Section 203 authorizes sharing of "foreign intelligence' information gathered in criminal investigations with certain federal officials. Only subsections 203(b) and 203(d) are subject to the PATRIOT Act's sunset provision. Section 203(b) amends federal wiretap law to permit law enforcement officials to disclose wiretap contents to any other "federal law enforcement, intelligence, protective, immigration, national defense, or national security official' to the extent the information contains "foreign intelligence,' "counterintelligence,' or "foreign intelligence information' and will assist the official in performance of his or her duties. Section 203(d) contains a more general authority for sharing the same types of information, when it is obtained in criminal investigations, with the same types of officials under the same circumstances. It also authorizes disclosure of threat information collected in a criminal investigation to "appropriate' federal, state, local, or foreign government officials for the purpose of responding to that threat. Threat information can include threat of attack, other "grave hostile acts,' sabotage, terrorism, or clandestine intelligence gathering activities.
Section 203 borrows its definition of "foreign intelligence' and "counterintelligence' from the National Security Act of 1947. The term "foreign intelligence information' is new; it is defined to include information about U.S. Persons and covers information that (a) relates to the ability of the United States to protect against actual or potential attack, sabotage, terrorism, or clandestine intelligence activities of a foreign power, or (b) with respect to a foreign power, relates to "the national defense or security of the United States' or "the conduct of the foreign affairs of the United States.'
Section 203 was designed to address the concern that there were barriers to information sharing between law enforcement and national security officials . A different section of the Act, section 905, which does not sunset, requires the Attorney General or heads of other law enforcement agencies to disclose "foreign intelligence' from criminal investigations to the Director of Central Intelligence (subsequent legislation substituted the new Director of National Intelligence for the DCI ).
Three different sections of the Patriot Act authorize and require the sharing of information collected on Americans by one government agency with a wide range of officials in many other government agencies. Since the passage of the Patriot Act, Congress has also required the sharing of information in the Enhanced Border Security and Visa Entry Reform Act and the Homeland Security Act and ordered the construction of vast new information sharing technologies.
While effective counterterrorism requires that agencies share relevant information, congressional efforts have uniformly failed to address the real difficulties in such sharing: How to determine what information is useful for counterterrorism; how to determine what information would be useful if shared; how to identify whom it would be useful to share it with; and how to ensure that useful and relevant information is timely recognized and acted upon. To the contrary, the legislative approach—which can fairly be summarized as share everything with everyone—can be counted on to obscure and make more difficult the real challenge of information sharing.
Widespread and indiscriminate warehousing of information about individuals violates basic privacy principles. Amending the Patriot Act to require targeted rather than indiscriminate information sharing would restore at least minimal privacy protections and substantially increase the likelihood that the government could identify and obtain the specific information needed to prevent terrorist acts.
Pre-9/11 Intelligence Failures.
The Patriot Act's information sharing provisions have been touted as a response to the pre-9/11 intelligence failures, but those failures were not due to legal barriers, and the provisions in the Act do not fix the problems that led to the 9/11 failures.
Contrary to the repeated mischaracterization by Attorney General Ashcroft and others, no statutory "wall" prohibited sharing information between the law enforcement and intelligence communities; the law expressly provided for such sharing. While the Foreign Intelligence Surveillance Act (FISA) was interpreted to mean that prosecutors could not direct foreign intelligence wiretaps, as opposed to criminal wiretaps, the text of FISA expressly contemplates that FISA surveillance may uncover evidence of a crime. Before September 11, FISA information had been used in many criminal cases. While there were statutory restrictions on sharing some secret grand jury information or criminal wiretap intercepts with the CIA or the White House, those rules had exceptions when national security was at stake. See, e.g., August 14, 1997, Memorandum to the Acting Counsel, and October 17, 2000, Memorandum to the Counsel, Office of Intelligence Policy and Review.
Moreover, none of the 9/11 failures was caused by the inability of prosecutors to direct FISA surveillance, or any legal restriction on the CIA or White House obtaining secret grand jury or wiretap information. The reports of the Congressional Joint Inquiry and 9/11 Commission describe many missed opportunities in detail. Nowhere do they identify any statutory prohibition on information sharing as at fault, although there were widespread bureaucratic misunderstandings about legal restrictions on information sharing.
Instead, the failures resulted from the FBI and CIA failing to know what it knew. For example, while lower level FBI agents had important information about Al Qaeda associates in the United States that they shared with Headquarters, the higher-ups failed to understand the significance of the information, much less act on it. Similarly, the CIA knew for almost two years about the U.S. visa issued to an Al Qaeda suspect—who would hijack a plane on September 11—but failed to inform the FBI or appreciate the importance of the information. This was a failure of analysis and coordination, it was not caused by legal restrictions on access to information.
The Patriot Act.
Rather than analyze and grapple with the real causes of the 9/11 failures, Congress in the Patriot Act simply required indiscriminate sharing of information without addressing the problem of how to identify and analyze important information. The Patriot Act provisions make that task more difficult by deluging agencies with unanalyzed and often irrelevant information.
Section 203 of the Act allows the unrestricted sharing of sensitive information gathered by law enforcement agencies with the CIA, the NSA, immigration authorities, the Secret Service, and White House officials. It does not limit such sharing to officials with responsibility for terrorism matters, nor are there any safeguards regarding the subsequent use or dissemination of such information by such officials (so long as the use is within the official duties of the recipient). It allows the sharing of all information that is in any way related to any American's contacts with or activities involving any foreign government, group, or individual. It applies to all intercepts of telephone conversations and e-mail. It applies to all confidential information obtained by a grand jury, which has the power, merely at the request of a prosecutor to subpoena virtually any records and any testimony from any person. A key safeguard against this virtually unlimited subpoena power had been the requirement that grand jury information only be shared for legitimate law enforcement purposes under the supervision of a judge.
Section 905 overlaps with section 203 but makes such sharing mandatory. It requires the Attorney General and the head of any other law enforcement agency to "expeditiously disclose" to the Director of Central Intelligence (and now the new Director of National Intelligence) all "foreign intelligence" acquired during a law enforcement investigation. The Attorney General may exempt only those classes of foreign intelligence whose disclosure "would jeopardize an ongoing law enforcement investigation or impair other significant law enforcement interests." Section 905 suffers from the same defects as section 203: it covers the most sensitive grand jury information and wiretap intercepts regardless of relevance, and contains no limits on the use or redisclosure of the information by intelligence agency staff." Foreign intelligence" includes anything related to any American's contacts with a foreign government, group or person. Over the objections of civil liberties groups and some Democratic senators, the administration refused to limit this mandatory sharing to information related to international terrorism or to limit it to intelligence officials with counterterrorism responsibilities. The Act sets no standards or safeguards for use of this information. While it requires the Attorney General to issue rules, those rules simply require that information concerning citizens and legal permanent residents be marked as such and contain no limitations or safeguards on the use of the information.
Section 504 of the Act makes explicit that FISA information may be shared with law enforcement personnel. This provision -- proposed by Senator Leahy, not the administration -- alone would have addressed whatever confusion existed about the FISA requirements at the FBI and elsewhere.
The Patriot Act and subsequent legislation also vastly expanded the universe of personal information that may now be indiscriminately shared. Section 215, for example, authorizes secret seizures of commercial databases as well as library and other personal records simply on the assertion that they are sought for an authorized investigation.
Notably, the Patriot Act nowhere addresses the CIA's failure to share information with other agencies, even though the CIA's failure to alert other agencies that known Al Qaeda associates were coming to the US when it knew Al Qaeda was planning another attack was a major "missed opportunity." Of course, it is not easy to figure out how to ensure that CIA information is shared with other agencies that need it and at the same time protect the confidentiality of truly sensitive intelligence sources. The suggestion that the source of the information should simply be eliminated when distributing the information misunderstands the importance of knowing at least something about the source of information in order to understand the context and reliability of the information. The Patriot Act diverts attention from solving these difficult problems by adopting a vacuum cleaner approach to information sharing.
Two and a half years after the passage of the Patriot Act, the 9/11 Commission staff confirmed that "there is no national strategy for sharing information to counter terrorism." The Administration has yet to explain how these Patriot Act provisions will focus the bureaucracies on identifying what information is useful to locate actual terrorists, analyzing that information, and determining what actions to take based on the information. To the contrary, the provisions essentially direct agencies simply to dump massive volumes of unanalyzed information on other agencies. They facilitate the construction of a vast intelligence database on Americans. And they effect an extraordinary change in the capability and authority of the foreign intelligence agencies, including the CIA, to keep information on Americans.
Congress should amend both sections 203 and 905 to provide some simple privacy safeguards, which will also ensure that information sharing is done in a more effective way.
1. When information is gathered pursuant to judicial power, the court's approval should be required before transferring the information to intelligence agencies, White House personnel, or other law enforcement agencies in order to ensure that there is some real need for more widely distributing the information. Accordingly, court approval for sharing criminal wiretap intercepts of conversations and e-mail and secret grand jury information should be obtained, except when there is no time to obtain such approval in order to prevent an imminent terrorist act or the flight of a suspect.
2. The information that should be shared with the intelligence agencies, the White House, etc., should be limited to information relevant to terrorism or espionage, rather than all information concerning any foreign contacts, the vast majority of which have nothing to do with terrorism. If the information transferred by law enforcement to the intelligence community were limited to "foreign intelligence information" as that term is defined in the Foreign Intelligence Surveillance Act (rather than the much broader definition in section 203), it would offer some protection against the CIA and others constructing a database on information about the domestic activities of Americans.
3. The information should be shared only with those officials who are directly involved in terrorism investigations or analyses.
4. There should be procedures for marking and safeguarding the information so these limits can be enforced and to protect against the redissemination of the information beyond these limits, much as classified information is marked and stored. Confidential grand jury information should be marked as such and intercepts of Americans' conversations and e-mails should be marked to prohibit indiscriminate circulation.
One of the most basic protections against government abuses has been the principle that a government agency should only collect information about individuals, which it needs for a specific and articulated purpose, should use it only for the purposes for which it was collected, should not keep it any longer than necessary, and should not share it with other government agencies except for very good reasons. The Patriot Act violates that principle by adopting the approach that myriad government agencies should collect, share and maintain forever as much information on as many people as possible. Requiring the minimal protection that the government articulate why specific information could be useful for counterterrorism before widely distributing it would help keep the government focused on the information needed to locate the next attackers, instead of warehousing personal information about millions of Americans.
Passed soon after the terrorist attacks of 9/11, the USA Patriot Act is among the most important legislative measures in American history. The Act enables the government to fight what will undoubtedly be a long and difficult war against international terrorism.
The specific terrorist prevention successes enabled by the Act—outlined in numerous public briefings and summarized in two comprehensive reports to Congress—justified the Department of Justice's conclusion that its job in securing the safety of America and her people in the years since September 11th "would have been much more difficult, if not impossibly so, without the USA Patriot Act."
That success is attributable not only to the collection more information on terrorist plots, but also to the smarter use of terrorist information collected by the government. Before the Act, the law sharply limited the ability of law enforcement officers to share information with intelligence personnel 'even when both halves were working on the same investigation. Through a series of provisions in the USA Patriot Act, Congress removed the legal barriers that created the culture of segregation and distrust among the various bureaucracies engaged in the common fight against terrorism.
The investigation and prosecution of the "Lackawanna Six" illustrates the practical impediments of culture of segregation. In 2001, six members of an al Qaeda cell in Lackawanna, New York, traveled to Afghanistan for training at an al Qaeda-affiliated camp. The investigation originated when FBI officials received a letter alleging the residents' involvement with foreign terrorists and criminal activities. In order to retain the option of using FISA, the FBI determined that the law required establishing two separate, simultaneous investigations: an intelligence investigation concerning terrorist threats, and a criminal investigation involving possible drug crimes. The two squads operated independently in the following months, often prohibited from even standing in the same room during briefings to discuss their respective cases. Thus, investigators on both sides were unable to obtain a complete picture of either the terrorist or the criminal activity.
The USA Patriot Act erased the statutory impediment to information sharing, and provided the impetus to remove the bureaucratic and cultural barriers to cooperation. In the case of the Lackawanna investigation, law enforcement agents were able to learn from intelligence officials that an individual named in the anonymous letter was an agent of al Qaeda. Additional information shared between intelligence and law enforcement personnel dramatically expedited the investigation. As a result, five of the six suspects pleaded guilty to providing material support to al Qaeda, and the sixth pleaded guilty to conducting transactions unlawfully with al Qaeda.
Among the information sharing provisions was the Act's amendments to grand jury secrecy rules. If a federal prosecutor learned during grand jury testimony that terrorists were planning to detonate a bomb in Manhattan in the next 30 minutes, Federal Rule of Criminal Procedure 6(e) prevented him from immediately notifying national security officials not directly participating in the investigation. Section 203 of the Act now permits sharing of grand jury information regarding foreign intelligence with federal law-enforcement, intelligence, protective, immigration, national-defense, and national security personnel. Disclosures under section 203 have been used to support the revocation of visas of suspected terrorists and prevent their reentry into the United States, track terrorists' funding sources, and identify terrorist operatives overseas.
Even the most strident of opponents of the USA PATRIOT Act would not want another terrorist attack to occur because law enforcement and intelligence communities were prevented from talking to each other. If a grand jury investigation uncovers evidence about a foreign terrorist cell, there should be some mechanism for the sharing of this information with the intelligence community.
Section 203, essential as it is, does raise important questions about how we approach law enforcement and domestic intelligence. Congress grappled with these issues and placed restrictions on the use of grand jury information—weighing the need for secrecy in the proceedings with the protection of the citizenry from attack. For instance, the official who receives such information may use it only in the course of his official duties and is subject to the rules regarding the unauthorized disclosure. Thus, only those who need the information to do their job potentially have access to it. In addition, any time grand jury information is shared, the government is required to notify the supervising court and identify the departments that received it.
More importantly, the USA PATRIOT Act does not permit or require the sharing of all—or even most—grand jury or criminal investigative information with the intelligence community. Section 203 of the Act expressly limits disclosure to foreign intelligence information. The Act defines the term foreign intelligence to include information relating to the ability of the United States to defend itself against terrorism, sabotage, and clandestine intelligence activities of foreign powers, as well as information relating to "national defense" or "the conduct of . . . foreign affairs." Rather than open up all criminal investigations to the intelligence community, the Act appropriately restricts the information to the type necessary to counter a threat from abroad. The vast majority of criminal investigations do not contain such information.
In addition, pursuant to the requirements of the USA Patriot Act, the Attorney General established procedures to ensure that the information is used appropriately. These procedures require that law enforcement agents, before disclosure to intelligence agencies, label all information identifying a U.S. person. Moreover, upon receipt of information from law enforcement that identifies a U.S. person, intelligence agencies must handle that information pursuant to specific protocols. These protocols, for example, require that information identifying a U.S. person be deleted from the intelligence information except in specified circumstances.
Those in the privacy advocacy industry, of course, would prefer tighter strictures to sharing of government information. Such ham-fisted obstinacy, however, comes with a cost, both in terms of privacy and efficacy. Preventing government from using information smartly will heighten the need for government to collect information more broadly. And bureaucratic strictures threaten to reconstruct the wall between intelligence and law enforcement. Information sharing must be guided by practical guidelines that simultaneously empower and constrain officials, clearly articulating what is and is not permitted.
Karl Llewellyn once wrote, "Ideals without technique are a mess. But technique without ideals is a menace." As Congress engages in the legislative effort to renew the USA Patriot Act, it behooves us to reaffirm the ideals of democracy and freedom and also to discern the techniques necessary to safeguard those ideals against the continuing threat of terrorism.
Professor Dinh's defense of sections 203 and 905 is long on rhetoric and short on substance. In particular, he fails to respond to Deputy Attorney General Comey's exhortation to discuss the details of these sections.
First, Professor Dinh makes no case about why the broad new authority in sections 203 and 905 is necessary. Even in his telling of it, the pre 9/11 rules on safeguarding sensitive grand jury information and wiretap intercepts which are amended by section 203, had nothing to do with the investigation of the individuals in Lackawanna. (Section 203 is irrelevant to the issues he identifies: intelligence officials not sharing information with law enforcement and the FBI's misreading of FISA.) Likewise, Professor Dinh's hypothetical grand jury testimony about a bomb in New York was anticipated by the Clinton Justice Department, whose Office of Legal Counsel opined in 1993 and 1997 that under then existing law, prosecutors would be free to disclose such information to national security officials even without prior judicial approval.
Second, Professor Dinh makes no argument against amending sections 203 and 905 to provide some modest protections. The proposed amendments—limiting shared information to information relating to terrorism, limiting its dissemination to officials working on terrorism, requiring judicial approval, and requiring marking to prevent redissemination—would not interfere with the necessities of counter-terrorism. Indeed, Professor Dinh has failed to identify any instances of information-sharing which would be prevented if the proposed amendments to sections 203 and 905 were made. Information about suspected terrorists like those in Lackawanna or bomb threats could still be shared.
On the other hand, the current law offers no protections against abuse. While Professor Dinh argues that not all information from criminal investigations may be shared, that is no answer to the fact that too much information will be turned over to the CIA and others, including virtually all information about any American's contacts with any foreigner or foreign group, including humanitarian organizations, for example. While Professor Dinh repeats the Justice Department's misleading claim that intelligence agency protocols require that information about Americans be deleted "except in specified circumstances" those circumstances are in fact so broad as to allow intelligence agencies to keep all information obtained under section 203 or 905. See EO 12333 section 2.3. Existing rules provide virtually no protection against authorized government compilation of dossiers on millions of Americans and use of those dossiers in intelligence operations.
By dealing seriously with the current authorities allowing the building of massive intelligence databases on any American with foreign contacts, Congress could also accomplish the important task of forcing bureaucracies to identify and focus on information that is actually useful in preventing another attack.
Section 203 both standardizes and restrains the powers of our men and women in blue, illustrating not the false trade-off between liberty and security presented in Ms. Martin's essays, but their mutual reinforcement. Rolling back this provision would return our country to the culture of separation and bureaucratic segregation that hindered effective terrorist prevention.
Ms. Martin's response underestimates the tools necessary to prevent and detect complex webs of terrorist activity. In particular, her contention that all shared information should be first established as terrorism-related information underscores the very crux of the problem—the full relevance of information is often only apparent after information is shared between criminal and intelligence investigations. You cannot connect the dots before all the dots are even on the drawing board.
Moreover, while prior law provided for some dissemination of information, Ms. Martin fails to note how restrictions were so convoluted that agents frequently hesitated from working openly with other government entities. Section 203 has been widely heralded by investigators for helping clarify confused interpretations and promote a more coordinated and efficient team approach to counterterrorism. Only recently, FBI Director Mueller testified that section 203 has greatly enhanced the FBI's relationships with state, local and other federal agencies in the common effort to fight terrorism.