PROTECTING AMERICA FROM TERRORIST ATTACK
Director Mueller Testifies on "The Wall" and Patriot Act Provisions

05/20/04

On 5/20, Director Mueller updated the Senate Judiciary Committee on FBI progress in counterterrorism and intelligence matters.

What did he say was critical in defeating terrorist threats? Four things:
•   The continuous flow of intelligence on terrorists.
•   Global partnerships that yield knowledge and expertise that benefit all nations.
•   Sophisticated technology to manage the global pot of collected information.
•   All of these things plus working within the framework of the Constitution to protect civil liberties.

What about the U.S.A. Patriot Act? "Many of our counterterrorism successes are the direct results of provisions included in the Act, a number of which are scheduled to 'sunset' at the end of next year," he said. "I strongly believe it is vital to our national security to keep each of these provisions intact. Without them, the FBI could be forced back into pre-September 11 practices, attempting to fight the war on terrorism with one hand tied behind our backs."

These provisions include:

• Tearing down "The Wall" (more on that below)
• Permitting federal judges, when presented with evidence, to authorize searches of property in other judicial districts (because terrorists operate in extended networks) and to authorize searches of a subject's email, even if his or her ISP is located in another judicial district.
• Clarifying the FBI's ability to use court-ordered pen registers and trap-and-trace devices to track Internet communications...and to seek court-approved roving wiretaps in an age when terrorists are on the move, conducting business on multiple mobile phones.
• Criminalizing activities that provide "material support" to terrorists. (See our story on FBI Use of the Material Support Statute.)

What about "The Wall"? So many people wrote and called after the Director's testimony before the 9-11 Commission last month, saying they understood in principle how the FBI could, by law and Executive Order, open both intelligence and criminal cases on a suspected terrorist, but they couldn't really understand how "The Wall" hampered those investigations. So here is a pretty concrete description of "The Wall" in action, elaborated in the full testimony:

Before 9-11-01, Special Agent Smith, assigned to the intelligence side of a terrorism case (designed to detect and prevent future acts), was forbidden to discuss the case with Special Agent Jones, right across the hall, who was working the criminal side of the same case (focused on violations of the criminal code). For example, if SA Jones discovered crucial intelligence through her court-ordered criminal wiretap, she was not allowed to share it with SA Smith--she could not even suggest that SA Smith might want to seek a wiretap to collect the information for himself. For example, if SA Jones served a grand jury subpoena to a suspect's bank, she could not tell SA Smith what she found in the bank records. Instead, SA Smith would have to issue a National Security Letter to get that same information.

Interested in more information about these issues; about the assistance rendered to us by the Muslim, Iraqi, and Arab-American communities in the war on terror; about FBI Counterterrorism and Intelligence Program Reforms; and in Information Technology Improvements? We encourage you to read the full testimony.