from the FAS Project on Government Secrecy
Volume 2002, Issue No. 95
September 27, 2002


In a lengthy new brief filed with the Foreign Intelligence Surveillance Court of Review this week, the Justice Department elaborated its argument that "the wall" that traditionally separated law enforcement and intelligence investigations has been torn down by the USA Patriot Act.

The Department contends that it is now at liberty to use the counterintelligence procedures of the Foreign Intelligence Surveillance Act, which are in some respects looser than those used in criminal cases, even in investigations where law enforcement rather than counterintelligence is the principal purpose of an investigation.

By enacting the USA Patriot Act last year, "Congress directly and unambiguously tore down the wall," according to the new brief. The Act "allows unfettered coordination between intelligence and law enforcement officials in furtherance of efforts to protect against espionage and international terrorism."

Aspects of that interpretation of the USA Patriot Act were rejected by the Foreign Intelligence Surveillance Court in a May 2002 decision, made public last month, and the Department has appealed the ruling to the FIS Court of Review.

In arguing against "excessive judicial interference with the President's authority over national security matters," the Justice brief coyly quotes the testimony of "one witness" in a 1978 hearing who turns out to be... Laurence Silberman, a member of the FIS Court of Review to whom the brief is directed. (Footnote 4).

The main body of the brief is accompanied by an appendix that compares and contrasts the requirements of the Foreign Intelligence Surveillance Act and the Title III procedures for obtaining a wiretap in a criminal investigation.

See the "Supplemental Brief for the United States" filed in the FIS Court of Review by Attorney General John Ashcroft on September 25 here:


FBI Director Robert S. Mueller III described in chilling detail the activities of the September 11 hijackers in the months, weeks and hours leading up to the September 11 attacks in a statement for the record submitted to the Joint Inquiry conducted by the House and Senate Intelligence Committees.

Director Mueller's statement, declassified for release on September 26, is available here:


The Congressional Research Service has published several new reports of topical interest. Although CRS short reports occasionally include new information or original analysis, they mainly serve to provide a concise introduction to issues of importance.

"U.S. Use of Preemptive Military Force" by Richard F. Grimmett, September 18, 2002:

"Terrorist Nuclear Attacks on Seaports: Threat and Response" by Jonathan Medalia, August 23, 2002:

"Critical Infrastructures: What Makes an Infrastructure Critical?" by John Moteff, Claudia Copeland, and John Fischer, August 30, 2002:


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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