Intelligence and Law Enforcement: Countering Transnational Threats to the U.S.
Released: 2001-12-03T00:00:00

Introduction

The collapse of the Soviet Union and the Warsaw Pact by 1991 significantly altered the internationalenvironment. Transnational issues, (1) such as narcotics, terrorism,money laundering, economic espionage, and shipments of materials forweapons of mass destruction (WMD) have risen in importance, in some cases becoming more urgent than traditionalgeopolitical concerns. The Director of Central Intelligence (DCI), George Tenet, in his annual assessment ofnationalsecurity challenges in February 2001, renewed the heavy emphasis on transnational issues that had characterizedhistestimony in previous years:

The threat from terrorism is real, it is immediate, and it is evolving. State sponsored terrorism appears to have declined over the past five years, but transnational groups-with decentralizedleadership that makes them harder to identify and disrupt-are emerging. We are seeing few centrally controlledoperations,and more acts initiated and executed at lower levels. (2)

Long before attacks on the Pentagon and World Trade Center in September 2001 galvanized American public opinion,observers noted that, among the American public, there was greater concern about international crime, especiallyto theextent that it can reach into the country, than about many other aspects of the current international environment. (3)

Although the responsibilities of U.S. courts and law enforcement agencies have always included activities that occuroutside U.S. territorial borders, e.g. , smuggling, piracy, etc ., such activities have not usuallybeen considered in the samecategory as military threats posed by foreign countries that are the responsibilities of the State and DefenseDepartmentsand the Intelligence Community. Changed international realities have, however, led to a more expansiveinternational rolefor law enforcement agencies, combined with the employment of intelligence agencies--and the operational armsof theState and Defense Departments--in efforts to counter them. Thus, there has arisen, on one hand, the phenomenonofagencies charged with domestic law enforcement acquiring extensive overseas missions and, on the other,intelligenceagencies focusing on illegal activities in foreign countries.

The evolution and intermingling of law enforcement and intelligence efforts have served to blur distinctions between lawand security policy that, in statutory principle and in administrative practice, have been kept separate and distinct. TheFederal Bureau of Investigation (FBI), the nation's principal law enforcement agency, has attained a much moreprominentinternational role in recent years, assigning increased numbers of agents overseas to expand contacts with foreigngovernments and to acquire information about potential transnational threats. The Central Intelligence Agency(CIA) andother intelligence agencies are devoting greatly increased resources to counterterrorism and counternarcoticsactivities. Asa CIA official has noted:

Today, there is no clear primacy for either the law enforcement or intelligence communities in the realms of international terrorism, narcotics, proliferation (as well as, in some cases,counterintelligence). Still, the law enforcement and intelligence communities remain designed and operated infundamentally dissimilar manners, retaining different legal authorities, internal modes of organization, andgoverningparadigms. (4)

There appear, in addition, to be few well-understood criteria for choosing the most appropriate approach in a givensituation, and also a sense among some policy analysts that ambitious law enforcement agency heads have not fullyappreciated the complexities of these threats in an international environment within which the United States mustprotectits national security interests.

Beyond addressing the need for closer cooperation among law enforcement and intelligence agencies, however, lay largerand more complicated issues that some believe have not yet been fully considered. (5) Many observers continue to expressconcerns about the employment of intelligence agencies, using any number of surreptitious collection techniques,in layingthe groundwork for criminal proceedings. Such concerns are deeper and more serious than the diversion of finiteassetsfrom more traditional responsibilities.

On the other hand, the decision to consider certain significant threats from outside U.S. borders as law enforcement matterspresumes that adequate legal channels, either in international law or in U.S. law, exist within which such concernscan beresolved. This presumption is, however, seriously questioned by those who believe that international law remainsin largemeasure ill-developed, and that the extraterritorial reach of domestic statutes is likely to remain distinctly limited. The useof law enforcement mechanisms against international threats may also imply that non-legal instruments, such asmilitaryforce or a covert action by an intelligence agency, are less important and can be deemphasized. Questioning thisassumption, observers argue that some important international outcomes are utterly unobtainable through judicialprocesses.

In 1999, military force was deployed in support of international law enforcement. U.S. armed forces undertook air strikesas part of the North Atlantic Treaty Organization on Serbian forces and other targets not only to halt thedestabilization ofother Balkan countries by Serbian attacks on Kosovar Albanians, but also to stop violations of international law,crimesagainst humanity occurring as part of a policy of "ethnic cleansing." According to President Clinton, the UnitedStates wasinvolved in Operation Allied Force because we have "a moral responsibility to oppose crimes against humanity andmassethnic and religious killing and cleansing where we can." (6)

There is little question that the lines currently dividing law enforcement and security issues are blurred. In severalinstances, different approaches to transnational issues appear to some observers to have been confused andcounterproductive. Especially worrisome in this regard was the FBI's withholding information regarding illegalChinesepolitical contributions from the Secretary of State prior to an official visit to Beijing in 1997, and sharp divisionsover U.S.support for certain dissident Iraqi groups in the mid-1990s among law enforcement and intelligence agencies thatmay havecontributed to their violent suppression by forces loyal to Saddam Hussein.

The attacks on the World Trade Center and Pentagon on September 11, 2001 caused considerable discussion of therelationship between law enforcement and national security agencies, including the Intelligence Community. Someobservers argued that inadequate exchanges of information among agencies may have contributed to a failure to gainadvance warning of the attack. (7) A variety of viewswas expressed on the best way to deal with those who planned andsupported the attacks, but it was rapidly decided by the Bush Administration that a military attack (supported bycovertintelligence forces) on the Al Qaeda infrastructure in Afghanistan was the best response, an approach that gainedwidesupport among the American public. Anti-terrorism legislation enacted in October 2001 included provisionsfacilitatinginformation sharing between law enforcement and intelligence agencies.

Potential Congressional Concerns

Given the clear possibility that the international role of law enforcement agencies will continue to grow,observers believethat greater consideration should be given to making less ambiguous distinctions between law enforcement andsecuritypolicy and to the relationships between law enforcement and intelligence agencies. As one journalistic account oftheevolving relationship between the two communities concluded:

[Coordination] sounds simple in concept. In reality, it is likely to prove very difficult, challenging constitutional limits on domestic law-enforcement activity while drawing intelligence officersevercloser to proceedings that could compromise sources and methods of intelligence collection. The momentum isclearlyheaded toward something like a merger between the two worlds.

It is dismaying that this move to reinvent the relationship between spies and federal agents took place with virtually no meaningful public debate and little journalisticscrutiny. (8)

Congress may choose to concern itself with the broad contours of intelligence cooperation with law enforcement. Congressauthorizes the various instrumentalities of U.S. policy, appropriates funds, and conducts oversight. The ways thatCongressfunds and oversees law enforcement and intelligence agencies may not, however, be optimized to support theirevolvingand overlapping missions in the post-Cold War world. Congress has reviewed the coordinative mechanisms thathave beenestablished, but has not provided them with statutory charters.

Oversight of law enforcement, foreign policy, and intelligence is largely undertaken by different sets of committees withdisparate agendas. Oversight of the State Department is conducted by the Senate Foreign Relations Committee andtheHouse International Relations Committee. Intelligence activities (including those of the FBI) are overseen by theSenateSelect Committee on Intelligence and the House Permanent Select Committee on Intelligence. Since thepreponderance ofintelligence activities are undertaken by Defense Department agencies, there is also a certain amount of concurrentjurisdiction shared with the House and Senate Armed Services Committees. Law enforcement efforts are overseenprimarily by the two Judiciary Committees. Appropriations Committees also have jurisdiction, but diplomatic, lawenforcement, defense, and intelligence efforts are handled by different sub-committees in both the Senate and theHouse ofRepresentatives.

Given the different oversight responsibilities, it is difficult, at best, to provide seamless oversight of intelligence and lawenforcement activities abroad. The jurisdiction of the Judiciary Committees is very wide, encompassing manydomesticissues, including abortion and immigration and, in the Senate, confirmation of Federal judges; for a variety ofreasons, therehave been no regular reauthorizations of Justice Department programs since FY1980. (9) On the other hand, the Intelligenceand Armed Services Committees often focus on procurement of advanced technologies and the links betweenintelligenceand the military services rather than on operational practices. In addition, neither the Intelligence nor the JudiciaryCommittees usually deal directly with questions of foreign policy that are the province of the Senate ForeignRelationsCommittee and the House International Relations Committee.

In situations in which law enforcement, military, diplomatic, and intelligence efforts are closely related, significantchallenges to effective congressional oversight may arise given the disparate concerns of several committees andtheexecutive branch's understandable tendency to maximize flexibility in employing different instruments underdifferentcircumstances. Possible new approaches to oversight could include joint hearings or even the eventualestablishment ofselect or joint committees.

More difficult would be further changes in statutes that affect cooperation between law enforcement and intelligenceagencies. Few observers would seek to alter proscriptions in the National Security Act on the CIA having lawenforcementpowers, and wholesale revision of the Posse Comitatus statutes that regulate any involvement of themilitary forces in lawenforcement would undoubtedly be resisted. The Office of Homeland Security (OHS), established by ExecutiveOrder13228 on October 8, 2001, involves intelligence and law enforcement agencies in developing a national strategyto securethe United States from terrorist threat or attacks. With its focus on preventing or responding to attacks within theUnitedStates, most observers believe that the role of intelligence in OHS will be generally limited to sharing information. (10) Theenactment of the USA-Patriot Act ( P.L. 107-56 ) on October 26, 2001, expanded authorities of both intelligence andlawenforcement agencies to undertake surveillance of persons suspected of involvement in terrorist activities andprovided forcloser information sharing. These changes have raised concerns among some that intelligence methods mightbecomeroutinely used for criminal investigations or that information gathered in criminal investigations might be widelyspreadthroughout the Intelligence Community.

Some observers note the importance of statutory authorities and regular congressional oversight of the law enforcement-intelligence relationship. Such oversight could mitigate any potential abuses, as previously occurredin the1960s when intelligence agencies collected information on domestic antiwar groups that some believed might haveconnections with foreign governments. Many observers believe that the resulting public distrust seriouslyundermined theeffectiveness of the Nation's intelligence effort and jeopardized the careers of officials who believed that they werefollowing legitimate directions.

Further, some observers believe that the continuing lack of clarity about relationships among U.S. law enforcement andintelligence agencies and their roles and missions may reduce the effectiveness of their individual and collectiveefforts andlead to waste and duplication of effort. The obvious limits to the success of counternarcotics efforts have suggestedto suchobservers that neither law enforcement nor intelligence assets have been optimally deployed and organized. Theevents ofSeptember 11, 2001, and subsequent legislation have led intelligence and law enforcement agencies to removebarriers tothe flow of information, although most observers believe that the flow is not yet completely seamless. Congressmaychoose to investigate whether different agency relationships might have led to advance warning of the Pentagon andWorldTrade Center attacks. In any event, it is widely believed that working out relationships among the many agenciesinvolvedwill require time and that careful congressional oversight will be needed.

Illegal Activities and Transnational Threats

Some illegal activities occurring abroad affect U.S. security interests; these are, chiefly, transnational threatsfromterrorism, narcotics smuggling, and proliferation of WMD. Such activities have been held to justify the attentionof lawenforcement and intelligence agencies. Other illegal activities such as smuggling, copyright and trademarkviolations,monopolistic competition, etc . may not rise to a level that would constitute a genuine transnationalthreat. In recent years,especially since the enactment of the Comprehensive Crime Control Act of 1984 ( P.L. 98-473 ) and the OmnibusDiplomatic Security and Antiterrorism Act of 1986 ( P.L. 99-399 ), there has also been an increasing tendency forUnitedStates statutes to contain extraterritorial provisions. Extraterritorial jurisdiction has been claimed for:

... crimes committed aboard American ships or planes; offenses which imperil or misuse our foreign commerce with other nations; misconduct, like genocide, terrorism or air piracy, condemnedinmultilateral agreements to which the United States is a party; the overseas theft or destruction of the property of theUnitedStates government, the use of violence against its officers or employees, or the obstruction or corruption of thefunctioningof its agencies overseas; and misconduct outside of the United States which results in or is intended to result in harmwithinthe United States, such as drug trafficking. (11)

Activities abroad threatening U.S. security interests may also be violations of international law. International law is, ingeneral, either based on treaty obligations that have been accepted by signatories, or found within the somewhatamorphouscontours of customary international law, i.e. , the rules and practices characterizing relations betweenstates and betweenprivate entities and foreign states. Innovations in (or even departures from) customary international law can beinitiated byindividual states, but patterns of conduct long established are recognized to have considerable benefit to the globalcommunity and are prescriptive. The complicated origins of international law, however, mean that, "National courtsrequired to determine questions of international law must do so by imprecise methods out of uncertain materials,and theymust look at a process that is worldwide and includes the actions and determinations of foreign actors (includingforeigncourts)." (12)

In recent years, international law has itself come to address a wider range of criminal activities for which individuals can beheld accountable by foreign countries. Piracy, of course, has long been considered a crime that all states must acttosuppress. Since the end of World War II, other types of terrorist activities and human rights violations, includinggenocide,torture, hostage taking, attacks on diplomatic personnel, and airplane hijacking have also been proscribed byinternationalagreement. For such crimes of universal concern, any state, including, of course, the United States, may prescribepunishments. (13) Materials that can be used inweapons of mass destruction have been the subject of several internationalconventions to which the United States is a party. (14) (A very significant problem is, of course, the fact that many benignand commercially available chemicals can be combined with lethal effect. In addition, the spread of knowledgeregardingweapons-making techniques has been greatly facilitated by the Internet.)

It has proven difficult, however, to reach an international agreement on a tight definition of terrorism given a determinationof some in the international community to legitimize various activities involved in "wars of national liberation." (15) TheAntiterrorism and Effective Death Penalty Act of 1996 ( P.L. 104-132 ) authorized the Secretary of State to designateterrorist organizations, subject to congressional review. (16) The State Department subsequently designated some 30organizations (mostly, but not exclusively, Middle Eastern) in October 1997, but many observers would challengethefairness of the list. (17)

Foreign countries understand U.S. efforts to counter terrorist groups that target the United States; in the wake of theSeptember 11, 2001 attacks, the international community has demonstrated widespread support for U.S.counter-terroristefforts. There remains nevertheless widespread support in various parts of the world for some groups that the U.S.considers terrorist. As a result, there can be significant political costs involved in actions against some organizationsthatengage in terrorist activities. It is a fact of international life that persons and groups that have engaged in terroristactivitieshave been accepted as leaders of sovereign states that the United States may find it necessary to cooperate with toaccomplish important national goals. Dealing with such leaders is distasteful, even abhorrent, but many observerswill seeit as necessary.

Narcotics trafficking has been declared illegal by several international treaties, (18) but the narcotics trade is not at presentconsidered an international crime over which there is universal jurisdiction. Countries are expected to suppress theproduction and transit of illegal narcotics and to bring drug producers and traffickers to justice (and, whenappropriate,respond to requests for extradition from other countries), but countries have no universal jurisdiction to enforce drugproduction or trafficking as they do under conventions against piracy, torture, and certain other crimes. (19) The UnitedStates must rely on diplomacy and various types of pressure and inducements to encourage other countries tocooperate inhalting illegal drug production and shipments. As noted below, the military effort, ultimately successful inDecember 1989,to oust the Panamanian dictator Manuel Noriega was, however, caused or at least greatly influenced by hisinvolvement inillegal narcotics trafficking. Few observers, however, routinely advocate the use of military force or covert actionstointerdict drug production and shipments within the territorial borders of other countries; even if authorized, sucheffortswould have significant drawbacks and could have damaging effects on other important interests.

Intelligence Agencies Support Law Enforcement

In seeking to take action against such criminal activities occurring in foreign countries, it has seemed logicalto many tobring to bear the enormous information gathering capabilities of the Intelligence Community which has bothcollectionsystems and human agents available throughout the world. It would, some have argued, be relatively simple tomakeinformation obtained by intelligence agencies available to investigators and prosecutors in support of the latter'efforts tobring terrorists and narcotics traffickers to justice in U.S. courts. Some observers would, of course, go further,suggestingthat, in especially threatening cases, covert actions by the CIA or military strikes might be necessary.

Closely coordinating the efforts of law enforcement agencies and the Intelligence Community (alongside the State andDefense Departments) presents, however, significant challenges. As three knowledgeable observers have written:

The law enforcement/national security divide is especially significant, carved deeply into the topography of American government. The national security paradigm fosters aggressive, activeintelligencegathering. It anticipates the threat before it arises and plans preventive action against suspected targets. In contrast,the lawenforcement paradigm fosters reactions to information provided voluntarily, uses ex post facto arrests and trialsgovernedby rules of evidence, and protects the rights of citizens.

The division of responsibilities between intelligence and law enforcement agencies reflects this reality and isbased instatutes and executive orders. Many observers--including intelligence agency officials--strongly believe in thefundamental importance of distinctions between law enforcement efforts, governed by laws and rules designed toprotectthe rights of the accused, and the far less restricted operations of intelligence agencies. (20) The National Security Act of1947, that established the CIA, specifically precluded the Agency from having any responsibilities for lawenforcement orinternal security. (21) This provision derived froma determination shared by Congress and the Truman Administration not tocreate an American "Gestapo" or to encroach on the jurisdiction of the FBI. There was then, as there remains today,aconcern that "[c]ombining domestic and foreign intelligence functions creates the possibility that domestic lawenforcementwill be infected by the secrecy, deception, and ruthlessness that international espionage requires." (22) The 1947 Act alsoreflected the division of labor during World War II between the Office of Strategic Services (OSS), the CIA'spredecessorintelligence service, and the FBI (even though the latter undertook extensive intelligence gathering in LatinAmerica).

Most of the other elements of the U.S. Intelligence Community are located in the Department of Defense (DOD), whichalso has been largely precluded from direct involvement in domestic law enforcement efforts since the post-CivilWarenactment of the Posse Comitatus statutes. DOD has received legal authority to assist law enforcementagencies incounternarcotics efforts, although with restrictions precluding any involvement of military personnel in the arrestanddetention of suspects. (23)

In some cases, efforts of intelligence agencies in support of law enforcement efforts proved to be ill-advised. In particular,instances of intelligence agencies acquiring information concerning U.S. citizens or persons has been widelycondemned. In addition to various questionable Cold War activities, such as mail openings and involvement with the Mafia, theCIAand military intelligence units gathered intelligence on antiwar groups within the United States during the VietnamWarperiod. (24) Such activities served as a majorimpetus for wide-ranging congressional investigations of the U.S. IntelligenceCommunity in the 94th Congress.

In the aftermath of sensational revelations about improper activities by intelligence agencies, both the IntelligenceCommunity and its congressional overseers were determined to separate the work of intelligence and lawenforcementagencies in order to prevent the use of intelligence techniques against citizens and legal residents of the UnitedStatesunless court orders have been obtained. Proposals for enacting a charter for the Intelligence Community did notsucceed,but the widespread criticisms of domestic spying by the CIA and other intelligence agencies served to build wallsofseparation between the two communities that were widely recognized in practice even if cooperation on narcoticsandterrorism was officially allowed. (25) A studyprepared by the House Intelligence Committee in 1996 concluded that, "One ofthe unwritten but significant side effects of these investigations was behavioral in nature. The years that followedtheinvestigations were marked by some reluctance on the part of the two cultures to form interactive relationships. Thisover-caution was based more [on] a perception that closer association meant increased political risk than [upon]having anybasis in prohibition of law." (26)

Even before the end of the Cold War, however, terrorism and narcotics smuggling were emerging as matters of nationalconcern. Executive Order 12333, United States Intelligence Activities , signed by President RonaldReagan on December 4,1981, specifically assigned the CIA responsibilities for collecting and producing intelligence on foreign aspects of narcotics production. Intelligence agencies were authorized "to participate in law enforcement activities toinvestigate orprevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities ...." (27)

With the end of the Cold War, intelligence agencies have had to adjust their efforts to meet changed national securityrequirements. By the mid-1990s they were downsized roughly by a third from 1980s levels and many Cold Warmissionsdisappeared. (Funding levels have risen somewhat more recently.) The Intelligence Community has faced majorchallenges in adjusting its expensive technical collection systems--satellites and signal intercept efforts--to thechangedenvironment. It is now making much greater use of open sources, i.e. books, newspapers, radio andtelevision programs,and pamphlets. Human collection has been a particular challenge inasmuch as the personnel and methodologiesuseful forcollecting information about topics such as Soviet diplomatic or military policies are far different than thosenecessary tocollect information about a terrorist or drug-smuggling groups.

The emergence of transnational threats in recent years and the availability of intelligence resources led many to urge greateruse of Intelligence Community assets to obtain information that may, at some point, be used in criminal proceedings. TheIntelligence Community collects a wealth of data about all regions of the world. Its data storage and retrievalcapabilities,as well as thousands of trained analysts, could potentially be of enormous use in support of law enforcement efforts. Insome parts of the world, intelligence contacts unique access can provide invaluable information concerning activitiesthatmay be related to violations of U.S. law. Although the vast bulk of intelligence collection is, and will likely remain,focused on topics far removed from the concerns of law enforcement agencies, (28) the use of intelligence information hasbeen seen as having important potential advantages with the increasing global scope of much criminal activity.

Even as the Cold War was reaching its final stages, demands for closer intelligence and law enforcement cooperationintensified during the course of investigations of two international banking scandals during the late 1980s. Therewasconsiderable public consternation when it was learned that the CIA had acquired information about potentialwrongdoingthat had not been readily made available to the Justice Department; intelligence information about the activities ofthe Bankof Credit and Commerce International (BCCI) and Banca Nazionale del Lavoro (BNL) was apparently shared withprosecutors in haphazard and uncoordinated ways; some never emerged outside the Intelligence Community. Althoughmost observers did not conclude that there was an effort by CIA to protect either of these two banks, congressionalcommittees recommended that procedures be established to ensure that relevant information about internationalcriminalactivity collected by intelligence agencies would be made available to law enforcement officials even though, insomecases, the need to protect sources and methods would undoubtedly make it impossible to use the information directlyasevidence in a trial. (29)

Law Enforcement Agencies Acquire International Missions

In responding to new expectations and a changed environment, the FBI has assigned increased numbers ofagents abroad. In June 1996, the FBI launched a four-year plan to double the number of FBI officials serving in legalattachÃ© offices ofU.S. embassies; additional positions have subsequently been authorized. Offices opened in recent years includeCairo,Egypt; Islamabad, Pakistan; Tel Aviv, Israel; Moscow; Tallinn, Estonia; Kiev, Ukraine; Warsaw, Poland; Almaty,Kazakhstan; Prague, Czech Republic; Tashkent, Uzbekistan; Pretoria, South Africa; New Delhi, India; and BuenosAires,Argentina. Additional office are planned. The plan was expected to entail the assignment of a total of some 130specialagents and a lesser number of support staff. (30)

These offices are expected to serve a number of purposes. They permit the establishment of close "cop-to-cop" relationships by which law enforcement information can be exchanged with host-country officials. (31) In addition, FBIofficials are able to cultivate ties to other sources of information in the host countries. Then-FBI Director LouisFreeh hasstated that the Legal AttachÃ© program is "the single most significant factor in the Bureau's ability to detect,deter, andinvestigate international crimes in which the United States or our citizens are victims." (32) Some observers have expressedconcern that they would overlap or duplicate the work of CIA or other intelligence officials already assigned to thesecountries. Then-DCI John Deutch was reported to have had some initial reservations, but efforts were undertakento workout cooperation arrangements. (33)

In some countries, of course, rigid separation does not exist between intelligence and law enforcement agencies, and U.S.officials must carefully tailor their relationships with foreign counterparts. Inevitably, complications and overlapwill arise,but they will, according to administration officials, be addressed on a case-by-case basis, with the ambassador orchief ofstation having a major role, consistent with that official's statutory responsibility for "the direction, coordination,andsupervision of all Government executive branch employees in that country." (34) Observers note that not all ambassadorstake an active interest in such concerns, that law enforcement and intelligence officials in embassies have not alwaysbeenforthcoming with ambassadors, and that officials may be carrying out policies formulated by Washington agencieswithoutthe unqualified support of the State Department. Nonetheless, observers see disagreements, duplication of effort,orcompetition between FBI and intelligence officials in foreign countries as inevitable; potential problems which,whilearguably outweighed by the benefits of "cop-to-cop" cooperation, will require careful monitoring.

Managing the Intelligence-Law Enforcement Relationship

In the aftermath of the wave of criticism and congressional direction that followed revelations of CIA's failureto provideinformation about the BCCI and BNL cases to Justice Department officials, a Joint Task Force on Intelligence andLawEnforcement was established in March 1993. The task force, chaired by Deputy Assistant Attorney General MarkRichardand CIA General Counsel Elizabeth Rindskopf, came up with a series of recommendations. (35) Many of these proposalsinvolved relatively technical and administrative efforts to improve information flow and data retrieval:

the creation of "focal points," i.e. , coordinating offices, in the Justice Department to interface with theCIA;

new procedures to govern requests for intelligence-file searches that might result in the production of materials to be used in court cases;

requirements for law enforcement agencies to provide notice to prosecutors when there is an intelligence interest;

measures concerning the treatment of the identity of intelligence officers whose identities are classified;

new procedures to protect classified information in situations not envisioned by earlier statutes, such as the Classified Information Procedures Act;

a Memorandum of Understanding between the Attorney General and intelligence agencies that outlines the circumstances under which the agencies must report suspected criminal activity; and,

an intercommunity training plan to facilitate coordination. (36)

Although Deputy Assistant Attorney General Mark Richard claimed that "the problems between the CIA and JusticeDepartment no longer exist," (37) there remained,nonetheless, a realization that difficult substantive issues would continue tobe involved in facilitating information flow. Rindskopf subsequently noted:

There were three possible solutions: (i) to blend the two services and place them under rules governing the law enforcement community; (ii) to blend the two services and place them underintelligence rules; and (iii) to coordinate the activities of the two services. Ultimately, the decision was made to goforwardwith great caution. (38)

A major challenge for promoting cooperation between intelligence and law enforcement agencies are their respectivebureaucratic cultures, modes of operation, sources of information, and oversight structures. (39) The Justice Department,which includes both the FBI and the DEA, is responsible for conducting investigations of possible law breaking,andprosecuting alleged criminals in the judicial system. Although law enforcement agencies need backgroundinformation or"strategic intelligence" regarding patterns of criminal activity ( e.g., analysis indicating that increasingquantities of cocaineare flowing through harbors in southern Florida), they tend to give higher priority to tactical information( e.g. , a tip that aspecific cargo vessel is scheduled to off-load a shipment of cocaine at a specific dock in Miami on the night ofAugust 4). Under applicable rules of legal procedure, this latter type of information may have to be used in a public trial andits originsrevealed to a defendant's lawyer. Law enforcement agencies typically work on a case-by-case basis; when a trialiscompleted and all appeals exhausted, the information developed in the preliminary investigation has little use andcan beconsigned to the archives. (40)

However, national security policymakers require a continuous stream of information from the CIA and other intelligenceagencies about world conditions, especially about countries, groups, and individuals working against U.S. interests. Thereis no end-point to these requirements; even a favorable evolution of events (such as the dissolution of the SovietUnion)does not mean the end of the need for up-to-date information. In many cases, the need for intelligence is moreimportantthan the need for dealing with a particular incident; thus, it may be advantageous to support a covert intelligencesource foryears (even if the source is publicly identified as anti-American or involved in illegal activities) and to keep the relationship with U.S. intelligence agencies secret. Public disclosure could not only destroy the source's usefulness,butalso serve to undermine U.S. efforts to recruit and retain other sources. National security policymakers may,moreover,seek rumors and gossip that could never stand up in court. Such information may, nonetheless, provide the bestindicationof a fluid political situation in another country that could directly affect U.S. interests.

Coordinative and consultative mechanisms--an Intelligence-Law Enforcement Policy Board and a Joint Intelligence-LawEnforcement Working Group (JICLE)--have been established at several levels in response to the 1994 assessmentof theJoint Task Force on Intelligence and Law Enforcement reached to ensure that exchanges of information are soundlyestablished and preserve the integrity of the judicial process, as well as the legitimate functions of the IntelligenceCommunity. (41) These entities have consideredthe nature and extent of appropriate law enforcement-intelligencecoordination in pre-trial discovery and established administrative policies regarding such cooperation. (42) The Joint TaskForce did not consider that a need existed for statutory changes.

Concerns about the future of interagency relationships in the post-Cold War era were also reflected in the IntelligenceAuthorization Act for FY 1995 ( P.L. 103-359 ), signed on October 14, 1994. The Act established a commission toreviewthe roles and capabilities of the Community. The resultant Commission on the Roles and Capabilities of the UnitedStatesIntelligence Community (43) made an extensivereview of the activities of intelligence agencies, and concluded that:

Law enforcement can be an extremely powerful weapon against terrorism, drug trafficking, and other global criminal activity. But it may not be the most appropriate response in allcircumstances.Often the perpetrators have sought sanctuary in other countries and cannot be brought to trial. Compiling proofbeyond areasonable doubt--the standard in criminal cases--may be even more difficult with respect to global crime.Diplomatic,military, or intelligence measures, in many cases, can offer advantages over a strict law enforcement response, orcan beundertaken concurrently with law enforcement. (44)

The Aspin-Brown Commission recommended that direction of the effort be vested in a senior-level committee of theNational Security Council (NSC), and that the committee include the Attorney General (who is not a member ofthe NSC). It urged the proposed committee to develop improved procedures to ensure increased sharing of informationbetween thetwo communities, and to coordinate increasing law enforcement activities abroad with local U.S. ambassadors andwithintelligence agencies. The Commission also noted the unwillingness of intelligence agencies to accept tasking fromlawenforcement agencies, based on their understanding that they were legally authorized to collect information for avalidforeign intelligence purpose. Based on the need to maximize the effort against terrorism and other transnationalthreats, theCommission argued that "the Intelligence Community should be permitted to collect information overseas at therequest ofa law enforcement agency so long as a U.S. person is not the target of the collection or the subject of the potentialprosecution." (45)

Intelligence agencies had long argued that, even if information could be shared with law enforcement agencies, it could becollected only for foreign intelligence purposes, law enforcement use being essentially a by-product. Based on theneedsthat had been perceived by the Aspin-Brown Commission to facilitate the intelligence contribution to the struggleagainsttransnational threats, the FY1997 Intelligence Authorization Act ( P.L. 104-293 ) (Section 814) amended the NationalSecurity Act to authorize elements of the Intelligence Community to collect information outside the United Statesaboutindividuals who are not U.S. persons. They would do so at the request of law enforcement agencies,"notwithstanding thatthe law enforcement agencies intend to use the information collected for purposes of a law enforcementinvestigation orcounterintelligence investigation." For the Defense Department, this authorization extended only to NSA, theNationalReconnaissance Office, and the National Imagery and Mapping Agency (and not to the intelligence offices of themilitaryservices). This seemingly minor shift was strongly criticized by some civil libertarians as a significant step towardsablurring of important distinctions between intelligence and law enforcement, and essentially giving NSA lawenforcementresponsibilities for the first time.

In addition, Congress has undertaken to remove some statutory prohibitions that were seen as inhibiting intelligencesupport to law enforcement efforts. The Antiterrorism and Effective Death Penalty Act of 1996 ( P.L. 104-132 )includedprovisions that allow the use of "classified information" indicating terrorist connections in deportation hearings ofaliensseeking entrance into the U.S. Presumably, the "classified information" could derive from either law enforcementorintelligence sources. The information need not be disclosed to the alien or his or her attorney beyond a summary"adequateto prepare a defense." Such use of classified information has been harshly criticized. Some observers, includingsomeMembers of Congress, believe that these provisions violate constitutional requirements for due process. Others,however,consider that revealing such information in deportation or visa cases could provide terrorist organizations withhighlyvaluable information. (46) In a widely reported case,former DCI James Woolsey, now an attorney in private practice, haschallenged efforts of the Immigration and Naturalization Service to use classified materials to justify deportationof severalIraqis without sharing it with him as their counsel. (47)

Another instance of intelligence and law enforcement cooperation is the National Drug Intelligence Center (NDIC) inJohnstown, Pennsylvania, which also reflects an effort to encourage law enforcement-intelligence cooperation inthecounternarcotics effort. Established pursuant to the Defense Appropriation Act for FY1992 ( P.L. 102-172 ), NDICincludespersonnel from both law enforcement and intelligence agencies. At its inception, it was expected that NDIC wouldmakeavailable information from both intelligence and law enforcement sources, enabling analysts to put together acomprehensive account of drug enterprises, identifying "the heart of a given organization, not just its extremities. Finalsuccess depends upon identifying and destroying those critical parts of the organization that are most vulnerable:keypersonnel, communications, transportation, finances, and essential supplies and equipment." (48) NDIC's current mission isto coordinate and consolidate strategic organizational drug intelligence, and produce assessments of the structure,membership, finances, communication, transportation, logistics, and other activities of drug traffickingorganizations. (49)

Although the extent of NDIC's success in fulfilling its mission has not been publicly detailed, Congress continues toprovide funding. In recent years some $27 million has been authorized annually for NDIC with the Attorney Generalretaining full authority over NDIC's operations. The Conference Committee on the FY1999 IntelligenceAuthorizationAct, in reiterating a request for a comprehensive assessment of the national counter-narcotics architecture, notedthat:

NDIC should be the facility that brings together all law enforcement and intelligence information for integrated, all-source, cross-case analysis. The continued isolation of domestic andforeignaspects of the drug trafficking organizations for separate analysis by different intelligence centers ignores thetransnationalcharacter of the drug trafficking threat to national security. (50)

Some observers continue to view NDIC is an organizational anomaly, managed by the Justice Department but with fundingprovided in intelligence authorization legislation. It represents a relatively small aspect of the much larger difficultyinaddressing the law enforcement-intelligence relationship.

The FBI has been responsible for counterintelligence, protecting all U.S. government agencies from foreign penetration andfor collecting information about threatening foreign activities in the United States. The CIA and FBI hadlongstandingarrangements for trading information on counterintelligence concerns, and CIA had established aCounterintelligenceCenter in 1986, but, according to many observers, there were limits to the extent of cooperation (as well asconsiderableineptitude in both agencies) clearly reflected in the failure to identify and arrest Aldrich Ames in the nine years thathespied on behalf of the Soviet Union prior to his arrest in 1994. (51) The Ames debacle made closer cooperation imperative. In a 1994 Presidential Decision Directive, a National Counterintelligence Policy Board was established by PresidentClinton and a separate National Counterintelligence Center (NACIC), located at CIA Headquarters, but not part ofthe CIA,was created to coordinate counterintelligence activities of various agencies. The staff of the NACIC arecounterintelligenceand security professionals detailed from the FBI, CIA, DOD, State, and the National Security Agency (NSA) andservingtwo year terms; the initial director was from the FBI, and successors will rotate from the FBI, CIA, and DOD fortwo yearterms.

Observers perceived, however, that the NACIC lacked sufficiently high visibility to deal effectively with counterintelligence challenges. In January 2001, President Clinton signed a Presidential Decision Directive, U.S.Counterintelligence Effectiveness-Counterintelligence for the 21st Century" (CI-21), creating aNationalCounterintelligence Executive, reporting to the FBI Director and other senior officials, to coordinate acounterintelligenceprogram. CI-21 will include strategic planning, analysis, counterintelligence budgeting, and information collectionoperations, serving as the national coordination mechanism to issue warnings of counterintelligence threats to thenationalsecurity. The Office of the National Counterintelligence Executive became operational in May 2001.

A Counterterrorist Center (CTC) was also established within CIA in 1986 to produce intelligence on terrorist threats.Although not a "national" center like the NACIC, the CTC now includes representatives from other intelligenceagenciesand from law enforcement and policy agencies as well. DCI Tenet has argued that the CTC:

creates a whole that is greater than the sum of its parts. It harnesses all of the operational, analytical, and technical elements devoted to counterterrorism. The results through the years point tothesoundness of this idea. The successes of this approach range from the uncovering of Libya's role in the bombing ofPan Am103 to the thwarting of Ramzi Yousef's attempt to blow a dozen United States airliners out of the sky in the Far Eastduring1995. Moreover, CTC has worked with the State Department to provide extensive counterterrorist training to ourallies.Over 18,000 individuals in 50 nations have been trained in counterterrorism over the pastdecade. (52)

The capability to exchange information between intelligence and law enforcement agencies is widely considered essential,even if some observers continue to insist that "[i]ntelligence-gathering tolerates a degree of intrusiveness, harshness,anddeceit that Americans do not want applied against themselves." (53) Thus far, there has been a recognition that informationacquired by intelligence agencies can be useful to law enforcement agencies, and procedures have been establishedto allowit to be transferred and used in ways that are intended not to compromise intelligence sources and methods, on onehand, orviolate the constitutional rights of American citizens and persons, on the other. As cases are tried in the courts, thelimitsof the procedures will undoubtedly be tested, and the courts may limit or extend the permissibility of usinginformationfrom the Intelligence Community. The extent to which "a bright red line" can be drawn is as yet uncertain.

Important principles remain, however, that create limits to the extent of cooperation; the Department of Justice Manual (DOJM) states:

Although coordination on matters of common concern is critical to the proper function of the two [i.e., law enforcement and intelligence] communities, prosecutors must be aware of theconcomitantneed of both communities to maintain a well-delineated separation between criminal prosecutions and foreignintelligenceactivities, in which less-stringent restraints apply to the government. Not to do so may invite the perception of anattempt toavoid criminal law protections by disguising a criminal-investigation as an intelligence operation. The judicialresponse tothat may be the suppression of evidence in the criminal case.... (54)

Above and beyond the interagency bodies comprised of members of law enforcement and intelligence agencies, WhiteHouse-level entities have been established to provide government-wide coordination. The efforts of the IntelligenceCommunity, as well as the State and Defense Departments, are coordinated by the National Security Council (NSC)staff under the direction of the President. Law enforcement actions are coordinated by the Attorney General on behalfof thePresident. Concerns about executive branch oversight of the U.S. response to transnational threats led to the 1996passageof amendments to the National Security Act of 1947. Section 804 of the FY1997 Intelligence Authorization Act( P.L.104-293 ) established within the NSC a Committee on Transnational Threats to develop strategies to deal with suchthreatsand to assist in the resolution of operational and policy differences among Federal departments and agencies inrespondingto the threats, to ensure the effective sharing of information about transnational threats among Federal departmentsandagencies, "including law enforcement agencies and the elements of the intelligence community," and "to developguidelines to enhance and improve the coordination of activities of Federal law enforcement agencies and elementsof theintelligence community outside the United States with respect to transnational threats." (55)

The Attorney General has not been made a statutory member of the NSC, reflecting an intention to keep law enforcementseparate from policymaking, defense, and intelligence agencies, although Justice Department representatives areroutinelyinvolved in NSC decisionmaking. In a memorandum of February 13, 2001 on the organization of the NSC system,President Bush directed that the Attorney General would be invited to participate in meetings pertaining to hisresponsibilities, but a formal inclusion of the Attorney General in the NSC was not proposed. The memorandumdidindicate that the Justice Department would be represented in the NSC Deputies Committee and Policy CoordinationCommittees giving DOJ the functional equivalence of membership.

The only official with authority over both intelligence and law enforcement efforts is the President, even though in someadministrations the National Security Adviser or the White House Chief of Staff may have significant, ifnonstatutory,responsibilities. Presidents will have limited time to devote to sorting out jurisdictional responsibilities of variousagenciesin specific cases, and some observers question the effectiveness of existing mechanisms for balancing internationallegaland policy concerns. Philip Heymann, a former Deputy Attorney General, has argued that, "Uncertainty is upsettingto bothsides. It would be wise for the federal government to propose a statute in an effort to use the weight of legislationto settleopen questions .... [T]he Supreme Court is likely to give great deference to the views of the executive andlegislativebranches on an issue that has such significant national security dimensions." (56)

Distinctions between law enforcement and intelligence can lead to potentially important difficulties. For instance, in March1997, according to media reports, the FBI, out of concern for an ongoing criminal investigation, was unwilling toshareinformation with the NSC staff about alleged contacts between Chinese officials and U.S. political fundraisers. Reportsfurther indicate that such information was not shared with the Secretary of State, who was then preparing for anofficialvisit to China. (57) Samuel Berger, PresidentClinton's National Security Adviser was recalled as "sputtering in a profanerage," and his deputy, James Steingberg, subsequently recalled that the problem of insufficient information-sharingwas"commonplace." (58)

Although the absence of this information may not have complicated U.S. diplomacy in this instance, some observerssuggest that information regarding other countries' efforts to influence U.S. policies must be available to thoseresponsiblefor the formulation and execution of U.S. national security policy. Given the stakes of U.S. relations with China,theysuggest that keeping the Secretary of State and other officials responsible for foreign policy uninformed of importantinitiatives of the government in Beijing may jeopardize important U.S. interests in international negotiations. TheFBI isnot charged with responsibility for national security policy, and critics argue that a determination by the JusticeDepartmentto monopolize information legitimately needed by the NSC or the Secretary of State undermines the constitutionalresponsibilities of the entire executive branch.

In another case, both the Attorney General and the FBI Director were publicly critical of the cooperation received from thegovernment of Saudi Arabia concerning the 1996 bombing of the Khobar Towers housing complex in which 19 U.S.military personnel were killed. (59) Former DCIJohn Deutch remarked on

the faintly ridiculous spectacle of Freeh, an individual with impeccable law enforcement credentials, who has successfully battled crime in the United States, being stiffed repeatedly by theSaudiswhen he requested coequal status in their internal investigation, and expected treatment of suspects and evidenceaccordingto American standards. Fat chance--the Saudi royal family's conception of justice is quite different from our own.In anycase, if the situation were reversed, it is highly unlikely that we would let foreign law enforcement officials play asignificant role in a sensitive internal investigation of an incident that occurred on U.S.soil. (60)

An area of growing concern is the possibility of attacks on U.S. information systems. Although such attacks thus far haveapparently been few in number and without permanent effects, many observers are greatly concerned that significantdamage could be inflicted on the computer systems and databases that are depended upon not only by governmentagencies,but also by important sectors of the U.S. economy. It is difficult to determine the sources of such attacks, whethertheyoriginate inside or outside of U.S. territory, or whether they are isolated or part of a larger plan. Resolving suchquestionmay be significantly complicated by statutes that assign separate responsibilities to law enforcement and intelligenceorganizations. An attack launched by a teen-aged hacker from a computer in the United States is clearly a lawenforcementmatter. An attack by a foreign government on U.S. defense databases would undoubtedly be viewed as a concernforintelligence agencies. In actuality, however, determining the source and purpose of the attack within a reasonabletimemight be difficult without the involvement of both law enforcement and intelligence agencies. It is argued thatcurrentstatutory restrictions can, however, preclude an investigatory role by intelligence agencies if U.S. persons or localesareinvolved in launching such attacks.

The need for coordinating law enforcement and policy issues is reflected in Presidential Decision Directives (PDDs) 62(Protection Against Unconventional Threats) and 63 (Critical Infrastructure Protection) of May 22, 1998. TheDirectivesare classified, although summaries have been officially released. (61) They established within the NSC staff a NationalCoordinator for Security, Infrastructure Protection, and Counterterrorism, whose responsibilities includecoordinationamong agencies for policies dealing with terrorism and other threats to U.S. infrastructure. A major focus of thesedirectives is the need to develop plans in conjunction with the private sector that controls a major percentage of U.S.infrastructure, but which may, for a variety of reasons, be reluctant to share plans for infrastructure protection withgovernment officials. The Bush Administration subsequently placed these responsibilities in the NSC PolicyCoordinationCommittee on Counter-Terrorism and National Preparedness.

PDD-63 also established a National Infrastructure Protection Center (NIPC) within the FBI to serve as a national criticalinfrastructure threat assessment, warning, vulnerability, and law enforcement investigation and response entity. Staffed bylaw enforcement agency investigators, as well as representatives detailed from other agencies, including theIntelligenceCommunity, the NIPC will be able to provide direct support to DOD or the Intelligence Community, dependingupon thenature and level of a foreign threat/attack, protocols established between special function agencies (DOJ/DOD/CIA),andthe ultimate decision of the President." (62) NIPC'sformer Director, Michael Vatis, described the role of this Center in1999:

Thus, the NIPC is housed in the FBI to enable it to utilize the appropriate authorities to gather and retain the necessary information and to act on it. Now, this does not mean that the ultimateresponse to a cyber attack is limited to criminal investigation and prosecution. The response will be determined bythe factsthat are uncovered. Thus, for instance, if it is determined that a cyber intrusion is part of a strategic military attack,thePresident may determine that a military response is called for. But no such determination can be made withoutadequatefactual foundation, and the NIPC's role is to coordinate the process for gathering the facts, analyzing them andmakingdeterminations about what is going on, and determining what responses areappropriate. (63)

Sensitive to statutory complexities, the PDD stated that, "All executive departments and agencies shall cooperate with theNIPC and provide such assistance, information and advice that the NIPC may request, to the extent permittedby law ." (Emphasis added.) Although a related White Paper indicated that the Administration "shall consult with, and seekinputfrom, the Congress on approaches and programs," there is no indication that the Clinton Administration believedthat theexisting statutory regime is inadequate for dealing with cyber threats or that a need exists for legislative initiatives. Subsequently, however, there were indications that Clinton Administration officials believed that the governmentneededgreater authorities to trace persons who abuse the Internet. (64) These concerns were addressed in the USA-Patriot Actpassed in October 2001 in the wake of terrorist attacks.

In these two directives (the complete texts of which have not been made public), the Clinton Administration established apolicy and an administrative structure to deal with critical infrastructure protection and with terrorism. Thestructure hasbeen maintained by the Bush Administration. It is well understood that ways must be found to encouragecooperation fromthe private sector, and that there are many difficulties to be overcome in this regard. Some observers argue, inaddition,that, in crises involving computer-based attacks on U.S. infrastructure, the separate responsibilities and authoritiesof lawenforcement and intelligence agencies might be impediments to immediate detection or to a rapid response.

Other observers suggest that organizational authorities established by classified executive branch directives fail to providenecessary public accountability, and may increase suspicion of government among parts of the electoratetraditionallysuspicious of government secrecy. Administration spokesmen argue, however, that, given the changing variety ofpotentialthreats now facing the country, a flexible structure centered on the NSC staff can enable the Federal Governmentto choosethe best approach in specific circumstances and adapt organizational relationships to changing needs.

Beyond Information Exchanges: Using Intelligence Agencies in Enforcing Laws

The national goal is, of course, not merely to study transnational threats, but, also, to reduce or eliminate them. The role ofintelligence agencies in the effort to counter transnational threats, such as narcotics smuggling and terrorism, arenotlimited to acquiring information and analyzing it. There are longstanding programs by which U.S. intelligenceagenciesprovide training and technical support to foreign governments. Intelligence agencies have also been involved inefforts tobring alleged international criminals to the United States in cooperation with diplomats and military and lawenforcementofficials. Observers believe that, on occasion, foreign countries prefer to have some criminals, even their owncitizens,tried in U.S. courts rather than their own to avoid undesirable political repercussions.

Depending on the circumstances, the Department of State, Department of Justice, and the Department of Defense can haveproactive roles in countering transnational threats. The State Department can attempt to persuade or pressureanother stateto crack down on lawbreaking occurring within the latter's borders. The United States, having developed evidencethat acrime has occurred, or is likely to occur, can also request formal extradition (or, make a more informal request thattheindividual be transferred to U.S. custody which is known as rendition (65) ) through diplomatic or law enforcement channelsin cases where the alleged violation is of U.S. law.

In a handful of cases, suspects have been brought to the United States by force. In 1987, one alleged airline hijacker waslured onto a boat in the Mediterranean, captured by FBI agents, and flown in a U.S. Navy aircraft to stand trial inthe UnitedStates. An alleged participant in the torture death of a DEA agent in Mexico was brought to the U.S. by anon-governmental group and turned over to Federal law enforcement personnel and subsequently stood trial. Theinvolvement of Panamanian General Manuel Noriega in narcotics smuggling was so egregious that it led toindictments byU.S. grand juries in February 1988; in March 1988, the Senate (by a vote of 92-0) had resolved that the United Statesshould obtain his extradition from Panama. (66) Subsequently, President Bush launched a full-scale invasion of Panama inDecember 1989 to restore the legitimate leadership of the country and turn Noriega "over to civil law enforcementofficialsof the United States as soon as practicable." (67) Noriega was captured, and subsequently put on trial in Florida; he wasconvicted of drug trafficking in April 1992 and sentenced to prison for 40 years (although the sentence was reducedin 30years in March 1999). In its report to the United Nations, the United States did not base its intervention in PanamaonNoriega's alleged narcotics trafficking, but rather upon the inherent right of self-defense under international law inresponseto armed attacks by forces under the direction of Manuel Noriega. (68) It has been argued that the first Bush Administrationthus refrained from arguing that drugtrafficking is a legal justification for military action. (69) It is clear, however, thatNoriega's drugtrafficking lay behind the invasion.

There is no question that such forcible abductions against the desires of a foreign country can greatly complicate U.S.relations with that country. Such efforts, according to some observers, appear to many in other countries to reflectU.S.disdain for acceptable procedures of international law. They arguably contribute to the impression that the U.S.relies onbrute force and undermine legal norms. It is easy to imagine the public consternation in the U.S. if another country"snatched" a U.S. official and put him on trial. (70)

On the other hand, supporters of such unilateral actions argue that, in extreme cases, a forcible abduction maybe the bestmeans to deal with flagrant criminals whose activities seriously jeopardize U.S. interests. Moreover, the processresults ina public trial by a judicial system that is arguably among the fairest in the world. They further point out that the onlyremaining alternatives are diplomatic protests, various types of economic restrictions, or the employment of covertactions. These, they argue, also have significant drawbacks. A diplomatic protest can be ignored; recalling ambassadors orbreakingrelations may be an option in dealing with Libya, but relations with other countries, including Mexico, are somulti-facetedand important that maintaining diplomatic representation is essential. Economic retaliation may not affect a desiredtargetin another country, but may harm broader American interests.

There have been more instances in which U.S. military force has been used to inhibit and punish terrorism. In April 1986,in retaliation for Libyan involvement in a bomb attack on a Berlin nightclub frequented by U.S. military personnel,President Reagan ordered air attacks on Libyan military targets. Although Libyan leader Muammar Qadhafi wasnotinjured in the attacks, some 70 people were reportedly killed. Observers believe that the attacks may have servedas adeterrent to further Libyan involvement in anti-American terrorist activities.

In June 1993, reports of plans by Iraqi-backed terrorists to assassinate former President Bush led President Clinton to orderan attack by cruise missiles on Iraqi military headquarters. In response to August 1998 terrorist attacks on U.S.embassiesin Kenya and Tanzania, President Clinton also ordered missile strikes on a terrorist training complex in Afghanistanand achemical weapons/pharmaceutical factory in the Sudan.

The attacks of September 11, 2001 have been treated as military strikes against the United States rather than a felony. Congress quickly passed a joint resolution ( P.L. 107-40 ) authorizing the President to use "all necessary andappropriateforce" against the nations, organizations, and persons involved in the attacks. In the campaign that ensued,intelligenceagencies provided extensive information support to U.S. military commanders and diplomats, and CIA clandestineunitshave had a significant role in combat operations in Afghanistan (and possibly elsewhere), but the response wasfundamentally a military operation.

Capturing alleged criminals and returning them to the U.S. can, under some conditions, be accomplished without theinvolvement of large military forces. In such cases, small, elite military units or intelligence agents can capture anallegedcriminal or bring a suspect into the United States. U.S. courts have long ruled that such abductions do notnecessarilyjeopardize a defendant's right to a fair trial. (71)

As noted herein, terrorists and narcotics smugglers abroad can be the targets of either military strikes or covert action. Indoing so, military forces and intelligence agencies operate mostly (but, arguably, not invariably) within theindeterminateparameters of international law that permits states to act in self-defense, rather than the different and much tighterconstraints of constitutional and domestic law.

Efforts such as these that are undertaken by U.S. officials, or at the behest of U.S. officials, undoubtedly fall within thecategory of covert actions as regulated by statute. (72) Supporters argue that covert actions have some advantages overcertain efforts by law enforcement agencies. They are deniable; by definition, a covert action is designed in a waythat therole of the U.S. is not perceived. In many cases, covert actions may be contrary to the laws of the country in whichtheaction is to take place, but at the same time they can be consistent with international law. (73) This deniability allows the U.S.to avoid taking responsibility for actions that would be deeply offensive to a foreign country or a major interestgroupwithin a foreign country. Covert actions would not necessarily involve the affront to another country's prestige thatwouldbe involved in a forcible abduction. Covert actions do not involve the tacit assertion or assumption that U.S. lawissuperior to that of a foreign country or of customary international law. Covert actions do not even require adeterminationthat given actions are contrary to specific provisions of U.S. law; they are built on the assumption that there areoverridingnational interests that have to be dealt with outside the framework of international law and normal state-to-staterelations,but without resort to the use of military force. Given the existence of countries or other entities in the contemporaryworldthat have no respect for U.S. interests or for any norm of international society--and the absence of world-wideinstitutionswith coercive force--the U.S. must be prepared, according to this view, to take direct action to protect its interests. Whilesuch covert initiatives will be endorsed by few countries, they will be understood and tolerated by most.

Such covert actions also have significant drawbacks. To bring someone from a foreign country to trial in the U.S. or to actdirectly to impede criminal activity in a foreign country, the U.S., or its agents, is breaking (or, at the very least,comingclose to the edge of) the laws of another country (or even customary international law). (74) The immediate U.S. goal may beachieved, but the larger purposes of upholding a rule of law are not necessarily enhanced. According to someobservers,international law is undermined more by one country unilaterally apprehending a suspected criminal and then tryinghim inits own courts than by the suspect's allegedly illegal activities. Furthermore, covert actions themselves reflect adecisionnot to accept the constraints of acting openly within legal norms.

Covert actions designed to punish illegal activities are especially hazardous. Some covert actions, of course, might onlyinvolve trying to disrupt a narcotics processing or transportation facility. The potential, however, for the loss oflives ofU.S. officials or agents is probably higher. The country in which they operate, if it doesn't consent to the operation,maytake grave offense (and even retaliate). Covert actions also deprive the U.S. of the premise that it is acting consistentwitheither national or international law. There are no trials, no court procedures, no cross-examinations of witnesses, etc . Resort to covert action clearly sends a message that the U.S. is prepared to operate on the basis of force and withouttakingformal responsibility for its actions. (Covert actions are designed to avoid revealing the role of the U.S. in theirplanning orexecution.) They do little if anything to support adherence to norms of international society.

In choosing the appropriate option for dealing with threats arising abroad that can be characterized as criminal, decisionmakers will have to weigh a number of factors against the danger involved in letting alleged criminalscontinueunmolested. They include:

Is the country where the activity took place (or is taking place) prepared to deal with the activity if the U.S. supplies relevant evidence?

Is the country where the activity took place (or is taking place) politically able to turn the alleged offenders over to U.S. authorities) as a result of a request of through formal extradition procedures)?

Is the country where the activity took place (or is taking place) prepared "to look the other way" were the alleged offender to be forcibly abducted by U.S. officials or agents and subsequently put on trial in theU.S.?

If not "prepared to look the other way," would the country be so offended by U.S. actions as to retaliate in some way?

Are there practical ways that a covert action could be used to deal with the problem?

What would the other country's reaction be to a U.S. covert action?

Virtually all such decisions will be case-dependent; different criteria would clearly hold for efforts by a terrorist group tosmuggle weapons of mass destruction into the U.S., as compared with ongoing narcotics smuggling endeavors. Theemployment of a covert action, and, most especially, a covert action that involved a risk of lives, would probablyhave a farhigher threshold than the delivery of a dÃ©marche by the State Department or a request forextradition.

Choosing the best response to transnational threats will inevitably be affected by important, and not always compatible,assumptions:

Terrorism and narcotics smuggling have risen to the status of threats to U.S. national security.

Concern for legal standards leads many to argue that, in most cases, alleged terrorists and narcotics smugglers should be tried in courts of law rather than dealt with as if they were military opponents.

Some terrorists and international narcotics traffickers are sufficiently dangerous as to lead the United States to capture alleged perpetrators and bring them to justice even if other countries' laws must beevaded.

Nevertheless, the U.S. must continue to deal with certain groups and governments even when they have relationships with terrorist groups and even narcotics smuggling.

Some threats are sufficiently grave to require a military response or a covert action. (75)

The most appropriate instrument will continue to depend heavily on the specifics of each situation.

Law Enforcement and Intelligence in the War Against Terror: The Implications of September 11, 2001

In the wake of the terrorist attacks on September 11, 2001, some attention was given to the question of whetherthe Osamabin Laden network in Afghanistan should be dealt with as a law enforcement or a military matter. The BushAdministration, unable to persuade Afghan authorities to arrest and hand over Bin Laden, quickly decided on amilitaryoption supported by covert intelligence units. (76) The approach was directly approved by Congress by a joint resolution( P.L. 107-40 ). Recognizing that a need would continue for related efforts by law enforcement agencies, theAdministrationalso pressed for passage of legislation to enhance their authority to acquire information on terrorist activities bymonitoringvarious forms of communications in the United States and to detain non-U.S. persons suspected of terrorist ties.

In addition, the Administration sought authority to make available to intelligence agencies foreign intelligence informationderived from grand jury disclosures and criminal investigations. This provision generated significant controversybased onconcerns that such transfers would encompass extensive and sensitive personal information obtained by lawenforcementagencies being made widely available to intelligence agencies. Some expressed concern about potential abuses,noting thatsuch information could be related to "entirely lawful activities, business transactions, political relationships, orpersonalopinions." (77)

The resultant statute, the USA-Patriot Act ( P.L. 107-56 ), eased restrictions on law enforcement agencies established in theForeign Intelligence Surveillance Act (FISA) of 1978. FISA was modified to permit exploitation of changinginformationtechnologies-roving surveillance, pen registers, and trap and trace authorities. (78) Furthermore, it permits the transfer offoreign intelligence information obtained from law enforcement sources to intelligence agencies with such transfersofinformation conducted in accordance with regulations established by the Attorney General in consultation with theDCI(and with exceptions if the Attorney General determines that disclosure would jeopardize an ongoing lawenforcementinvestigation or impair other significant law enforcement interests). (79)

Although a potential for abuse is widely perceived, the premise of the USA-Patriot Act is that information about foreignterrorists acquired by law enforcement agencies, including grand jury information, should be available tointelligenceagencies. Analysts would be able to put together the larger picture of groups plotting against U.S. interests. Theappropriate response could be selected from a variety of options-diplomatic protests to a foreign country whereterroristactivities were being planned, a military strike or a covert action intended to destroy a terrorist center or trainingfacility, anarrest in the United States, or a request for extradition or rendition of a suspect in a foreign country for trial in thiscountry. There will be advantages and disadvantages of any choice, but the goal would be for the U.S. government to haveascomplete a picture as possible of the nature of a threat. (As noted above, a particular concern regarding the use injudicialproceedings of information originated by, or shared with, intelligence agencies is the possibility that a defenseattorneymight seek access to intelligence documents whose release could seriously compromise sources and methods.)

Conclusion

Post-Cold War realities--geopolitical and technological--challenge not only the statutory foundations of lawenforcementand intelligence agencies, but also, more fundamentally, constitutional separations of power. The sorting out of rolesandmissions, as well as oversight responsibilities, has been under review by the executive branch in recent years, andvariouscoordinative mechanisms have been created. Nevertheless, areas of overlap and uncertainty will undoubtedlyremain forsome time to come.

Many observers argue that this uncertain situation should be allowed to evolve in practice before serious attempts are madeto establish a statutory framework for cooperation between intelligence and law enforcement agencies. On the otherhand,some suggest that ambiguities in the roles and missions of both intelligence and law enforcement agencies shouldberesolved, and that greater congressional oversight may be warranted. They further argue that it may be easier toaddresscomplex jurisdictional issues and oversight responsibilities at a time when relationships are malleable, rather thanto waituntil bureaucratic rigidities set in or undesirable precedents are set during grave crises that require immediatedecisions.

Efforts to enforce international law and the extraterritorial provisions of domestic laws are increasingly important in theresponse of the U.S. Government to the transnational threats of the post-Cold War world. Few expect, however,that theywill become the only recourse; virtually all observers anticipate that other instruments of national power will remainessential if the security of the country is to be preserved. Choosing between law enforcement agencies, and defenseandintelligence agencies presents important difficult challenges to those responsible for policymaking. Competinginterestshave to be weighed and balanced; compromises have to be made. Up until the present, these delicate decisions havelargelybeen made by the executive branch which has argued that no statutory changes are needed. Some observers believe,however, that the time has come for a larger role for the legislative branch. Whether major legislation is neededremainsuncertain, but, some believe that far more extensive congressional oversight would ensure that competing valuesas well asinstitutional concerns are more thoroughly considered, and that choices are subject to some public discussion.

The events of September 11, 2001, made it clear that international terrorism is a serious national security threat and haveprompted a major reassessment of cooperation and information exchange among all major intelligence and lawenforcement agencies. In the aftermath of the attacks, Congress took new steps to remove barriers among agencies. Inparticular, Congress moved to ensure that information available from law enforcement sources, including grand jurytestimony, would be made available to intelligence agencies. In pursuit of the Al Qaeda network, all informationwas to beutilized to support a multi-phased attack by law enforcement, military, and intelligence agencies.

Most observers believe that the destruction of the Al Qaeda network in Afghanistan will not mean the end of internationalterrorism, much less all transnational threats. Countering them will undoubtedly require the collaborative effortsofintelligence and law enforcement agencies. Very few observers believe that the two efforts can be simply conflated. Important constitutional distinctions will remain. Careful analysis of the campaign against Al Qaeda willundoubtedlyinform congressional oversight of the relationship between the two communities.