Seeking Public Record of Landmark Hearing

Russ Feingold, D-Wis., the only senator to have voted against the Patriot Act, did his version of I-told-you-so: He noted, "This is just the reason I could not vote for the Patriot Act" because he had feared this very result. DeWine could offer only the weakest support for DOJ, saying he was "not convinced the government is wrong," but agreeing the matter must be settled.

Pendulum Swings

Frankly, it appears that the situation is one in which DOJ believed the pendulum had swung way too far in terms of the wall; that the court and Office of Intelligence Policy Review (OIPR), the DOJ entity that deals most closely with the FISC, had become far too strict in regulating the coordination between law enforcement and intelligence-gathering.

There is some support for that view. I've mentioned in recent weeks that some members of the Judiciary Committee — notably including Chairman Leahy and Specter — believe DOJ was taking too narrow a view of FISA. There was also fascinating testimony this week from Bass, who was the first head of OIPR and remained at its helm during the early years of FISA. He strongly believes that the evolution of the "primary purpose" test in the courts and the creation of the wall — particularly heightened by the 1995 Reno regulations — reflects an erroneous view of the law and court decisions.

Without going into too much detail, he maintains that the term "purpose" has mistakenly in recent years been used to refer to the goal of the surveillance itself rather than the overall investigation. In this regard he echoed one of the most severe critics of DOJ and FBI procedures in recent years, Randy Bellows.

As you may recall, Bellows, a career prosecutor in the Eastern District of Virginia (who most recently prosecuted John Walker Lindh and Robert Hanssen), was chosen by then-Attorney General Janet Reno to conduct a comprehensive investigation of everything the DOJ and the FBI did wrong in the Wen Ho Lee debacle. His massive final report, written in May 2000 but not released in redacted form until December 2001, found much fault with both the DOJ and the FBI in many discrete areas. But one lengthy chapter dealt with "'Primary Purpose' and the Sharing of Intelligence Information Among the FBI, OIPR and the Criminal Division."

Bellows concluded that there had indeed developed "an unduly strict application of the 'primary purpose' rule." In recounting the history of that evolution, Bellows made clear that personality to a truly remarkable extent had ruled both policy and practice.

From 1984 until her death in 1993, OIPR was ruled by the truly legendary Mary Lawton. A chain smoker whose life was her work, Lawton was highly regarded — and/or feared — in both the intelligence and law enforcement communities. When it came to FISA, her word was literally law. During her tenure, according to Bellows, Criminal Division prosecutors were allowed to receive informal briefings from the FBI on foreign counterintelligence matters. Prosecutors knew they shouldn't "direct" the investigation, or use a FISA for law enforcement purposes. And at a certain point, they could determine, "This should go criminal now."

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