FBI Told to Be More Open to Prosecutors

The Justice Department is revamping how it pursues national security investigations because of evidence that the FBI has been too slow to inform prosecutors about intelligence probes such as the one that centered on nuclear scientist Wen Ho Lee.

Seeking to plug holes in existing policy, Deputy Atty. Gen. Larry Thompson has told the FBI that he considers it “mandatory” for the bureau to notify criminal prosecutors when they find any evidence of criminal activity in national security investigations.

In a report released Wednesday, the General Accounting Office identified “serious problems” in the disclosure and coordination of such information, hindering the potential prosecution of spies, terrorists and others who threaten national security.

The report is the latest slap at the FBI after months of bad publicity over the Lee case, the Robert Philip Hanssen spy scandal and other blunders. Critics have charged that the FBI has developed a renegade mentality that has made it impervious to outsiders.

The findings reflect a long-simmering feud between FBI investigators and Justice Department lawyers over their priorities in national security cases.

Intelligence agents examining terrorist and espionage threats see their prime mission as protecting national security and avoiding disaster. But prosecutors want to ensure that there is enough usable evidence collected in the course of these investigations to convict the wrongdoers. Because of concerns about secrecy and evidence-gathering techniques, those aims can often conflict, officials familiar with the process say.

The report by the GAO, which is the investigative arm of Congress, cited poor coordination in two high-profile investigations: the Lee case, in which the FBI has been accused of botching efforts to determine the source of possible security breaches at nuclear laboratories; and the FBI’s investigation into allegations that the Chinese sought to buy influence in the 1996 presidential election by bankrolling illegal campaign contributions.

While the GAO report did not discuss specific lapses in these two cases, it found that, in general, the FBI has not adequately kept prosecutors at the Justice Department informed about undercover operations, interviews or even the existence of such national security cases. The report concludes that reforms instituted by Atty. Gen. Janet Reno in 1995 to improve coordination had actually made things worse.

The FBI, working with Justice Department lawyers outside the criminal division, has been reluctant to turn over intelligence information to prosecutors for fear that the courts would find such coordination to be improper under a 1978 law restricting the way foreign intelligence investigations can be conducted, the report concludes. The result, the GAO said, was an “overly cautious” reading of the law.

Sen. Fred Thompson (R-Tenn.), who requested the study, said that unless the FBI begins regularly sharing information with prosecutors, “opportunities may be lost to preserve and enhance the government’s option of bringing criminal prosecutions against spies, terrorists or other criminals.”

The GAO findings spurred Deputy Atty. Gen. Thompson to institute expanded measures aimed at getting the FBI and Justice Department prosecutors to do a better job of sharing information.

In a letter sent to the FBI last week, Thompson said that the bureau must provide criminal prosecutors with monthly briefings on their intelligence-related investigations. And unless he or the attorney general authorizes an exemption, the FBI is required to inform prosecutors “without delay” of any intelligence investigations in which there is a “reasonable indication” a felony occurred, Thompson said.

Even before Thompson’s directive, the FBI had begun instituting some changes in the way it shares information with the Justice Department as a result of the fallout over the Lee case. FBI spokesman John Collingwood said Wednesday that procedural changes “were needed to bring further clarity in a sensitive area of operations.”

John L. Martin, who for years headed the Justice Department unit that prosecutes espionage crimes, said the expanded regulations indicate that Atty. Gen. John Ashcroft is seeking to assert greater authority over the FBI, even before new director Robert Mueller takes over in the next few weeks.

“This is a very significant move,” Martin said. “It goes very far in preserving prosecutors’ options and in correcting a lot of the deficiencies we’ve seen before this.”