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M.EMORANDUM
TO:
FROM:
RE:
Mary .]0 White
United States Attorney
Southern District of New York
Louis Freeh
Director
Federal Bureau of Investigation '
Richard Scruggs
Couns el of Intelligence Policy and Review
Office of Intelligence Policy and Review
Jo Ann Harris
Assistant Attorney General
Criminal Division
Jamie S.
De:ucy
Instructions on separation of Certain Fore ign
Counterintelligence and Cri minal Investigati ops
The United States Att o rney ' s Of fice for the Southern
District of New York and the FBI have been conducting criminal
investigations of certain terrorist acts, including t he bombing
of the World Trade Center, and p o tential obstruction of the
indicted case of Vnited States v, Rahma n. et al, During the
course of those investigations sJgnificant counterintellJgence
information has developed related to the activities and
plans of 8gents of foreign powers operating in this country and
oversea". including previously unk.."1own connections bet. .... een
terrorist groups. information and evicence
relevant to possible future criminal prosecutions is still being
Classified by: CpunDel for
Office of and Reyiew. Depart men t of
Justice
Dec lassify on: OADR
Doclaaifiedby -;; .. .,,,
Counsel (or Intelligence Policy
OIPRAJSDOJ
Dolo: :[:110. zQ<'-t
J
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it has become overwhelmingly apparent that there is a
compe l ling need to further de velop and expand that foreign
counterintelligence information . the FBI has
initiated a separate full field counterintelligence
investigation.
Although the counterintellJge nce investigation "may reault in
the incidental collection of information relevant to poasible
future criminal prosecutions, the purpose of the counter-
intelligence investigation will be to collect foreign
counterintelligence information. Because the counterintelligence
investigation will involve the use of surveillance techniques
authorized under the Foreign Intelligence Act {FISA}
against targets that, in some instances, had Peen subject to
surveillance under Title III, and because it will involve some of
the same sources and targets as the criminal investigation, we
believe that it is prudent to establish a set of instructions
that will clearly separate the counterintelligence investjgation
from the more limited. but continued, criminal ' investigations.
These procedures, which go beyond what lS legally required, will
prevent Bny risk of creating an IJn .... arranted appearance that FISA
1S being used to avoid procedural safeguards which would apply in
a inv estigation.
(1 )
(2 )
(3 )
The focus o f the Forejgn Counterintelligen ce (FCt)
investjgation will be on preventing future terrorist act8
and obtaining foreign counter i ntelligence information about
the i ndividuals and groups e ngag i ng in, or preparing to
engage in. activitjes in the United StBtes and
abroad .
The criminal investigations will focus on the indicted cases
of ynited States y. 12uset, et al . and United States y.
Rahman. ct a1., and the potentia1 obstruction of the Rahman
case. The criminal also focus on the
conspiracy to bomb United State. airlines recently uncovered
in the and the bombing of a Phili ppine airliner.
No prQactive- investigative efforts or coverages
are presently contemplated in any ot the ongOing criminal
investigations , primarily focus on crimina1
conduct, the exception of the obstruct1on
investigation. 1 in the future, the criminal
investigations develop i nformdtion requiring proactive-
efforts or technical coverages, the United States Attorneys
Office (USAO) and the criminal agents will consult wieh the
Office of Intelligence Policy and Review (OIPR). and the Fer
before undertaking such efforts, absent
circumDtances, in order to determine the impact, if on
the Fer investigation.
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(4) The _ subjects, wh o aT!!! presently under pen register
s\lrveTllance in the criminal investigation, will be
jnvestigated as FeI subj ects under the FCI guide l ines
all available techniques. including FISA, without any
direction o r cont%ol by the U5AO, Sout h ern District of
New Yo rk or the Criminal Division, Department of Justice.
The pen registers will be discontinued before any
su=veillances are initiated.
(S) FBI
's from
B follows:
!or.,,,,,ntioned ed
cases and investigations, including the obstruction case
will be segregated into separate reports which will be
provided to the USAO, OlPR, and the Criminal Division. All
foreign counterintelligence information (including all
foreign counterintelligence relating to future terrorist
activi ties) be in c l aSSified reports be
provided to OlPR, but "'-"ill not be provided either to the
crimir.al agents, the USAO, or the Criminal Division, without
Federal Bureau of Headquarters ana OIPR
COncurrence. The FEI age n t responsible for handling the
___ "",ill rerr.ain involved in .the on - going trial of
y. Bahman, but ""'ill otherwise be assigned to
the fore)gn counterintelligence investigation and report to
foreign counterintelligence superVisors.
16) Fo=eign counterintelligence collected during the course of
the Fe] investigation will disseminated pursuant to FBI
guidelines and If, in the case of the Fel
investigation, facts or circumstances are developed that
reasor.ably indicate that A significant federal crime has
is being, or may be the rEI and OIPR are
eac h i ndependently respOnsible for the USAO and
the Criminal Diviolon. Notice shall include facto and
circurr.stances developed during the FCI that
supplied the indication of sjgnificant federal criminal
activjty. whether or not such activity relates to the
indicted cases or criminal investigations referred to in
subparagrapb (2) above. An United States
(AUSA) from the Southern District of York who has
of, but no active involvement in, the on-going
criminal continue to be aesigned to
work with OIPR and the FCI agents to review such foreign
intelligence information to ensure that evidence that might
exculpatory to any defendants currently under icdictment
is promptly considered f o r dissemination to criminal
inve st i gative the OSAO, and the criminal
-
Division . This AUSA will also serve to ensure, in
conjunction the FBI and OIPR. information which
reasonably indieates that a Blgniflcant federal crjme has
peen. is being, or may be is approprjately
disseminated to criminal investigative personnel, the USAO.
and the Criminal Division pursuant to the procedures aet
forth above. That AUSA will continue to be "walled off"
from participa tion in the on-going criminal investigations
and cases and will continue to abide by all FISA
dissemination provisions and guidelines.