8/12/2019 Instructions on Separation of Certain Foreign Counterintelligence, and Criminal Investigations

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Office of the Attorney GeneralWashington DC 20530

MEMORANDUMTO: Mary Jo WhiteUnited States AttorneySouthern District of New York

Louis FreehDirectorFederal Bureau of InvestigationRichard ScruggsCounsel of Intelligence Policy and ReviewOffice of Intelligence Policy and ReviewJo Ann KarrisAssistant Attorney GeneralCriminal Division

FROM: Jamie S. GorelickDeputy Attorney Genera1RE: Instructions on Separation of Certain Foreign

Counterintelligence, and Criminal InvestigationsThe United States Attorney's Office for the SouthernDistrict of New York and the FBI have been conducting criminal

investigations of certain terrorist acts, including the bombingof the World Trade Center, and potential obstruction of theindicted case of United States v. Rahman, et al. During thecourse of those investigations significant counterintelligenceinformation has been developed related to the activities andplans of agents of foreign powers operating in this country andoverseas, including previously unknown connections betweenseparate terrorist groups. Although information and evidencerelevant to possible future criminal prosecutions is still beingSECRET

Classified by: Deputy Counsel for. Intelligence Operations,Office of Intelligence Policy and Review. Department ofJusticeDeclassify on: OADRDeclassified by Jam es A. Baker

Counsel for Intelligence PolicyOIPR USDOJ

8/12/2019 Instructions on Separation of Certain Foreign Counterintelligence, and Criminal Investigations

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- 2 -sought, it has become overwhelmingly apparent that there is acompelling need to further develop and expand that fore igncounterintelligence information. Consequently, the FBI hasinitiated a separate full field counterintelligenceinvestigation.

Altho ugh the counterintellig ence investigation may result inthe incidental collection of information relevant to possiblefuture criminal pro sec uti ons , the prim ary purpose of the counter-intelligence investigation will be to collect foreigncounterintelligence information. Because the counteri ntellige nceinvestigation will involve the use of surveillance techniquesauthorized under the Foreign Intelligence Surveillance Ace (FISA)against targets that, in some instances, had been subject tosurveillance under Title II I, and because it will invo lve some ofthe same sources and targets as the criminal investigation, webelieve that it is prudent to establish a set of inst ruction sthat will clearly separate the counterintelligence investig ationfrom the more limited, but continued, criminal investigations.These proce dure s, whi ch go beyond what is legally requ ired , willprevent any risk of creating an unwarranted appearance that FISAis being used to avoid procedural safeguards which would apply ina criminal investigation.(1) The focus of the Foreign Counterintelligence (FCI)investigation wil l be on preventing future terrorist actsand obtaining foreign counterintelligence information aboutthe individuals and groups engaging in, or preparing toengage in, terrorist activities in the United states andabroad.(2) The criminal investigatio ns will focus on the indicted casesof United States v. Yousef. et al. and United States v.Rahm an, et al. , and the potential obstruction of the Rahman

case. The criminal investigations will also focus on theconspiracy to bo mb United States airlines recently uncoveredin the Philippines and the bombing of a Philippine airliner.(3) No pro-active investigative efforts or technical coveragesare pres ently contemplated in any of the ongoing criminalinvestigat ions, which primarily focus on past crimin alconduct, with the exception of the obstructioninve stigation. If in the future, the criminalinvestigations develop information requiring pro-active efforts or technical coverages, the United States Atto rneysOffice (USAO) and the criminal agents will consult with theOffice of Intelligence Policy and Review (OIPR), and the FCIagents before undertak ing such eff orts, absent exigentcircums tanc es, in order to determine the impact, if any, onthe FCI investigation.

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- 3 -(4) The subjects, who are presently under pen registersurveillance in the criminal Investigation, will be

investigated as FCI subjects under the FCI guidelines usingall available techniques, including FISA, without anydirection or control by the USAO, Southern District ofNew York or the Criminal Division, Department of Justice.The current pen registers will be discontinued before anyFISA-authorized surveillances are initiated.(5) FBImemoranda and investigative reports, including 302's from will be prepared as follows:all information relating to the aforementioned indictedcases and investigations, including the obstruction casewill be segregated into separate reports which will beprovided to the USAO, OIPR, and the Criminal Division. Allforeign counterintellicence information (including allforeign counterintelligence relating to future terroristactivities) will be in classified reports which will beprovided to OIPR, but will not be provided either to thecriminal agents, the USAO, or the Criminal Division, withoutFederal Bureau of Investigation Headquarters and OIPRconcurrence. The FBI agent responsible for handling the will remain involved in the on-going trial ofUnited States v.Rahman, but will otherwise be assigned tothe foreign counterintelligence investigation and report toforeign counterintelligence supervisors.

(6) Foreign counterintelligence collected during the course ofthe FCI investigation will be disseminated pursuant to FBIguidelines and FISA. If, in the case of the FCIinvestigation, facts or circumstances are developed thatreasonably indicate that a significant federal crime hasbeen, is being, or may be committed, the FBI and OIPR areeach independently responsible for notifying the USAO andthe Criminal Division. Notice shall include the facts andcircumstances developed during the PCI investigation thatsupplied the indication of significant federal criminalactivity, whether or not such activity relates to theindicted cases or criminal investigations referred to insubparagraph (2) above. An Assistant United States Attorney(AUSA) from the Southern District of New York who hasknowledge of, but no active involvement in, the on-goingcriminal investigations, will continue to be assigned towork with OIPR and the FCI agents to review such foreignintelligence information to ensure that evidence that mightbe exculpatory to any defendants currently under indictmentis promptly considered for dissemination to criminalinvestigative personnel, the USAO, and the Criminal

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- 4 -Division. This AUSA will also serve to ensure, inconjunction with the FBI and OIPR, that information whichreasonably indicates that a significant federal crime hasbeen,is being, or may be committed is appropriatelydisseminated to criminal investigative personnel, the USAO,and the Criminal Division pursuant to the procedures setforth above. That AUSA will continue to be walled o f f from participation in the on-going criminal investigationsand cases and will continue to abide by all FISAdissemination provisions and guidelines.