Cops and Spies

or 40 years in the United States, cops were cops and spies were spies. Law enforcement and intelligence activities were separate-in theory, if not always in practice. The FBI was supposed to stick to fighting domestic crime, and the CIA and defense intelligence agencies were supposed to restrict their snooping to foreign countries. Revelations of the CIA's forays into domestic politics and secret FBI intelligence operations only reinforced the prevailing belief in separating the two functions.

But these days, organized crime, drug trafficking, terrorism and weapons of mass destruction have supplanted Red hordes pouring through the Fulda Gap as American policy-makers' national security nightmare. Executive branch officials have begun to reconsider the traditional firewall separating the intelligence and law enforcement communities.

In the last three years, Justice Department and CIA leaders have had extensive and systematic contact with each other. The 1947 National Security Act may have barred the new CIA from assuming any law enforcement or police powers, but in the 1990s, separation has been replaced by a new buzzword: synergy.

Attacking "Transnational" Threats

Of course, federal law enforcement agencies and the CIA have always had some contact. Starting in 1992, every U.S. attorney has been asked to designate a national security coordinator to help Justice Department officials coordinate their work with intelligence agencies. The CIA has long provided Justice with leads on international criminal enterprises. However, the scope of today's effort to coordinate activities is unprecedented. In testimony before the Senate Select Intelligence Committee last October, CIA General Counsel Jeffrey H. Smith made the goal clear when he called for "effective, extensive and routine cooperation between intelligence and law enforcement." That vision entails a transformation of the national security establishment.

The refashioning of the law enforcement-intelligence relationship has come in response to the growth since the late 1970s in what policy-makers call "transnational" threats: drug trafficking, terrorism, international organized crime, weapons proliferation, illicit trade practices, illegal mass migration and environmental crime. These issues traditionally had been ignored by the intelligence community on the grounds that they were domestic law enforcement concerns. Both the CIA and the National Security Agency asserted that the 1947 National Security Act prohibited them from gathering intelligence for purely law enforcement purposes.

But in recent years, issues such as organized crime have come to be seen as national security threats and thus fit for intelligence community attention. Last July, President Clinton reinforced this view with a directive laying out his priorities for the intelligence community. While maintaining traditional intelligence agency priorities, the directive also ordered the agencies to focus on transnational threats.

Law enforcement and intelligence agencies are struggling to decide who should deal with these new kinds of dangers and how they should be handled. "Who is responsible for following the Hezbollah threat to a domestic target in the United States and how do we coordinate that effort?" asks Smith. "That's going to require an awful lot of hard work to make certain that we do not have two conflicting efforts, that we have complementary efforts."

Justice Goes International

This effort to create a cooperative relationship between the Justice Department, in particular the FBI, and the intelligence community belatedly acknowledges the increasingly important international role Justice has assumed over the last decade.

Although the Justice Department's Drug Enforcement Administration has had a role outside the country's borders since it was created in 1973, Justice did not debut on the international scene until the mid-1980s. Congress, alarmed by an upsurge in terrorism, passed several laws expanding Justice's jurisdiction.

Deputy Attorney General Jamie S. Gorelick describes the Justice Department's international operations as a natural extension of its work at home. "All we are doing is following cases here in the United States to their origins abroad," says Gorelick. "So we're performing a very traditional law enforcement function, it just takes us into foreign countries."

Gorelick's description underplays the true scope and novelty of Justice's international efforts. Agencies like DEA don't limit themselves merely to following U.S. cases to their origins abroad, but work to attack international criminal syndicates before their wares reach U.S. shores. DEA currently has 73 offices abroad, primarily in U.S. embassies and consulates. The FBI also has moved aggressively abroad, often seeking to take over long-standing CIA liaisons with foreign security services. In 1988, international law enforcement efforts led to the indictment of Panamanian strongman Manuel Noriega, marking the first time a foreign head of state had been indicted on criminal charges.

By the late 1980s, Justice and the intelligence agencies were often tracking the same targets. "We suddenly found ourselves overseas and bumping into one another," says Elizabeth Rindskopf, general counsel of the National Security Agency from 1984 to 1989 and CIA general counsel from 1990 to 1995. "Suddenly the playing field got more crowded." But despite this growing overlap, the two communities didn't systematically organize their relationship.

It didn't take long for problems to arise. Investigations into the collapse of the Bank of Credit and Commerce International (BCCI) from 1990 to 1991 revealed the CIA had failed to pass along evidence of corruption at the bank to law enforcement agencies. But the real catalyst for the change in the relationship between the Justice Department and intelligence agencies was the scandal involving the Bush Administration and the Italian Banca Nazionale del Lavoro (BNL).

The BNL affair, also known as "Iraqgate," centered on charges that Justice and the CIA covered up the funneling of U.S. money to the Iraqi military through the Italian Banca Nazionale del Lavoro. Despite the furor raised by journalists and Members of Congress, investigations by the Senate Select Intelligence Committee and internal Justice Department and CIA probes failed to uncover any criminal wrongdoing. What they did uncover, however, was a picture of bureaucratic bumbling and stonewalling. One part of the CIA, the general counsel's office, supported the prosecution (which argued that only the BNL Atlanta branch had been involved) while the agency's congressional affairs office gave Congress seemingly contradictory information. The Senate Select Intelligence Committee investigation also revealed that "intelligence reporting which is routinely received by the Department of Justice often is never identified as relating to ongoing investigations and is never routed to those involved in such investigations." The Committee concluded the affair showed "the fundamental policy governing the relationship between law enforcement and intelligence needs to be addressed by the attorney general and the [CIA director], in conjunction with the congressional oversight committees."

Seeking Joint Solutions

In the aftermath of the BNL affair, then-CIA director James Woolsey and acting Attorney General Stuart Gerson tapped CIA general counsel Elizabeth Rindskopf and Deputy Assistant Attorney General Mark Richard to examine the problems that the BNL investigation highlighted. Their report recommended better training, the establishment of liaison offices, and improved document storage and retrieval systems. Along with President Clinton's directive calling on the intelligence community to focus on transnational threats, the BNL report set the agenda for action, though Gorelick notes it was "more helpful in identifying issues than it was in identifying solutions." Clinton left to the agencies the job of laying out ground rules for cooperation.

The Justice Department and CIA have been quick to take up the challenge-and to rebuff outside interference. When George Tenet, National Security Council senior director for intelligence programs, floated a proposal to draft a new charter for the intelligence community, Gorelick politely asked the NSC to back off. It did. (Last June Tenet was named deputy CIA director.)

Instead, most of the work on revamping law enforcement-intelligence relations has been undertaken by the Joint Intelligence Community Law Enforcement Working Group (JICLE, pronounced "jickle"). JICLE was formed last February to address some two dozen problems identified by the Rindskopf-Richard report. The working group is co-chaired by the Justice Department's counsel for intelligence policy, Jim McAdams, and by a member of the intelligence community management staff, Michael Smith, and includes senior staff representatives of every law enforcement and intelligence agency.

Since February 1995, the group has met every week for four or five hours developing solutions to the problems in the report. Once it has a recommendation in hand, the group reports to the intelligence-community law enforcement policy board, another new entity that appeared in March 1995, and is chaired by the deputy attorney general and deputy CIA director. This board, which meets quarterly, has the final authority to approve JICLE's suggestions.

Though the effort has involved two very large agencies, it has been conducted almost completely in private. In an interview late last year with Government Executive, Gorelick said the working group had virtually completed its most difficult work. "I think at the end of the day-and I don't think that day is very far off-we will have addressed all the hard issues," says Gorelick. (JICLE will continue working into the near future; it's eventual fate is uncertain.) But the departments have not made any of JICLE's recommendations public. "I'm much more interested in getting the results out [into operation] than I am in a grand unveiling," says Gorelick. However, Gorelick and Tenet have taken pains ensure that the House and Senate Intelligence Committees have been kept well-informed on the group's work.

Although JICLE has worked behind closed doors, the web of newly created contacts between the Justice Department and intelligence community hints at the working group's recommendations. Every month, Attorney General Janet Reno and Deputy Intelligence Chief John Deutch meet to discuss intelligence-law enforcement issues. Every two weeks Deputy Attorney General Gorelick and Deputy DCI Tenet meet to sort out particularly thorny problems.

"We have an agenda of issues that are in dispute or in discussion," says CIA general counsel Jeffrey H. Smith, who also participates in these meetings. "The issue now is preparing to deal with possible terrorist threats to the Atlanta Olympics. Sometimes we discuss specific cases, sometimes we discuss procedures or policies."

Last December, CIA and FBI officials started holding biweekly meetings to discuss many of the same issues. "We're going to start working on some specific issues and we're going to try and break through some of the 'theology' that has gotten in the way of more effective cooperation," says Smith.

Coordination hasn't been limited to the higher echelons. The FBI and CIA are increasingly swapping lower-level personnel. FBI agents work in the CIA's centers for international organized crime and narcotics, weapons nonproliferation, international terrorism and counterterrorism. And although the CIA still refuses to involve itself directly in law enforcement, it's increasingly common for CIA employees to be detailed to work at law enforcement agencies.

Cooperation In Action

Although Justice Department and CIA officials declined to discuss specific cases, the advocates of greater cooperation already boast of several successes. Exhibit No. 1 is the war on the Cali drug cartel in Colombia, which last summer resulted in the arrest of six of the top seven cartel leaders and major disruptions to the cartel's cocaine distribution network.

"We've marshaled all our resources and won a major battle against the Cali cartel," says Roy Godson, a Georgetown University professor who heads the Consortium for the Study of Intelligence. In testimony before the Senate Select Intelligence Committee, Smith also praised the CIA Office of Technology's work with the Immigration and Naturalization Service with "face trace" technology. This innovation, already in use by the Border Patrol in El Paso, Texas, allows the INS to identify individuals by analyzing their facial structures and comparing them to outstanding warrants. It's an example of the kind of spy technology that law enforcement agencies are eager to access.

However, cooperation has not yet completely replaced competition in the agencies' dealings with one another. Both the CIA and FBI have jockeyed hard to lead counterintelligence and counterterrorism efforts. In the wake of the Aldrich Ames spy scandal, an FBI agent now runs the espionage section of the CIA's counterintelligence center. The CIA, on the other hand, staked out counterterrorism early, establishing a counterterrorism center. Now the FBI is proposing its own counterterrorism office.

The intelligence community also is pushing to integrate the Justice Department, in particular the FBI, into the national security establishment. Ambassadors, who once sought to control rogue CIA station chiefs, are now working with them to try to control FBI legal attaches, who are often unwilling to recognize limits on their jurisdiction.

The FBI needs to "operate as part of the team," says former deputy CIA director Adm. William O. Studeman. "The FBI shouldn't declare eminent domain and have the others step aside. It's better to coordinate." Studeman says negotiations between the State Department and the Justice Department have been among the toughest interagency talks.

Prospects for Success

Not everyone has jumped on the cooperation bandwagon. In an article last year in Foreign Policy magazine, Stewart Baker, general counsel of the National Security Agency during the Bush Administration, criticized efforts at greater coordination. "In an effort to give law enforcement more information that it does not want very badly and does not use very well, government officials may be about to stretch the rules that preserve civil liberties, flirt with harsh new judicial limits on how intelligence is gathered, impose unworkable new search and record-keeping duties on intelligence agencies, spread the knowledge of intelligence sources and methods much more widely, routinize conflict between prosecutors seeking convictions and agents keeping secrets, and encourage defense lawyers to exploit those problems to the hilt in the hope of forcing the government to abandon the prosecution of their client," Baker wrote.

Baker's criticisms have found little resonance in the intelligence community. "There are downsides and some inherent dangers [with increased cooperation] but to me the balance is overwhelmingly on the other side," says Godson.

Administration officials insist cooperation won't muddy the waters between law enforcement and intelligence activities. "The key is to maintain the important distinctions between the two communities, to ensure and assure the American people that we are not bringing the intelligence community into law enforcement per se because the intelligence community is not bound by the same rules we are," says Gorelick. "At the same time, if there is extant information already gathered for intelligence purposes there needs to be a way for accessing that and using that."

The relationship between top officials in the intelligence community and law enforcement communities thus far seems friendly. "It's a given that we are going to be overlapping with each other and we have a mutual interest in having that fact addressed in an adult manner," says Gorelick. "There is a great deal to be gained from the fact that personal relationships at the leadership level are excellent. . . . That has made the process, which I think could have been acrimonious-and we saw some of that in the late '80s and early '90s-much less problematic. We have dealt with the basic issues by getting down to the real specifics."

However, the future is still unclear. The shrinking of the fiscal pie could yet result in a feeding frenzy. "Allocation of resources and effort is a very difficult thing to within an agency and it's even more difficult to do when you reach across several agencies pursuing the same things," says Smith.

The vigorous efforts by the Justice Department and intelligence community have almost certainly bought those agencies time to try to work things out on their own. However, doubts about whether they will succeed persist. Not since 1981 has a president issued an executive order to reorganize the intelligence establishment, and some think it's time for change.

"Much of what is being done can be done by management," says Warren Rudman, vice chairman of the Commission on the Roles and Capabilities of the U.S. Intelligence Community and a former Senator. "Much of what has to be done cannot."