Summary     Why Sections 203 and 905 Should be Modified     Reply  
Response     An Indispensable Tool in the War on Terror

Section 203.
Authority to Share Criminal Investigative Information

Summary by Mary DeRosa

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 ).

Why Sections 203 and 905 Should be Modified
by Kate Martin

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.

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Viet Dinh Replies

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.

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Kate Martin Responds

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.

An Indispensable Tool in the War on Terror by Viet Dinh

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.