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.
Recommendations for Executive Action
|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.|
|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.|
|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.|
|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.|