THURSDAY, SEPTEMBER 23, 2002
Before Passage of the USA PATRIOT Act, Federal Law Sharply Limited the Ability of Federal Prosecutors and Law-Enforcement Agents to Share Investigative Information with Other Federal Officials. These restrictions on information sharing prevented the dissemination of relevant and important information to federal officials responsible for counter-terrorism and interfered with the federal government's ability to prevent and disrupt terrorist activities. On April 11, 2002, the Attorney General issued a directive to the heads of certain components of the Department of Justice to institutionalize the Department's ongoing efforts to coordinate information and activities to prevent and disrupt terrorism. Pursuant to this directive, the Attorney General has issued guidelines to formalize the Department efforts to coordinate information sharing between law enforcement and intelligence, homeland security, and other federal officials.
FACT SHEETThe prevention of terrorist activity is the overriding priority
ATTORNEY GENERAL'S GUIDELINES FOR
of the Department of Justice, and improved information sharing
among federal agencies is a critical component of our overall strategy
to protect the security of America and the safety of her people.
Understanding The Problem:
Previous Federal Law Prevented Information Sharing
Problem #1: Except in very limited circumstances, before the USA PATRIOT Act, federal prosecutors and law enforcement agents were not permitted to disclose federal grand jury and electronic, wire, or oral surveillance information with other federal officials.
Solution #1: Under the USA PATRIOT Act, Federal Law Enforcement Agencies Are Now Permitted to Share with Other Federal Officials Information Regarding Foreign Intelligence and Counterintelligence Obtained in a Grand Jury Proceeding or Through Electronic, Wire, or Oral Interceptions.
- If a federal prosecutor discovered through grand jury testimony information about potential terrorist activity that would be helpful to the intelligence community in its efforts to prevent terrorism, Federal Rule of Criminal Procedure 6(e) prohibited the prosecutor from sharing that information with the Central Intelligence Agency.
- If, during the course of conducting a wiretap of a suspect's phone line, law enforcement uncovered evidence that terrorists intended a future attack, that information could not be shared with officials in the intelligence and national security communities.
- Grand jury and electronic, wire, or oral surveillance information could be shared with a federal official only to allow that official to assist prosecutors in enforcing federal criminal laws. Information could not be shared for counter-terrorism or national defense purposes.
Problem #2: In the Past, Officials in the United States Intelligence Community Were Often Unaware of Relevant Foreign Intelligence and Counterintelligence Obtained by Federal Prosecutors and Law Enforcement Agents During the Course of Criminal Investigations. This lack of complete information hindered the intelligence community's ability to protect our citizens from terrorism and other threats to national security.
- The Attorney General Has Issued Guidelines for Section 203 of the USA PATRIOT Act, Which Permits Information Sharing: Pursuant to the authority contained in section 203, the Attorney General issued guidelines governing the disclosure of grand jury and electronic, wire, and oral interception information that identifies U.S. persons. Section 203 of the USA PATRIOT Act permits the sharing of grand jury and wiretap information regarding foreign intelligence and counterintelligence with federal law-enforcement, intelligence, protective, immigration, national defense and national security personnel.
- The Section 203 Guidelines Provide Important Privacy Safeguards: The procedures established under these guidelines provide important safeguards to U.S. citizens identified in information disclosed under section 203. These procedures require that all information identifying a U.S. person be labeled by law enforcement agents before disclosure to intelligence agencies. Moreover, upon receipt of information from law enforcement that identifies a U.S. person, intelligence agencies must handle that information pursuant to specific protocols designed to prevent inappropriate use of the information. These protocols, for example, require that information identifying a U.S. person be deleted from intelligence information except in specified circumstances.
Solution #2: Federal Law Enforcement Agencies, Both Prior to and Since the Enactment of the USA PATRIOT Act, Had Already Established Mechanisms for the Sharing of Foreign Intelligence Acquired in the Course of Criminal Investigations, and Such Sharing Has Occurred on a Regular Basis. The Attorney General's new guidelines formalize the procedures and mechanisms already established for the Department of Justice and other federal law enforcement agencies that may acquire foreign intelligence in the course of a criminal investigation.
- The Attorney General Has Issued Guidelines for Section 905(a), Which Requires the Disclosure of Any Foreign Intelligence Acquired in the Course of a Criminal Investigation to the Director of Central Intelligence. Federal law enforcement agencies, both prior to and since the enactment of the USA PATRIOT Act, have established channels of communication in order to share with the intelligence community foreign intelligence acquired in the course of criminal investigations. The guidelines issued by the Attorney General formalize the existing process by which federal officials and agencies must fulfill their obligations to disclose expeditiously to the Director of Central Intelligence the relevant information. Under existing processes, law enforcement agents share information with the intelligence community both through relationships developed in the field and through headquarters-to-headquarters discussions. Section 905(a) does permit the Attorney General, in consultation with the Director of Central Intelligence, to exempt certain information from disclosure to protect ongoing investigations.
- Information Related to Terrorism and Weapons of Mass Destruction: Under the guidelines issued today, law enforcement agents must disclose immediately foreign intelligence that relates to a threat involving terrorism or weapons of mass destruction (WMD). Foreign intelligence involving terrorism or WMD that does not involve threats e.g., that involves financing of terrorism -- must be shared as expeditiously as possible. Information can be shared in three different ways: through existing field-level relationships between law enforcement and the intelligence community, including a Joint Terrorism Task Force (JTTF); through an existing headquarters relationship; or -- if time does not permit use of either of these mechanisms -- by any mechanism intended to facilitate immediate action. The guidelines also provide that, as soon as possible after disclosure, the disclosing official notify the relevant JTTF, which must keep the relevant Anti-Terrorism Task Force (ATTF) apprised of the information shared. The ATTF, in turn, is responsible for informing the Department of Justice Criminal Division's Terrorism and Violent Crime Section of such disclosures.
- Other Foreign Intelligence: The sharing of foreign intelligence involving matters other than terrorism and WMD will be governed by specific protocols developed by federal law enforcement agencies, in consultation with the Department of Justice and the Director of Central Intelligence.
- Protections for U.S. Persons: In order to provide additional privacy protections to U.S. persons, these guidelines subject all information shared with the intelligence community under section 905(a) to the procedures established in the Attorney General's section 203 guidelines.
- Exceptions to the Mandatory Sharing of Foreign Intelligence: Section 905(a) authorizes the Attorney General, in consultation with the Director of Central Intelligence, to exempt certain information from mandatory disclosure. These guidelines provide that, before permanent exceptions are established, the Attorney General will adopt exceptions on a case-by-case basis, upon the submission of a written request for an exception.