The Department of Justice has played a critical role in the nation’s effort to prevent acts of terrorism and to thwart hostile foreign intelligence activities. Since the 9/11 terrorist attacks, the National Security Division's (NSD) Office of Intelligence (successor to the Office of Intelligence Policy and Review (OIPR)) has grown dramatically in an effort to ensure: that Intelligence Community agencies have the legal authorities necessary to conduct intelligence operations, particularly operations involving the Foreign Intelligence Surveillance Act (FISA); that the office exercises meaningful oversight over various national security activities of Intelligence Community agencies; and that it can play an effective role in FISA-related litigation. The office has grown from fewer than 20 lawyers in 2000 to approximately 100 lawyers today and has structured itself into three specific sections aligned with the office's core functions: operations, oversight and litigation.
The Operations Section handles NSD’s intelligence operations workload, including representing the government before the Foreign Intelligence Surveillance Court (FISC). The Operations Section is responsible for preparing and filing all applications for Court orders pursuant to FISA. The mission of the section is to ensure that the FBI and other Intelligence Community agencies have the legal tools necessary to conduct intelligence operations in adherence to the requirements and safeguards of the law. The Operations Section is divided into three operational units: the Counterterrorism Unit, the Counterintelligence Unit, and the Special Operations Unit. In addition to its legal staff, the Operations Section is supported by two intelligence research specialists and employees who work as part of the Classified Information Management Unit.
The Operations Section also works with the Oversight Section in various matters, including overseeing compliance with FISC orders and working on projects involving information sharing among Intelligence Community agencies and modifications to authorities governing the acquisition, retention, and dissemination of FISA-related information. In addition, the Operations Section closely coordinates with the FBI and other Intelligence Community agencies on intelligence operational matters and provides legal advice to other government agencies on matters relating to FISA and other national security laws and governing authorities.
The Department of Justice bears the responsibility of overseeing the foreign intelligence, counterintelligence and other national security activities of the United States Intelligence Community to ensure compliance with the Constitution, statutes and Executive Branch policies. In fulfilling this responsibility, the Department must weigh the need to protect individual privacy and civil liberties against the need of the United States to gather foreign intelligence. The Oversight Section of the National Security Division’s Office of Intelligence is charged with meeting this responsibility by monitoring the activities of various Intelligence Community elements. To accomplish this, the Oversight Section identifies individual and systemic incidents of non-compliance, and then works with the responsible agencies to correct existing problems, as well as to limit the occurrence of future incidents.
In addition to its broad intelligence collection oversight responsibilities, the Oversight Section also fulfills various reporting obligations of the Department. For example, the Oversight Section ensures that instances of non-compliance with Foreign Intelligence Surveillance Court (FISC) orders are tracked, timely reported to the FISC and resolved. In addition, the Oversight Section is responsible for meeting numerous Congressional reporting requirements, including several FISA semi-annual reports, submission of certain FISC orders to Congress, and submission of FBI statistical information.
The Oversight Section also works closely with the Operations Section on special projects involving information sharing and modifications to authorities governing intelligence collection, retention and dissemination, as well as on interpretation and application of such governing authorities. Moreover, the Oversight Section works closely with members of the Intelligence Community, often in collaboration with the Office of the Director of National Intelligence, to give guidance on interpretation and application of governing authorities.
With the lowering of the “wall” between intelligence and law enforcement investigations, and the enhanced coordination between intelligence and law enforcement personnel, NSD has seen a steady increase in the number of requests to use information from FISA-authorized activities as evidence in criminal prosecutions of terrorists and spies. As a result, the NSD has created a separate Litigation Section to ensure sufficient resources are devoted to FISA-related litigation and to help prosecutors handle evidentiary and discovery issues in such matters.
The Litigation Section reviews and prepares requests for Attorney General authorization to use FISA information in criminal and non-criminal proceedings. The section also drafts motions and briefs and responds to defense motions to disclose FISA applications and to suppress the fruits of FISA collection. Finally, the section works to ensure the consistent application of FISA in trial and appellate courts nationwide. To support this effort, the NSD in January 2008 developed a new policy, approved by the Attorney General, for investigators and prosecutors on the use of information obtained or derived from FISA collections.