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Page 37 -35- iv. Have any challenges to certifications under section 236A(a)(3) of the INA been brought in habeas corpus proceedings in accordance with section 236A(b)? If so, please identify the case(s) and the status of each proceeding. v. Has the Attorney General released any aliens detained under section 236A because the alien was not charged with a criminal offense or placed into removal proceedings within seven days? vi. How many non-certified aliens have received relief from removal and remain detained longer than 6 months since such relief was ordered? Answer to i through vi: Prior to the transfer of INS to DHS, the Attorney General did not use the authority provided by section 412 of the USA PATRIOT Act for the mandatory detention of certified aliens. Numerous aliens who could have been considered for section 236A certifications have been detained since September 11, 2001 and the enactment of the USA PATRIOT Act. It has not been necessary, however, to use the new certification procedure in these particular cases because traditional administrative bond proceedings have been sufficient to detain these individuals without bond. We believe that this authority should be retained for use in appropriate situations. 22. On September 20, 2001, the INS issued an interim rule amending the period of time that an alien may be detained while the agency assesses whether to issue a Notice to Appear (NTA), placing the alien in immigration proceedings. Prior to amendment, the INS was required to issue an NTA within 24 hours of the alien’s arrest. As amended, the INS has 48 hours after an alien is arrested to decide whether to issue an NTA, “except in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time.” A. What is the authority for the INS to detain an alien for longer than 48 hours without filing charges? B. How many aliens have been detained for more than 48 hours without being charged under the authority in this regulation? C. What is the longest period that an alien has been detained without being charged under the authority in this regulation? D. Have any challenges to this regulation been brought in judicial proceedings? If so, please identify the case(s) and the status of each proceeding. Page 38 -36- Answer: Pursuant to the Committee’s April 1, 2003, letter, in light of the transfer of the INS to DHS, we have referred these questions to DHS for a response. We previously provided the Committee with a copy of this referral. 23. Since September 11, 2001, the government has required that certain non-citizens from certain Middle Eastern countries register with the INS (or its successor agency). A. How many terrorists or suspected terrorists have been investigated and/or detained as a result of the requirement that non-citizens register with the federal government? B. What is the government’s policy regarding whether non-citizens are able to have counsel present during the registration process, specifically during the interview? C. If counsel are not permitted at any point, what is the government’s authority for denying such right to counsel? Answer: Pursuant to the Committee’s April 1, 2003, letter, in light of the transfer of the INS to DHS, we have referred these questions to DHS for a response. We previously provided the Committee with a copy of this referral. 24. Since September 11, 2001, how many individuals have been deported from the United States? To what countries were those individuals deported? What was the racial and ethnic background of such individuals? For what reason were these individuals deported? 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. Attorney General’s Investigative Guidelines 25. On May 14, 2002, the Department issued revised investigative guidelines that established procedures for the initiation of investigations by the Federal Bureau of Investigation (“Bureau”). A. Why were the guidelines for General Crimes and Domestic Security Investigations revised when the apparent threat against the United States is a threat from foreign terrorist groups? Do these guidelines apply only to investigations of U.S. citizens? Are U.S. citizens not subject to the foreign intelligence investigative guidelines? Page 39 -37- Answer: In May 2002, the Attorney General issued a revised version of the Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations (the Guidelines). The previous version of the Guidelines also governed criminal investigations of domestic and international terrorism. The revision of the Guidelines was critical in providing the FBI with the appropriate tools to combat terrorism, because foreign terrorists often engage in conduct that violates the criminal laws of the United States. These guidelines apply to criminal investigations of citizens and non-citizens alike. Similarly, both citizens and non-citizens are subject to the classified foreign intelligence guidelines, though in certain instances standards in those guidelines are different for U.S. persons and non-U.S. persons. B. The new guidelines allow FBI agents to attend a public event, such as a political demonstration or a religious service, and to use data mining services, provided doing so is for the purpose of preventing or detecting terrorism. How will it be determined that the purpose of attending the event or using the service is to prevent or detect terrorism? How does the amount of evidence establishing that predicate differ from the amount of evidence that would be sufficient to check out leads or open a preliminary inquiry? What level of predication is required to permit FBI agents to attend public events or to use data mining services? Answer: The revised Attorney General’s Guidelines were designed to afford FBI agents the same degree of access to publicly available information as all other members of the general public enjoy. The old Guidelines did not clearly authorize agents to gather information for counterterrorism or other law enforcement purposes – for example, by visiting public places, or researching publicly available information – unless they were looking into particular crimes or criminal enterprises. In effect, agents had to wait for terrorist plots to develop, and for some lead or evidence to come from others, before they could begin gathering information. The revised Guidelines were designed to enable law enforcement to proactively gather intelligence that could be useful to detecting and preventing terrorist attacks, by attending public events or collecting publicly available information. Agents can do so, however, only to the extent that such events or information are available to any other member of the general public. Part VI.A.2 of the Attorney General’s Guidelines specifically provides that “[f]or the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally.” The Guidelines specifically mandate that “[n]o information obtained from such visits shall be retained unless it relates to potential criminal or terrorist activity” and prohibit the FBI from “maintaining Page 40 -38- files on individuals solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution or laws of the United States.” The Guidelines also authorize the FBI to operate and participate in identification, tracking, and information systems for the purpose of identifying and locating terrorists, excluding or removing from the United States alien terrorists and alien supporters of terrorist activity as authorized by law, assessing and responding to terrorist risks and threats, or otherwise detecting, prosecuting, or preventing terrorist activities. The Guidelines authorize the FBI to engage in these activities (subject to certain limitations, including those mentioned above) in the absence of a pre-existing lead or specific predication. This authority is designed to enable the FBI to draw proactively on available sources of information in order to prevent acts of terrorism. The determination whether a proposed use of this authority is for the purpose of preventing or detecting terrorism is made by the relevant FBI field office, and an agent who attends a public event when unrelated to preventing or detecting terrorism is subject to sanction for violating the Guidelines. The Guidelines also recognize three levels of investigative activity: (1) the prompt and extremely limited checking out of initial leads; (2) preliminary inquiries (which are undertaken when there is information or an allegation that indicates the possibility of criminal activity and the responsible handling of which requires some further scrutiny beyond checking initial leads); and (3) full investigations (which may be initiated where facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed). C. Since the issuance of these guidelines, how many religious sites (mosques, churches, temples, synagogues, etc.) have federal authorities entered in an official capacity without disclosing their identities? Please provide the total number of such sites and a breakdown of how many were affiliated with each particular type of site (mosque, church, temple, synagogue, etc.). When agents visit religious sites pursuant to AG guidelines, what investigative tools are they permitted to use (i.e., wearing a wire, placing a listening device in the site)? If the information obtained from such visits is found unrelated to any criminal or terrorist investigation, when is such information destroyed and in what manner? Have, and if so provide details, any terrorism-related investigations or prosecutions resulted from such visits? Answer: The revised Attorney General’s Guidelines clarify that agents who are investigating individuals with ties to religious groups may use the same Page 41 -39- techniques they would use when investigating any other person. Individuals affiliated with religious entities are not singled out for special scrutiny. But neither will they have effective immunity from lawful investigations. The old Guidelines did not clearly state that FBI agents could investigate terrorists with ties to mosques in the same way they could investigate suspects with ties to other sorts of entities. As a result, agents were reluctant to follow suspected terrorists into mosques – even when those facilities were held open to all members of the general public. The lack of clear authority to proactively collect terrorism- related information may have hampered the FBI’s investigation of Sheik Omar Ahmad Rahman, who was convicted for his role in the 1993 World Trade Center bombing. According to one media account: Although the FBI placed Rahman’s bodyguard and driver under loose surveillance, Rahman himself was never questioned or put before a grand jury. Nor were his offices bugged, according to a former senior FBI official. Records of Rahman’s mosques in Brooklyn and Jersey City were never subpoenaed, and no wiretaps were put on the mosques’ phones, the official said. FBI Wary of Investigating Extremist Muslim Leaders, W ASH . P OST , Oct. 29, 2001, at A04. The new Guidelines simultaneously enhance the FBI’s ability to visit public places and attend public events, and impose significant limitations designed to safeguard the civil liberty and privacy of law-abiding citizens. The new Guidelines allow FBI agents, like any community police officer, to visit public places and attend public events, but only “on the same terms and conditions as the general public.” In addition, the Guidelines prohibit agents from retaining any information from such visits unless it relates to potential criminal or terrorist activity. Because the FBI only retains from such visits information about potential terrorist attacks or other criminal conduct, it does not keep records or statistics reflecting the number of occasions that agents have visited public places. However, in response to numerous requests, officials in the FBI’s Office of the General Counsel recently conducted an informal survey of the FBI’s field offices. Their discussions with approximately 45 field offices indicate that fewer than ten of those offices have conducted investigative activities at mosques since September 11, 2001. All but one of those visits were conducted pursuant to, or were related to, open preliminary inquiries or full investigations. In the one reported instance where a visit was conducted pursuant to the Guidelines provision authorizing agents to visit public places and attend public events, no information relating to Page 42 -40- potential terrorism or criminal activity was found and, therefore, no substantive information from the visit was retained in FBI records. D. Since the issuance of these guidelines, how many public meetings, and what types of such meetings (rallies, town halls), have federal authorities entered in an official capacity without disclosing their identities? When agents visit public meetings pursuant to FBI guidelines, what investigative tools are they permitted to use (e.g., wearing a wire, placing a listening device in the meeting area)? If the information obtained from such visits is found unrelated to any criminal or terrorist investigation, when is such information destroyed and in what manner? Have, and if so provide details, any terrorism-related investigations of prosecutions resulted from such visits? Answer: The new Guidelines allow the FBI to proactively visit public places and attend public events to detect or prevent terrorist activities prior to developing evidence of the possibility of criminal activity or a specific lead. Use of this tool is explicitly limited to the detection and prevention of terrorist activities. If an agent desires to collect evidence of non-terrorism crimes by visiting public places and attending public events, he or she must first be within one of the categories of authorized investigative activity – either the prompt and extremely limited checking out of leads, a preliminary investigation, or a full investigation. The investigative techniques that are authorized during attendance at public places depend upon the stage of the investigation when the public visit occurs. For example, the Guidelines bar the use of non-consensual electronic surveillance except during a full investigation. Moreover, all constitutional, statutory, and regulatory restrictions on the use of any investigative technique must, of course, be observed. FBI agents who visit public places and events may not retain any information unless it relates to terrorism or other criminal activity. As a result, the Department has not maintained centralized statistics on how many times agents attend public meetings. E. Are FBI agents required to record in writing – before they use data mining techniques or attend a public event under the guidelines -- how such activity is for the purpose of detecting or preventing terrorism? Answer: There is currently no requirement that agents record in writing the purpose for which they use information systems. The determination whether a proposed use of this authority is for the purpose of preventing or detecting terrorism is made by the relevant FBI field office, and an agent who attends a Page 43 -41- public event when unrelated to preventing or detecting terrorism is subject to sanction for violating the Guidelines. F. The changes to the preliminary inquiry procedures extended the period that such an inquiry can remain open and allowed extensions for up to a year without notice to FBI Headquarters. In considering this change, did you find that your field agents had been reluctant to conduct preliminary inquiries because they could not keep them open long enough without burdensome approval requirements? What other problems did the 90-day limit present to agents? What other problems did requiring approval from Headquarters to continue a preliminary inquiry present to agents? How does Headquarters conduct important analysis of information generated by a preliminary inquiry if Headquarters is unaware of the inquiry for a year? Answer: The revised Guidelines extend the period to complete the preliminary inquiry to 180 days. Additional extensions of time may be granted for 90-day periods. The first two extensions may be granted by the Special Agent in Charge (SAC), upon a statement of reasons why further investigative steps are warranted when no “reasonable indication” of criminal activity exists. All extensions following the second extension may only be granted by FBI Headquarters, upon receipt of a written request and the statement of such reasons. The prior 90-day limit did not always afford a sufficient period within which to make an appropriate analysis of the value of continuing the investigation. Finally, agents are required to share foreign intelligence collected during criminal investigations -- including during preliminary inquiries -- with the intelligence community pursuant to the Attorney General’s Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation, adopted on September 23, 2002. G. The Guidelines now permit a Special Agent in Charge to open a terrorism enterprise investigation without obtaining approval from FBI Headquarters. Instead, Headquarters must only be notified. What is contained in the required notice? Does the notice provide enough of a description of the evidence to permit FBI Headquarters to make an evaluation of the evidence and determine whether the investigation should continue or is it simply a formal notification that such an investigation has been opened and/or is continuing? Will the information in the notification be sufficient to use it to coordinate that investigation with others? Answer: As part of the initiation of a Terrorism Enterprise Investigation (TEI), field offices are required to submit to FBI Headquarters a communication setting Page 44 4 Attachment E. -42- forth a factual description describing how the predication standards for the initiation of the TEI have been satisfied. Additionally, a Section Chief within the Counterterrorism Division must concur with the initiation of the TEI. FBI Headquarters must also submit to the Department of Justice a memorandum justifying the initiation of the TEI. These procedures are described in Part III.B of the Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations. (A copy of the Guidelines is attached.) 4 Finally, with respect to coordination of terrorism investigations, field agents are required to share foreign intelligence collected during criminal investigations with the intelligence community pursuant to the Attorney General’s Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation, adopted on September 23, 2002. Such sharing does not ordinarily occur through FBI Headquarters. H. Who at the Bureau is responsible for making and approving the decision for a field agent to enter a public place, and must such approval be in writing prior to entering the public place? Answer: The Guidelines do not require supervisory approval before an agent enters a public place on the same terms and conditions as members of the public generally. I. After a field agent visits a public place or event, are any notes or other records of what he or she observed retained? If so, under what circumstances, for what reasons, and for how long are they retained? Under what circumstances is information related to protected 1 st Amendment activity retained in FBI or DOJ files? Are any records retained if a preliminary inquiry is never opened? Answer: No substantive information obtained from the visit may be retained unless it relates to potential criminal or terrorist activity. If information obtained during the visit rises to the level of a lead, such information must be properly documented, including a statement describing how the information is related to potential criminal and/or terrorist activity, and then filed accordingly. If the visit does not develop information relating to potential criminal or terrorist activity, an agent must note in the file the date, time and place visited and that the visit had negative results. J. Who has access to any records and how does the FBI keep them secure? Page 45 -43- Answer: The FBI is subject to numerous laws, regulations, and policies regarding access to and the security of FBI systems and records. Safeguards include maintaining records in limited access space and password protections on computerized data. All FBI personnel are required to pass an extensive background investigation. Information is accessed only by authorized FBI personnel or by non-FBI personnel properly authorized to assist in the conduct of an agency function related to the information. K. Given the transfer of a substantial number of agents into terrorism investigations, what training did those agents receive on the use of the Guidelines? Answer: One hundred of the agents transferred to counterterrorism squads have received training on the Guidelines at the Basic Counterterrorism Operators In- service at the FBI Academy in Quantico, Virginia; 160 more agents will receive this training at the same course that started April 21, 2003. In January 2003, training on the revised Guidelines was given at the annual Chief Division Counsel (CDC) conference. The goal was to enable the CDCs to provide subsequent training to agents stationed in their respective field offices. In addition, instruction on the revised Guidelines was given during a recent Joint Terrorism Task Force conference. L. With the FBI’s authority to “data mine” under the Guidelines, many fear that the FBI will have too much information and that the Bureau does not currently have the tools necessary to make good use of intelligence or to keep vast amounts of information secure. What has been done and is being done to improve the Bureau’s ability to interpret all of this new data? What security measures have been implemented to prevent unauthorized access to such data? Answer: The Secure Counterterrorism Operational Prototype Environment (SCOPE) and Investigative Data Warehouse constitute the FBI’s programs to provide current technologies to investigators and analysts and to collaborate with its law enforcement and intelligence partners. SCOPE will allow the FBI to use a number of specialized tools to identify and present hidden relationships found in data. The FBI is also utilizing software products that allow for the search, retrieval, and categorization of information. In addition, the CIA and NSA are helping to upgrade the FBI’s analytic tradecraft by training and co-locating their personnel with FBI analysts. With respect to security, please see the answer to question (J), supra. The same FBI security measures apply for preventing unauthorized access to law enforcement data. It is restricted to those with a need to know and is limited to official duties. Access to all data is logged and recorded. Specifically, the FBI Page 46 -44- Special Technologies Applications Section (STAS) implements user-access- control by issuing a user-ID and password to every authorized user. It implements role-based security by assigning every user to roles that are required for their position, and labels every record in the database with necessary tags to protect the confidentiality of the data. Distribution procedures require that all reports be vetted through an FBI agent who reviews the dissemination list and report produced. M. Since the Guidelines permit the use of “publicly available” information, what efforts are going to be made to verify the accuracy of the data retrieved? Will agents be required to attempt to independently verify retrieved information for accuracy? Answer: Safeguards to ensure the accuracy and reliability of information are essential components of any effective information system. Pursuant to a directive of the Director of the FBI, Reports Officers are being assigned to Headquarters and Field Offices to vet information provided to law enforcement, intelligence, and policy entities and to ensure its accuracy. In collecting information for law enforcement purposes, it is impossible to determine in advance what specific information is relevant, timely, and complete. With the passage of time information may acquire new significance as further investigation brings new details to light. Trained investigators and analysts exercise due diligence to verify information through links, relationships, and other interpretations discovered during investigative efforts. N. What type of supervision will be required when agents use data mining? Will field agents be able to initiate data mining on their own or will they be required to obtain approval from a supervisor? Answer: Since all FBI personnel using information systems will have the proper security clearance, access and need to know, general supervision guidelines will apply. Agents are able to access information systems based on their own investigative need and authorization, and the system will keep track of where and what is accessed. Supervisors can review this information as necessary. O. What data mining services has the FBI used? How long will data obtained through data mining be retained and how will it be indexed? Answer: The FBI does not use a data mining service but typically uses search engines, queries and indexing programs in order to collate and access its information systems. Search results from such information systems will be maintained in accordance with the Federal Records Act and applicable records Page 47 -45- disposition schedules. Data is indexed in accordance with FBI Indexing Guidelines. P. In its May 2002 Report on Financial Privacy, Law Enforcement, and Terrorism, the Prosperity Task Force on Information Exchange and Financial Privacy outlined many problems with sharing too much information with too many countries and without proper controls. How has the FBI protected against the wide distribution of information to too many countries without proper controls? Answer: The FBI, Department of Justice, and Intelligence Community have substantial controls on dissemination of information to foreign countries. These controls are extensive and complex in nature and are applied according to the manner in which information is obtained and disseminated. For example, any dissemination of information first depends upon the means by which it was collected/obtained – e.g., via federal grand jury or other subpoena process, court authorized criminal search warrants and Title III electronic surveillance orders, consent searches, FISA-authorized searches and surveillance collections, National Security Letters, and other sensitive and classified intelligence collection methods and sources. Dissemination of information obtained via criminal court authorized processes is subject to controls imposed by various court orders, statutes, and the Federal Rules of Criminal Procedure. Dissemination of information obtained or derived from FISA is likewise subject to controls imposed by the FISA and the Foreign Intelligence Surveillance Court. Furthermore, the FBI’s National Security Law Unit and the Department’s Office of Intelligence Policy and Review are consulted on and provide appropriate advice on dissemination of FISA and foreign intelligence information. Information obtained or derived from the FISA process is always appropriately marked as such to ensure any dissemination complies with relevant procedures and controls. With regard to foreign intelligence information, the Director of Central Intelligence formulates policy concerning relationships between the U.S. Intelligence Community and foreign intelligence services. Classified information is designated by established classification levels and marked according to established classification standards which include appropriate controls over dissemination of the information. As is the case with information obtained or derived from grand jury subpoenas and Title III orders, the USA PATRIOT Act removed many barriers to the timely sharing of information between counterintelligence and counterterrorism intelligence operations and criminal investigations. While many barriers have been removed, extensive controls over dissemination of information still remain. With regard to information obtained or derived from other than the means addressed above, dissemination to foreign governments is carefully scrutinized and evaluated according to a number of factors ranging from the sensitivity and potential Page 48 -46- importance of the information to the status of the country to which the information is to be provided, and is evaluated in context with the reason the information was requested and the intended use of the information. In short, the FBI does not and cannot haphazardly disseminate information to foreign countries without proper controls and careful evaluation. Q. Since Syria, Cuba, Libya, Iran, Iraq, China, and others are members of Interpol and share in the international information exchange system, what procedures prevent these countries from receiving information on terrorist suspects who may be supported by participating countries? Answer: The information provided by an Interpol Member Country remains the Member Country’s information and that Member Country controls the distribution and use of that information and can ask for the information to be deleted or adapted. For example, when a Member Country, providing information to the Interpol General Secretariat (IPSG), asks for database checks to be completed or queries other Member Countries and provides a copy to the IPSG, the Member Country provides information regarding any further distribution of this information. The Member Country may advise that the information cannot be released without prior authorization, may specifically state which countries, regions or zones can receive the information, or may designate that the information can be provided to all Interpol Member Countries. Most Member Countries utilize a mixture of all three options, depending on the sensitivity of the investigation and the specific information. Many Member Countries also have a routine rule regarding most police information, including or excluding specific countries or regions. As such, information provided by the United States remains U.S. information, and the U.S. controls the distribution and use of that information. R. The Guidelines permit acceptance and retention of information “voluntarily provided by private entities.” What will the FBI do to ensure the accuracy of the information received from such sources? To what extent have such “private entities” been third parties as opposed to the specific individuals to whom the information pertained? How does the Department interpret “voluntarily” (e.g., does it mean the information was unsolicited, was provided pursuant to a government request, or was provided pursuant to a government subpoena?)? Answer: Evaluation of source information has always been a fundamental component of FBI investigations. Historically, agents have received information from various sources, including criminal informants, anonymous callers, or other sources of information. The decision to take action based on such information, its use in obtaining investigative tools such as search warrants and electronic surveillance court orders, and ultimately the use of such information in a criminal Page 49 -47- prosecution have always required an assessment of the reliability of the information provided by the source and/or the credibility of the source of information. The FBI does not have readily available data indicating to what extent private entities voluntarily providing information have been third parties, as opposed to specific individuals to whom the information pertained. The FBI interprets “voluntarily” as meaning the information was provided other than in response to compulsory process (e.g., a grand jury or other subpoena). S. Where and how is information obtained through data mining stored? Is access to data obtained through data mining limited to those involved in a particular investigation? How is erroneous information corrected or purged, if at all? Has the Department issued written policies to provide guidance in this area? Does it plan to issue such policies? Answer: To the extent that Department activities in the collection, use or dissemination of records are subject to Privacy Act restrictions, the Department must comply with these restrictions, regardless of the medium involved. Information obtained by the FBI is stored in appropriate FBI systems in both hard copy and electronic format. Access to data is governed by applicable legal restrictions, including the Privacy Act. Amendment or correction of data is conducted in accordance with the Privacy Act. Sections 16.40 to 16.55 of Title 28, Code of Federal Regulations, contain Department of Justice Privacy Act rules. Has, and from what companies, the Department purchased information or entered into contracts with data mining companies? To what extent and how will persons listed in such information be able to correct errors or inaccuracies? Answer: The Department has purchased information or entered into contracts with companies that warehouse public source information. Persons listed in those data collections should seek to correct errors or inaccuracies with source agencies. The FBI has access to Lexis/Nexis news, public source and financial data on a query basis; however, it is currently not aggregated with any other data. Commercial data from Choicepoint and iMap is also available for our unclassified users and its use is based on acceptable DOJ privacy constraints. The FBI also has access to a number of other databases from non-DOJ components of the intelligence community at the classified level that are currently being used for data-mining and pattern recognition. A listing of all the classified databases that are available through Intelink, Intelink-S, and CT-Link should be addressed to the Director of Central Intelligence. Additionally, the FBI has access to a number of Page 50 -48- unclassified sources from non-DOJ components such as the State Department VISA application database and INS data, as well as unclassified data from the Open Sources Information System (OSIS) as part of the intelligence community. T. Is retained information reviewed at reasonable intervals to determine its continuing relevance to antiterrorism efforts? If so, who is responsible for performing such reviews? Answer: Yes, retained information is reviewed at reasonable intervals to determine its relevance. Reviews may be routinely performed by analysts, case agents, task force members, supervisors, and legal counsel. In the course of an investigation, trained investigators and analysts exercise due diligence to verify information through links, relationships and other interpretations discovered during the use of information systems and other investigative efforts. Miscellaneous Authorities 26. There have been numerous reports that the Department of Justice has detained individuals as material witnesses, presumably pursuant to judicial orders under 18 U.S.C. § 3144, in connection with terrorism investigations. Please provide the Committee with the following information with respect to each such detainee since September 11, 2001: (1) the length of detention of each detainee; (2) the number of such detainees who either sought review of or filed an appeal from a detention order under 18 U.S.C. § 3145; and (3) the results of such review or appeal. A. Were these individuals given access to legal counsel? If not, why not? Answer: Every single person detained as a material witness as part of the September 11 investigation has been represented by counsel. Indeed, material witnesses have the right to a lawyer who can assist them in challenging the legality of the detention at any time. The witnesses get counsel at their first appearance before a judge. The court will appoint free counsel for material witnesses who are financially unable to obtain adequate representation. See 18 U.S.C. § 3006A(a)(1)(G) (“[r]epresentation shall be provided for any financially eligible person who . . . is in custody as a material witness”). Other witnesses may retain counsel of their choice. Every single person detained as a material witness as part of the September 11 investigations was found by a federal judge to have information material to the grand jury’s investigation. An individual may be detained under the material witness statute, 18 U.S.C. § 3144, only when a federal judge concludes that (1) his testimony is “material in a criminal proceeding,” (2) it may become impracticable to secure his presence by subpoena, and (3) he meets the criteria for detention under the Bail Reform Act, 18 U.S.C. § 3142. These witnesses also all have the Page 51 -49- right to be presented promptly before a judge to have bond set and to argue that they should be released on bond. In some cases, the Government has agreed to release individuals on bond, and courts have released witnesses on bond in a few additional cases. See, e.g., United States v. Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. 2002). Material witnesses have status hearings in court, when requested by their counsel or scheduled by the judge, regarding the length of their detention and progress toward obtaining their testimony. We note that Rule 6(e) requires secrecy of everyone involved in the grand jury process except the witness. Thus, each of the detained material witnesses is free to identify himself publicly. The fact that few have elected to do so suggests they wi***heir detention to remain non-public. With respect to the request for details about material witnesses detained during terrorism investigations, the Department of Justice has consistently taken the view that Federal Rule of Criminal Procedure 6(e) and court orders in individual cases prohibit it from revealing the exact numbers of material witnesses who are detained pending their testimony before a grand jury. The Department also cannot reveal the details of cases, as that would reveal the direction and focus of secret grand jury proceedings. In addition, disclosing such specific information would be detrimental to the war on terror and the investigation of the September 11 attacks. Thus, it continues to be imperative that the specific number of material witnesses detained as part of the September 11 investigation, the districts and investigations to which they relate, and the length of their detention not be released. Likewise, the Department cannot provide the number of detainees who may have appealed their detention orders, or the results of such appeals, except where they have been made public by the courts. See, e.g., United States v. Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. 2002); In re the Application of the United States for a Material Witness Warrant, 213 F. Supp. 2d 287, 288 n.1 (S.D.N.Y. 2002) (neither the witness’s name nor identifying facts are set forth in the opinion because the matter was sealed as proceedings ancillary to grand jury proceedings). We note that the use of the material witness statute is rarely challenged on appeal, probably because the use of the statute in grand jury proceedings is an appropriate law enforcement technique authorized by Congress, routinely used by the Department, and repeatedly approved by federal courts nationwide. See Bacon v. United States, 449 F.2d 933 (9th Cir. 1971), In re the Application of the United States for a Material Witness Warrant, 213 F. Supp. 2d 287 (S.D.N.Y. 2002). There have been some misconceptions in the public about the number of material witness warrants that the Government issued as part of its September 11 investigation, as well as the circumstances, length, and terms of these detentions. Notwithstanding the restrictions noted above on releasing specific information Page 52 -50- about material witnesses, the Department is able to provide some general information about these material witnesses: • As of January 2003, the total number of material witnesses detained in the course of the September 11 investigation was fewer than 50. • Approximately 90% of these material witnesses were detained for 90 days or less. • Approximately 80% of these material witnesses were detained for 60 days or less. • Approximately 50% of these material witnesses were detained for 30 days or less. • The few individuals detained for more than 90 days were detained for an extended period of time in part because they pursued litigation that precluded obtaining their testimony, made efforts to proffer or seek immunity before testifying, or took other actions that delayed the proceedings. While such actions are legitimate, they often take time to resolve and can result in longer detention. Moreover, some detainees facing deportation did not pursue efforts to provide prompt testimony. B. What is the percentage breakdown for the detainees in terms of national origin, race, and ethnicity? Answer: We do not maintain data on these characteristics of detained material witnesses. C. Please list the charges that the Department has brought against each such detainee. Answer: We can only provide information about those material witnesses whose status has been made public in court proceedings. In this regard, Osama Awadallah was charged with perjury; Abdallah Higazy was charged with lying to federal agents; Mohammed Osman Idris was charged with false statements on a passport application; Mohammed Hassan El-Yacoubi was charged with false statements on a passport application; Saleh Ali Almari was charged with conspiracy to commit mail and wire fraud; Earnest James Ujaama was charged with conspiracy to provide material support to Al Qaeda and with using, carry, possessing and discharging a firearm during a crime of violence; and Zacarias Moussaoui was charged with conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to murder United States employees, conspiracy to commit aircraft piracy, conspiracy to use weapons of mass destruction, conspiracy Page 53 -51- to destroy aircraft, and conspiracy to destroy property. Most material witnesses remain witnesses and have not been charged with a criminal offense. D. Please provide the legal basis for detaining those individuals who have been cleared of any connection with terrorism beyond the date of such clearance. Answer: When a material witness has satisfied his warrant by providing the relevant information he possesses, the warrant is dismissed and the witness is then released unless he is transferred to custody on another legal basis, such as immigration charges or federal or state criminal charges. E. Please provide a list of all requests by the government to seal proceedings in connection with any of the detainees and copies of any orders issued pursuant thereto. Answer: We are prohibited by court orders from providing any information regarding specific sealed material witness proceedings, including copies of sealing orders. We routinely move to seal all grand jury material witness proceedings pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. 27. On October 31, 2001, the Department of Justice promulgated an interim rule, with provision for post promulgation public comment, that requires the director of the Bureau of Prisons to monitor or review the communications between certain inmates and their lawyers for the purpose of deterring future acts that could result in death or serious bodily injury to persons or substantial damage to property that would entail the risk of death or serious bodily injury to persons. 66 Fed. Reg. 55062, 55066 (2001). A. How many inmates have been subject to the interim rule? Answer: The Attorney General has ordered the monitoring of attorney communications for a single inmate: Sheik Omar Ahmad Rahman, who was convicted for his part in the 1993 plot to bomb the World Trade Center. He is confined in the Administrative Maximum United States Penitentiary in Florence, Colorado. A federal grand jury has indicted Rahman’s lawyer, Lynne Stewart, for helping him communicate with his terrorist associates outside of prison. According to the indictment, Stewart distracted prison guards while Rahman and his translator discussed whether to continue to comply with a cease-fire in terrorist activities against Egyptian authorities. Page 54 -52- Rahman and his attorneys were notified that their communications were subject to monitoring. No monitoring has occurred, however, because the inmate and his attorneys thus far have chosen not to communicate further with each other. B. The interim rule required prior written notification to an inmate and any attorneys involved “[e]xcept in the case of prior court authorization. 66 Fed. Reg. at 55066. Under this exception to the required notification, how many cases were there/are there where inmates and their attorneys were not notified that their communications were monitored? Answer: In our interpretation, the requirement that prior written notification be given to an inmate and attorneys involved “[e]xcept in the case of prior court authorization” refers to a court-authorized interception. While there may have been cases where inmates have been targeted and conversations have been intercepted between such inmates and their attorneys, Title III requires that those conversations be minimized, i.e., not listened to after initial identification of the parties involved, due to the attorney-client privilege. There also may have been cases where attorneys have been the subject of an investigation and, as a result, had their conversations intercepted. Such conversations would have also been minimized under established procedures. Neither the Department, nor any federal law enforcement agency to our knowledge, maintains any records that track the number of attorneys and/or inmates whose communications were intercepted and/or monitored by prior court authorization. C. The interim rule prohibited disclosure of information prior to approval of disclosure by a federal judge, except where the person in charge of the monitoring determines that acts of violence or terrorism are imminent. How many times did the person in charge of the monitoring disclose information after approval by a federal judge? After a determination that acts of violence or terrorism are imminent? Answer: As indicated in the answer to question 27(A), supra, no monitoring has occurred under the interim rule. Thus, there have been no occasions in which information obtained through monitoring has been disclosed. D. How many post-promulgation comments were received by the Department of Justice? Answer: The Bureau of Prisons received thousands of form letters and approximately 30 substantive comments on the interim rule during the comment period. E. Is the Department of Justice considering any revisions to the interim rule? Page 55 -53- Answer: The Department of Justice is considering the comments and is in the process of preparing the final rule. 28. The Department of Defense has detained two United States citizens in military prisons in the United States as enemy combatants. These detentions have been challenged in court, where the Department of Justice has represented the Department of Defense. Has the Department of Justice received any information regarding the detention by the Department of Defense within the United States or abroad of any other United States citizens? Does the Department of Justice have any agreement, arrangement, or understanding, formal or informal, with the Department of Defense regarding the detention of United States citizens as enemy combatants? Answer: At this time, the Department of Justice is aware of the detention by the Department of Defense (either within the United States or abroad) of no United States citizens as enemy combatants besides Yaser Hamdi and Jose Padilla. As the question notes, the Department of Justice has represented officials of the Department of Defense who have been named respondents in habeas corpus actions brought on behalf of detained enemy combatants. The Department of Justice is assigned that role by statute. See 5 U.S.C. § 3106. Thus, at least to this extent, the Department of Justice has a “formal” “arrangement” with the Department of Defense regarding the detention of U.S. citizens as enemy combatants and litigation surrounding such detentions. The Department of Justice and Department of Defense also maintain lines of communication to ensure that intelligence concerning persons who may properly be deemed enemy combatants (a category that might, from time to time, potentially include U.S. citizens) is shared in a timely manner in order to permit each department to carry out its functions. 29. FBI Director Robert Mueller announced the formation of “flying squads” that would be prepared to be deployed on short notice into terrorism investigations. A. Have these “flying squads” been formed? Answer: Yes, the Flying Squads were created in June 2002. B. How many agents are assigned to a flying squad? Answer: Two flying squads have been formed within the FBI’s Counterterrorism Division, with a total of 24 agents. Both flying squads are managed by a Unit Chief and supported by a Supervisory Special Agent for administrative deployment matters. Each of the two flying squads is led by a Team Leader (Supervisory Special Agent), an Assistant Team Leader (Term-Supervisory Special Agent), and is staffed with nine Special Agents. Page 56 -54- C. What kind of training have the flying squad agents received? Answer: Flying squad agents have received training in post-blast investigations and personal safety while working in an overseas environment. In the near future, they will receive specialized training in the following: major case management, basic statement analysis, effective interrogation and negotiation techniques, crisis management, FISA, weapons of mass destruction, advanced overseas security awareness, U.S. Embassy operations, U.S. intelligence community operations and issues, and other specialty areas. D. Have they been deployed into investigations? Answer: Yes, the flying squads have been deployed into investigations. E. If so, how many times? Answer: Since their establishment, the flying squads have deployed 23 times (12 domestically and 11 internationally). F. Did they prove to be a useful addition to the investigation to which they were deployed? Answer: Yes. Flying squads have been used to very good operational effect. They have been deployed at the direction of FBI Headquarters executive management, field office management and Legal Attaches. The flying squads, as necessary, have been accompanied by an array of FBI operational and supporting assets, including terrorist financial operations and analysis, intelligence, laboratory/forensics and substantive investigative specialists. The flying squads have proved useful in assisting FBI field offices and Legal Attaches in their terrorism investigations, to determine the whereabouts of all subjects, assess their involvement in terrorist activities, determine links to others, and to fully exploit all investigative techniques (e.g., FISA). The flying squads have provided guidance, strategies, and analytical support to the requested field offices or Legal Attaches and have recommended various courses of action. Such assistance has been very beneficial to the terrorism investigative efforts of field offices and Legal Attaches. 30. Does the FBI use, as one of its terrorism investigative tools, aircraft to conduct surveillance of various persons or locations? What type of information is sought using such surveillance? Answer: The answer to this question is classified and, accordingly, will be delivered to the Committee under separate cover. Page 57 -55- 31. Has the DOJ through any of its agencies formulated a policy position regarding criteria for establishing the authenticity of foreign government-issued identity cards since the passage of the USA PATRIOT Act? If so, please produce a copy of that position. 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. 32. Has the DOJ through any of its agencies, including especially the INS, prepared or issued a policy with regard to security standards and acceptance of “Matricula Consulars” identity cards issued by foreign governments to persons who are residing in the United States but who may not be lawfully present in the United States.? If so, has that policy been provided in writing to the Office of Management and Budget, the Secretary of State, or the Secretary of the Treasury? If such a policy has been prepared, please provide a copy to the Committee. Answer: The Department of Justice is currently participating in an interagency process to develop an Administration policy regarding consular identification cards. We refer you to DHS for information related to the former INS on this issue. 33. Regarding the FBI’s National Crime Information Database, has the Department lifted a requirement that the FBI ensure the accuracy and timeliness of information about criminals and crime victims before adding it to the database? Please provide a copy of any memoranda pertaining to the requirement that was lifted. Answer: The FBI recently obtained a limited Privacy Act exemption for the National Crime Information Center (NCIC) database but the exemption does not change any of the requirements for entry, audit, validation, and hit confirmation of NCIC records as provided for in the Criminal Justice Information Services (CJIS) User Agreement and the NCIC 2000 Operating Manual. Paragraph (j)(2) of the Privacy Act permits the head of any agency to promulgate rules to exempt any system of records within the agency from certain provisions of the Privacy Act. When an agency claims an exemption, it must publish reasons for the exemption in the Federal Register and afford the public an opportunity to comment. Paragraph (e)(5) of the Privacy Act states that agencies shall maintain all records used by the agency in making any determination about any individual “with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” On January 31, 2003, the FBI published a proposed rule in the Federal Register exempting the NCIC (JUSTICE/FBI-001) from paragraph (e)(5) of the Act. See 68 F.R. Page 58 -56- 4974 (Jan.31, 2003). No comments were received regarding the proposed rule. Accordingly, after the close of the public comment period, on March 24, 2003, the FBI published a final rule exempting NCIC from paragraph (e)(5) of the Act. See 68 F.R. 14141 (Mar. 24, 2003). 34. Is the FBI ordering its field offices to ascertain the number of mosques and Muslims in their areas? Is the government seeking membership lists from mosques? If so, why? From how many mosques is the government seeking such lists? How, if at all, has the agency reassigned its agents as a result? How many investigations of or prosecutions for terrorism as a result of these activities? Answer: The FBI has undertaken a broad demographic assessment for the primary purpose of providing FBI Executive management with a snapshot of each field office’s working environment and of the communities they serve. As a relatively small part of that broad assessment, information concerning the number of mosques and the approximate size of the Muslim population in a given geographic area was collected, mostly from publicly available sources. If the FBI is to perform effectively its primary mission of detecting and preventing acts of terrorism, our field offices need to reach out to the overwhelmingly law-abiding and patriotic members of these communities to help us locate terrorists and their supporters who may reside among them in an effort to avoid detection. The demographic survey has facilitated the FBI’s efforts in knowing where these communities are concentrated and where to turn for assistance. For example, the FBI has reached out to these communities to assure them that, despite the emphasis on counterterrorism, investigating civil rights remains a high priority of the FBI. The FBI field offices have been tasked to contact Muslim leaders for the purpose of establishing a dialogue and discussing procedures for alerting the local FBI office to such issues. Over 500 such meetings have occurred since September 11, 2001. 35. Is the Department assisting in the implementation of the Computer Assisted Passenger Prescreening System (CAPPS I or II), which would be used to screen airline passengers? A. To what extent is the Department, or any of its components, providing information about specific persons for inclusion in CAPPS? Answer: CAPPS I and CAPPS II are projects of the Transportation Security Administration (TSA), which is part of DHS. CAPPS II is currently under development and will function as a server that, when operational, will examine and check passenger identification with associated information in airline passenger name records. Following this check, CAPPS II will then match the Page 59 -57- individual passenger name characteristics against numerous government databases and other criminal and public databases. One of the databases that CAPPS II, when operational, proposes to access is the Violent Gang Terrorist Organization File (VGTOF) that is maintained by the FBI. The VGTOF is the FBI’s primary list of suspected terrorists. An individual may be entered into VGTOF by FBI field offices if there is an open terrorism case in the field office. In addition, even if no case has been opened by a field office, an individual’s name may also be entered into VGTOF by the FBI’s Terrorist Watch and Warning Unit if the individual is of special interest to the Counterterrorism Division at FBI Headquarters. B. From what databases or other sources, including companies, does such information come from? Answer: As previously mentioned, FBI field offices, based on an open terrorism case, and the FBI’s Terrorist Watch and Warning Unit may enter an individual’s name into VGTOF. Information regarding an individual to be entered in VGTOF may come from but is not limited to: leads developed during an open terrorism case in FBI field offices, human intelligence sources, court authorized electronic surveillance sources, and information shared with the FBI by other law enforcement, intelligence, and homeland security agencies. C. What checks are in place to ensure that the information is accurate and does not constitute inappropriate profiling? Answer: TSA can provide additional information regarding the accuracy of the information accessed by CAPPS II. D. In what manner are individuals afforded an opportunity to correct erroneous or inaccurate information? Answer: TSA can provide additional information regarding the correction of erroneous or inaccurate information found in CAPPS II. 36. “Operation Liberty Shield” involves stopping cars at airports, checking the identification of truckers who transport hazardous material on the highway, and monitoring Internet and financial transactions. A. Please identify the specific authority on which “Operation Liberty Shield” was created and implemented. B. What level of predication is required before an agent may monitor the Internet and financial transactions? Page 60 -58- C. What terrorism-related investigations and/or prosecutions have resulted from Operation Liberty Shield? Answer: Pursuant to the Committee’s April 1, 2003, letter, in light of the transfer of the INS to DHS, we have referred these questions to DHS for a response. We previously provided the Committee with a copy of this referral. 37. There have been three successive FBI sweeps since September 11, 2001, to monitor, question, arrest, detain, or deport various immigrants. The first sweep focused on young Arab and Muslim males and occurred in the months following September 11, 2001. The second sweep occurred in March 2002 and centered on thousands of individuals of Middle Eastern and South Asian heritage. The third sweep occurred in March 2003 as part of “Operation Liberty Shield.” Please provide information on each of these operations. A. When were the plans for such operations first considered by the Department? B. What guidance was provided to U.S. Attorney’s Offices and/or FBI offices with respect to questions that should be asked of such immigrants? C. What has been the outcome of each of these plans? Please provide details such as how many were monitored, questioned, arrested, detained, or deported for each operation. Please provide details as to the number and types of terrorism-related investigations and prosecutions that have resulted from these sweeps. D. Please identify the specific authority relied on to create and implement these plans, including the monitoring, questioning, arrests, detentions, and deportations. Answer: The answers relating to these questions are classified, and, accordingly, will be delivered to the Committee under separate cover. 38. In August 2002, a Justice Department rule went into effect giving authority to state and local police to enforce immigration laws. A. Which state and local governments are using this new authority and to what extent? B. How many immigration violations were found as a result of state and local law enforcement participation under this new authority? Page 61 -59- C. Have any persons or groups affected by this new authority (e.g. immigrants, civil rights organizations) submitted any formal complaints to the Department (including the Inspector General) regarding this authority. If so, please provide details. Answer to A through C: The only rule that went into effect in August 2002 giving authority to state and local police to enforce immigration laws was the Mass Influx Rule, published at 67 F.R. 48354 (July 24, 2002). This rule, which implements authority given the Attorney General in section 372 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C., 110 Stat. 3009-46, gives state and local police the authority to assist federal immigration officers in the event of a mass influx of aliens as declared by the Attorney General (now the Secretary of DHS). This rule requires the signing of a Memorandum of Understanding with the state or local government and requires training, although under a rule published on February 26, 2003, the training requirement may be abbreviated or waived in unanticipated situations requiring an expeditious response to protect the public safety, public health, or national security. To date, there has been no declaration that a situation of a mass influx of aliens exists. Consequently, no state or local government has exercised this authority, and therefore no immigration violations were found as a result of state and local law enforcement participation under this new authority. We are not aware of any complaints regarding this authority (other than comments received during the rule-making process). This question may be referring to the inherent arrest authority that is possessed by States. This power is not the creation of the federal government. However, the Attorney General did cite this authority on June 5, 2002, in announcing the development of the National Security Entry-Exit Registration System (NSEERS). He stated the following: “When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed on the NCIC [National Crime Information Center] for violating immigration law, federal law permits them to arrest that individual and transfer him to the custody of the INS. The Justice Department’s Office of Legal Counsel has concluded that this narrow, limited mission that we are asking state and local police to undertake voluntarily – arresting aliens who have violated criminal provisions of Immigration and Nationality Act or civil provisions that render an alien deportable, and who are listed on the NCIC – is within the inherent authority of the states.” With respect to the legal authority of state and local law enforcement officers to arrest such aliens, the Justice Department’s Office of Legal Counsel (OLC) Page 62 -60- previously had opined that states possess inherent authority to arrest aliens for criminal immigration law violations generally. In April 2002, OLC additionally opined that states also possess inherent authority to arrest aliens whose names have been entered into the NCIC database because they have both (1) violated civil provisions of the federal immigration laws that render them deportable and (2) been determined by federal authorities to pose special risks, either because they present national security concerns or because they are absconders who have not complied with a final order of removal or deportation. The federal government has never preempted this authority; the only barriers to executing such arrests are statutes or policies that states or municipalities may have imposed upon themselves. This authority is crucial to the success of the absconder initiative. Although every absconder has potentially committed a criminal immigration violation because ignoring a final order of removal is a criminal act, the crime occurred only if the act was “willful.” As of February 2003, 1,141 absconders had been apprehended, with 545 removed from the United States, 391 in the custody of federal immigration authorities awaiting removal, and 44 under criminal prosecution by the United States Attorneys for various crimes. Some of the apprehensions involved local law enforcement officials. Others did not. We do not have a statistical breakdown indicating which of these arrests involved civil immigration violations or which local law enforcement agencies, if any, were involved. The exercise of this arrest authority in the context of the absconder initiative has not generated any formal complaints by arrested aliens. However, there has been one highly-speculative lawsuit on the issue, Tejeda-Delgado, et. al., v. City of Los Angeles, in which several removable plaintiffs (who were not arrested) claim that the INS conspired to have the Los Angeles Police Department wrongfully arrest them for civil deportation purposes by posting their names in the NCIC database.
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