PART THREE: SELECTED BACKGROUND RESEARCH A PRIMER ON THE CHANGING ROLE OF LAW ENFORCEMENT AND INTELLIGENCE IN THE WAR ON TERRORISM BY ROBERT M. MCNAMARA,JR. Partner, Manatt, Phelps and Phillips, LLP INTRODUCTION AND EXECUTIVE SUMMARY While the “War on Terrorism” has taken on a new urgency since September 11, 2001, it is not a new phenomenon nor is it a reinvented focus of either the U.S. intelligence community, or the federal law enforcement agencies. What is relatively recent, however, is the scope of effort by both groups in terms of human resources committed to the task, the level of sophisticated technology focused against the target(s) and the unparalleled, albeit evolving, nature of cooperation and coordination between the two communities. For the past few years, there have been repeated calls for closer cooperation, better sharing of infor- mation and less friction. While to the outside objective observer, these suggestions seemed both reasonable and doable, there were practical, cultural and legal impediments, which prevented what should have been a seamless continuum from becoming so. The two drive wheels for change in the status quo were George Tenet, Director of Central Intelligence and of the Central Intelligence Agency (CIA), and Louis Freeh, Director of the Federal Bureau of Investigation (FBI). By all accounts, they accomplished more in the past half-decade toward this goal, than had been done in all of the history of their respective agencies. There were a number of critical factors in this equation of change: necessity, maturity and urgency, to name a few. But the overriding single most important ingredient was the shared belief that things had to change and the unequivocal commitment of both Directors that things were going to change. Each may have had his own reasons for pulling hard on their respective oars, but both were convinced that the alternative—the status quo—was not an option. In fact, the status quo would, in the end, fail the country and its citizens in time of greatest need. This is not to say that everyone in both agencies was immediately converted or that a residuum of insularity did not exist, and that total transparency was achieved. In fact, that was not the case— and as a recent preliminary report of the House Intelligence Committee investigating the tragedies of September 11 indicates, it is still not the case. But the situation is so much beyond where it was before. The momentum for change is not merely being maintained, but actually it is being acceler- ated by Director Tenet and the new head of the FBI, Director Robert Mueller. Before the Task Force can begin to think about the new cooperative law enforcement and intelli- gence environment, especially when focused on terrorism, it is important to understand where both came from. Each had a totally different mission, was grounded by a different culture, was cir- cumscribed by different laws and authorities and was constrained by different limitations. Within the past quarter-century, both communities have been the subjects of scathing congressional inves- tigations, which had uncovered numerous abuses of the rights and freedoms of Americans. As a result, laws were passed, guidelines were issued and policies were established, which defined the Markle Foundation 81 focus of the respective communities and may have inadvertently contributed to an environment in which each looked out for itself, and neither saw either a value or a need to develop a coordination mechanism in order to accomplish their respective work. THE LAW ENFORCEMENT ENVIRONMENT Jurisdiction When we think of “law enforcement” as a concept, we generally think of it in terms of the cop on the street, but obviously it is much broader than that. It not only includes the dozens of federal law enforcement agencies, but also the nearly 700,000 state and local police and peace officers through- out the country. Each of these entities is defined, in the first instance, by the scope of their respec- tive authority. In some cases, there may be an overlap; for instance, nearly all may have arrest authority for various types of illegal drug activity. In other cases, the FBI and the local police may have concurrent authority, such as in a bank robbery case, but the rule of thumb is “the FBI gets it unless they decline it.” Federal law enforcement authority is also defined by jurisdiction, which in turn is circumscribed by its mission, and in most cases arises out of it. For instance, the U.S. Customs Service is responsible for collecting tariffs and duties on goods entering the United States and for ensuring that illegal or prohibited products are excluded or seized. The normal day-to-day responsibility for carrying out this mission falls to the Customs Inspectors, but when illegality is uncovered or suspected, the sit- uation shifts from being a trade matter to becoming a criminal investigation, and Customs Special Agents assume responsibility for handling the case. The law enforcement investigative authority of that Customs Special Agent, however, is limited by the scope of the mission of the U.S. Customs Service. The Customs Special Agent, for instance, would have no authority to investigate a murder in a national park. Investigative authority for that crime would fall to the U.S. Park Police, which is the law enforcement component of the U.S. Park Service, wherein the same duality exists, as it does in most federal departments, which have regula- tory and enforcement components. The FBI has the broadest law enforcement jurisdiction of any federal law enforcement agency. Its 11,500 Special Agents have nationwide jurisdiction and authority to investigate any federal crime, which is not otherwise within the exclusive jurisdiction of another federal agency, e.g. the U.S. Customs Service (for importation crimes), or the U.S. Secret Service (for counterfeiting crimes). As a matter of reality, however, federal jurisdiction may lie with multiple agencies because the crimi- nal activity may involve the violations of multiple criminal laws. In those instances, one agency becomes the “lead agency” for the case, and the others provide assistance as needed for a successful investigation and subsequent prosecution.1 Because of the FBI’s predominance in federal criminal investigations, it will be the focus of this paper. Mission The basic criminal investigative mission of the FBI is to detect and investigate criminal activity, which violates one or more of the hundreds of federal criminal laws found in the United States 82 Markle Foundation Code, primarily in Title 18.2 The focus can be a specific crime, like a bank robbery, or a pattern of activity, such as an interstate car theft ring, or a criminal enterprise such as an organized crime group or a terrorist organization. The common thread is the underlying criminal activity that has been, is being or is about to be committed. Methodology The FBI’s focus is to investigate the criminal activity, to identify those involved, to collect evidence sufficient to prove the criminal activity beyond a reasonable doubt, and to assist the Department of Justice attorneys in the prosecution of those charged. The collection of evidence is the single most important function in this sequence for two reasons; it must be collected lawfully and its integrity (the so-called “chain of custody”) must be maintained. If either of these criteria is faulty, the evi- dence may be excluded from trial and the suspect may go free as a result.3 The nature of the evidence collected and the manner in which it is collected can be subject to a spectrum of legal requirements and constraints. Physical evidence in a public place is generally sub- ject only to chain of custody requirements so that it can be introduced into evidence. Physical evi- dence in a private place, such as a home, is protected by the Fourth Amendment to the Constitution. The FBI usually must get a search warrant from a federal magistrate to search the premises and seize the specific property, although over the years the Supreme Court has carved out a number of exceptions to the warrant requirement, e.g., for items “in plain view” and for “exigent circumstances.”4 Nor is the FBI allowed to search persons, whose privacy is also protected by the Fourth Amendment. However, the Supreme Court has held that a reasonable articulation of crim- inal activity would justify government action when the intrusion on individual privacy is minimal and outweighed by an important governmental interest.5 As with searches of property, the Supreme Court has also defined instances in which a warrantless search of a person is permitted, such as searches incident to arrest and searches at fixed checkpoints. Separate rules apply to interviews conducted by the FBI. If the person is merely a witness to a crime, the law does not require any specific procedure, but if the person is a material witness in an inves- tigation and there is a concern the person may flee the jurisdiction, the FBI can obtain a material witness warrant from a federal judge, and the individual can be detained. Similarly, the FBI is not required to give a person, who is merely fact witness or an eyewitness, any specific warnings. However, if the person is a suspect, he is entitled under the Fifth Amendment to the Constitution to the so-called Miranda warnings, and he cannot be forced to incriminate himself or to speak without a lawyer being present to advise him, if he so wishes. These rights, however, can be waived. Lastly, the FBI must respect privileged relationships, such as husband-wife, psychotherapist- patient, and attorney-client, and not attempt to interfere with them.