information that is entered
-into ACS, is crucial to the integrity and utility of the ACS
system." (Id. at 19^20). In addition, the OIG found that n[ijt
is important for the FIB I to ensure that its database operators
..are conversant with the format of foreign names and that they
search the databases in a manner that will take into account
errors that may have been made entering the foreign names into
the system." (OIG Summary at 20).
''The OIG found that the FBI/NSD erred in "disseminat (ing] raw
and unevaluated intelligence within the Department. ... The
circulation pf a "finished1 intelligence product (i^e_.., one that
has been subjected to 'analysis and contains corroborated
information) will also ensure that only information that meets
some standard of reliability is disseminatecl by tFBI/NSD],
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Memorandum for the Attorney General Page 3

SUBJECT: Establishing a Working Group to Resolve Issues Related
to Intelligence Investigations

3. More generally, do Main Justice and the FBI need

to devote additional resources to intelligence
activities?5

II - SHARING INTELLIGENCE INFORMATION WITH AGENTS AND PROSECUTORS

A. The Trigger for Sharing Intelligence Information
1. Pursuant to the July 19, 1995 Attorney General
memorandum regarding Procedures for Contacts
between the FBI and the Criminal Division
Concerning Foreign Intelligence and Foreign
Counterintelligence Investigations, CRM shall be
notified whenever "facts or circumstances are
developed that reasonably indicate that a
significant federal crime has been, is being, or
may be committed." What constitutes a "reasonable
indication"? What is a "significant" federal
crime? What is the meaning of "may" in the phrase
"may be committed11?6

thereby reducing or eliminating misinterpretation of or

overreraction to unreliable reporting. The FBI should hone its
capacity for producing finished intelligence reporting so that it
can quickly provide policymakers in the Department with a product
that is intelligible and that contains [FBI/NSDfs] collective and
definitive analysis of the information." (OIG Summary at IS) .
*The PFIAB stated that the Department should determine
"lw}hether the FBI committed sufficient resources, including
agents with appropriate expertise, and demonstrated a sense of
urgency commensurate with an apparent compromise of classified
U .S, nuclear weapons information." (PFIAB Report at 31) . It. is
worth nothing in this regard that the FBI received your
permission to seek White House and congressional approval for its
proposal to enhance its focus on intelligence investigations by
placing its counter-terror ism functions in a new division outside
of the NSD.
*The OIG suggests that the Department "resolve the issue of ...
conflicting understandings of the Departmental guidelines
concerning intelligence-sharing, and that the guidelines be
amended accordingly.* (OIG Summary at 14) . In this regard, the
OIG found * a notable lack of understanding among the
representatives of OIPR, the Criminal Division, the FBI and the
[Campaign Finance] Task Force concerning their respective roles
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StJS^ECTj Establishing a Working Group to Resolve Issues Related
to Intelligence Investigations

2. More generally, are these the appropriate tests?1

3. What procedures are needed for providing notice
under-.this memorandum, whether it is revised or
not?

in the dissemination of intelligence information. ... The

missions of OIPR, the Criminal Division, and the FBI regarding
intelligence operations and dissemination of intelligence
information to the Attorney General should . be better defined.
Their interlocking an<i overlapping responsibilities in regard to
criminal and intelligence information should be more clearly
delineated." (OIG Summary at 16-17) . The OiG further found that
while the FBI/NSD must be cautious abput sharing intelligence
information, its "concerns needU to be balanced against
countervailing concerns, such as [agents and prosecutors '] need
for the intelligenpe 'information to conduct -tt heir]
invest igat ion [s] ai^d the Attorney General's need to have
intelligence information related to congressional inquiries."
(OIG Summary at 14) .
'The PFIAB of fered this Y^ew: " [T] here does not exist today a
systematic process to ensure that the competing interests Off law
enforcement and nEitional security are appropriately balanced.
Law enforcement, fightly so, is committed to building
prosecutable cases. This goal i^ of ten\d by leaving an
espionage suspect in place to, facilitate the gathering of more
evidence. The national security interest/ in contrast, is often
furthered by immediately removing a suspect from access to
sensitive information to avoid additional compromises. Striking
the proper balance is never easy. It is made all the more
difficult when there is no regular process to ensure that balance
is struck. We have learned in ©ur review that this difficult
decision often is made by officials who either are too focused on
the investigative details QJT are too unaware of the details to
make a balanced decision." (PFIAB Report at 35) . In a letter to
the Attorney General dated July 2, 1999, the chairman and ranking
member of the Senate Select Committee on Intelligence quoted this
passage (and others) from the PFIAB Report and sought the
Department ! s views as to whether it agreed with the PFIAB 's
assessment. A response letter is being prepared.
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Establishing a Wooing Group to Resolve Issues Related
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4. What steps ne£d to be taken to ensure compliance

with this memorandum, whether it is revised or
not?9 •. •;;".'' ; ;"' :' ' .'v . ';':\. J The Primary PUrbose Doctrine

1. Pursuant to the July 19, 1995 memorandum; advice

provided by CRM to the FBI that is "intended to
preserve the option of a criminal prosecution
[must] not inadvertently result in either the fact
or appearance of CRM's directing pr controlling
the FI or FCI investigation toward law enforcement
objectives." What safeguards should be employed,
as a general matter, to ensure that CRM does not
"direct or control" such investigations, thereby
maintaining the Director's certification (that the
purpose of the surveillance is the collection of
foreign intelligence inf ormatipn) and the Attorney
General's finding (that the application meets the
criteria and requirements of FISA)?9
2. Do contacts between the FBI/NSD and CRM prior to
initiation of particular investigative techniques,
such as FISA surveillance, create the undue
appearance that CRM is directing or controlling
the FCI investigtion? Can or should a line be
drawn?
3. Are there automatic triggers for when FISA
coverage should be terminated? Pre-arrest? Post-
arrest? tJpon issuance of a federal grand jury
subpoena?
4. What does CRM do with intelligence information
that it receives? Who within CRM is briefed?

"The OIG recommends "that the FBI publish guidance to its

agents explaining the guidelines and'underscoring the need to
adhere to them." (OIG Summary at 14). -
The QIG found that, in the CAMPCON investigation, the
FBI/NSD's efforts "were focused too much upon protecting sources
and methods," which was ^predicated in part on a misunderstanding
of the law and Departmental policy governing intelligence-
sharing," (OIG Summary at 17).
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SfJ^ECT:Estaiblisliihg a Working Group to Resolve Issues Related
to Intelligence investigations '

5. What is the appropriate level of detail that

should be included in criminal indictments and
complaints, so as riot to undercut the Attorney
General's claim of privilege with respect to
disclosure of the underlying FISA applications?
6. Under what circunistaiices, if any, should agents
and prosecutors cfairi direct access to FBI
intelligence databases?10
7. Should contacts with CRM be reported to the FISA
court? Should the FBi/NSD agent's factual
declaration and the Director's certification
address these issues?
8. To what extent should CRM attorneys communicate
with OIPR about criminal investigations that
either originated as intelligence matters or that
require CRM, due to a legal obligation (e.g.,
Brady), to obtain relevant intelligence
information?

III. FISA PROGRAM

„• A. Lecral Matters

1. As a general matter, does the Department apply

FISA in a manner that is overly restrictive?11

|0The OIG recommends that agents and prosecutors who are

involved in a crimihal investigatibn and who are "using the FBI's
databases obtain at least a basic appreciation of the various
search strategies used to retrieve data from the databases and
have direct access to analysts to formulate [their] searches."
(OIG Summary at 18-19).
"The JPFIAB opined ap fpllowe: n[B)ased on all of the
information we have reviewed and the interviews we have
conducted, and without expressing a view as to the
appropriateness of the DOJ decision in the W-88 case, we do
believe that the Department of Justice may be applying the FISA
in a manner that is too restrictive, particularly in light pf the
0voiution ©f a very sophisticated counterint^lligence threat and
the ©ngping revolution in information systems." (PPIAB Report at
"" '"" "'" ' " " ' ' ' ' ' ' ' ' '' ' '
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Memorandum for the Attorney General Page 7

SUBJECT: Establishing a Working Group to Resolve Issues Related
to Intelligence investigations

2. As to sufficiency, what quantity or quality of

evidence is necessary to establish probable cause
to believe that an individual is an agent of a
foreign power?
3. As to currency, how should the Department
interpret the FISA requirement that a person may
be considered an agent of a foreign power only if
he/she knowingly "engages" in specified
. clandestine intelligence or international
terrorism information? How recent must such
information be? Is our interpretation consistent
with the plain meaning of the statute and its
legislative history? Do we need guidelines
regarding currency?
B. FBI/NSD Matters
1. Quality of FISA Requests
a. Does the FBI/NSD need to improve the quality
of the requests for FISA authority that it
submits to OIPR?12
b. Does the FBI/NSD need to- direct more
resources to the translation of FISA-obtained
information?
c. Does the FBI/NSD need to direct more
resources to the analysis of intelligence
information collected from both FISA and non-
FISA Sources?
2. Timeliness of FISA requests
a. What can be done to ensure that the FBI/NSD
submits timely requests for FISA coverage and
renewal of coverage?
What can be done to ensure that the NSA does
the same?

"The PFIAB recommended that the Department determine " [w] hether
the FBI provided to DOJ OIPR all UVS. government information
relevant to an appropriate evaluation of the FBI's FISA request."
Report at 31; emphasis in original).
 VKl 11:50

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SlJBiJECT: ^Establishing a Working Group to Resolve Issues Related
to Intellicence Investigations

3. Minimization of U.S. person communications

a. Does the PBI/NSD devote adequate resources to
ensure that it complies with the court-
ordered minimization procedures?
C. Administrative Matters
1. Do we need record keeping requirements which
mandate that the views of FBI/NSD and OIPR on FISA
requests be set forth in writing?13
2. Should there be automatic review by the leadership
offices of any decision not to pursue a FI3A?
Should such an automatic review be limited to
cases where espionage pr international terrorism
is suspected or alleged? Do we need a process
which includes the preparation of a declination
memo in every case?
3. Does OIPR have sufficient resources (secure
physical space, safes) to adequately maintain all
records it must now retain regarding FISA cases?
4. Should CRM be obligated to report to OIPR contacts
it has with the FBI regarding intelligence
matters?
IV. BRIEFINGS FOR THE NSC. INTELLIGENCE AGENCIES. THE STATE
DEPARTMENT. AMD THE CONGRESS

A. Intelligence Briefings
1. Under what circumstances should briefings to these
entities be given?
2, What standards should be followed for making that
decision?

PFIAB recommended that the Department consider " [w] nether

the DOJ OIPR maintained appropriate records concerning FISA
requests that were declined." (PFIAB Report at 34) .
''The PFIAB recommended that the Department consider " [wl nether
the FBI adequately raised to the Attorney General the FBI's
cone-erne over the declination of the FISA request." (PFIAB
t'-"314)...••-• • ' '"-- '"'••' . ' ' • . . " ' • ' : : : ' .
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SUBJECT: Establishing a Working Group, to Resolve Issues Related
to Intelligence Investigations

3. Who should be present at the briefings?15

4. What procedures should be in place with respect to
these briefings?
5. Substantively, what are permissible and
impermissible subjects for the briefings?16
6. What precise records should be kept of these
briefings?17

"The OIG noted that, •" [t]hroughout the Task Force

investigation, the FBI and Main Justice have disagreed over
whether to brief the NSC on matters Delated to the intelligence
and Task Force investigations, ... We recommend that the FBI's
appropriate role in sutch NSC briefings be discussed and agreed
upon by senior Main Justice and FBI officials." (O±G Summary at
20) .
'*The OIG found that " tp] ast Departmental practices and policies
for briefing Congress and the NSC were either abandoned or
severely amended in the context of the intelligence and Task
Force investigations. ... [Tlhe Department adopted a policy of
briefing the committees, and later the NSC, on information of
unknown reliability rather than waiting until that information
could be corroborated, .. . Moreover, FBI and Main Justice
officials failed to explain in a clear or consistent manner to
the congressional committees .., the standard that was being
useoU ...Department officials need to establish a clear policy
regarding etarxdards for briefing Congress and the NSC on
intelligence information." (QIG Summary at 23.).
"The OIG found that, "in contravention of FBI regulations and
directives, the FBI lacks any organized, complete record of its
congressional briefings related to the intelligence and Task
Force investigations or the materials used for these briefings.
..: Main Justice records were no better. -.• There should always
be some record of the content and occurrence of these briefings,
because the information that was conveyed to Congress or the NSC
may later become important .-..-*" (OIG Summary at 22) . The OIG
further found that "information in documents prepared by the FBI
that the Department used to justify certain intelligence
activities was inconsistent with information that %he Department
briefed to Congress." (OIG Summary at 16) • The OIG recommended
"that similar .information that is provided to Congress ••- or any
other entity; out side the Department - be coordinated with the
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STOEtTECTs Establishing a Working Group to Resolve Issues Related
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B. Criminal Briefings
1. For approximately four years, the Departments of
Justice and Treasury have sought to develop
guidelines for the sharing of criminal matters
with the NSC that relate to national security.
These guidelines need to be finalized and expanded
to deal generally with the issue of the sharing of
criminal information relating to national security
issues with the intelligence community and the
Congress.19
V. PROPERTY ACCESS ISSUES
A. Searches at the Workplace
1. Under what circumstances is a warrant necessary to
search government property, such as computers, at
the workplace? Does the use of waivers and
banners eliminate the need for a warrant even
though the search is being conducted for law
enforcement purposes?19
2. What is the difference between an administrative
search and a law enforcement search?20

appropriate components of the Department." (id.)

"The OIG found that, in briefings to the intelligence
committees and the NSC, the Department "departed from its bright-
line standard of resisting requests to share^information about
pending criminal investigations- ... The Depaktment ... needs to
promulgate standards for determining when information relating to
criminal investigations may be briefed to Congress or the NSC."
(OIG Summary at 21),
"The PFIAB stated that it was "concerned by the lack of uniform
application across the government of various.,...:. investigative
tools, such as employee waivers that gr,ant officials appropriate
authority to monitor sensitive government computer sytstems.*
(PFIAB Report at 35}.
"In connection with the W-88 investigation, the PFIAB
recommended that the Department determine " [w]hy the FBI's FISA
request did not include a request to monitor or search the
subject's workplace computer systems." (PFIAB Report at 31, 34).
 for the Attorney General Page 11
?: Establishing a Working Group to Resolve Issues Related
to intelligetice Investigations

3. What is the significance, if any, of the

distinction between searching government property
at the workplace and searching private property
brought from home, such as computers, briefcases,
backpacks, purses, etc.?
B. Searches Upon. Enter ing/Exit ina the Workplace
1. How should explicit notice that such searches may
occur be provided?
2. Can a more invasive search be conducted of
employees and/or contractors when they have access
to classified material? What are the limits?
C. .Searches At Home
1. What options are available short of a full search
to gain access to government property used at the
home of a government employee (e.g., forthwith
demands for return of property)?
D. Searches of Computers Used Outside the Office or the
Home
1. Under what circumstances can computers used
outside of the office or the home be searched?

VI. LEGISLATIVE MATTERS

A. Intelligence Statutes -
1. Should the probable caxise standard in FISA be
modified? Should a balancing test be employed?
Should the nature of the intelligence threat, .
i.e.. espionage, be a factor to be considered when
evaluating whether probable cauee has been met?
2. Should the statute be clarified so that DOJ can
employ Surveillance techniques, such as
wiretapping, searches, etc., without seeking a
warrant if there is a serious threat to national
security? What standard would be applied in this
circumstancet
Memorandum for the Attorney General Page 12
SUBtfEC5!?: Establishing a WorMhg Group to Resolve Issues Related
to Intelligence Investigations

3. Should there be a change to the requirement that

we show "clandestineV activity when proposing
surveillance of a U.S. person?
4. Should a non-U.S. person who seeks to transfer
classified information to a foreign power be
deemed an agent of a foreign power even when the
representatives of the foreign power whom he or
she contacts (e.g., embassy personnel) turndown
the individual?
5. Should we consider the creation of a category of
agent of a foreign power for a U.S. person who has
access to classified information and unauthorized
(but overt) contacts with a foreign power or
foreign nationals?
6. Should intelligence statutes be amended or enacted
to facilitate computer access?
B. Criminal Statutes
1. Should criminal statues be enacted which prohibit
certain transfers of classified information
without requiring proof of intent to injure the
United States?
2. Should Rule 6(e) be amended to facilitate the
transfer of specified grand jury materials to U.S.
government entities that are conducting
intelligence investigations?
3. Should criminal statutes be amended or enacted to
facilitate computer access?
VII, MISCELLANEOUS ISSUES
1. Should an interagency group be formed to develop a
protocol for information sharing on intelligence
matters among the NSC, NSA, CIA, the State
Department, FBI/NSD, and Main Justice?21

"The Select Committee recommended n that appropriate

congressional committees report legislation to authorize and
direct the Department of •Justice to promptly share national
Security information, on a classified basis, with appropriate
Executive departments, agencies, and entities. To achieve this
Memorandum for the Attorney General Page 13
SUBJECT: Establishing a Working Group to Resolve Issues Related
to Intelligence Investigations

2. What role should DOJ play in determining whether

to permit a PISA or criminal target to continue to
receive access to classified information? Who
should make that determination? Who needs to be
consulted? Should DOJ take a more active role in
recommending that employees of other gpvernment
agencies either have their security clearances
revoked or their employment terminated based on
information obtained during the course of a
foreign intelligence investigation?
3. There is an overall need for extensive training in
the national security area. Who should be "charged
with developing, updating, and implementing
training protocols?
RECOMMENDATION: That you approve an initiative to create a
Working Group, under the leadership of the Office of the Deputy
Attorney General, to resolve outstanding issues related to
intelligence investigations

Approve

Disapprove

Other

objective, the Select Committee recommends the creation of an

appropriate interagency mechanism." (Select Committee Report,
Vol. III., at 176).