THE BROOKINGS INSTITUTION

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June 22, 2004

The Honorable Thomas H. Kean, Chair

The Honorable Lee H. Hamilton, Vice Chair
The National Commission on Terrorist Attacks Upon the United States
2100 K Street, NW Suite 300
Washington, DC 20427

Gentlemen:

I believe there has been some misunderstanding regarding the August 6, 2001
memorandum I wrote concerning intelligence sharing.

To be sure, the August 6 memorandum, which was written just three months after I took
office, noted that Attorney General Reno's 1995 guidelines and the 2000 interim measures,
proposed by Randy Bellows in his report to the Attorney General on the problems associated
with the Wen Ho Lee prosecution, remained in effect. However the memorandum did more. It
clearly and expressly established new Department of Justice policies and procedures regarding
intelligence sharing. They were designed to overcome the so-called "wall" which had the effect
of sharply restricting the flow of information between law enforcement and intelligence officials.

The genesis of the wall is the view, apparently derived from federal court decisions, that
the Foreign Intelligence Surveillance Act ("FIS A") authorities could only be used when the
"primary purpose" of an investigation was foreign intelligence. According to the FISA review
court, the Department of Justice began to apply the primary purpose test sometime in the 1980s,
though "the exact moment is shrouded in historical mist." The 1995 guidelines certainly
codified the operation of the wall and as Randy Bellows noted in his report, which was requested
by Attorney General Reno, they resulted in a culture that limited the sharing of information
between intelligence and law enforcement officials and "effectively excluded" the Criminal
Division from any meaningful role in intelligence investigations.

The memorandum was not written to simply reaffirm the guidelines and the existing way
of doing business. Specifically, the memorandum required the FBI to notify the Criminal
Divisions immediately when "facts or circumstances [were] developed" in an intelligence
investigation reasonably indicating that any federal felony was being or going to be committed.
Previously, such notification had been considered discretionary in practice.

In addition, previous policy only contemplated disclosure to the Criminal Division when
such evidence involved a "significant federal crime," which in practice meant that sharing was
limited. The memorandum clarified this requirement and made clear that a "significant federal
crime" included "any federal felony." To facilitate intelligence sharing, the memorandum
directed the FBI to provide monthly briefings to the Criminal Division concerning cases where
the disclosure of information was required.

As the 9/11 Commission continues its important work, I believe it is critical that the
Commissioners understand the deleterious nature of the wall and the difficulties, prior to
September 11, in dismantling it. In my testimony before the 9/11 Commission, I discussed these
efforts to improve intelligence sharing and lowering the wall. Today, the wall is down. I also
noted in my testimony the importance of making certain that relevant provisions of the USA
PATRIOT ACT are renewed so that the wall can never be rebuilt.

I thank you in advance for considering these points.

Larry D. \Thompson
Senior Fellow
The Brookings Institution