Truong Dinh Hung, F. See, e. Johnson , F. Pelton , F. Criminal Division attorneys were briefed by the FBI about ongoing intelligence investigations and were expected to provide advice geared toward preserving a potential criminal case, but they were not allowed to exercise control over the investigation.
The Criminal Division and FBI Headquarters made the policy decision about when to involve the USAO in the investigation, since consulting with the USAO was viewed as a bright line signifying the transition from an intelligence investigation to a criminal investigation.
However, during this time period, no formal written guidelines governed the contacts between the FBI and the Criminal Division. Institutional divide between criminal and intelligence investigations The effect on FISA warrants or the legal restrictions on sharing intelligence information was not the only issue regarding sharing intelligence information with criminal investigators. Agents conducting intelligence investigations are generally wary about the impact of sharing intelligence information with prosecutors and criminal investigators.
They expressed concerns about potential harm that disclosure would have on intelligence sources and methods, and the damage that such disclosure would have on future collection of intelligence information. Intelligence collection is dependent upon secrecy; investigators often rely upon clandestine sources or surveillance techniques that are rendered useless if they are exposed.
In addition, most of the information collected is classified and cannot be made public. In contrast, criminal investigations are usually intended to result in a prosecution, which may require the disclosure of information about the source of evidence relied upon by the government.
The FBI pursued an investigation regarding Ames that involved several certifications to the FISA Court that the purpose of electronic surveillance was for intelligence purposes.
At the time of the ninth certification in the Ames case, Richard Scruggs, the new head of OIPR, was concerned that no guidelines governed the contacts between the Criminal Division and the FBI that were permitted in intelligence investigations. Although the Criminal Division and the FBI both agreed that some formal procedures were necessary to guard against abuses in the use of FISA and to rebut unwarranted claims of abuse, they argued that allowing OIPR to decide when prosecutors could be consulted was unnecessary and unduly burdensome, and would deter useful and productive contacts between investigators and prosecutors.
As a result of discussions within the working group, on February 3, , the Executive Office for National Security circulated draft procedures for contacts between the FBI and prosecutors. However, the Procedures gave OIPR formal oversight over contacts between the FBI and the Criminal Division in intelligence cases, and the procedures formalized restrictions on the extent that Criminal Division prosecutors could be involved in intelligence investigations.
The procedures applied to intelligence investigations both in which a FISA search or surveillance was being conducted and in which no FISA order had been issued. In both types of cases, the FBI was required to maintain a log of all its contacts with the Criminal Division. Although it is unclear exactly when this wall within the FBI began, sometime between and the FBI began segregating intelligence investigations from criminal investigations and restricting the flow of information between agents who conducted intelligence investigations and agents who conducted criminal investigations.
This wall was intended to ensure that information from each investigation would be fully admissible in the other. It is unclear when similar procedures were employed throughout the FBI. Reports evaluating the impact of the Procedures Although the Procedures allowed for consultation between the FBI and the Criminal Division about intelligence investigations, and in some instances required contact by the FBI with the Criminal Division, the FBI dramatically reduced its consultations with the Criminal Division after the Procedures were issued.
In connection with this review, the OIG examined issues concerning the implementation of the Procedures and the sharing of intelligence information with prosecutors and criminal investigators.
The OIG report found that the Procedures were largely misunderstood and often misapplied, resulting in undue reluctance by intelligence agents to provide information to criminal investigators and prosecutors. The report stated that the Procedures were vaguely written and provided ineffective guidance for the FBI. In addition, the Attorney General directed the FBI to provide the Criminal Division with copies of foreign counterintelligence case memoranda summarizing espionage investigations of U.
In October , the Core Group was disbanded because it was believed that the briefings were duplicative of sensitive case briefings that the FBI provided to the Attorney General and the Deputy Attorney General on a quarterly basis. The Attorney General never issued or signed either memorandum. According to the GAO report, while there were some improvements in the coordination between the FBI and the Criminal Division after the remedial actions in response to the AGRT report were implemented, coordination impediments remained.
Many of these errors in the FISA applications involved omissions of information or misrepresentations about criminal investigations on the FISA targets. While different agents were assigned to the criminal and intelligence investigations, they were not kept separate from each other. Instead, the criminal agents worked on the intelligence investigation, and the intelligence agents worked on the criminal investigation. This meant that, contrary to what had been represented to the FISA Court, agents working on the criminal investigation had not been restricted from the information obtained in the intelligence investigation.
According to the NSA, when made aware of this requirement, it reported to the Department that, in the interest of providing as much intelligence as quickly as possible to the FBI, the NSA would place a caveat on all counterterrorism-related intelligence provided to the FBI. All subsequent product which contains information obtained or derived from this product must bear this caveat.
In November , OPR opened an investigation to determine whether any FBI employees had committed misconduct in connection with these errors. The error concerned the description of the wall procedures in several FBI field offices.
This description also had been used in 14 other applications related to Terrorist Organization No. It stated that the Procedures and the additional procedures remained in effect. The memorandum added that the Criminal Division should identify the investigations about which it needed additional information, and the FBI was required to provide this information.
The memorandum did not address the issue of the type of advice that was permissible by Criminal Division attorneys to the FBI. The impact of the wall The actions of the Department, including OIPR, the implementation of the Procedures, the additional requirements created by the FISA Court, and the OPR investigation had several effects on the handling of intelligence and criminal investigations.
They said they were concerned not only about the accuracy of the information they provided to the Court, but also about ensuring that intelligence information was kept separate from criminal investigations. Second, the restrictions imposed by the FISA Court — the requirement that anyone who received intelligence sign the certification and the screening procedures applicable to both FISA-obtained and FISA-derived material — created administrative hurdles for the FBI in handling intelligence information.
For example, the new requirements were imposed in December , just two months after the bombing of the U. Cole, and during the time the FBI was actively pursuing its criminal investigation. The Patriot Act also specified that federal officers who conduct electronic surveillance or searches to obtain foreign intelligence information may consult with federal law enforcement officers to coordinate their efforts to investigate and protect against actual or potential attacks, sabotage, or international terrorism.
In March , the Attorney General issued new guidelines on intelligence sharing procedures that superseded the Procedures. The Procedures also directed that the Criminal Division and OIPR shall have access to — and that the FBI shall provide — all information developed in full field foreign intelligence and counterintelligence investigations, particularly information that is necessary to the ability of the United States to investigate or protect against foreign attack, sabotage, terrorism, and clandestine intelligence activities; and information that concerns any crime which has been, is being, or is about to be committed.
The Procedures provided that USAOs should receive information and engage in consultations to the same extent as that provided for the Criminal Division. The Court concluded that while the FBI had to certify that the purpose of the FISA surveillance was to obtain foreign intelligence information, FISA did not preclude or limit the use of intelligence information in a criminal prosecution.
An agent can be a person who has an official connection to a foreign power, such as an employee of a foreign government or an official member of a terrorist organization. See 50 U. The second document is a certification by the FBI Director or other Executive Branch official that the information sought is foreign intelligence information and that the information cannot reasonably be obtained by normal investigative techniques.
With respect to a physical search, the affidavit also must show that the property to be searched contains foreign intelligence information, and the property to be searched is owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power. This process normally took several months to complete, although we were told a FISA warrant could be obtained in a matter of several hours or a few days if needed.
We describe below in more detail each step in the process, with special attention to the role of each person involved in the process. Investigation and LHM prepared by field office An application for a FISA warrant normally originated from the investigative work conducted by a field office.
During the investigation, the field office typically developed information about the subject of the investigation by checking FBI indices and files, reviewing publicly available records, and inquiring with domestic and foreign law enforcement and intelligence agencies — such as the CIA and NSA — about the subject. In addition, the field office could conduct other investigative activities.
If a field office wanted to obtain a FISA warrant and thought it had sufficient information to support a FISA warrant, the field office prepared an LHM setting forth as specifically as possible the supporting information. To do this, the SSA — working in conjunction with the assigned IOS — reviewed the documentation to assess whether it contained sufficient information for a FISA or whether there were questions that would have to be answered before the request could be completed.
The SSA also assessed whether the appropriate foreign power was being pled and whether there was sufficient information connecting the subject to the foreign power. In some instances, the FISA request was completely rewritten, and in other instances few changes were made. With respect to the information supporting the existence of the foreign power, the SSA or IOS typically inserted language used in other FISA applications involving the same foreign power.
If the SSA or IOS acquired additional information to support the application, such as information indicating connections between the subject and the foreign power, that information was also included in the LHM. This editing process could last from several days to several months.
First, they functioned in an advisory capacity. NSLU attorneys also were consulted when there was a disagreement between the field office and FBI Headquarters about a particular issue, such as whether there was sufficient support for a FISA warrant.
SSAs often discussed with NSLU attorneys whether the threshold of probable cause had been met for supporting that a subject was an agent of a foreign power. The NSLU attorney and the SSA also could make recommendations to the field office about how to acquire any additional information that was needed. This step in the process also could last from several days to several months. The SSA often consulted with the field office to obtain the information requested by the OIPR attorney and sometimes asked the field office to conduct additional investigation.
This process also could take anywhere from several days to several months. A supervisory attorney in OIPR would review the draft pleadings and make recommendations and revisions. Orders authorizing surveillance were for a specific period, beginning and ending on a certain day and time. The order was transmitted to the field office responsible for conducting the surveillance or search. According to these witnesses, in the summer of expedited FISA requests normally involved reports of a suspected imminent attack or other imminent danger.
Footnotes A list of acronyms used in this report is attached in the Appendix. Formal, structured terrorist organizations are those with their own personnel, infrastructures, financial arrangements, and training facilities. Hizbollah, for example, carried out numerous attacks on Americans overseas, including the October vehicle bombing of the U.
Army Intelligence, U. Navy Intelligence, U. Air Force Intelligence, U. We discuss those changes throughout this report. Electronic surveillance includes wiretapping of telephones, installing microphones in a house or building, and intercepting computer usage.
Electronic surveillance is considered a particular kind of search. There are several exceptions to the warrant requirement that are not material to this report. Prior to September 11, , the FISA Court consisted of seven federal district court judges designated by the Chief Justice of the Supreme Court, at least one of whom was a member of the federal district court in Washington, D.
The government presents applications for a court order authorizing electronic surveillance or a physical search to the judges in in camera, ex parte proceedings. These terms and requirements are discussed in more detail in Section IV, A below. We provide in this section of the report the description of the organization and positions that existed immediately prior to the September 11 attacks. Around September 11, , approximately employees worked in the Bin Laden Unit.
These infrastructures include telecommunications, energy, banking and finance, water systems, government operations, and emergency services. The NDPO was created in October to coordinate all federal efforts to assist state and local law enforcement agencies with the planning, training, and equipment needs necessary to respond to a conventional or non-conventional weapons of mass destruction incident.
Legat offices assist the FBI in its mission from outside of the United States by, for example, coordinating with other government agencies to facilitate the extradition of terrorists wanted for killing Americans.
Currently, the FBI uses only one designation for international terrorism investigations. Indictments had been returned in one of the cases. During the criminal investigation of these two cases, significant counterintelligence information was developed relating to foreign powers operating in the United States, and the FBI initiated a full field counterintelligence investigation.
The memorandum stated that the procedures were designed to prevent the risk of creating an unwarranted appearance that FISA was being used to avoid the procedural safeguards that applied in criminal investigations. The memorandum also included several procedures to facilitate coordination and information sharing, including requiring intelligence investigators who developed information that reasonably indicated the commission of a crime to notify law enforcement agents and assigning an FBI agent involved in the criminal investigation to be assigned to the foreign counterintelligence investigation.
While the Procedures were being considered in draft, Deputy Attorney General Gorelick had recommended that they be reviewed by U. White responded that the USAOs should be on equal footing with the Criminal Division, and she recommended changes to the Procedures to achieve this, such as requiring in intelligence cases notification of a crime to both the Criminal Division and to the USAO.
Law enforcement generally recognizes two types of terrorism: domestic and international. Domestic terrorism is based and executed in the United States by our own citizens without foreign direction. Terrorist acts against U.
Austin citizens can play a role in preventing terrorist attacks. Certain activities or behaviors can indicate terrorist planning, especially when these activities occur at or near key facilities such as government, military, utility or other high-profile sites or places where large numbers of people gather.
Examples of suspicious activity include:. It does not profile individuals who look, act, dress, or live differently than us. It strictly profiles behavior that may be linked to terrorism. Home What is Terrorism?
How You Can Help Austin citizens can play a role in preventing terrorist attacks. Examples of suspicious activity include: Surveillance—Are you aware of anyone recording or monitoring activities, taking notes, using cameras, maps, binoculars, etc. Suspicious Questioning—Are you aware of anyone attempting to gain information in person, by phone, mail, e-mail, etc.
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