Dm B4 Homeland Security Fdr- Draft Dhs Memo And Correspondence W Dhs Re Access- Document Requests 323

OCT. 8.2003 3:41PM

9-11 COMMISSION

NO. 0878

P. 2

III Department of Homeland Security October 8,2003

Daniel Marcus, Esq. General Counsel National Commission on Terrorist Attacks Upon the United States 301 7* Street SW, Room 5125 Washington, DC 20407 Dear Dan: This is a follow-up to my letter to you of September 5, 2003, relating to the Department's responses to the Commission's document requests. The purpose of this letter is to provide you with an update on the status of the "exceptions" discussed in the third through sixth paragraphs of such letter, which relate to certain items in DHS Document Request No. 1 specified in your memorandum to Joe Whitley of August 26,2003. As you may recall, those "exceptions" related to Items 2, 8, and 18 of such Document Request. In the case of Item 2, CBP and ICE have now provided access to the documents that contain classified information. In the case of Item 8, organizational charts that include names of personnel and dates of incumbency were prepared by ICE, and access to them was provided on September 11,2003. In the case of Item 18, the individual's A-file was located and only arrived at ICE headquarters on September 26,2003, The file is very large, although ICE initially determined that it contains only one document that might be responsive to the Commission's Document Request. Access to that document, the 1-213 Record of Deportable Alien, has been provided to the Commission. We have requested clarification from the Commission (specifically from Janice Kephart-Roberts) on other documents from the file to which the Commission might desire access, In an e-mail on October 6,2003, Ms. Kephart-Roberts informed us that she would be satisfied with the transcript of the individual's immigration bond hearing. Today we were informed by ICE that this document has been located, and we will provide the Commission with access to the document by the end of this week. The Department remains committed to cooperating with the Commission as it continues its important work. Please do not hesitate to call me to discuss any concerns you might have.

Sincerely,

John M. Mitnick Assistant General Counsel

Washington,1, C. 20526

The National Commission on Terrorist Attacks Upon the United States (the "9/11 Commission") has asked the Department of Homeland Security ("DHS") for access to records on individuals who are citizens or legal permanent residents and are, therefore, entitled to the protections of the Privacy Act of 1974 (the "Privacy Act"). That statute strictly governs the release of records maintained by a federal agency that are retrieved by name or personal identifier. The alien files at issue, which are maintained by United States Citizenship and Immigration Services, are retrieved by name and/or personal identifier (alien registration number). That being the case, the Privacy Act specifies that there are only twelve conditions under which disclosures may be made without first obtaining consent of the record subject. See 5 U.S.C. § 552a(b). There are three potential conditions that apply in this case, but none provides the authority for the requested disclosure directly to the Commission. The first potential condition is found at 5 U.S.C. § 552a(b)(3), which allows, but does not require, agencies to make disclosures without consent "for a routine use . . . . " A routine use is defined as disclosure of the record for a use that is compatible with the purpose for which the record was collected. 5 U.S.C. § 552a(a)(7). The alien files requested by the 9/11 Commission are found in a system of records entitled Justice/INS-001 A, the Immigration and Naturalization Service Alien File and Central Index System ("Justice/INS-OOlA").1 We have reviewed the routine uses published for this system, but none appears to cover disclosure to the 9/11 Commission. The closest applicable routine use allows disclosure to a "federal, state, tribal, local or foreign government agency or organization, or international organization, lawfully engaged in collecting law enforcement intelligence information, whether civil or criminal, or charged with investigating, prosecuting, enforcing or implementing civil or criminal laws, related rules, regulations or orders, to enable these entities to carry out their law enforcement responsibilities, including the collection of law enforcement intelligence." 66 Fed. Reg. 46812, at 46813 (Sept. 7, 2001). None of the stated purposes for the 9/11 Commission has "law enforcement" as its principal goal as that term is generally understood. See, e.g.. Rural Housing Alliance v. USDA. 498 F2d 73, 81 (D.C. Cir. 1974) (distinguishing files compiled for government oversight and those compiled for an investigation of a possible violation of law which could result in civil or criminal penalties). Because the Commission has no legal authority to pursue civil or criminal penalties, its functions would not appear to meet the generally understood meaning of "law enforcement responsibilities." The remaining routine uses for this system of records also contemplate that the information may be released to a government agency engaged in a criminal or civil law enforcement investigation or activity or for administrative purposes not relevant to this analysis. Accordingly, disclosure under this routine use would not be warranted.

The Department of Homeland Security is in the process of reordering and republishing its system notices at which time the name of this system will change. Because the former Immigration and Naturalization Service was a component of the Department of Justice, the system still bears the DOJ/INS nomenclature.

The second potential means of disclosure, which is found at 5 U.S.C. § 552a(b)(7), is similarly unavailing. This provision allows an agency to make a nonconsensual release of records "to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity under certain circumstances which have otherwise been met here. The 9/11 Commission is not a federal agency. Although it is arguably an "instrumentality of any governmental jurisdiction," again, given its mandate, we do not believe that the Commission is a law enforcement entity that can pursue civil or criminal action as a result of its activities. We recognize that the Commission may make recommendations that would result in further law enforcement activities, but we continue to believe that release of protected alien files directly to the Commission is not contemplated by this provision of the Privacy Act. The third potential basis for disclosure is found in 5 U.S.C. § 552a(b)(9), which permits disclosure to either House of Congress, or to any committee or subcommittee, joint committee or subcommittee of a joint committee, "to the extent of matter within its jurisdiction." Although the 9/11 Commission was created by Congress, it does not appear to meet the threshold requirement for disclosure in this instance, because it is neither a House of Congress nor a committee or subcommittee thereof. Consequently, direct release to the Commission is not allowed under this condition for disclosure.. The DHS Privacy Office regrets that it is unable to assist the Commission by providing these records, but the Privacy Act forbids direct disclosure to the Commission in this instance.

Thomas H. Kean CHAIR

March 4, 2004

Lee H. Hamilton VICE CHAIR

BY FACSIMILE (202) 254.4285 Richard Ben-Veniste Fred F. Fielding Jamie S. Gorelick Slade Gorton Bob Kerrey John F. Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

Clark Kent Ervin, Esquire Inspector General Department of Homeland Security Washington, DC 20528 Dear Mr. Ervin: As you may know, the statute that created the National Commission on Terrorist Attacks Upon the United States directs the Commission to "build upon" the investigations of other entities, and to "evaluate the lessons learned from the terrorist attacks of September 11, 2001, regarding the structure, coordination, management policies, and procedures of the Federal Government." The statute authorizes the Commission to secure information directly from any executive department, bureau or agency for purposes of its investigation. We understand that your office is completing a review of DHS' role in watchlisting, an issue that was discussed in the congressional Joint Inquiry report on the September 11th attacks. To assist the Commission in fulfilling its statutory mandate, we hereby request that your office provide to the Commission and its staff copies of the information gathered during your watchlisting review, including: 1. 2. 3. 4. 5.

301 7th Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-1 lcommission.gov

All DHS, Terrorist Screening Center, and Terrorist Identities Group documents collected during your review, other than documents that were provided to the congressional Joint Inquiry; Any transcripts of interviews conducted by your office during this review; For interviews for which there is no existing transcript, memoranda or "write-ups" of such interviews; For interviews for which there is no transcript, interview memoranda or "write-ups," interview notes made for any such interviews; and Your final report, once it becomes available.

26 Federal Plaza Suite 13-100 New York, NY 10278 T 212.264.1505 F 212.264.1595

Clark Kent Ervin, Esq. March 4, 2004 Page 2 We will use these materials to assist us in identifying and evaluating lessons learned on the issue of watchlisting. Thank you very much for your willingness to cooperate with the Commission and its staff in this important matter. Please do not hesitate to call Susan Ginsburg 202-331-1747 if you have any questions or concerns about this request. Yours sincerely,

)aniel Marcus General Counsel