Does Subsidiezed transit violate free trade agreements?

[Anonymous]

PUBLIC SERVICES AND THE SCOPE
OF THE GENERAL AGREEMENT ON TRADE IN SERVICES
(GATS)
A RESEARCH PAPER
WRITTEN FOR CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW (CIEL)
BY MARKUS KRAJEWSKI 1
1 Visiting Attorney, Center for International Environmental Law (CIEL), Europe, Dr. jur. (University of Hamburg). I
would like to thank Elisabeth Türk and Matthew Stilwell (CIEL, Europe) for helpful discussions and valuable comments
on earlier drafts. The views expressed in this paper are personal opinions and do not necessarily reflect those of CIEL.
Comments are greatly appreciated: [e-mail]
2
Table of Contents
I. Introduction ............................................................................................................................ 3
II. Background ........................................................................................................................ 4
1. What are „public services“? ........................................................................................... 4
2. Why does the scope of GATS matter? ........................................................................... 5
Box 1 – Examples of Possible Public Services Challenges ............................................................... 5
III. Provisions Determining the Substantive Scope of GATS........................................................ 6
IV. The use of Article I:3 (b)(c) GATS in WTO documents and discussions.......................... 6
1. Secretariat background notes and papers ....................................................................... 7
2. Discussions among WTO members ............................................................................... 8
V. Interpretation according to generally accepted methods of public international law ......... 9
1. Standards of treaty interpretation ................................................................................. 10
2. Supply on a „commercial basis“................................................................................... 10
3. Supply in „competition with one or more service suppliers“....................................... 12
4. Context of Article I:3(b),(c) GATS .............................................................................. 13
a) Annexes........................................................................................................................ 13
b) Schedules of Specific Commitments............................................................................ 14
5. Subsequent practice and preparatory work................................................................... 15
a) Subsequent practice, agreements, and other rules of international law.................... 15
b) Preparatory work ...................................................................................................... 16
6. Conclusion.................................................................................................................... 17
VI. Further interpretative principles: restrictive and effective interpretation......................... 18
1. Restrictive Interpretation .............................................................................................. 18
2. Effective interpretation.................................................................................................19
VII. „Legislative“ possibilities to narrow the scope of GATS ................................................ 20
1. Amendment to GATS or interpretative understanding ................................................ 20
2. Authoritative interpretation .......................................................................................... 21
3. Non-binding statement ................................................................................................. 21
Geneva
May 2001
3
I. INTRODUCTION
The General Agreement on Trade in Services (GATS) contains international rules on the
transnational supply of services in the framework of the WTO. While some free trade advocates
have hailed the agreement as „the most important single development in the multilateral trading
systems since the GATT“2, many civil society groups and trade unions have been critical about the
agreement and its possible future development in ongoing negotiations. They have voiced
concerns about the potential impact of the GATS on local, national and regional policies aimed at
economic and social development, environmental protection and cultural objectives.
Often these policies involve the provision of certain services through public entities, such as
energy, water, health, education, communication and transportation services. The relationship
between these „public services“ and the GATS is therefore an area of specific concern, particularly
in light of negotiating proposals made by some WTO Members in the „market access“ phase of the
GATS 2000 negotiations regarding education, energy, postal, telecommunications and
transportation services.3
At the center of these concerns are questions about the extent to which GATS rules may affect the
supply of „public services“. The answer to these questions depends on the coverage of „public
services“ by the GATS (are public services covered, and if so, to what extent?), and on the content
of current and possible future GATS disciplines (for those public services that are covered, what
does the GATS require?). A clear understanding of the scope if the GATS is therefore important
for governments currently negotiating and for civil society groups monitoring these negotiations.
This research paper examines the scope of the GATS. It focuses on GATS Article I:3, the provision
determining whether „public services“ are covered by the agreement, and adopts primarily a legal
perspective, only suggesting some policy considerations at the very end.
This paper is divided into seven parts. After this introduction, it commences in Section II by
offering some background on public services, and identifying the need to clearly define the scope
and coverage of the GATS. Section III contains the provisions determining the substantive scope of
the GATS. Based on an examination of WTO documents and discussions, section VI notes that
there is currently no agreed understanding of this provision among WTO Members or within the
Secretariat. The central part of this note, Section V examines Article I:3 in light of generally
accepted principles of interpretation in public international law. It notes that the provision’s
meaning is not entirely clear, and that an argument in favor of broad coverage can be made.
Because many civil society groups are concerned about an expansive reading of GATS, Section VI
explores further interpretative principles, and argues that a more narrow interpretation can be
reached by using them. However, since these methods do not provide full legal certainty, the final
section of this paper is devoted to „legislative“ methods of narrowing the scope of GATS.
2 WTO Secretariat, Trade in Services Division, An Introduction to the GATS, October 1999, availabe on-line at:
http://www.wto.org/engli***ratop_e/serv_e/serv_e.htm (visited 18 May 2001).
3 See the WTO webpage for these proposals: http://www.wto.org/engli***ratop_e/serv_e/s_propnewnegs_e.htm (visited
18 May 2001).
4
II. BACKGROUND
The following paragraphs will provide those readers not familiar with the implications of the
coverage of public services by the GATS with some background comments. These comments will
be rather short, since the main focus of this paper is its legal reasoning. Readers familiar with the
implications of the relationship between GATS and public services may want to immediately
proceed to Section III.
1. What are „public services“?
The concept of what constitutes a „public service“ differs in different contexts, among groups in
society, and from country to country. This is partly the case because of certain historic
developments, varying social and political values, and differing notions of the appropriate role of
the State and the market. In Europe, for example, there is a strong tradition of public health
systems (either based on taxes or on mandatory insurances), while health services in the United
States are predominantly supplied on private market conditions. The supply of „public services“
also depends on the resources available to governments, which are different in developed and
developing countries.
Because of the different concepts of „public services“, and because neither the GATS nor other
WTO agreements explicitly use this term, this paper will not refer to the term in general, but use
specific examples when illustrating certain arguments. Nevertheless, it is worth making a few
general comments about what constitutes a “public service”, as context for the following analysis.
Apart from obvious differences between countries, the understanding of „public services“
depends on the “lens” through which we view the concept. The following three approaches are
not meant to be exhaustive, but simply highlight the conceptual implications of the term.
First, the term „public services“ can be used in a rather general way to refer to services considered
as a „public“ or „common good“.4 Examples would include health, social, and education services,
as well as postal, basic telecommunication, or public transportation services. This understanding
of „public services“ is thus based on a sectoral approach and focuses on what is supplied.
Second, a „public service“ can be understood as a service provided to the general public. In the
European context this understanding is often equated with the notion of a „universal service
obligation“ (i.e. the obligation to supply the service universally at affordable conditions, often
without distinguishing between the costs of supply in different regions). The notion of „universal
service“ focuses thus on to whom and under which conditions the service is supplied. This approach
leads partly to similar results as the first one, because education, postal, basic telecommunication,
energy or transportation services are often attributed with a universal service obligation.
A third concept of „public services“ can be based on the understanding that a service is provided
by a public entity, either by the government itself (regardless at what level), by a governmental
agency or by a public enterprise. This concept focuses therefore on who is supplying the service.
All three notions have overlapping areas. Many services supplied on a universal basis are
supplied by a governmental agency or a government-owned company. However, if a city
government maintains its own road construction unit, the construction services supplied by this
unit are not supplied on a universal basis, because they are only supplied for the city itself.
4 „Public good“ is not used in the economic sense here.
5
2. Why does the scope of GATS matter?
The question of how GATS influences services such as education, health, water, or energy supply
depends on the substantive scope of GATS, because the scope of the agreement determines which
services are covered, and which are not. If a service is covered by GATS all horizontal disciplines
(such as Article II, Most-Favored-Nation, or Article III, transparency) apply to it. The scope of the
Agreement is also relevant if a member has made specific commitments concerning market access
(Article XVI) and national treatment (Article XVII). In such a case the scope of GATS also
determines the scope of these specific commitments, because a specific commitment only applies
to those services sectors or subsectors covered by the GATS in general. If a service sector is
covered by GATS disciplines (be they horizontal or specific) any measure affecting trade in that
service must be GATS conform. If it is suspected that the measure violates GATS provisions, a
WTO Member could bring this case to the WTO dispute settlement mechanism and, ultimately,
the Appellate Body could require a GATS-inconsistent supply of a service to be altered (see Box 1).
Box 1 – Examples of Possible Public Services Challenges
The following examples illustrate how certain ways of supplying services in sectors often referred
to as „public services“ could possibly violate GATS provisions.
Health Services: Country A has a shortage of doctors and nurses and therefore concludes a
bilateral agreement with country B granting doctors and nurses from B the right to offer medical
services in A. This bilateral agreement may be determined by a WTO panel to violate Article II
GATS, because the preferential treatment of service suppliers from B over service suppliers from
other countries is not in accordance with the most favored nation principle. However, the bilateral
agreement would only be a violation of Article II GATS, if the supply of medical services were
covered by GATS.
Postal Service:
Country C makes an unconditioned market access commitment under mode 3 (commercial
presence) in postal services. If country C maintains a monopoly for its national postal service
concerning letter distribution (but not in other postal services), this monopoly could violate GATS
disciplines on monopoly providers (Article VIII) and the market access commitments (Article
XVI). Again, this would be only the case if the supply of postal services would be covered by the
GATS.
Water Supply Services: Country D - a small developing country - wants to continue its practice of
distributing fresh water to its citizens through local authorities. If in market access negotiations,
country E - a large industrialized country - would request market access in that sector, it would be
more difficult for country D to resist that request, if water supply would fall in the scope of GATS.
While the third example is a situation concerning issues of bargaining and negotiations power and
has thus a political impact, the first and second examples constitute classic legal conflicts and
could result in a dispute settlement proceeding in the WTO.
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III. PROVISIONS DETERMINING THE SUBSTANTIVE SCOPE OF GATS
The scope of the GATS is determined by Article I of the Agreement. Accordingly, the GATS
applies to „measures by Members affecting trade in services“ (Article I:1). The term „trade in
services“ is defined as supplying services in any of the four modes (Article I:2); and the term
„measures of Members“ as measures of governmental and of non-governmental entities (Article
I:3(a)). The crucial definition concerning the kind of services covered by the GATS can be found in
Article I:3 GATS:
For the purposes of this Agreement …
b) „services“ includes any service in any sector except services supplied in the exercise of
governmental authority;
c) „a service supplied in the exercise of governmental authority“ means any service
which is supplied neither on a commercial basis, nor in competition with one or more
service suppliers.5
The substantive scope of GATS depends on how the notion of a „service supplied in the exercise
of governmental authority“ is understood. Such a service must meet two cumulative conditions: It
must neither be supplied on a commercial basis nor in competition with one or more service
suppliers. If a service is provided on a non-commercial basis but in competition with other
suppliers or on a commercial basis but without competition, it is not a service supplied in exercise
of governmental authority. The scope of the GATS therefore depends on an understanding of the
notions „supplied on a commercial basis“ and „supplied in competition with one or more services
suppliers“.
It is important to notice the relationship between the scope of the GATS and the scope of Articles
I:3(b) and I:3(c): If a broad definition of “commercial basis” and “in competition” is adopted, the
notion of governmental authority is narrow and almost all services would be covered by GATS. If
a more narrow interpretation of „commercial basis“ and „in competition“ is adopted, the scope of
„governmental authority“ is larger and more services are not covered by GATS.
IV. THE USE OF ARTICLE I:3 (B)(C) GATS IN WTO DOCUMENTS AND DISCUSSIONS
Since this scope is determined by Article I:3(b),(c) GATS, a clear and coherent understanding of
this provision is necessary to determine if a service is covered by GATS. A look at recent WTO
documents shows that there is a great amount of uncertainty about the exact scope of this
provision.6 Neither the Secretariat nor WTO Members have a clear and coherent understanding of
the meaning of Article I:3 (b),(c).
5 The French version of Article I:3(b),(c) GATS reads: “Aux fins du présent accord: (...) b) les „services“ comprennent
tous les services de tous les secteurs à l'exception des services fournis dans l'exercice du pouvoir gouvernemental; c) un
„service fourni dans l'exercice du pouvoir gouvernemental“ s'entend de tout service qui n'est fourni ni sur une base
commerciale, ni en concurrence avec un ou plusieurs fournisseurs de services“ and the Spanish version: „A los efectos
del presente Acuerdo: (...) b) el término „servicios“ comprende todo servicio de cualquier sector, excepto los servicios
suministrados en ejercicio de facultades gubernamentales; c) un „servicio suministrado en ejercicio de facultades
gubernamentales“ significa todo servicio que no se suministre en condiciones comerciales ni en competencia con uno o
varios proveedores de servicios.“
6 For an overview of these documents see also Government of British Columbia, Ministry of Employment and
Investment, GATS and Public Service Systems, available on-line at http://www.ei.gov.bc.ca./Trade&Export/FAAWTO/
governmentalauth.htm (visited May 5, 2001).
7
1. Secretariat background notes and papers
In a series of background notes on various services sectors, the WTO Secretariat has given some
indication about its understanding of Article I:3(b),(c) GATS.
In a background note on postal and courier services prepared for the Council for Trade in Services
(CTS) the Secretariat stated: „There might also be a relation between postal services provided by
wholly government entities and the GATS Article I provision excluding government functions.
Postal services of a Member, whatever the status of the postal supplier, would be services covered
by the GATS as long as, and which is usually the case, they are supplied on a commercial basis.“7
Considering legal services the Secretariat held that „the administration of justice (judges, court
clerks, public prosecutors, state advocates, etc.) (...) is effectively excluded from the scope of the
GATS as in most countries it is considered a ‘service supplied in the exercise of governmental
authority’ according to Article I:(3)(c) of the Agreement.“8 However, the Secretariat also argued
that „in some countries, certain notarial activities are regarded as ‘services supplied in the exercise
of governmental authority’, like legal services pertaining to the administration of justice.
However, unlike judges, court clerks and public prosecutors, who are civil servants, notaries often
supply their services ‘on a commercial basis’, and therefore are subject to the provisions of the
GATS.“9
In the background note on health and social services the Secretariat observes that „the institutional
arrangements governing the provision of health, medical and social services may vary widely,
from complete government ownership and control to full market orientation. On the one hand,
there is the possibility of services being provided "in the exercise of governmental authority",
meaning, according to Article I:3(c) GATS, that they are supplied neither on a commercial basis
nor in competition. A case in point of such activities - not covered by the GATS - is the provision
of medical and hospital treatment directly through the government, free of charge. In contrast,
other systems may allow for full private participation without access controls, apart from qualityand
qualification-related regulation, at freely negotiated prices.“ According to the Secretariat the
co-existence of government-owned and private hospitals „may raise questions (...) concerning
their competitive relationship and the applicability of the GATS: in particular, can public
hospitals nevertheless be deemed to fall under Article I:3?“ The Secretariat concludes by stating
„that the hospital sector in many countries, however, is made up of government- and privatelyowned
entities which both operate on a commercial basis, charging the patient or his insurance for
the treatment provided. Supplementary subsidies may be granted for social, regional and similar
policy purposes. It seems unrealistic in such cases to argue for continued application of Article 1:3
and/or maintain that no competitive relationship exists between the two groups of suppliers or
services.“10
In the background note on environmental services the secretariat acknowledges that the scope of
Article I:3 (b)(c) GATS is not entirely clear11: „(...)[T]he question does arise of when public service
functions fall within the scope of GATS disciplines and when they do not. A key issue is whether
sales are made on a commercial basis. To begin with, it is not completely clear what the term
"commercial basis" means.“ The note continues:
Nevertheless, if services were deemed to be supplied on a commercial basis, then,
regardless of whether ownership was in public or private hands, the sector would be
7 Postal and Courier Services, Background Note by the Secretariat, 12 June 1998, S/C/W/39, p. 2 (emphasis added).
8 Legal Services, Background Note by the Secretariat, 6 July 1998, S/C/W/43, p. 4, No. 15.
9 Legal Services, supra note , p. 3, Footnote 2.
10 Health and Social Services, Background Note by the Secretariat, 18 September 1998, S/C/W/50, p. 10-11, No. 37-39.
11 Environmental Services, Background Note by the Secretariat, 6 July 1998, S/C/W/46, p. 14-15, No. 52-53.
8
subject to the main GATS disciplines and to the negotiation of commitments under
Articles XVI and XVII. A different issue arises in situations in which the government has
privatized certain services as local monopolies and the private firms receive payment from
the government rather than from individual users. One view could be that these are still
services supplied in the exercise of government authority, as defined by GATS Article I:3 –
since they are not supplied on a commercial basis to individual users and they continue to
be (local) monopolies – and, therefore, do not fall within the scope of GATS disciplines.
Another view could be that these services are being procured by the government and,
therefore, the manner of purchase per se would fall within the scope of GATS Article XIII
and any future disciplines on procurement.
The Secretariat suggests that a possible question in this context could be: „Would it be useful to
clarify when an environmental service is to be considered as being supplied in the exercise of
governmental authority?“
The uncertainty about the exact meaning of Article I:3(b),(c) GATS expressed in the WTO
Secretariat’s background notes sharply contrasts with its recent publications, written apparently in
response to growing civil society concerns, suggesting that the meaning in fact is very clear. In the
brochure „GATS - Fact and Fiction“ the Secretariat claimed that „[b]ecause no question has been
raised by any member about services supplied in the exercise of governmental authority there has
been no need to for interpretation of this phrase“.12 At the same time the Secretariat acknowledges
that „[t]he issue could (...) arise if a specific measure which has been challenged in dispute
settlement were to be defended on the ground that it applied only to services in the exercise of
governmental authority and was therefore outside the scope of GATS“.13 In the Special Study on
„Unfinished business: Market Access“ the Secretariat goes even further.14 After stressing the
importance of services provided by public authorities for non-commercial reasons, the Secretariat
suggests
It is perfectly possible for governmental services to co-exist in the same jurisdiction with
private services. In the health and education sectors this is so common as to be virtually the
norm …. It seems clear that the existence or private health services, for example, in parallel
with public services could not be held to invalidate the status of the latter as
„governmental services“...15
This phrase seems to suggest the opposite of the understanding applied in the background note on
health and social services.
Notwithstanding whether this most recent approach of the Secretariat to Article I:3(b),(c) GATS is
correct or whether the Secretariat will keep this approach in the future, it is safe to say that there is
no coherent use of the meaning of this provision throughout the Secretariat publications.
2. Discussions among WTO members
Discussions among WTO members also show that there is no agreed definition of services
„supplied in the exercise of governmental authority“: In an informal discussion in the Council on
Trade in Services (CTS) about future negotiations in the health and social services sector, Members
participating in that discussion felt that basic welfare and equity consideration „had led to a very
12 WTO Secretariat, GATS - Fact and Fiction, March 2001, p. 8; available on-line
http://www.wto.org/engli***ratop_e/serv_e/gats_factfiction_e.htm (visited 15 May 2001).
13 GATS - Fact and Fiction, supra note 12.
14 WTO, Market Access: Unfinished Business, Post-Uruguay Round Inventory and Issues Special Study No. 6, Geneva
April 2001, page 123-124, available at: http://www.wto.org/english/res_e/booksp_e/spec_e.htm (visited 15 May 2001).
15 Special Study No. 6, above note 14, page 124.
9
substantial degree of government involvement, both as a direct provider of such services and as a
regulator“ in the health and social services sector. Members seemed to agree that „this did not
mean that the whole sector was outside the remit of GATS; the exceptions provided in Article I:3
of the Agreement needed to be interpreted narrowly.“16 It should be noted, however, that this is a
phrase used by the Secretariat to summarize the discussions in the meeting in a way the
Secretariat understood it. It neither reports a decision of the Members nor does it necessarily
represent a consensus of the Members present in the CTS.
In other discussions in the CTS individual members have used different examples, of what they
considered „services supplied in the exercise of governmental authority“: In a discussion about
the review of the Air Transport Services in the Services Council, the representative of the United
States argued that „services performed in the exercise of governmental authority“ could be such
services „as air traffic control, slot allocation and, in some cases, airport management.“17 In
another discussion in the Services Council about further negotiations in the transport sector, one
unidentified delegation expressed the view that freight inspection services were not services
supplied in the exercise of governmental authority.18
In a discussion concerning negotiations on government procurement under Article XIII GATS in
the Working Party on GATS Rules the Chairman wondered „whether it was necessary to further
specify services not falling under the GATS, i. e. services supplied in the exercise of governmental
authority“ as stated in Article I:3.“ However, members did not express any specific views to that
question.19 In a discussion concerning government procurement in the Working Party of GATS
Rules, the representative of Argentina said that a “concession” of operating a motorway was “a
clear case of a service provided in the exercise of governmental authority.”20 In another discussion
in the Working Party, the representative of Thailand also said that that “concessions were supplied
in the exercise of governmental authority”.21 Switzerland suggested in the same body that
determining the “extent to which some sectors, such as health services, were provided under
governmental authority” was important. 22
In a Joint Communication from the EC, Hungary, Poland and the Slovak Republic it was stated that
the provisions of EC Treaty Article 55 “are similar to those of Article I:3(b) of GATS”.23 This
understanding is of particular concern to some observers, because Article 55 ECT (Article 45
according to the Treaty of Amsterdam) has been interpreted narrowly by the European Court of
Justice and there are no examples in the ECJ’s jurisprudence where the court found that an activity
would fall under the scope of this article.24
V. INTERPRETATION ACCORDING TO GENERALLY ACCEPTED METHODS OF PUBLIC
INTERNATIONAL LAW
As shown in the previous section, the approaches of the WTO Secretariat and WTO members do
not offer a clear understanding of Article I:3(b),(c). This section examines the meaning of this
16 Council for Trade in Services, Report of the Meeting Held on 14 October 1998, S/C/M/30, p. 8, No. 22 (b).
17 Council for Trade in Services, Report of the Meeting Held on 26 May 2000, S/C/M/43, p. 2 and 3, No. 11 and 16.
18 Council for Trade in Services, Report of the Meeting Held on 23 and 24 November 1998, S/C/M/31, p. 7, No. 9 f).
19 Working Party on GATS Rules, Report of the Meeting of 19 February 1999, S/WPGR/M/20, p. 13, n. 33.
20 WPGR, 6 October 1998, S/WPGR/M/18, No. 18.
21 WPGR, 19 May 1999, S/WPGR/M/22, No.27
22 WPGR, 7 July 2000, S/WPGR/M/28, No. 27.
23 Committee on Regional Trade Agreements, WT/REG50/2/Add.3, No. 3 of 19 May 1999. Article 45 (ex 55) ECT
reads: „The provisions of this Chapter (=on the right to establishment) shall not apply, so far as any given Member State
is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority“
24 See e.g. ECJ, Reyners, ECR 1974, 631.
10
Article according to generally accepted methods of treaty interpretation used in public
international law. It begins by establishing the standards of treaty interpretation. The following
subsections will be devoted to the interpretation of the two phrases of Article I:3(c) respectively.
While some of the arguments used in that interpretation will be rather straightforward, others are
more detailed and rather technical. Readers who are more interested in the general line of
arguments may prefer to skip subsections 4 and 5 , which are fairly technical.
1. Standards of treaty interpretation
The rules on interpreting international treaties are laid down in Articles 31 („General rule of
interpretation“) and 32 („Supplementary Means of interpretation“) of the Vienna Convention on
the Law of Treaties.25 It is generally agreed that these rules represent customary international law
and can therefore be used for the interpretation of any international treaty. These rules have also
been applied by the Appellate Body in interpreting WTO law.26
The central norm of treaty interpretation is Article 31:1 of the Vienna Convention stating:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its objective and purpose.
The „context“ of the terms includes the text of the entire treaty, its preamble and annexes as well
as other agreements made between all parties in connection with the conclusion of the treaty or
other documents accepted by all parties as related to the treaty (Article 31:2). Together with the
context, any subsequent agreement or practice of the parties regarding the interpretation and any
relevant rule of international rule shall be taken into account (Article 31:3). Therefore an
interpretation of a GATS provision needs to look at the entire agreement, the annexes and
decisions relating to services included in the Final Act of the Uruguay Round27 and the schedules
of specific commitments made under GATS.
Next to the „general principles of interpretation“, the Vienna Convention also calls for
„Supplementary means of interpretation“. They include the preparatory work of the treaty and the
circumstances of its conclusion (Article 32). However, these means may only be used in order to
confirm the meaning resulting from the application of Article 31 or to determine the meaning
when the interpretation according to Article 31 let to an ambiguous, obscure, manifestly absurd or
unreasonable result.
2. Supply on a „commercial basis“
Services „supplied on a commercial basis“ are covered by the GATS according to Article I:3(c). A
broad understanding of this term could be that it encompasses any service not supplied free of
charge to the consumer. Understood narrowly it could exclude only those services which are not
25 See Ian Brownlie, Principles of Public International Law, Fourth Edition, p. 626-632 and Gabrielle Marceau, A Call
for Coherence in International Law, JWT 33(5), p. 87, at 115-128.
26 United States – Standards for reformulated and Conventional Gasoline, 20 May 1996, WT/DS2/AB/R and Japan –
Taxes on Alcoholic Beverages, 1 November 1996, WT/DS8-11/AB/R.
27 This includes seven annexes (Annexes on Article II Exemptions, on Movement of Natural Persons Supplying Services
under the Agreement, on Air Transport Services, on Financial Services (2), on Negotiations on Maritime Transport
Services, Telecommunications and on Negotiations on Basic Telecommunications) and eight decisions (Decisions on
Institutional Arrangements for the GATS, on Certain Dispute Settlement Procedures for the GATS, on Trade in Services
and the Environment, on Negotiations on Movement of Natural Persons, on Financial Services, on Negotiations on
Maritime Transport Services, on Negotiations on Basic Telecommunications and on Professional Services).
11
supplied in return for a market price.
For an ordinary textual understanding of „supplied on a commercial basis“ the meaning of
“commercial” is crucial, because it is the central term of that phrase. The ordinary meaning of
„commercial“ relates to „commerce“ which according to one dictionary means „the buying and
selling of goods“.28 Another dictionary states that commercial is a „[g]eneric term for most all
aspects of buying and selling.“29 A similar meaning can be attributed to the French and Spanish
terms „commercial“ and „comercial“.30 Commercial refers thus to the exchange of goods (or
services) for money or a monetary equivalent. If „commercial“ supply is a supply in return for a
price, then it could be argued that services provided free of charge should not be considered a
service supplied on a commercial basis.31
However, it seems that the pure existence of a price is not the only determining factor of the
notion of „commercial“. It is doubtful, for example, if the act of selling between two friends can be
considered „commercial“. Also the provision of a product for free could be considered
“commercial” in certain circumstances, for example, when selling one good and providing another
one for free (“buy one, get one for free”). Therefore, while the price seems to be an important
factor in determining if the exchange of a product is called “commercial”, it is not the only factor.
Other circumstances determined on a case by case basis may play an equally important role.
Apart from taking into account the circumstances of the exchange of goods or services, it is also
necessary to distinguish between different prices: A service can be provided in return for a market
price, i.e. a price determined by supply and demand or a price enabling the supplier to make a
profit or a price just covering the costs of the supplier or even a price below the actual costs requiring
some additional income for the service supplier (taxes, subsidies or profits from another economic
activity). There is a continuum between supplying a service in order to make profit and supplying
it for free. Again it would depend on additional circumstances to decide if the supply of a service
at a price just covering the costs or even below the costs could be called “commercial”. The
ordinary meaning of „commercial“ can thus not be defined in an abstract way. Consequently it
can be applied broadly or narrowly depending on the particular circumstances of the case.
Apart from the meaning of „commercial“, the entire phrase „supplied on a commercial basis“
needs some clarification. It could either refer only to the question whether the consumer pays a
price as elaborated above. It could also refer to the operational basis of the service supplier, i.e. if
the service supplier operates on a non-profit or a commercial basis. From a strict textual approach
the phrase „supplied on a commercial basis“ seems to refer to the modalities of the supply and
does not make any specific reference to the service supplier. The immediate meaning of a supply
on a certain “basis” seems to be the individual act of supply. This understanding is supported by
the second part of Article I:3(c) GATS which makes a direct reference to the service supplier. Also
other parts of the GATS (like Article XVI) refer to the service supplier. If the “commercial basis”
should have referred to the person supplying the service, it can be argued that the GATS text
would have made an explicit reference to the “service supplier”.
Since the wording of “commercial basis” allows for a broad understanding of that term, a look the
immediate context of these words might provide some clarification: The immediate context of
Article I:3(c) GATS is Article I:3(b). Therefore only an understanding of „commercial basis“ which
reflects the understanding of „governmental authority“ should be applied. However,
„governmental authority“ refers to the service supplier, i.e. the government and not on the
modalities of the supply. Consequently, if one argues as suggested above that „supply on a
28 Webster’s II New College Dictionary, 1995, p. 225.
29 Black’s Law Dictionary, Abridged Fifth Edition, 1983, p. 140. For further definitions see Government of British
Columbia, GATS and Public Service System, supra note 6.
30 See Dictionnaire Universel Francophone En Linge available on-line at http://www.francophonie.hachette-livre.fr and
Diccionario General de la Langua Española Vox, available on-line at http://www.diccionarios.com.
31 This seems to be the view of the Secretariats in the background note on postal services, see supra note 7.
12
commercial basis“ does not refer to the supplier, but only to the modalities of the supply, the
notion of „governmental authority“ does not provide further information on „supply on a
commercial basis“.
Similarly, it is doubtful if the term „commercial presence“ used in Article I:2(c) GATS provides
further clarity. „Commercial presence“ also refers to the person supplying the service: It is defined
as „any type of business or professional establishment (...) within the territory of a Member for the
purpose of supplying a service“ (Art. XXVIII:(d) GATS). „Commercial presence“ as one mode of
service supply (Mode 3) and „on a commercial basis“ seem to be two distinct concepts not suitable
for analogies or contextual interpretations.
3. Supply in „competition with one or more service suppliers“
According to the second alternative of Article I:3(c) GATS a service „supplied in competition with
one or more other service suppliers“ is covered by the Agreement. For an understanding of this
phrase the understanding of „competition“ seems to be the central term. According to one
dictionary „competition“ refers to „rivalry between two ore more businesses for the same
customers or market“32 or to „rivalry in the market, striving for customers between those who
have the same commodities to dispose off“33. Similarly one French dictionary explains the term
„concurrence“ as „compétition entre personnes, enterprises, etc., qui prétendent à un même
avantage“.34 Competition therefore seems to a refer to a situation when one supplier targets the
same customers or market segments or tries to realize the same advantage as one or more other
service suppliers.
In order to establish when a service is supplied on a competitive basis, a two-step approach seems
useful: First it should be asked if there is a situation in which two or more service suppliers supply
the same or a comparable service. Secondly it is necessary to find out if the suppliers are able to
substitute or only to complement each other. Service suppliers are only “in competition” with each
other, if one suppliers can substitute another supplier, i. e. if the losses of one service supplier in
terms of customers and market shares can be covered by other suppliers. This depends also on the
size of the market in which the suppliers operate: Consider the example of a doctor in a remote
town: The number of people needing medical services depends on the size of that town. If the
town is very large, one doctor might not be able to treat all sick people. A second doctor could
offer her services in that town without competing with the first doctor if the “market” is large
enough for both doctors. This shows that two or more suppliers do not always compete with each
other even if they provide the same or a comparable service. However, if a patient is dissatisfied
with the services of one doctor she could visited another doctor. In such a case, both doctors
would be competing. In more general terms, even if a market is large enough for more than one
service supplier, service suppliers can compete with each other.
Applying the two-step test to primary education, it could be argued that public schools and
private schools provide the same or a comparable service, since they are both providing children
of a certain age range with a certain amount of general education. It could also be said that public
and private schools are targeting the same market: Since every child can only go to one school, the
loss of a service consumer (i. e. a school child) by the public school can be supplemented by the
private school. Consequently, it can be argued that public and primary schools are providing a
service “in competition” with each other. However, it could also be argued that the services are
not comparable, because public schools usually fulfill a universal supply obligation, while private
32 Webster’s II, supra note 28, p. 329.
33 See Government of British Columbia, GATS and Public Service Systems, supra note 6.
34 Dictionnaire Universel Francophone En Ligne, supra note 30. The Spanish on-line dictionary only referred to rivalry
(rivalidad) without specifying between whom and for what cause.
13
schools often don’t. Similarly, it could also be argued that public schools with a universal service
obligation target the entire market while private schools target only a certain segment of that
market, i. e. those who are able and willing to pay school fees.
These considerations show that the exact scope of „competition“ according to Article I:3(c) GATS
depends on the definition of when two services are the same or comparable and the definition of
the targeted market. It remains to be seen, how the Appellate Body will approach these questions,
if it ever has to. However, it can be argued that the ordinary meaning of Article I:3(c) GATS does
not rule out a broad understanding of these definitions. Therefore an application of Article I:3(c)
GATS to primary schools could lead to the result that private and public schools could be
regarded as competitors.
If there is only one service supplier covering the entire market, it can be considered a monopoly
supplier. Consequently a monopoly service supplier never operates in “competition” with another
service supplier. However, it is questionable if all monopoly suppliers are covered by Article I:3(c)
GATS. If this would be the case, the supply of a service on a non-commercial basis by any
monopoly supplier would be considered a service “supplied in the exercise of governmental
authority”. A private company holding a monopoly that is neither established or authorized by
the government cannot exercise governmental authority.35 The notion of „governmental
authority“ requires some public involvement in the service supply. Consequently it can be argued
that the monopoly supplier covered by Article I:3(c) GATS cannot be a private company operating
without public involvement, but has to be either the government itself, or any public entity or a
private entity providing the service according to a statutory mandate.
4. Context of Article I:3(b),(c) GATS
Article 31:1 of the Vienna Convention holds that the “context” of the terms are to be taken into
account when interpreting a treaty provisions. As pointed out above, the context of Article
I:3(b),(c) GATS includes the Annexes of the Agreement and the schedules of specific
commitments.
a) Annexes
In the context of Article I:3(b) GATS reference is sometimes made to the definition of „services
supplied under governmental authority“ provided in Article 1 b) of the (first) Annex on Financial
Services, which includes activities of central banks and other monetary authorities, statutory social
security and public retirement plans and public entities using governmental financial resources.36
However, this definition only applies to the supply of financial services and not to the supply of
35 GATS disciplines on monopoly suppliers (Art. VIII GATS) equally apply to public and private companies, but only if
the monopoly „is authorized or established formally on in effect by that Member as the sole supplier of that service“
(emphasis added).
36 (...) b) For the purposes of subparagraph 3 b) of Article I of the Agreement (= the GATS), „services supplied in the
exercise of governmental authority“ means the following: (i) activities conducted by a central bank or monetary
authority or by any other public entity in pursuit of monetary or exchange rate policies; (ii) activities forming part of a
statutory system of social security or public retirement plans; and (iii) other activities conducted by a public entity for
the account or with the guarantee or using the financial resources of the Government. c) For the purposes of
subparagraph 3 b) of Article I of the Agreement, if a Member allows any activities referred to in subparagraphs b) ii) or
b) iii) of this paragraph to be conducted by its financial services suppliers in competition with a public entity or a
financial service supplier, „services“ shall include such activities. d) Subparagraph 3 c) of Article I of the Agreement
shall not apply to services covered by this Annex.
14
other services, since the Annex only covers financial services.37 Consider the example of a national
post service supplying inter alia postal (= non-financial) and banking services (= financial
services). Only activities relating to financial services are covered by the Annex and are excluded
from the scope of GATS if they meet the conditions of Paragraph 1 b) (iii) and c) of the Annex.
Because Article 1 b) directly only applies to financial services, it can at best be used indirectly to
determine the scope of Article I:3(b) GATS for other services. Such an indirect use would require
that Article 1 b) of the Annex contained any additional implication which can be applied to Article
I:3(b),(c) GATS. However, a closer look at the three subparagraphs of Paragraph 1 b) of the Annex
shows that this is not the case. Therefore even the indirect application of Article 1 b) of the Annex
does not narrow the meaning of this provision derived from the textual interpretation.
The activities described in Paragraph 1 b) (i) of the Annex are activities which by definition cannot
be conducted in competition with other service suppliers even in the broadest understanding of
this term, since „activities conducted (...) in pursuit of monetary or exchange rate policies“ cannot
be conducted by more than one entity in every monetary system.
The activities covered by Paragraph 1 b) (ii) and (iii) of the Annex can be conducted by more than
one entity in each country, yet both provisions are limited by Paragraph 1 c) of the Annex to the
extend that they do not apply to activities conducted by financial services suppliers in competition
with a public entity or a financial service supplier. This relates back to the question of competition
elaborated above. Therefore the scope of Paragraph 1 b) is ultimately determined by the same
notion („competition“) as Article I:3(c) GATS. However, Paragraph 1 does not clarify how the
notion of „competition“ should be understood in the present context. Basing a definition of
services supplied in the exercise of governmental authorities on the specific provisions of Article 1
b) and c) of the Annex on Financial Services would thus be circular.
The Annex on Air Transport Services excludes traffic rights and services directly related to the
exercise of traffic rights from the scope of the GATS.38 This exclusion does not clarify the term
„services supplied in the exercise of governmental authority“. It can only be argued that traffic
rights and services directly related to these services are not necessarily services supplied in the
exercise of governmental authority according to Article I:3(b),(c) GATS, because otherwise they
would not have to be excluded from the scope of the GATS by a separate annex.
The Annex on Telecommunications only defines „public telecommunications transport service“ as
„any telecommunications transport service required (...) by a Member to be offered to the public
generally“. This relates to only a very narrow aspect of services possibly supplied in the exercise of
governmental authority and cannot be generalized in such a way that such a service would have
to be offered to the public generally.
b) Schedules of Specific Commitments
The WTO members schedules of specific commitments form an integral part of GATS according to
Article XX:3 GATS. Out of the 140 members of the WTO only Bulgaria used the term „services
supplied under governmental authority“ in its schedule. In the section relating to environmental
services (Section 6 of the Schedule), Bulgaria stated: „The commitments do not include
environmental services supplied in the exercise of governmental authority“ and included a
footnote explaining that these services are „regulatory, administrative and control services by
government and municipal bodies related to environmental issues“.39
It is not entirely clear why Bulgaria excluded „services supplied in the exercise of governmental
37 Paragraph 1 a) and d) of the Annex on Financial Services.
38 See Section 2 a) and b) Annex on Air Transport Services.
39 The Republic of Bulgaria, Schedule of Specific Commitments, 21 May 1997, GATS/SC/122, p. 21.
15
authorities“ from its commitments in environmental services. If Bulgaria only wanted to make a
declaratory statement one could argue that the definition of services supplied in the exercise of
governmental authority is Bulgaria’s understanding of Article I:3(b),(c) GATS at least relating to
environmental services. If Bulgaria’s statement was understood to have a separate meaning it
would follow that the definition given by Bulgaria is different from the general understanding of
Article I:3(b),(c) GATS. This would also explain why Bulgaria included the statement mentioned
above. In both cases, however, the statement only indicates the understanding of one WTOMember
about the meaning of the phrase „governmental services“ and can thus not be used as an
„agreement relating to the treaty which was made between all the parties in connection with the
conclusion of the treaty“ or as an „instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty“ according to Article 31:2 of the Vienna Convention.
5. Subsequent practice and preparatory work
The following subsection will investigate whether any clarification can be drawn from the
methods spelled out in Article 31:3 (subsequent practice, subsequent agreements, other rules of
international law) and in Article 32 (preparatory work) of the Vienna Convention.
a) Subsequent practice, agreements, and other rules of international law
According to Article 31 subsection 3 of the Vienna Convention subsequent agreements regarding
the interpretation or the application of the treaty as well as subsequent practice in the application
of the treaty shall be taken into account when interpreting a treaty.
Subsequent agreements of WTO members include, for example, the protocols and agreements on
financial services and basic telecommunications. There is however no reference to the scope of
GATS in these agreements. The Decision of the Negotiating Group on Telecommunications of 24
April 1996 on certain definitions contains a paragraph on „Universal service“ stating that „Any
Member has the right to define the kind of universal service obligation it wishes to maintain
(...)“.40 While this paragraph could be used as a model for a decision on the definition of
„governmental authority“41, it does not provide clarity on the scope of Article I:3(b),(c) GATS. As
pointed out above, there can be a close relationship between a universal service obligation and a
„public service“. However, from a legal perspective the terms „services supplied in the exercise of
governmental authority“ and services with a „universal service obligation“ do not seem to have
any particular link in the framework of GATS.
Subsequent practice of the contracting parties can also include the practice of the organs of an
international organization founded under the agreement.42 However, no interpretative statement
or any statement on the issue was issued by the Ministerial Conference, the General Council, the
Council for Trade in Service or any subsidiary body. Since the Secretariat is not an organ of the
WTO43, its position on Article I:3(b),(c) GATS could not be viewed as the practice of an
international organization.
Adopted panel and Appellate Body decisions are also subsequent practice and might be used for
an interpretation. However, so far the dispute settlement institutions have not yet dealt with the
40 Available at the WTO-webpage: http://www.wto.org/engli***ratop_e/servte_e/tel23_e.htm (visited 9 May 2001).
41 See infra V. 5 a).
42 Brownlie, supra note 25, p. 630.
43 The organs of the WTO are the Ministerial Conference, the General Council (including the Dispute Settlement and the
Trade Policy Review Body), the special Councils and the subsidiary bodies such as the various committees and working
groups, see Article IV of the Agreement Establishing the WTO.
16
exact meaning of Art. I:3(c). The only reference was made in the Bananas-case by the Appellate
Body, when determining the scope of GATS in general terms.44 In this passage the Appellate Body
did not address the question of how Art. I:3 GATS should be understood. However, the sentence
„There is nothing in these provisions to suggest a limited scope of application of the scope of
GATS“ suggests that the Appellate Body is willing to give the GATS a broad coverage. We will
return to this finding in Section VI.1. of this paper.
According to Article 31:3(c) of the Vienna Convention „any relevant rules of international law
applicable in the relations between the parties“ shall also be taken into account when interpreting
a treaty provision. This additional interpretive tool might be helpful if a treaty provision needs to
be interpreted in a specific dispute between two parties, because in that case arguably any rule
applicable between those two parties can be used, even if that rule is not applicable in the relations
between all WTO members.45 However, for the purposes of interpreting a provision of WTO law
in an abstract manner, only a rule which is applicable in the relations of all members can be used.
Since there are hardly any international treaties with exactly the same membership as the WTO
agreements, such rules could only be customary international law or general principles of
international law. Given the variety of public services and the different methods of supplying
them in different countries, such a general rule applicable to all WTO members does not seem to
exist. This is mirrored by the different opinions WTO members have about the meaning of Art.
I:3(b),(c) GATS and the exact scope of the agreement.
b) Preparatory work
As spelled out by Article 32 of the Vienna Convention the preparatory works (traveaux
préparatoires) and the circumstances of the treaty’s conclusion may be used as further means of
interpretation in order to confirm the meaning according to an interpretation based on the
principles of Article 31 or if that meaning is ambiguous or obscure or if the result would be absurd
or unreasonable. Since the discussions so far have not produced a clear meaning of Article
I:3(b),(c) a look at the preparatory work could be useful.
Preparatory work of the GATS treaty include the official documents of the Negotiating Group on
Services (GNS) of the Uruguay Round on Multilateral Trade Negotiations and the comprehensive
drafts of the GATS, such as the 1991 Final Draft or the Dunkel Draft.
A clause defining services with a reference to governmental functions was first introduced in the
December 1990 draft text of the GNS chairman prepared for the Brussels Ministerial meeting.46 It
read:
„(b) „services“ includes any service in any sector [except services supplied in the exercise of
governmental functions]“
At the first meeting of the Negotiating Group on Services on definitions in the draft text in the
summer of 1991 some delegations suggested that the term needed an additional definition.47 In the
44 European Communities - Regime for the Importation, Sale and Distribution of Bananas, Report of the Appellate
Body, WT/DS27/AB/R, 9 September 1997, No. 220: „ [W]e note that Article I:1 of the GATS provides that "[t]his
Agreement applies to measures by Members affecting trade in services". (...) We also note that Article I:3(b) of the
GATS provides that "‘services’ includes any service in any sector except services supplied in the exercise of
governmental authority" (emphasis added), and that Article XXVIII(b) of the GATS provides that the "‘supply of a
service’ includes the production, distribution, marketing, sale and delivery of a service". There is nothing at all in these
provisions to suggest a limited scope of application for the GATS. (...) For these reasons, we uphold the Panel's finding
that there is no legal basis for an a priori exclusion of measures within the EC banana import licensing regime from the
scope of the GATS.“. (Added) emphasis in original, footnotes omitted.
45 Marceau, supra note 25, p. 123-125.
46 MTN.TNC/W/35, 10 December 1990.
47 Group of Negotiations on Services, Note on the Meeting of 27 May to 6 June 1991, para. 66, MTN.GNS/42. Note
that the minutes record the term „services provided through government functions“, but it seems obvious that they refer
17
following meeting, delegations discussed the scope of the Agreement, but only Austria addressed
the issue of „government functions“ by suggestion that the term „public functions“ should be
used instead.48 In a note provided for these discussions issued in October of 1991, the Secretariat
states that the GATS covers all sectors „with the possible exclusion, not yet agreed, of government
functions.“49
The December 1991 comprehensive draft of GATT Director General Arthur Dunkel („Dunkel
Draft“) did not change the wording of Article I:3(b), but simply eliminated the brackets around the
phrase „except services supplied in the exercise of government functions“ and noted in an
explanatory footnote „The terms of exclusion of services of governmental functions will be
reviewed in the context of the work on Article XXXIV.“50
There are no records about further discussions about Art. I:3(b),(c) GATS in publicly available
documents of the Uruguay Round negotiations. In the same way, the literature on the negotiating
history of GATS does not mention any discussions on this issue.51
There was some discussion about the scope of GATS in the GNS in the fall of 1993 inter alia
concerning measures relating to social security and judicial and administrative assistance.52
However these discussions did not focus on the scope of „services supplied in the exercise of
governmental authority“, but on the scope of a „measure affecting trade in services“.53 However,
in a statement issued in the last week of the Uruguay Round, the chairman of the GNS
emphasized that „pending further clarification of this and other questions relating to the scope of the
Agreement, that it is assumed that participants would refrain from taking issues arising in this area
to dispute settlement but would try to settle them through bilateral consultations.“54 If the
definition of „governmental services“ was part of the other questions, it would follow, that
negotiators did not agree on the exact scope of the GATS until the end of the Uruguay Round.
However, even if this was case, one could not draw any specific conclusion from that fact
clarifying the meaning of Article I:3(b),(c) GATS.
Summing up the discussions of this subsection, neither a recourse to subsequent practice nor
preparatory work does provide additional information concerning the meaning of Article I:3(b),(c)
GATS.
6. Conclusion
The interpretation of Article I:3 (b)(c) GATS based on the interpretative methods of the Vienna
Convention on the Law of Treaties does not render a clear result. Besides the wording of the
provision there is hardly any additional information which can be used in order to clarify its
meaning. The wording, however, can be used to give the Article I:3(b),(c) a narrow or a broad
meaning. It can be argued that the main concept of the phrase „on a commercial basis“ is the
supply of a service in return for a price paid for the service. However, it might be necessary to take
other circumstances or the amount of the price into account. The term „on a commercial basis“ can
to discussions about Article I:3(b).
48 Group of Negotiations on Services, Note on the Meeting of 24-28 June 1991, para 8, MTN.GNS/43.
49 Definitions in the Draft General Agreement on Trade in Services, Note by the Secretariat, 15 October 1991,
MTN.GNS/W/139, para. 8.
50 Jimmie V. Reyna, Services, in: Terence P. Stewart (ed.), The GATT Uruguay Round - A Negotiating History (1986-
1992), Volume II: Commentary, Deventer and Boston 1993, p. 2335-2661, Annex I.
51 Reyna, supra note 50.
52 Informal GNS Meeting - 29 October 1993, Chairman’s Statement, MTN.GNS/48 and Issues Relating to the Scope of
the General Agreement on Trade in Services, Note by the Secretariat, 4 November 1993, MTN.GNS/W/177/Rev. 1.
53 Issues Relating to the Scope of the General Agreement on Trade in Services, supra note 52, p. 2 and 3.
54 Informal GNS Meeting - 10 December 1993, Chairman’s Statement, MTN.GNS/49, para 4, emphasis added.
18
thus be used to give the Agreement a narrow scope, but it is not guaranteed that an interpreter
would do so. The meaning of „competition“ depends on the question if the same or a comparable
service is provided and on the scope of the targeted market, which has to be decided on a case-tocase
basis. Again, adopting broad meanings would be in conformity with the wording of Article
I:3(b),(c) GATS.
Since a broad understanding of Article I:3(c) GATS and consequently a narrow range of Article
I:3(b) GATS can be reached by generally accepted methods of interpreting international law, the
Appellate Body would be in conformity with international law if it adopted a narrow
understanding of „services supplied in the exercise of governmental authority.“ The following
section will argue that there are further approaches which could be used in order to limit the scope
of the GATS.
VI. FURTHER INTERPRETATIVE PRINCIPLES: RESTRICTIVE AND EFFECTIVE INTERPRETATION
While the methods applied so far are generally accepted, some further interpretative principles
have also been used in international practice: The principles are the restrictive interpretation (in
dubio mitius) and the effective interpretation, sometimes referred to as teleological approach.
1. Restrictive Interpretation
The principle of restrictive interpretation or in dubio mitius applies in deference to the sovereignty
of states. If the meaning of a term is ambiguous, the meaning which involves less general
restrictions on the sovereignty of a party shall be used. Although the WTO Appellate Body has not
yet decided if that principle applies to all WTO rules, it has indicated that the principle plays some
role in interpreting WTO law in the Hormones case.55
If the principle of restrictive interpretation would be applied in the context of Article I:3 (b)(c)
GATS it would mean that a narrower meaning of the phrase „on commercial basis“ and „supplied
in competition“ should be used. For example, the term „commercial“ could only be applied to
services supplied at a the market price or at a price at least covering the costs of the supply or the
notion of „competition“ could only used if the different service suppliers are actually supplying
the very same service or/and are targeting absolutely identical market segments. This would rule
out a situation of „competition“ between a service supplier with universal service obligation and
one without such an obligation. Finally a restrictive interpretation could also come to the
conclusion that it is up to the individual governments to decide which services they consider to be
supplied „neither on a commercial nor in competition with one or more service suppliers“, since
this would be the least restriction on the sovereignty of members.
While the principle of restrictive interpretation could effectively be used to reduce the broad scope
of GATS derived from the interpretation of Article I:3(b),(c) GATS, it should be noted that the
Appellate Body has applied a broad approach to the scope of GATS in the Bananas-Case.56 Also
GATT panels have hold that exceptions need to be interpreted narrowly.57 Some WTO members
have argued along the same lines. However, the Appellate Body did not confirm this approach. In
the Hormones case, the Appellate Body held: „... merely characterizing a treaty provision as an
55 EC - Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body (WT/DS26 and
48/AB/R), 16 January 1998, para. 165.
56 See supra note 44.
57 See Meinhard Hilf, Power, Rules and Principles - Which Orientation for WTO/GATT Law? Journal of International
Economic Law, Vol. 4, No. 1 (March 2001), p. 128.
19
„exception“ does not by itself justify a „stricter“ or „narrower“ interpretation of that provision that
would be warranted (...) by applying the normal rule of treaty interpretation“.58 Furthermore it
should be noted that Art. I:3(b),(c) is not an exception of GATS, but the definition of the coverage
of GATS. Consequently, even if the principle that exceptions to WTO agreements have to be
interpreted narrowly would be applicable to the GATS, it would not prevent the Appellate Body
from interpreting Art. I:3(b) in a broader scope and exclude certain public services from the
coverage by GATS.
2. Effective interpretation
A second set of principle evolves around the concept that a treaty should be interpreted in such a
way that its goals and objectives can be achieved effectively. These principles are often referred as
the principles of effective interpretation (effet utile) or the teleological approach.
The Appellate Body referred to a narrow subset of these principles in the Gasoline case when it
argued that an interpretation should not render a certain clause meaningless.59 Interpretative
approaches relating to the effective implementation of the treaty’s objectives go beyond this
concept. Their basic rationale is to interpret a treaty provision in such a way that the treaty’s
general objectives are most effectively implemented. Approaches based on an the principles of
effective interpretation require therefore a look at the goals of the treaty, which can generally be
derived from the preamble.
In this context the third and fourth preambular paragraphs of GATS are of specific interest.60 They
show that GATS incorporates the goal of liberalization of trade in services as well as the right to
regulate the supply of services. The twofold approach of GATS is reiterated in the guidelines for
the GATS 2000 market access negotiations.61 It can therefore be said that the overall objective of
the GATS is to liberalize trade in services while securing the sovereign right to regulate services.
While from a political point of view there seems to be greater emphasis on the liberalizing effects
of GATS, from a strict legal point it is difficult to argue that there is greater emphasis on either of
the two goals of the GATS. It seems rather that both objectives should be treated equally. This
could require an interpretation of Article I:3(c) GATS which is somehow narrower than the
meaning of the provision obtained from the textual approach. By relying on the objective of the
GATS to recognize the right of Members to regulate, it could be argued that an effective
interpretation of GATS would come to a similar result as the interpretation guided by the
principle in dubio mitius.62
However, it needs to be stressed that applying the approach of effective treaty interpretation does
58 EC - Hormones, supra note 55, para. 104.
59 US - Gasoline, supra note 26, at Section IV: „An interpreter is not free to adopt a reading that would result in reducing
whole clauses or paragraphs to redundancy or inutility.“
60 Desiring the early achievement of progressively higher levels of liberalization of trade in services through successive
rounds of multilateral negotiations aimed at promoting the interests of all participants on a mutually advantageous basis
and securing the overall balance of rights and obligations, while giving due respect to national policy objectives;
Recognizing the right of Members to regulate, and to introduce regulations, on the supply of services within their
territories in order to meet national policy objectives and, given asymmetries existing with respect to the degree of
development of services regulations in different countries to exercise this right.
61 See No. 1. of the Guidelines and Procedures for the Negotiations on Trade in Services, as adopted by the Special
Session of the Council for Trade in Services on 28 March 2001, PRESS/217: „Pursuant to the objectives of GATS, as
stipulated in the Preamble and Article VI, and as required by Article XIX, the negotiations shall be conducted on the
basis of progressive liberalisation as a means of promoting the economic growth of all trading partners and the
development of developing countries, and recognizing the right of Members to regulate and to introduce new
regulations, on the supply of services (...).“
62 See Section VI. 1.
20
not oblige the Appellate Body to rely on the GATS objective to recognize the right to regulate. If the
Appellate Body would apply an effective approach, it could also rely on the objective of
progressive liberalization and therefore uphold a broad interpretation of Article I:3(c) GATS
derived from the textual approach. It is worthwhile to remember that the evolution of EC law was
based to a great extent on the jurisprudence of the ECJ applying the principle of effet utile and
implied powers, which is a special version of effective interpretation.
VII. „LEGISLATIVE“ POSSIBILITIES TO NARROW THE SCOPE OF GATS
So far this paper showed that an interpretation of Article I:3(b),(c) GATS according to generally
accepted methods of interpretation reveals no clear meaning of „services supplied in the exercise
of governmental authority“. Applying a narrow meaning to this phrase and a broad scope of the
GATS would be in conformity with the interpretative methods of the Vienna Convention on the
Law of Treaties. A broader understanding of the provision could be reached by additional
methods of interpretation, such as the restrictive approach or the principle of effective
interpretation. However, it is not guaranteed that the Appellate Body would apply these methods.
Many civil society groups are of the opinion that a broad scope of the GATS is detrimental to
national economic, social or other policies. While no WTO Member government has yet openly
expressed its dissatisfaction with Article I:3(b),(c) GATS it is possible that some governments are
also in favor of a narrower scope of the GATS after they realize that the agreement scope of the
agreement could be very broad. It is therefore advisable to take some „legislative“ steps to narrow
the scope.63 A „legislative“ approach would also be preferable to leaving important decisions
about the scope of WTO agreements to the dispute settlement processes. Dispute settlement bodies
are appropriate to determine whether a particular law is consistent with WTO provisions. They
are however not suited to resolve the larger issues, especially about the scope of the WTO
agreements. These are policy questions which must be resolved by the governments of the WTO
members which are accountable to their constituencies.
“Legislative” possibilities include an amendment to the GATS, an interpretative understanding,
an authoritative decision of the Ministerial Conference or the General Council or a non-binding
statement.
1. Amendment to GATS or interpretative understanding
The first possibility of narrowing the scope of Article I:3(c) GATS would be an amendment to
GATS itself or an interpretative understanding. An interpretative understanding is an
international agreement specifying certain provisions of another agreement. Examples in the WTO
context include the understandings on the interpretations of various provisions of the GATT.
Since the issue in question could probably be clarified with just a few words, an amendment to the
GATS either by adding an additional definition to Article I:3 or by changing the wording of
Article I:3(b) or (c) would be sufficient. However, a separate understanding would not „re-open“
discussions about the language of the GATS itself and it could thus be easier for members to agree
on a separate understanding.
There are various possibilities for an amendment to GATS. First, an amendment could eliminate
Article I:3(c) GATS and clarify in Article I:3(b) GATS that it is up to the individual members to
63 These measures are called „legislative“, even though they would have to be taken by governments, beause
governments are the „law-makers“ in the WTO and because the label „legislative“ makes it clear, that the issue would
not be left to a „judicial“ decision of Appellate Body.
21
decide whether a service is supplied in the exercise of governmental authority. Article I:3(b) GATS
could then read:
„‘services’ includes any service in any sector except services supplied in the exercise of
governmental authority as determined by the national laws and regulations of each Member“
It should be noted that a similar self-defining approach is used in Art. XIVbis GATS on security
exceptions and in the Decision on definitions by of the Negotiating Group on Basic
Telecommunications.64 However, since this would exclude a large number of service sectors from
GATS and would lead to a different scope of the agreement for different members, it is unlikely
that members will agree on this definition. A more narrow approach could be based on a
specification of „commercial basis“ and „in competition“. This could be done by amending a
further subsection to Article I:3 GATS, which could read:
„(d) ‘a service supplied on a commercial basis’ means any service supplied in exchange for a market
price (a price covering the actual costs of supplying the service) and ‘a service supplied in competition
with one or more service suppliers’ a service supplied under the same conditions, especially in
fulfillment of a universal supply obligation, as the competitors.
A separate understanding on the scope of Article I:3 GATS could be worded similarly. Both an
amendment and an understanding would require new negotiations among the WTO members
and subsequent ratification by the national parliaments (in most cases), because current GATS
provisions would be changed. Article X:1 and X:5 WTO-Agreement contain the specific modalities
of an amendment to the GATS. Accordingly, any WTO member or the Council for Trade in
Services can submit an amendment to the Ministerial Conference. The Ministerial Conference
decides by consensus whether to submit the amendment to the members for acceptance. The
amendment takes effect for those members that have accepted it, but only after two-thirds of the
members accepted it. Thereafter the amendment takes effect for each member upon acceptance by
it. Even though it is possible that such a process could be started by a member at the coming
Ministerial Conference the entire process bears many obstacles and might take a very long time. It
is therefore not very likely that this option could be realized.
2. Authoritative interpretation
According to Article IX:2 WTO-Agreement the Ministerial Conference and the General Council
can adopt interpretations of any WTO-Agreement. In the case of GATS this authority shall be
exercised on the basis of a recommendation by the Council for Trade in Services. The Ministerial
Conference and the General Council would have to decide by a consensus on such an
interpretation and if consensus could not be reached by a three-fourths majority. Such an
interpretation could have the same or a similar wording as the suggested understanding on
Article I:3(b),(c) GATS.
While an authoritative interpretation has not the same legal status as an amendment or an
understanding, the Appellate Body would be bound by it when applying Article I:3(b),(c) GATS.
Since an authoritative interpretation would be easier to achieve than an amendment or
understanding and still have a similar effect, it should be the favored policy option.
3. Non-binding statement
Finally, WTO members could resort to a non-binding statement with similar wording as suggested
64 Supra note 40.
22
above. Such a statement could be a decision of the Council on Trade in Services or of the General
Council. Since it would not be an authoritative interpretation, it would not be legally binding.
Therefore the Appellate Body would not be required to adopt the approach laid down in such a
statement. However, such a statement would constitute subsequent practice of the parties
according to Article 31:3(b) of the Vienna Convention, since it would establish a common
understanding of the parties regarding the interpretation of Article I:3(b),(c) GATS. It is therefore
unlikely that the Appellate Body would ignore such a statement. In fact, it is very well possible
that the Appellate Body would use such a statement almost as if it was binding, since the
Appellate Body has been receptive to the collective will of the WTO members. Nevertheless, a
non-binding statement could not render the same legal certainty as the binding methods spelled
out above.

[Anonymous]

Wow that is a long post. You must really be a fast typer. How did you learn to type so fast?

keep asking keep learning

[Anonymous]

Here is something that may help answer your questions:

THE UNITED STATES CONSTITUTION

(See Note 1)

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establi***his Constitution for the United States of America.
Article. I.
Section 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Section. 2.

Clause 1: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Clause 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (See Note 2) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

Clause 4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Clause 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Section. 3.

Clause 1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, (See Note 3) for six Years; and each Senator shall have one Vote.

Clause 2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. (See Note 4)

Clause 3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Clause 5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Section. 4.

Clause 1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Clause 2: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, (See Note 5) unless they shall by Law appoint a different Day.
Section. 5.

Clause 1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Clause 3: Each House shall keep a Journal of its Proceedings, and from time to time publi***he same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Clause 4: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Section. 6.

Clause 1: The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. (See Note 6) They shall in all Cases, except Treason, Felony and Breach of the Peace, beprivileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Clause 2: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Section. 7.

Clause 1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Clause 2: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Clause 3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Section. 8.

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Section. 9.

Clause 1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Clause 3: No Bill of Attainder or ex post facto Law shall be passed.

Clause 4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. (See Note 7)

Clause 5: No Tax or Duty shall be laid on Articles exported from any State.

Clause 6: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Clause 7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Clause 8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Section. 10.

Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Clause 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

Clause 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Article. II.
Section. 1.

Clause 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Clause 3: The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. (See Note 8)

Clause 4: The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Clause 5: No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Clause 6: In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, (See Note 9) the Same shall devolve on the VicePresident, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Clause 7: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Clause 8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Section. 2.

Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article. III.
Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3.

Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article. IV.
Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2.

Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Clause 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (See Note 11)
Section. 3.

Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Clause 2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article. VI.

Clause 1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

GO WASHINGTON--Presidt. and deputy from Virginia

[Signed also by the deputies of twelve States.]

Delaware

Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom

Maryland

James MCHenry
Dan of ST ThoS. Jenifer
DanL Carroll.

Virginia

John Blair--
James Madison Jr.

North Carolina

WM Blount
RichD. Dobbs Spaight.
Hu Williamson

South Carolina

J. Rutledge
Charles 1ACotesworth Pinckney
Charles Pinckney
Pierce Butler.

Georgia

William Few
Abr Baldwin

New Hampshire

John Langdon
Nicholas Gilman

Massachusetts

Nathaniel Gorham
Rufus King

Connecticut
WM. SamL. Johnson
Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil: Livingston
David Brearley.
WM. Paterson.
Jona: Dayton

Pennsylvania

B Franklin
Thomas Mifflin
RobT Morris
Geo. Clymer
ThoS. FitzSimons
Jared Ingersoll
James Wilson.
Gouv Morris

Attest William Jackson Secretary

NOTES

Note 1: This text of the Constitution follows the engrossed copy signed by Gen. Washington and the deputies from 12 States. The small superior figures preceding the paragraphs designate Clauses, and were not in the original and have no reference to footnotes.

The Constitution was adopted by a convention of the States on September 17, 1787, and was subsequently ratified by the several States, on the following dates: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788.

Ratification was completed on June 21, 1788.

The Constitution was subsequently ratified by Virginia, June 25, 1788; New York, July 26, 1788; North Carolina, November 21, 1789; Rhode Island, May 29, 1790; and Vermont, January 10, 1791.

In May 1785, a committee of Congress made a report recommending an alteration in the Articles of Confederation, but no action was taken on it, and it was left to the State Legislatures to proceed in the matter. In January 1786, the Legislature of Virginia passed a resolution providing for the appointment of five commissioners, who, or any three of them, should meet such commissioners as might be appointed in the other States of the Union, at a time and place to be agreed upon, to take into consideration the trade of the United States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when ratified by them, will enable the United States in Congress effectually to provide for the same. The Virginia commissioners, after some correspondence, fixed the first Monday in September as the time, and the city of Annapolis as the place for the meeting, but only four other States were represented, viz: Delaware, New York, New Jersey, and Pennsylvania; the commissioners appointed by Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Under the circumstances of so partial a representation, the commissioners present agreed upon a report, (drawn by Mr. Hamilton, of New York,) expressing their unanimous conviction that it might essentially tend to advance the interests of the Union if the States by which they were respectively delegated would concur, and use their endeavors to procure the concurrence of the other States, in the appointment of commissioners to meet at Philadelphia on the Second Monday of May following, to take into consideration the situation of the United States; to devise such further provisions as should appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled as, when agreed to by them and afterwards confirmed by the Legislatures of every State, would effectually provide for the same.

Congress, on the 21st of February, 1787, adopted a resolution in favor of a convention, and the Legislatures of those States which had not already done so (with the exception of Rhode Island) promptly appointed delegates. On the 25th of May, seven States having convened, George Washington, of Virginia, was unanimously elected President, and the consideration of the proposed constitution was commenced. On the 17th of September, 1787, the Constitution as engrossed and agreed upon was signed by all the members present, except Mr. Gerry of Massachusetts, and Messrs. Mason and Randolph, of Virginia. The president of the convention transmitted it to Congress, with a resolution stating how the proposed Federal Government should be put in operation, and an explanatory letter. Congress, on the 28th of September, 1787, directed the Constitution so framed, with the resolutions and letter concerning the same, to "be transmitted to the several Legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the convention."

On the 4th of March, 1789, the day which had been fixed for commencing the operations of Government under the new Constitution, it had been ratified by the conventions chosen in each State to consider it, as follows: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 25, 1788; and New York, July 26, 1788.

The President informed Congress, on the 28th of January, 1790, that North Carolina had ratified the Constitution November 21, 1789; and he informed Congress on the 1st of June, 1790, that Rhode Island had ratified the Constitution May 29, 1790. Vermont, in convention, ratified the Constitution January 10, 1791, and was, by an act of Congress approved February 18, 1791, "received and admitted into this Union as a new and entire member of the United States."

Note 2: The part of this Clause relating to the mode of apportionment of representatives among the several States has been affected by Section 2 of amendment XIV, and as to taxes on incomes without apportionment by amendment XVI.

Note 3: This Clause has been affected by Clause 1 of amendment XVII.

Note 4: This Clause has been affected by Clause 2 of amendment XVIII.

Note 5: This Clause has been affected by amendment XX.

Note 6: This Clause has been affected by amendment XXVII.

Note 7: This Clause has been affected by amendment XVI.

Note 8: This Clause has been superseded by amendment XII.

Note 9: This Clause has been affected by amendment XXV.

Note 10: This Clause has been affected by amendment XI.

Note 11: This Clause has been affected by amendment XIII.

Note 12: The first ten amendments to the Constitution of the United States (and two others, one of which failed of ratification and the other which later became the 27th amendment) were proposed to the legislatures of the several States by the First Congress on September 25, 1789. The first ten amendments were ratified by the following States, and the notifications of ratification by the Governors thereof were successively communicated by the President to Congress: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 24, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; and Virginia, December 15, 1791.

Ratification was completed on December 15, 1791.

The amendments were subsequently ratified by the legislatures of Massachusetts, March 2, 1939; Georgia, March 18, 1939; and Connecticut, April 19, 1939.

Note 13: Only the 13th, 14th, 15th, and 16th articles of amendment had numbers assigned to them at the time of ratification.

Note 14: This sentence has been superseded by section 3 of amendment XX.

Note 15: See amendment XIX and section 1 of amendment XXVI.

Note 16: Repealed by section 1 of amendment XXI.

[Anonymous]

You guys are sock puppets, right?

[Anonymous]

Here is something else that gets right to the heart of the matter:

President-elect Ronald Reagan:

Senator Hatfield, Mr. Chief Justice, Mr. President, Vice President Bush, Vice President Mondale, Senator Baker, Speaker O'Neill, Reverend Moomaw, and my fellow citizens: To a few of us here today, this is a solemn and most momentous occasion; and yet, in the history of our Nation, it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle.
Mr. President, I want our fellow citizens to know how much you did to carry on this tradition. By your gracious cooperation in the transition process, you have shown a watching world that we are a united people pledged to maintaining a political system which guarantees individual liberty to a greater degree than any other, and I thank you and your people for all your help in maintaining the continuity which is the bulwark of our Republic.


The business of our nation goes forward. These United States are confronted with an economic affliction of great proportions. We suffer from the longest and one of the worst sustained inflations in our national history. It distorts our economic decisions, penalizes thrift, and crushes the struggling young and the fixed- income elderly alike. It threatens to shatter the lives of millions of our people.
Idle industries have cast workers into unemployment, causing human misery and personal indignity. Those who do work are denied a fair return for their labor by a tax system which penalizes successful achievement and keeps us from maintaining full productivity.
But great as our tax burden is, it has not kept pace with public spending. For decades, we have piled deficit upon deficit, mortgaging our future and our children's future for the temporary convenience of the present. To continue this long trend is to guarantee tremendous social, cultural, political, and economic upheavals.
You and I, as individuals, can, by borrowing, live beyond our means, but for only a limited period of time. Why, then, should we think that collectively, as a nation, we are not bound by that same limitation?
We must act today in order to preserve tomorrow. And let there be no misunderstanding--we are going to begin to act, beginning today.
The economic ills we suffer have come upon us over several decades. They will not go away in days, weeks, or months, but they will go away. They will go away because we, as Americans, have the capacity now, as we have had in the past, to do whatever needs to be done to preserve this last and greatest bastion of freedom.
In this present crisis, government is not the solution to our problem.
From time to time, we have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else? All of us together, in and out of government, must bear the burden. The solutions we seek must be equitable, with no one group singled out to pay a higher price.
We hear much of special interest groups. Our concern must be for a special interest group that has been too long neglected. It knows no sectional boundaries or ethnic and racial divisions, and it crosses political party lines. It is made up of men and women who raise our food, patrol our streets, man our mines and our factories, teach our children, keep our homes, and heal us when we are sick--professionals, industrialists, shopkeepers, clerks, cabbies, and truck drivers. They are, in short, "We the people," this breed called Americans.
Well, this administration's objective will be a healthy, vigorous, growing economy that provides equal opportunity for all Americans, with no barriers born of bigotry or discrimination. Putting America back to work means putting all Americans back to work. Ending inflation means freeing all Americans from the terror of runaway living costs. All must share in the productive work of this "new beginning" and all must share in the bounty of a revived economy. With the idealism and fair play which are the core of our system and our strength, we can have a strong and prosperous America at peace with itself and the world.
So, as we begin, let us take inventory. We are a nation that has a government--not the other way around. And this makes us special among the nations of the Earth. Our Government has no power except that granted it by the people. It is time to check and reverse the growth of government which shows signs of having grown beyond the consent of the governed.
It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people. All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.
Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work-work with us, not over us; to stand by our side, not ride on our back. Government can and must provide opportunity, not smother it; foster productivity, not stifle it.
If we look to the answer as to why, for so many years, we achieved so much, prospered as no other people on Earth, it was because here, in this land, we unleashed the energy and individual genius of man to a greater extent than has ever been done before. Freedom and the dignity of the individual have been more available and assured here than in any other place on Earth. The price for this freedom at times has been high, but we have never been unwilling to pay that price.
It is no coincidence that our present troubles parallel and are proportionate to the intervention and intrusion in our lives that result from unnecessary and excessive growth of government. It is time for us to realize that we are too great a nation to limit ourselves to small dreams. We are not, as some would have us believe, loomed to an inevitable decline. I do not believe in a fate that will all on us no matter what we do. I do believe in a fate that will fall on us if we do nothing. So, with all the creative energy at our command, let us begin an era of national renewal. Let us renew our determination, our courage, and our strength. And let us renew; our faith and our hope.
We have every right to dream heroic dreams. Those who say that we are in a time when there are no heroes just don't know where to look. You can see heroes every day going in and out of factory gates. Others, a handful in number, produce enough food to feed all of us and then the world beyond. You meet heroes across a counter--and they are on both sides of that counter. There are entrepreneurs with faith in themselves and faith in an idea who create new jobs, new wealth and opportunity. They are individuals and families whose taxes support the Government and whose voluntary gifts support church, charity, culture, art, and education. Their patriotism is quiet but deep. Their values sustain our national life.
I have used the words "they" and "their" in speaking of these heroes. I could say "you" and "your" because I am addressing the heroes of whom I speak--you, the citizens of this blessed land. Your dreams, your hopes, your goals are going to be the dreams, the hopes, and the goals of this administration, so help me God.
We shall reflect the compassion that is so much a part of your makeup. How can we love our country and not love our countrymen, and loving them, reach out a hand when they fall, heal them when they are sick, and provide opportunities to make them self- sufficient so they will be equal in fact and not just in theory?
Can we solve the problems confronting us? Well, the answer is an unequivocal and emphatic "yes." To paraphrase Winston Churchill, I did not take the oath I have just taken with the intention of presiding over the dissolution of the world's strongest economy.
In the days ahead I will propose removing the roadblocks that have slowed our economy and reduced productivity. Steps will be taken aimed at restoring the balance between the various levels of government. Progress may be slow--measured in inches and feet, not miles--but we will progress. Is it time to reawaken this industrial giant, to get government back within its means, and to lighten our punitive tax burden. And these will be our first priorities, and on these principles, there will be no compromise.
On the eve of our struggle for independence a man who might have been one of the greatest among the Founding Fathers, Dr. Joseph Warren, President of the Massachusetts Congress, said to his fellow Americans, "Our country is in danger, but not to be despaired of.... On you depend the fortunes of America. You are to decide the important questions upon which rests the happiness and the liberty of millions yet unborn. Act worthy of yourselves."
Well, I believe we, the Americans of today, are ready to act worthy of ourselves, ready to do what must be done to ensure happiness and liberty for ourselves, our children and our children's children.
And as we renew ourselves here in our own land, we will be seen as having greater strength throughout the world. We will again be the exemplar of freedom and a beacon of hope for those who do not now have freedom.
To those neighbors and allies who share our freedom, we will strengthen our historic ties and assure them of our support and firm commitment. We will match loyalty with loyalty. We will strive for mutually beneficial relations. We will not use our friendship to impose on their sovereignty, for or own sovereignty is not for sale.
As for the enemies of freedom, those who are potential adversaries, they will be reminded that peace is the highest aspiration of the American people. We will negotiate for it, sacrifice for it; we will not surrender for it--now or ever.
Our forbearance should never be misunderstood. Our reluctance for conflict should not be misjudged as a failure of will. When action is required to preserve our national security, we will act. We will maintain sufficient strength to prevail if need be, knowing that if we do so we have the best chance of never having to use that strength.
Above all, we must realize that no arsenal, or no weapon in the arsenals of the world, is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today's world do not have. It is a weapon that we as Americans do have. Let that be understood by those who practice terrorism and prey upon their neighbors.
I am told that tens of thousands of prayer meetings are being held on this day, and for that I am deeply grateful. We are a nation under God, and I believe God intended for us to be free. It would be fitting and good, I think, if on each Inauguration Day in future years it should be declared a day of prayer.

his is the first time in history that this ceremony has been held, as you have been told, on this West Front of the Capitol. Standing here, one faces a magnificent vista, opening up on this city's special beauty and history. At the end of this open mall are those shrines to the giants on whose shoulders we stand.
Directly in front of me, the monument to a monumental man: George Washington, Father of our country. A man of humility who came to greatness reluctantly. He led America out of revolutionary victory into infant nationhood. Off to one side, the stately memorial to Thomas Jefferson. The Declaration of Independence flames with his eloquence.
And then beyond the Reflecting Pool the dignified columns of the Lincoln Memorial. Whoever would understand in his heart the meaning of America will find it in the life of Abraham Lincoln.
Beyond those monuments to heroism is the Potomac River, and on the far shore the sloping hills of Arlington National Cemetery with its row on row of simple white markers bearing crosses or Stars of David. They add up to only a tiny fraction of the price that has been paid for our freedom.
Each one of those markers is a monument to the kinds of hero I spoke of earlier. Their lives ended in places called Belleau Wood, The Argonne, Omaha Beach, Salerno and halfway around the world on Guadalcanal, Tarawa, Pork Chop Hill, the Chosin Reservoir, and in a hundred rice paddies and jungles of a place called Vietnam.
Under one such marker lies a young man--Martin Treptow--who left his job in a small town barber shop in 1917 to go to France with the famed Rainbow Division. There, on the western front, he was killed trying to carry a message between battalions under heavy artillery fire.
We are told that on his body was found a diary. On the flyleaf under the heading, "My Pledge," he had written these words: "America must win this war. Therefore, I will work, I will save, I will sacrifice, I will endure, I will fight cheerfully and do my utmost, as if the issue of the whole struggle depended on me alone."
The crisis we are facing today does not require of us the kind of sacrifice that Martin Treptow and so many thousands of others were called upon to make. It does require, however, our best effort, and our willingness to believe in ourselves and to believe in our capacity to perform great deeds; to believe that together, with God's help, we can and will resolve the problems which now confront us.
And, after all, why shouldn't we believe that? We are Americans. God bless you, and thank you.

[Anonymous]

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

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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

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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

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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

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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

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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

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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

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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

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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?

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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?

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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

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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

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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

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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

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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

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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.

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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

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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.

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•
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.

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•
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.

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&
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

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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

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3
Attachment D.
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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

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•
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.

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&
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.

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&
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.

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•
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.

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&
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.

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•
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.

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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.

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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.

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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.

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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.

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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?

[Anonymous]

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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.

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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?

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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

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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

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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

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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

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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

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4
Attachment E.
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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?

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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?

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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.

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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.

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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.

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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

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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?

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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?

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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)

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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.

[Anonymous]

This is why some groups are highly moderated.

It's also why some animals eat their young.

Wayne

[dharmon]

Since it's apparently craft day at the asylum.......and the inmates are cutting and pasting, here's some more reading for you two.....

Dementia: Specific Therapies
The psychiatric care of patients with dementia involves a broad range of psychosocial treatments for the patient and his or her family, as already described. In addition, some patients may benefit from more specific psychosocial interventions. These more specific psychosocial treatments for dementia can be divided into four broad groups: behavior oriented, emotion oriented, cognition oriented, and stimulation oriented. See: http://www.medem.com/search/article_display.cfm?path=\\TANQUERAY\M_ContentItem&mstr=/M_ContentItem/ZZZMD1GXA7C.html&soc=APA&srch_typ=NAV_SERCH

Let's Talk Facts About Schizophrenia
The term "schizophrenia" refers to one of the most debilitating and baffling mental illnesses known. Though it has a specific set of symptoms, this illness varies in its severity from individual to individual, and even within any one afflicted individual from one time period to another.
Schizophrenia generally can be controlled with treatment and, in more than 50 percent of individuals given access to continuous treatment and rehabilitation over many years, recovery is often possible. Though researchers and mental health professionals don't know what causes the disorder, they have developed treatments that allow most persons with schizophrenia to work, live with their families and enjoy friends. But like those with diabetes, people with schizophrenia probably will be under medical care for the rest of their lives.
See: http://www.medem.com/search/article_display.cfm?path=\\TANQUERAY\M_ContentItem&mstr=/M_ContentItem/ZZZVLOCK97C.html&soc=APA&srch_typ=NAV_SERCH

Panic Disorder: References
References
The following coding system is used to indicate the nature of the supporting evidence in the summary recommendations and references
See: http://www.medem.com/search/article_display.cfm?path=\\TANQUERAY\M_ContentItem&mstr=/M_ContentItem/ZZZVONUI67C.html&soc=APA&srch_typ=NAV_SERCH

[Anonymous]

This is crazy. Are you feeling ok? Please provide only links in the future.

[Junctionfan]

What in the heck is this?

[tree68]

Cut and paste has its place. This isn't it. Links only in the future. This is a waste of forum space, and I haven't even read it.

[Anonymous]

As I mentioned, these two are sock puppets.

KMC7 and Terry_C, please seek help, or perhaps spend time at the Art Bell Web site.