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Highlights

This report reviews the coordination efforts involved in foreign counterintelligence investigations where the Foreign Intelligence Surveillance Act has been or may be employed. The act established (1) requirements and a process for seeking electronic surveillance and physical search authority in national security investigations seeking foreign intelligence and counterintelligence information within the United States and (2) the Foreign Intelligence Surveillance Court, which has jurisdiction to hear applications for and grant orders approving Foreign Intelligence Surveillance Act surveillance and searches. GAO found that coordination between the Federal Bureau of Investigation (FBI) and the Department of Justice's (DOJ) Criminal Division has been limited in those foreign counterintelligence cases in which criminal activity is indicated and surveillance and searches have been, or may be, employed. A key factor inhibiting this coordination is the concern over how the Foreign Intelligence Surveillance Court or another federal court might rule on the primary purpose of the surveillance or search in light of such coordination. In addition, the FBI and the Criminal Division differ on the interpretations of DOJ's 1995 procedures concerning counterintelligence investigations. In January 2000, the Attorney General issued additional procedures to address these coordination concerns. These procedures, among other things, required the FBI to submit case summaries to the Criminal Division and established a protocol for briefing Criminal Division officials about those investigations. In addition, the FBI established two mechanisms to ensure compliance with the Attorney General's 1995 procedures. These mechanisms include (1) requiring the Office of Intelligence Policy and Review to notify the FBI and the Criminal Division of investigations it believes meets the requirements of the 1995 procedures and (2) establishing a core group of high-level officials to oversee coordination issues. However, these efforts have not been institutionalized in management directives or written administrative policies or procedures.

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Recommendations

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of Justice 1. To facilitate better coordination of FBI foreign counterintelligence investigations meeting the Attorney General's coordination criteria, the Attorney General should establish a policy and guidance clarifying his expectations regarding the FBI's notification of the Criminal Division and types of advice that the Division should be allowed to provide the FBI in foreign counterintelligence investigations in which the Foreign Intelligence Surveillance Act (FISA) tools are being used or their use anticipated.
Closed - Implemented
In an August 6, 2001 memorandum, the Deputy Attorney General outlined the responsibilities of the FBI, Criminal Division, and OIPR, regarding intelligence sharing in FISA cases, and issued clarifications to the Attorney General's 1995 coordination procedures. Specifically, these clarifications included defining "significant federal crime" to mean any federal felony, and defining the term "reasonable indication" to be substantially lower than "probable cause." The memorandum also requires notification to take place without delay. In addition, on November 18, 2002, the Foreign Intelligence Surveillance Court of Review, overturning an earlier FISA Court action, approved the Intelligence Sharing Procedures issued by the Attorney General in March of 2002. The March memorandum provides guidance regarding the type of advice that the Criminal Division (CD) may provide the FBI after the CD has been notified of a possible criminal matter. A December 24, 2002 memo addressed to the Criminal Division, OIPR, all U.S. Attorneys, all anti-terrorism task force coordinators, and all FBI special agents, was to transmit the contents of the FIS Court of Review and the Attorney General's memorandum. These actions close GAO's recommendation regarding FISA and coordination and sharing of information between the FBI and the Criminal Division on related intelligence matters.
Department of Justice 2. To improve coordination between the FBI and the Criminal Division by ensuring that investigations that indicate a criminal violation are clearly identified and by institutionalizing mechanisms to ensure greater coordination, the Attorney General should direct that all FBI memorandums sent to the Office of Intelligence Policy and Review (OIPR) summarizing investigations or seeking FISA renewals contain a section devoted explicitly to identifying any possible federal criminal violation meeting the Attorney General's coordination criteria, and that those memorandums of investigations meeting the criteria for Criminal Division notification be timely coordinated with the Division.
Closed - Implemented
In an August 6, 2001 memorandum, the Deputy Attorney General directed the FBI to explicitly devote a section in its foreign counterintelligence case summary memorandums, which it sends to OIPR in connection with an initial FISA request or renewal, identification of any possible federal criminal violations associated with the case. OIPR is to make those memorandums available to the Criminal Division. The memorandum also required that when the notification standard is met, notification should be accomplished without delay.
Department of Justice 3. To improve coordination between the FBI and the Criminal Division by ensuring that investigations that indicate a criminal violation are clearly identified and by institutionalizing mechanisms to ensure greater coordination, the Attorney General should direct the FBI Inspection Division, during its periodic inspections of foreign counterintelligence investigations at field offices, to review compliance with the requirement for case summary memorandums sent OIPR to specifically address the identification of possible criminal violations. Moreover, where field office case summary memorandums identified reportable instances of possible federal crimes, the Inspection Division should assess whether the appropriate headquarters unit properly coordinated with the Criminal Division those foreign counterintelligence investigations.
Closed - Implemented
In a July 18, 2001 memorandum to the Deputy Attorney General, the Assistant Director of the FBI's Inspection Division stated that the Division has established a Foreign Intelligence/Counterintelligence Audit that is to be completed during its on-site inspections at applicable FBI headquarters units and field offices. The Audit, according to the Assistant Director, will determine whether significant criminal activity was indicated during intelligence investigations and, where such activity was identified, determine whether it was properly coordinated with FBI headquarters and Justice's Criminal Division.
Department of Justice 4. To improve coordination between the FBI and the Criminal Division by ensuring that investigations that indicate a criminal violation are clearly identified and by institutionalizing mechanisms to ensure greater coordination, the Attorney General should issue written policies and procedures establishing the roles and responsibilities of OIPR and the core group as mechanisms for ensuring compliance with the Attorney General's coordination procedures.
Closed - Implemented
On June 12, 2001, OIPR issued policy guidance to its staff on compliance with the Attorney General's 1995 coordination procedures. The issuance of this policy partially implements the GAO recommendation. Later on August 6, 2001, the Deputy Attorney General issued a memorandum to the Criminal Division, the FBI, and OIPR establishing the roles and responsibilities of the Core Group to resolve disputes arising from the Attorney General's 1995 guidelines.

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