Posted on 10/20/2005 8:51:03 PM PDT by Homer1
>PATRICK J. FITZGERALD
UNITED STATES ATTORNEY
NORTHERN DISTRICT OF ILLINOIS
PREPARED REMARKS FOR THE
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
APRIL 28, 2005
INTRODUCTION
Mr. Chairman, members of the Committee, thank you for asking me here today. I very
much look forward to this opportunity to discuss with you how the efforts of the United States
Attorney’s Offices in the investigation and prosecution of terrorists have changed since the
passage of the USA PATRIOT Act (“Patriot Act”) and, in particular, section 218 of the Patriot
Act which helped to dismantle what was formerly known as “the wall” between intelligence and
law enforcement.
I will state up front that I firmly believe that the Patriot Act contained the single most
important – and necessary – change in American law as it effects national security over the last
decade, and that is section 218, which played a critical role in ending the artificial “wall” between
intelligence and law enforcement personnel. As a prosecutor who has worked on terrorism
matters for over ten years now, I thank you on behalf of federal prosecutors, FBI agents and the
public for that long overdue change that has made America safer.
What was the “wall”? Before the USA PATRIOT Act, applications for FISA orders had
to include a certification from a high-ranking Executive Branch official that “the purpose” of the
surveillance or search was to gather foreign intelligence information. As interpreted by the courts
and the Justice Department, this requirement meant that the “primary purpose” of the collection
had to be to obtain foreign intelligence information rather than evidence of a crime. Over the
years, the prevailing interpretation and implementation of the “primary purpose” standard had the
effect of limiting coordination and information sharing between intelligence and law enforcement
personnel. Because the courts evaluated the government’s purpose for using FISA at least in part
by examining the nature and extent of such coordination, the more coordination that occurred, the
more likely courts would find that law enforcement, rather than foreign intelligence collection, had
become the primary purpose of the surveillance or search. The perceived need for a wall was
based on the assumption that information about persons and groups seeking to do harm to our
country could neatly be separated into “intelligence” information and “evidence.”
It is nearly impossible to comprehend the bizarre and dangerous implications that “the
wall” caused without reviewing a few examples. While most of the investigations conducted
when the wall was in place remain secret, a few matters have become public. For instance, I was
on a prosecution team in New York that began a criminal investigation of Usama Bin Laden in
early 1996. The team – prosecutors and FBI agents assigned to the criminal case – had access to
a number of sources. We could talk to citizens. We could talk to local police officers. We could
talk to the CIA. We could talk to foreign police officers, foreign citizens, even foreign spies.
And we did all those things as often as we could. We could even talk to al Qaeda members – and
we did. We actually called several members and associates of al Qaeda to testify before a grand
jury in New York. And we even debriefed al Qaeda members overseas who agreed to become
cooperating witnesses.
But there was one group of people we understood we could not talk to. Who? The FBI
agents assigned to a parallel intelligence investigation of Usama Bin Laden and al Qaeda. We
understood that we could not learn what information they had gathered from FISA surveillances
without prior approvals of other officials. That was “the wall,” which a federal court has since
agreed was fundamentally flawed – and dangerous.
Let me review some other examples of how the wall played out. On August 7, 1998, al
Qaeda struck at the American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, nearly
simultaneously, killing 224 people. The team of FBI agents and prosecutors, which had obtained
a sealed indictment of Bin Laden two months earlier, deployed to East Africa and almost
immediately learned of al Qaeda’s involvement and arrested two bombers in Nairobi. One month
later, in September 1998, a man named Ali Mohamed was questioned before a federal grand jury
in Manhattan. Ali Mohamed, a California resident, had become a United States citizen in 1989
after serving in the United States Army beginning in 1986. It was believed at the time that
Mohamed lied in the grand jury proceeding and that he was involved with the al Qaeda network,
but Mohamed had not by then been tied to the bombings. Ali Mohamed left the courthouse to go
to his hotel, followed by FBI agents, but not under arrest. He had imminent plans to fly to Egypt.
The decision had to be made at that moment whether to charge Mohamed with false statements.
If not, Mohamed would leave the country. That difficult decision was made without knowing or
reviewing the intelligence information on the other side of the “wall.” It was ultimately decided to
arrest Mohamed that night in his hotel room. As described below, the team got lucky, but we
never should have had to rely on luck. The prosecution team later obtained access to the
intelligence information, including documents obtained from an earlier search of Mohamed’s
home by the intelligence team on the other side of “the wall.” (The search had been a FISA search
under authority that pre-existed the Patriot Act.) Those documents included direct written
communications with al Qaeda members and a library of al Qaeda training materials that would
have made the decision far less difficult. The criminal case gathered additional evidence through
further investigation. Mohamed later pleaded guilty in federal court admitting that he was a top
trainer to the leadership of al Qaeda and Egyptian Islamic Jihad, and that he had participated in
the surveillance of a number of overseas American targets, including the American embassy in
Nairobi, Kenya, and had later shown the sketches of that embassy to Bin Laden himself.
Mohamed further admitted he had trained some of the persons in New York who had been
responsible for the 1993 World Trade Center bombing. Mohamed stated that had he not been
arrested on that day in September 1998, he had intended to travel to Afghanistan to rejoin Usama
Bin Laden. Thus, while the right decision to arrest was made partly in the dark, the “wall” could
easily have caused a different decision that September evening that would have allowed a key
player in the al Qaeda network to escape justice for the embassy bombing in Kenya and rejoin
Usama Bin Laden in a cave in Afghanistan, instead of going to federal prison.
What is ironic is that this is an example of where the wall came into play where both
criminal and intelligence investigations existed. In most cases, the wall prevented criminal cases
from being opened or pursued at all. In 1993, for example, after the World Trade Center
bombing, conspirators, including Sheik Omar Abdel Rahman, planned to bomb the Holland and
Lincoln tunnels, the FBI building, the United Nations and the George Washington Bridge.
Prosecutors, however, were in the dark about the details of the plot until very late in the day for
fear that earlier prosecutorial involvement – even mere knowledge by the prosecutors of what was
happening – would breach the wall. Later, during the investigation of the planned Millenium
attacks, criminal prosecutors were forced to observe the wall while the intelligence community
dealt with al Qaeda planned attacks on our soil and overseas. Criminal prosecutors received
information only in part and with lag time so as not to breach the wall. The persons who
determined what could be shared with the prosecutors were on the other side of the wall, making
their best guess as to what would be helpful. This was no way to defend our country from
imminent attack. Moreover, the above examples occurred in New York where the working
relationship between prosecutors and agents in the field was strong. In many other areas in the
country, the wall was so high that criminal agents and prosecutors simply had no idea what
intelligence investigators were doing, and often even who they were.
When I heard over the last several years from critics of the Patriot Act that the law was
passed in haste and ought simply be repealed, I think back to the days when prosecutors and
agents made decisions about national security – life and death decisions – while only looking at
half the cards in their hand and know that the change came a decade too late, not a moment too
soon.
Prior to the Patriot Act, there was also concern with a prosecutor’s uncertain ability to
share grand jury testimony affecting national security with the intelligence community, a problem
that was fixed by section 203(a) of the Patriot Act. In 1997, Wadih el Hage, a key member of the
al Qaeda cell in Nairobi, Kenya, had his Nairobi residence searched and his telephone wiretapped
with the participation of the intelligence community. He thereafter departed Kenya en route to
Dallas, Texas, in September 1997, changing flights in New York City. At that point, el Hage was
subpoenaed from the airport to a federal grand jury in Manhattan where he was questioned about
Bin Laden, al Qaeda and his associates in Kenya, including among others his close associate
“Harun.” El Hage chose to lie repeatedly to the grand jury, but even in his lies he provided some
information of potential use to the intelligence community – including potential leads as to the
location of his confederate Harun and the location of Harun’s files in Kenya. Unfortunately, as el
Hage left the grand jury room, we knew that we could not then prove el Hage’s lies in court. And
we also knew that the law did not clearly provide for sharing grand jury information with the
intelligence community. We did not want, however, to withhold information of intelligence value.
Fortunately, we found a way to address the problem that in most other cases would not work.
Upon request, el Hage voluntarily agreed to be debriefed by an FBI agent outside of the grand
jury when it was explained that the FBI agent was not allowed in the grand jury but was also
interested in what el Hage wanted to say. El Hage then repeated the essence of what he told the
grand jury to the FBI agent, including his purported leads on the location of Harun and his files.
The FBI then lawfully shared that information with others in the intelligence community. In
essence, we solved the problem only by obtaining the consent of a since convicted terrorist. We
should not have to rely on the generosity of al Qaeda terrorists to address the gaps in our national
security.
As I mentioned earlier, the American Embassy in Nairobi, Kenya, was bombed in
August 1998. Investigation in Kenya quickly determined that Harun (described above) was
responsible for the bombing. (Harun had left Kenya in 1997 after the search of el Hage’s Nairobi
home, correctly fearing that American officials were looking for him. Harun returned in 1998 to
carry out the bombing.) Harun’s missing files were uncovered in the investigation of the
bombing, stored at a charity office in Nairobi. (Harun remains a fugitive today and an important
al Qaeda operative.) The point here is that had el Hage provided truthful information about the al
Qaeda cell in Kenya a year before the embassy attacks, the rules then in existence did not provide
for the sharing of that grand jury material had the team not used the FBI interview to work
around the problem. This example should not be written off as “no harm, no foul”: we should
not have to wait for people to die with no other explanation than the law blocked the sharing of
specific information that provably would have saved those lives before acting. The Patriot Act
addressed that problem of separating the dots from those charged with connecting them.
These concrete examples demonstrate that the need to tear down the wall between
criminal and intelligence investigations was real and compelling and not abstract. Section 218 did
this by eliminating the “primary purpose” requirement discussed above. Under section 218, the
government may now conduct FISA surveillance or searches if the gathering of foreign
intelligence is a “significant” purpose of the surveillance or search, thus eliminating the need for
courts to compare the relative weight of the “intelligence” and “law enforcement purposes” of the
surveillance or search. This means that law enforcement and intelligence personnel can now share
information without worrying that by doing so they will be jeopardizing the government’s ability
to continue ongoing FISA surveillance or introduce evidence in court. It is important to point
out, however, that section 218 did nothing to alter the requirement that the Foreign Intelligence
Surveillance Court may only authorize surveillance or searches under FISA when it finds that
there is probable cause to believe that the target is a foreign power or an agent of a foreign
power, such as a terrorist or spy, and that section 218 was found to be constitutional in a
unanimous decision of the FISA Court of Review in 2002.
I can tell you from personal experience that section 218 has made a huge difference in the
way we approach national security. Today, as United States Attorney in Chicago, the prosecutors
in my office enjoy a good working relationship with the FBI agents in Chicago. We are aware of
the intelligence investigations they do and they are aware of our criminal cases and we coordinate
to make sure that the law is followed and that all information is shared appropriately. In simple
terms, we are making sure that if people who pose a threat to our country can be arrested, my
office knows about it. Then together with the FBI we decide what, if any, national security
sources and methods would be exposed by a prosecution and make an informed decision whether
it is in the interest of our country’s national security to proceed. It sounds simple and logical. It
is. But it was not that way before the Patriot Act.
Let me give you a concrete example. In 2003, FBI agents had for several years been
conducting an intelligence investigation regarding Khaled Dumeisi’s activities on behalf of the
Government of Iraq. Dumeisi had been living in the Chicago area and publishing a newspaper.
However, Dumeisi had been gathering information (including telephone records) on Iraqi
opposition figures in the Chicago area and transmitting the information to the Iraqi Intelligence
Service. Dumeisi also provided Iraqi spies with false press credentials and recorded conversations
with Iraqi opposition figures through the use of hidden microphones. In the past, such an
espionage investigation would be conducted with little interaction with prosecutors. However,
because of the ability in 2003 to share information which had both intelligence value and
constituted evidence of a federal crime without compromising the ability to conduct FISA
surveillance, the intelligence agents worked together with prosecutors in my office to assemble a
case against Dumeisi for serving as an unregistered agent of a foreign power, as well as for
perjury. Dumeisi was convicted after trial in January 2004, and sentenced to 46 months in prison.
The Dumeisi case is far from unique. Efforts to increase coordination and information
sharing between intelligence and law enforcement officers have been undertaken nationwide.
CLOSING
Mr. Chairman, I thank you for inviting me here and giving me the opportunity to explain
in concrete terms how the Patriot Act has changed the way we fight terrorism. I would like to
thank this Committee for its continued leadership and support. I also wish to assure this
Committee that the men and women of the Northern District of Illinois, and the U.S. Attorney’s
Offices elsewhere in the country, appreciate the Constitution and the values it represents as we go
about out work. With your support we will continue to make great strides in keeping both our
country and our Constitution safe.
I will be happy to respond to any questions you may have.
I'll bookmark it for reading tommorow. Thanks for post.
Bump
gratuitous self-bump
This deserves more love
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