T5 B18 Civil Liberties 1 Of 2 Fdr- All Emails- Notes- Memos In Fdr 298
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IV.
General Intelligence Collection Topics: •
Wiretaps and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (with emphasis on counter-terrorism uses of wiretap authority) o Communications Assistance for Law Enforcement Act of 1994 ("CALEA") o USA PATRIOT Act Provisions on Wiretaps [overlaps with PATRIOT Act topics listed above]
V.
•
Governmental Data Mining, including the "Terrorist Information Awareness" Program (previously the "Total Information Awareness" program) and other DOD/DARPA data mining programs (including analysis of privacy law and constitutional issues raised by governmental data mining of private citizens' records for law enforcement and antiterrorism purposes) [possible Richard Ben-Veniste summer associate research project]
•
Internet surveillance by federal law enforcement, including the FBI's "Carnivore" program
•
Department of Justice/Bureau of Prisons Policy on Monitoring of Attorney-Client Communications (28 C.F.R. parts 500 and 501)
•
Department of Justice Guidelines for Interviews Regarding International Terrorism (include November 9, 2001 Deputy Attorney General's Memorandum to Anti-Terrorism Task Force Members, and other relevant authorities)
•
Computer Assisted Passenger Pre-Screening System II ("CAPPS II") [overlaps with Team 7 and perhaps other 9-11 Commission Teams]
United States Intelligence Community and Law Enforcement Agency Topics: •
National Security Act of 1947 and the Present Structure of the United States Intelligence Community (focusing on existing legal constraints on intelligence collection inside the United States)
•
Interagency Information Sharing (build on Markle Foundation 2002 Task Force Report background papers on "Information Sharing at the FBI" and "Limitations upon Interagency Information Sharing: The Privacy Act of 1974") [include USA PATRIOT Act provisions on information sharing and Attorney General's 2001 and 2002 Directives on information sharing]
Establishment and Operation to Date of the TTIC Analysis of the Homeland Security Act and Operations/Organization of the Department of Homeland Security Pertaining to Anti-Terrorism Law Enforcement and Intelligence Collection Inside the United States VI.
Comparative Legal Analysis Topics: •
Comparison to United Kingdom domestic intelligence system (build on Markle Foundation 2002 Task Force Report background paper) [possible Richard Ben-Veniste summer associate research project]
•
Comparison to Canada domestic intelligence system [possible Richard Ben-Veniste summer associate research project]
•
Comparison to Israel domestic intelligence system
•
Other Countries?
Discussion Draft - June 5, 2003
Team 6 Law Enforcement and Intelligence Collection Inside the United States
Topics for Legal Research Background/Briefing Papers I.
II.
USA PATRIOT Act Topics: •
Criminal Investigation Provisions of the Act (including electronic surveillance, pen registers, trap and trace devices, "sneak and peek" searches, and other provisions on intelligence collection methods) [note that this topic overlaps other topics listed below]
•
New Crimes Created by the Act (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by such use) [note that this topic overlaps other topics listed below]
•
Provisions of the Act Amending or Supplementing FISA [note that this topic overlaps other topics listed below]
•
Money Laundering Provisions of the Act (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by such use) [overlaps with Team 4 and perhaps other 9-11 Commission teams]
•
Border Protection Provisions of the Act [overlaps with Team 5]
•
Analysis of Sunset Provisions of the Act
•
Analysis of PATRIOT Act II Proposal (based on publicly available information)
FISA Topics: •
Overview of FISA Powers and Procedures o Nov. 18, 2002 United States Foreign Intelligence Surveillance Court of Review Opinion in In re: Sealed Case, 310 F.2d 717 (2002).
FISA Amendments Proposed Since September 11, 2001 (whether or not enacted into law) [overlaps with PATRIOT Act topics listed above] Analysis of FISA Use Since September 11, 2001 (based on publicly available information) Use of FISA in the Zacharias Moussaoui Investigation and Special Agent Coleen Rowley's Allegations Regarding the FBI's Use of FISA in the Moussaoui Investigation (based on publicly available information) III.
General Law Enforcement Topics: •
Federal Grand Jury Secrecy Requirements (Fed. R. Crim. P. 6(e)) Relevant to Counter-Terrorism Efforts
•
Use of New Counterterrorism Powers by Federal Law Enforcement Authorities Since September 11, 2001 (including analysis of the "RICO analogy" question of whether statutory authority provided for antiterrorism is being used for conventional law enforcement purposes) [possible Richard Ben-Veniste summer associate research project]
•
Analysis of the May 30, 2002 Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Guidelines Regarding the Use of Confidential Informants (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Memorandum on Procedures for Lawful, Warrantless Monitoring of Verbal Communications (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of post-September 11 revisions to Attorney General's Guidelines on General Crimes, Racketeering Enterprise, and Terrorism Enterprise Investigations (with emphasis on counterterrorism investigative techniques, such as FBI agent attendance of religious services and other public events, and any legal/constitutional issues raised by the revised Guidelines)
Enforcement of U.S. Immigration Laws Within the US In Response to the 9/11 Attack: Allocation of Team 5 and Team 6 Issues The immigration laws primarily protect the US interest as a sovereign and member of the society of nations. Criminal laws, as well as other domestic civil laws, protect the US interest in internal order and justice. The national security laws protect the nation from foreign threats. As many foreign visitors live and work in our country, and as terrorism operates on and within domestic society, these interests and bodies of law interact. Aliens who commit crimes while in the US are subject to both criminal and immigration laws, and those who are or assist terrorists are subject to national security measures. All three sets of laws have a constitutional dimension. The 9/11 terrorists were all foreigners with non-immigrant visas, and the government's immediate reaction was to focus heavily on foreigners in the US. This memorandum attempts to list questions we need to consider about these measures, and to suggest whether Team 6 (Domestic Intelligence and Law Enforcement) and/or Team 5 (Immigration, Nonimmigrant Visas and Border Security), should address them. A separate paper lists constitutional questions related to these issues. Generally speaking, the two teams overlap in their concerns for the same reason that DBA, Customs, and FBI overlap in the drug enforcement arena. Movement of illegal drugs (or guns, or money, or victimized people or gray market goods) may be initiated abroad so as to be the focus of DBA, continue across US borders and come into Customs' or Coast Guard's jurisdiction, and end up on the streets in the US and as the focus of DEA-FBI-state-local task forces. Similarly, a terrorist may enter a consulate and encounter the State Department; cross the US border and encounter the INS, or be in the US, and therefore subject to INS, FBI, and state and local law enforcement. Because terrorists attack the nation by attacking civilians (including foreigners here), intelligence agencies also are involved. This memo proposes dividing the work in a practicable way, recognizing that our arrangements are to some extent arbitrary. If we can in the process arrive at recommendations about the relative size and scope of different agencies in enforcing laws addressing foreign terrorist entry and circulation in the US - so as to help prevent the type of interagency wrangling as has been the case with illegal drugs - this will be all to the good. An initial question: justice or war, civilian or military. After the 9/11 attacks, the government had legitimate interests in finding and bringing to justice any persons associated with the 9/11 attack, and in expanding USG efforts to prevent further terrorist attacks. To what extent the Administration adopt the goal of obtaining justice? What type of justice is being pursued, that is, should the 9/11 attackers, their associates, and similar terrorists be treated as civilian criminals or enemy combatants, whether or not they are US citizens? The question does not turn on immigration status, although it may affect jurisdiction. If considered relevant to the commission's work, this is a Team 6 question.
Assuming that the USG has mingled goals of bringing terrorist associates to justice and preventing further terrorist attacks by Al Qa'ida or similar groups and individuals in the US, the government has three types of legal means to seek to achieve these goals relevant to this memorandum: (a) criminal justice enforcement; (b) domestic intelligence means; and (c) immigration law procedures and enforcement. (Other means, such as tracing and blocking financial assets, are beyond the scope of this discussion.) Where actions primarily involve the latter, the subject belongs by definition to Team 5, and where actions primarily involve the first two, the subjects similarly belong to Team 6. The next section attempts to identify some of the steps that the USG took, and describe them as one of the above efforts. Post 9/11 detentions of aliens, associated detention and bond procedures and immigration hearings. After 9/11, the Department of Justice detained hundreds of aliens under the immigration laws "whom they suspected of having knowledge of or involvement in terrorist activity" (GAO 4/03 at 1) and perhaps arrested some of them on non-immigration grounds. On September 28, 2001, the Attorney General announced that 480 individuals had been detained, and on October 25, that 1,000 persons had been "arrested or detained." Rep. Sensenbrenner refers to "three sweeps" in a letter of inquiry to the Attorney General, including a third sweep in March 2003 (4/1/2003). Time Magazine refers to 750 "foreign nationals." An AP news report 5/27 quotes Solicitor General Ted Olsen using the figure of "766 detainees" as falling under the rubric of "special interest" for purposes of deportation hearing procedures. These detentions seem to have been extraordinary in other ways than that they occurred at all. First, there were reportedly issues about conditions of detainment, contact with lawyers, contact by families, and with and by embassies and consulates. Second, the INS by regulation extended the amount of time an alien can be held without charge. Third, the chief immigration judge established a set of security procedures permitting closed immigration hearings in certain cases. The detentions and arrests may have constituted a single episode in which the government, in immediate reaction to the attack, rushed to detain foreigners from the same countries as the 9/11 terrorists, because they citizens of these countries, and/or shared the same visa status. Because the primary means used were the immigration laws, it makes sense for Team 5 to look into this episode. In addition, according to DOJ in its May 21, 2003 response to Sen. Sensenbrenner and Rep. Conyers, DHS currently holds the information about these proceedings. Gov. Keani also expressed interest in the question during Team 5's initial presentation. •(, Some foreigners, though, may have been arrested on criminal charges and the FBI may also have arrested people who were foreign born US citizens, or simply US citizens somehow associated with foreigners. Although the DOJ referred questions to DHS, I do ' "t/^ If INS. To this extent it also makes sense for Team 6 to attempt to shed light on this chapter in queries to the FBI and DOJ.
\
Either way, both teams have an interest in this episode, and in contributing to a joint evaluation of how well it served three purposes: finding associates of the 9/11 group, and other terrorists, for prosecution; identifying current and future sources of counter-terrorist intelligence (on October 1, President Bush signed a law authorizing the admission of "s" non-immigrants, who will supply information regarding terrorist organizations to US law enforcement officials); and removing aliens who pose a terrorist threat from the country. To the extent that the practice is ongoing, or the authorities are retained on an ongoing basis, we must assess it as an enforcement tool and from a constitutional perspective. Some of the (non-constitutional) questions raised by these actions are: What exactly happened to the detainees? Were lawyers accessible? Did the detentions contribute to criminal investigations or result in intelligence or intelligence sources that effectively reduce US vulnerability to terrorist attacks? Did the detentions violate US constitutional and/or international treaty or human rights? Could they lead to foreign countries handling US citizens in a reciprocal manner? What relevant changes were made in the USA PATRIOT Act? Should further changes be made in the detention procedures or underlying immigration laws either to facilitate counterterrorism or protect individual and/or US interests abroad? Do post-incident massive detentions make sense? Post 9/11 interviews of aliens. DOJ initiated a project to interview 7,600 nonimmigrant aliens. Like the detentions, this was an immediate response to the 9/11 attacks to "try to determine, among other things, what knowledge they had of terrorists and planned terrorist activities." (GAO 4/03, p.l) At least in Dearborn, according to a report by the Migration Policy Institute (MPI), the FBI assured community leaders that interviewees would not be arrested for immigration violations. Thus, the project was not primarily aimed at enforcing immigration laws, but as a counterterrorism measure. DOJ's Justice Management Division (FTTF?) is maintaining information from the interviews in a database (GAO 4/03) An April 2003 GAO report states the results cannot be evaluated based on the information DOJ provided to GAO. Importantly, this was not a one-time undertaking. Rather, the practice seems to have been adopted as one to keep in reserve. For instance, DOJ undertook a similar initiative in anticipation of the war in Iraq. As INS was apparently not involved in the interviews, Team 6 seems better positioned to examine it. Team 5 can help assess the impact on immigrant communities and place this initiative in the context of immigration enforcement initiatives. •\v
I » \l Origin Working Group Initia
interesting to know if this Civil Rights Division initiative involved any non-citizens permanent residents or nonimmgrants — as victims of discrimination based on national origins. Watchlists. Team 5, including distribution of information to all relevant agencies. Post 9/11 INS review of asylum cases, detention of asylum seekers from 33 countries pending asylum determination, and detention of any group designated by the Attorney General (e.g. Haitians). Team 5 issues, as they affect immigration across the board.
Ongoing INS automated system (IBIS) checks on US citizen petitioners and attorneys. Team 5 will address IBIS as part of the Watchlist set of questions. But it appears that the Attorney General has asked that US citizen petitioners and attorneys also be checked by the INS when the entering foreigner is checked. This would seem to be a Team 6 issue concerning investigations of US citizens. Systems to monitor foreigners in the US: SEVIS, NSEERS, US VISIT. How data from these systems is analyzed and referred for enforcement is a key topic for Team 5. We will look at the referrals to other agencies, such as FBI or state and locals. Special registration with the INS of certain non-citizens from certain Arab/Islamic countries. Phase one, initiated September 1 1 , 2002, required selected individuals to be fingerprinted, photographed, and interviewed under oath at ports of entry. Phase two extended registration requirements to nationals and citizens of designated countries, who have already been admitted to the US, to register at an INS office. DHS/BICE states that the special registration program registration system is a one time precursor to the NSEERS program, which is to go into effect within three years. It is a Team 5 issue. Alien Absconder initiatives and related prioritized removals. The Attorney General decided to make an enforcement priority of removing approximately 300,000 aliens with valid deportation orders, beginning with 5,900 from countries where Al Qa'ida is known to recruit. This new chapter in immigration enforcement policy affects all aliens, not only potential terrorists. Team 5 should address this enforcement policy initiative. Involvement of state and local authorities in Alien Absconder and other immigration law enforcement. Federal law enforcement does not have the resources needed to locate the approximately 300,000 alien absconders. The Attorney General . determined that state and local law enforcement should be involved to help close the resources gap. While this issue has been approved as part of the Team 5 Workplan, as a potential new mission for state and local law enforcement, it could also be addressed by Team 6. Alternatively, perhaps both teams can work on it, in a coordinated manner, pool results and jointly evaluate them
Wv
*"
Constitutional Law Issues Associated with Post-9/11 Immigration Law Enforcement Actions Questions that permeate the fact, regulatory, and enforcement situations recited below: Generally, are aliens persons - fully or conditionally - for purposes of the fifth amendment due process clause? To what extent is there a violation of due process rights rights based on national origins? 1. Post 9/11 detentions of aliens, associated detention and bond procedures and immigration hearings. What is the legal authority for detaining non-citizens indefinitely before charging them? Have there been due process violations associated with regulations and practices with respect to non-citizens and foreign nationals governing: a. b. c. d. e. f.
length of time held before charges length of time held after charges without bond length of time held after grant of voluntary deportation secrecy imposed on detentions access to counsel by detainees secrecy imposed on deportation hearings
2. Post 9/11 INS review of asylum cases, detention of asylum seekers from 33 countries pending asylum determination, and detention of any group designated by the Attorney General (e.g. Haitians).
3. Systems to monitor foreigners in the US: SEVIS, NSEERS, US VISIT. 4. Special registration with the INS of certain non-citizens from certain Arab/Islamic countries. Phase one, initiated September 11, 2002, required selected individuals to be fingerprinted, photographed, and interviewed under oath at ports of entry. Phase two extended registration requirements to nationals and citizens of designated countries who have already been admitted to the US, to register at an INS office. DHS/BICE states that the special registration program registration system is a one time precursor to the NSEERS program, which is to go into effect within three years. 5. Alien Absconder initiatives and related prioritized removals. The Attorney General decided to make an enforcement priority of removing approximately 300,000 aliens with valid deportation orders, beginning with 5,900 from countries where Al Qa'ida is known to recruit. Is prioritization based on national origins a violation of equal protection? Is the singling out of Arab Muslim men a violation? If race and ethnicity are not explicitly mentioned in
the regulation, can the impact nevertheless be the basis for a violation? What is the legal impact of singling out religion as a characteristic? 6. Involvement of state and local authorities in Alien Absconder and other immigration law enforcement. Federal law enforcement does not have the resources needed to locate the approximately 300,000 alien absconders. The Attorney General. determined that state and local law enforcement should be involved to help close the resources gap.
Discussion Draft - June 3,2003
Team 6 Law Enforcement and Intelligence Collection Inside the United States Topics for Legal Research Background/Briefing Papers I.
USA PATRIOT Act Topics: •
Criminal Investigation Provisions of the Act (including electronic surveillance, pen registers, trap and trace devices, "sneak and peek" searches, and other provisions on tracking and gathering communications) [note that this topic overlaps other topics listed below]
•
New Crimes Created by the Act (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by such use)
•
Provisions of the Act Amending or Supplementing FISA [note that this topic overlaps other topics listed below]
•
Money Laundering Provisions of the Act (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by such use) [overlaps with other 9-11 Commission Teams] Border Protection Provisions of the Act [Team 5 topic]
II.
•
Analysis of sunset provisions of the Act
•
Analysis of PATRIOT Act II Proposal
FISA Topics: •
Overview of FISA powers and procedures o Nov. 18, 2002 United States Foreign Intelligence Surveillance Court of Review Opinion in In re: Sealed Case, 310 F.2d 717 (2002).
•
FISA Amendments Proposed Since September 11, 2001 (whether or not enacted into law)
Analysis of FISA Use Since September 11, 2001 (based on publicly available information) Use of FISA in the Zacharias Moussaoui Investigation and Special Agent Coleen Rowley's Allegations Regarding the FBI's Use of FISA in the Moussaoui Investigation (based on publicly available information) III.
IV.
General Law Enforcement Topics: •
Federal Grand Jury Secrecy Requirements (Fed. R. Crim. P. 6(e)) Relevant to Counter-Terrorism Efforts
•
Use of New Counter-Terrorism Powers by Federal Law Enforcement Authorities Since September 11, 2001 (including analysis of the "RICO analogy" question of whether statutory authority provided for antiterrorism is being used for conventional law enforcement purposes)
•
Analysis of the May 30, 2002 Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Guidelines Regarding the Use of Confidential Informants (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Memorandum on Procedures for Lawful, Warrantless Monitoring of Verbal Communications (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
General Intelligence Collection Topics: •
Wiretaps and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (with emphasis on counter-terrorism uses of wiretap authority) o Communications Assistance for Law Enforcement Act of 1994 ("CALEA") o USA PATRIOT Act Provisions on Wiretaps (overlaps with PATRIOT Act topics listed above)
Governmental Data Mining, including the "Terrorist Information Awareness" Program (previously the "Total Information Awareness" program) and other DOD/DARPA data mining programs (including analysis of privacy law and constitutional issues raised by governmental data mining of private citizens' records for law enforcement and antiterrorism purposes) Internet surveillance by federal law enforcement, including the FBI's "Carnivore" program Department of Justice/Bureau of Prisons Policy on Monitoring of Attorney-Client Communications (28 C.F.R. parts 500 and 501) Department of Justice Guidelines for Interviews Regarding International Terrorism (include November 9, 2001 Deputy Attorney General's Memorandum to Anti-Terrorism Task Force Members, and other relevant authorities) Computer Assisted Passenger Pre-Screening System II ("CAPPS II") [overlaps with other 9-11 Commission Teams]
V.
VI.
United States Intelligence Community and Law Enforcement Agency Topics: •
National Security Act of 1947 and the Present Structure of the United States Intelligence Community
•
Interagency Information Sharing (build on Markle Foundation 2002 Task Force Report background papers on "Information Sharing at the FBI" and "Limitations upon Interagency Information Sharing: The Privacy Act of 1974") [include USA PATRIOT Act provisions on information sharing and Attorney General's 2001 and 2002 Directives on information sharing]
•
Establishment and Operation to Date of TTIC
•
Analysis of the Homeland Security Act and Operations/Organization of the Department of Homeland Security Pertaining to Anti-Terrorism Law Enforcement and Intelligence Collection Inside the United States
Comparative Legal Analysis Topics: •
Comparison to United Kingdom domestic intelligence system (build on Markle Foundation 2002 Task Force Report background paper)
•
Comparison to Canada domestic intelligence system
Comparison to Israel domestic intelligence system Other Countries?
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Cc: Subject:
Susan Ginsburg [sginsburg@9-11 commission.gov] Thursday, September 25, 2003 11:03 AM '[email protected]'; '[email protected]' '[email protected]' RE: FBI #13 - SG comments on Levin notes
Dan and Steve, Below are my comments on Dan Levin's notes about our FBI document request "and the upcoming DOJ one." Tom will be over there to meet with Scott Allen at 1. I will make sure he gets this to review then, in case you can wait. I put * by two of them which are the most important. Thanks. Susan —Original Message— From: [email protected] [mailto:[email protected]] Sent: Thursday, September 25, 2003 9:16 AM To: [email protected] Subject: Fwd: FBI #13 susan and Tom: this looks OK to Steve and me. Let me know immediately if you see any problem (as opposed to minor quibbles!). DM — Forwarded message from "[email protected]" — Date: Thu, 25 Sep 2003 08:06:13 -0400 (EOT) X~^rom: "[email protected]" ,y-To: "[email protected]" oubject: FBI #13 To: '"[email protected]"' , '"[email protected]"' <sdunne@9-11 commission.gov>
[I AM RESENDING THIS BECAUSE OUR SYSTEM WAS DOWN AND I'M NOT SURE IT WENT THROUGH - IF YOU ALREADY GOT IT, SORRY. THANKS.] I just wanted to make sure my notes were right from our meeting on FBI DR #13 (and the upcoming DOJ one). Please let me know if you have any disagreement with the following: 1. In general, at least as an initial matter, searching can be limited to the central records systems (for the DOJ one I may also try to search an individual's files if I think there is someone who is likely to have responsive material that can be easily retrieved). Also, we can shift requests between FBI and DOJ (or DHS) if it makes it easier to respond (we'll obviously let you know if we do so). YES 2.
Item #2 has been shifted to DHS YES
3. Item #3 - the post 9/20 period is not being considered part of the "immediate response" but rather policy changes; you are looking for documents (which we will likely shift to DOJ) reflecting the *ies as opposed to identifying every meeting or participant. WAS FBI LEADERSHIP A POTTED PLANT? IF "IMMEDIATE RESPONSE'" DID NOT INCLUDE ADDRESSING
1
WHAT TO DO AT THE BORDER AND WHAT TO DO ABOUT POSSIBLE ASSOCIATES IN THE US, THAT WOULD BE SURPRISING. THAT BEING SAID, WE ARE LOOKING FOR KEY SUBSTANTIVE DOCUMENTS, WITH DATES, ASSOCIATED WITH THE INDIVIDUALS WHO DEVELOPED THE PROPOSALS, SANCTIONED, AND IMPLEMENTED THEM. ^^ WE WOULD LIKE THE KEY PEOPLE FROM FBI - THOSE WHO PROPOSED, DECIDED, AND CEMENTED -TO BE IDENTIFIED SO WE CAN INTERVIEW THEM. IF WE DID NOT STATE THIS ADEQUATELY WE CAN ADD IT TO THE DOJ REQUEST. 4. On #7, the focus is not the Olympics or Olympic security but the particular project and you are looking for summary documents evaluating the project and its results. WE ARE LOOKING FOR THE ACTUAL RESULTS. HOW MANY ADDITIONAL ISLAMIC FUNDAMENTALIST TERRORISTS WERE IDENTIFIED THROUGH THIS PROCESS THAT WERE ADDED TO VGTOF? THUS -"DOCUMENTS SUMMARIZING THE PROJECT AND ITS RESULTS." 5. For #11 again you are looking for significant policy documents describing the purpose and/or results of the list. RESULTS. 6. For #12 in the first instance at least you are looking for names of people affiliated with the hijackers, AQ, or groups related to AQ (and you will then check to see if you already have additional information on any such people). *WE REQUEST THE TOTAL NUMBER OF IMMIGRATION RELATED DETAINEES (AS STATED IN THE FINAL CLAUSE), AND THE ABOVE INFORMATION. 7. On #13, you are looking for summary documents evaluating the project andjts results. THE SUMMARY NEEDS TO INCLUDE CRITERIA FOR THE INTERVIEWS, NUMBER OF INTERVIEWS, AND THE RESULTS. 8. On #14, we will check to see if the FBI has any easy way to provide such summary information but will not go through each individual file or field office/USAO to try to determine it. Similarly on #15, we will see if the FBI (or DOJ) has any easy way from computerized systems to determine these numbers but will not go through individual files or field offices/USAOs to try to determine this. *#14 ALLOWS US TO SHOW SOMETHING POSITIVE, AND EVALUATE THIS POTENTIALLY SIGNIFICANT TOOL. WE WOULD LIKE TO BE AS CREATIVE AS POSSIBLE ABOUT HOW TO GET IT. FOR INSTANCE WE MIGHT ACTUALLY WANT TO GO TO ONE OR TWO KEY FIELD OFFICES FOR A CHECK. WE WOULD LIKE DHS TO BE CONSULTED ABOUT WHETHER THEY CAN OBTAIN THIS INFORMATION. WHO WAS THE INDIVIDUAL WHO HAD THE FINAL SAY ON PROVIDING THIS BENEFIT AT FBI/DOJ? 9. On #16 and #17 you are looking for significant or summary reports or analyses on these subjects. WE WANT TO KNOW IF FBI HAS ANY EVIDENCE THAT TERRORISTS HAVE ENTERED THROUGH THE SW BORDER, THROUGH ALIEN SMUGGLING AND/OR NARCOTICS TRAFFICKING OR OTHER FORMS OF ORGANIZED CRIME. FOR THIS QUESTION, AN INTERVIEW WITH AN APPROPRIATE PERSON MIGHT BE AN ACCEPTABLE SUBSTITUTE. (Again, in a number of these areas there may be no such summary documents or evaluations, but we will look for them.) have it right? Thanks.
JUL
1O 2003 1 : 4 8 P M
DREU U N I V PRESIDENTS
OFFI
973-408-3080
VTNSON & ELJONS L.L.P. THE miARD OFFICE ELUDING UBS PENNSYLVANIA AVE, N.W. WASHINGTON, D.C 20004-1008 TELEPHONE (202) &39-«.5M
^ 7 ATTORNEYS ATLAV
www.vcawicom lawic
Cathy A. Lewis Direct Dial 202-639-6537 Direct Fax 202-639- 6604 clcwis@vela'w.coin
July 1, 2003
RECEIVED The Honorable Thomas H. Kean Drew University Mead Hall 36 Madison Avenue Madison, New Jersey 07940
JUL 0 8 2003 OFFICE OF THE PRESIDENT
Dear Governor Kean: In light of your position as Chair of the National Commission on Terrorist Attacks Upon the United States, I wanted to take this opportunity to call your attention to a web site which our firm has established, with the thought that it might be of assistance to you in connection with any ongoing monitoring of terrorism-related matters. Specifically, following September 11, 2001, Vinson & Elkins established a web site concerning the Government's Anti-Terrorism Initiatives. The web site provides direct links to certain web sites of the White House, the Department of Homeland Security, the State Department, the Department of Justice, the Federal Bureau of Investigation, the Centers for Disease Control, the European Union, and the United Nations. It also provides direct links to the text of newly enacted federal statutes dealing with anti-terrorism matters, as well as direct links to the text of documents published in the Federal Register, including Executive Orders and other Presidential actions, and agency regulations. The web site is updated daily and can be used to obtain a chronological overview of the Government's actions since September 11, 2001. Also, the Federal Register documents are organized by categories. Selected other documents are also included on the web site. To date, links to over 600 documents have been posted on the web site.
The web site is available to anyone who is monitoring the Government's Anti-Terrorism Initiatives. It can be accessed by: 1.
Visiting our firm's web site at www.velaw.com;
2.
Clicking on Client Services;
3.
Clicking on Choose a Client Services Option;
4.
Clicking on Government Anti-Terrorism Initiatives; and
5.
Selecting the portion of the web site of interest.
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.0 2003 1:48PM
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Mr. Thomas H. Kean Page! July 1,2003
If you should have any questions or suggestions concerning the web site, including suggestions as to material we might add to the web site, please let us know. I can be reached at telephone number 202-639-6537 or e-mail address [email protected]. I hope that the web site will be of assistance to you. Sincerely yours,
Cathy A. Lewis
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IV.
General Intelligence Collection Topics: •
Wiretaps and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (with emphasis on counter-terrorism uses of wiretap authority) o Communications Assistance for Law Enforcement Act of 1994 ("CALEA") o USA PATRIOT Act Provisions on Wiretaps [overlaps with PATRIOT Act topics listed above]
V.
•
Governmental Data Mining, including the "Terrorist Information Awareness" Program (previously the "Total Information Awareness" program) and other DOD/DARPA data mining programs (including analysis of privacy law and constitutional issues raised by governmental data mining of private citizens' records for law enforcement and antiterrorism purposes) [possible Richard Ben-Veniste summer associate research project]
•
Internet surveillance by federal law enforcement, including the FBI's "Carnivore" program
•
Department of Justice/Bureau of Prisons Policy on Monitoring of Attorney-Client Communications (28 C.F.R. parts 500 and 501)
•
Department of Justice Guidelines for Interviews Regarding International Terrorism (include November 9, 2001 Deputy Attorney General's Memorandum to Anti-Terrorism Task Force Members, and other relevant authorities)
•
Computer Assisted Passenger Pre-Screening System II ("CAPPS II") [overlaps with Team 7 and perhaps other 9-11 Commission Teams]
United States Intelligence Community and Law Enforcement Agency Topics: •
National Security Act of 1947 and the Present Structure of the United States Intelligence Community (focusing on existing legal constraints on intelligence collection inside the United States)
•
Interagency Information Sharing (build on Markle Foundation 2002 Task Force Report background papers on "Information Sharing at the FBI" and "Limitations upon Interagency Information Sharing: The Privacy Act of 1974") [include USA PATRIOT Act provisions on information sharing and Attorney General's 2001 and 2002 Directives on information sharing]
Establishment and Operation to Date of the TTIC Analysis of the Homeland Security Act and Operations/Organization of the Department of Homeland Security Pertaining to Anti-Terrorism Law Enforcement and Intelligence Collection Inside the United States VI.
Comparative Legal Analysis Topics: •
Comparison to United Kingdom domestic intelligence system (build on Markle Foundation 2002 Task Force Report background paper) [possible Richard Ben-Veniste summer associate research project]
•
Comparison to Canada domestic intelligence system [possible Richard Ben-Veniste summer associate research project]
•
Comparison to Israel domestic intelligence system
•
Other Countries?
Discussion Draft - June 5, 2003
Team 6 Law Enforcement and Intelligence Collection Inside the United States
Topics for Legal Research Background/Briefing Papers I.
II.
USA PATRIOT Act Topics: •
Criminal Investigation Provisions of the Act (including electronic surveillance, pen registers, trap and trace devices, "sneak and peek" searches, and other provisions on intelligence collection methods) [note that this topic overlaps other topics listed below]
•
New Crimes Created by the Act (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by such use) [note that this topic overlaps other topics listed below]
•
Provisions of the Act Amending or Supplementing FISA [note that this topic overlaps other topics listed below]
•
Money Laundering Provisions of the Act (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by such use) [overlaps with Team 4 and perhaps other 9-11 Commission teams]
•
Border Protection Provisions of the Act [overlaps with Team 5]
•
Analysis of Sunset Provisions of the Act
•
Analysis of PATRIOT Act II Proposal (based on publicly available information)
FISA Topics: •
Overview of FISA Powers and Procedures o Nov. 18, 2002 United States Foreign Intelligence Surveillance Court of Review Opinion in In re: Sealed Case, 310 F.2d 717 (2002).
FISA Amendments Proposed Since September 11, 2001 (whether or not enacted into law) [overlaps with PATRIOT Act topics listed above] Analysis of FISA Use Since September 11, 2001 (based on publicly available information) Use of FISA in the Zacharias Moussaoui Investigation and Special Agent Coleen Rowley's Allegations Regarding the FBI's Use of FISA in the Moussaoui Investigation (based on publicly available information) III.
General Law Enforcement Topics: •
Federal Grand Jury Secrecy Requirements (Fed. R. Crim. P. 6(e)) Relevant to Counter-Terrorism Efforts
•
Use of New Counterterrorism Powers by Federal Law Enforcement Authorities Since September 11, 2001 (including analysis of the "RICO analogy" question of whether statutory authority provided for antiterrorism is being used for conventional law enforcement purposes) [possible Richard Ben-Veniste summer associate research project]
•
Analysis of the May 30, 2002 Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Guidelines Regarding the Use of Confidential Informants (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Memorandum on Procedures for Lawful, Warrantless Monitoring of Verbal Communications (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of post-September 11 revisions to Attorney General's Guidelines on General Crimes, Racketeering Enterprise, and Terrorism Enterprise Investigations (with emphasis on counterterrorism investigative techniques, such as FBI agent attendance of religious services and other public events, and any legal/constitutional issues raised by the revised Guidelines)
Enforcement of U.S. Immigration Laws Within the US In Response to the 9/11 Attack: Allocation of Team 5 and Team 6 Issues The immigration laws primarily protect the US interest as a sovereign and member of the society of nations. Criminal laws, as well as other domestic civil laws, protect the US interest in internal order and justice. The national security laws protect the nation from foreign threats. As many foreign visitors live and work in our country, and as terrorism operates on and within domestic society, these interests and bodies of law interact. Aliens who commit crimes while in the US are subject to both criminal and immigration laws, and those who are or assist terrorists are subject to national security measures. All three sets of laws have a constitutional dimension. The 9/11 terrorists were all foreigners with non-immigrant visas, and the government's immediate reaction was to focus heavily on foreigners in the US. This memorandum attempts to list questions we need to consider about these measures, and to suggest whether Team 6 (Domestic Intelligence and Law Enforcement) and/or Team 5 (Immigration, Nonimmigrant Visas and Border Security), should address them. A separate paper lists constitutional questions related to these issues. Generally speaking, the two teams overlap in their concerns for the same reason that DBA, Customs, and FBI overlap in the drug enforcement arena. Movement of illegal drugs (or guns, or money, or victimized people or gray market goods) may be initiated abroad so as to be the focus of DBA, continue across US borders and come into Customs' or Coast Guard's jurisdiction, and end up on the streets in the US and as the focus of DEA-FBI-state-local task forces. Similarly, a terrorist may enter a consulate and encounter the State Department; cross the US border and encounter the INS, or be in the US, and therefore subject to INS, FBI, and state and local law enforcement. Because terrorists attack the nation by attacking civilians (including foreigners here), intelligence agencies also are involved. This memo proposes dividing the work in a practicable way, recognizing that our arrangements are to some extent arbitrary. If we can in the process arrive at recommendations about the relative size and scope of different agencies in enforcing laws addressing foreign terrorist entry and circulation in the US - so as to help prevent the type of interagency wrangling as has been the case with illegal drugs - this will be all to the good. An initial question: justice or war, civilian or military. After the 9/11 attacks, the government had legitimate interests in finding and bringing to justice any persons associated with the 9/11 attack, and in expanding USG efforts to prevent further terrorist attacks. To what extent the Administration adopt the goal of obtaining justice? What type of justice is being pursued, that is, should the 9/11 attackers, their associates, and similar terrorists be treated as civilian criminals or enemy combatants, whether or not they are US citizens? The question does not turn on immigration status, although it may affect jurisdiction. If considered relevant to the commission's work, this is a Team 6 question.
Assuming that the USG has mingled goals of bringing terrorist associates to justice and preventing further terrorist attacks by Al Qa'ida or similar groups and individuals in the US, the government has three types of legal means to seek to achieve these goals relevant to this memorandum: (a) criminal justice enforcement; (b) domestic intelligence means; and (c) immigration law procedures and enforcement. (Other means, such as tracing and blocking financial assets, are beyond the scope of this discussion.) Where actions primarily involve the latter, the subject belongs by definition to Team 5, and where actions primarily involve the first two, the subjects similarly belong to Team 6. The next section attempts to identify some of the steps that the USG took, and describe them as one of the above efforts. Post 9/11 detentions of aliens, associated detention and bond procedures and immigration hearings. After 9/11, the Department of Justice detained hundreds of aliens under the immigration laws "whom they suspected of having knowledge of or involvement in terrorist activity" (GAO 4/03 at 1) and perhaps arrested some of them on non-immigration grounds. On September 28, 2001, the Attorney General announced that 480 individuals had been detained, and on October 25, that 1,000 persons had been "arrested or detained." Rep. Sensenbrenner refers to "three sweeps" in a letter of inquiry to the Attorney General, including a third sweep in March 2003 (4/1/2003). Time Magazine refers to 750 "foreign nationals." An AP news report 5/27 quotes Solicitor General Ted Olsen using the figure of "766 detainees" as falling under the rubric of "special interest" for purposes of deportation hearing procedures. These detentions seem to have been extraordinary in other ways than that they occurred at all. First, there were reportedly issues about conditions of detainment, contact with lawyers, contact by families, and with and by embassies and consulates. Second, the INS by regulation extended the amount of time an alien can be held without charge. Third, the chief immigration judge established a set of security procedures permitting closed immigration hearings in certain cases. The detentions and arrests may have constituted a single episode in which the government, in immediate reaction to the attack, rushed to detain foreigners from the same countries as the 9/11 terrorists, because they citizens of these countries, and/or shared the same visa status. Because the primary means used were the immigration laws, it makes sense for Team 5 to look into this episode. In addition, according to DOJ in its May 21, 2003 response to Sen. Sensenbrenner and Rep. Conyers, DHS currently holds the information about these proceedings. Gov. Keani also expressed interest in the question during Team 5's initial presentation. •(, Some foreigners, though, may have been arrested on criminal charges and the FBI may also have arrested people who were foreign born US citizens, or simply US citizens somehow associated with foreigners. Although the DOJ referred questions to DHS, I do ' "t/^ If INS. To this extent it also makes sense for Team 6 to attempt to shed light on this chapter in queries to the FBI and DOJ.
\
Either way, both teams have an interest in this episode, and in contributing to a joint evaluation of how well it served three purposes: finding associates of the 9/11 group, and other terrorists, for prosecution; identifying current and future sources of counter-terrorist intelligence (on October 1, President Bush signed a law authorizing the admission of "s" non-immigrants, who will supply information regarding terrorist organizations to US law enforcement officials); and removing aliens who pose a terrorist threat from the country. To the extent that the practice is ongoing, or the authorities are retained on an ongoing basis, we must assess it as an enforcement tool and from a constitutional perspective. Some of the (non-constitutional) questions raised by these actions are: What exactly happened to the detainees? Were lawyers accessible? Did the detentions contribute to criminal investigations or result in intelligence or intelligence sources that effectively reduce US vulnerability to terrorist attacks? Did the detentions violate US constitutional and/or international treaty or human rights? Could they lead to foreign countries handling US citizens in a reciprocal manner? What relevant changes were made in the USA PATRIOT Act? Should further changes be made in the detention procedures or underlying immigration laws either to facilitate counterterrorism or protect individual and/or US interests abroad? Do post-incident massive detentions make sense? Post 9/11 interviews of aliens. DOJ initiated a project to interview 7,600 nonimmigrant aliens. Like the detentions, this was an immediate response to the 9/11 attacks to "try to determine, among other things, what knowledge they had of terrorists and planned terrorist activities." (GAO 4/03, p.l) At least in Dearborn, according to a report by the Migration Policy Institute (MPI), the FBI assured community leaders that interviewees would not be arrested for immigration violations. Thus, the project was not primarily aimed at enforcing immigration laws, but as a counterterrorism measure. DOJ's Justice Management Division (FTTF?) is maintaining information from the interviews in a database (GAO 4/03) An April 2003 GAO report states the results cannot be evaluated based on the information DOJ provided to GAO. Importantly, this was not a one-time undertaking. Rather, the practice seems to have been adopted as one to keep in reserve. For instance, DOJ undertook a similar initiative in anticipation of the war in Iraq. As INS was apparently not involved in the interviews, Team 6 seems better positioned to examine it. Team 5 can help assess the impact on immigrant communities and place this initiative in the context of immigration enforcement initiatives. •\v
I » \l Origin Working Group Initia
interesting to know if this Civil Rights Division initiative involved any non-citizens permanent residents or nonimmgrants — as victims of discrimination based on national origins. Watchlists. Team 5, including distribution of information to all relevant agencies. Post 9/11 INS review of asylum cases, detention of asylum seekers from 33 countries pending asylum determination, and detention of any group designated by the Attorney General (e.g. Haitians). Team 5 issues, as they affect immigration across the board.
Ongoing INS automated system (IBIS) checks on US citizen petitioners and attorneys. Team 5 will address IBIS as part of the Watchlist set of questions. But it appears that the Attorney General has asked that US citizen petitioners and attorneys also be checked by the INS when the entering foreigner is checked. This would seem to be a Team 6 issue concerning investigations of US citizens. Systems to monitor foreigners in the US: SEVIS, NSEERS, US VISIT. How data from these systems is analyzed and referred for enforcement is a key topic for Team 5. We will look at the referrals to other agencies, such as FBI or state and locals. Special registration with the INS of certain non-citizens from certain Arab/Islamic countries. Phase one, initiated September 1 1 , 2002, required selected individuals to be fingerprinted, photographed, and interviewed under oath at ports of entry. Phase two extended registration requirements to nationals and citizens of designated countries, who have already been admitted to the US, to register at an INS office. DHS/BICE states that the special registration program registration system is a one time precursor to the NSEERS program, which is to go into effect within three years. It is a Team 5 issue. Alien Absconder initiatives and related prioritized removals. The Attorney General decided to make an enforcement priority of removing approximately 300,000 aliens with valid deportation orders, beginning with 5,900 from countries where Al Qa'ida is known to recruit. This new chapter in immigration enforcement policy affects all aliens, not only potential terrorists. Team 5 should address this enforcement policy initiative. Involvement of state and local authorities in Alien Absconder and other immigration law enforcement. Federal law enforcement does not have the resources needed to locate the approximately 300,000 alien absconders. The Attorney General . determined that state and local law enforcement should be involved to help close the resources gap. While this issue has been approved as part of the Team 5 Workplan, as a potential new mission for state and local law enforcement, it could also be addressed by Team 6. Alternatively, perhaps both teams can work on it, in a coordinated manner, pool results and jointly evaluate them
Wv
*"
Constitutional Law Issues Associated with Post-9/11 Immigration Law Enforcement Actions Questions that permeate the fact, regulatory, and enforcement situations recited below: Generally, are aliens persons - fully or conditionally - for purposes of the fifth amendment due process clause? To what extent is there a violation of due process rights rights based on national origins? 1. Post 9/11 detentions of aliens, associated detention and bond procedures and immigration hearings. What is the legal authority for detaining non-citizens indefinitely before charging them? Have there been due process violations associated with regulations and practices with respect to non-citizens and foreign nationals governing: a. b. c. d. e. f.
length of time held before charges length of time held after charges without bond length of time held after grant of voluntary deportation secrecy imposed on detentions access to counsel by detainees secrecy imposed on deportation hearings
2. Post 9/11 INS review of asylum cases, detention of asylum seekers from 33 countries pending asylum determination, and detention of any group designated by the Attorney General (e.g. Haitians).
3. Systems to monitor foreigners in the US: SEVIS, NSEERS, US VISIT. 4. Special registration with the INS of certain non-citizens from certain Arab/Islamic countries. Phase one, initiated September 11, 2002, required selected individuals to be fingerprinted, photographed, and interviewed under oath at ports of entry. Phase two extended registration requirements to nationals and citizens of designated countries who have already been admitted to the US, to register at an INS office. DHS/BICE states that the special registration program registration system is a one time precursor to the NSEERS program, which is to go into effect within three years. 5. Alien Absconder initiatives and related prioritized removals. The Attorney General decided to make an enforcement priority of removing approximately 300,000 aliens with valid deportation orders, beginning with 5,900 from countries where Al Qa'ida is known to recruit. Is prioritization based on national origins a violation of equal protection? Is the singling out of Arab Muslim men a violation? If race and ethnicity are not explicitly mentioned in
the regulation, can the impact nevertheless be the basis for a violation? What is the legal impact of singling out religion as a characteristic? 6. Involvement of state and local authorities in Alien Absconder and other immigration law enforcement. Federal law enforcement does not have the resources needed to locate the approximately 300,000 alien absconders. The Attorney General. determined that state and local law enforcement should be involved to help close the resources gap.
Discussion Draft - June 3,2003
Team 6 Law Enforcement and Intelligence Collection Inside the United States Topics for Legal Research Background/Briefing Papers I.
USA PATRIOT Act Topics: •
Criminal Investigation Provisions of the Act (including electronic surveillance, pen registers, trap and trace devices, "sneak and peek" searches, and other provisions on tracking and gathering communications) [note that this topic overlaps other topics listed below]
•
New Crimes Created by the Act (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by such use)
•
Provisions of the Act Amending or Supplementing FISA [note that this topic overlaps other topics listed below]
•
Money Laundering Provisions of the Act (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by such use) [overlaps with other 9-11 Commission Teams] Border Protection Provisions of the Act [Team 5 topic]
II.
•
Analysis of sunset provisions of the Act
•
Analysis of PATRIOT Act II Proposal
FISA Topics: •
Overview of FISA powers and procedures o Nov. 18, 2002 United States Foreign Intelligence Surveillance Court of Review Opinion in In re: Sealed Case, 310 F.2d 717 (2002).
•
FISA Amendments Proposed Since September 11, 2001 (whether or not enacted into law)
Analysis of FISA Use Since September 11, 2001 (based on publicly available information) Use of FISA in the Zacharias Moussaoui Investigation and Special Agent Coleen Rowley's Allegations Regarding the FBI's Use of FISA in the Moussaoui Investigation (based on publicly available information) III.
IV.
General Law Enforcement Topics: •
Federal Grand Jury Secrecy Requirements (Fed. R. Crim. P. 6(e)) Relevant to Counter-Terrorism Efforts
•
Use of New Counter-Terrorism Powers by Federal Law Enforcement Authorities Since September 11, 2001 (including analysis of the "RICO analogy" question of whether statutory authority provided for antiterrorism is being used for conventional law enforcement purposes)
•
Analysis of the May 30, 2002 Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Guidelines Regarding the Use of Confidential Informants (with emphasis on use in counterterrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
•
Analysis of the May 30, 2002 Attorney General's Memorandum on Procedures for Lawful, Warrantless Monitoring of Verbal Communications (with emphasis on use in counter-terrorism investigations and any legal/constitutional issues raised by the Guidelines; with comparison to prior guidelines)
General Intelligence Collection Topics: •
Wiretaps and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (with emphasis on counter-terrorism uses of wiretap authority) o Communications Assistance for Law Enforcement Act of 1994 ("CALEA") o USA PATRIOT Act Provisions on Wiretaps (overlaps with PATRIOT Act topics listed above)
Governmental Data Mining, including the "Terrorist Information Awareness" Program (previously the "Total Information Awareness" program) and other DOD/DARPA data mining programs (including analysis of privacy law and constitutional issues raised by governmental data mining of private citizens' records for law enforcement and antiterrorism purposes) Internet surveillance by federal law enforcement, including the FBI's "Carnivore" program Department of Justice/Bureau of Prisons Policy on Monitoring of Attorney-Client Communications (28 C.F.R. parts 500 and 501) Department of Justice Guidelines for Interviews Regarding International Terrorism (include November 9, 2001 Deputy Attorney General's Memorandum to Anti-Terrorism Task Force Members, and other relevant authorities) Computer Assisted Passenger Pre-Screening System II ("CAPPS II") [overlaps with other 9-11 Commission Teams]
V.
VI.
United States Intelligence Community and Law Enforcement Agency Topics: •
National Security Act of 1947 and the Present Structure of the United States Intelligence Community
•
Interagency Information Sharing (build on Markle Foundation 2002 Task Force Report background papers on "Information Sharing at the FBI" and "Limitations upon Interagency Information Sharing: The Privacy Act of 1974") [include USA PATRIOT Act provisions on information sharing and Attorney General's 2001 and 2002 Directives on information sharing]
•
Establishment and Operation to Date of TTIC
•
Analysis of the Homeland Security Act and Operations/Organization of the Department of Homeland Security Pertaining to Anti-Terrorism Law Enforcement and Intelligence Collection Inside the United States
Comparative Legal Analysis Topics: •
Comparison to United Kingdom domestic intelligence system (build on Markle Foundation 2002 Task Force Report background paper)
•
Comparison to Canada domestic intelligence system
Comparison to Israel domestic intelligence system Other Countries?
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Cc: Subject:
Susan Ginsburg [sginsburg@9-11 commission.gov] Thursday, September 25, 2003 11:03 AM '[email protected]'; '[email protected]' '[email protected]' RE: FBI #13 - SG comments on Levin notes
Dan and Steve, Below are my comments on Dan Levin's notes about our FBI document request "and the upcoming DOJ one." Tom will be over there to meet with Scott Allen at 1. I will make sure he gets this to review then, in case you can wait. I put * by two of them which are the most important. Thanks. Susan —Original Message— From: [email protected] [mailto:[email protected]] Sent: Thursday, September 25, 2003 9:16 AM To: [email protected] Subject: Fwd: FBI #13 susan and Tom: this looks OK to Steve and me. Let me know immediately if you see any problem (as opposed to minor quibbles!). DM — Forwarded message from "[email protected]"
[I AM RESENDING THIS BECAUSE OUR SYSTEM WAS DOWN AND I'M NOT SURE IT WENT THROUGH - IF YOU ALREADY GOT IT, SORRY. THANKS.] I just wanted to make sure my notes were right from our meeting on FBI DR #13 (and the upcoming DOJ one). Please let me know if you have any disagreement with the following: 1. In general, at least as an initial matter, searching can be limited to the central records systems (for the DOJ one I may also try to search an individual's files if I think there is someone who is likely to have responsive material that can be easily retrieved). Also, we can shift requests between FBI and DOJ (or DHS) if it makes it easier to respond (we'll obviously let you know if we do so). YES 2.
Item #2 has been shifted to DHS YES
3. Item #3 - the post 9/20 period is not being considered part of the "immediate response" but rather policy changes; you are looking for documents (which we will likely shift to DOJ) reflecting the *ies as opposed to identifying every meeting or participant. WAS FBI LEADERSHIP A POTTED PLANT? IF "IMMEDIATE RESPONSE'" DID NOT INCLUDE ADDRESSING
1
WHAT TO DO AT THE BORDER AND WHAT TO DO ABOUT POSSIBLE ASSOCIATES IN THE US, THAT WOULD BE SURPRISING. THAT BEING SAID, WE ARE LOOKING FOR KEY SUBSTANTIVE DOCUMENTS, WITH DATES, ASSOCIATED WITH THE INDIVIDUALS WHO DEVELOPED THE PROPOSALS, SANCTIONED, AND IMPLEMENTED THEM. ^^ WE WOULD LIKE THE KEY PEOPLE FROM FBI - THOSE WHO PROPOSED, DECIDED, AND CEMENTED -TO BE IDENTIFIED SO WE CAN INTERVIEW THEM. IF WE DID NOT STATE THIS ADEQUATELY WE CAN ADD IT TO THE DOJ REQUEST. 4. On #7, the focus is not the Olympics or Olympic security but the particular project and you are looking for summary documents evaluating the project and its results. WE ARE LOOKING FOR THE ACTUAL RESULTS. HOW MANY ADDITIONAL ISLAMIC FUNDAMENTALIST TERRORISTS WERE IDENTIFIED THROUGH THIS PROCESS THAT WERE ADDED TO VGTOF? THUS -"DOCUMENTS SUMMARIZING THE PROJECT AND ITS RESULTS." 5. For #11 again you are looking for significant policy documents describing the purpose and/or results of the list. RESULTS. 6. For #12 in the first instance at least you are looking for names of people affiliated with the hijackers, AQ, or groups related to AQ (and you will then check to see if you already have additional information on any such people). *WE REQUEST THE TOTAL NUMBER OF IMMIGRATION RELATED DETAINEES (AS STATED IN THE FINAL CLAUSE), AND THE ABOVE INFORMATION. 7. On #13, you are looking for summary documents evaluating the project andjts results. THE SUMMARY NEEDS TO INCLUDE CRITERIA FOR THE INTERVIEWS, NUMBER OF INTERVIEWS, AND THE RESULTS. 8. On #14, we will check to see if the FBI has any easy way to provide such summary information but will not go through each individual file or field office/USAO to try to determine it. Similarly on #15, we will see if the FBI (or DOJ) has any easy way from computerized systems to determine these numbers but will not go through individual files or field offices/USAOs to try to determine this. *#14 ALLOWS US TO SHOW SOMETHING POSITIVE, AND EVALUATE THIS POTENTIALLY SIGNIFICANT TOOL. WE WOULD LIKE TO BE AS CREATIVE AS POSSIBLE ABOUT HOW TO GET IT. FOR INSTANCE WE MIGHT ACTUALLY WANT TO GO TO ONE OR TWO KEY FIELD OFFICES FOR A CHECK. WE WOULD LIKE DHS TO BE CONSULTED ABOUT WHETHER THEY CAN OBTAIN THIS INFORMATION. WHO WAS THE INDIVIDUAL WHO HAD THE FINAL SAY ON PROVIDING THIS BENEFIT AT FBI/DOJ? 9. On #16 and #17 you are looking for significant or summary reports or analyses on these subjects. WE WANT TO KNOW IF FBI HAS ANY EVIDENCE THAT TERRORISTS HAVE ENTERED THROUGH THE SW BORDER, THROUGH ALIEN SMUGGLING AND/OR NARCOTICS TRAFFICKING OR OTHER FORMS OF ORGANIZED CRIME. FOR THIS QUESTION, AN INTERVIEW WITH AN APPROPRIATE PERSON MIGHT BE AN ACCEPTABLE SUBSTITUTE. (Again, in a number of these areas there may be no such summary documents or evaluations, but we will look for them.) have it right? Thanks.
JUL
1O 2003 1 : 4 8 P M
DREU U N I V PRESIDENTS
OFFI
973-408-3080
VTNSON & ELJONS L.L.P. THE miARD OFFICE ELUDING UBS PENNSYLVANIA AVE, N.W. WASHINGTON, D.C 20004-1008 TELEPHONE (202) &39-«.5M
^ 7 ATTORNEYS ATLAV
www.vcawicom lawic
Cathy A. Lewis Direct Dial 202-639-6537 Direct Fax 202-639- 6604 clcwis@vela'w.coin
July 1, 2003
RECEIVED The Honorable Thomas H. Kean Drew University Mead Hall 36 Madison Avenue Madison, New Jersey 07940
JUL 0 8 2003 OFFICE OF THE PRESIDENT
Dear Governor Kean: In light of your position as Chair of the National Commission on Terrorist Attacks Upon the United States, I wanted to take this opportunity to call your attention to a web site which our firm has established, with the thought that it might be of assistance to you in connection with any ongoing monitoring of terrorism-related matters. Specifically, following September 11, 2001, Vinson & Elkins established a web site concerning the Government's Anti-Terrorism Initiatives. The web site provides direct links to certain web sites of the White House, the Department of Homeland Security, the State Department, the Department of Justice, the Federal Bureau of Investigation, the Centers for Disease Control, the European Union, and the United Nations. It also provides direct links to the text of newly enacted federal statutes dealing with anti-terrorism matters, as well as direct links to the text of documents published in the Federal Register, including Executive Orders and other Presidential actions, and agency regulations. The web site is updated daily and can be used to obtain a chronological overview of the Government's actions since September 11, 2001. Also, the Federal Register documents are organized by categories. Selected other documents are also included on the web site. To date, links to over 600 documents have been posted on the web site.
The web site is available to anyone who is monitoring the Government's Anti-Terrorism Initiatives. It can be accessed by: 1.
Visiting our firm's web site at www.velaw.com;
2.
Clicking on Client Services;
3.
Clicking on Choose a Client Services Option;
4.
Clicking on Government Anti-Terrorism Initiatives; and
5.
Selecting the portion of the web site of interest.
AUSTIN
BEUINQ
P. 2
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DALLAS
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HOUSTON
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LONDON
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MOSCOW
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NEWYOHK
>
SINGAPORE
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WASHINGTON, D.C.
.0 2003 1:48PM
DREU U N I V PRESIDENTS OFFI
973-408-3080
Mr. Thomas H. Kean Page! July 1,2003
If you should have any questions or suggestions concerning the web site, including suggestions as to material we might add to the web site, please let us know. I can be reached at telephone number 202-639-6537 or e-mail address [email protected]. I hope that the web site will be of assistance to you. Sincerely yours,
Cathy A. Lewis
p.3
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