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Dismantling "the Wall" Between Intelligence and Criminal Investigations

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Overview Edit

Historically, there have been differences between electronic surveillance (wiretaps) conducted for intelligence and for law enforcement purposes. Among these is the protection of the constitutional rights of persons under criminal investigation. A former government official describes the differences:

Law enforcement wiretaps are heavily regulated . . . they can only be carried out for a limited time. They require constant supervision and review. . . . They are approved for only specific types of crime. . . . And once a crime begins the defendant can see transcripts of the wiretaps and challenge their legality. . . . Intelligence wiretaps are different . . . they aren't triggered by suspected criminal activity. Any representative of a foreign government is fair game for an intelligence tap. The rules that apply to law enforcement taps just aren’t appropriate for intelligence wiretaps.[1]

FISA regulates intelligence collection directed at foreign powers and agents of foreign powers in the United States to include those engaged in international terrorism. FISA required the government to certify that "the purpose" of surveillance was to gather foreign intelligence information.[2] Prior to the USA PATRIOT Act, the U.S. Department of Justice turned the "primary purpose" standard into written policy that had the effect of limiting the coordination between intelligence and criminal investigators.[3] This came to be known as "the Wall" between intelligence and law enforcement and the "unfortunate consequences" of this barrier to information sharing were noted by the 9/11 Commission in its report on the 9/11 attacks.[4]

Section 218 of the USA PATRIOT Act amended FISA to replace the phrase "the purpose" with the phrase "a significant purpose." According to Senator Dianne Feinstein, these changes were necessary to make it

easier to collect foreign intelligence information under . . . FISA. Under current law, authorities can proceed with surveillance under FISA only if the primary purpose of the investigation is to collect foreign intelligence. But in today’s world things are not so simple. In many cases, surveillance will have two key goals—the gathering of foreign intelligence, and the gathering of evidence for a criminal prosecution. Determining which purpose is the “primary” purpose of the investigation can be difficult, and will only become more so as we coordinate our intelligence and law enforcement efforts in the war against terror.[5]

As one legal scholar described it, by moving the FISA requirement from the purpose to a significant purpose, the USA PATRIOT Act "knocked out the foundation for 'the Wall.'"[6] This removed impediments to the exchange of information about terrorism or other national security threats between intelligence and law enforcement personnel.

Other provisions of the USA PATRIOT Act also sought to increase intelligence information sharing. Section 504 amended FISA by adding provisions allowing federal officers who conduct electronic surveillance to acquire foreign intelligence information to consult with federal law enforcement officers to coordinate efforts to investigate or protect against (among other issues) sabotage or international terrorism by a foreign power or an agent of a foreign power.[7] And Section 203 amended the Federal Rules of Criminal Procedure to allow disclosure of grand jury information in certain circumstances, including if that information is related to sabotage or international terrorism by a foreign power or an agent of a foreign power.[8]

References Edit

  1. Stewart Baker, Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism 40-41 (2010).
  2. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report 78 (2004).
  3. Cedric Logan, "The FISA Wall and Federal Investigations," 4 New York Univ. J. of L. & Liberty 229 (full-text).
  4. 9/11 Commission Report, at 79 and Ch. 8.
  5. Statement of Senator Dianne Feinstein, 147 Cong. Rec. S10591 (Oct. 11, 2001) (full-text).
  6. Logan, at 230.
  7. Pub. L. No. 107-56, §504(a)(k)(1)(B).
  8. Pub. L. No. 107-56, §203(a)(1)(C)(V).

Source Edit

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