As usual.....when you have layers and layers of bureaucracy the question of which agency has what authority gets confusing. Kind of reminds me of the tax code.;)
The problem is, who is responsible for tracking and apprehending dangerous people.....especially terrorists.....and in clear enough terms......how is that done?
Typically, the buck gets passed around and around.
Many hope that the Patriot Act puts the issue to rest.
Heavy reading!
M
Domestic Intelligence, the "Wall," and the 9/11 Commission
The 9/11 Commission hearings have highlighted intelligence failures by the FBI and CIA before September 11. On April 13, 2004, Attorney General Ashcroft told the Commission that the "wall" between law enforcement and intelligence was responsible for those failures and that the Patriot Act is responsible for breaking down that wall. Neither claim is correct.
For an analysis of the history of the "wall" and the problem of information-sharing between the FBI and CIA, see the new article:
"Domestic Intelligence and Civil Liberties" by Kate Martin, SAIS Review, Volume 24, Number 1, Winter-Spring 2004
The article also demonstrates why proposals for a new domestic intelligence agency modeled on Britain's MI5 are ill-advised on
both effectiveness and civil liberties grounds, and outlines a counter-terrorism approach that would facilitate information sharing
while safeguarding civil liberties.
The "wall" metaphor is shorthand for the recognition that separate authorities govern law enforcement and foreign intelligence
investigations against Americans. Those authorities were written following the Church Committee's report of widespread
political spying and other abuses by the FBI and CIA. From the beginning those authorities recognized that international terrorism
was both a law enforcement and intelligence matter and provided for sharing information between the two communities. The
9/11 failures to share information cannot be laid at the feet of the law.
The rules for foreign intelligence--as opposed to criminal-- surveillance and investigations in the United States are found primarily
in three sources:
The Foreign Intelligence Surveillance Act
The Guidelines for FBI Investigations
1982 Executive Order 12333 on Intelligence Activities signed by President Reagan
While the Attorney General dramatically announced at the April 13 hearing that he was declassifying the document that created the "wall," written by Commissioner Gorelick in March of 1995, who was then Deputy Attorney General, the separation between law enforcement and intelligence existed long before that date. The Gorelick memo was simply an implementation of more general procedures, which have been public before now, and which were embraced by Ashcroft's Justice Department as late as August 6, 2001.
Department of Justice Documents on Information-Sharing Between Law Enforcement and Intelligence:
May 1995: Joint Task Force on Intelligence and Law Enforcement: Report to the Attorney General and Director of Central Intelligence (Rindkskopf-Richards report)
Memorandum from Attorney General Janet Reno regarding Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations, July 19, 1995
Memorandum from AG Janet Reno regarding the Effect of Procedures Governing FBI-Criminal Division Contacts During Foreign Intelligence and Foreign Counterintelligence Investigations, July 19, 1995
Memorandum from Deputy AG Gorelick regarding Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations, March 1995. This is the document declassified by Ashcroft on April 13, 2004.
Memorandum from Principle Associate Deputy AG Gary Grindler and Associate Deputy AG Jonathan Schwartz recommending that the Attorney General Authorize Certain Measures Regarding Intelligence Matters, January 18, 2000
Memorandum from Michael Woods, Office of FBI General Counsel, outlining the procedures for the submission of affidavits to the Foreign Intelligence Surveillance Court by FBI agents, April 5, 2001 (Woods Procedures) This memo approves the 1995 procedures with only minor modifications.
Memorandum from Deputy AG Larry Thompson regarding Intelligence Sharing, August 6, 2001
Memorandum from Attorney General John Ashcroft regarding Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI, March 6, 2002
Justice Department legal opinions permitted the sharing of even the most sensitive grand jury information:
Memorandum from Office of Legal Counsel regarding Disclosure of Grand Jury Matters to the President and Other Officials, September 21, 1993
Memorandum from Office of Legal Counsel regarding Disclosure of Grand Jury Material to the Intelligence Community, August 14, 1997
For more background on sharing intelligence and law enforcement information, see:
Testimony of Kate Martin before the Senate Permanent Select Intelligence Committee, September 24, 2001
"Intelligence, Terrorism, and Civil Liberties" by Kate Martin, Human Rights Magazine, Volume 29, Number 1, Winter 2002
Changes in Law Enforcement/Domestic Intelligence Authorities Since September 11, 2001
For more information, please contact the Center at 202.721.5650 or cnss@gwu.edu.
"Justice Department Fails to Address 9/11 Intelligence Failures." A new article by Kate Martin.
"The Department of Justice's insistence that legal barriers were responsible for the pre-9/11 intelligence
failures is misleading at best and a distraction from the real intelligence failures at worst."
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