IC21: The Intelligence Community in the 21st Century
Staff Study
Permanent Select Committee on Intelligence
House of Representatives
One Hundred Fourth Congress
XIII. Intelligence and Law Enforcement
Executive Summary
For years, the intelligence and law enforcement communities
have maintained an uneven, and at times an antagonistic
relationship. This is due partly to differences in the roles and
cultures of the two communities, as both have different
responsibilities and objectives, as well as expectations regarding
information acquisition and management, and because of differing
end uses for that information. There have been other factors that
have affected the interaction between law enforcement and
intelligence. During the 1970's, investigations into improper
domestic intelligence activities uncovered some degree of
overreaching of intelligence into domestic areas. One of the
results of these investigations was that the two communities tended
to further distance themselves from one another over concern about
further inadvertent missteps. Then, beginning in the late 1980's,
two banking scandals (BCCI -- Bank of Credit and Commerce
International -- and BNL -- Banca Nazionale del Lavoro) highlighted
deficiencies in information management within and between the two
communities. Investigators from Congress and the Intelligence
Community itself recommended that problems relating to coordination
and information management be remedied.
Several other phenomena have focused the attention of the
Committee and others on the future relationship between the two
communities. Over the past 10 years, a number of statutes have
been enacted that expand the extraterritorial responsibilities of
U.S. law enforcement agencies. Frequently, these laws require FBI
activity in areas that also are of significant intelligence
interest -- narcotrafficking, terrorism and proliferation of
weapons of mass destruction. Another factor bringing the
intelligence and law enforcement closer together in recent years is
that traditional crime issues such as international organized
crime, illegal immigration, money laundering are becoming
intelligence topics as they increasingly are viewed by policy
makers as threats to U.S. national security.
Although the two cultures differ in their rules, objectives,
procedures, use of human sources and standards relating to the
quality and quantity of information they collect, a number of
procedures can be established to improve communication and
coordination within the framework of existing directives and
statutes. We believe that there is no need to further clarify the
National Security Act of 1947, as amended, or the subsequent
Executive Orders. There is a flexibility in these laws that
permits a reasonable, but well-bounded, range of interpretation
that will allow for improved cooperation and coordination between
law enforcement and intelligence without blurring important
demarcations between the missions and authorities of the two
communities.
For the last two years, a careful interagency review of these
intelligence/law enforcement relationships has been carried out by
the Joint Task Force on Intelligence and Law Enforcement (JICLE).
The JICLE has focused on legal policy, operations, information
management and judicial support, and has developed recommendations
and procedures in all these areas. The contribution of the JICLE
in trying to resolve the many issues related to intelligence
support to law enforcement is important; the growing coordination
and cooperation between the intelligence and law enforcement
communities is partly a result of the Task Force's efforts.
Training will be essential to bring about better understanding
differences in the two communities' objectives and methods, and in
establishing procedures by which the two communities can interface
effectively.
Of these many issues relating to intelligence support to law
enforcement, this study has focused on the issues of tasking,
crimes reporting, liaison, coordination of activities and assets
overseas, oversight, limits on searches of Intelligence Community
files, training and the reporting of law enforcement investigatory
information to Congress. The recommendations made in this study
focus on legislation, resource issues and overseas coordination.
INTELLIGENCE AND LAW ENFORCEMENT
Changing Scenarios
With the reduction in the Russian nuclear threat and a
lessening of that nation's support for insurgencies around the
world, the Intelligence Community has shifted more of its resources
to focus on other problems of growing importance: proliferation
of weapons of mass destruction; terrorism; drug trafficking and
weapons transfers -- also topics of interest to the law enforcement
community.
Although, some have argued that the end of the Cold War should
have reduced the problems facing law enforcement and intelligence;
in fact, the opposite is true. For example, the collapse of the
Soviet Union about the breakdown of a degree of authoritarianism
that had suppressed to a certain level the corruption and
lawlessness in that country and its Eastern Bloc neighbors. These
changes, as well as technological developments that have
revolutionized processes for transferring information, goods and
money, have helped to provide a fertile operational field for the
transnational criminal.
In the past 10 years, drug trafficking and terrorism statutes
have been enacted which expand the extraterritorial application of
some aspects of U.S. criminal law. As a result, the numbers of
law enforcement investigators abroad has increased. Law
enforcement's expanded responsibilities overseas has led to a
greater interest by law enforcement in Intelligence Community
information, as well as the likelihood for interaction with
intelligence communities overseas activities and responsibilities.
Parameters of Law
The National Security Act of 1947, as amended, specifically
authorizes the Central Intelligence Agency (CIA) to collect
intelligence through human sources and other appropriate means,
except the CIA shall have no "police, subpoena, or law enforcement
powers or internal security function." The intention of the law
was to hold intelligence separate and distinct from law enforcement
activities. At the time the Act was written, there was concern
about creating a monolithic central security service that history
-- and observations made of totalitarian states -- had taught us
was undesirable in a democratic society.
Permissible intelligence collection activities were further
clarified by President Reagan's 1981 Executive Order 12333. The
order provided guidance to all intelligence agencies on the scope
of allowable collection and other intelligence activities. Within
the limits set out in the Order, the Intelligence Community is
permitted to collect a large amount of foreign intelligence that is
of interest to law enforcement. Section l.4c authorizes the
intelligence agencies to undertake the "collection of information
concerning, and the conduct of activities to protect against,
intelligence activities directed against the United States,
international terrorist and international narcotics activities, and
hostile activities directed against the United States by foreign
powers, organizations, persons or their agents." Thus, the Order
empowers the Intelligence Community to collect and analyze
intelligence on the foreign aspects of traditional law enforcement
concerns such as narcotics production and trafficking,
international terrorism and counterintelligence.
Law Enforcement and Intelligence - Two Different Cultures
Even as the law enforcement and intelligence communities have
increased contact due to overlapping interests, problems can arise
relating to coordination and cooperation because the two
communities possess different rules, objectives, different sources
and methods, and different standards regarding the quality of
information they collect. Traditionally, intelligence agencies
collect political and military intelligence for policy makers; law
enforcement investigators gather information for prosecutions.
There are few rules governing intelligence gathering -- it
generally involves activity abroad that is illicit or undertaken
with the host government's covert cooperation and does not focus on
U.S. citizens. By contrast, law enforcement focuses primarily
within U.S. borders, territorial waters or airspace. In enforcing
those United States laws having extraterritorial application, the
law enforcement emphasis is upon crimes committed by U.S. nationals
or upon illegal or foreign activities that affect U.S. national
security, U.S. property or U.S. nationals. Law enforcement
activity outside the United States and within other countries'
borders is usually undertaken overtly in cooperation with the host
government.
Further, the two communities have different expectations with
regard to the information they gather. Law enforcement gathers
information to build a case upon which criminals can be prosecuted
and sent to jail. A criminal defendant is entitled, under the
Sixth Amendment of the U.S. Constitution, to a speedy public trial.
The Constitution guarantees a defendant notice of the charges
against him, the right to confront his accusers, the right to
counsel and the right to subpoena witnesses on his own behalf.
Further, the prosecution must disclose to the accused any
potentially exculpatory materials that it has in its possession.
In public criminal trial proceedings, law enforcement information
therefore should be unclassified, and reliable and accurate enough
to establish proof beyond a reasonable doubt in a courtroom. (The
1980 Classified Information Procedures Act (CIPA) provides for
certain pretrial, trial and appellate procedures for criminal cases
involving classified information. CIPA is designed to take into
account the sometimes competing needs of the prosecution, the
constitutional rights of the criminal defendant, and the national
security concerns of the Intelligence Community.)
In contrast to law enforcement, the Intelligence Community
gathers tremendous amounts of information based on a complex set of
needs and requirements established by the policy makers it
supports. This information can be collected simply to develop
understanding of an issue, not necessarily in preparation for an
action. Unlike law enforcement information, much of this data is
of questionable reliability and obtained only on the understanding
that it will not become public knowledge. The collected
information is reviewed and evaluated by intelligence collectors
and analysts who gauge its reliability and accuracy.
By contrast, law enforcement investigators and prosecutors
obtain their case information from interviews, statements and
affidavits from prospective witnesses, searches, physical or
electronic surveillance, documentary information obtained for a
variety of sources, grand jury proceedings and informants. Their
investigative techniques must comply with constitutional mandates
such as the Fourth Amendment's general prohibition against
unreasonable searches and seizures and, absent circumstances
fitting within specific exceptions to the general rule, its warrant
requirement. Judicial decisions, statutory language, Attorney
General guidelines and other internal directives may also clarify
appropriate investigative limits and techniques. The statutory
standards for physical searches and electronic surveillance in the
foreign intelligence context differ from those applicable in a
criminal investigation.
Law enforcement informant information can come from either
long or short-term human sources. Long-term informants may be used
to assist in a prolonged investigation of complex criminal
activities or of a criminal organization, or they may be used for
their assistance in more than one investigation. These valuable
sources are seldom revealed in prosecutions. Instead, law
enforcement investigators may develop informants whose
contributions are expected to be more short-term in nature. These
informants supply case-related information, and their relationship
with law enforcement generally terminates when the case is closed.
By contrast, human intelligence sources are almost all long-term
assets recruited overseas by case officers. Additional
intelligence comes from national collection capabilities that
include imagery, communications and signals intelligence. These
collectors gather a myriad of information -- but they are designed
to be long-term capabilities to collect against certain types of
targets. The key to their longevity is the understanding that they
will not be compromised, such as could be the case if the
information is used improperly in a law enforcement action or the
source is required to testify before a grand jury or court.
Separation Between the Two Cultures
Over the past 50 years, the intelligence and law enforcement
communities have operated in largely different spheres, separated
by mission, culture, scope of activity and law. Several major
changes have occurred within the past decade that have complicated
this fundamental orientation of the two, pushing them further apart
or closer together. In the 1970's, scandals that involved
overreaching into U.S. domestic areas by the Intelligence Community
and improper domestic intelligence activities by the Law
Enforcement Community were uncovered by the Watergate, Rockefeller,
Church and Pike Investigations. A number of reforms came out of
these investigations. One of the unwritten but significant side
effects of these investigations was behavioral in nature. The
years that followed the investigations were marked by some
reluctance on the part of the two cultures to form interactive
relationships. This over-caution was based more a perception that
closer association meant increased political risk than having any
basis in prohibition of law.
Since the late 1980's, several additional events have occurred
that have led up to the changes in the relationship that are now
occurring.
BCCI and BNL Cases: The Need for Better Intelligence and Law
Enforcement Cooperation
In the late 1980's and early 1990's, there were two notable
financial scandals of international dimension that highlighted
problems with intelligence and law enforcement information
management. In the BCCI (Bank of Credit and Commerce
International) case, the CIA had used the bank for its own
purposes, but also reported on the illegal activities of that
organization. Investigators found the CIA reports were not made in
a manner to focus law enforcement agencies on the violations
occurring. A report on the BCCI affair made by two Senators to the
Senate Foreign Relations Committee found that CIA analysts had
failed to grasp the significance of the information they had before
them as it related to violations of international banking law.
Another finding was that CIA reports had not been provided to
relevant agencies in a consistent manner.
In the BNL (Banca Nazionale del Lavoro of Italy) case, similar
problems were uncovered. Over time, the CIA had developed a number
of intelligence reports and analytical products regarding the BNL.
When asked by investigators to produce a compilation of these
materials, the CIA found it difficult to retrieve all relevant
material in its various files. Moreover, what the CIA had provided
to the Justice Department and others had been disseminated in an ad
hoc fashion, a matter made worse by poor record keeping. For its
part, the Justice Department was unable to retrieve records of the
intelligence that had been provided to it by the CIA. The
intelligence that had been provided by the CIA had been misplaced
or forgotten until subsequent searches by both the Justice
Department and the CIA uncovered material that probably should have
been produced for the defendant or the court.
The findings of the Senate investigations of BCCI and BNL
concluded that there was a need for better information management
on the part of the CIA and the Justice Department. In its
investigation of the BNL matter, the Senate Intelligence Committee
also called for better coordination between the law enforcement and
intelligence communities and for more and improved law enforcement
access to intelligence files. Congressional pressure for change
and the growing recognition by both communities that, because of
changing law enforcement jurisdictions and world developments, the
two would be working in closer proximity to each other, prompted
the formation of an interagency task force to work on these
problems and other issues of concern. That initial task force,
and the one that followed, found this job to be larger and more
complicated than anyone had anticipated.
Interagency Task Forces
The first task force was begun in 1993, at the behest of then
Director of Central Intelligence James Woolsey and Acting Attorney
General Stuart Gersen. This interagency group was headed up by
Deputy Attorney General Mark Richard and CIA's General Counsel,
Elizabeth Rindskopf. The task force's mission was to consider the
broad range of issues that affected intelligence and law
enforcement community interaction and what measures could be taken
to improve coordination, with particular focus on the problems
brought out in the BCCI and BNL investigations. In August 1994,
the task force issued a report that included 23 recommendations to
improve coordination, including the establishment of liaison
offices to provide prosecutors with a better understanding of what
intelligence support is appropriate. Although the report concluded
that both intelligence and law enforcement have "sufficient
legislative and regulatory authorities to cooperate effectively,"
the task force did not provide concrete resolutions of coordination
issues. Rather, it recommended that working groups be formed to
continue to resolve the problems outlined by the task force.
In early 1995, several groups were formed to carry out the
first Richard/Rindskopf recommendations. The Intelligence
Community-Law Enforcement Policy Board was established in May to
meet quarterly on issues of mutual concern to the Attorney General
and the DCI. The Board is co-chaired by DDCI George Tenet and
Deputy Attorney General Jamie Gorelick. Membership on the Board
includes all of the law enforcement and intelligence agencies, the
Assistant Secretary of State for Intelligence and Research and the
Defense Department's General Counsel.
Two working level groups were established to report to the
Policy Board. The first is the JICLE or Joint Intelligence
Community-Law Enforcement working group. This group's job is to
address the specific problems identified in the Rindskopf-Richard
report. A second group, the Special Task Force on Law
Enforcement-Intelligence Community Coordination, has the
responsibility of developing guidelines for overseas coordination
between the two communities.
Other Factors Push Intelligence and Law Enforcement into Closer
Relationship
In the past few years, the physical and functional separation
of law enforcement and intelligence has lessened. One impetus to
a closer relationship has been deficiencies in information sharing
brought out by the BCCI and BNL investigations. But there are also
other factors that have been pushing the two communities into a
closer relationship. There has been a major shift in the world
order that has taken place since the fall of the Soviet Union and
the end of the Cold War. There have also been changes in law
responding to transnational criminal activities that are
increasingly affecting the United States.
The 21st Century World
The world of the 21st Century is one that will be increasingly
interconnected. The speed of transportation, efficiencies in the
movement of goods and the electronic transmission of information
and money represent new mediums in which transnational activities
-- legal or illegal -- can flourish. The criminal enterprises that
will thrive in a globalized world will inevitably cross many
nations' borders. More than ever before, law enforcement agencies
are finding that crimes are being visited upon the citizens of one
nation by the residents of another.
Some of the more significant criminal activities that are of
greatest concern to policy makers are illegal finance activities
(including money laundering), car theft rings, the movement of
prohibited goods, precursor chemicals, nuclear, biological or
chemical weapons, and illegal toxic waste dumping. In addition,
crimes such as drug trafficking, money laundering and alien
smuggling that were typically of national or regional effect only
a few years ago now cause problems worldwide.
Growing Number of Extraterritorial Statutes
There is a limited inventory of federal extraterritorial
jurisdiction that includes 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; overseas theft or destruction of the property of the U.S.
government; the use of violence against its officers or employees,
or the obstruction or corruption of the functioning of its agencies
overseas. Finally, there is federal extraterritorial jurisdiction
over activities outside the U.S. that result in or are intended to
result in harm within the U.S., such as drug trafficking. There
are also state crimes that can have extraterritorial application.
These vary from state to state and include misconduct such as
theft, murder or conspiracy. State laws tend to be more detailed
and restrictive in purpose and interpretation.
Why is International Crime a National Security Concern?
The internationalization of crime can create a security gap
for any nation. The detrimental effects of crime can be
proportionately greater in smaller nations, and particularly
threatening to emerging democracies. For example, most nations
today are struggling with fiscal deficits. Money laundering and
other criminal activities compound debt problems because very large
sums of money are lost as taxable revenue. Corruption and bribery,
caused by and causing criminal activities, can stand in the way of
legislating effective enforcement laws. Corruption and illegal
activities can stymie pro-democracy efforts because of the pressure
debt problems can put on an economy and social welfare. Moreover,
the presence of significant criminal activity can make it difficult
for a nation to attract the commercial investment needed to make
its economy grow. Thus, the inability of countries to deal with
crime has a destabilizing effect; also, the criminal activities
taking place within their borders can have a reach far beyond those
borders.
In order to put the international wrong-doers out of
business, all affected nations must be willing and prepared to
enact and enforce laws that make it difficult for criminals to
operate within their borders. For example, money launderers will
do their worst where laws prohibiting illegal transfers of funds
are lax and they can expect to escape scrutiny. They will also
operate where corruption is prevalent enough to protect them from
disclosure.
Transnational problems inevitably raise the issue of
international cooperation as one means of response. It is
interesting to consider the role of the State Department and law
enforcement community in combatting international crime problems,
especially as both are expanding into this area. In late 1995, the
State Department renamed its Bureau for International Narcotics
Matters (INM) to the Bureau for International Narcotics and Law
Enforcement Affairs. At the time of the reorganization, a Deputy
Assistant Secretary was designated to focus on International Crime
and Policy Planning. This official is responsible for the
development and implementation of foreign policy initiatives to
counter international criminal threats to U.S. national interests
and programs to strengthen criminal justice institutions in support
of Administration of Justice/Rule of Law Programs. The State
Department is urging better coordination between all entities of
the Government that have an interest in international organized
crime. For its part, the Justice Department is involved in a
number of the Rule of Law Programs, which involve a variety of
overseas training assistance activities. The law enforcement
community generally has been supportive of the State Department's
efforts to better coordinate these programs.
The growth in law enforcement's overseas presence and
investigatory activities has produced a sharper debate over the
roles of intelligence and law enforcement agencies overseas, with
most discussion focusing on the degree to which the Justice
Department will coordinate its activities with the Ambassador. The
Justice Department has expressed a willingness to inform and
coordinate with a designated embassy official regarding its
activities in country. Indeed, such coordination is required by
law (22 U.S. C. 3927). However, Justice draws the line at
allowing any embassy official to become involved in prosecutorial
decisions relating, for example, to whether a case will be pursued.
Discussions on this issue are ongoing; a Memorandum of
Understanding relating to coordination of law enforcement
activitiesoverseas is expected sometime in 1996, as is a report
from the Overseas Coordinating Group, whose task it is to resolve
the myriad of coordination issues that can arise abroad.
Liaison/Coordination of Assets
In a recent statement, Deputy Attorney General Jamie Gorelick
stated that the FBI intends to recruit informants and engage in
operational activities overseas. There are varying opinions on
the degree to which the FBI will be active in this area, as well as
how broadly the term "informant" is to be interpreted. In reality,
most law enforcement contact with informants is to be done openly,
and with the knowledge and consent of the host government. As
pointed out earlier in this report, use of informants is much a
part of the FBI's criminal investigative repertoire. The Drug
Enforcement Agency (DEA), an organization with a large cadre of
officers overseas, also uses informants. Although relations have
not always been perfect, by and large, where the DEA and CIA are
both present in country, coordination between the two agencies has
worked and should continue to improve. However, there remain a
small number of instances where the FBI, in particular may become
involved overseas with clandestine sources recruited in the U.S.
In such cases, the FBI cooperation with the CIA on these activities
is imperative, and efforts are underway on the part of both
organizations to strengthen the conduct of these activities.
At a minimum, we believe that recruiting of and contact with
confidential informants overseas by the law enforcement community
should be coordinated through the Chief of Station. We recognize
that to a great extent this is already being done, although not
consistently. We understand that there will be criminal
investigative activities occurring in areas that are not subject
matter of interest to intelligence. In these cases, there may be
benefit derived from law enforcement's use of intelligence
information for contextual information, but coordination of
activities themselves will not be a factor.
Increased FBI presence overseas has highlighted other issues
relating to the relationship between the FBI and the CIA. For
example, there has been some debate over the conduct of liaison
with law enforcement and security services. Some have posited that
the FBI should have sole responsibility for liaison with foreign
law enforcement entities. The argument is that law enforcers
relate best with other law enforcers, and the presence of CIA
liaison raises the specter of possible recruitment attempts, which
can have a negative influence on law enforcement cooperation. The
FBI has argued that its reputation as a respected law enforcement
entity could be tarnished should a CIA recruitment of a foreign
security representative to go awry. DEA officials have also
expressed concern that its law enforcement image might suffer in
some countries should its association with the CIA become known.
These arguments have some merit, but are not necessarily relevant
where security and intelligence organizations are one in the same.
Another factor that weakens the exclusivity argument is that
corruption is frequently a significant problem overseas. Given the
focus of many law enforcement investigations, it might unwise to
deny the CIA potential access to those who might inform on the
nature and extent of corruption in their country. For these
reasons, we oppose any effort to preclude the CIA from having
liaison with law enforcement overseas, although there may be cases
where it would be appropriate for the FBI to be the primary
liaison. The CIA has a long history of involvement with overseas
security organizations and should not be denied continued contact
in this area. Basically, this is a problem that can be less
settled by a commitment to careful coordination between the
intelligence and law enforcement communities.
Just as law enforcement must have primacy regarding any
transnational activity undertaken inside the United States, we
believe the CIA should have local primacy in pursuing transnational
issues in foreign countries. This means the Chief of Station must
have full cognizance of law enforcement activities where
intelligence interests may be affected, except where such
information may be specifically denied him or her due to grand jury
secrecy requirements as set forth in F.R.Cr. P. Rule 6(e), which
precludes disclosure of matters occurring before a grand jury.
Searches of Files
One of the problems highlighted by the BNL and BCCI
investigations is that intelligence was not conveyed to policy
makers as thoroughly, meaningfully and consistently as perhaps it
could have been. As discussed earlier, there were also flaws in
the Justice Department's handling and management of intelligence
information and reporting. As the interagency task force has
sought to improve upon procedures relating to the provision of
intelligence to law enforcement, two significant problems have
arisen. The first questions to what degree intelligence agencies
should (and can be) expected to report criminal activities to the
Justice Department. The second information-related issue is the
protection of intelligence files from exculpatory searches during
the prosecution of a criminal or civil case.
Reporting Requirements
In 1982, a Memorandum of Understanding (MOU) between the
Justice Department and the Intelligence Community established
Intelligence Community obligations to report evidence of criminal
activity relating to intelligence assets or information uncovered
during the course of collecting for other intelligence
requirements. In recent years, representatives from both
communities had come to recognize that some revisions of the MOU
were needed to reflect changes in law and policymaker interest.
In August of 1995, a new Memorandum of Understanding was
approved. As before, the MOU requires the Intelligence Community
to report suspected significant criminal misconduct by officers,
employees, contractors or agents. Among other things, the MOU
represents an attempt to minimize the number of special reports
that will be required of the Intelligence Community. Because
intelligence analysts are not experts in criminal law, and for
other reasons stemming from the nature of intelligence information,
we believe that reporting requirements should not include possible
violations of law involving third parties acquired during foreign
intelligence collection. This information should be disseminated
as part of routine intelligence to law enforcement agencies.
Considering the unfortunate experiences of both communities
relating to BCCI and BNL, we believe that making the process more
efficient should be one goal of the new MOU. There is also concern
that intelligence analysts are not the proper people to review all
information for potential criminal activity. Attempts to train or
hire intelligence analysts to perform such functions may move the
Intelligence Community into proscribed law enforcement
responsibilities.
Unfortunately, it is almost inevitable that at some point some
tidbit of information will be overlooked by the Intelligence
Community or the recipient law enforcement agencies, creating to
some extent a reprise of the "banking" case problem. In light of
the vulnerability to post facto judgments regarding the
significance of criminal-related information, recent problems
relating to "criminal" activities of human sources, and the current
debate over what reporting should be required of the Intelligence
Community, we may wish to consider statutory or other language that
will set forth "reasonable" expectations and goals in these areas.
It also may be wise to require some form of periodic reporting to
Congress on some of these matters.
Limits on Searches of Intelligence Community Files
In the overall intelligence/law enforcement relationship,
serious problems can arise when, during the course of a
prosecution, the defendant feels there is reason to believe there
may be exculpatory evidence related to him or her in Intelligence
Community files and requests a search and a Brady (Brady v.
Maryland (1963)) ruling. Searches like these pose an enormous
threat to intelligence sources and methods. Yet, the closer
intelligence agencies work with investigators, the more likely it
is that file searches will be sought.
There are several ways to reduce risk in this area. One is to
limit the use of intelligence for law enforcement purposes.
Another, assuming there is a compelling benefit in so doing, is to
employ parallel investigatory efforts that keep intelligence out of
the investigatory record. This is frequently done in customs cases
and has been effective in the drug trafficking area. Another
recommendation is to establish a "Center" that would focus on the
use of intelligence in prosecutions. This Center might be staffed
by Intelligence Community and Justice Department lawyers. The
Center would be the focal point for the Intelligence Community and
law enforcement agencies once a decision has been made to use
intelligence in pursuing the law enforcement action. Finally, the
Justice Department is attempting to establish a protocol that
governs when Intelligence Community files may or may not be
searched. The Department wishes to limit searches to that
intelligence used in developing cases. It does not appear that any
statutory provisions to restrict discovery to protect intelligence
sources are required at this time. There are concerns that
legislation might be counterproductive, as such restrictions would
likely to trigger greater interest in discovery actions and
challenges by defense attorneys.
The intelligence and law enforcement communities agree that
regardless of what standards are applied to permitting searches,
the searches themselves must be conducted with maximum focus and
coordination. By requiring prosecutors to closely define their
search requests, the Intelligence Community may be able to conduct
a timely and thorough search related to the specific framework of
the search request. Specificity on the part of the request will
help limit expectations that the Intelligence Community will search
for every piece of information in all its files, which is
burdensome and even unreasonable given the nature of much
intelligence information collected.
Tasking
This issue pertains to whether and how law enforcement may
"task" the Intelligence Community to collect intelligence related
to a specific subject matter. As the intelligence and law
enforcement communities have both become increasingly involved in
the international aspects of weapons proliferation, terrorism, drug
trafficking, international organized crime and the like, it is not
surprising that law enforcement has been eager to consume the
Intelligence Community's considerable wealth of information on
these subjects. Much of this information is disseminated to law
enforcement and other agencies as strategic intelligence. It has
followed that in seeing these capabilities, law enforcement would
at times like to task the intelligence community to collect on
specific subjects. Of all the issues before the Interagency Task
Force, this one has been the most difficult to resolve.
As it now stands, neither the National Security Agency (NSA)
nor the CIA will accept tasking. Both organizations adhere to
what is called the principal purpose test, which is that the main
purpose of the collection is foreign intelligence. For its part,
the CIA's Operations Directorate has agreed to a "tagging"
procedure and will collect in response to a law enforcement request
if the information has some foreign intelligence value. As long
as the subject is a foreign person engaging in terrorism or weapons
proliferation or other illegal activities, the principal purpose
test is no problem. Problems arise when a foreign person of
interest to the Intelligence Community enters the United States, or
if there is an impending arrest and prosecution. This is when
problems arise relating to the protection of sources and methods in
future court action, and when more rigorous analysis of law
enforcement versus intelligence interests is required.
The JICLE task force has been meeting for months on the
tasking issue and has concluded that both communities must steer
away from tasking as much as possible. According to the report of
the task force, "One way to minimize risks and ensure that
case-specific collection is undertaken in a manner consistent with
pertinent legal authorities is for law enforcement to provide
target-specific lead information to Intelligence Community
agencies. These agencies would determine if collection against
that target would produce foreign intelligence. If the collection
is done, the resulting information is to be disseminated to all
interested consumers, as well as the law enforcement agency that
provided the impetus for the collection." We believe this is the
correct approach to take.
Training
The JICLE has recommended training for intelligence and law
enforcement personnel to facilitate coordination and cooperation
between the two cultures, and to educate participants on the laws,
regulations and procedures that make the coordination process work.
For example, Justice has been developing a training program for
U.S. District Court judges on national security matters, to
describe circumstances when it is permissible to disclose grand
jury material to the Intelligence Community, and on the
applicability of CIPA to all classified information, including the
identity of intelligence agents. As the JICLE recommendations are
accepted and incorporated as a way of doing business, training like
this will be essential. It is unclear at this point how much the
training will cost or how extensive the training should be. Most
likely the greatest cost associated with training will be travel
expenses for trainers and trainees. The cost should not be large;
it is more a matter of competing for funds with other Department
needs and objectives that may necessitate congressional interest in
seeing that training will be carried out. JICLE believes that
investigators and prosecutors, judges, intelligence officers,
defense attorneys, congressional staffers and possibly the media
would benefit from education programs. One proposal was to
establish a Joint Law Enforcement/Intelligence Community Training
Committee to assess training needs, evaluate training options, and
prepare and deliver the training. Requests for additional funds
for this training should be supported in the FY 97 authorizations
of the intelligence and law enforcement communities.
Oversight Issues
One of the problems raised with regard to the closer nexus of
intelligence and law enforcement is proper oversight of criminal
investigations to ensure that criminal investigators do not adopt
less stringent intelligence collection procedures in their
investigations, thus compromising the civil liberties of U.S.
citizens. More specifically, there are concerns that criminal
investigations might be pursued under Foreign Intelligence
Surveillance Act (FISA) strictures, using bogus "intelligence
requirements" as a subterfuge to avoid Fourth Amendment probable
cause requirements.
There is some misunderstanding about the distinction between
foreign counterintelligence (FCI) investigations and criminal
investigations that has caused many to mistakenly believe one can
readily supplant the other. It is true that FCI
investigations may lead to a criminal prosecution, but FCI
investigations are performed pursuant to Executive authority, as
opposed to criminal statutes. Certain techniques are important to
the successful resolution of an FCI case, including Foreign
Intelligence Surveillance Court (FISC) authorized electronic
surveillance and physical searches. The Truong-Humphrey case (4th
Cir.) requires that FCI investigations maintain an intelligence
focus. When the focus shifts from FCI to criminal, then
investigators can no longer use FCI techniques. Evidence obtained
through the use of FCI techniques after the focus shifts to
criminal investigation would be suppressed. The use of criminal
investigative techniques such as subpoenas and search warrants
indicate that the investigation has a criminal focus. Therefore,
investigators of FCI matters are denied the use of subpoenas,
search warrants, grand jury testimony, and other traditional
criminal investigative techniques.
The Justice Department does not see the relationship between
these two kinds of investigations as a problem. The Office of
Intelligence Policy Review (OIPR) and the Office of Legal Counsel
work on intelligence gathering activities and authorities, and make
legal rulings on matters such as the appropriateness of maintaining
certain intelligence agents. The principal consumers of
intelligence, on the other hand, are Justice Department entities
such as the Drug Enforcement Agency and the Federal Bureau of
Investigation, as well as the non-Justice agencies of the Treasury
and Commerce. There is little overlap between the two groups in
terms of common need. Moreover, the Attorney General is charged
with overseeing both the monitors and the investigators.
In addition to the Justice Department overseers, oversight of
FISA is considerable. FISA matters receive serious scrutiny by the
FBI, OIPR and the Deputy Attorney General. FISA cases are the only
Justice Department cases that are read by the Deputy Attorney
General and Attorney General's staffs. Reports on FISA cases are
also provided to the two Intelligence Committee.
There are two other oversight issues that were brought out by
the JICLE pertaining to the provision of information to Congress.
Sections 501 and 502 of the National Security Act of 1947, as
amended, require the President and the DCI to keep the House and
Senate Intelligence Committees "fully and currently informed of all
intelligence activities . . . including any significant anticipated
intelligence activity." There is no formal regulation that
defines the circumstances when the Intelligence Community may
discuss ongoing criminal investigations with its oversight
committees. The Law Enforcement Community has concerns that in
meeting the statutory oversight requirements, the Intelligence
Community will feel compelled to disclose information pertaining to
law enforcement investigations. The JICLE has recommended that the
Intelligence Community coordinate with the Law Enforcement
Community before it briefs Congress on any subject matter with law
enforcement implications. A December 1995 DCI Directive (DCID
2/13-1) confirms that the Justice Department will be informed
before there is congressional notification on intelligence matters
that have law enforcement information. The Directive establishes
procedures to ensure advance coordination and resolution of
disagreements between the intelligence and law enforcement
communities on the amount of information that may be provided
without adversely affecting a criminal investigation or
prosecution.
Another recommendation from the Task Force's report is that
the Intelligence Community should apply "substantially stricter
standards before providing non-oversight committees with
information on ongoing criminal investigations with significant
intelligence implications."
Finally, the JICLE considered current procedures for
disseminating clandestinely collected foreign intelligence that
identifies congressional Members or staff. The current practice is
that the identities of such individuals are removed before
dissemination. However, any recipient of the information -- with
the exception of the President, Vice President, Secretaries of
State and Defense, and the National Security Advisor -- who wants
to know the actual identity may be informed of that identity upon
written request. The Justice Department has been concerned that
this disclosure policy poses a threat to criminal investigative
responsibilities and practices. When the JICLE met on this
subject, several conclusions were reached. First, there is ample
opportunity under the current procedures for the agencies that have
collected this information to bring their concerns to the DCI
before the information is provided to Congress. Second, due to
concerns about interference with ongoing criminal investigations,
the DCI or CIA General Counsel would obtain Justice Department
permission before providing this information to Congress. If that
permission were denied, the information will not be provided.
There are some who believe these procedures should be reconsidered
and that reporting to Congress should only be done when there is
some foreign intelligence value to the information -- as opposed to
domestic law enforcement or counterintelligence.
We may wish to consider this issue itself with regard to a
need for clearer standards and procedures for the provision of this
investigatory information to Congress. We, indeed Congress as a
whole, should resist any recommendations that would further
restrict it receipt of this kind of information.
Recommendations
Legislation
1. There is no need to further clarify the National Security Act
of 1947, as amended, or the subsequent Executive Orders. There is
a flexibility in these laws that permits a reasonable, but
well-bounded, range of interpretation that will allow for improved
cooperation and coordination between law enforcement and
intelligence without blurring important demarcations between the
missions and authorities of the two communities.
2. There has been debate over whether the Classified Information
Protection Act (CIPA) should be amended. CIPA was enacted to
provide a procedural mechanism for use in Federal criminal trials
involving classified information. However, outside the Federal
criminal process, there are no CIPA-like processes. Thus, some
have suggested the creation of procedures similar to CIPA for use
in civil matters. Those opposed to this approach believe it is
unworkable and unnecessary, and would erode the viability of the
state secrets privilege. Interagency review under the JICLE has
concluded that there is no need for civil CIPA. Because of the
complexity of this issue and the short legislative year this
session, the Intelligence and Judiciary Committees may wish to
study the CIPA expansion issue in the next Congress.
3. The Committee should consider statutory or other language that
will set forth "reasonable" expectations and goals on Intelligence
Community reporting on criminal activities. This language should
convey Congressional views on the extent to which third party
activities should be reported to law enforcement by the CIA and
requirements pertaining to reporting on illegal actions by
officers, employees, contractors or agents. The language should
express legal requirements and set forth a national policy
regarding the reporting of agent involvement in illegal activities,
and the degree to which such activities should affect continued
involvement with that agent. A balance must achieved between
recognizing an agent's unsavory activities versus the value of
intelligence the agent in question can provide and the validity of
the requirement for intelligence that is driving the relationship
between the Intelligence Community and the agent in the first
place.
Resources
4. Training is essential to effective cooperation and
coordination between the two communities. Consideration should be
given to the need for additional funding for training in the FY 97
authorizations of the intelligence and law enforcement communities.
This is an issue that should be worked with the State, Justice and
Commerce Appropriations Subcommittee.
5. The Committee should continue to provide strong support to
information management initiatives in the Intelligence Community.
6. Information management in the law enforcement community needs
serious developmental planning and investment. Information
management within the various law enforcement agencies is
deficient; one result of this deficiency is poor information
sharing among these agencies. The Intelligence Community, chiefly
through its Centers, has built electronic data sharing links with
the law enforcement community. The one exception to the link-up is
the FBI, which has not participated due to the inadequacies of its
ADP capabilities.
The Committee should encourage and support well-thought-out
information management initiatives by the National Security
Division of the FBI. Improvements here improve the work of the
Division's International and Domestic Terrorism Sections.
Information management upgrades for the FBI's Criminal Division, as
well as other law enforcement agencies, are outside the
Committees's oversight responsibilities. However, the Committee
should discuss the importance of these needs with appropriations
staff.
7. During the course of this study, the Committee became
convinced that within the body of investigatory information
obtained by law enforcement, there is important strategic
information that is of value to others in the law enforcement or
Intelligence Communities. Without better information management
capabilities, at this time it is fruitless to require law
enforcement to disseminate this information. However, plans for
such dissemination should be a factor in planning for future
information management systems.
Coordination
8. We feel it is unwise to pronounce categorically which agencies
(intelligence or law enforcement) should or should not develop or
have contact with human sources overseas. Applying a rigid
directive to an area where there are an endless variety of cases
and unique circumstances would probably do more harm than good.
However, we believe that all anticipated and existing contacts with
confidential informants, in areas where intelligence and law
enforcement interests overlap, should be coordinated through the
Chief of Station. The Chief of Station should be consulted prior
to any effort of a law enforcement agency to engage in clandestine
activities. Any unresolved problems should be resolved at the
headquarters level of the parties involved in a disagreement.
9. Some have suggested that the FBI routinely act as the lead law
enforcement agency for the purpose of coordinating law enforcement
activities in a foreign country with the Ambassador. Because there
may be other U.S. law enforcement entities in country that are not
Justice Department organizations, designating the Justice
Department as their representative, at least in a coordinating
role, is too cumbersome and unrealistic.
10. There will be occasions when conflicts will arise overseas
between law enforcement objectives and competing national security
interests. We believe these problems can best be resolved if, from
the outset, the Ambassador and the Chief of Station are kept
reasonably informed of law enforcement objectives and plans so that
all parties may weigh the implications of a law enforcement
investigation or action in a particular country before it takes
place. In cases where it is agreed that a law enforcement activity
is not problematic or that these interests should granted primacy
over other national security issues, similar interagency
discussions in country also would serve to improve coordination and
information sharing. In cases where differences arise that cannot
be resolved in country, before investigations or other law
enforcement activities are initiated, or State Department or
intelligence activities are undertaken that it is believed could
adversely affect a law enforcement action, We believe the conflict
should be resolved at the highest necessary levels of government in
Washington.
11. Some have argued that only U.S. law enforcement should conduct
liaison with foreign law enforcement entities. We disagree with
this premise, as set forth in a series of points made earlier in
the body of this study. The CIA should be permitted to collect
information from any foreign individual or entity deemed by the DCI
or his designated representative to be of intelligence interest.
Moreover, for the purposes of coordination, the Chief of Station
should be kept fully advised of the law enforcement liaison
activities of all law enforcement agencies in country where
intelligence and law enforcement interests overlap. This level of
coordination should in no way require the unauthorized disclosure
to the Chief of Station of restricted law enforcement investigatory
information or cede to the Chief of Station any prosecutorial
authority.