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This is why it is important to keep mass transit propery funded, even if it means subsidizes: USA PATRIOT Act 1. Section 215 of the Act amended 50 U.S.C. § 1861 to allow the FBI Director or his designee (who must hold the rank of Assistant Special Agent in Charge or higher) to apply for an order from the Foreign Intelligence Surveillance Court for “the production of tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities . . . .” Such an investigation may only be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order ). 50 U.S.C. § 1861(a)(2)(A). A. What guidelines has the Attorney General approved under Executive Order 12333 or a successor order for the conduct of such investigations? Answer: These investigations are conducted under the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations, which were approved pursuant to Executive Order 12333. B. Before such an order can be sought, do the guidelines require that the FBI have already established probable cause that a person under investigation is an agent of a foreign power? What is the Department’s definition of “probable cause” and how has it changed since September 11, 2001? Answer: The Department does not have the authority to define “probable cause”; it is a statutory and constitutional term. Except where a statute has been amended, the term has not changed meaning since September 11, 2001. Section 215 of the USA PATRIOT Act (Act) added the current version of 50 U.S.C. § 1861 to the Foreign Intelligence Surveillance Act (FISA). In order to obtain business records, section 1861(b)(2) requires the Department to demonstrate to the Foreign Intelligence Surveillance Court (FISC) that the records are sought “for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” The Guidelines do not impose a probable cause requirement over and above the requirements Congress set forth in the statute. Congress did not authorize a new innovation with section 215. Grand juries investigating ordinary crimes traditionally have had the power to issue subpoenas to all manner of businesses, including libraries and bookstores. For example, in Page 4 -2- the so-called Unabomber investigation of the mid-1990s, federal grand juries subpoenaed library records at Brigham Young University, the University of Utah, Northwestern University, the University of California, the University of Montana, and the Missoula County Library in order to determine who had checked out the four books cited in the “Unabomber Manifesto.” Section 215 simply provided that this investigative tool is also available for foreign intelligence and terrorism investigations. Importantly, section 215 of the USA PATRIOT Act imposes more restrictions on its use than a federal grand jury subpoena for the same records. First, a court must explicitly authorize the use of section 215 to obtain business records. By contrast, a grand jury subpoena is issued on the authority of the district court and clerk of the court but without any prior judicial review or approval. Second, section 215 contains explicit safeguards for activities protected by the First Amendment, unlike federal grand jury subpoenas. And, third, as noted above, section 215 requires, for an investigation relating to a U.S. person, that the information be sought in an investigation to protect against international terrorism or clandestine intelligence activities. By contrast, a federal grand jury can obtain business records whenever such records are relevant to a grand jury investigation of any federal crime. See generally United States v. R. Enterprises., Inc., 498 U.S. 492 (1991). C. Please produce all guidelines approved under Executive Order 12333 or a successor order for the conduct of such investigations. Answer: These guidelines are classified at the Secret level. Under section 3.3 of Executive Order 12333, the Guidelines “shall be made available to the congressional intelligence committees.” As required, we have provided the House Permanent Select Committee on Intelligence (HPSCI) with the Guidelines, and, pursuant to the Committee’s April 1, 2003, letter, we will provide HPSCI with another copy for the review of the House Committee on the Judiciary. 2. Such investigations also may not be conducted of a United States person solely on the basis of activities protected by the First Amendment to the Constitution of the United States. 50 U.S.C. § 1861(a)(2)(B). Other authorities under the Foreign Intelligence Surveillance Act (“FISA”) are also subject to the limitation that an investigation of a United States person in which those authorities are used may not be conducted solely on the basis of activities protected by the First Amendment to the U.S. Constitution. See, e.g., 50 U.S.C. § 1842 (regarding pen register and trap and trace orders under FISA). A. In seeking such orders, does the government make an explicit certification that an investigation of a United States person is not being conducted solely Page 5 -3- on the basis of activities protected by the First Amendment to the Constitution of the United States? Answer: 50 U.S.C. § 1842(c)(2) requires that an application for a pen register or trap and trace device include a certification “that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.” Accordingly, applications concerning United States persons made under this section include a certification by a Department attorney that the investigation of a United States person is not being conducted solely upon the basis of activities protected by the First Amendment. 50 U.S.C. § 1861(b)(2) requires that each application for access to certain business records “shall specify that the records concerned are sought for an authorized investigation in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Section 1861(a)(2)(B) requires that an investigation under this section of a United States person not be conducted solely upon the basis of activities protected by the First Amendment to the Constitution. Section 1861 does not require that an application concerning a United States person make an explicit certification that the investigation is not being conducted solely on the basis of activities protected by the First Amendment. B. In issuing such orders, does the court make an express finding that an investigation of a United States person is not being conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States? Answer: With respect to orders for a pen register or trap and trace device, 50 U.S.C. § 1842(d)(1) states that “[u]pon application made pursuant to this section, the judge shall enter an ex parte order as requested, or modified, approving the installation and use of a pen register or trap and trace device if the judge finds that the application satisfies the requirements of this section.” The statute does not require the FISC to make an express finding that the investigation of a United States person is not being conducted solely on the basis of activities protected by the First Amendment of the Constitution of the United States. However, the judge may approve the application only if he or she finds that the application satisfies all the requirements of the section 1842, and -- as noted above -- section 1842(c)(2) provides that the application shall include a certification that investigation of a United States person is not being conducted solely upon the basis of activities Page 6 -4- protected by the First Amendment. With respect to orders for access to certain business records, 50 U.S.C. § 1861(c)(1) provides that “[u]pon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.” The statute does not require the FISC to make an express finding that the investigation of a United States person is not being conducted solely on the basis of activities protected by the First Amendment of the Constitution of the United States. However, the judge may approve the application only if he or she finds that the application satisfies all the requirements of the section 1861, and -- as noted above -- section 1861(a)(2)(B) requires that an investigation not be conducted of a United States person solely upon the basis of activities protected by the First Amendment to the Constitution of the United States. 3. The Department has increased the use of “national security letters” that require businesses to turn over electronic records about finances, telephone calls, e-mail and other personal information. A. Please identify the specific authority relied on for issuing these letters. Answer: Congress has authorized the issuance of National Security Letters in 12 U.S.C. § 3414(a)(5) (the Right to Financial Privacy Act); 15 U.S.C. §§ 1681u and 1681v (the Fair Credit Reporting Act); 18 U.S.C. § 2709 (the Electronic Communications Privacy Act); and 50 U.S.C. § 436(a) (relating to records of persons with authorized access to classified information, who may have disclosed that information to a foreign power). B. Has any litigation resulted from the issuance of these letters (i.e. challenging the propriety or legality of their use)? If so, please describe. Answer: There has been no challenge to the propriety or legality of National Security Letters. 4. Has any administrative disciplinary proceeding or civil action been initiated under section 223 of the Act for any unauthorized disclosure of certain intercepts? If so, please describe each case, the nature of the allegations, and the current status of each case. Answer: There have been no administrative disciplinary proceedings or civil actions initiated under section 223 of the Act for unauthorized disclosures of intercepts. 5. In the Administration’s 2004 Budget Request, DOJ is requesting $22 million to Page 7 -5- establish an automated cross-case analytical system to facilitate sharing case specific information through the agencies that belong to the Organized Crime Drug Enforcement Task Force Program. These include law enforcement agencies in DOJ, the Department of Homeland Security, and the Department of Treasury. Is this system also intended to facilitate implementation of the authority to share criminal investigative information with intelligence officials under Section 203 of the Act? Will it be used for that purpose? Answer: The Department’s 2004 budget request is specifically intended to establish and support a central warehouse for drug investigative information and to enable the Organized Crime Drug Enforcement Task Force (OCDETF) and its member agencies to undertake cross-case analysis of that drug information. However, the system may indirectly facilitate or enhance efforts to share investigative information with intelligence officials. In particular, the proposed system would be co-located with the Foreign Terrorist Tracking Task Force (FTTTF), not only enabling OCDETF to leverage FTTTF’s existing technology and analytical tools, but also enabling FTTTF, as appropriate, to extract relevant drug investigative information. To the extent such information included foreign intelligence information, FTTTF would certainly ensure that the information was shared in accordance with the Act and the Attorney General’s September 23, 2002, Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation. In addition, the proposed system will likely utilize the Special Operations Division (SOD) as a clearinghouse for the distribution of tips and leads to the field. Given that SOD already has established protocols for the identification and dissemination of foreign intelligence information, such protocols certainly would be applied to any intelligence gained from the data warehouse. 6. What has been the role of the Department in establishing standards or procedures regarding implementation of the authorities provided in Section 358 (Bank Secrecy Provisions and Activities of United States Intelligence Agencies to Fight International Terrorism)? Please provide any written guidance regarding the requirements of that section that the Department has either issued or approved. Answer: The Department of Justice has not been involved in establishing standards or procedures regarding implementation of the authorities provided in section 358. Nonetheless, criminal investigations of terrorism violations in which the Department is involved -- such as violations of 18 U.S.C. §§ 2339A and 2339B, which prohibit providing material support or resources either to terrorists or to designated foreign terrorist organizations -- have substantially benefitted from section 358, which allows financial regulators to share certain financial information related to terrorism with intelligence and criminal investigators. 7. What are the dollar amounts that have been paid under the reward authorities provided in Section 501 of the Act or the terrorism related awards under the newly Page 8 -6- enacted 28 U.S.C. § 530(C)(b)(1)(J)? How many non-U.S. citizens have received rewards under these authorities? Answer: As of April 30, 2003, the Department of Justice has provided a total of $245,000.00 in reward payments, as tracked in its accounting records (1997-2002). Current financial data does not capture these reward payments by a particular statute, nor does it delineate the citizenship of the recipients. The information that is currently available can only provide us the amount paid, and the time period in which it was paid. However, the financial data indicates that there have been no reward payments made in the last 2 years and hence the data tells us that there are currently no known rewards paid under the newly enacted 28 U.S.C. § 530C(b)(1)(J). 8. The Administration’s Office of Justice Programs 2004 Budget request includes a $12 million increase for Regional Information Sharing System (RISS) improvements. The request refers to Section 701 of the USA PATRIOT Act and states that the requested increase will be used to expand RISS’s accessibility to state and local public safety agencies to share terrorism alerts and related information. Please provide the Committee with a description of the management oversight process by which DOJ will ensure that the proposed expenditures will accomplish improvements in the U.S. information infrastructure and the specific improvements that are envisioned. Please provide copies of any guidance issued to state and local agencies with respect to the further dissemination of such materials. Answer: Currently, 84 United States Attorneys Offices (USAOs) are using the Regional Information Sharing Systems Program (RISS.net) as a method to communicate with the Department’s state and local law enforcement partners. In the USAOs, there are nearly 600 “Access Officers” of RISS.net. These users typically include the Anti-Terrorism Task Force Coordinators, Counterterrorism Attorneys, OCDETF Attorneys, Intelligence Analysts, and Law Enforcement Coordinating Committee Coordinators. Additionally, in many districts the United States Attorney, First Assistant United States Attorney, and Criminal Chief also utilize the RISS System. The Department expects the remaining USAOs to be fully vetted for RISS in the very near future. The RISS Program is funded, managed and monitored by the Bureau of Justice Assistance (BJA) of the Office of Justice Programs (OJP). Each of the six projects is monitored on an annual basis by BJA program staff and the OJP Office of General Counsel (OGC). The OGC monitoring focuses on compliance with the “Criminal Intelligence Systems Operating Policies,” which are designed to ensure that information in the system is relevant, updated, and based on a reasonable suspicion of criminal activity. While this level of monitoring and oversight will continue, we intend to refine our focus to ensure that the enhancements to the RISS.net system are responsive to the need for expansion, both with respect to terrorism and to the broader public safety audience Page 9 -7- envisioned in the USA PATRIOT Act. We are working very closely with the Department of Homeland Security (DHS), both at the Chief Information Officer level and with the Information Analysis and Infrastructure Protection Directorate (IA&IP), to ensure that the RISS infrastructure enhancements are consistent with the statutory authorities and responsibilities of DHS. In addition, BJA’s overall information technology (including RISS) is, in large measure, guided by the Global Justice Information Sharing Initiative, a Federal Advisory Committee made up of State and local constituency organizations that reports to the Attorney General, and Global’s Intelligence Working Group, comprised of Federal, State and local intelligence officials and information sharing specialists. Specifically, RISS- ATIX is the improvement to the U.S. information infrastructure envisioned in this regard, and we are already working with DHS to provide an architecture that will provide for an effective two-way exchange of information between State and local law enforcement, public safety and other first responder agencies, and organizations and officials at DHS. 9. Under section 213 of the USA PATRIOT Act, a court may order a delay in any notice of the execution of a search warrant if “the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result,” which is defined as (1) endangering the life or physical safety of an individual; (2) flight from prosecution; destruction or tampering with evidence; (3) intimidation of potential witnesses; or (4) otherwise seriously jeopardizing an investigation or unduly delaying trial. Please respond to the following questions regarding the use of this authority: A. How many times has the Department of Justice sought an order delaying notice of the execution of a warrant under this section? Answer: Whenever Justice Department personnel execute a court-issued search warrant, they always provide required notice to the person whose property has been searched. But in some cases – e.g., when it is necessary to protect human life, or to avoid compromising an investigation – federal law authorizes the Department to delay giving notice for short periods of time. The Department has had the legal authority to delay giving notice that a warrant had been executed since before the USA PATRIOT Act. But the law was a mix of inconsistent rules, practices, and court decisions that varied widely from jurisdiction to jurisdiction across the country. This lack of uniformity hindered terrorism cases and other complex nationwide investigations. Section 213 of the USA PATRIOT Act resolved this problem by establishing a uniform statutory standard. Now, a court can delay the required provision of notice if it finds “reasonable cause” to believe that immediate notification may have an adverse result as defined by 18 U.S.C. § 2705 (including endangering the Page 10 -8- life or physical safety of an individual, flight from prosecution, evidence tampering, witness intimidation, or otherwise seriously jeopardizing an investigation or unduly delaying a trial). The section requires that notice be provided within a “reasonable period” of a warrant’s execution, and a court can further extend the period for good cause. Section 213’s “reasonable cause” standard is in accord with prevailing caselaw for delayed notice of warrants before the USA PATRIOT Act. See, e.g., United States v. Villegas, 899 F.2d 1324, 1337 (2d Cir. 1990) (government must show “good reason” for delayed notice of warrants). It also is consistent with the exceptions to the general rules that agents must “knock and announce” before entering, and that warrants must be executed during the daytime. See Richards v. Wisconsin, 520 U.S. 385 (1997) (no-knock entry to execute warrant is justified when the police have “reasonable suspicion” that knocking and announcing their presence would be dangerous or futile or would inhibit the effective investigation); Fed. R. Crim. P. 41(c)(1) (“The warrant shall be served in the daytime unless the issuing authority, by appropriate provision of the warrants, and for reasonable cause shown, authorizes its execution at times other than daytime.”). As of April 1, 2003, the Department of Justice has requested a judicial order delaying notice of the execution of a warrant under section 213 forty-seven times, and the courts have granted every request. B. How many times has a court ordered the delay in such notification? Answer: As of April 1, 2003, courts have ordered the delay in such notification each of the forty-seven times requested by the Department. 10. That same section allows the notice to be delayed when the warrant prohibits the seizure of among other things, any tangible property, unless “the court finds reasonable necessity for the seizure.” 18 U.S.C. § 3103a (b)(2). A. Since the enactment of that section, how many times has the government asked a court to find reasonable necessity for a seizure in connection with delayed notification under this section? Answer: Whenever Justice Department personnel execute a court-issued warrant authorizing the seizure of property, the Department provides required notice to the person whose property was seized. In some highly sensitive cases, however, it is necessary that courts be able to authorize a temporary delay in giving that notice. Section 213 of the USA PATRIOT Act is designed primarily to allow courts to authorize delayed notice of searches. But it also enables courts, in certain narrow circumstances, to authorize delayed notice of seizures. Section 213 expressly Page 11 -9- requires that any warrant issued under it must prohibit the seizure of any tangible property, any wire or electronic communication, or (except as expressly provided in chapter 121) any stored wire or electronic information. Courts can waive this requirement only if they find “reasonable necessity” for the seizure. As of April 1, 2003, the government has asked a court to find reasonable necessity for a seizure in connection with delayed notification under this section fifteen times, and the courts have granted fourteen of the requests. B. On what grounds has the government argued that seizure was reasonably necessary under a warrant for which the government also asked for delayed notification? Answer: The government has argued that seizure was necessary: (1) to prevent jeopardizing the investigation by protecting the safety of confidential informants; (2) to prevent compromising an investigation by preventing the removal or destruction of evidence; and/or (3) to seize controlled substances that are inherently dangerous to the community. C. How often has a court found “reasonable necessity for the seizure” in connection with a warrant for which it also permitted delayed notification? Answer: As of April 1, 2003, a court has found reasonable necessity for the seizure in connection with a warrant for which it also permitted delayed notification fourteen times. D. How often has a court rejected the government’s argument that a seizure was reasonably necessary in connection with a warrant for which the government sought delayed notification? Answer: As of April 1, 2003, a court once has rejected the government’s argument that a seizure was reasonably necessary. In that one instance, the government requested a delayed-notice warrant to permit federal agents to check a storage unit that was believed to contain information concerning credit card fraud, false identification documents, and other such material. The government also sought authority to seize the items discovered to prevent their possible destruction or removal. The court authorized the warrant but did not authorize seizure because it believed that photographs of relevant items in the storage unit would be sufficient. E. On what grounds have the courts found that the seizures were reasonably necessary in connection with warrants for which delays in notification were granted? Page 12 -10- Answer: The courts have found that the seizures were necessary: (1) to prevent jeopardizing the investigation by protecting the safety of confidential informants; (2) to prevent compromising an investigation by preventing the removal or destruction of evidence; and/or (3) to seize controlled substances that are inherently dangerous to the community. F. What grounds have the courts rejected as establishing reasonable necessity for a seizure in connection with a warrant for which the government sought delayed notification? Answer: In the one instance, the government requested a delayed-notice warrant to permit federal agents to check a storage unit that was believed to contain information concerning credit card fraud, false identification documents, and other such material. The government also sought authority to seize the items discovered to prevent their possible destruction or removal. The court authorized the warrant but did not authorize seizure because it believed that photographs of relevant items in the storage unit would be sufficient. 11. That same section allows a court to order delayed notice when “the warrant provides for the giving of such notice within a reasonable period of its execution, which may be extended for by the court for good cause show.” 18 U.S.C. § 3103a(b)(3). A. What are the shortest and longest periods of time for which the government has requested initial delayed notice? Answer: The most common period of delay authorized by courts is seven days. Courts have authorized specific delays of notification as short as one day and as long as ninety days; other courts have permitted delays of unspecified duration lasting until the indictment was unsealed. B. On what grounds has the government argued that the period of delayed notification was reasonable? Answer: The government has argued that the delay period was reasonable in light of the need: (1) to protect the physical safety of cooperators, confidential sources and informants; (2) to prevent the harassment or intimidation of witnesses; (3) to prevent compromising an investigation, which may cause the subject to flee; and/or (4) to prevent the removal or destruction of evidence by avoiding disclosure of the scope and nature of the investigation. C. How often has the government sought an extension of the period of delayed notice? Page 13 -11- Answer: As of April 1, 2003, the government has sought an extension of the period of delayed notice 248 times. This number includes multiple extensions for a single warrant. For example, if a court authorizes a delay of notification for seven days and the investigation lasts one month, the government might seek four renewals. D. On what grounds has the government asked for an extension of the period of delayed notice? Answer: The government has sought extensions of the delayed notice period: (1) to permit the imminent arrest of subjects; (2) to protect the physical safety of confidential sources and informants; (3) to prevent the harassment or intimidation of witnesses; (4) to prevent jeopardizing undercover investigations; (5) to prevent compromising an investigation, which may cause the subject to flee; and/or (6) to prevent the removal or destruction of evidence by avoiding disclosure of the scope and nature of the investigation. E. How often has a court rejected the government’s request for delayed notification on the ground that the period for giving delayed notice was unreasonable? Answer: As of April 1, 2003, a court has never rejected the government’s request for delayed notification on the ground that the period for giving delayed notice was unreasonable. F. On what grounds have the courts rejected the government’s position that the period for giving delayed notice was reasonable? Answer: As of April 1, 2003, no court has rejected such a request. G. How often has a court rejected the government’s request for an extension of the period of delayed notification? Answer: As of April 1, 2003, no court has rejected such a request. H. On what grounds have the courts rejected the government’s argument that an extension of the period for delayed notice was reasonable? Answer: As of April 1, 2003, no court has rejected such a request. 12. On January 21, 2003, the Wall Street Journal published an article entitled “New Powers Fuel Legal Assault on Suspected Terrorists.” That article claims that the Department of Justice is using information that was “previously largely unavailable” and that had been obtained from FISA surveillance to support Page 14 -12- criminal prosecutions. According to the article, this information is now available to prosecutors as a result of the FISA Review Court’s decision regarding the meaning of the Act’s amendment to FISA permitting the government to obtain a surveillance order when “a significant purpose,” (rather than “the purpose”) of the surveillance is to collect foreign intelligence. A. Prior to the FISA Review Court’s decision, as long as surveillance was properly ordered for “the purpose” of collecting foreign intelligence, was there any legal impediment to prosecution of a crime using evidence obtained under FISA? Answer: Prior to the Foreign Intelligence Surveillance Court of Review’s decision in In re Sealed Case, 310 F.3d 717 (2002), there was no legal impediment to the use of evidence obtained pursuant to FISA in a criminal prosecution. Under 50 U.S.C. §§ 1806 and 1825 as originally enacted, information properly obtained or derived from a lawful FISA search or surveillance could be used in a proceeding, including a criminal proceeding, with the approval of the Attorney General. There are published decisions of the federal Courts of Appeals in which such information was used in a criminal prosecution. See, e.g., United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). While there was no legal impediment to introducing in a criminal prosecution evidence obtained through FISA before the USA PATRIOT Act and the decision of the Court of Review, as a practical matter such evidence was unavailable because of the metaphorical “wall” between law enforcement and intelligence activities. This wall – which derived from certain court decisions and administrative practice by the Department – prevented the sharing of information between, and coordination among, law enforcement and intelligence officials, thereby interfering with a comprehensive and effective defense of the national security against international terrorism and other threats. The wall – and how it was affected by the USA PATRIOT Act, revised Department guidelines issued in March 2002, and the Court of Review’s decision – are described in the answer to Question 12(C). B. Please identify all cases brought since the FISA Review Court’s decision that use information that was previously unavailable under FISA procedures. Answer: After enactment of the USA PATRIOT Act, and even prior to the Court of Review’s decision, the Attorney General instructed all United States Attorneys to review intelligence files to determine whether there was a basis for proceeding criminally against subjects of intelligence investigations. This substantial effort represented an enhanced level of review by criminal prosecutors of national security investigative matters. The overall goal of the effort was to protect the Nation from further terrorist attacks by identifying evidence of felonies that had Page 15 -13- been, or were about to be, committed. On October 1, 2002, the Attorney General addressed the United States Attorneys and instructed each of them to develop a plan to monitor terrorism and intelligence investigations, and to ensure that information regarding any individual who poses a threat of terrorism to America is shared with other agencies and that appropriate criminal charges are considered. Almost 4,500 intelligence files were considered as part of the review process and most of these files have been now been reviewed by a criminal prosecutor pursuant to the Attorney General’s directive. Evidence or information from this review has been incorporated in numerous cases. C. Please explain why such information was unavailable and why it became available following the FISA Review Court’s decision. Answer: Before the USA PATRIOT Act, the metaphorical “wall” between the intelligence community and federal law enforcement often precluded effective and indeed vital information sharing, perversely creating higher barriers in the most serious cases. This wall, which derived from certain court decisions, was established in written Department guidelines in July 1995. Sections 218 and 504(a) of the Act – as implemented by Department guidelines issued in March 2002 that were approved by the Court of Review in November 2002 – finally permitted the coordination between intelligence and law enforcement that is vital to protecting the Nation’s security. The wall between intelligence and law enforcement resulted from perceived differences between legal authorities that permit the Federal Bureau of Investigation (FBI) to engage in electronic surveillance in the course of its foreign counterintelligence function, on the one hand, and its law enforcement function on the other. These perceived differences created an artificial dichotomy between intelligence gathering and law enforcement, and FISA and Title III (which authorizes electronic surveillance in criminal cases). As enacted in 1978, FISA required that “the purpose of electronic surveillance is to obtain foreign intelligence information,” a term that was (and still is) defined to include information necessary to the ability of the United States to “protect” against espionage or international terrorism. See 50 U.S.C. §§ 1804 (a)(7)(B), 1801(e). Courts interpreted “the purpose” to mean “the primary purpose,” and they interpreted “foreign intelligence information” to include information necessary to the ability of the United States to protect against espionage or international terrorism using methods other than law enforcement. Thus, according to this judicial interpretation of FISA, that statute could be used only if the primary purpose of surveillance or a search was the protection of national Page 16 -14- security using non-law enforcement methods; gathering evidence to support the prosecution of a foreign spy or terrorist could be a significant purpose of the surveillance or search, but only if that prosecutorial purpose was clearly secondary to the non-law enforcement purpose. As a practical matter, courts determined the government’s purpose for using FISA by examining the degree of coordination between intelligence and law enforcement officials: the more information and advice exchanged between these officials, the more likely courts would be to find that the primary purpose of the surveillance or search was law enforcement, not intelligence gathering. This legal structure created what the Court of Review termed “perverse organizational incentives,” expressly discouraging coordination in the fight against terrorism. In re Sealed Case, 310 F.3d at 743. To maintain the ability to present viable FISA applications under this perceived legal standard, the Justice Department issued written guidelines in July 1995 that limited the contacts between Department personnel involved in foreign intelligence collection and those involved in law enforcement. This wall between intelligence and law enforcement allowed for intelligence information – including information developed from FISA-approved methods – to be shared with prosecutors and criminal investigators only where such information established that a crime “has been, is being, or will be committed.” In such circumstances, the intelligence officials could seek approval to “throw information over the wall.” The decisions on when to take this action, however, resided solely with intelligence officials. This policy proved to be wholly unworkable, as it entrusted the decision whether to share information with those who were not best positioned to apply the applicable standards. Only the law enforcement agents and prosecutors pursuing a particular criminal investigation can determine what evidence is pertinent to their case. In contrast, intelligence officials, who focus on the development of foreign intelligence for national security purposes rather than collecting and reviewing information for a particular criminal investigation, rarely consider the potential evidentiary value of a particular piece of information, unless such information self-evidently proves that a crime has been, or may be, committed. Thus, as a matter both of perceived legal imperative and of Department culture, it was impossible to permit full coordination between intelligence and law-enforcement personnel and to combine foreign intelligence and law enforcement information into a seamless body of knowledge. Indeed, law enforcement and intelligence personnel could not speak openly to each and share information beyond the piecemeal sharing envisioned by the previously existing rules. As a result, sharing under these guidelines was relatively rare and generally not meaningful. The reexamination of these perceived standards became more urgent after the September 11 attacks, when the Attorney General clarified that the Department’s primary mission was the prevention of terrorist attacks before they occur. This Page 17 1 Attachments A and B. 2 Attachment C. -15- goal could not be achieved where personnel needed for key preventative tools (including criminal investigation and prosecution and immigration enforcement) did not have the full range of actionable intelligence, including information developed through FISA methods. The USA PATRIOT Act addressed this problem by making two changes to FISA. First, section 218 displaced the “primary purpose” standard, permitting the use of FISA when a “significant purpose” of the search or surveillance was foreign intelligence. Second, section 504(a) clarified that coordination between intelligence and criminal personnel was not grounds for denial of a FISA application. Following enactment of the USA PATRIOT Act, the Department promulgated new procedures dated March 6, 2002, that expressly authorized – and indeed required – coordination between intelligence and law enforcement. These revised procedures were rejected in part by the FISC on May 17, 2002, but were approved in full by the Court of Review on November 18, 2002. (The decisions of both courts are attached.) 1 In addition to confirming that the Department’s revised procedures were valid under FISA, as amended by the USA PATRIOT Act, the Court of Review also noted that the judicial decisions and administrative actions that established the wall between intelligence and law enforcement were not even required by FISA prior to the amendments enacted by the USA PATRIOT Act. See In re Sealed Case, 310 F.3d at 723-27, 735. In December 2002, the Department issue field guidance with respect to the March 2002 procedures and the Court of Review’s decision. (A copy of the field guidance is attached.) 2 The enhanced ability to coordinate efforts and share information – permitted as a result of sections 218 and 504(a) of the USA PATRIOT Act, the Department’s March 6, 2002 procedures, and the Court of Review’s decision – has allowed the Department of Justice to investigate cases in a more orderly, efficient, and knowledgeable way, and has permitted all involved personnel, both law enforcement and intelligence, to discuss openly legal, factual, and tactical issues arising during the course of investigations. These substantive and procedural improvements have maximized the prospects that the option best calculated to protect the national security and the American people will be chosen in any individual case. In sum, the Department has developed counterterrorism tools and methods that plainly would not have been possible under the previous standards. The recent indictment of Sami Al-Arian and other alleged members of a Palestinian Islamic Jihad (PIJ) cell in Tampa, Florida, illustrates a case that benefitted from the new standards. The allegations contained in the conspiracy indictment were based largely on electronic surveillance authorized pursuant to Page 18 -16- FISA and conducted prior to the USA PATRIOT Act. Before the Act, the Department was required to submit repeated certifications that the primary purpose of the proposed surveillance methods was intelligence, as opposed to criminal law enforcement. Moreover, special handling procedures were imposed in this investigation on intelligence officials to guard against information sharing that was believed to be improper. On several occasions, information developed through FISA surveillance was identified as potentially relevant to a criminal case against Al-Arian and others, and the FBI’s intelligence personnel notified the Criminal Division of this information. The Criminal Division duly disseminated this information to the U.S. Attorney in Tampa, as envisioned by the July 1995 rule. However, the existing protocols denied criminal prosecutors and investigators full access to information obtained through FISA, and they prevented criminal and intelligence personnel from coordinating their parallel investigations. The USA PATRIOT Act’s amendments to FISA and the new rules adopted by the Department pursuant to those amendments enabled criminal investigators in Tampa finally to obtain and systematically consider the full range of evidence of the alleged conspiracy. After the Court of Review’s decision confirmed the Department’s understanding of the Act, this information, which existed in the FBI’s intelligence – but not criminal – files, became available and was examined. Armed with the entire intelligence yield, prosecutors for the first time were able to consider the comprehensive history of the surveillance of Al-Arian and others, to understand the context of their communications, and to document the decade-long conspiracy that is alleged. Such a comprehensive review and evaluation would not have been possible under the old rules. Thus, the USA PATRIOT Act was critical to the Department’s ability to safeguard the Nation’s security by bringing criminal charges against Al-Arian and others in February 2002. In order to ensure that – as with the Al-Arian case – criminal investigators benefit from now-available intelligence information, after enactment of the USA PATRIOT Act the Attorney General directed that prosecutors review existing intelligence files to determine whether they contained evidence of crimes. This process, which is almost completed, involved the detailed review of almost 4,500 files. The Attorney General also directed, in October 2002, that each United States Attorney know fully the FBI’s intelligence cases in their Districts. These efforts, along with coordination between law enforcement and intelligence personnel in ongoing investigations, have been made possible by the USA PATRIOT Act and are essential to preventing terrorism before it occurs and locating and prosecuting terrorists. 13. The FISA Review Court’s decision permits enhanced coordination between law enforcement and intelligence officials. Page 19 -17- A. What FISA-related training is currently being planned or conducted? B. What topics will it address? C. Who will give the training? D. Who will receive the training? E. Is the training going to be coordinated with the Intelligence Community in general and/or the Director of Central Intelligence? Answer to A through E: In the past year, the Department’s Office of Intelligence Policy and Review (OIPR) has conducted FISA training for FBI and/or US Attorney’s Office personnel in various cities, including San Diego, Portland, Denver, Houston, Detroit, Chicago, New York, Washington, and Boston, and at the FBI Academy in Quantico. Between May and September 2003, eight training sessions are planned for FBI and US Attorney’s Office personnel. Approximately 100 FBI agents and prosecutors are expected to attend each session. Most of the sessions will occur at the National Advocacy Center in South Carolina, while others are expected to occur in Washington, DC. In addition to FISA, topics covered by these sessions will include an overview of the intelligence community; information sharing and coordination between the intelligence community and law enforcement agencies; FBI intelligence investigations; law enforcement investigations and collection tools; litigation involving classified information; training on sections 203 and 905 of the USA PATRIOT Act, and training as required by section 908 of that Act; and the handling of classified information. OIPR, the FBI, the Criminal Division, the Executive Office for U.S. Attorneys, the Central Intelligence Agency, the Department of Homeland Security and other entities have been planning the training, and will conduct it jointly. Additional training also will be conducted for FBI personnel involved in national security investigations who are unable to attend one of these eight training sessions. 14. How many emergency FISA surveillance orders did the Department of Justice process between FISA’s enactment and September 11, 2001? How many has it processed since September 11, 2001? Has the change from 24 to 72 hours in 50 U.S.C. 1805(f) and 1824(e) facilitated the use of FISA emergency searches and surveillance, and if so, how? Answer: From the enactment of FISA in 1978 through September 11, 2001, available records indicate that Attorneys General issued 47 emergency authorizations for electronic surveillance and/or physical searches under FISA. Between September 11, 2001 and September 19, 2002, the Attorney General made 113 emergency authorizations for Page 20 -18- electronic surveillance and/or physical searches under FISA. Of course, following September 11, 2001, the Department conducted the most extensive investigation in the history of the United States, with the overriding goal of preventing another catastrophic terrorist attack occurred against the American people and the United States homeland. FISA was the critical investigative tool in that effort. The change from 24 to 72 hours in the pendency of the Attorney General’s emergency approval authority under FISA before review by the FISC has enabled the Department to respond more quickly, and therefore more effectively, to threats against our national security. By lengthening the time before approval is sought from the FISC, the Department has been able to use the emergency authority to obtain information that otherwise might well have been unavailable. Moreover, by providing additional time, the Department has been able to submit more thoroughly vetted applications originating in Attorney General emergency approvals to the FISC for its review. 15. Since enactment of the USA Patriot Act, what procedures have been implemented to improve the efficiency of processing FISA applications? Answer: On April 15, 2002, the Counsel for Intelligence Policy -- who is responsible for OIPR – reported to the Deputy Attorney General on actions taken at that time to improve the FISA process. These reforms included: • A requirement that, to improve the prioritization of FISA applications, renewal applications to the FISC were to be made at the FISC’s regular sessions, in the absence of exigent circumstances. This new requirement has enforced a more orderly preparation of renewal applications and limited the more labor-intensive “special” sessions to higher priority initiations and other, operationally driven exigencies. • Refined procedures for the vetting and requesting of emergency Attorney General approvals under FISA. In order to ensure that requests from the FBI for emergency approvals reflected the priorities of Bureau management, such requests are now made only by the Assistant Directors for Counterintelligence or Counterterrorism or their Deputies . • Establishment of regular meetings between OIPR and FBI managers to set and review priorities under FISA. • Expanded OIPR presence at FBI field offices on a continuous basis. Specifically, OIPR has placed one of its line attorneys in New York on a temporary basis to work with the New York field office, has hired an attorney to begin work on a permanent basis in San Francisco, and plans to hire attorneys permanently assigned to New York, possibly Chicago, and with other key field offices as budgets permit. Page 21 -19- • Appointment of an Assistant Counsel in OIPR to establish, with FBI attorneys, a joint FISA training program for all FBI foreign counterintelligence agents. • Adjustments by the Counsel and his Deputy for Operations, on a continuing basis, to improve the workloads, procedures, substance, and flow of the FISA process. To accommodate multiple emergency and other requests that at times may overpower OIPR duty officers, for example, the Counsel or Deputy for Operations has adjusted workloads, called for volunteers, or taken other management action to keep OIPR line attorneys productive and effective. On January 27, 2003, the Counsel for Intelligence Policy reported on the status of additional steps taken by the FBI and the Department to improve the efficiency of the FISA application process. These steps include: • Revised filing procedures with the FISC that enable it to review, adjudge, and issue orders more efficiently. • Procedures enabling FBI field offices to submit FISA requests directly to OIPR, rather than just through FBI headquarters, to accelerate the application process. • Standardization of requests from the FBI for FISA authorities that will enable faster preparation of applications. • A major reorganization approved by the Director of FBI of the units and process for handling FISA within FBI headquarters that will enable the Bureau to handle and track applications to the FISC, and to distribute its orders, more efficiently. Specifically, in November 2002, the FBI created the FISA Unit within the Office of General Counsel to perform the administrative support functions for the FISA process. The FISA unit (1) ensures that all FISA applications move expeditiously through the FISA process, coordinating with the field divisions, FBI headquarters substantive units, the National Security Law Unit (NSLU), and OIPR, (2) is overseeing the development and implementation of an automated tracking system that will electronically connect the field divisions, FBI headquarters, NSLU, and OIPR, and (3) distributes all FISA court orders and warrants to the field divisions, telecommunications carriers, Internet service providers, and others. • An affirmation of the need for regular meetings between OIPR and Bureau managers to review priorities and dockets for applications to the FISC. Page 22 -20- • Approval by the Attorney General of OIPR’s assigning attorneys to work in the field at FBI field offices to improve the preparation and handling of FISA applications and to facilitate the sharing of intelligence information between Department components in a manner consistent with FISA and applicable Court orders. Moreover, the Department has increased the capacity of OIPR by increasing the hours and workloads of OIPR attorneys, detailing lawyers from other components of the Department to OIPR, and hiring additional attorneys. In particular, since September 11, 2001, 16 lawyers have been detailed to OIPR from elsewhere in the Justice Department, and OIPR has hired 15 new attorneys. The FBI is making similar adjustments to increase the staffing of the NSLU. Finally, the Department has, in coordination with the FBI, undertaken a substantial training program outlined in the answer to Question 13. 16. In testimony presented to the Senate Judiciary on March 4, 2003, FBI Director Robert Mueller stated that: The FBI’s efforts to identify and dismantle terrorist networks have yielded major successes over the past 18 months. We have charged over 200 suspected terrorists with crimes - half of whom have been convicted to date. The rest are awaiting trial. Moreover, our efforts have damaged terrorist networks and disrupted terrorist plots across the country. In the past month alone, the FBI has arrested 36 international and 14 domestic suspected terrorists. A. What authorities under the USA PATRIOT Act were used in identifying and dismantling terror networks and were relied upon to prevent terrorist plots? Answer: The Department of Justice and the FBI have used numerous authorities provided by the USA PATRIOT Act in the investigation of the September 11 terrorist attacks, and the continuing efforts to detect and prevent terrorism before it occurs and to arrest and prosecute terrorists. The Department and FBI have used, among others, investigative authorities provided in the following sections of the Act: • 201: Adds certain terrorism crimes to the list of offenses for which wiretap orders are available. Page 23 -21- & These provisions have proven to be beneficial to law enforcement officials, as several wiretap orders have used this expanded list of terrorism offenses. • 203: Permits law enforcement to share grand jury and electronic, wire, and oral interception information containing foreign intelligence or counterintelligence with federal law enforcement, intelligence, protective, immigration, national defense, or national security officials. & The Department has made disclosures of vital information to the Intelligence Community and other federal officials under section 203 on dozens of occasions. & On September 23, 2002, the Attorney General issued guidelines that establish procedures for the disclosure to the Intelligence Community of grand jury and electronic, wire, and oral interception information that identifies a United States person, as defined by federal law. These guidelines include important privacy safeguards. For example, they require that all such information be labeled by law enforcement agencies before disclosure to intelligence agencies and be handled by intelligence agencies pursuant to specific protocols designed to ensure its appropriate use. • 205: Authorizes the FBI to expedite employment of translators in the fight against terrorism. & The Bureau has hired 264 new translators to support counterterrorism efforts, including 121 Arabic and 25 Farsi speakers. & The Bureau also is working to implement its Law Enforcement and Intelligence-agency Linguist Access system (LEILA), which will store data regarding the proficiency and security clearance levels of linguists available to the Bureau and its partner agencies. LEILA will work across agency lines to maximize the use and availability of the intelligence community’s language resources. • 207: Increases authorization periods for FISA searches and electronic surveillance. & While the details of FISA operations are classified, the FISA court has authorized operations under section 207. The USA PATRIOT Act has not only provided additional time to government Page 24 -22- investigators targeting potential terrorist activity, but has also helped the government and the FISC to focus their efforts on more far-reaching terrorism-related cases. • 209: Allows voice mail stored with a third party provider to be obtained with a search warrant (upon a showing of probable cause), rather than with a more time-consuming wiretap order. & Since the USA PATRIOT Act was passed, such warrants have been used in a variety of criminal cases to obtain key evidence, including voice-mails in the accounts of foreign and domestic terrorists. • 210: Clarifies the types of records that law enforcement can subpoena from electronic communications providers to include the means and source of payment, such as bank accounts and credit card numbers. & Prosecutors in the field report that this new subpoena authority has allowed for quick tracing of suspects in numerous important cases, including several terrorism investigations and a case in which computer hackers attacked over fifty government and military computers. • 211: Clarifies that statutes governing telephone and Internet communications (and not the burdensome provisions of the Cable Act) apply to cable companies that provide Internet or telephone service in addition to television programming. & Cable companies that provide telephone and Internet services are now subject to search warrants, court orders, and subpoenas to the same extent as all other communications carriers, ensuring that terrorists and other criminals are not exempt from investigations simply because they choose cable companies as their communications providers. • 212: Allows computer-service providers to disclose communications and records of communications to protect life and limb; clarifies that computer-hacking victims can disclose non-content records to protect their rights and property. & Section 212 has been used to disclose vital information to law enforcement on many occasions, including one case where such records enabled agents to trace kidnappers’ communications. This provision also proved invaluable in the investigation of a bomb Page 25 3 Attachment D. -23- threat against a school. An anonymous person, claiming to be a student at a high school, posted on an Internet message board a bomb death threat that specifically named a faculty member and several students. The owner and operator of the Internet message board initially resisted disclosing to law enforcement any information about the suspect for fear that he could be sued if he volunteered that information. Once agents explained that the USA PATRIOT Act created a new provision allowing the voluntary release of information in emergencies, the owner turned over evidence that led to the timely arrest of the individual responsible for the bomb threat. Faced with this evidence, the suspect confessed to making the threats. The message board’s owner later revealed that he had been worried for the safety of the students and teachers for several days, and expressed his relief that the USA PATRIOT Act permitted him to help. • 216: Amends the pen register/trap and trace statute to clarify that it applies to Internet communications, and gives federal courts authority to authorize the installation and use of pen registers and trap and trace devices in other districts. & The Department has used the newly-amended pen/trap statute to track the communications of (1) terrorist conspirators, (2) at least one major drug distributor, (3) thieves who obtained victims’ bank account information and stole the money, (4) a four-time murderer, and (5) a fugitive who fled on the eve of trial using a fake passport. & This new authority was employed in the investigation of the murder of journalist Daniel Pearl to obtain information that proved critical to identifying some of the perpetrators. & The Deputy Attorney General has issued a memorandum to field offices clearly delineating Department policy regarding the avoidance of “overcollection,” the inadvertent collection of “content” when using pen/trap devices. This guidance will help protect the privacy of Internet users by ensuring that only addressing information, and not the content of their communications, is collected and used pursuant to section 216. (A copy of this memorandum is attached.) 3 Page 26 -24- • 217: Allows victims of computer-hacking crimes to request law enforcement assistance in monitoring trespassers on their computers. & This provision has been used on several occasions. Computer security officials and law enforcement investigators around the country universally have praised this provision, and the Department is committed to implementing it fully. • 218: Allows law enforcement to conduct FISA surveillance or searches if “a significant purpose” is foreign intelligence. & As explained in the answer to question 12, this change has allowed increased coordination between intelligence and law enforcement personnel in foreign counterintelligence investigations in which FISA is being used. • 219: Permits federal judges, in terrorism investigations, to issue search warrants having effect outside the district. & This provision has been used on at least three occasions. One noteworthy example occurred during the ongoing anthrax investigation, when FBI agents applied for a warrant to search the premises of America Media, Inc., in Boca Raton, Florida—the employer of the first anthrax victim. Because of section 219, agents were able to obtain a search warrant from the federal judge in Washington, D.C., overseeing the wide-ranging investigation. This saved investigators from wasting valuable time on petitioning another judge in another district for that authority. • 220: Permits a court with jurisdiction over the offense to issue a search warrant for electronic evidence in possession of an Internet service provider located in another district. & This provision has dramatically reduced the unnecessary administrative burdens in the court districts that are home to large Internet providers, such as the Northern District of California and the Eastern District of Virginia. The enhanced ability to obtain this information quickly has proved invaluable in several time-sensitive investigations, such as one involving the tracking of a fugitive, and another involving a hacker who stole a company’s trade secrets and then extorted money from the company. • 319: Permits the forfeiture of funds held in United States interbank accounts. Page 27 -25- & On January 18, 2001, a federal grand jury indicted James Gibson for various offenses, including conspiracy to commit money laundering, and mail and wire fraud. Gibson, a lawyer, had defrauded his clients, numerous personal injury victims, of millions of dollars by fraudulently structuring settlements. Gibson and his wife, who was indicted later, fled to Belize, depositing some of the proceeds from their scheme in two Belizean banks. The Department’s efforts to recover the proceeds initially proved unsuccessful. Although Belize’s government initially agreed to freeze the monies, a Belizean court lifted the freeze and prohibited the government from further assisting American law enforcement agencies. Efforts to break the impasse failed, while the Gibsons systematically looted their accounts in Belize, purchasing yachts and other luxury items. Following the passage of the USA PATRIOT Act, a seizure warrant was served on the Belizean bank’s interbank account in the United States pursuant to section 319, and the remaining funds were recovered. & In December 2001, the Department also used section 319 to recover almost $1.7 million in funds. This money will be used to compensate the victims of the defendant’s fraudulent scheme. • 373: Makes it unlawful to run an unlicensed foreign money transmittal business; eliminates prior requirement that the defendant have known about the state licensing requirement. & On April 30, 2002, a federal jury in Boston convicted Mohamed Hussein on two charges of running a foreign money transmittal business (Barakaat North America, Inc.) without a license in violation of section 373. The al-Barakaat network was affiliated with and received funding from al Qaeda. In 2000 and 2001, after Hussein ignored Massachusetts’s warning that his business needed to be licensed, nearly three million dollars was wired from his Boston bank account to the United Arab Emirates. On July 22, 2002, Hussein was sentenced to one and a half years in prison, to be followed by two years of supervised release. • 402: Appropriates funds to triple the number of INS agents on the northern border and allocates monies to the INS and the Customs Service to make improvements in technology for monitoring the northern border and acquiring additional needed equipment. Page 28 -26- & The INS has rapidly implemented section 402, and committed to hiring 245 new agents and assigning them to the Canadian border by December 2002. The INS has arranged recruitment visits by over 300 trained border patrol agents to colleges, universities, and military installations. Since September 2001, the INS has received over 65,000 applicants for agent positions, and the agency is making selections at the rate of 1,000 per month (these selections are in various stages of the pre-employment process). The INS has also added five additional border agent basic training classes to its training schedule. & The INS also has worked to quickly install the Integrated Intelligence Surveillance System (ISIS) at 55 northern border sites. When it is completed in approximately 18-24 months, ISIS, a computer-aided detection system, will provide 24-hour/7-day border coverage through ground-based sensors, fixed cameras, and other technology. The INS further has enhanced border security by deploying three new single-engine helicopters and 500 infrared scopes for border agents at northern border stations. These scopes significantly increase agents’ night-vision capability while on patrol. • 403: Requires the FBI to share information in its National Crime Information Center (NCIC) files with INS and the State Department for purposes of adjudicating visa applications. & On April 11, 2002, the Attorney General issued a major directive on the coordination of terrorism-related information. That directive requires all of the Department’s investigative components, including the FBI, to include in the NCIC database the names, photographs, and other identifying data of all known or suspected terrorists. & Since the USA PATRIOT Act was passed, the FBI has given the State Department over 8.4 million records from NCIC databases. The FBI also has provided to the INS 83,000 comprehensive records of key wanted persons in the NCIC databases, as well as information regarding military detainees in Afghanistan, Pakistan, and Guantanamo Bay. The INS has been working with the FBI and United States Customs Service to provide to INS officers at airports NCIC data on alien passengers. An information system to permit such NCIC searches is on schedule to be deployed by the end of fiscal year 2003. Page 29 -27- • 414: Encourages the Attorney General to expedite the implementation of the integrated entry and exit data system authorized by Congress in 1996. & The INS has established a multi-agency office to ensure that the system is swiftly put into operation. On December 31, 2003, the system should be operational for all travelers to the U.S. at all air and sea points of entry. The system should be up and running at the 50 largest land points of entry one year later, and at all points of entry for all travelers by December 31, 2005. • 416: Requires the Attorney General to implement and expand the foreign student visa monitoring program authorized by Congress in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. & The INS began enrolling schools for SEVIS on July 1, 2002. On May 16, 2002, the INS published a proposed regulation that set a January 30, 2003 deadline for all schools and programs to use SEVIS for all of their foreign students. The INS has set up an outreach program for eligible schools demonstrating the benefits of SEVIS, developed training program materials, set up training sessions, begun a competitive process to select contractors to assist with the certification of schools prior to enrollment, and published a variety of guidelines and memoranda concerning SEVIS implementation. • 801: Makes it a federal offense to engage in terrorist attacks and other acts of violence against mass transportation systems. & The Department attempted to use section 801 in against “shoebomber” Richard Reid, who has been convicted of attempting to ignite a bomb hidden in his shoes during an international flight. A federal judge dropped the charge, concluding that airplanes do not fall within the meaning of “mass transportation vehicle.” Congress subsequently closed this loophole in section 609 of the “Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003,” or “PROTECT Act.” • 805: Enhances the ban on material terrorist support by making it apply to experts who provide advice or assistance to be used in preparing for or carrying out terrorism crimes, and to acts occurring outside the United States. The section also adds to the list of underlying terrorism crimes for which provision of material support is barred, makes it clear that prohibited material support includes all types of monetary instruments, and enhances penalties for material support. Page 30 -28- & On October 21, 2002, six United States citizens who live near Buffalo, New York were indicted on charges of providing support or resources to terrorists. In the early summer of 2001, these men allegedly participated in weapons training at a terrorist training camp in Afghanistan known to be used by al Qaeda. At a safehouse on the way to the camp, they are alleged to have seen a video on suicide bombing that featured the attack on the USS Cole, in which 17 U.S. sailors were murdered. The indictment alleges that the defendants also were trained in the use of assault rifles, handguns, and long range rifles. While they were at the camp, Osama bin Laden visited and delivered a speech instructing the approximately 200 trainees in anti-American and anti-Israeli sentiment as well as general al Qaeda doctrine. & On October 30, 2002, two Pakistani nationals and one United States citizen were charged with conspiring to provide Stinger anti- aircraft missiles to anti-U.S. forces in Afghanistan. Syed Mustajab Shah, Muhammed Abid Afridi and Ilyas Ali were charged with conspiracy to distribute heroin and hashish and conspiracy to provide material support to al Qaeda. The defendants allegedly arranged to exchange 600 kilograms of heroin and five tons of hashish for cash and four Stinger missiles, and stated that they intended to sell the missiles to al Qaeda forces in Afghanistan. & On November 1, 2002, four men, including a United States citizen and a U.S. resident, were charged with conspiracy to distribute cocaine and conspiracy to provide material support to a foreign terrorist organization in a drugs-for-weapons plot to deliver $25 million worth of weaponry to the United Self-Defense Forces of Colombia (known by its Spanish language acronym, “AUC”). The AUC – whose leader, Carlos Castaño-Gil, was charged with five counts of drug trafficking in September 2001 – is an 8,000-member Colombian paramilitary group listed on the State Department’s Foreign Terrorist Organization List. The two U.S.-based defendants allegedly sought to broker a deal between an undercover law enforcement officer and the other two defendants, who are high-ranking AUC leaders. The charges assert that, under the agreement, the AUC would have exchanged cocaine for five shipping containers full of Russian- and Eastern European-made weaponry, including shoulder-fired anti-aircraft missiles, 9,000 assault rifles, and 3,000 grenades. Page 31 -29- • Section 905: Requires federal law enforcement agencies to disclose expeditiously to the Director of Central Intelligence any foreign intelligence acquired by the Department in the course of a criminal investigation, except when disclosing such information would jeopardize an ongoing investigation. & On September 23, 2002, the Attorney General released guidelines that formalize the procedures and mechanisms already established for the Department of Justice and other federal law enforcement agencies that acquire foreign intelligence in the course of a criminal investigation. Whether the Department has used the surveillance techniques and other amendments authorized by sections 204, 206, 214, and 215 is classified. Accordingly, the answer relating to the Department's use of sections 204, 214 and 215 will be delivered to the Committee under separate cover. The answer relating to the Department's use of section 206 will be provided to the House Permanent Select Committee on Intelligence (HPSCI) pursuant to the direction in the Committee's letter of April 1, 2003, and in keeping with the longstanding Executive branch practice on the sharing of operational intelligence information with Congress. B. In your judgment, how many of those investigations would have been much more difficult or impossible without the authorities available under the Act? Answer: In our judgment, the Government’s success in preventing another catastrophic attack on the American homeland in the 20 months since September 11, 2001, would have been much more difficult, if not impossibly so, without the USA PATRIOT Act. The Department’s overall experience is that the authorities Congress provided in the Act have substantially enhanced our ability to prevent, investigate, and prosecute acts of terrorism. Some of the authorities provided in Title II of the Act substantially eased administrative burdens and increased the efficiency of law enforcement without changing the underlying substantive legal standards – for example, sections 219 and 220. In such cases, the USA PATRIOT Act’s authorities made available resources that otherwise would have been devoted to administrative tasks, thereby maximizing the law enforcement personnel available to investigate terrorists. In other instances, the Act in fact allowed the Department to access information that previously had been unavailable, as a legal or practical matter, or simply more difficult to obtain. For example, the Department’s response to question 12, supra, explains how section 218 of the Act facilitated the terrorism investigation of Sami Al-Arian and other alleged members of a Palestinian Islamic Jihad cell in Tampa, Florida. Page 32 -30- 17. The Act supplemented the government’s authority to freeze and forfeit assets of suspected terrorists and terrorist organizations. Please provide the Committee with information related to the freezing or confiscation of such assets since the enactment of the Act. A. Please identify all suspected terrorists or terrorist organizations whose assets the federal government has frozen or forfeited? Answer: Since September 11, 2001, the United States has frozen over 600 bank accounts and $124 million in assets around the world. We have conducted 70 investigations into terrorist financing with 23 convictions or guilty pleas to date. The Department of Justice has not been given the responsibility of freezing terrorist assets held in the United States. Such freezing results from the designation of terrorist-related groups and individuals under Executive Order 13224 and the International Emergency Economic Powers Act (IEEPA), both of which are enforced by the Treasury Department’s Office of Foreign Assets Control (OFAC). However, Justice Department lawyers have successfully defended in court a number of these freezings – for example, on December 31, 2002, the Seventh Circuit upheld Treasury’s freeze on the assets of Global Relief Foundation, which is believed to have supported Osama bin Laden, al Qaeda, and other known terrorist groups. See Global Relief Found. v. O’Neill, 315 F.3d 748 (7th Cir. 2002). In most terrorism cases, it has not been necessary for the Justice Department to seek forfeiture of U.S.-based terrorist assets under the USA PATRIOT Act’s new authorities, because the assets had already been frozen by OFAC. “Forfeiture,” unlike freezing, enables a court to transfer to the United States the ownership of assets which are the proceeds of or are related to a particular crime. Section 806 of the USA PATRIOT Act expanded the government’s authority to forfeit terrorist-related assets; this change was codified at 18 U.S.C. § 981(a)(1)(G). After September 11, 2001, the Department of Justice filed a seizure warrant on a New Jersey bank account suspected of containing assets belonging to one or more of the 19 dead hijackers. The Department also included a forfeiture count in the Texas indictment of Hamas leader Musa Abu Marzook, United States v. Elashi, CR No. 3:02-CR-052-R (N.D. Tex. filed Dec. 17, 2002). Each of these actions, however, were based on pre-USA PATRIOT Act authority. B. Please identify the specific authority, whether or not under the Act, that the federal government has asserted in freezing or forfeiting the assets of suspected terrorists or terrorist organizations. Page 33 -31- Answer: The judicial forfeiture action in the Marzook case was predicated on money laundering. Assets of terrorists and terrorist organizations, and those who act for or on behalf of, provide financial or other support for, or are otherwise associated with them, can also be frozen pursuant to Executive Order 13224 (Global Terrorism) and Executive Order 12947 (Individuals and Groups who Threaten Middle East Peace Process). C. Have any seizures or forfeitures been challenged in court? Answer: The Civil Division of the Justice Department has been involved in judicial challenges to the OFAC designation and freezing actions of terrorist-related entities that have a U.S. presence. These challenges involved two Illinois-based charities suspected of being associated with al Qaeda (Benevolence International Foundation and Global Relief Foundation), a Texas entity believed to be a Hamas front (Holy Land Foundation for Relief and Development) and two entities affiliated with an al Qaeda-connected Somalian financial network known as al-Barakaat (Global Service International, Inc. and Aaran Money Wire Service). D. What have been the results of any such challenges? Answer: The United States was successful in defending the Holy Land Foundation challenge in district court, and the case is now on appeal to the D.C. Circuit. One issue remains in the district court and has been stayed. The Seventh Circuit affirmed the district court’s denial of a preliminary injunction in Global Relief Foundation and ruled in favor of the government on all of the statutory and constitutional claims raised in the appeal. The government has moved to dismiss the remaining issues in the case on the grounds that the administrative record amply supports Global Relief’s designation under Executive Order 13224. Although the designations of certain Barakaat-related entities have been withdrawn, their challenge has not yet been dismissed. E. Has any court, pursuant to section 316 of the Act (codified at 18 U.S.C. § 983 note), admitted evidence that would otherwise be inadmissible in a forfeiture proceeding? If so, on what circumstances justified admitting such evidence in such cases? Answer: Because no forfeiture cases have yet been brought pursuant to 18 U.S.C. § 981(a)(1)(G), there has been no occasion to invoke the tool provided in section 316 of the Act. To the extent that section 316 also applies to freezing orders and confiscations under IEEPA, the Department of Justice is unaware of any instances where the evidentiary rules discussed in section 316 were invoked. Page 34 -32- 18. Section 402 authorizes appropriations to triple the number of INS Border Patrol Agents and Inspectors in each state along the Northern Border, and also authorizes appropriations to provide necessary personnel and facilities to support such personnel. A. How many additional Inspectors has the INS hired at the Ports of Entry along the Northern Border? B. How many of those hires are working as Inspectors along the Northern Border at this time? C. By how many Inspectors has the total staffing at the ports along the Northern Border increased since September 11, 2001? Answer: Pursuant to the Committee’s April 1, 2003, letter, in light of the transfer of the Immigration and Naturalization Service (INS) to the Department of Homeland Security (DHS), we have referred these questions to DHS for a response. We previously provided the Committee with a copy of this referral. 19. What technology improvements have been completed and what additional technology improvements are planned for FY2003 expenditures to improve Northern Border security? Answer: Pursuant to the Committee’s April 1, 2003, letter, in light of the transfer of the INS to DHS, we have referred this question to DHS for a response. We previously provided the Committee with a copy of this referral. 20. Subtitle B of Title IV of the USA PATRIOT Act gives the Attorney General additional authority to detain certain suspected alien terrorists, and improves systems for tracking aliens entering and leaving the United States and for inspecting aliens seeking to enter the United States. Section 411 amends the Immigration and Nationality Act (INA) to broaden the scope of aliens ineligible for admission or deportable due to terrorist activities, and defines the terms “terrorist organization” and “engage in terrorist activity.” A. Has the INS relied upon the definitions in section 411 of the Act to file any new charges against aliens in removal proceedings? If so, how many times has it used each provision? Answer: Prior to the transfer of the INS to DHS, the INS had not relied upon the definitions in section 411 of the Act to file any new charges against aliens in removal proceedings. Page 35 -33- Despite the fact that this authority has not yet been used, each case is reviewed for the potential use of the section 411 amendments to the immigration law. The options in reviewing the case of a suspected alien terrorist range from continuing an ongoing intelligence-gathering operation to criminal prosecution to removal, including both conventional removal under Title II of the Immigration and Nationality Act (INA) to removal before the Alien Terrorist Removal Court under Title V of the INA. Cases are reviewed with the goal of taking the appropriate action to protect the national security. In the past, decisions have been made to forego filing security-related charges (that would include the amendments made by section 411 of the USA PATRIOT Act) for a variety of reasons, including: (1) the fact that the underlying evidence on the security-related removal charge is classified and cannot be declassified; (2) there was a clear non-security-related charge of removability that would result in a more expeditious removal since security-related charges of removal may generate more litigation; (3) aliens charged with security-related grounds of removal have asserted claims for asylum based on the fact that they have been labeled as “terrorists” by the United States government, thus prolonging the proceedings. B. In your July 26, 2002 response, you stated that one alien had been denied admission under these new provisions. Have any aliens been denied admission under these grounds since that response? Answer: Prior to the transfer of the INS to DHS, at least three aliens had been denied admission under these new provisions. C. What effect have the amendments to the INA in section 411 of the Act had on ongoing investigations in the United States? Answer: Since passage of the Act and before transfer of INS to DHS, INS and the Department’s Criminal and Civil Divisions issued field guidance and undertook numerous training efforts to familiarize INS field attorneys and officers, Assistant U.S. Attorneys, FBI officials, and other federal personnel with the new provisions. This guidance is being employed in pending investigations. D. Section 212(a)(3)(F) of the INA, as amended by section 411 of the Act, renders inadmissible any alien who the Attorney General determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities endangering the United States. Has the Attorney General made such a determination with respect to any alien thus far? Answer: The Justice Department had not made use of this provision prior to the transfer of INS to DHS. Page 36 -34- The security-related cases we have encountered at ports-of-entry in the recent past have involved aliens subject to removal on other grounds. Due to the time sensitivity of such cases, it was more expeditious to deny admission based on other charges than to refer the cases to the highest levels of the Departments of Justice and State. Nevertheless, we believe that this authority is an important tool to maintain in current law for use in appropriate cases. E. Have there been any challenges to the constitutionality of the charges added to the INA by section 411 of the Act? If so, please identify the case(s) and the status of the proceedings. Answer: Because, prior to the transfer of the INS to DHS, the INS had not relied upon the definitions in section 411 of the Act to file any new charges against aliens in removal proceedings, this question is inapplicable. 21. Section 412 of the Act provides for mandatory detention until removal from the United States (regardless of relief from removal) of an alien certified by the Attorney General as a suspected terrorist or threat to national security. It also requires release of such alien after seven days if removal proceedings have not commenced, or if the alien has not been charged with a criminal offense. In addition, this section of the Act authorizes detention for additional periods of up to six months of an alien not likely to be deported in the reasonably foreseeable future if release will threaten our national security or the safety of the community or any person. It also limits judicial review to habeas corpus proceedings in the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia, or any district court with jurisdiction to entertain a habeas corpus petition, and limits the venue of appeal of any final order by a circuit or district judge under section 236A of the INA to the U.S. Court of Appeals for the District of Columbia. A. At the time of your July 26, 2002 response, you had not used the authority in Section 412. Have you used the authority since that response? If so, please state: i. How many of the aliens for whom certifications have been issued have been removed? ii. How many aliens for whom the Attorney General issued certifications are still detained? At what stage of the criminal or immigration proceedings are each of those cases? iii. How many of the aliens who were certified have been granted relief? How many of those aliens are still detained?
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