Interesting reading: The FBI OIG report on "The wall between intelligence and criminal terrorism investigations" that existed during the 1990s, and chapter 20 of the Final Report of the Attorney General's Review Team on the Handling of the Los Alamos National Laboratory Investigation which deals with the same subject. Here is a summary of key events.
US v. Truong
Before the Foreign Intelligence Surveillance Act was passed in 1978, US intelligence agencies engaged in warrantless surveillance under the presumption that the President could ignore the Constitution in the name of national defense. In the case of US v. Trong Dinh Hung, 629 F.2d 908, judge Harrison Winter of the Fourth Circuit Court of Appeals describes what appears to have been standard practice at the time:
No court authorization was ever sought or obtained for the installation and maintenance of the telephone tap or the bug ... the FBI sought and received approval for the surveillance from the President's delegate, the Attorney General ... The district court decided that the FBI investigation had become primarily a criminal investigation by July 20, 1977, and excluded all evidence secured through warrantless surveillance after that date.
In his decision, Winter found that "the Executive Branch need not always obtain a warrant for foreign intelligence surveillance" if the situation meets the Keith standard of 407 U.S. 297 (1972). That standard involves two questions:
- whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken.
- whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.
What Keith Standard?
In that case, the US Supreme Court briefly raised those two questions before spending the next several paragraphs emphasizing the need to get a warrant, finding that "the constitutional basis of the President's domestic security role ... must be exercised in a manner compatible with the Fourth Amendment."
Also of relevance is an instruction to ignore this decision in cases involving investigations of foreign powers or their agents.
As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
So this Keith standard appears not to be a standard at all, and it is not to be applied to cases like that of Truong which involve agents of foreign powers.
The Truong standard
In applying Keith to the Truong case, the Fourth Circuit took the very, very high bar raised by the Supreme Court and threw it on the ground.
the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, "unduly frustrate" the President in carrying out his foreign affairs responsibilities.
The Fourth Circuit also ruled that judges are incapable of processing warrants for cases involving foreign agents, in direct opposition to contravening language in Keith.
More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance.
It is worth noting again that this decision was issued in 1980, two years after Congress passed FISA to require judicial approval for intelligence gathering. If read broadly, Winter implicitly overturns FISA as an infringement upon the President's war powers. In a concurring opinion, Kenneth Keller Hall references FISA to note that it allows the Attorney General to authorize warrantless wiretaps and therefore "does not contain a blanket warrant requirement".
Donald Russell "wholeheartedly" concurs with Winter's opinion while disagreeing on a triviality.
US v. Duggan
The 1984 case of US. v Andrew Duggan et al, 743 F.2d 59 involved evidence obtained under a FISA court order. The ruling by Amalya Kearse of the Second Circuit Court of Appeals, with Wilfred Feinberg and Walter R. Mansfield concurring, relegates the Truong ruling to a discussion of the history of court rulings before FISA.
65 Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
70. ... Congress passed FISA to settle what it believed to be the unresolved question of the applicability of the Fourth Amendment warrant requirement to electronic surveillance for foreign intelligence purposes, and to "remove any doubt as to the lawfulness of such surveillance."
Kearse here states the "primary objective" rule that a criminal investigation cannot be the primary objective of a FISA investigation.
94. Defendants contend that the surveillance of Megahey's telephone was not authorized by FISA because the information was sought as part of a criminal investigation. We see no grounds for concluding that the requirements of FISA were not met.
95. ... The requirement that foreign intelligence information be the primary objective of the surveillance is plain not only from the language of Sec. 1802(b) but also from the requirements in Sec. 1804 as to what the application must contain. The application must contain a certification by a designated official of the executive branch that the purpose of the surveillance is to acquire foreign intelligence information, and the certification must set forth the basis for the certifying official's belief that the information sought is the type of foreign intelligence information described. Id. Sec. 1804(a)(7).
FBI procedures in the 1980s
According to the OIG report (page 24), the FBI reacted to the "primary purpose" rule by enacting procedures to separate intelligence investigations from prosecutors.
- "requiring prosecutors not to have control in intelligence investigations in which information was being collected pursuant to FISA"
- requiring intelligence investigators report evidence of criminal activity to prosecutors in the FBI's Criminal Division, rather than to the US Attorney's Office.
To quote from the report,
The Criminal Division and FBI Headquarters made the policy decision about when to involve the USAO in the investigation, since consulting with the USAO was viewed as a bright line signifying the transition from an intelligence investigation to a criminal investigation.
To my mind this raises the question of why the FBI prosecutors were not already being used if the FBI has prosecutors. If the people gathering the intelligence are not allowed to go anywhere else to seek a prosecution. this also makes it easier for a criminal organization or intelligence agency to exempt itself from the law by controlling the prosecutors.
The Scruggs memorandum
In 1994, Richard Scruggs of the FBI's Office of Intelligence Policy and Review tried to get all communications between intelligence and criminal divisions to go through OIPR first.
To address these concerns about coordination between the Criminal Division and the FBI in intelligence investigations, in 1994 Scruggs proposed amending the Attorney General’s FCI Guidelines to require that any questions in intelligence investigations relating to criminal conduct or prosecutions had to be raised first with OIPR, and that OIPR would decide whether and to what extent to involve the Criminal Division and the USAO in the intelligence investigation. Scruggs’ proposal also prohibited the FBI from contacting the Criminal Division or a USAO without permission from OIPR.
If anything came of that effort, then the wall between intelligence and criminal investigators would a name: the Office of Intelligence Policy and Review.
Needless to say, centralizing these requests would make it far easier for a criminal organization or intelligence agency to disrupt the FBI.
The Gorelick memo
The FBI's wall has so often been blamed on Jamie Gorelick that it is often called the "Gorelick Wall". A reading of the notorious Gorelick memo of 1995 does not bear that out. The Gorelick memo explicitly requires the intelligence unit and the OIPR to each independently contact the FBI criminal division and the US Attorney's Office.
If, in the case of the FCI investigation, facts or circumstances are developed that reasonably indicate that a significant federal crime has been, is being, or may be committed, the FBI and OIPR are each independently responsible for notifying the USAO and the Criminal Division. Notice shall include the facts and circumstances developed ...
This is less of a wall than there was during the 1980s. If this is the Gorelick memo that defined the FBI's "wall" policy for the rest of the 1990s. then somebody in a position of authority was applying their own different rules and blaming it on Gorelick.
The memo does require that criminal investigators seeking "pro-active efforts or technical coverage" first get the approval of the OIPR and the intelligence unit.
According to the Los Alamos report, the OIPR indeed applied their own different rules in contravention of the Gorelick memo.
By September 1997, according to Daniel S. Seikaly, Director of the Executive Office for National Security (“EONS”), the Director of the FBI had complained to the Attorney General that, despite the July 1995 memorandum, OIPR was preventing the FBI from contacting the Criminal Division.  (Seikaly 4/4/00)
A working group to address the issue, formed by Eric Holder and headed by Daniel S. Seikaly, "disbanded without any written recommendation and no significant action was taken."
The OIPR certainly had an alternative interpretation.
[OIPR Deputy Counsel Alan] Kornblum, on the other hand, believes that the foreign counterintelligence goals of the investigation should be completed, or very nearly so, before the Criminal Division is notified. (Kornblum 7/15/99)
In other words, the Criminal Division will be notified when hell freezes over.
There were also threats:
As noted above, according to Richard, FBI agents have been told that it is a "career stopper if you're wrong" about contacting the Criminal Division. (Richard 8/12/99) Dion believes that a perception has been fostered that any contact with the Criminal Division during an FCI investigation will risk the FBI's ability to seek a FISA in the future or, if one is already in place, that such contact will result in it being shut down. (Dion 8/5/99)
And it was all blamed on Scruggs.
According to SC Bereznay, when Scruggs assumed office [in 1993], he "clamped down" on contacts between the FBI and the Criminal Division, and, since then, the FBI has not fought these restrictions.
At some point the FISA court imposed even more restrictions on the FBI that led to the government filing suit against itself to get the restrictions lifted. The case is 310 F.3d 717, "In Re: Sealed Case", with a per curiam decision by Ralph Guy, Laurence Silberman, and Edward Leavy. The judges stated:
it is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department's ability to obtain FISA orders if it intended to prosecute the targeted agents ... it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes...
On the topic of the Gorelick memo:
The procedures state that "the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division's directing or controlling the FI or FCI investigation toward law enforcement objectives." ... Although these procedures provided for significant information sharing and coordination between criminal and FI or FCI investigations, based at least in part on the "directing or controlling" language, they eventually came to be narrowly interpreted within the Department of Justice, and most particularly by OIPR, as requiring OIPR to act as a "wall" to prevent the FBI intelligence officials from communicating with the Criminal Division regarding ongoing FI or FCI investigations.
Overall, this ruling cuts a path through the confusion of different interpretations and the recent passage of the PATRIOT act. Notably, the ruling also raises the question of whether a FISA warrant meets the constitutional requirements for a search warrant but chooses not to answer the question.
Here, have a conspiracy theory. Allegedly from Al Martin's book "The Conspirators":
Lee Radek has been a chief of the Public Integrity Section for a long time. His confederates within the DoJ were Dave Margolis and Mark Richards. These three men, operating under George Terwilliger, essentially managed the Iran-Contra coverup for the Department of Justice. Below the three, there was a control mechanism that filtered down to the local US Attorney's offices. The control man in the Miami US Attorney's office during Iran-Contra was William Richard Scruggs who reported directly to Margolis. There is actually an official title, Cover-Up Operations Field Manager. You will see in the "pink cable" traffic - restricted cable traffic between the US Attorneys offices and the Department in Washington. Scruggs was one of the 1100 Reagan-Bush holdovers brought into the Clinton administration specifically for that reason. The control conspiracies and ensuing coverups remain from administration to administration. Scruggs rose to the rank of National Security Advisor for Janet Reno, while at the same time still being under indictment for kidnapping in Costa Rica. (Al Martin - The Conspirators, pgs 346, 349-350)
Some lightweight research suggests that this William Richard Scruggs is the same person.
This is interesting: Allan Kornblum co-authored the Foreign Intelligence Surveillance Act. The name is spelled slightly differently, but he was the same person. So it was a FISA co-author interpreting FISA to require a strict separation of the criminal and intelligence divisions.