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 coordination1

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 authority3 in national

security investigations seeking to obtain foreign intelligence and

counterintelligence information4 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 Director12 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

 10FISA 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.

11In 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.

12By 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.

 13Federal Rules of Criminal Procedure, Rule 41, Search and Seizure (2000).

14P.L. 90-351, 82 Stat. 197 (1968).

15See 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’

 16See, 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.

17See, 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.

 18According 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.

 19Attorney General memorandum dated July 19, 1995, “Procedures for Contacts Between

the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign

Counterintelligence Investigations.”

20Memorandum 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

 21The 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.”

 22The 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

 23According 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

 24OIPR 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.

 25Standards 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,

 26The 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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