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JOINT INQUIRY, HPSCI AND SSCI 8 Committee Sensitive UNCLAS
Team File:
Document Number:
Prepared By: Michael Jacobson Reviewed By: Tom Kelley
INTERVIEWEE: Michael Woods SUBJECT: National Security Law
Interview Method: Interview
Place: Room 7241, FBI Building
Date: July 30, 2002
Participants: Michael Woods, Eleni Kelisch, Tom Kelley, Michael Jacobson
RECORD OF INTERVIEW
Tom Kelley took the lead on this interview. The Joint Inquiry Staff has already interviewed Woods
on one occasion; the purpose of this interview was to follow up on additional information which
has come to the attention of the Joint inquiry Staff since that time.
The artificial “wall” which prevents information gathered in intelligence cases from being shared
with criminal investigators and prosecutors stems from a July 19,1995 Attorney General memo
captioned," Procedures for Contacts Between the FBI and the Criminal Division Concerning
Foreign Intelligence and Foreign Counterinteligence Investigations.” The memo establishes a
procedure for reporting “significant federal criminal activity" obtained through FISA coverage to
the Criminal Division. It states at Paragraph A.7, " In a FISA renewal application concerning such
an (intelligence or FCI) investigation, OIPR shall apprise the Foreign inteligence Surveillance
Court (FISC) of the existence of, and basis for, any contacts among the FBI, the Criminal
Division, and a U.S. Attorney's Office, in order to keep the FSC informed of the criminal justice
aspects of the ongoing investigation.” A similar provision concerning criminal activity discovered
in the course of an intelligence investigation in which FISA is not used appears al Paragraph B.7
of the same memo.
This memo is a statement of policy and not law. He believes the memo was written in the wake of
the Ames case. During that investigation, FISA authority had been used very close to the time
that Ames was arrested for espionage. Ames's
‘counsel made the argument during the course of the plea negotiations that DOJ and the FBI had
breached the “primary purpose” standard in the FISA statute, and that the FISA information had
been used to bolster the criminal case. Although Ames pleaded guilty, DOJ was “spooked” by this
and decided that they needed to clarify the policy on this issue. The Criminal Division at DOJ was
also not pleased by the fact that they were not being notified about espionage cases until the last
minute, and this memo was meant to address that issue as well. However, the basic purpose of
the memo was to explain how FISA information should be passed to the Criminal Division without
compromising the “primary purpose” test.
The FBI disseminated the memo to the field offices, with an airtel explaining the impact of the
new policy. The FBI subsequently issued another airtel, clarifying several matters in the original
airtel. These two airtels represent the only official FBI guidance on the 1995 memo prior to 9/44
‘Although the memo was sparked by an espionage investigation where FISA was used, it also
applied to CT cases. In Woods’ opinion, the policy worked better in the espionage arena than it
did in CT. In espionage cases, the policy was fairly effective, and was carried out consistently.
When there was evidence of criminal activity in a case with a FISA, the field offices would notify
HQ, who would notify OIPR. OIPR would then notify the Criminal Division. If criminal activity was
discovered in the course of an intelligence investigation in which there was no FISA, HQ would
inform OIPR and the Criminal Division simultaneously. The Criminal Division could then contact
the local U.S. Attorney's Office and provide them with the information. This model did not work so
well on the CT side of the house. ITOS would often contact TVCS directly to notify them about
criminal activity. In addition, in the espionage cases, NSLU would draft a formal memo to DOJ
providing the information, but NSLU could never get ITOS to agree to this,
Based on the 1995 memo, the policy became that any contact between FBI agents working on a
FISA and prosecutors had to be included in the FISA package. DOV's interpretation was that the
ccourt had fo be notified not only of contact with prosecutors, but of significant contact between
‘agents working the FISA and agents working on parallel criminal investigations. The FBI
disagreed with that approach, since the 1995 policy didn’t mention anything about including
contact with criminal investigators, but DOJ prevailed. Woods noted that the FBI often had
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paralle! criminal investigations in CT. He cited the example of the Liaw enforcement sensitive]
‘smuggling case where the individuals were prosecuted, but the FBI stil had an interest in tne
inteligence case. In espionage cases, there are generally two separate phases, the inteligence
case and the criminal case (fit even reaches that stage). However, in CT they are often going on
at the same time, especially after the 1996 Antiterrorism and Effective Death Penalty Act, which
made virtually anything a criminal violation. Under the procedures established by DOV, the FBI
had to inform TVGS any time they came across a possible criminal violation, which was often
after the 1996 Act. DOJ also
interpreted the 1995 memo broadly in other ways. The memo states that it only applies to FISA
renewals, but DOJ interpreted it to include FISA initiations as wel,
In many cases where there was @ FISA on an individual there was also a criminal case on the
terrorist group of which the individual was a member. In some of these cases, there was no
criminal case on the individual under FISA surveillance. Regardless, 00 was concemed that the
Ccourt might think that they were being misled, and that contact between the agent working the
FISA and the agents working the criminal case might stil be of interest to the court. To ensure
that the court was fully informed, the FBI, at the direction of OIPR, started adding to the FISA
pplication information about criminal cases involving the individual FISA target, the organization
the target belonged to and other cases in which the target might be implicatec. The FBI would
have pages and pages of information describing these cases and explaining how the field offices
kept the information developed from the FISA from being disciosed to the criminal agents. This,
separation became known as the “wall.” The applications also described the procedures to be
followed to permit information derived from a FISA to be shared with criminal investigators in
‘appropriate circumstances. This is why FISA packages have grown so dramatically in length. In
some Al Qa’ida FISA applications, the list of criminal cases goes on for pages and often begins
with the criminal investigation of Usama Bin Laden. Unfortunately, in being overly cautious, OIPR,
also created a dengerous situation. The danger was that something was bound to be left out,
since OIPR and the FISC were now requiring so much detail in the FISA packages.
OIPR's guidance to the FBI was not based on court orders or established DOJ policy. In Woods’
opinion, twas more like OIPR was “reading the tea leaves.” A FISA Court judge would make a
‘comment like “that’s interesting,” or ‘this information helps me understand the case better,” and
IPR would then pass this along as a new requirement. Once the practice developed of providing
the Court with this level of detail, tne Court came to exnect itn subsequent cases. As an example
of now ridiculous it got, Woods cited a FISA on 2 (law enforce ment Sems +4) This FISA
package should have been two paragraphs. Instead it was many pages because it had a lot of
additional information
‘What eventually occurred was a series of mistakes in FISA packages. In some of the FISAs, the
wall in New York - that is the method the FBI was using to keep FISA derived intelligence from
being shared with criminal investigators -- was not being described acourately to the Court. These
mistakes were spotted by AUSA Fitzgerald during the course of preparations for the Embassy
bombing trial. He informed OIPR which notified the FISA Court. As @ result, in the fall of 1999,
about L IFISA packages had to be corrected, OIPR had to file special pleadings alerting the
Court to these corrections. In response, Judge Lamberth issued an order intended to ensure that
this did not occur again, He created procedures forall Al Qa'ida FISA applications, in
which the Court served as the actual wall. Basically, any time an agent wanted to pass FISA
information to a criminal agent, the court's authority had to be directly requested. In considering
these requests, the court would determine how relevant the information was, and whether it
‘compromised the primary purpose test. The court would lay this out either in the primary order in
the case or in the minimization order. In non Al Qaida cases, the court was not always the well.
In some cases, an OIPR attorney would serve as the wall, in others @ HQ manager, while in other
cases a field Chief Division Counsel would operate as the wall. Usually, OIPR would suggest a
particular individual as the wall and what the standard should be, and the FISA court would work
off of that
Asa side note, AUSA Fitzgerald was able to review the FISA packages in full because the
procedures in place for the Southern District of New York differed from the July 19, 1995
procedures governing contact between the FBI and other prosecutors. Under these procedures,
SDNY prosecutors were granted far greater access to inteligence information than other
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prosecutors. These procedures were established in 1996, and were considered temporary.
Woods recalled that they were renewed at one point. Woods also noted that the primary purpose
test is grounded in Truong, which predates FISA. The certifying official for the FISA package
makes the statement about primary purposes. This is not the role of the FISA Court. In the case
‘of a US person, the court merely finds that the information presented is not clearly erroneous,
Regarding the Resnick case, the issue again was that the “wall,” as it was being described in
many FISA packages, was not being depicted accurately. One or two field offices may have been
hhandiing the wall as described, but others were not. In many cases, agents on the same squad
were working the FISA and the criminal cases. The FISA packages appeared to suggest that the
‘agents working the criminal and intelligence cases were on separate squads. The FISA Court
thought that they were being lied to.
These disparities were sometimes noted by OIPR personnel during visits to the FBI field offices
as well. Their level of concern was raised when they discovered that an agent working a FISA
would be sitting in the cubicle next to an agent working the criminal case, even if they were
assigned to different squads.
Woods was also asked about the term “FISA derived” and its effect. According to Woods, itis not
defined anywhere. It is used in court orders, particularly with regard to the Liew enfe cement
Sens Ve, As part of the Lamberth wall, he required that anyone who
received FISA information sign a document stating that they understood the procedures. Prior to
that, in many cases, the FBI would Llaw enforcement sens hve
Fneprotem is thal. Jin patutar would produce
cers based on incBming information. Thes@ reports would often pe distributed to
law enforcement entities, including DEA and FBI. Itbecame impossible for(__\ to determine the
origin of and track every piece of information in thelr reports, and they were concerned that they
would violate the FISA Court order L.-Imade the point that their system is designed to analyze
information and to disseminate repors. As a result, hey started puting a caveat on every CT
report they disseminated. This meant that criminal agents in NY could no loner view
products. This was less of @ problem for|
: Woods tried to make the “ult of the poisonous tree”
argument, that tis was cleerly béyend the scope of what the court was concerned about. If the
Pb cant dlesemnote Flom rfomatonl- ST he purpoe of
collecting the information is defeated. This Is certainly a legitimate use STFISA Information
Woods was asked why 10Ss at HO could see both FISA and criminal information. He was not
certain 2s to the answer to this question,
The 1995 procedures are only meant to apply fo FB! gathered information. There is no restriction
on the use of information from other agencies, although sources and methods become a concern.
The CUA and NSA do have legitimate concerns about thelr sources and methods being exposed if
they are used in a criminal investigation and prosecution, NSA and CIA employees are also
concerned about being called to testy if thelr information is used in court
Woods does not think that every [__FISA was shut down from the spring of 2001 to 9/11
He recalls working on streamlining FISA procedures in the spring of 2001. They were attempted
to shorten the description of [_ _Jamong other things. Post 9/11, the walls came down,
There was a single order, issued verbally ight after the attacks teking down the walls. There was
a written order Issued soon after. Basically, the 1995 procedures alowed FISA information to be
Gisseminated in times of emergency. They used this provision to pass information in
cases fora few weeks (the wals were not down in alssses) 004 27a BI hen
attempted to draft an official policy on this. He recalls that Spké Bowman, OIPR, and the Criminal
Division were involved. However, the draft was never finalized. At some point, Director Mueller
taked to Judge Lamberth, end told him thal the FEI would be passing information. Lamberth
stated that this was acceptable, as long as Mueller was on top ofthe situation. Soon after, ACS
was unblocked, meaning that al uploaded text was now avaliable to anyone with access to the
system. This had wall implications for the FISA information thal was Uploaded. In October 2001
Woods sent out a memo to the field regarding the unblocking, explaining how to handle this
issue. OIPR informed the FISC about this development, When the Court found out, they
reimposed the 1995 procedures and walls
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The Congressional committees also were briefed on some of the FISA problems. In the summer [1a
of 2000, they were informed of the problems in the’ _JFISAs. The law requires OIPRto “£4. say
brief the congressional committees on the cases where information was passed across the wall,
particularly in cases where DO, was planning to use FISA information in a tral. The Patriot Act
delayed the reporting requirements, so Congress may not yet have been provided with the
reports on this topic required by the law.
Woods noted thal from the time he arrived at the FBI in 1997, they were already talking about
revising the 1995 procedures. Everyone had some problem with the 1995 procedures. There
were various generations of working groups exploring this problem. The first one included very
high level FBI and DO4 officials, but they couldn't get these people to actually attend monthly
meetings. After the Bellows Report on the Wen Ho Lee case, this reform gained additional
momentum, and another working group was formed. It included Larry Parkinson from the FBI, but
ro high level operational personnel. Woods’ sense was that this was left to the lawyers, and the
‘operational personnel did not get involved. Woods stated that there were also January 2000 and
‘August 2001 DOJ memos on the 1995 procedures. Unfortunately, the working groups’ focused
‘not on issues like why they had these reporting requirements for dissemination to criminal
investigators, but more on defining what “significant federal criminal activity” was. The August
2001 memo was approved while Mueller was the acting Deputy Attorney General. It was a very
complex document, and it wasn't clear as of 9/11 how this would affect the FBI field offices.
Woods gave many lectures on this topic, and always said that they were expecting additional
guidance from DOJ "any day.”
Woods recalls seeing the “international thadist” document produced by ITOS in the spring of
2001. This came up during the effort to streamline ISA applications. The document
explained | aoe fa FISA packages. He doesn't recall what
OIPR's reaction was to the document. This was pTobably put on the back burner. This was
important, but probably not as important as getting FISAs out. Even the OIPR policy people were
being brought into operational matters, due to the dramatic increase in the numbers of FISAs
To plead a new foreign power in a FISA package, ITOS would go through NSLU. He doesn't
recall any occasion where anyone came to him with this type of issue. In the Spring of 2002, they
were trying to figure out how to plead [_ _\ Most of
the SSAs who come to HQ are given established programs, and itis rare that the issu of a new
foreign power would even come up. Ifit did come up, the FBI would nave to provide OIPR with
inteligence about how this group meets the definition of a foreign power, and how the individual
fits in as well
‘Woods agrees that the 1996 Antiterrorism and Effective Death Penalty Act hurt the FBI's source
development. Once the act was in place, elmost anything a source would do to be in a position to
obtain and repor information would be a violation of the act, and would require AG approval for
“otherwise illegal activity." This takes a while to get, and is also difficult because in many cases it
is unknown what the asset might be asked to do. Providing training, funding, etc. are all
considered material support under the Act. The FBI does not have this problem with double
agents because in those cases intent is a part of the espionage statute. The Patriot Act has not
addressed this issue, Its his impression that a "why bother’ attitude has developed in the FBI
concerning the development of CT sources, since itis now even more difficult to run them, This is
‘not just a problem for the FBI. It also applies to the CIA, since it has extraterritorial reach, He
doesn't know how the CIA deals with it. The act nas not had a positive effect even as a
prosecutive vehicle, since TVCS has also never prosecuted a case under the act. At one point,
they came over to the FBI and reviewed about 80 case files, trying to find one to prosecute, but
didn't. They are still looking for that perfect first case.
Part of the problem is that the CT strategy is $0 prosecution focused. There is no document in
place which realy lays out the strategy.
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