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Intelligence and Law Enforcement:Countering Transnational Threats to the U.S.

Updated January 16, 2001

Richard A. Best, Jr.Specialist in National Defense

Foreign Affairs, Defense, and Trade Division

Intelligence and Law Enforcement:Countering Transnational Threats to the U.S.

Summary

In the post-Cold War world, terrorism and narcotics trafficking, along withproliferation of materials related to weapons of mass destruction, are perceived bothas criminal matters and as threats to the nation’s security. In some cases, human rightsabuses abroad are also perceived as a challenge to the security of this country. Oftencollectively termed transnational threats, these issues have become the concerns oflaw enforcement agencies as well as the U.S. Intelligence Community. Two foreignbanking scandals in the late 1980s involving U.S. persons led to efforts to ensure thatinformation in the possession of intelligence agencies would, in the future, be madeavailable to law enforcement officials. At the same time, the Federal Bureau ofInvestigation was assigning additional agents to a series of newly created officesworldwide.

This report looks at the separate roles and missions and distinct identities ofintelligence and law enforcement agencies. Coordinating their efforts has raisedsignificant legal and administrative difficulties that have been only partially overcomedespite the creation of elaborate coordinative mechanisms under the oversight of theNational Security Council. Some observers also have expressed concerns about thegreater use of information derived from intelligence sources in judicial proceedings,fearing that it may lead to overreliance on surreptitious means of informationcollection and, thus, undermine civil liberties. Other observers have cautioned thatredirecting intelligence assets to collect information for legal cases may reducesupport available to military commanders and policymakers. Some others believethat there may also be an overemphasis on law enforcement in dealing with problemsarising abroad. The report notes the employment of covert actions by intelligenceagencies in law enforcement efforts.

This report also addresses congressional oversight of the law enforcement-intelligence relationship that is spread among a number of House and Senatecommittees, each of which has only partial jurisdiction. Some observers believe thatthere should be further efforts to base the evolving relationship in statutory law. Theyhave argued that closer attention should be given to coordinating the emergingrelationship between intelligence and law enforcement efforts while practices aremalleable rather than to wait until bureaucratic rigidities set in or unfortunateprecedents are established during crises.

Even with conscientious efforts at coordination, others have noted thatfundamental differences remain between matters of law and of national interest in aworld of sovereign nation states. Enforcement of international law and theextraterritorial application of U.S. law can be vigorously and, at times, effectivelyresisted by other countries. The necessity to adapt U.S. responses to transnationalthreats to specific situations can also undermine respect for law by makingenforcement appear inequitable.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Potential Congressional Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Illegal Activities and Transnational Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Intelligence Agencies Support Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . 8

Law Enforcement Agencies Acquire International Missions . . . . . . . . . . . . . . . 12

Managing the Intelligence-Law Enforcement Relationship . . . . . . . . . . . . . . . . 13

Beyond Information Exchanges:Using Intelligence Agencies in Enforcing Laws . . . . . . . . . . . . . . . . . . . . 23

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

1 “Transnational threats are defined in statute as: “(A) Any transnational activity (includinginternational terrorism, narcotics trafficking, the proliferation of weapons of mass destructionand the delivery systems for such weapons, and organized crime) that threatens the nationalsecurity of the United States. (B) Any individual or group that engages in an activity referredto in paragraph (A).” 50 USC 402(i)(5). This Report will primarily focus on narcoticstrafficking and terrorism—which may include proliferation issues—that have required themost extensive collaboration between law enforcement and intelligence agencies. 2 Testimony of Director of Central Intelligence George J. Tenet before the Senate SelectCommittee on Intelligence, U.S. Congress, 105th Congress, 2nd session, Select Committee onIntelligence, Current and Projected National Security Threats to the United States, Hearing,S. Hrg. 105-587, January 28. 1998, p. 13. Tenet’s 1999 testimony began with analyzes oftransnational threats from proliferation, terrorism, international narcotics and organized crime.Statement of the Director of Central Intelligence George J. Tenet as Prepared for Deliverybefore the Senate Armed Services Committee Hearing on Current and Projected NationalSecurity Threats, February 2, 1999. Similar concerns have influenced the British Governmentto direct the Secret Intelligence Service (also known as MI6) to become involved in thecounternarcotics efforts; see Rachel Sylvester and Michael Smith, “Cook Redirects MI6 toForefront of the War on Drugs,” Electronic Telegraph, August 29, 1997.3 Zoë Baird, a member of the President’s Foreign Intelligence Advisory Board, noted in 1995that,”Polls show that only about 3% of Americans feel foreign policy is important, but 95%or more consider crime a critical national issue.” “When Crime and Foreign Policy Meet,”Wall Street Journal, October 24, 1995, p. A22.

Intelligence and Law Enforcement:Countering Transnational Threats to the U.S.

Introduction

The collapse of the Soviet Union and the Warsaw Pact by 1991 significantlyaltered the international environment. Transnational issues,1 such as narcotics,terrorism, money laundering, economic espionage, and shipments of materials forweapons of mass destruction (WMD) have risen in importance, in some casesbecoming more urgent than traditional geopolitical concerns. The Director of CentralIntelligence (DCI), George Tenet, in his annual assessment of national securitychallenges, has placed strong emphasis on transnational issues that “hold grave threatsfor the United States.”2 Observers also have noted that, among the American public,there is greater concern about international crime, especially to the extent that it canreach into the country, than about many other aspects of the current internationalenvironment.3

Although the responsibilities of U.S. courts and law enforcement agencies havealways included activities that occur outside U.S. territorial borders, e.g.smuggling,piracy, etc., such activities have not usually been considered in the same category as

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4 Jonathan M. Fredman, “Intelligence Agencies, Law Enforcement, and the ProsecutionTeam,” Yale Law and Policy Review, 1998, Vol. 16, No. 2, pp. 336-337.

military threats posed by foreign countries that are the responsibilities of the State andDefense Departments and the Intelligence Community. Changed international realitieshave, however, led to a more expansive international role for law enforcementagencies, combined with the employment of intelligence agencies—and theoperational arms of the State and Defense Departments—in efforts to counter them.Thus, there has arisen, on one hand, the phenomenon of agencies charged withdomestic law enforcement acquiring extensive overseas missions and, on the other,intelligence agencies focusing on illegal activities in foreign countries.

The evolution and intermingling of law enforcement and intelligence efforts haveserved to blur distinctions between law and security policy that, in statutory principleand in administrative practice, have been kept separate and distinct. The FederalBureau of Investigation (FBI), the nation’s principal law enforcement agency, hasattained a much more prominent international role in recent years, assigning increasednumbers of agents overseas to expand contacts with foreign governments and toacquire information about potential transnational threats. The Central IntelligenceAgency (CIA) and other intelligence agencies are devoting greatly increased resourcesto counterterrorism and counternarcotics activities. As a CIA official has noted:

Today, there is no clear primacy for either the law enforcement orintelligence communities in the realms of international terrorism, narcotics,proliferation (as well as, in some cases, counterintelligence). Still, the lawenforcement and intelligence communities remain designed and operated infundamentally dissimilar manners, retaining different legal authorities,internal modes of organization, and governing paradigms4.

There appear, in addition, to be few well-understood criteria for choosing themost appropriate approach in a given situation, and also a sense among some policyanalysts that ambitious law enforcement agency heads have not fully appreciated thecomplexities of these threats in an international environment within which the UnitedStates must protect its national security interests.

Beyond addressing the need for closer cooperation among law enforcement andintelligence agencies, however, lay larger and more complicated issues that somebelieve have not yet been fully considered. Many observers continue to expressconcerns about the employment of intelligence agencies, using any number ofsurreptitious collection techniques, in laying the groundwork for criminal proceedings. Such concerns are deeper and more serious than the diversion of finite assets frommore traditional responsibilities.

On the other hand, the decision to consider certain significant threats fromoutside U.S. borders as law enforcement matters presumes that adequate legalchannels, either in international law or in U.S. law, exist within which such concernscan be resolved. This presumption is, however, seriously questioned by those whobelieve that international law remains in large measure ill-developed, and that theextraterritorial reach of domestic statutes is likely to remain distinctly limited. The

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5 Commencement Address at the United States Air Force Academy in Colorado Springs, June2, 1999, Weekly Compilation of Presidential Documents, June 7, 1999, p. 1018.

use of law enforcement mechanisms against international threats may also imply thatnon-legal instruments, such as military force or a covert action by an intelligenceagency, are less important and can be deemphasized. Questioning this assumption,observers argue that some important international outcomes are utterly unobtainablethrough judicial processes.

In 1999, military force has been deployed in support of international lawenforcement. U.S. armed forces undertook air strikes as part of the North AtlanticTreaty Organization on Serbian forces and other targets not only to halt thedestabilization of other Balkan countries by Serbian attacks on Kosovar Albanians,but also to stop violations of international law, crimes against humanity occurring aspart of a policy of “ethnic cleansing.” According to President Clinton, the UnitedStates was involved in Operation Allied Force because we have “a moralresponsibility to oppose crimes against humanity and mass ethnic and religious killingand cleansing where we can.”5

There is little question that the lines currently dividing law enforcement andsecurity issues are blurred. In several instances, different approaches to transnationalissues appear to some observers to have been confused and counterproductive.Especially worrisome in this regard was the FBI’s withholding information regardingillegal Chinese political contributions from the Secretary of State prior to an officialvisit to Beijing in 1997, and sharp divisions over U.S. support for certain dissidentIraqi groups among law enforcement and intelligence agencies that may havecontributed to their violent suppression by forces loyal to Saddam Hussein.

Potential Congressional Concerns

Given the clear possibility that the international role of law enforcementagencies will continue to grow, observers believe that greater consideration shouldbe given to making less ambiguous distinctions between law enforcement and securitypolicy and to the relationships between law enforcement and intelligence agencies.As one journalistic account of the evolving relationship between the two communitiesconcluded:

[Coordination] sounds simple in concept. In reality, it is likely to provevery difficult, challenging constitutional limits on domestic law-enforcementactivity while drawing intelligence officers ever closer to proceedings thatcould compromise sources and methods of intelligence collection. Themomentum is clearly headed toward something like a merger between thetwo worlds.

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6 Jim McGee and Brian Duffy, Main Justice: the Men and Women Who Enforce theNation’s Criminal Laws and Guard Its Liberties (New York: Simon & Schuster, 1996), pp.373, 374.7 See Garrine P. Laney, Department of Justice Reauthorization, CRS Report 98-559, June24, 1998.

It is dismaying that this move to reinvent the relationship between spies andfederal agents took place with virtually no meaningful public debate andlittle journalistic scrutiny.6

Congress may choose to concern itself with the broad contours of intelligencecooperation with law enforcement. Congress authorizes the various instrumentalitiesof U.S. policy, appropriates funds, and conducts oversight. The ways that Congressfunds and oversees law enforcement and intelligence agencies may not, however, beoptimized to support their evolving and overlapping missions in the post-Cold Warworld. Congress has reviewed the coordinative mechanisms that have beenestablished, but has not provided them with statutory charters.

Oversight of law enforcement, foreign policy, and intelligence is largelyundertaken by different sets of committees with disparate agendas. Oversight of theState Department is conducted by the Senate Foreign Relations Committee and theHouse International Relations Committee. Intelligence activities (including those ofthe FBI) are overseen by the Senate Select Committee on Intelligence and the HousePermanent Select Committee on Intelligence. Since the preponderance of intelligenceactivities are undertaken by Defense Department agencies, there is also a certainamount of concurrent jurisdiction shared with the House and Senate Armed ServicesCommittees. Law enforcement efforts are overseen primarily by the two JudiciaryCommittees. Appropriations Committees also have jurisdiction, but diplomatic, lawenforcement, defense, and intelligence efforts are handled by different sub-committeesin both the Senate and the House of Representatives.

Given the different oversight responsibilities, it is difficult, at best, to provideseamless oversight of intelligence and law enforcement activities abroad. Thejurisdiction of the Judiciary Committees is very wide, encompassing many domesticissues, including abortion and immigration and, in the Senate, confirmation of Federaljudges; for a variety of reasons, there have been no regular reauthorizations of JusticeDepartment programs since FY1980.7 On the other hand, the Intelligence and ArmedServices Committees often focus on procurement of advanced technologies and thelinks between intelligence and the military services rather than on operationalpractices. In addition, neither the Intelligence nor the Judiciary Committees usuallydeal directly with questions of foreign policy that are the province of the SenateForeign Relations Committee and the House International Relations Committee.

In situations in which law enforcement, military, diplomatic, and intelligenceefforts are closely related, significant challenges to effective congressional oversightmay arise given the disparate concerns of several committees and the executivebranch’s understandable tendency to maximize flexibility in employing differentinstruments under different circumstances. Possible new approaches to oversight

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could include joint hearings or even the eventual establishment of select or jointcommittees.

More difficult would be changes in statutes that affect cooperation between lawenforcement and intelligence agencies. Few observers would seek to alterproscriptions in the National Security Act on the CIA having law enforcementpowers, and wholesale revision of the Posse Comitatus statutes that regulate anyinvolvement of the military forces in law enforcement would undoubtedly be resisted.Even the recent changes that authorize intelligence agencies to collect information onpotentially criminal activities by U.S. persons have raised concerns among civillibertarians. Further changes that would serve to legitimize or facilitate a larger roleby intelligence agencies in obtaining information for use in criminal court cases willundoubtedly be carefully scrutinized by civil libertarians.

On the other hand, some observers point to potential disadvantages to anabsence of congressional oversight of the evolving relationship between lawenforcement and intelligence agencies. They note that a “flexible” adaptation ofadministrative arrangements by the executive branch may lead to potential abuses, aspreviously occurred in the 1960s when intelligence agencies collected information ondomestic antiwar groups that some believed might have connections with foreigngovernments. Many observers believe that the resulting public distrust seriouslyundermined the effectiveness of the Nation’s intelligence effort and jeopardized thecareers of officials who believed that they were following legitimate directions.

Further, some observers believe that the current lack of clarity aboutrelationships among agencies and their roles and missions may reduce theeffectiveness of their individual and collective efforts and lead to waste andduplication of effort. In particular, the transparent limits to the success ofcounternarcotics efforts have suggested to such observers that neither lawenforcement nor intelligence assets have been optimally deployed and organized.

Illegal Activities and Transnational Threats

Some illegal activities occurring abroad affect U.S. security interests; these are,chiefly, transnational threats from terrorism, narcotics smuggling, and proliferation ofWMD. Such activities have been held to justify the attention of law enforcement andintelligence agencies. Other illegal activities such as smuggling, copyright andtrademark violations, monopolistic competition, etc. may not rise to a level that wouldconstitute a genuine transnational threat. In recent years, especially since theenactment of the Comprehensive Crime Control Act of 1984 (P.L. 98-473) and theOmnibus Diplomatic Security and Antiterrorism Act of 1986 (P.L. 99-399), there hasalso been an increasing tendency for United States statutes to contain extraterritorialprovisions. Extraterritorial jurisdiction has been claimed for:

... crimes committed aboard American ships or planes; offenses which imperil ormisuse our foreign commerce with other nations; misconduct, like genocide,terrorism or air piracy, condemned in multilateral agreements to which the UnitedStates is a party; the overseas theft or destruction of the property of the UnitedStates government, the use of violence against its officers or employees, or the

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8 Charles Doyle, Extraterritorial Application of American Criminal Law, CRS Report 94-166S, February 25, 1994, p. 1. The United States is not alone in this regard; the UnitedKingdom’s Criminal Justice Act of 1988, for instance, brings certain crimes, whether or notcommitted in the U.K., under the purview of U.K. law. U.S. laws tend to encompass moresweeping prohibitions on various controlled substances and on conduct related to money-laundering than do other countries. There is an inevitable possibility of opposition from othercountries in attempts to prosecute activities prohibited by U.S. laws, but not by those of theforeign country.9 American Law Institute, Restatement of the Law (Third): the Foreign Relations of theUnited States, (St. Paul, MN: American Law Institute Publishers, 1987), I, p. 19.10 Ibid., p. 254. On page 255, the Restatement adds: “Universal jurisdiction is increasinglyaccepted for certain acts of terrorism, such as assaults on the life or physical integrity ofdiplomatic personnel, kidnaping, and indiscriminate violent assaults on people at large.” This passage leaves open the possibility that there are certain other acts of terrorism for whichuniversal jurisdiction is not accepted; nevertheless, even this list probably comprehends mostforms of terrorism that would represent a threat to the national security. See also Kenneth C.Randall, “Universal Jurisdiction Under International Law, Texas Law Review, March 1988.11 See Robert D. Shuey, Steven R. Bowman, and Zachary S. Davis, Proliferation ControlRegimes: Background and Status, CRS Report 97-343F, March 10, 1997.

obstruction or corruption of the functioning of its agencies overseas; andmisconduct outside of the United States which results in or is intended to result inharm within the United States, such as drug trafficking.8

Activities abroad threatening U.S. security interests may also be violations ofinternational law. International law is, in general, either based on treaty obligationsthat have been accepted by signatories, or found within the somewhat amorphouscontours of customary international law, i.e., the rules and practices characterizingrelations between states and between private entities and foreign states. Innovationsin (or even departures from) customary international law can be initiated by individualstates, but patterns of conduct long established are recognized to have considerablebenefit to the global community and are prescriptive. The complicated origins ofinternational law, however, mean that, “National courts required to determinequestions of international law must do so by imprecise methods out of uncertainmaterials, and they must look at a process that is worldwide and includes the actionsand determinations of foreign actors (including foreign courts).”9

In recent years, international law has itself come to address a wider range ofcriminal activities for which individuals can be held accountable by foreign countries.Piracy, of course, has long been considered a crime that all states must act tosuppress. Since the end of World War II, other types of terrorist activities and humanrights violations, including genocide, torture, hostage taking, attacks on diplomaticpersonnel, and airplane hijacking have also been proscribed by internationalagreement. For such crimes of universal concern, any state, including, of course, theUnited States, may prescribe punishments.10 Materials that can be used in weaponsof mass destruction have been the subject of several international conventions towhich the United States is a party.11 (A very significant problem is, of course, the factthat many benign and commercially available chemicals can be combined with lethal

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12 Louis René Beres, “On International Law and Nuclear Terrorism,” Georgia Journal ofInternational and Comparative Law, Spring 1994, pp. 3-8.13 The legislation specifically authorized the Secretary of State to consider “classifiedinformation,” i.e. information obtained by the Intelligence Community, in making such adesignation. Moreover, the legislation allows such a designation to be used to excluderepresentatives or members of such organizations from entering the United States.14 Department of State, Office of the Coordinator for Counterrorism, Designation of ForeignTerrorist Organizations, Public Notice 2612, published in Federal Register, October 8, 1997,pp. 52649-52651. Some observers have suggested that the United States, itself, appliesdifferent standards to some terrorist groups than to others inasmuch as some terrorist groupsoperating in Ireland and elsewhere are not similarly designated.15 E.g., the United Nations Convention Against Illicit Traffic in Narcotic Drugs andPsychotropic Substances which entered into force in November 1990. See U.S. Congress,105th Congress, 1st session, Senate Caucus on International Narcotics Control and theCommittee on International Relations, House of Representatives, International NarcoticsControl and United States Foreign Policy: A Compilation of Laws, Treaties, ExecutiveDocuments, and Related Material, Report, S. Prt. 105-32, September 1997.

effect. In addition, the spread of knowledge regarding weapons-making techniqueshas been greatly facilitated by the Internet.)

It has proven difficult, however, to reach an international agreement on a tightdefinition of terrorism given a determination of some in the international communityto legitimize various activities involved in “wars of national liberation.”12 TheAntiterrorism and Effective Death Penalty Act of 1996 (P.L. 104-132) authorized theSecretary of State to designate terrorist organizations, subject to congressionalreview.13 The State Department subsequently designated some 30 organizations(mostly, but not exclusively, Middle Eastern) in October 1997, but many observerswould challenge the fairness of the list.14

Foreign countries understand U.S. efforts to counter terrorist groups that targetU.S. residents, but there remains widespread support in various parts of the world forsome groups that the U.S. considers terrorist. As a result, there can be significantpolitical costs involved in legal actions against some organizations that engage interrorist activities. It is a fact of international life that persons and groups that haveengaged in terrorist activities have been and will be accepted as leaders of sovereignstates with which the United States must cooperate to accomplish important nationalgoals. Dealing with such leaders is distasteful, even abhorrent, but it is necessary.Unless they surrender unconditionally, they cannot be removed from the scene by anindictment or a trial.

Narcotics trafficking has been declared illegal by several international treaties,15

but the narcotics trade is not at present considered an international crime over whichthere is universal jurisdiction. Countries are expected to suppress the production andtransit of illegal narcotics and to bring drug producers and traffickers to justice (and,when appropriate, respond to requests for extradition from other countries), butcountries have no universal jurisdiction to enforce drug production or trafficking as

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16 See Randall, p. 837.17 Ashton Carter, John Deutch, and Philip Zelikow, “Catastrophic Terrorism: Tackling theNew Danger,” Foreign Affairs, November-December 1998, p. 82.18 Intelligence professionals are keenly aware of the distinctions involved. For instance,Stansfield Turner, the Director of Central Intelligence during the Carter Administration, noted

(continued...)

they do under conventions against piracy, torture, and certain other crimes.16 TheUnited States must rely on diplomacy and various types of pressure and inducementsto encourage other countries to cooperate in halting illegal drug production andshipments. As noted below, the military effort, ultimately successful in December1989, to oust the Panamanian dictator Manuel Noriega was, however, caused or atleast greatly influenced by his involvement in illegal narcotics trafficking. Fewobservers, however, routinely advocate the use of military force or covert actions tointerdict drug production and shipments within the territorial borders of othercountries; even if authorized, such efforts would have significant drawbacks and couldhave damaging effects on other important interests.

Intelligence Agencies Support Law Enforcement

In seeking to take action against such criminal activities occurring in foreigncountries, it has seemed logical to many to bring to bear the enormous informationgathering capabilities of the Intelligence Community which has both collectionsystems and human agents available throughout the world. It would, some haveargued, be relatively simple to make information obtained by intelligence agenciesavailable to investigators and prosecutors in support of the latter’ efforts to bringterrorists and narcotics traffickers to justice in U.S. courts. Some observers would,of course, go further, suggesting that, in especially threatening cases, covert actionsby the CIA or military strikes might be necessary.

Closely coordinating the efforts of law enforcement agencies and the IntelligenceCommunity (alongside the State and Defense Departments) presents, however,significant challenges. As three knowledgeable observers have written:

The law enforcement/national security divide is especially significant, carveddeeply into the topography of American government. The national securityparadigm fosters aggressive, active intelligence gathering. It anticipates the threatbefore it arises and plans preventive action against suspected targets. In contrast,the law enforcement paradigm fosters reactions to information providedvoluntarily, uses ex post facto arrests and trials governed by rules of evidence, andprotects the rights of citizens.17

The division of responsibilities between intelligence and law enforcementagencies reflects this reality and is based in statutes and executive orders. Manyobservers—including intelligence agency officials—strongly believe in thefundamental importance of distinctions between law enforcement efforts, governedby laws and rules designed to protect the rights of the accused, and the far lessrestricted operations of intelligence agencies.18 The National Security Act of 1947,

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18 (...continued)in 1996 that “The FBI agent’s first reaction when given a job is, `How do I do this within thelaw?’ The CIA agent’s first reaction when given a job is, `How do I do this regardless of thelaw of the country in which I am operating?’” Quoted in Benjamin Wittes, “Blurring the LineBetween Cops and Spies,” Legal Times, September 9, 1996, p. 20. 19 50 USC 403-3(d)(1). On the establishment of the CIA and its early relationships with themilitary services and the FBI, see Thomas F. Troy, Donovan and the CIA: A History of theEstablishment of the Central Intelligence Agency (Frederick, Md.: University Publicationsof America, 1981).20 Stewart A. Baker, “Should Spies Be Cops?,”Foreign Policy, Winter 1994-1995, pp. 36-37. 21 See Charles Doyle, The Posse Comitatus Act & Related Matters: the Use of the Militaryto Execute Civilian Law, CRS Report 95-964 S, September 12, 1995.22 See Loch K. Johnson, America’s Secret Power: the CIA in a Democratic Society (NewYork: Oxford University Press, 1989), pp. 133-203.

that established the CIA, specifically precluded the Agency from having anyresponsibilities for law enforcement or internal security.19 This provision derived froma determination shared by Congress and the Truman Administration not to create anAmerican “Gestapo” or to encroach on the jurisdiction of the FBI. There was then,as there remains today, a concern that “[c]ombining domestic and foreign intelligencefunctions creates the possibility that domestic law enforcement will be infected by thesecrecy, deception, and ruthlessness that international espionage requires.”20 The1947 Act also reflected the division of labor during World War II between the Officeof Strategic Services (OSS), the CIA’s predecessor intelligence service, and the FBI(even though the latter undertook extensive intelligence gathering in Latin America).

Most of the other elements of the U.S. Intelligence Community are located in theDepartment of Defense (DOD), which also has been largely precluded from directinvolvement in domestic law enforcement efforts since the post-Civil War enactmentof the Posse Comitatus statutes. DOD has received legal authority to assist lawenforcement agencies in counternarcotics efforts, although with restrictionsprecluding any involvement of military personnel in the arrest and detention ofsuspects.21

In some cases, efforts of intelligence agencies in support of law enforcementefforts proved to be ill-advised. In particular, instances of intelligence agenciesacquiring information concerning U.S. citizens or persons has been widelycondemned. In addition to various questionable Cold War activities, such as mailopenings and involvement with the Mafia, the CIA and military intelligence unitsgathered intelligence on antiwar groups within the United States during the VietnamWar period.22 Such activities served as a major impetus for wide-rangingcongressional investigations of the U.S. Intelligence Community in the 94th Congress.

In the aftermath of sensational revelations about improper activities byintelligence agencies, both the Intelligence Community and its congressional overseerswere determined to separate the work of intelligence and law enforcement agenciesin order to prevent the use of intelligence techniques against citizens and legal

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23 The history of the much-criticized domestic intelligence gathering is described in U.S.Congress, Senate, 94th Congress, 2nd session, Select Committee to Study GovernmentalOperations with respect to Intelligence Activities [usually known as the Church Committee],Final Report, Book III, Supplementary Detailed Staff Reports on Intelligence Activities andthe Rights of Americans, S. Rept. 94-755, April 23, 1976. A comprehensive study of thelegal aspects of information gathering on civilians by the military is found in Joan M. Jensen,Army Surveillance in America, 1775-1980 (New Haven: Yale University Press, 1991).24 U.S. Congress, 104th Congress, House of Representatives, Permanent Select Committeeon Intelligence, IC21: Intelligence Community in the 21st Century, Staff Study, 1996, p. 277.25 E.O. 12333, 2.6(b).

residents of the United States unless court orders have been obtained. Proposals forenacting a charter for the Intelligence Community did not succeed, but the widespreadcriticisms of domestic spying by the CIA and other intelligence agencies served tobuild walls of separation between the two communities that were widely recognizedin practice even if cooperation on narcotics and terrorism was officially allowed.23 Astudy prepared by the House Intelligence Committee in 1996 concluded that, “Oneof the unwritten but significant side effects of these investigations was behavioral innature. The years that followed the investigations were marked by some reluctanceon the part of the two cultures to form interactive relationships. This over-cautionwas based more [on] a perception that closer association meant increased political riskthan [upon] having any basis in prohibition of law.”24

Even before the end of the Cold War, however, terrorism and narcoticssmuggling were emerging as matters of national concern. Executive Order 12333,United States Intelligence Activities, signed by President Ronald Reagan onDecember 4, 1981, specifically assigned the CIA responsibilities for collecting andproducing intelligence on foreign aspects of narcotics production. Intelligenceagencies were authorized “to participate in law enforcement activities to investigateor prevent clandestine intelligence activities by foreign powers, or internationalterrorist or narcotics activities ....”25

With the end of the Cold War, intelligence agencies have had to adjust theirefforts to meet changed national security requirements. They have been downsizedroughly by a third from 1980s levels and many Cold War missions have disappeared.The Intelligence Community has faced major challenges in adjusting its expensivetechnical collection systems—satellites and signal intercept efforts—to the changedenvironment. It is now making much greater use of open sources, i.e. books,newspapers, radio and television programs, and pamphlets. Human collection hasbeen a particular challenge inasmuch as the personnel and methodologies useful forcollecting information about topics such as Soviet diplomatic or military policies arefar different than those necessary to collect information about a terrorist ordrugsmuggling group in a third world country.

The emergence of transnational threats in recent years and the availability ofintelligence resources led many to urge greater use of Intelligence Community assetsto obtain information that may, at some point, be used in criminal proceedings. TheIntelligence Community collects a wealth of data about all regions of the world. Itsdata storage and retrieval capabilities, as well as thousands of trained analysts, could

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26 Stewart Baker, the former NSA general counsel, expressed strong skepticism: “When I wasat the National Security Agency, we used to joke about the predictable stages traversed byprosecutors who sought intelligence reports in connection with big investigations. The firstreaction was open-mouthed wonder at what the intelligence agencies were able to collect.That was followed by an enthusiastic assumption that vast quantities of useful data must liein our files. Next came the grinding review of individual documents and the growingrealization that the reports were prepared for other purposes and so were unlikely to containmuch of relevance to the investigator’s specific concerns. Last came ennui, and a gritted-teethplod through the reports, mostly to avoid a later charge that the examination was incomplete.”“Should Spies be Cops?,” p. 51. 27 See the conclusions and recommendations included in U.S. Congress, Senate, 103rd

Congress, 1st session, Select Committee on Intelligence, The Intelligence Community’sInvolvement in the Banca Nazionale del Lavoro (BNL) Affair, Report, S. Prt. 103-12,February 1993, pp. 25-33; also, U.S. Congress, Senate, 102nd Congress, 2nd session,Committee on Foreign Relations, The BCCI Affair, Report by Senators John Kerry and HankBrown, S. Prt. 102-140, December 1992, pp. 325-327. Congressional efforts to addressstatutory relationships of law enforcement and intelligence agencies in the wake of the BCCIand BNL affairs are discussed by L. Britt Snider with Elizabeth Rindskopf and John Coleman,Relating Intelligence and Law Enforcement: Problems and Prospects (Washington:Consortium for the Study of Intelligence, 1994).

potentially be of enormous use in support of law enforcement efforts. In some partsof the world, intelligence contacts unique access can provide invaluable informationconcerning activities that may be related to violations of U.S. law. Although the vastbulk of intelligence collection is, and will likely remain, focused on topics far removedfrom the concerns of law enforcement agencies,26 the use of intelligence informationhas been seen as having important potential advantages with the increasing globalscope of much criminal activity.

Even as the Cold War was reaching its final stages, demands for closerintelligence and law enforcement cooperation intensified during the course ofinvestigations of two international banking scandals during the late 1980s. There wasconsiderable public consternation when it was learned that the CIA had acquiredinformation about potential wrongdoing that had not been readily made available tothe Justice Department; intelligence information about the activities of the Bank ofCredit and Commerce International (BCCI) and Banca Nazionale del Lavoro (BNL)was apparently shared with prosecutors in haphazard and uncoordinated ways; somenever emerged outside the Intelligence Community. Although most observers did notconclude that there was an effort by CIA to protect either of these two banks,congressional committees recommended that procedures be established to ensure thatrelevant information about international criminal activity collected by intelligenceagencies would be made available to law enforcement officials even though, in somecases, the need to protect sources and methods would undoubtedly make it impossibleto use the information directly as evidence in a trial.27

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28 In a new international law enforcement effort, the FBI sent some 59 agents and specialistsin June 1999 to undertake crime scene investigations in Kosovo.29 U.S. officials are, however, prohibited from directly effecting an arrest in any foreigncountry as part of any foreign police action with respect to narcotics control efforts, although,with the approval of the U.S. chief of mission, they can be present when foreign officers areeffecting an arrest and assist foreign officers effecting an arrest. 22 USC 2291(c).30 Statement of Louis J. Freeh, Director, Federal Bureau of Investigation, before the SenateAppropriations Committee, Subcommittee on Foreign Operations, March 20, 1997. DirectorFreeh also noted the involvement of several U.S. agencies in organizing and operating theInternational Law Enforcement Academy in Budapest, Hungary, which attempts to teachpolicy within the context of the rule of law.31 See R. Jeffrey Smith and Thomas W. Lippman, “FBI Plans to Expand Overseas,”Washington Post, August 20, 1996, p. A1; earlier criticism of the FBI role is discussed inDaniel Klaidman, “Freeh Trip Sparks Debate About FBI’s Role Overseas,” Legal Times, July18, 1994, p. 1.

Law Enforcement Agencies AcquireInternational Missions

In responding to new expectations and a changed environment, the FBI hasassigned increased numbers of agents abroad. In June 1996, the FBI launched a four-year plan to double the number of FBI officials serving in legal attaché offices of U.S.embassies; additional positions have subsequently been authorized. Offices openedin recent years include Cairo, Egypt; Islamabad, Pakistan; Tel Aviv, Israel; Moscow;Tallinn, Estonia; Kiev, Ukraine; Warsaw, Poland; Almaty, Kazakhstan; Prague, CzechRepublic; Tashkent, Uzbekistan; Pretoria, South Africa; New Delhi, India; andBuenos Aires, Argentina. Additional office are planned. The plan was expected toentail the assignment of a total of some 130 special agents and a lesser number ofsupport staff.28

These offices are expected to serve a number of purposes. They permit theestablishment of close “cop-to-cop” relationships by which law enforcementinformation can be exchanged with host-country officials.29 In addition, FBI officialsare able to cultivate ties to other sources of information in the host countries. FBIDirector Louis Freeh has stated that the Legal Attaché program is “the single mostsignificant factor in the Bureau’s ability to detect, deter, and investigate internationalcrimes in which the United States or our citizens are victims.”30 Some observers haveexpressed concern that they would overlap or duplicate the work of CIA or otherintelligence officials already assigned to these countries. Then-DCI John Deutch wasreported to have had some initial reservations, but efforts were undertaken to workout cooperation arrangements.31

In some countries, of course, rigid separation does not exist between intelligenceand law enforcement agencies, and U.S. officials must carefully tailor theirrelationships with foreign counterparts. Inevitably, complications and overlap willarise, but they will, according to administration officials, be addressed on a case-by-case basis, with the ambassador or chief of station having a major role, consistent withthat official’s statutory responsibility for “the direction, coordination, and supervision

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32 22 USC 3927(a).33 Joint Task Force on Intelligence and Law Enforcement, Report to the Attorney Generaland Director of Central Intelligence, August 1994.

of all Government executive branch employees in that country.”32 Observers note thatnot all ambassadors take an active interest in such concerns, that law enforcement andintelligence officials in embassies have not always been forthcoming withambassadors, and that officials may be carrying out policies formulated byWashington agencies without the unqualified support of the State Department.Nonetheless, observers see disagreements, duplication of effort, or competitionbetween FBI and intelligence officials in foreign countries as inevitable; potentialproblems which, while arguably outweighed by the benefits of “cop-to-cop”cooperation, will require careful monitoring.

Managing the Intelligence-Law EnforcementRelationship

In the aftermath of the wave of criticism and congressional direction thatfollowed revelations of CIA’s failure to provide information about the BCCI and BNLcases to Justice Department officials, a Joint Task Force on Intelligence and LawEnforcement was established in March 1993. The task force, chaired by DeputyAssistant Attorney General Mark Richard and CIA General Counsel ElizabethRindskopf, came up with a series of recommendations.33 Many of these proposalsinvolved relatively technical and administrative efforts to improve information flowand data retrieval:

• the creation of “focal points,” i.e., coordinating offices, in the JusticeDepartment to interface with the CIA;

• new procedures to govern requests for intelligence-file searches that mightresult in the production of materials to be used in court cases;

• requirements for law enforcement agencies to provide notice to prosecutorswhen there is an intelligence interest;

• measures concerning the treatment of the identity of intelligence officerswhose identities are classified;

• new procedures to protect classified information in situations notenvisioned by earlier statutes, such as the Classified Information ProceduresAct;

• a Memorandum of Understanding between the Attorney General andintelligence agencies that outlines the circumstances under which theagencies must report suspected criminal activity; and,

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34 Remarks of Michael Vatis, Associate Deputy Attorney General, quoted in NationalSecurity Law Report, November 1996, p. 19.35 Quoted in National Security Law Report, November 1996, p. 17.36 Quoted in National Security Law Report, November 1996, p. 4.37 Section 9-90.210(A) of Volume 9A of the Department of Justice Manual states: “Althoughboth are arms of the executive branch, the federal law enforcement and intelligencecommunities have very distinct identities, mandates, and methods. The mission of the formeris to identify, target, investigate, arrest, prosecute, and convict those persons who commitcrimes in violation of federal laws. The mission of the latter is to perform intelligenceactivities necessary for the conduct of foreign relations and the protection of the nationalsecurity, including the collection of information and dissemination of intelligence; and thecollection of information concerning espionage, international terrorist activities, andinternational narcotics activities.”38 An inevitable factor that might hinder cooperation is the fact that the Justice Departmenthas the authority to investigate intelligence agency personnel for potential illegal activity; see,for instance, Vernon Loeb and John Mintz, “CIA Faces Criminal Probe in China Case,”Washington Post, December 5, 1998, p. A1. Although this authority is uncontested, itsexercise may affect working relationships.

• an intercommunity training plan to facilitate coordination.34

Although Deputy Assistant Attorney General Mark Richard claimed that “theproblems between the CIA and Justice Department no longer exist,”35 there remained,nonetheless, a realization that difficult substantive issues would continue to beinvolved in facilitating information flow. Rindskopf subsequently noted:

There were three possible solutions: (i) to blend the two services and place themunder rules governing the law enforcement community; (ii) to blend the twoservices and place them under intelligence rules; and (iii) to coordinate theactivities of the two services. Ultimately, the decision was made to go forwardwith great caution.36

A major challenge for promoting cooperation between intelligence and lawenforcement agencies are their respective bureaucratic cultures, modes of operation,sources of information, and oversight structures.37 The Justice Department, whichincludes both the FBI and the DEA, is responsible for conducting investigations ofpossible law breaking, and prosecuting alleged criminals in the judicial system.Although law enforcement agencies need background information or “strategicintelligence” regarding patterns of criminal activity (e.g., analysis indicating thatincreasing quantities of cocaine are flowing through harbors in southern Florida), theytend to give higher priority to tactical information (e.g., a tip that a specific cargovessel is scheduled to off-load a shipment of cocaine at a specific dock in Miami onthe night of August 4). Under applicable rules of legal procedure, this latter type ofinformation may have to be used in a public trial and its origins revealed to adefendant’s lawyer. Law enforcement agencies typically work on a case-by-casebasis; when a trial is completed and all appeals exhausted, the information developedin the preliminary investigation has little use and can be consigned to the archives.38

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39 See Richard A. Best, Jr., Intelligence Agencies’ Information Support to Law Enforcement,CRS Report 95-1204F, December 12, 1995.40 A number of problems awaiting resolution was described in the “Intelligence and LawEnforcement” section of the IC21 Staff Study by the House Intelligence Committee..41 Known as the Aspin-Brown Commission after its two chairmen, former Secretaries ofDefense Les Aspin and Harold Brown.

However, national security policymakers require a continuous stream ofinformation from the CIA and other intelligence agencies about world conditions,especially about countries, groups, and individuals working against U.S. interests.There is no end-point to these requirements; even a favorable evolution of events(such as the dissolution of the Soviet Union) does not mean the end of the need forup-to-date information. In many cases, the need for intelligence is more importantthan the need for dealing with a particular incident; thus, it may be advantageous tosupport a covert intelligence source for years (even if the source is publicly identifiedas anti-American or involved in illegal activities) and to keep the relationship withU.S. intelligence agencies secret. Public disclosure could not only destroy thesource’s usefulness, but also serve to undermine U.S. efforts to recruit and retainother sources. National security policymakers may, moreover, seek rumors andgossip that could never stand up in court. Such information may, nonetheless,provide the best indication of a fluid political situation in another country that coulddirectly affect U.S. interests.

Coordinative and consultative mechanisms—an Intelligence-Law EnforcementPolicy Board and a Joint Intelligence-Law Enforcement Working Group(JICLE)—have been established at several levels in response to the 1994 assessmentof the Joint Task Force on Intelligence and Law Enforcement reached to ensure thatexchanges of information are soundly established and preserve the integrity of thejudicial process, as well as the legitimate functions of the Intelligence Community.39

These entities have considered the nature and extent of appropriate law enforcement-intelligence coordination in pre-trial discovery and established administrative policiesregarding such cooperation.40 The Joint Task Force did not consider that a needexisted for statutory changes.

Concerns about the future of interagency relationships in the post-Cold War erawere also reflected in the Intelligence Authorization Act for FY 1995 (P.L. 103-359),signed on October 14, 1994. The Act established a commission to review the rolesand capabilities of the Community. The resultant Commission on the Roles andCapabilities of the United States Intelligence Community41 made an extensive reviewof the activities of intelligence agencies, and concluded that:

Law enforcement can be an extremely powerful weapon against terrorism, drugtrafficking, and other global criminal activity. But it may not be the mostappropriate response in all circumstances. Often the perpetrators have soughtsanctuary in other countries and cannot be brought to trial. Compiling proofbeyond a reasonable doubt—the standard in criminal cases—may be even moredifficult with respect to global crime. Diplomatic, military, or intelligence

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42 Commission on the Roles and Capabilities of the United States Intelligence Community,Preparing for the 21st Century: An Appraisal of U.S. Intelligence (Washington: GovernmentPrinting Office, 1996), p. 38.43 Ibid., p. 44.

measures, in many cases, can offer advantages over a strict law enforcementresponse, or can be undertaken concurrently with law enforcement.42

The Aspin-Brown Commission recommended that direction of the effort be vested ina senior-level committee of the National Security Council (NSC), and that thecommittee include the Attorney General (who is not a member of the NSC). It urgedthe proposed committee to develop improved procedures to ensure increased sharingof information between the two communities, and to coordinate increasing lawenforcement activities abroad with local U.S. ambassadors and with intelligenceagencies. The Commission also noted the unwillingness of intelligence agencies toaccept tasking from law enforcement agencies, based on their understanding that theywere legally authorized to collect information for a valid foreign intelligence purpose.Based on the need to maximize the effort against terrorism and other transnationalthreats, the Commission argued that “the Intelligence Community should be permittedto collect information overseas at the request of a law enforcement agency so long asa U.S. person is not the target of the collection or the subject of the potentialprosecution.”43

Intelligence agencies had long argued that, even if information could be sharedwith law enforcement agencies, it could be collected only for foreign intelligencepurposes, law enforcement use being essentially a by-product. Based on the needs thathad been perceived by the Aspin-Brown Commission to facilitate the intelligencecontribution to the struggle against transnational threats, the FY1997 IntelligenceAuthorization Act (P.L. 104-293) (Section 814) amended the National Security Actto authorize elements of the Intelligence Community to collect information outsidethe United States about individuals who are not U.S. persons. They would do so atthe request of law enforcement agencies, “notwithstanding that the law enforcementagencies intend to use the information collected for purposes of a law enforcementinvestigation or counterintelligence investigation.” For the Defense Department, thisauthorization extended only to NSA, the National Reconnaissance Office, and theNational Imagery and Mapping Agency (and not to the intelligence offices of themilitary services). This seemingly minor shift was strongly criticized by some civillibertarians as a significant step towards a blurring of important distinctions betweenintelligence and law enforcement, and essentially giving NSA law enforcementresponsibilities for the first time.

In addition, Congress has undertaken to remove some statutory prohibitions thatwere seen as inhibiting intelligence support to law enforcement efforts. TheAntiterrorism and Effective Death Penalty Act of 1996 (P.L. 104-132) includedprovisions that allow the use of “classified information” indicating terroristconnections in deportation hearings of aliens seeking entrance into the U.S.Presumably, the “classified information” could derive from either law enforcement orintelligence sources. The information need not be disclosed to the alien or his or herattorney beyond a summary “adequate to prepare a defense.” Such use of classified

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44 See Charles Doyle, Antiterrorism and Effective Death Penalty Act of 1996: A Summary,CRS Report 96-499A, June 3, 1996, pp. 25-30.45 See Vernon Loeb, “Other Side of Secrecy Coin, Ex-CIA Chief Fights Confidentiality ofData on His Iraqi Clients,” Washington Post, June 26, 1998, p. A3.46 Office of National Drug Control Policy, National Drug Control Strategy, February 1991,p. 116. The convoluted origins of NDIC are described in Richard A. Best, Jr., and Mark M.Lowenthal, The U.S. Intelligence Community and the Counternarcotics Effort, CRS Report92-74F, January 14, 1992, pp. 17-21.47 NDIC Mission Statement, http://www.usdoj.gov/ndic.

information has been harshly criticized. Some observers, including some Membersof Congress, believe that these provisions violate constitutional requirements for dueprocess. Others, however, consider that revealing such information in deportation orvisa cases could provide terrorist organizations with highly valuable information.44

In a widely reported case, former DCI James Woolsey, now an attorney in privatepractice, has challenged efforts of the Immigration and Naturalization Service to useclassified materials to justify deportation of several Iraqis without sharing it with himas their counsel.45

Another instance of intelligence and law enforcement cooperation is the NationalDrug Intelligence Center (NDIC) in Johnstown, Pennsylvania, which also reflects aneffort to encourage law enforcement-intelligence cooperation in the counternarcoticseffort. Established pursuant to the Defense Appropriation Act for FY1992 (P.L. 102-172), NDIC includes personnel from both law enforcement and intelligence agencies. At its inception, it was expected that NDIC would make available information fromboth intelligence and law enforcement sources, enabling analysts to put together acomprehensive account of drug enterprises, identifying “the heart of a givenorganization, not just its extremities. Final success depends upon identifying anddestroying those critical parts of the organization that are most vulnerable: keypersonnel, communications, transportation, finances, and essential supplies andequipment.”46 NDIC’s current mission is to coordinate and consolidate strategicorganizational drug intelligence, and produce assessments of the structure,membership, finances, communication, transportation, logistics, and other activitiesof drug trafficking organizations.47

Although the extent of NDIC’s success in fulfilling its mission has not beenpublicly detailed, Congress continues to provide funding. For FY1999, $27 millionwas made available to NDIC in the Intelligence Authorization Act (P.L. 105-272),with the Attorney General retaining full authority over NDIC’s operations. TheConference Committee on the FY1999 Intelligence Authorization Act, in reiteratinga request for a comprehensive assessment of the national counter-narcoticsarchitecture, noted that:

NDIC should be the facility that brings together all law enforcement andintelligence information for integrated, all-source, cross-case analysis. Thecontinued isolation of domestic and foreign aspects of the drug trafficking

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48 U.S. Congress, House of Representatives, 105th Congress, 2nd session, Committee ofConference, Intelligence Authorization Act for Fiscal Year 1999, H. Rept. 105-780, October5, 1998, p. 27.49 See Department of Justice, Office of the Inspector General, A Review of the FBI’sPerformance in Uncovering the Espionage Activities of Aldrich Hazen Ames, UnclassifiedExecutive Summary, April 1997.

organizations for separate analysis by different intelligence centers ignores thetransnational character of the drug trafficking threat to national security.48

Some observers continue to view NDIC is an organizational anomaly, managed by theJustice Department but with funding provided in intelligence authorization legislation. It represents a relatively small aspect of the much larger difficulty in addressing thelaw enforcement-intelligence relationship.

The FBI has been responsible for counterintelligence, protecting all U.S.government agencies from foreign penetration and for collecting information aboutthreatening foreign activities in the United States. The CIA and FBI had longstandingarrangements for trading information on counterintelligence concerns, and CIA hadestablished a Counterintelligence Center in 1986, but, according to many observers,there were limits to the extent of cooperation (as well as considerable ineptitude inboth agencies) clearly reflected in the failure to identify and arrest Aldrich Ames in thenine years that he spied on behalf of the Soviet Union prior to his arrest in 1994.49

The Ames debacle made closer cooperation imperative. In a 1994 PresidentialDecision Directive, a National Counterintelligence Policy Board was established byPresident Clinton and a separate National Counterintelligence Center (NACIC),located at CIA Headquarters, but not part of the CIA, was created to coordinatecounterintelligence activities of various agencies. The staff of the NACIC arecounterintelligence and security professionals detailed from the FBI, CIA, DOD,State, and the National Security Agency (NSA) and serving two year terms; the initialdirector was from the FBI, and successors will rotate from the FBI, CIA, and DODfor two year terms.

Observers perceived, however, that the NACIC lacked sufficiently high visibilityto deal effectively with counterintelligence challenges. In January 2001, PresidentClinton signed a Presidential Decision Directive, U.S. CounterintelligenceEffectiveness–Counterintelligence for the 21st Century” (CI-21), creating a NationalCounterintelligence Executive, reporting to the FBI Director and other seniorofficials, to coordinate a counterintelligence program. CI-21 will include strategicplanning, analysis, counterintelligence budgeting, and information collectionoperations, serving as the national coordination mechanism to issue warnings ofcounterintelligence threats to the national security.

A Counterterrorist Center (CTC) was also established within CIA in 1986 toproduce intelligence on terrorist threats. Although not a “national” center like theNACIC, the CTC now includes representatives from other intelligence agencies andfrom law enforcement and policy agencies as well. DCI Tenet has argued that theCTC:

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50 Statement of George J. Tenet, U.S. Congress, 105th Congress, 1st session, Senate,Committee on Appropriations, Counterterrorism, Hearing, S. Hrg. 105-383, 1998, p. 20. Onthe origins of the CTC, see Duane R. Clarridge with Digby Diehl, A Spy for All Seasons: MyLife in the CIA (New York: Scribner, 1997), pp. 319-329.51 Baker, “Should Spies Be Cops?,” p. 40.52 DOJM, section 9-90.210.

creates a whole that is greater than the sum of its parts. It harnesses all of theoperational, analytical, and technical elements devoted to counterterrorism. Theresults through the years point to the soundness of this idea. The successes of thisapproach range from the uncovering of Libya’s role in the bombing of Pan Am103 to the thwarting of Ramzi Yousef’s attempt to blow a dozen United Statesairliners out of the sky in the Far East during 1995. Moreover, CTC has workedwith the State Department to provide extensive counterterrorist training to ourallies. Over 18,000 individuals in 50 nations have been trained in counterterrorismover the past decade.50

The capability to exchange information between intelligence and lawenforcement agencies is widely considered essential, even if some observers continueto insist that “[i]ntelligence-gathering tolerates a degree of intrusiveness, harshness,and deceit that Americans do not want applied against themselves.”51 Thus far, therehas been a recognition that information acquired by intelligence agencies can be usefulto law enforcement agencies, and procedures have been established to allow it to betransferred and used in ways that are intended not to compromise intelligence sourcesand methods, on one hand, or violate the constitutional rights of American citizensand persons, on the other. As cases are tried in the courts, the limits of theprocedures will undoubtedly be tested, and the courts may limit or extend thepermissibility of using information from the Intelligence Community. The extent towhich “a bright red line” can be drawn is as yet uncertain.

Important principles remain, however, that create limits to the extent ofcooperation; the Department of Justice Manual (DOJM) states:

Although coordination on matters of common concern is critical to the properfunction of the two [i.e., law enforcement and intelligence] communities,prosecutors must be aware of the concomitant need of both communities tomaintain a well-delineated separation between criminal prosecutions and foreignintelligence activities, in which less-stringent restraints apply to the government.Not to do so may invite the perception of an attempt to avoid criminal lawprotections by disguising a criminal-investigation as an intelligence operation. Thejudicial response to that may be the suppression of evidence in the criminalcase....52

Above and beyond the interagency bodies comprised of members of lawenforcement and intelligence agencies, White House-level entities have beenestablished to provide government-wide coordination. The efforts of the IntelligenceCommunity, as well as the State and Defense Departments, are coordinated by theNational Security Council (NSC) staff under the direction of the President. Lawenforcement actions are coordinated by the Attorney General on behalf of thePresident. Concerns about executive branch oversight of the U.S. response to

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53 50 USC 402(i). President Clinton, objecting to establishing an NSC committee by statute,indicated that he had already asked the NSC to examine relevant issues. See Statement onSigning the Intelligence Authorization Act for Fiscal Year 1997, October 11, 1996, PublicPapers of the Presidents of the United States: William J. Clinton, 1996, Book II(Washington: Government Printing Office, 1998), pp. 1813-1814.54 Philip B. Heymann, “Law Enforcement and Intelligence in the Last Years of the TwentiethCentury,” National Security Law Review, Winter 1996, p. 12.55 See Doyle McManus, “FBI Director Objects to Briefing Request,” Los Angeles Times,March 25, 1997, p. 11.

transnational threats led to the 1996 passage of amendments to the National SecurityAct of 1947. Section 804 of the FY1997 Intelligence Authorization Act (P.L. 104-293) established within the NSC a Committee on Transnational Threats to developstrategies to deal with such threats and to assist in the resolution of operational andpolicy differences among Federal departments and agencies in responding to thethreats, to ensure the effective sharing of information about transnational threatsamong Federal departments and agencies, “including law enforcement agencies andthe elements of the intelligence community,” and “to develop guidelines to enhanceand improve the coordination of activities of Federal law enforcement agencies andelements of the intelligence community outside the United States with respect totransnational threats.”53

The Attorney General has not been made a statutory member of the NSC,reflecting an intention to keep law enforcement separate from policymaking, defense,and intelligence agencies, although Justice Department representatives are routinelyinvolved in NSC decisionmaking. Thus, the only official with authority over bothintelligence and law enforcement efforts is the President, even though in someadministrations the National Security Adviser or the White House Chief of Staff mayhave significant, if nonstatutory, responsibilities. Presidents will have limited time todevote to sorting out jurisdictional responsibilities of various agencies in specificcases, and some observers question the effectiveness of existing mechanisms forbalancing international legal and policy concerns. Philip Heymann, a former DeputyAttorney General, has argued that, “Uncertainty is upsetting to both sides. It wouldbe wise for the federal government to propose a statute in an effort to use the weightof legislation to settle open questions .... [T]he Supreme Court is likely to give greatdeference to the views of the executive and legislative branches on an issue that hassuch significant national security dimensions.”54

The distinction between law enforcement and intelligence can lead to potentiallyimportant difficulties. For instance, in March 1997, according to media reports, theFBI, out of concern for an ongoing criminal investigation, was unwilling to shareinformation with the NSC staff about alleged contacts between Chinese officials andU.S. political fundraisers. Reports further indicate that such information was notshared with the Secretary of State, who was then preparing for an official visit toChina.55 Samuel Berger, President Clinton’s National Security Adviser was recalled

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56 John F. Harris and David A. Vise, “With Freeh, Mistrust Was Mutual,” Washington Post,January 10, 2001, p. A1; see also James Steinberg, “Foreign Policy: Time to Regroup,”Washington Post, January 2, 2001, p. A15.57 See David Johnston, “Reno Says Saudis Did Not Cooperate in Bombing Inquiry,” NewYork Times, January 24, 1997, p. A1; a congressional hearing was also held on the issue: U.S.Congress, House of Representatives, 105th Congress, 1st session, Committee on the Judiciary,Subcommittee on Crime, The FBI Investigation into the Saudi Arabia Bombing and ForeignFBI Investigations, Hearing, February 12, 1997, Serial No. 44.58 John Deutch, “Terrorism,” Foreign Policy, Fall 1997, pp. 16-18.

as “sputtering in a profane rage,” and his deputy, James Steingberg, subsequentlyrecalled that the problem of insufficient information-sharing was “commonplace.”56

Although the absence of this information may not have complicated U.S.diplomacy in this instance, some observers suggest that information regarding othercountries’ efforts to influence U.S. policies must be available to those responsible forthe formulation and execution of U.S. national security policy. Given the stakes ofU.S. relations with China, they suggest that keeping the Secretary of State and otherofficials responsible for foreign policy uninformed of important initiatives of thegovernment in Beijing may jeopardize important U.S. interests in internationalnegotiations. The FBI is not charged with responsibility for national security policy,and critics argue that a determination by the Justice Department to monopolizeinformation legitimately needed by the NSC or the Secretary of State undermines theconstitutional responsibilities of the entire executive branch.

In another case, both the Attorney General and the FBI Director were publiclycritical of the cooperation received from the government of Saudi Arabia concerningthe 1996 bombing of the Khobar Towers housing complex in which 19 U.S. militarypersonnel were killed.57 Former DCI John Deutch remarked on

the faintly ridiculous spectacle of Freeh, an individual with impeccable lawenforcement credentials, who has successfully battled crime in the United States,being stiffed repeatedly by the Saudis when he requested coequal status in theirinternal investigation, and expected treatment of suspects and evidence accordingto American standards. Fat chance—the Saudi royal family’s conception ofjustice is quite different from our own. In any case, if the situation were reversed,it is highly unlikely that we would let foreign law enforcement officials play asignificant role in a sensitive internal investigation of an incident that occurred onU.S. soil.58

An area of growing concern is the possibility of attacks on U.S. informationsystems. Although such attacks thus far have apparently been few in number andwithout permanent effects, many observers are greatly concerned that significantdamage could be inflicted on the computer systems and databases that are dependedupon not only by government agencies, but also by important sectors of the U.S.economy. It is difficult to determine the sources of such attacks, whether theyoriginate inside or outside of U.S. territory, or whether they are isolated or part of alarger plan. Resolving such question may be significantly complicated by statutes thatassign separate responsibilities to law enforcement and intelligence organizations. An

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59 In Fact Sheets issued by the White House, Office of the Press Secretary, on May 22, 1998.60 White Paper: The Clinton Administration’s Policy on Critical Infrastructure Protection:Presidential Decision Directive 63, May 22, 1998. March 1998 press reports suggest thatJustice Department officials cautioned against any provision that would put prosecutorialdecisions in the hands of non-lawyers; see Robert Suro and Dana Priest, “Plan to OverhaulAnti-Terrorism Strategy Would Boost NSC’s Role,” Washington Post, March 24, 1998, p.A7.

attack launched by a teen-aged hacker from a computer in the United States is clearlya law enforcement matter. An attack by a foreign government on U.S. defensedatabases would undoubtedly be viewed as a concern for intelligence agencies. Inactuality, however, determining the source and purpose of the attack within areasonable time might be difficult without the involvement of both law enforcementand intelligence agencies. It is argued that current statutory restrictions can, however,preclude an investigatory role by intelligence agencies if U.S. persons or locales areinvolved in launching such attacks.

The need for coordinating law enforcement and policy issues is reflected inPresidential Decision Directives (PDDs) 62 (Protection Against UnconventionalThreats) and 63 (Critical Infrastructure Protection) of May 22, 1998. The Directivesare classified, although summaries have been officially released.59 They establishedwithin the NSC staff a National Coordinator for Security, Infrastructure Protection,and Counterterrorism, whose responsibilities include coordination among agencies forpolicies dealing with terrorism and other threats to U.S. infrastructure. A major focusof these directives is the need to develop plans in conjunction with the private sectorthat controls a major percentage of U.S. infrastructure, but which may, for a varietyof reasons, be reluctant to share plans for infrastructure protection with governmentofficials.

PDD-63 also established a National Infrastructure Protection Center (NIPC)within the FBI to serve as a national critical infrastructure threat assessment, warning,vulnerability, and law enforcement investigation and response entity. Staffed by lawenforcement agency investigators, as well as representatives detailed from otheragencies, including the Intelligence Community, the NIPC will be able to providedirect support to DOD or the Intelligence Community, depending upon the nature andlevel of a foreign threat/attack, protocols established between special functionagencies (DOJ/DOD/CIA), and the ultimate decision of the President.”60 NIPC’sDirector, Michael Vatis, recently described the role of this Center:

Thus, the NIPC is housed in the FBI to enable it to utilize the appropriateauthorities to gather and retain the necessary information and to act on it. Now,this does not mean that the ultimate response to a cyber attack is limited tocriminal investigation and prosecution. The response will be determined by thefacts that are uncovered. Thus, for instance, if it is determined that a cyberintrusion is part of a strategic military attack, the President may determine that amilitary response is called for. But no such determination can be made withoutadequate factual foundation, and the NIPC’s role is to coordinate the process for

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61 Statement for the Record of Michael A. Vatis, Director, National Infrastructure ProtectionCenter, Federal Bureau of Investigation, before the Senate Armed Services Committee,Subcommittee on Emerging Threats and Capabilities, March 16, 1999.62 “In this digital age of Internet-based communications, signals do not travel along straightlines . . . . Signals are often broken up and may pass through many providers, in severaldifferent jurisdictions, en route to their destination. . . . A possible amendment to existingstatutes could allow federal judges to direct cooperation among successive communicationsproviders that carry a particular communication in tracing a call to its ultimate source ordestination.” Statement of Janet Reno, Attorney General of the United States, before theUnited States Senate Committee on Appropriations, Subcommittee on Commerce, Justice,and State, the Judiciary, and Related Agencies, February 4. 1999. See also John D. Moteff,Critical Infrastructures: Background and Early Implementation of PDD-63, CRS ReportRL30153, April 22, 1999, p. 12.

gathering the facts, analyzing them and making determinations about what is goingon, and determining what responses are appropriate.61

Sensitive to statutory complexities, the PDD states that, “All executive departmentsand agencies shall cooperate with the NIPC and provide such assistance, informationand advice that the NIPC may request, to the extent permitted by law.” (Emphasisadded.) Although a related White Paper indicates that the Administration “shallconsult with, and seek input from, the Congress on approaches and programs,” thereis no indication that the Administration believes that the existing statutory regime isinadequate for dealing with cyber threats or that a need exists for legislative initiatives. More recently, however, there are indications that executive branch officials believethat the government needs greater authorities to trace persons who abuse theInternet62.

In these two directives (the complete texts of which have not been made public),the Clinton Administration established a policy and an administrative structure to dealwith critical infrastructure protection and with terrorism. It is well understood thatways must be found to encourage cooperation from the private sector, and that thereare many difficulties to be overcome in this regard. Some observers argue, inaddition, that, in crises involving computer-based attacks on U.S. infrastructure, theseparate responsibilities and authorities of law enforcement and intelligence agenciesmight be impediments to immediate detection or to a rapid response.

Other observers suggest that organizational authorities established by classifiedexecutive branch directives fail to provide necessary public accountability, and mayincrease suspicion of government among parts of the electorate traditionallysuspicious of government secrecy. Administration spokesmen insist, however, that,given the changing variety of potential threats now facing the country, a flexiblestructure centered on the NSC staff can enable the Federal Government to choose thebest approach in specific circumstances and adapt organizational relationships tochanging needs.

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63 In a recent case, the Pakistani Government apparently turned a blind eye to the forcefulreturn of Mir Aimal Kasi, who was subsequently convicted and sentenced to death for havingshot occupants of cars near the entrance of the CIA in January 1993.64 S.Con.Res. 108 (100th Congress, 2nd session); approved by the Senate March 25, 1988.65 Memorandum on the Arrest of General Manuel Noriega in Panama, December 20, 1989,printed in Public Papers of the Presidents, George Bush, 1989, Book II (Washington:Government Printing Office, 1990), p. 1726.

Beyond Information Exchanges:Using Intelligence Agencies in Enforcing Laws

The national goal is, of course, not merely to study transnational threats, but,also, to reduce or eliminate them. The role of intelligence agencies in the effort tocounter transnational threats, such as narcotics smuggling and terrorism, are notlimited to acquiring information and analyzing it. There are longstanding programsby which U.S. intelligence agencies provide training and technical support to foreigngovernments. Intelligence agencies have also been involved in efforts to bring allegedinternational criminals to the United States in cooperation with diplomats and militaryand law enforcement officials. Observers believe that, on occasion, foreign countriesprefer to have some criminals, even their own citizens, tried in U.S. courts rather thantheir own to avoid undesirable political repercussions.

Depending on the circumstances, the Department of State, Department ofJustice, and the Department of Defense can have proactive roles in counteringtransnational threats. The State Department can attempt to persuade or pressureanother state to crack down on lawbreaking occurring within the latter’s borders.The United States, having developed evidence that a crime has occurred, or is likelyto occur, can also request formal extradition (or, make a more informal request thatthe individual be transferred to U.S. custody which is known as rendition63) throughdiplomatic or law enforcement channels in cases where the alleged violation is of U.S.law.

In a handful of cases, suspects have been brought to the United States by force.In 1987, one alleged airline hijacker was lured onto a boat in the Mediterranean,captured by FBI agents, and flown in a U.S. Navy aircraft to stand trial in the UnitedStates. An alleged participant in the torture death of a DEA agent in Mexico wasbrought to the U.S. by a non-governmental group and turned over to Federal lawenforcement personnel and subsequently stood trial. The involvement of PanamanianGeneral Manuel Noriega in narcotics smuggling was so egregious that it led toindictments by U.S. grand juries in February 1988; in March 1988, the Senate (by avote of 92-0) had resolved that the United States should obtain his extradition fromPanama.64 Subsequently, President Bush launched a full-scale invasion of Panamain December 1989 to restore the legitimate leadership of the country and turn Noriega“over to civil law enforcement officials of the United States as soon as practicable.”65

Noriega was captured, and subsequently put on trial in Florida; he was convicted ofdrug trafficking in April 1992 and sentenced to prison for 40 years (although thesentence was reduced in 30 years in March 1999). In its report to the UnitedNations, the United States did not base its intervention in Panama on Noriega’s

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66 United Nations Document S/21035, Letter dated 20 December 1989 from the PermanentRepresentative of the United States of America to the United Nations [Pickering] addressedto the President of the Security Council.67 See John F. Murphy, “Commentary on Intervention to Combat Terrorism and DrugTrafficking,” in Law and Force in the New International Order, ed. By Lori Fisler Damroschand David J. Scheffer (Boulder, CO: Westview Press, 1991), pp. 241-242.68 See, for instance, Abraham Abramovsky, “Extraterritorial Abductions: America’s ‘Catchand Snatch’ Policy Run Amok,” Virginia Journal of International Law, Winter 1991.

alleged narcotics trafficking, but rather upon the inherent right of self-defense underinternational law in response to armed attacks by forces under the direction of ManuelNoriega.66 It has been argued that the Bush Administration thus refrained fromarguing that drugtrafficking is a legal justification for military action.67 It is clear,however, that Noriega’s drugtrafficking lay behind the invasion.

There is no question that such forcible abductions against the desires of a foreigncountry can greatly complicate U.S. relations with that country. Such efforts,according to some observers, appear to many in other countries to reflect U.S. disdainfor acceptable procedures of international law. They arguably contribute to theimpression that the U.S. relies on brute force and undermine legal norms. It is easyto imagine the public consternation in the U.S. if another country “snatched” a U.S.official and put him on trial.68

On the other hand, supporters of such unilateral actions argue that, in extremecases, a forcible abduction may be the best means to deal with flagrant criminalswhose activities seriously jeopardize U.S. interests. Moreover, the process results ina public trial by a judicial system that is arguably among the fairest in the world. Theyfurther point out that the only remaining alternatives are diplomatic protests, varioustypes of economic restrictions, or the employment of covert actions. These, theyargue, also have significant drawbacks. A diplomatic protest can be ignored; recallingambassadors or breaking relations may be an option in dealing with Libya, butrelations with other countries, including Mexico, are so multi-faceted and importantthat maintaining diplomatic representation is essential. Economic retaliation may notaffect a desired target in another country, but may harm broader American interests.

There have been more instances in which U.S. military force has been used toinhibit and punish terrorism. In April 1986, in retaliation for Libyan involvement ina bomb attack on a Berlin nightclub frequented by U.S. military personnel, PresidentReagan ordered air attacks on Libyan military targets. Although Libyan leaderMuammar Qadhafi was not injured in the attacks, some 70 people were reportedlykilled. Observers believe that the attacks may have served as a deterrent to furtherLibyan involvement in anti-American terrorist activities.

In June 1993, reports of plans by Iraqi-backed terrorists to assassinate formerPresident Bush led President Clinton to order an attack by cruise missiles on Iraqimilitary headquarters. In response to August 1998 terrorist attacks on U.S. embassiesin Kenya and Tanzania, President Clinton also ordered missile strikes on a terroristtraining complex in Afghanistan and a chemical weapons/pharmaceutical factory inthe Sudan.

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69 See Richard A. Best, Jr., Covert Action: An Effective Instrument of U.S. Foreign Policy?,CRS Report 96-844F, October 21, 1996.70 W. Michael Reisman and James E. Baker, Regulating Covert Action: Practices, Contexts,and Policies of Covert Coercion Abroad in International and American Law (New Haven:Yale University Press, 1992). These authors write (p. 25): “. . . lawfulness is, and shouldcontinue to be, determined by contextual analysis: who is using a particular strategy, in whatcontext, for what purpose, and in conformity with what international norm, with whatauthority, decided by what procedures, where and how, with what commensurance to theprecipitating event, with what degree of discrimination in targeting, and with what effects asa sanction and what peripheral effects on general political, legal, and economic processes.”

Some covert actions conducted by the CIA receive extensive support frommilitary units and various DOD agencies, but, in general, the intent is to avoid overlyclose identification with the U.S. Government. Thus, such covert actions areconsidered as distinct from military operations in which a public commitment of U.S.military forces is a key factor.

Capturing alleged criminals and returning them to the U.S. can, under someconditions, be accomplished without the involvement of large military forces. In suchcases, small, elite military units or intelligence agents can capture an alleged criminalor bring a suspect into the United States. U.S. courts have consistently ruled thatsuch abductions do not jeopardize a defendant’s right to a fair trial.

In addition to supplying information to national security policymakers, DOD andthe CIA are also capable of taking direct action. As noted herein, terrorists andnarcotics smugglers abroad can be the targets of either military strikes or covertaction. In doing so, military forces and intelligence agencies operate mostly (but,arguably, not invariably) within the indeterminate parameters of international law thatpermits states to act in self-defense, rather than the different and much tighterconstraints of constitutional and domestic law.

Efforts such as these that are undertaken by U.S. officials, or at the behest ofU.S. officials, undoubtedly fall within the category of covert actions as regulated bystatute.69 Supporters argue that covert actions have some advantages over certainefforts by law enforcement agencies. They are deniable; by definition, a covert actionis designed in a way that the role of the U.S. is not perceived. In many cases, covertactions may be contrary to the laws of the country in which the action is to take place,but at the same time they can be consistent with international law.70 This deniabilityallows the U.S. to avoid taking responsibility for actions that would be deeplyoffensive to a foreign country or a major interest group within a foreign country.Covert actions would not necessarily involve the affront to another country’s prestigethat would be involved in a forcible abduction. Covert actions do not involve the tacitassertion or assumption that U.S. law is superior to that of a foreign country or ofcustomary international law. Covert actions do not even require a determination thatgiven actions are contrary to specific provisions of U.S. law; they are built on theassumption that there are overriding national interests that have to be dealt withoutside the framework of international law and normal state-to-state relations, butwithout resort to the use of military force. Given the existence of countries or otherentities in the contemporary world that have no respect for U.S. interests or for any

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71 Or U.S. law; in one case CIA officials working with the Iraqi resistance were a subject ofan FBI investigation as a result of concerns that they had planned an assassination plot. SeeJames Risen, “FBI Probed Alleged CIA Plot to Kill Hussein,” Los Angeles Times, February15, 1998, p. 1.

norm of international society—and the absence of world-wide institutions withcoercive force—the U.S. must be prepared, according to this view, to take directaction to protect its interests. While such covert initiatives will be endorsed by fewcountries, they will be understood and tolerated by most.

Such covert actions also have significant drawbacks. To bring someone from aforeign country to trial in the U.S. or to act directly to impede criminal activity in aforeign country, the U.S., or its agents, is breaking (or, at the very least, coming closeto the edge of) the laws of another country (or even customary international law).71

The immediate U.S. goal may be achieved, but the larger purposes of upholding a ruleof law are not necessarily enhanced. According to some observers, international lawis undermined more by one country unilaterally apprehending a suspected criminal andthen trying him in its own courts than by the suspect’s allegedly illegal activities.Furthermore, all covert actions themselves reflect an inability to accept the constraintsof acting openly within legal norms.

Covert actions designed to punish illegal activities are especially hazardous.Some covert actions, of course, might only involve trying to disrupt a narcoticsprocessing or transportation facility. The potential, however, for the loss of lives ofU.S. officials or agents is probably higher. The country in which they operate, if itdoesn’t consent to the operation, may take grave offense (and even retaliate). Covertactions also deprive the U.S. of the premise that it is acting consistent with eithernational or international law. There are no trials, no court procedures, no cross-examinations of witnesses, etc. Resort to covert action clearly sends a message thatthe U.S. is prepared to operate on the basis of force and without taking formalresponsibility for its actions. (Covert actions are designed to avoid revealing the roleof the U.S. in their planning or execution.) They do little if anything to supportadherence to norms of international society.

In choosing the appropriate option for dealing with threats arising abroad thatcan be characterized as criminal, decisionmakers will have to weigh a number offactors against the danger involved in letting alleged criminals continue unmolested.They include:

• Is the country where the activity took place (or is taking place) prepared todeal with the activity if the U.S. supplies relevant evidence?

• Is the country where the activity took place (or is taking place) politicallyable to turn the alleged offenders over to U.S. authorities) as a result of arequest of through formal extradition procedures)?

• Is the country where the activity took place (or is taking place) prepared“to look the other way” were the alleged offender to be forcibly abductedby U.S. officials or agents and subsequently put on trial in the U.S.?

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• If not “prepared to look the other way,” would the country be so offendedby U.S. actions as to retaliate in some way?

• Are there practical ways that a covert action could be used to deal with theproblem?

• What would the other country’s reaction be to a U.S. covert action?

Virtually all such decisions will be case-dependent; different criteria wouldclearly hold for efforts by a terrorist group to smuggle weapons of mass destructionin to the U.S., as compared with ongoing narcotics smuggling endeavors. Theemployment of a covert action, and, most especially, a covert action that involved arisk of lives, would probably have a far higher threshold than the delivery of adémarche by the State Department or a request for extradition.

Choosing the best response to transnational threats will inevitably be affected byimportant, and not always compatible, assumptions:

• Terrorism and narcotics smuggling have risen to the status of threats toU.S. national security.

• Concern for legal standards leads many to argue that, in most cases, allegedterrorists and narcotics smugglers should be tried in courts of law ratherthan dealt with as if they were military opponents.

• Some terrorists and international narcotics traffickers are sufficientlydangerous as to lead the United States to capture alleged perpetrators andbring them to justice even if other countries’ laws must be evaded.

• Nevertheless, the U.S. must continue to deal with certain groups andgovernments even when they have relationships with terrorist groups andeven narcotics smuggling.

• Some threats are sufficiently grave to require a military response or acovert action.

• The most appropriate instrument will continue to depend heavily on thespecifics of each situation.

Conclusion

Post-Cold War realities—geopolitical and technological—challenge not only thestatutory foundations of law enforcement and intelligence agencies, but also, morefundamentally, constitutional separations of power. The sorting out of roles andmissions, as well as oversight responsibilities, has been under review by the executivebranch in recent years, and various coordinative mechanisms have been created.Nevertheless, areas of overlap and uncertainty will undoubtedly remain for some timeto come.

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Many observers argue that this evolving and uncertain situation should beallowed to evolve in practice before serious attempts are made to establish a statutoryframework for cooperation between intelligence and law enforcement agencies. Onthe other hand, others suggest that ambiguities in the roles and missions of bothintelligence and law enforcement agencies should be resolved, and that greatercongressional oversight may be warranted. They further suggest that it may be easierto address complex jurisdictional issues and oversight responsibilities at a time whenrelationships are malleable, rather than to wait until bureaucratic rigidities set in orundesirable precedents are set during grave crises that require immediate decisions.

Efforts to enforce international law and the extraterritorial provisions ofdomestic laws are increasingly important in the response of the U.S. Government tothe transnational threats of the post-Cold War world. Few expect, however, thatthey will become the only recourse; virtually all observers anticipate that otherinstruments of national power will remain essential if the security of the country is tobe preserved. Choosing between law enforcement agencies, and defense andintelligence agencies presents important difficult challenges to those responsible forpolicymaking. Competing interests have to be weighed and balanced; compromiseshave to be made. Up until the present, these delicate decisions have largely beenmade by the executive branch which has argued that no statutory changes are needed.Some observers believe, however, that the time has come for a larger role for thelegislative branch. Whether major legislation is needed remains uncertain, but, somebelieve that far more extensive congressional oversight would ensure that competingvalues as well as institutional concerns are more thoroughly considered, and thatchoices are subject to some public discussion.