NSA handing over non-terror intelligence

WASHINGTON -- The National Security Agency is handing the Justice Department information, derived from its secret electronic eavesdropping programs, about suspected criminal activity unrelated to terrorism.

This little-known byproduct of counterterrorism surveillance continues amid controversy over the NSA's wide-ranging collection of domestic communications intelligence, including Americans' telephone calling records and Internet use.

It is unclear whether the referrals have been built upon the content of telephone calls and emails. Administration officials have previously assured Congress that NSA surveillance focuses on so-called metadata and in the main does not delve into the content of individual calls or email messages.

Also, some in the legal community question the constitutionality of criminal prosecutions stemming from intelligence-agency eavesdropping.

Current and former federal officials say the NSA limits non-terrorism referrals to serious criminal activity inadvertently detected during domestic and foreign surveillance. The NSA referrals apparently have included cases of suspected human trafficking, sexual abuse and overseas bribery by U.S.-based corporations or foreign corporate rivals that violate the Foreign Corrupt Practices Act.

"We can't task the collection of information for those purposes, and the Department of Justice can't ask us to collect evidence of that kind of a crime," said Robert Litt, general counsel for the Office of the Director of National Intelligence.

"If the intelligence agency uncovers evidence of any crime ranging from sexual abuse to FCPA, they tend to turn that information over to the Department of Justice," Litt told an audience at the Brookings Institution recently. "But the Department of Justice cannot task the intelligence community to do that."

Litt declined to discuss NSA referrals to the Justice Department when asked about the practice by Hearst Newspapers after a Senate Judiciary Committee hearing last week.

The super-secret NSA surveillance disclosed by fugitive leaker Edward Snowden has already sparked a public outcry and congressional hearings, and threatened congressional intervention to limit the programs.

Litt's acknowledgement that the NSA is handing off intelligence to federal prosecutors could further stoke controversy and calls for action on Capitol Hill.

"If the information from surveillance or wiretaps is used by the NSA inconsistently with the warrant or other permission from the FISA court, certainly there would be a violation of law," said Sen. Richard Blumenthal, D-Conn., a former U.S. attorney and state attorney general. "Unfortunately we have no access to the FISA court opinions or orders that may authorize this activity because they're largely secret. This presents yet another clear and powerful reason that we need more transparency in the FISA court."

Sen. John Cornyn, R-Texas, a former Texas Supreme Court judge and state attorney general, said, "There's certainly room to improve the process and to reassure the American people that their privacy rights are being protected while at the same time making sure that we have the tools in place to keep us safe."

After intelligence-based information is referred to the FBI, the domestic law enforcement agency would have to prove probable cause to a federal judge to obtain a warrant to conduct electronic surveillance or a physical search as part of any domestic criminal investigation.

But some lawyers, particularly in the criminal defense community, see that process as constitutionally flawed.

"The NSA intercepts, whether they are mail covers, metadata or what have you, are in essence general warrants," said Harold Haddon, a prominent criminal defense attorney from Denver. Using information from those warrants as the basis for a criminal prosecution "is a bright-line Fourth Amendment violation," Haddon said, referring to the constitutional protection against unreasonable search and seizure.

Rep. Alan Grayson, D-Fla., a Harvard-trained lawyer who clerked for judges on the U.S. Court of Appeals in Washington, said it was "conceivable that by some kind of a fluke the NSA gets information that would lead to criminal prosecution of a U.S. citizen." But Grayson said a substantial number of referrals would be "a strong indication that the NSA has overstepped its authority."

The number of NSA referrals to the Justice Department is not publicly reported to Congress. A former federal official who served in the top echelons of both Bush administrations said there have been as many as 20 to 30 NSA referrals of non-terrorism criminal activity to the Justice Department.

The Justice Department did not respond to a request for comment for this story.

The "Patriot Act" enables the NSA to legally hand over information to the Justice Department about suspected criminal activity inadvertently derived from foreign intelligence surveillance, said Stewart A. Baker, a former general counsel for the NSA who later led the 250-person policy directorate at the Department of Homeland Security during the second Bush administration.

"Criminal activity really has to be as plain as the nose on your face before NSA will turn anything over to the Justice Department," said Baker, now a partner at the powerhouse Washington law firm Steptoe & Johnson. "The last thing an intelligence agency wants is to become enmeshed in the criminal justice system."

NSA handoffs only occur in cases where there has been "substantial criminal activity" that meets a pre-defined Justice Department standard of evidence and passes review by senior officials, according to the former Justice Department official who spoke on condition of anonymity.

FBI investigators and Justice Department prosecutors protect the intelligence-agency origins of such investigations to prevent criminal defense lawyers from summoning intelligence agents into court to testify.

"The problem you have is that in many, if not most cases, the NSA doesn't tell DOJ prosecutors where or how they got the information, and won't respond to any discovery requests," said Haddon, the defense attorney. "It's a rare day when you get to find out what the genesis of the ultimate investigation is."

The former Justice Department official agreed: "A defense lawyer can try to follow the bouncing ball to see where the tip came from -- but a prosecutor is not going to acknowledge that it came from intelligence."

Patrick Toomey, an attorney at American Civil Liberties Union headquarters in New York, said NSA surveillance is tipping off Justice Department investigations without any public accountability.

"The NSA ability to disseminate the information that it gathers is a serious concern because it allows the NSA to transform material gathered for foreign intelligence purposes into the basis for a criminal prosecution," Toomey said.

NSA began making formal referrals to the Justice Department in response to enactment of the Foreign Intelligence Surveillance Act in 1978, said James Bamford, a scholar who has written three books about the NSA. It was NSA surveillance that initially detected that Billy Carter, the younger brother of President Jimmy Carter, had become a paid agent of Libya, visiting the rogue nation at least three times and reportedly receiving a $220,000 loan and as much as $2 million to press Libya's case in Washington.

The president publicly disavowed his brother's activities.

Bamford, author of "The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America," said NSA referrals are ongoing.

"There are a lot of gray areas where eavesdropping uncovers suspected crime," he said. "NSA hands the intercept to the Justice Department and it has to make a decision on whether to pursue it or not."

NSA surveillance overseas occasionally trips across evidence of violating international sanctions against countries such as Iran or companies violating anti-bribery laws in hopes of securing multimillion-dollar commercial or defense contracts.

Lucinda A. Low, another partner at Steptoe & Johnson, has defended clients in hundreds of cases involving alleged bribery or foreign corrupt practices.

"I haven't come across any instances where this kind of intelligence was a factor," Low said. But she added, "Most of us believe that those phone calls are monitored already."

stewart.powell@chron.com