Testimony

Intelligence Collection and Information Sharing within the United States

Larry D. Thompson

Thank you for asking me here today. I am pleased to have the opportunity to share with you my thoughts on some of the important issues under study by this commission.

This morning’s panel addresses the vital topic of “Intelligence Collection within the United States.” The collection of intelligence within the United States is obviously a critical component of the federal government’s efforts in the war against terrorism. The first step in disrupting terrorist plots and preventing terrorist attacks is obtaining information about the operations of terrorist groups and the activities of individual terrorists, both inside and outside of our nation’s borders.

Intelligence collection, however, is only the first step in combating terrorism. A piece of information is like a piece of a puzzle. Oftentimes, only when a piece of information is combined with many other pieces of information does the big picture emerge. Moreover, possessing information without more does not stop terrorism; rather, information must lead to action. This is why it is critical not only that intelligence on terrorist activities is collected but also that this information is shared with other components of the federal government that possess similar information and leads to preventive action that protects American lives.

Unfortunately, however, before the horrific terrorist attacks of September 11, 2001, I witnessed firsthand as deputy attorney general of the United States grave deficiencies in the ability of intelligence officials and law enforcement officials to share information with each other, which hampered the Department of Justice’s ability to take action to defend the nation against terrorist attacks.

Before the attacks of September 11th, many provisions of federal law had been interpreted to limit sharply the ability of intelligence investigators to communicate with federal law enforcement officials as well as the ability of federal law-enforcement officers to share terrorism-related information with members of the intelligence community. This metaphorical “wall” between intelligence officials and law enforcement officials often inhibited vital information sharing and coordination and was a personal source of frustration for me.

On August 6, 2001, in fact, this frustration led me to write a memorandum to officials in the FBI as well as the Department of Justice’s Criminal Division and Office of Intelligence Policy and Review. In this memorandum, I noted that the Attorney General’s Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations required the FBI to notify the criminal division when “facts or circumstances are developed” in a foreign intelligence or counterintelligence investigation “that reasonably indicate that a significant federal crime has been, is being, or may be committed.” I further instructed that the FBI was required to notify the criminal division of this important information without delay. Unfortunately, however, my frustration continued as the FBI for numerous reasons, some of which I will describe below, was unable to share immediately relevant information about possible violations of criminal law with the criminal division. For these reasons and others, I agree, based on my experience at the Department of Justice, with the conclusion of the “9/11 Congressional Joint Inquiry Report,” which observed that our ability to “connect the dots” about the plans and activities of al Qaeda before the attacks of September 11th was substantially inhibited by the lack of communication and collaboration between intelligence agencies and law-enforcement agencies.

Fortunately, with the help of Congress, we have made great progress in remedying the deficiencies in information sharing that existed before September 11th. Because of several provisions contained in the USA PATRIOT Act, we are now able to wage a coordinated, integrated counter-terrorism campaign. To begin with, section 203 of the PATRIOT Act expressly empowers law enforcement officials to share criminal investigative information that contains foreign intelligence or counterintelligence, including grand jury and wiretap information, with intelligence, protective, immigration, national-defense, and national-security personnel. And section 905 of the PATRIOT Act requires that the attorney general, subject to certain exceptions, disclose to the director of central intelligence foreign intelligence acquired by the Department of Justice in the course of a criminal investigation.

Author

S

Larry D. Thompson

Senior Fellow, Economic Studies and Governance Studies, Brookings; Former Deputy Attorney General (2001-2003)

During my tenure as deputy attorney general, the Department of Justice utilized these provisions of the PATRIOT Act on dozens of occasions to disclose vital information to the intelligence community. The U.S. attorney’s Office for the Southern District of New York, for example, had accumulated extensive intelligence during its investigation and prosecution of numerous significant terrorism cases, such as the 1993 attack on the World Trade Center and the 2000 attack on the U.S.S. Cole, that it was finally able to share with intelligence agencies after the passage of the PATRIOT Act.

In addition to allowing law enforcement officials to provide valuable information to the intelligence community, the PATRIOT Act also has enhanced the flow of information from intelligence officials to the law enforcement community. In particular, section 218 of the PATRIOT Act allows information obtained by intelligence officials pursuant to the Foreign Intelligence Surveillance Act (FISA) to be shared more readily with law enforcement officials. Before the enactment of the PATRIOT Act, courts had ruled that surveillance under FISA could be utilized only when foreign intelligence was the “primary purpose” of a national security investigation. See, e.g., United States v. Truong, 629 F.2d 908 (4th Cir. 1980). This “primary purpose” standard, however, had the effect of discouraging intelligence investigators from sharing information and coordinating with law enforcement officers. While intelligence officials could share information with prosecutors, the decision to do so always rested with national-security personnel, even though law-enforcement agents were in a better position to determine what evidence was pertinent to their criminal case. The old legal rules therefore discouraged coordination and created what the Foreign Intelligence Surveillance Court of Review called “perverse organizational incentives.” In re Sealed Case, 310 F.3d 717, 743 (FISCR 2002).

Section 218 of the PATRIOT Act, however, changed the law to clarify that FISA can be used whenever foreign intelligence is a “significant purpose” of a national security investigation, thus allowing for greater sharing and consultation between intelligence and law enforcement officials. In addition, section 504 of the PATRIOT Act specifically permits intelligence investigators to consult with federal law enforcement officers to coordinate efforts to investigate or protect against threats from foreign powers or agents.

Following the enactment of the PATRIOT Act, the Department of Justice took a number of steps to implement the aforementioned provisions and fully realize the potential of increased coordination and information sharing between intelligence officers and law enforcement officers. To begin with, the Department of Justice issued guidelines on March 6, 2002, that expressly authorized—and indeed required—coordination between intelligence and law enforcement. The Foreign Intelligence Surveillance Court (FISC) rejected these guidelines in part on May 17, 2002, and imposed additional restrictions on coordination between intelligence officials and law enforcement officials. These restrictions imposed by the FISC severely hampered valuable information sharing and coordination between intelligence officials and law enforcement officials, and were thankfully overturned when the Foreign Intelligence Surveillance Court of Review approved the department’s guidelines in full on November 18, 2002.

Following the passage of the PATRIOT Act, the attorney general also instructed all U.S. attorneys to review intelligence files to discover whether there was a basis for bringing criminal charges against the subjects of intelligence investigations. At the time that I left the department, thousands of files already had been reviewed, and information from this review had been used to open numerous criminal investigations. And finally, the attorney general directed every U.S. attorney to develop a plan to monitor terrorism and intelligence investigations, and to ensure that information about terrorist threats was shared with other agencies and criminal charges were considered.

Section 218 of the PATRIOT Act has already produced important dividends in the war against terrorism. For example, the enhanced information sharing allowed by the provision led directly to the indictment of Sami Al-Arian and other alleged members of the Palestinian Islamic Jihad (PIJ) in Tampa, Florida. PIJ is alleged to be one of the world’s most violent terrorist outfits, responsible for murdering over 100 innocent people, including Alisa Flatow, a young American killed in a bus bombing near the Israeli settlement of Kfar Darom. Section 218 also contributed to the capture and indictment in New Jersey of Hemant Lekhani, the arms dealer charged with attempting to sell shoulder-fired anti-aircraft missiles to terrorists for use against American targets.

I have witnessed firsthand the critical importance of section 218 of the PATRIOT Act to winning the war against terrorism. As the examples given above demonstrate, Section 218 has enabled the federal government to disrupt terrorist plots and arrest and prosecute terrorists, thus saving American lives. But section 218, like many other provisions contained in the PATRIOT Act, is scheduled to sunset at the end of 2005. Allowing section 218 to expire would be a tragic mistake. While I wholeheartedly endorse renewing all sunsetted PATRIOT Act provisions, it would be difficult for me to overemphasize the importance of making section 218 permanent. Simply put, section 218 is critical to the federal government’s ability to conduct the coordinated, integrated campaign necessary to win the war against terrorism. Without section 218, our ability to prevent future terrorist attacks by “connecting the dots” could be seriously compromised.

My experiences, both before and after September 11th, have led me to a simple yet critical conclusion: Integration works. To fight the war against terrorism successfully, intelligence officials and law enforcement officials must work together in a coordinated fashion and quickly share information on a regular basis. This is why I strongly oppose the call by some for the creation of a separate domestic intelligence agency, such as the United Kingdom’s MI-5. We should not separate from the FBI the responsibility for the collection of domestic intelligence on international terrorist activities. After tearing down the metaphorical wall preventing the sharing of information between intelligence officials and law enforcement officials, it would be a serious mistake to construct new organizational walls between intelligence and law enforcement officials. Such walls would increase the risk that critical information would not be shared with law enforcement officials in a timely manner and reverse the integration of intelligence efforts and law enforcement efforts that has proven so successful since September 11th.

A separate domestic intelligence agency also would likely not be as effective at protecting the civil rights and civil liberties of Americans. The Department of Justice and the FBI have a proven track record and tradition of respecting civil rights and individual liberty. I am proud of the department’s record of prosecuting the war against terrorism while, at the same time, safeguarding individual liberty. In particular, it is important to note that no court has found any abuse of civil liberties to date in relation to the implementation of PATRIOT Act. Moreover, the department, since September 11th, has investigated over 500 cases of violence or threats against individuals perceived to be of Middle Eastern origin and obtained 17 convictions to date.

It would be an unnecessary gamble, however, to give the surveillance powers now possessed by the FBI to an agency without any track record and tradition of safeguarding fundamental liberties. The time it would take for a separate domestic intelligence agency to learn anew the lessons already learned by the Department of Justice and FBI likely would come not only at the cost of American lives, but also at the expense of Americans’ liberties.

While I oppose the proposal to create a separate domestic intelligence agency, many have offered other meritorious ideas that, if adopted, would aid the federal government’s prosecution of the war against terrorism. In particular, I would like to focus this morning on three of these proposals that I believe are particularly important.

First, the Foreign Intelligence Surveillance Act should be amended to authorize investigations of unaffiliated foreign individuals who engage in international terrorism. Currently, FISA’s definition of “the agent of a foreign power” only includes individuals with ties to groups that engage in international terrorism. It does not, however, include so-called “lone wolf” international terrorists. This means that investigations of lone-wolf terrorists now must proceed under the stricter standards and shorter time periods for investigating ordinary crimes set forth in Title III of the “Omnibus Crime Control and Safe Streets Act of 1968.”

This gap in the scope of FISA’s coverage should be eliminated, and FISA’s definition of “the agent of a foreign power” should be expanded to include all non-United States persons who engage in international terrorism, regardless of whether they are affiliated with an international terrorist group. An international terrorist’s ties to a terrorist organization may be murky or extremely difficult to uncover, thus making it difficult for the government to demonstrate a particular the terrorist’s affiliation with an international organization. Moreover, an international terrorist need not be affiliated with a terrorist organization to cause a significant loss of American lives; a single foreign terrorist with a chemical, biological, or radiological weapon is capable of inflicting tremendous damage on this country, and FISA should be amended to reflect this reality. By eliminating the requirement under FISA to prove that a terrorist is affiliated with a group, we will improve our ability to gather intelligence about both apparent and real lone-wolf terrorists. The Senate has already passed legislation allowing for the surveillance under FISA of lone-wolf terrorists, and I hope that this proposal is swiftly enacted into law.

Additionally, federal law should be amended to deny pretrial release presumptively to those individuals charged with federal crimes of terrorism. Under current law, defendants who are charged with certain federal crimes are presumptively denied bail. This does not mean that such defendants are denied bail automatically. Rather, a presumption exists that defendants charged with those crimes should be held until trial, and defendants are able to rebut that presumption by convincing a judge that they neither constitute a flight risk nor are a danger to the community. The list of offenses triggering this presumption currently includes certain drug crimes carrying maximum prison terms of 10 years or more, but it does not include most terrorism crimes. Thus, persons accused of many drug offenses are presumptively to be detained before trial, but no comparable presumption exists for those accused of most terrorist crimes.

From my perspective, this disparity does not make sense. If we presume that drug dealers are too dangerous to be released on bail, then we should presume the same about terrorists. Such a presumption is warranted because of the unparalleled magnitude of the danger to the United States and its people posed by acts of terrorism, and because terrorism is typically engaged in by groups—many with international connections—that are often in a position to help their members flee or go into hiding. Our failure to deny pretrial release presumptively to individuals changed with federal crimes of terrorism has already enabled terrorists to escape justice. In one case, for example, a Hezbollah supporter was charged with providing material support to a terrorist organization, and after being released on bail, fled the country and now lives in Beirut as a fugitive. Whether judged by risk of flight, or by the danger presented to the community, there could hardly be a category of crime where the standards for pretrial detention are more commonly met than in the case of charges involving terrorism. To impose this presumptive pretrial detention in terrorism cases, legislation is currently pending in both the House of Representatives and the Senate. I hope these bills are swiftly enacted into law.

Another important proposal that would be of great help to the law enforcement community would clarify the scope of the current criminal prohibition on providing material support to terrorism or terrorist organizations. The material support statute has been a valuable tool for prosecutors in the war against terrorism because it allows the law enforcement community to prosecute terrorists before they commit deadly acts of terrorism. Since the attacks of September 11th, for example, the department has brought material support charges against members of sleeper terrorist cells in Lackawanna, New York, and Portland, Oregon, and obtained guilty pleas or convictions in those cases. Additionally, the material support statute constitutes a valuable deterrent to those who might be inclined to provide aid and comfort to terrorists. For instance, Jeffrey Battle, a member of the terrorist cell in Portland, Oregon, complained after his arrest in 2002 that people were scared to provide him with help, such as buying him airplane tickets, because such activities could land those individuals in jail.

Although the material support statute has been of enormous importance to the law enforcement community in waging the war against terrorism, there are some weaknesses with the statute. Multiple courts have held that key terms in the statute’s definition of material support are unconstitutionally vague. The United States Court of Appeals for the Ninth Circuit, for example, has held that the statute’s prohibition on the provision of “training” and “personnel” to terrorist organizations is unconstitutionally vague. See Humanitarian Law Project v. United States Department of Justice, No. 02-55082 (9th Cir. Dec. 3, 2003). Although I do not necessarily agree with the Ninth Circuit’s decision, the fact remains that it, along with similar decisions, create a practical impediment to bringing terrorists and those who support them to justice.

As a result, in order to safeguard the department’s ability to prosecute effectively those who assist terrorists, the material support statute should be amended to remove any possible doubts about its constitutionality or the scope of its coverage. To accomplish this goal, Representative Mark Green of Wisconsin introduced the “Material Support to Terrorism Prohibition Enhancement Act of 2003” in the House of Representatives earlier this year. This is a good piece of legislation that, if enacted, would remedy the problems with the material support statute that I have identified this morning. In particular, responding to the Ninth Circuit’s decision in Humanitarian Law Project, Representative Green’s legislation would clarify the meaning of the terms “training” and “personnel” in the material support statute. The term “training” would be defined as “instruction or teaching designed to impart a specific skill,” and the prohibition on providing personnel in support of terrorism would be amended to make clear that the prohibition extends to providing oneself. In addition, Representative Green’s legislation would clarify that in order to be prosecuted for providing personnel to a terrorist organization, a person must have “knowingly provided, attempted to provide, or conspired to provide a terrorist organization with one or more individuals to work in concert with the organization or under its direction or control.” I hope that Congress swiftly passes this legislation next year.

In closing, I thank you again for giving me the opportunity to share my thoughts with you today. While I am extremely proud of the Department of Justice’s record in fighting terrorism during my tenure as deputy attorney general, there is more work that needs to be done in order to ensure that the terrorists are defeated and our way of life is preserved. This commission has the potential to make a valuable contribution to this cause, and I am looking forward to reading your report and recommendations when they are released. After you hear from the other distinguished members of this panel, former Deputy Attorney General Heymann and Professor Schulhofer, I will be happy to respond to any questions you may have.

More