To accomplish their task, the National Security and Counterterrorism Divisions engage in foreign intelligence and foreign counterintelligence investigations. The FISA Court, as noted previously, has jurisdiction to hear applications for and grant orders approving FISA surveillance and searches. The Foreign Intelligence Review Court was established to rule on the government’s appeals of Foreign Intelligence Surveillance Court denials of government-requested surveillance and search orders. FISA, among other things, contains requirements and a process for seeking electronic surveillance and physical search authority in investigations seeking to obtain foreign intelligence and counterintelligence information within the United States. Concern Over Possible Adverse Consequences of Judicial Rulings Has Been a Key Factor Impeding Coordination

A key factor impeding coordination of foreign counterintelligence investigations involving the use or anticipated use of the FISA surveillance and search tools has been the FBI’s and OIPR’s concern about the possible consequences that could result should a federal court rule that the line between an intelligence and a criminal investigation had been crossed due to contacts and/or information shared between the FBI and the Criminal Division. In January 2000, the Attorney General promulgated coordination procedures, which were in addition to the 1995 procedures. In investigations involving FISA, the notification procedures established criteria that “If in the course of an… investigation utilizing electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act…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 each shall independently notify the Criminal Division.” Following the Criminal Division’s notification, the procedures require the FBI to provide the Criminal Division with the facts and circumstances, developed during its investigation that indicated significant criminal activity. DOJ Promulgated Additional Procedures to Address Some Coordination Problems

In January 2000, based on the Attorney General’s Review Team’s interim recommendations, the coordination working group recommended to the Attorney General additional procedures to address the FBI/Criminal Division coordination issues. However, these mechanisms have not been institutionalized in writing and, thus, their perpetuation is not ensured. Furthermore, these standards require that such documentation appear in management directives, administrative policies, or operating manuals. On the one hand, some risk and uncertainty will likely remain regarding how the FISA Court or another federal court might upon review interpret the primary purpose of a particular surveillance or search in light of notification of the Criminal Division and the subsequent advice it provided. 2. 2.
Why GAO Did This Study

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.

What GAO Found

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.