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interview: alice fisher

Alice Fisher served as United States deputy assistant attorney general from July 2001 to July 2003, during which she oversaw the counterterrorism section of the Justice Department's criminal division. In this interview, She explains the changes made to law enforcement counterterrorism practices since 9/11, including the designation of certain detainees as enemy combatants and the implementation of the Patriot Act. She tells FRONTLINE, "It is absolutely imperative that in this day and age, when we know there are terrorist organizations and we know there are people in the U.S. that want to cause harm to Americans, that we share the information with the people that need that information and need to use it." This is an edited transcript of an interview conducted on June 30, 2003.

... [After 9/11], there were proposals to give the government, if you will, new tools, new ways of getting to the bottom of what was going on and also to prevent. Maybe you could give us a little idea of what kind of tools were accumulated and what kind of philosophical changes took place.

Well, on the philosophical changes, the Department of Justice made its number one priority the prevention of terrorism. It was the goal of the department -- and it remains the goal -- to combat and prevent terrorism against Americans and our country. So philosophically our goals changed in that regard.

People that are Al Qaeda members are living among us in America.  It's a danger and we see it.

With regard to the new tools, you may be referring to the Patriot Act and some other legislation. The most important part of those tools was, is, and remains, in our efforts to combat terrorism, information sharing. Bringing down the walls between intelligence gathering and prosecuting terrorists, so that information can flow amongst all of those who are dedicated to the effort to combat terrorism and can flow freely. Sharing information with local law enforcement more freely. Those are the tools that have been most significant in our war on terrorism, being able to share information that we were not able to do prior to Sept. 11.

Before Sept. 11 you couldn't share information between the intelligence side, if you will, and the criminal law enforcement side.

Only in very limited circumstances. That's correct.

And why was that?

Well, there were intelligence files that were part of different investigations that were for intelligence gathering purposes. There were restrictions on passing that information over to prosecutors in the field that were attempting to prosecute the terrorists. So there was not a free flow sharing of information, due to some issues with the FISA [Foreign Intelligence Surveillance Act]. ...

[FISA] was passed for a reason. I mean, it was passed to provide a procedure, as I understand it, for us to do eavesdropping, wiretapping, sometimes maybe even break-ins into places, and to have some kind of legal proceeding for doing that, to gather intelligence.


And you weren't supposed to share that with the criminal side.

There were several restrictions placed on sharing that information with the criminal side. You could only share that information if there was evidence of a crime. [With] intelligence, as you know, there may not always be evidence of a particular crime. So a lot of that information was not thrown over to the other side of the wall to the people that really could need it.

And the reason for that was that there's a lower threshold for getting an intelligence warrant.

I would not call it a lower threshold. It's a different threshold. And it's a different procedure with the court. There is a particular court that deals with these kinds of warrants, the Foreign Intelligence Surveillance Court. So when you need to get a FISA warrant, a surveillance, whether it's a search or a wiretap, you go to a FISA Court. And there is a showing that you have to make to get a FISA warrant that is different than the showing you would have to make in a criminal court to get a wiretap, say, on a drug dealer.

Well, I mean, we know that the public criminal court wiretap affidavit eventually, if there are no charges, that gets out into open court. It's public. Right?


Right. But a FISA Court, the affidavit and the sort of the background reasons for getting it, that's not public.

That's correct.

So in a sense the rules changed after 9/11. You could use this secret court, if you will, obtain information for criminal prosecution purposes, much more easily than you could before.

Well, I wouldn't use your language on that. And I can't remember what it was.

Part of what happened after 9/11, as I understand it, is that the guidelines changed, the rules changed and you could use, as you put it, the FISA Court, the Foreign Intelligence Surveillance Act Court, information in a criminal case, to develop a criminal case, much more easily than you could before.

You can. There is sharing that can occur now that could not occur prior to 9/11. And that's partially because of the Patriot Act and partially because of a ruling by the FISA Surveillance Court of Appeals that allows the sharing and the obtaining of these FISA warrants for foreign intelligence purposes and counterterrorism purposes.

But did that in any way help, let's say, in the development of the case in Lackawanna?

Well, I can't go into what particular intelligence was gathered or what particular surveillance tools were used in a particular case, such as the case in Lackawanna. But I will say that information sharing in general, information sharing with state and local law enforcement and information sharing with other entities within the federal government was very key to bringing the charges and obtaining the convictions in Lackawanna.

I want to make sure I understand. You can't talk about the use of FISA warrants in the Lackawanna case because they're a secret.

I'm not going to comment on whether there were FISA warrants in the Lackawanna case.

The case went on for a number of months, even before it came to your attention, apparently.

There was an investigation that was going forward in Buffalo, in Lackawanna, prior to the time it came to my attention.

Do you remember when it came to your attention?

I believe it was in the late summer or early fall of 2002.

And what did you hear about it?

Oh, well, I can't go into exactly what I heard in the first time somebody commented to me about the Lackawanna investigation. It's hard to parcel through during that time period. I did become aware at some point that there was evidence from the community in Lackawanna that there were some individuals living there that had gone abroad to train in an Al Qaeda-run training camp. And, of course, the investigation continued. That turned out to be true. And the defendants have now, as you know, pleaded guilty to actually leaving Lackawanna, going abroad to Pakistan and then on to Afghanistan and training in both explosives and weaponry in an Al Qaeda-run camp, prior to then returning back to the United States.

How important or how unusual was the Lackawanna case?

Well, it's very important to our overall efforts in bringing would-be terrorists to justice. And that not only includes actual terrorists, such as Richard Reid, who tried to bring down a plane with him by lighting a shoe bomb, but also those who would provide material support to terrorists or facilitate terrorists. People such as the defendants in Lackawanna and others across the U.S. that go abroad and train in Al Qaeda training camps and listen to anti-American indoctrination and learn how to fire AK-47s or learn how to do explosives and then come back to the U.S. That is very important for our efforts to preventing terrorists, to detain and incapacitate those people so they will not be able to attack our homeland.

Well, in this case the people are involved were all American citizens.

That's correct.

That's pretty unusual, isn't it?

It is unusual, although we have seen it in other cases that we have now in the U.S. For example, there are some individuals out in Portland, who went abroad after 9/11 and tried to get into Afghanistan to fight with the Taliban. But those are allegations right now. But it is a case going forward in the courts. ...

But is there any other case of, let's say, a half a dozen American citizens who actually went to the camps, spent time there, apparently met Osama bin Laden and came back?

None that is public at this point. None that I could speak of.

There may be but you can't tell us about it?

Well, I wouldn't comment on investigations that aren't public. But this case has charged that these defendants who have admitted to training in Al Qaeda camps and returning to the U.S. have now pleaded guilty.

[The Lackawanna Six have] pleaded guilty to material support. What does that mean?

Well, there is a statute that criminalizes providing material support to a foreign terrorist organization such as Al Qaeda. And providing material support could be providing monetary funds. But it could also be providing oneself. Both in the John Walker Lindh case and in the Lackawanna case, the courts have indicated that going over to train with the enemy is providing oneself to the enemy and that is, in and of itself, providing material support to terrorist organizations.

Just to understand this correctly: this was a new thing, to charge somebody with material support. Because it had been done previously in California in a different case before 9/11 and the appellate court had rejected it.

Well actually, prior to 9/11 there were also some individuals in Charlotte that were charged with providing material supports to a terrorist organization. In that case the terrorist organization was Hezbollah. That was charged prior to 9/11. The statute has been on the books since the 1990s. In Charlotte, the individuals actually engaged in cigarette smuggling and some other routine crime and took that money from their efforts and funded Hezbollah to buy weapons and other things. That went to trial. After the jury trial one of the defendants was sentenced to a 155 years. So we've incapacitated that defendant from further providing material support to foreign terrorist organizations.

And so the statutes were on the books prior to 9/11 and had been used, although, there are clearly more prosecutions of the material support statutes since 9/11.

But it's still something that hasn't worked its way all the way through the courts.

There's been no material support up in the Supreme Court at this point, or in the Court of Appeals, right now like the one in Lackawanna. ...

Officials of the government of the United States called the Lackawanna group a sleeper cell. What does that mean?

Well, in the context of the Lackawanna defendants, they had left the United States to go abroad, stayed in Al Qaeda safe houses and then went and trained in Al Qaeda terrorist training camps. And then they came back to the United States after listening to Osama bin Laden on anti-American indoctrination and watching videos about the attack on the USS Cole. To come back to the United States and then, whether they were going to be operatives here or not operatives here, they had already violated the criminal laws and therefore it was imperative on us to incapacitate them.

The FBI officials who have talked about the case publicly say that they were not actively doing anything.

Well, many times people might be here and not actively doing anything. But they have now been trained by the enemy to come back here and when they may be called upon to do something. We can't wait for that to happen. Once they've violated our criminal laws we have to take action. We must take action.

Does the question of intent, though, get involved in how you charge somebody or what you charge them with?

Well, under the material support statutes, it is a crime to provide material support to the enemy or the foreign terrorist organizations. They intended to go abroad and train with the enemy. That is intent enough to violate our criminal laws.

So it's a crime to attend a terrorist training camp.

It is under the law -- both upheld in the eastern district of Virginia in the John Walker Lindh case and in Buffalo in the case of the Lackawanna defendants -- a crime under the material support statutes to go and provide oneself to the enemy by training in their camps and participating in the anti-American indoctrination.

This is a question from one of the defense attorneys who we interviewed. He asks if they are so dangerous, why didn't you charge them with, for example, training with firearms, machine guns, explosives and so on and give them big sentences? They're going to be out on the street in five, six years.

Well, I'm not going to talk about any particular plea negotiations with these defendants but I'll tell you this: Someone that has gone abroad and trained with bin Laden, who believes that it's a legitimate means to an end to conduct suicide bombings and to offer oneself in destruction to harm American citizens, that is a dangerous person. And that's not someone we're comfortable with having on our streets.

I know but is it okay to have them out in five years?

Well, again, it's not five years. I think you'll see under the plea agreements that the time is more significant than that. However, one of the things that we take--

It's seven to 10 but the--

The maximum penalty is 10 years in this case.

Right. And they can get out with good time in, let's say, five years from now, some of them.

It is inappropriate to comment on plea negotiations and why the government decided on a particular sentence for these individuals. We were fully behind the charges in this case.

I understand that. But I'm not asking you, you know, on the specific case. But the implication that his question is, if they're so dangerous, why would the government agree to a relatively light sentence?

Well, we don't believe it's a light sentence. But in addition, these defendants are cooperating, as other defendants are, other individuals that have pled guilty. And that cooperation to assist us in intelligence gathering and assist us further on our war on terrorism is a very important factor that we take into consideration at the Department of Justice. So without commenting specifically on the plea negotiations in this case I will tell you that cooperation is very important to us.

In our investigation of these various defendants some of them clearly, once they got to the camp, really didn't want to be there. They have said that. One of them managed to get out by faking an injury. The other one claims that he told Osama bin Laden that his parents didn't know where he was and he needed to write them a letter. That doesn't sound like a bunch of guys who intended to do harm, at least, all of them.

Well, they stood up in court in entering their guilty pleas and admitted to violating our laws and admitted to training abroad in an Al Qaeda camp, which they knew was an Al Qaeda camp, and they admitted to meeting with bin Laden, some of them. That is dangerous. And in an effort to prevent future terrorist acts, people that would engage in this kind of behavior need to be incapacitated through our criminal justice system.

So it is a crime, in your mind and the government's mind, to actually just show up in the camp, to be there.

They intended to train with Al Qaeda and that is a crime under the law.

And their association with the organization that way is criminal behavior?

Well, it's not their association with an organization alone. You have to look at all the facts that they pled guilty to. And in this case they left America, they went abroad, they trained in Al Qaeda camp, which they knew to be an Al Qaeda camp. They watched videos of the Al Qaeda attack on the USS Cole, which killed many of our soldiers. They listened to bin Laden. They talked about attacks on America. And then they came back.

Okay. They had a leader. Actually, two men, who recruited them. One, Kamal Derwish, the other Juma Al Dosari. How important are they?

... Well, I can tell you that recruiters, in general, are very important. I can't comment on the specifics of this case, as you can well imagine the reasons why. However, anyone that recruits U.S. citizens to go abroad and train in Al Qaeda training camps is an individual that has not only violated our criminal laws but is an individual that we should be watching and an individual that we should incapacitate from doing further damage to America. ...

Well, I know you can't comment directly on these individuals. But in this example, one of the things that seemed to surprise many people is that these people were directly attached to Al Qaeda. They were in the United States. We didn't appear to know before 9/11 that they were even here. In fact, one of them was here after 9/11 and went back. Did that kind of stuff surprise you as you learned about the counterterrorism situation?

Well, individuals here that are United States citizens that are members of Al Qaeda, are training with Al Qaeda is always surprising, shocking and tragic. However, we know and we have known since 9/11 that that happens. And people that are Al Qaeda members are living among us in America. It's a danger and we see it. And I know that following terrorism, you have seen it. In our efforts we have obtained guilty pleas and obtained charges against individuals who are here in the United States but trained abroad. Some are U.S. citizens, some are legal permanent residents. Others are visitors.

Well, one of the surprising things to us, in what we've discovered over the last number of months, is that it doesn't seem like there are a large number of these people in the United States, or at least a large number that we know about publicly. How big is this threat?

Well, even one person who will be a suicide bomber and that could walk in to one of our shopping malls or another landmark here is a big threat. So it's not the number or the quantity, so have you. It is that we consider any member of Al Qaeda that would come to our country to do harm against our citizens a big threat.

No, I understand. But it's all relative in terms of -- the Justice Department had certain priorities before 9/11. Those changed, obviously, for you after 9/11.

It changed for the entire department. Our number one goal at the department is preventing another future terrorism attack.

But everyone we talked to says they're pretty sure one will happen.

Well, we can hope and pray that it doesn't. And we can use all the tools in our toolbox and all our efforts to work tirelessly to detect, disrupt and dismantle any terrorists here or any terrorists that would do harm against America.

But to your knowledge -- and again, this is from the defense lawyers -- to your knowledge was there any indication that any of the Lackawanna group was going to be a suicide bomber, wanted to be a suicide bomber or was preparing to do anything?

Well, unfortunately, we can't wait until they act to become a suicide bomber and act afterwards. That's not our mission and that's not our goal. If we had taken that tack, none of the 19 hijackers were doing anything that would have alerted us that they were going to go and fly a plane into a building on Sept. 11. So we can't wait. ...

It was our understanding that here at the Justice Department, the management, if you will, of the case in Buffalo was very intense and was daily, leading up to their indictment. Do you remember those days?

I do.

You or some of your colleagues were on the phone every day with the prosecutors, with the FBI up there.

We were. We were. In this case and other cases. But yes, we were working very closely with the prosecutors and the FBI in Buffalo during those days.

The White House was briefed and was interested in this case.

I'm not going to comment on internal deliberations that went on within the government.

I'm not even talking about it in the sense of telling us about the content of the conversations. But we've gotten the impression from many of the people that we've interviewed that this was a top priority case. The director of the FBI was briefed regularly on it. We understand the White House, the attorney general -- people wanted to know, "When are you going to get these people off the street?"

Well, as with any threats or any intelligence or evidence, information that we get that constitutes something that we believe is a threat to our citizens here in America, those briefings are going to happen. Those briefings [are] to the director of the FBI, to the attorney general and on from there. It's no secret that those briefings happen every day with regard to what is threatening our nation and how do we better equip ourselves to prevent a future attack.

We understand that there were deliberations about whether or not to declare at least some of the Lackawanna people enemy combatants. True?

I'm not going to comment on any kind of internal deliberations about these particular defendants.

Because it was so difficult to come up with a criminal charge before Sept. 10 or 11 of [2002], before one of the gentlemen confessed over in Bahrain, because of the threat the only thing open to you might have been to declare them enemy combatants.

I'm not going to comment on what other charges were contemplated against these individuals. But, as you know, each of the defendants in the Lackawanna case has now pled guilty to providing material support to terrorism for the actions that they took.

Can you tell us how you decide? Like, in the three cases that are public someone becomes an enemy combatant when they have been in the criminal justice system -- I mean, is it done in any public way or is there any way you can tell us how these deliberations go on? ...

Well, as you know, in the United States there's only been three individuals who have been designated enemy combatants. But, for example, the individuals fighting against our troops in Afghanistan, the individuals detained in Guantanamo, they're all enemy combatants.

In the cases here they have been about people that have either come here to the United States to work for the enemy or in one instance, with Yaser Hamdi, he was a U.S. citizen, picked up in the battlefield in Afghanistan. The use of enemy combatants designated here in the United States, U.S. citizens or not, has been upheld by the Supreme Court for decades. This is not a new tool.

Well, that's since the Second World War. They were represented by counsel. There were open proceedings. This is different. The[se enemy combatants] don't have lawyers. They're not given access to lawyers. And what the critics say is, it's all done in secret. And I've asked you the question, How do you decide whether somebody is in an enemy in combat and who is involved in that kind of deliberation?

Well, the legal determination of whether one qualifies as an enemy combatant is set forth in the case law. It's set forth in our papers that we filed in court on the Padilla matter and the Hamdi matter. Someone who trains with an enemy or is a member of the enemy and is dedicated to fighting against our forces can be an enemy combatant. But as to deciding whether someone here in the United States should face federal criminal charges or be designated as an enemy combatant, those decisions are made by a case-by-case determination on an individual basis with the primary factor being national security interest. What is best for the national security.

You're the deputy assistant U.S. attorney general in charge of counterterrorism, basically, on a daily basis in this country. You decide that there's a case, for example, that you think maybe this person should be an enemy combatant and you refer it to the attorney general or to your boss, the head of the criminal division? I mean, how does it work?

Well, I'm not going to comment on particular jury--

You're the deputy assistant attorney general, right?

Right, right. Right. ...

Okay. So you go to the deputy assistant attorney general and your primary responsibility is counterterrorism? Right?

That's correct.

Do you decide that somebody should be designated an enemy combatant and recommend that up the chain of command?

Well, I can't talk about particular deliberations, but it's something that we consider. And it's somebody that we look at and something that we may coordinate with other agencies within the government. But the designations of an enemy combatant for people here in the U.S., as in the case of Jose Padilla and in the case of Ali al-Marri, those designations were made by the president.

The president himself has to sign off?

I didn't say he had to sign off. I said the president has designated these two individuals as enemy combatants in those two cases.

The reason I'm pushing on this is that your critics say you're using the FISA law -- that is, the Foreign Intelligence Surveillance Act and the secret court and affidavits and warrants that you get from that court -- because they're never discoverable, they're never challenged in court. They're never subject to cross examination. You're using enemy combatant in a secret proceeding and which is not discoverable. You can't talk about it, you say. Do you see what the concern is? That the government is operating in secrecy about, let's say, the future of American citizens.

That is absolutely not true. The FISA warrants that the government obtains for FISA surveillance are authorized by a court. They're authorized by the FISA Court for all of those cases. And therefore, they're not done in secret.

It's absolutely not true. The FISA surveillance that we get are authorized by a court of District Court judges that sit on the FISA Court. And they are the ones that authorize us to go forward with wiretaps or FISA surveillance.

As far as making a decision about an enemy combatant, those deliberations, while the counsel and the interplay between government entities about those decisions, may not be done with full disclosure, the designations themselves and the basis for the designations have been fully disclosed to the public. In fact, we have filed several court papers with regard to these designations, both for Mr. Hamdi and Mr. Padilla.

But it takes them out of the public arena. There is no longer a public trial going on. There's no lawyer representing them. There's no one to be their advocate.

Well, enemy combatants are not entitled to have attorneys. And you would not suggest, for example, that all the individuals that we've picked up in Afghanistan for fighting against our soldiers all have attorneys. That would be thousands. That's never been done. That's never been done in any war.

But they're not prisoners of war either, are they?

I'm not going to comment on the decision to designate Al Qaeda or the Taliban as not being prisoners of war.

Okay. Let, let me go back for a second. When you say that there's a judge who reviews a FISA warrant, it's not done arbitrarily, is what you're saying?

Absolutely not.

Has there ever been a FISA warrant that's been denied?

I'm not aware of any.

So you can see the skepticism of attorneys out there who are saying, we can't see the FISA warrant. We can't review the FISA warrant. There's no adversarial proceeding. You've never been denied a FISA warrant.

Well, I said I'm not aware of one, which is different. I mean, there may be one. I'm just not aware of it.

Well, we couldn't find one either. And so therefore, there's concern that that is used to develop information and then that information can more easily be used, as you described it, in a criminal proceeding.

The developing of information under FISA warrants is so that we can better protect America, that we can gather intelligence for those who are agents of a foreign government or agents of a foreign terrorist organization, or who are spying on us, in espionage cases. And we need to gather that intelligence to both protect America and to the extent that it evidences criminal conduct. Then that information can and should be shared with prosecutors who can then go forward, if appropriate, with our criminal laws and incapacitate the individuals in that way.

I don't think people are concerned with the use of this in a way to stop a terrorist attack. Definitely not. What they're worried about is it can be abused, that it's easier now to do it than ever before -- that is, share this information. The wall is down, as you put it. Why should we trust you, is the question.

Well, you need to separate two things again. In obtaining the warrant there is a court of review that allows us to obtain the warrants. So there is another branch of the government, the judicial branch, that is a check on our obtaining of the warrants.

And on the sharing of information, it is absolutely imperative that in this day and age, when we know there are terrorist organizations and we know there are people in the U.S. that want to cause harm to Americans, that we share the information with the people that need that information and need to use it.

I'm asking you, though, you know, we have a Bill of Rights and it's there because traditionally we don't trust the government, a central government, in this country. Why should we trust you not to abuse the power you've been given?

Well, again, there are checks and balances in place on the power. But the implication of your question that somehow the Department of Justice would impinge on freedom, that is the exact thing that we're trying to protect. We are trying to protect Americans against those terrorist organizations that will strike right at our freedom.

Okay. One judge who sat on the FISA Court wrote an opinion saying that the FBI lied 75 times in the documents that were presented to him. It sounds like we need a little bit of fresh air there.

Well, I will tell you without commenting on the opinion itself -- that happened prior to Sept. 11, as you know, and I would say that at least in part because there was not sharing of information. So the agents that may have been working on the criminal side of things may have not known what the agents working on the intelligence side of things -- they were not sharing that information that may have resulted in, in some--

Well, if I understand the judge's opinion, it's because he felt FISA was being used to get around getting a criminal investigation going because it was easier to get a FISA warrant. That's the concern.

I don't believe that to be the import of the opinion.

Okay. You can't talk to me about FISA in the Lackawanna case.

That's right.

In the intelligence community, people we talked to about the Lackawanna case said one former very high ranking official who actually spent six years at the Justice Department and the FBI after he retired said that Lackawanna was a missed opportunity, that the problem was that these were low-level people who really weren't up to much and they should have been turned in to intelligence resources, used as spies against Al Qaeda, infiltrated in a certain way, if you will. Turned. But the Justice Department is looking at this as a law enforcement matter.

It is a law enforcement matter. And that's why we've obtained guilty pleas at the end of the day. Now, any decisions about using particular people as assets for intelligence gathering -- I can't comment on why we make the decisions that we do about going forward in the criminal justice system, other than to say we are always taking national security interests into account and determining what is the best road to take.

Should we feel safer because these six individuals in Lackawanna are locked up?

I feel safer.

They were really dangerous?

I believe, as I said before, anybody that's trained with Al Qaeda, that indoctrinates in people that suicide bombing and offering oneself up in destruction is a legitimate means and, to an end of killing and harming Americans. ...

Okay. There's been criticism, particularly of the FBI, but also of the Department of Justice, in the way that the counterterrorism effort has gone on. And people have said, members of Congress and others, that what we really need is an MI5. We need a domestic counterintelligence agency that deals with these questions because you get into all these legal problems.

Well, let me say two things. One is I think that the Department of Justice can deal with terrorists in the justice system. And one of the very big benefits that we have in the justice system is after we convict someone or after they plead guilty they may cooperate and help us gather intelligence and lead us to other investigations that we need to pursue to protect America.

So you don't see any validity whatsoever that you need a separate, stand alone agency that can do basically what you've been doing and the FBI has been doing together.

Right. Well, the second point I was going to make to your question is, the analysts and the agents at the FBI are absolutely dedicated and work tirelessly and are very impressive at what they do with regard to gathering intelligence, investigating cases. And to shift that responsibility to some other entity that may or may not set up other walls that we would need to break down to share intelligence, is not a good idea.

The Foreign Intelligence Surveillance Act and the special warrants that are provided to the court go through a separate agency here at main Justice, right?

They go through not a separate agency but they go through the Office of Intelligence and Policy Review, which is outside of the Criminal Division at this point.

But you plan to move that into the Criminal Division, it's my understanding.

No such plans have been announced. ...

I guess [where] I'm going is, are you, in a sense, creating a domestic counterintelligence operation in de facto inside the Department of Justice without declaring a separate operation and keeping the hammer of the criminal side when you need it?

Well, I hope so. I hope that we're sharing intelligence -- and it's not just domestic. It's clearly international terrorism that we're focused on. And I hope that we're sharing it and using all the tools in our toolbox to incapacitate terrorism and protect America. And whether that is to continue intelligence investigations, continue surveillance or whether that's to bring criminal charges where appropriate, I believe that we are using all of our tools that are necessary.

And one of those tools is to merge the FISA proceedings into the Criminal Division this way?

Well, I don't know what you mean by merge. We definitely are sharing intelligence information with criminal prosecutors. And that is what the FISA Court of Review told us we should be doing and told us that we had the ability to do.

The fact that this use of FISA, a secret proceeding, can now be more easily used in the criminal process, is something that you see doesn't need any check on it, other than a judge reviewing it in secret?

Well, I think, again, you have to separate out the use of the information and the obtaining of the warrant. To obtain a FISA warrant, an individual agent needs to go to the FISA Court and establish that the surveillance at issue is necessary to gather intelligence on someone who may be an agent of a foreign terrorist organization. Then the court will then approve the surveillance.

But that could be an American citizen?

There are particular limits in place where a FISA warrant can be issued for an American citizen. But to use that information or to share that information with prosecutors, that's a different issue. And to be able to use that information in a criminal case, that information has to be de-classified and it has to be within the national security interest to use that information to further a criminal prosecution. ...

Okay. Another concern, which comes from law enforcement people, who have been dealing in this world where you share intelligence in law enforcement, they say that they're trained to find probable cause to get an affidavit or a warrant or to go into court to testify. And their experience with the intelligence community, now that they're seeing a lot of the intelligence community's information, is that there are these analyses -- what the law enforcement people call speculative analyses -- that are just based on their opinions, their reasonable suspicions. But it's lowered the standard of the information.

Well, my experience with intelligence analysts has been very positive, that their work is a credit to America.

But it's not admissible in court. Well, here's what I'm trying to get at: There, in the Lackawanna case specifically in August, actually with late July and early August, we understand that there were a number of analyses done by people in the intelligence community. Some of it has been reported in the press. And it called the group the most dangerous threat in America at that time. Some of the law enforcement people thought this was going over the top.

Well, as I told you before, I think that the individuals in Lackawanna were a threat and they were viewed as a threat by the government, which is why we brought charges against them and incapacitated them in that way. They had trained in an Al Qaeda camp. They had learned and been taught in the ways of using oneself as a weapon against Americans.

But do you remember that there were certain e-mails that were sent that had different words in them that were interpreted as if there was going to be an imminent attack? And it turned out, for example, in the case of the wedding, the use of the word wedding, that there really was a wedding?

Well, I'm not going to comment on any particular e-mails. There was some evidence that was submitted in the bail hearing in the case in Lackawanna. And, you know, I can't comment further on the interpretation of the e-mails.

But, you know, there's a traditional conflict, even within law enforcement, between intelligence cops, or intelligence agents in this case, in which we're talking about the intelligence community, and law enforcement agents and prosecutors who say, "Give me some evidence, not opinion." And you don't see that conflict, that problem, in what you've observed over the last couple of years and particularly in Lackawanna?

Well, in court we can only use evidence, that's correct, whether it's documentary evidence or testimonial evidence. And as far as one person's opinion about how big of a threat these individual defendants were, not only is that not evidence to use in court, but we don't need that in court to prove violations of the crime. What we need is the evidence that shows, and in this case a lot of it came from the own defendant's mouth, that what they had done, and where they had trained with Al Qaeda and come back, and that was a violation of federal criminal law. ...

I guess I'm going to give you a chance to respond in the sense that there are going to be amendments to the Patriot Act proposed by the Justice Department. Some people call it Patriot Act II.

... Well, there's always, within the Department of Justice, attorneys and prosecutors thinking about new laws and what we would need to better protect America and what help we can get from the legislature to meet our goals of preventing future terrorist attacks. So we would not be doing our job if we weren't thinking about new tools that we would need in our arsenal in that regard.

Is one of those tools to propose to deny citizenship to Americans who are involved in terrorist activities?

I'm not aware of any particular things that may have been submitted for approval or not approval. There's no new legislation that is out of the department in this regard.

But you know about the draft Patriot Act [II].

I know that we're constantly thinking about new laws and new tools that we can use and we propose, where we think it's appropriate, we--

Is the draft that's available on the Internet, that's been reported on, accurate?

No, I'm not aware of that draft being accurate.

What is inaccurate about it?

Well, I don't have the draft in front of me.

But you know what I'm talking about.

All's I can tell you is that there are proposals made by all sorts of individuals within the department. Somebody's got to collect those proposals. Then they get vetted, then they get reviewed and what makes sense. I'm not aware of any draft legislation going to the attorney general for approval.

Do you think you could have convicted the Lackawanna group without the Patriot Act?

Well, I think that the Patriot Act certainly made it easier to share information. We got a lot of cooperation from state and local law enforcement. We were able to cooperate back with them in providing their information.

But did it help you in any way?

Well, information has certainly helped us, gather the information that we needed and the evidence that we needed to bring the charges. I can't think of one particular Patriot Act tool that we used in the Lackawanna case that I would say made our conviction possible. Having said that, we are using the tools provided for us in the Patriot Act every day. They've been very important to our war on terrorism.

But I think as the department has said the idea of sharing information, for instance, that was a revision of a guideline, really. That wasn't the Patriot Act.

Well, the Patriot Act did some things that allow us to share information more broadly. It allowed us to share 6E information, grand jury information where appropriate in terrorism cases. It allows [us] to get nationwide search warrants by going to one district. It allows for a lot of tools that make prosecution of terrorists easier and more practical.

Well, is it limited to foreign terrorist organizations or can you now apply it to domestic terrorist organizations?

Well, different provisions of the Patriot Act apply to different entities and different investigations. So you, you can't categorize it. Some apply to crimes across the board. Some apply only to terrorism cases, international terrorism cases. Some apply to all types of terrorism cases.

And the change in the guidelines, which were, in a sense, approved by the FISA Appellate Court, by the court, allow you to more freely provide intelligence information to the criminal side of the house.

Absolutely. Absolutely. And that has been an imperative in our war on terrorism.

I've got one final question, really. I'm assuming this will be true when this is on the air. It's been two years since 9/11. There hasn't been an attack. Is it luck?

Well, it's some help from God, certainly. And I hope that what we're doing at the Department of Justice has helped in that regard in preventing a future attack. It's certainly, every day when I get up and go to work, that's the main thing on my desk is, how are we going to better equip ourselves to prevent another attack?

Since 9/11 we've taken out Al Qaeda's training camps. In a sense, they don't have a free camp to operate in and plot from and train people. We've picked up Khalid Sheikh Mohammed and some of their major operatives. We've had all kinds of changes in the law here in terms of screening visas to prosecutions. Is it possible that you've actually done to them already what was done to organized crime in the United States, to the Mafia? They may still be there but they're no longer what they used to be.

Well, I hope we've taken a big strike against them and, and incapacitated them in some respect. But that certainly isn't a signal to us that we can let down our guard in our efforts to combat terrorist organizations. And as recently as a couple of weeks ago we had a conviction of an individual, Iyman Feris, in Virginia. He had been sent here and he was casing out targets here for Al Qaeda operatives abroad. And so it is not the time to let down our guard. And that's why it's imperative on all of us that are working in this area to go to work every day and think about how we're going to prevent another attack and how we best protect ourselves.

But it's said that the reason why there's so much focus is that your bosses, for instance, here in Washington, feel their political futures would go down the drain if there is another attack, at least before November of 2004.

Well, I can tell you, having worked in this area for two years, this is not about politics. This is about Sept. 11 and what happened to those who we love and what we can do as a government to protect Americans from having to live through that again.

I'll just ask your opinion. I asked a veteran counterterrorism official: Is the threat being hyped, for example, by the Justice Department, for political reasons? For example, what's the likelihood, I asked him, that you should be worried about being harmed or injured in a terrorist attack in the United States? And his response was, it's more likely that you'll be hit by lightning.

Well, the threat is not being hyped for political reasons. The threat is out there. It is real. And the information that the government puts out to the public is imperative to allow the public to protect itself. The information that we give to local law enforcement, that will better help us protect America and Americans.

Even when it's non-specific? And you know what the criticism is. I mean, you say, orange alert and what do I do? Get duct tape?

Well, I think the information is imperative to allow American citizens to have as much information we can give them about threats without affecting or compromising national security interests. It's our job to do that. And it's important to do that.

It's not a fear that if you don't say something and something happens, you'll be held responsible?

Absolutely not.

You remember the president's State of the Union address. And he said that we were after Al Qaeda all over the world. And he listed all kinds of places in the world. And he said Hamburg and Buffalo, New York.

Yeah. Terrorism is international. One of the things that we've done in our effort since 9/11 is to better cooperate with our international allies to exchange information and have them help us incapacitate terrorists here and have us help them incapacitate terrorists that are there.

And the so-called sleeper cell in Lackawanna is on a par with the cells that we've taken out around the world?

People that have trained with the enemy and trained in the terrorist training camps and participated in discussions about attacking America are threats whether they're here or whether they're in Germany or Paris or Asia.

Or Buffalo.

Or Buffalo.

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posted october 16, 2003

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