T5 B42 Ziglar Materials 6 Of 6 Fdr- 11-14-03 Mfr- James Ziglar (pg 22 Unredacted 134

Commission Sensitive MEMORANDUM FOR THE RECORD PART I Event: Interview of James Ziglar INS Commissioner August 6, 2001 - December 6, 2002. Date: Friday, November 14, 2003 Special Access Issues: [none] Prepared by: MFR prepared by Janice Kephart-Roberts on Nov. 14, 2003 Team Number: 5 (Border Security) Location: George Washington Law School, 20th and G St.s Participants - Non-Commission:

James Ziglar

Participants - Commission: Janice Kephart-Roberts, counsel Susan Ginsburg, sr. counsel Dan Marcus, general counsel Note: no classification required Documents provided. 1. INS Briefing to Gov Ridge Dec. 3, 2002. (Later briefed on Ridge, Hutchinson, and others in the White House Situation Room.) 2. Review of Regulations, Policies and Procedure Issued since August 2001. (Caveat: may not be all regs issued during time period.) Documents requested. Sept. 10, 2001. Restructuring plan. Sept. 26, 2001. National security initiatives presented to DAG by Ziglar with power point. Recording: yes NOTES: Background. How did you come across your job at INS? The truth is that that process is still a bit of a mystery to me, because I had no experience with immigration. My only contact with immigration was working in the 1960s for a Senator who happened to be chairman of the immigration subcommittee. However, from best I can tell, they couldn't find anyone experienced who would take job, but they wanted someone with management / restructuring experience, and I'd had some experience, and done Bureau of Reclamation restructuring earlier in my career.

That Bureau had been upended and was successful, and that probably considered essential. Also, in the Senate, I'd made a lot of changes, including technology. When I got to Senate there was no relocation plan or emergency plans for continuation of Senate operations in event of national emergency, but I had taken that bull by the horns and we finalized plans right before I left. That plan was used on 9/11 and noted by AG. I had also been a trouble shooter in private industry and had a long standing political interest. I assumed for all these reasons I was called, out of blue from White House. It took me a couple months to take the job. In March or late February 2001 I was made the offer from White House, former Senate Judiciary Committee staffer, Kyle Sampson. (Now in White House counsel office.) I agreed to take the job on Easter Day on 2001. I had spoken to Lott about it and such. I was told that the priorities for the INS were its restructuring, curing backlogs, and technology. Spoke to AG as well. His priorities were all management, no real talk about policy. Only thing I can recall a specific issue with WH was Mexican immigration issues. My position on Mexican illegals: if we have 8-10 million illegal aliens, we need to recognize the part they play in our social structure and bring them into the mainstream, as opposed to just deport, and bad for economy. I don't think the American people would stand for that. We need to deal with these illegals, not necessarily just grant them amnesty, but provide them with a path to legal status and then look at overall legal status and understand that the US is a pull and when we have a quota system and too long to wait for visa, then we have a problem. I've come about this feeling as being a practitioner and from academic world. At the time I became Commissioner, this view was based on my instincts and background in business. Now that view is grounded in my tenure as Commissioner. As Commissioner, who did you report to on day to day basis? Reported to DAG, but on a day to day basis would talk to his principal associate deputy Stuart Levy, and that had been reporting chain for years. If something critical, would talk to Thompson. Never had regular meetings with DAG. Occasionally would deal with DAG COS David Laufman, but no regular meetings with AG on immigration matters. I would only see the AG on Mexico issue and on pre press conference to brief. Priorities as set out by Ziglar when took office. When began, first month, did three things. 1. Getting briefed program by program and on administrative stuff, and all stuff didn't learn as part of confirmation process. I didn't learn anything about the real difficult issues you will need to deal with, b/c then I might get asked about it during the confirmation process.

2. Jumpstarted personnel plan and restructuring plan. I knew that the longer the plan languished, the harder to do get it done. Part of that was to give ownership of agency back to the employees. Learned that at Reclamation; you have to have a bureau to buy into and build team spirit. Thanks to Doris, a lot of work had been done; she had a good plan and shame on Congress that they wouldn't listen to her. I drew on that plan immediately. So plan put on AG's desk on Sept 10. I took the guys out to celebrate. Restructuring program. Given to Hill Nov. 20, 2001 for reprogramming, and essentially what gave AG on Sept. 10. The program went thru NSC, domestic policy and homeland security and then a two hour OHS deputies meeting where others signed off with minor changes. The deputies meeting was early in November. The plan was a split of services and enforcement, having some common functions and shared functions of technology, general counsel, and rejiggering of the 33 districts along state lines (dealing with governors and locals and do it on business/political lines). Enforcement would house inspectors in restructure plan. We talked to Customs, but Bonner very difficult to work with. (Mike Garcia doesn't like Bonner at all). 3. Shake every INS employee hand in DC, and I did that in big group meetings, at the FDL and out at airports. I knew I needed to convince them I wasn't an ogre or that I'm a moron completely. Counterterrorism (CT) at INS as a priority. I can't remember when I first got into CT. I knew there was a NSU for purpose of antiterrorist area, but don't recall the details. Believe I had met Cadman pre Sept. 11. Don't know what CT strategy on board at beginning of tenure; had some briefings that were being planned at FBI or CIA pre 9/11. Intel briefings pre 9/11. I was down there at scif on investigations ongoing in re to Bison or Golden State. UBL pre 9/11 at INS. We all knew who he was, but nothing specific I recall. Truth is, I used August, with AG on vacation AND congress OUT, press quiet, and I worked night and day to get restructuring done, and this was the opportunity to get it done. Senior Policy Papers. o 9/20/01 from Ziglar to Canadian Ambassador re arming preclearance officer in Canada. Comment: Canadians just don't like guns. o 10/3/01 from Ziglar to AG re "INS employee Assignments in Support of 9/11 Efforts". To support Operation Safe Passage and pay OT to border patrol agents. Comment: purely administrative. • 11/8/01 from the AG to all DOJ dept heads re "Comprehensive Review and Reorganization of the DOJ to Meet CT Mission".

o Goal no. 5: Restructure INS, consistent with President's objective, to restructure INS to separate enforcement and functions, reduce backlog application processing and improve effectiveness and accountability. Strengthen INS border security and interior enforcement. • 1/4/02 from Ziglar to Thompson re "INS border security initiatives to increase border security". See below. o 9/02 Itr from Ziglar to Bonner. USCS support on special registration of nonimmigrant aliens. To discuss at another time in re to NSEERS. 1/4/02 border security initiatives. Right after 9/11,1 convened all senior INS policy people. I said we oughta have a litany of everything we can think of that might be actions gov't could take to thwart terrorism to increase security. We used to do this kind of brainstorm on Wall Street with new ideas (it made us $ in private sector) so we had a big effort going on, so something like 50 initiatives going on, from ridiculous to sublime, and so we threw it up on a wall, and on Sept. 21 or 26 and then briefed the DAG and his staff with our staff. A lot of stuff came out of that which was done. Not classified item. Ziglar did entire briefing. Many of the same initiatives are in 1/4/02 doc. Some of the priorities for me were: enhance remote video surveillance, having army provide intel at border posts to analyze intel on ground of people at border, more DOD helicopters, entry/exit, more border patrol on northern border. Some weren't smart or doable Most important from Ziglar's view to implement. Enhanced intel gathering, making more info available at border, the CCD, that Mary Ryan and I put together. This whole notion of putting the CCD at secondary, was really just an electronic transmission thing, and wasn't that hard, so I called up Mary, you and I are testifying tomorrow morning, let's just announce it. So we testified in front of Dorgan's committee, and we were going to do it and by January (we testified in Oct/Nov) and all bureaucracy just quit talking and did it. It was great. CCD only has photos. What about CCD availability at primary? Would overwhelm primary in processing time by two or three times. We thus decided we would work towards eventually moving the CCD up to primary. A big part of work at INS was to make investments in technology from primary and have in front of our inspectors multi screens. That was a huge undertaking and thus was down the line in seeking its implementation. A great deal of interest was generated in this 1/04/02 document. We added into these initiatives $ and timing estimates on all these programs. I think a part and parcel was that when combined time, $ and priority of "show factor", these became ultimate priorities. Don't recall what prompted that document, but we did get a lot of requests for DAG to use at White House. 1. 9/02. Bonner pro forma doc. ??? 2. 2/22/02, Border Policy Options at Deputy mtg. This is a major vision of borders of the future, a total interagency restructuring and gap of what envisioned and budget and FTE to do at moment. Are you familiar with the doc? There are a lot

of those docs out there, and not sure which doc this one is. The relationship among Customs, INS and Coast Guard was pretty bad for awhile. Even Jim Loy was out of sorts with Bonner, b/c Bonner was being so difficult. Never seen such unbridled power grabbing. On about Dec. 10, 2001,1 called a peace mtg, with Bonner, Loy and myself. Ridge wanted a new border security agency, and I was concerned at the pace of the idea and the lack of reality that White House dealing with. We felt the need to present issues, and we were at times concerned with being considered disloyal, so I called peace mtg, so the three of us could determine how to integrate our operations much more effectively and make that presentation up the chain of command. We would have it done by end of year (I worked all through Xmas on it) for presentation to WH and we produced this document. Primarily INS and Coast Guard took the lead. Bonner wouldn't help, sat on it for months, and finally signed it, but by this time it is spring of 2002 and then took over by events. Sesenbrenner really delayed us, and even with Bonner's delay, may have gotten the restructuring through if it hadn't been for Sesenbrenner. I was working with Flakenrath during this time. I'll never forget one meeting with him. Flakenrath wanted by Dec. 28 some really stupid thing. All my guys at INS were sick and been working hugely long hours. I told Falkenrath, I'm not doing this, my people are sick, your ideas are stupid and we've done everything you've asked. Maybe by Jan 15 we can do it, but not this soon. Falkenrath was always wanting things in 24 hours that required a lot of thought. Falkenrath then backed off. A couple of people on the NSC staff told Ziglar later that that was the right thing to do. I had choice words for them for not supporting me with Falkenrath. I communicated regularly with Mary Ryan at this time. On this process on moving things forward to WH. They usually fell into a black hole. We did not get feed back, the first feedback would be next meeting where other items would be brought up. Before deputies meetings, we did get to see briefings. Occasionally I'd go in Larry's stead, with Stuart there too, with litany of subjects and would get involved in collateral issues. Absolutely at beginning of OHS, preconceived notion that only thing could do was to create new agency, and address Rudman, Gilmore commission, and all had said there needed a new border agency, so they started off with notion that decision already made. Then we got into how we do it, and that's when some of us said not simple and need to think in context of managing better what we have then changing horses at this time. So all we'd do is throw 3 or 4 dysfunctional agencies together to one large one. Like when we bought Kidder Peabody, it took us years to fully integrate them, and a very successful merger b/c we planned all the integration and succession of leadership, so we were raising questions about that, and Gov. Ridge got slapped down hard a t a cabinet mtg to go forward with merger, and only one vote for it, and that was Gen. Walters of Drug

Czar's office. In fact, Aschroft was most articulate in arguing case against it, and he handled that very well. So that got struck down. So issue was how do we fix glaring problems there. What we didn't know, was that WH went down to do it anyway with its OHS people. Don't recall date. Feb or March 2002. Andy Card told Ashcroft same evening then called Ziglar to tell of WH decision of DHS. Falkenrath was probably guy behind knew idea behind it. Bruce Lawler and I were good friends from old days and we'd discuss things. Falkenrath was committed to idea and ran over people who didn't agree. Lawler a grown up, but others weren't. Think Ridge hadn't studied it much. Flakenrath thought it was just turf battle what Ziglar thought. This was one time Ashcroft, who I didn't get along with well, did listen on this note. The AG and I didn't get along well in a philosophical sense, but not a personal thing, except for once, and that was on me. The only thing we really agreed on was that a quick merger would increase danger to the American people rather than decreasing it by a sloppy, unthoughtful merger, even though should happen in the future. Falkenrath was an arrogant academic. 9/11. Travel log of day. First thing in morning, had a scheduled meeting with Mike Antonovich, who was seeking money for LA for holding of illegal aliens. Just as he came in the door, by assistant told me that a small plane had hit the WTC. I worked in shadow of towers for years, and Mike came into office to pass pleasantries prior to staff mtg on transfer of custody from LA to INS detention, and then a second plane hit. Then we got the staffs together, talked a second, and then I saw the plumes out of Pentagon. At this point, mtg broke up, Mike took off. Immediately my secretary, Wanda, came in and told me the DAG has called and asked for you to come to 7th floor command center asap. Ziglar said would get there asap, and called senior staff together. I didn't have a deputy at time, so I promoted Becraft to be acting deputy. When I first got there, the INS had just completed an emergency ops center that could be up in 2 hrs time. So we brought up ops center, DM had conceived of it, we had a wall of TVs and interactive, and a whole area of phones, with place for other agencies like Customs, and close to skif, so we stood that up immediately. I created a chain of command, and prevent departure list. We developed that immediately. I went around room and asked what each person did in an emergency. So we did all that. I got a call from Customs, saying Customs was moving to threat level one. I said good, b/c we just decided to do the same. This was necessary to do together, b/c at some borders we share inspectors. Emregency decisions made in morning: inspections, border patrol, investigations; Authorizing OT; putting people on longer shifts; setting up criteria for level one search. "Hooding and trunking", "alternative hood and trunk", "hood trunk and glove

compartment". We did the whole sha-bang, including the departure list. INS preclearance / inspection: we set out an alert on high level of interest. I then went to DOJ, by driving on sidewalk. When I arrived, DOJ command center on 7th floor was pure chaos, a mere staging for senior people. I got to DOJ around 10:30. As soon as I got to DOJ, I was talking to Mike Becraft. The decision tree was showing up as to what we were to do. I realized I needed to determine whether our emergency ops on Hill were up and running, as there was a brand new Sergeant at Arms from Sept 6 w/o a clearance, and hadn't been briefed into Ziglar's emergency preparedness. I spent a half hour on phone the Chief of Police directing things, and working fine. (Lott answered the phone.) We got in our little van, and we drove on grass down the mall and got to "place" around noon and went to our pod and it was a huge disaster. The communications weren't working, and just a mess, so bad that hell I couldn't even call the INS. Larry Thompson was there, (Ashcoft was in the air), and Ayres and Chertoff, a lot of senior people. We stayed maybe two hours, when we got all clear went back to the SIOC in late afternoon. 9/11 SIOC Meeting. From about 4 until about 7, we were in SIOC with AG. By then AG back, and we all went in to a conference room, and Mueller was there, and it was interesting time. Some of things being suggested I found offensive: blockades, roundups. That began my adversarial relationship with the AG. I said we got a constitution and law and procedure and only time worth a damn is in crisis and David Ayres was after me from day one after that as disloyal. Larry Thompson and Mike Chertoff after that supported me. Ziglar said why didn't you say something in there. (Philly Inquirer reporter found somebody who said what Ziglar said that day.) While I was there, a discussion of options, no decisions made. I felt need to get back to INS and be in command. I got cut out at times. Principals meeting at WH that evening, the AG went to WH, I have no idea if there were any discussion of border measures or interior management. The AG knew what we had done on the border. The idea to dispatch more fed workers to the agencies in airports was ours. We had 300 border patrol at airports w/in 3 days. I was very proud of that. Discussion was to do a sweep; a lot of talk came out of David Ayres, and very hostile talk, and maybe just over the top, but I told him we can't make decisions like this, we are to invoke rule of law. I saw a line of demarcation in terms of trust level in me thereafter. Larry and I still have a good relationship. He was badly treated there. The result was : a lot of initiatives were being made at AG level everything from S levels on snitches and NSEERS, on OLC opinion on state/locals, we were last to know, and things would be crammed down on us or care about resources being diverted from us. I'd ask effectiveness and didn't matter. Important policies from Kobach, Ciongoli, and never quite sure where Viet Dinh fit in these. I'd have some post INS discussions with Viet that have been ambiguous. I for a

long time thought he was my nemesis, but I hope to figure it out. Quite often Staurt was cut out and he didn't know what was going on. 9/11 briefing of Congress. That evening, INS, FBI and CIA were to set to provide to at least top Hill leadership a classified briefing. The NSC stopped it, and I argued against not doing it. I went back to INS at 7. I got a call saying to attend an open meeting with Congress at a police building, as many as could crowd into room, we didn't tell them anything they didn't know. This was at about 10 pm. Returned to INS, left at about 1 or 2 am, and back at 7 am Sept. 12. Never any serious discussion to shut down the borders, and national command staff never convened on that of which I'm aware of. While I was out at "place", I was talking to probably Mike Pearson, had already identified Moussaui as being in custody. By time got there at night, had already ided a good # of hijackers, and by early next morning, had I-94s matched with manifests from our databases and had ided the hijackers. Evening of Sept 11, had a classified brief, on what knew from agency and bureau, our chief intel officer from Cliff Landsman. Then I had a briefing every day and at times twice a day from CIA. Nobody else in those briefings. Primarily, the briefings was focused was in the threat matrix for that day, and then focus on a subject for the day, with analysis of something or other. Contact with White House. Meeting or two with Dick Clarke in few days subsequent to 9/11. When OHS brought on board, my activity with White House intensified greatly. On Sept. 12, it was clear that FBI in charge of PENTBOMB investigation, and we needed to help, so we lost 1000 of 2000 investigators assigned to PENTBOMB, and those folks lost under our chain of command. That had difficult implications for our INS work. Detainees information. (Went off the record.) At INS, when arrests first started happening, we created task forces with NSU, general counsel, 24/7, they operated across from me physically. We brought in a senior people to oversee the process, and try to vet every case as they came in, so we could hit the 48 hours turn around time (24 to 48 for notices to appear change in regs supported by me). Their job was to get info, vet cases, work with FBI to clear or put in material witness, we did everything we could to facilitate process to get vetted. We couldn't control who getting picked up, but if we were to use immigration law, we were going to process asap. We did our damn level best to do that, and we worked our teams off, 24/7, and I was in there at 2 am sometimes working with our folks. So we'd vet for immigration violations, and we were trying to clarify who and what they are, if only immig violations, we'd put in normal processing, and if other reasons for holding, we'll turn them on that side. Was a CYA, but it has to do with fairness and due process. During 48 hr period trying to work

with FBI. The FBI was not very forthcoming with info we needed in a timely matter. I complained to bureau mightily about it. I called Mueller and got return call from Pickard, the deputy. And also to AG staff. No one recalls the phone calls. I was as mad as I could be on that day. Told them I would start release people if didn't share info better. I didn't release anyone b/c info got a bit better afterwards. S visas. I learned about S visa when AG had press conference. No bond memo. I don't recall being asked about the blanket no bond memo from FBI, covering their ability not to process timely. AG and Ayres were running the FBI for about 2 months, totally micromanaged. I felt sorry for Mueller. Viet and I got over it over provision that don't need ( ), and tried to get way writ of haebus corpus. All this classified information, either disclose or drop it. It was a one page memo that made front office as mad as hell. If you say you'll disclose classified info, I'll sign it. Section 241 Patriot Act. The Patriot Act, in terms of tap and trace, was probably necessary. The tone of the DOJ post Sept 11 is biggest problem, not the substance, and I've told the AG that. We need to have a different face in way we do things. Automatic stay provision was not new news. When 200 detainees discovered didn't know about, there was a come to Jesus meeting with me, and that's when # of detainees stopped being disclosed by DOJ. Gov't transparency is something I believe in. If we are embarrassed about it, probably shouldn't be doing it. INS manager of detention process managed detainee program. Mike Pearson ultimately in charge. Pearson would sign off on release. White House only interested in bits and pieces. I briefed VP at one time on large group of issues at one time, don't recall when or exact contents of brief. Perceived AG need to get bad guys and disrupt bad guys and we moved into areas where most likely to be found, and used immigration as only vehicle to get bad guys, and then some of these people hadn't even been interviewed for a month or two. A couple of Senator friends called about their detainee friends, so I intervened a couple of times on behalf of a couple of members. I didn't do for politics (dem senators) but when I got facts of case, clear FBI playing games. A lot of people took voluntary removal. Why I left the INS. Atta and Al-Shehi I-20s. There adjustment had been done in 2001, and sent to each of them during the summer 2001. The private Kor that entered info

10

provided that you'd send forms to them, they'd enter info, the recipient, they'd get copy of approval in summers of 2001, They were supposed to give to school. The Kor holds that form 6 mos and then sends to school for permanent file copy to school. Interestingly, in Oct/Nov, I found about the 6 mo lag. We had already negotiated change, and this Kor just took off shelf and put in new K. The WH, AG and Hill all knew the truth. I was watching TV, and saw AG and he was asked whether he'd ask for my resignation. He knew the truth, but didn't back me up. That night wrote my Press Release, and wrote letter to President and AG. I wanted to talk to him personally. AG called me late that afternoon. I want to look you in the face when I resign. We had a nasty conversation. I told him about loyalty and he asked me not to resign and wanted to talk to the WH. I didn't release the letter. I talked to the WH, they didn't want me to do it. At that point, I said okay I'll stay, and I looked for my exit strategy. When Andy Card called me in June re DHS, that was my exit strategy. I spoke to Clay Johnson and told him I was resigning before the end of the year and would tie to end of DHS creation so little disruption. In August, got wind that WH replacing me. So I called Clay and said we had an agreement that this would be kept quiet. By mid August, I announced. I left one week after signing of Homeland Security bill. Loyalty was one way street for them, and I took my way. No regret about staying. The day I left, they started doing nasty stuff to the INS employees, and I'm glad I stayed and kept my foot in the door to keep them from doing it sooner. I don't regret staying for as long as I did a minute.

11 QUESTIONS FOR JAMES ZIGLAR Nov. 14, 2003 Commission on Sept. 11 Background. • • • • • • •

Previous experience how did you come by your job at INS ? what were you told your job would entail ? what were the high priorities at the time you became Commissioner? Who did Commissioner answer to on a day to day basis? When began, what was the priority assigned CT at INS? Did you get a sense of its priority at DOJ? At the White House? Was there a CT strategy in place when you came on board? Did you receive any briefings pre-9/11 indicating that UBL was threatening the US, and much chatter was in the air?

Senior policy papers. o 9/20/01 from Ziglar to Canadian Ambassador re arming preclearance officer in Canada. o 10/3/01 from Ziglar to AG re "INS employee Assignments in Support of 9/11 Efforts". To support Operation Safe Passage and pay OT to border patrol agents. • 11/8/01 from the AG to all DOJ dept heads re "Comprehensive Review and Reorganization of the DOJ to Meet CT Mission". o Goal no. 5: Restructure INS, consistent with President's objective, to restructure INS to separate enforcement and functions, reduce backlog application processing and improve effectiveness and accountability. Strengthen INS border security and interior enforcement. • 1/4/02 from Ziglar to Thompson re "INS border security initiatives to increase border security" o Who wrote this? How was it received? What were you able to get implemented? o 9/02 Itr from Ziglar to Bonner. USCS support on special registration of nonimmigrant aliens. 9/11. • • • •

5 Ws for the day and immediately thereafter generally, at deputies meetings, who in attendance, what discussed, and what outcomes what work with office of homeland security v the nsc what intel receiving and from whom

Relationship with the White House: • Who work with? • What issues?

12 • • •

Work with Dick Clarke. What issues? When? What taskings? How did you respond to the taskings? What involvement with the CSGs? How did you receive PDDs? (9,39,62)

Relationship with DOJ: • Their priorities? • Describe relationship? • INS Weeklies. Please describe them. • What DOJ helped accomplish. • What you wanted to do that DOJ discouraged.

13 Responses to 9-11

Proposals to stop entrance of aliens from certain countries • Did he participate in meetings where Justice officials suggested issuing a Presidential Proclamation preventing the entry of aliens from certain countries? If so, when, who, what? • What other proposals of a drastic nature does he recall being suggested in the immediate aftermath of 9-11? 9-11 Detainees • What is your view of the value to our counterterrorism efforts from these detentions? • To your knowledge, were any of the 762 held on immigration violations ever charged with terrorism-related charges? • According to the Justice OIG, the AG instructed that aliens encountered during the investigation who had violated the law should be charged with the appropriate violations. Was this communicated to you by the AG or DAG, and if so, how and when? • Pearson says Ziglar told him hold until cleared. Did he? If so, when and why? • The OIG says an "INS custody list" was created for aliens "of interest" to the FBI, and that being placed on this list had "significant ramifications for the detainee's place and length of detention." What do you know about the creation of this list, and any policy direction provided to INS officials as to its use? • Did you have any involvement with the SIOC Working Group or the FBI "INS Detainee Unit" both run out of the FBI's SIOC in the immediate aftermath of 911? If so, what was your knowledge of their role? • Were you concerned about delays in obtaining FBI clearances for the detainees? If so, who did you contact? • According to the OIG report, you said you should have gone around the "chain of command" to the AG and DAG. Is that how you feel now? And why didn't you if you were truly concerned about these delays in clearances? • Did you ever put your concerns in writing for Director Mueller, DAG Thompson, or AG Ashcroft? If not, why not? Absconder Initiatives • In a memo to the AG, you laid out significant problems with this program. What is your view of the effectiveness of this program, or indeed, any program using state and local law enforcement to enforce immigration laws? Voluntary Interview Project • What was your role in the development and implementation of this program? • According to the GAO, there has been no effort to determine the value from this program. What is your view of its value? NSEERS • What was your role in the development of this program?

14

•

What is your view of its effectiveness?

NOT TODAY... For subsequent meeting Relations with the CT Coordinator, later the NSU: • what briefed on? o Special interest cases. Ever associates of UBL? Related to well know terrorist incidents such as WTC I, Sheik Rahman landmark case, Africa bombings, Saudi barracks bombing? • Ever request a strategy? Ever see or hear from Mike Pearson on the strategy that Cadman provided to him in 1998? • JTTFs. What did you see, if any, of the value to the INS of INS agents being detailed to the JTTFs? • CIA. What value to the INS of INS agents being detailed to the CIA? Information avenues and intelligence. •

Did you receive regular intelligence briefings? o How often? o What was included? o What was your knowledge of Islamic fundamentalism and UBL? o Who from within the INS? • Intel. Unit (George Regan, Cliff Landsman). • What type of information? • How often briefed? Regular briefings? Ever request regular briefings? • Ever hear of terrorist organizations using alien smuggling? Did you ever ask intel unit to look into nexus b/w alien smuggling and terrorists? • NSU : how did it come about? • Lookout Unit • Counsel's Office on special interest cases • The field • JTTF detailees or CIA detailees • Headquarters Watch/Operations Center. Please explain the roles of each of these units within the INS.

o Who did you receive intelligence from outside the INS? o DOJ DAG or Jim Reynolds Office o FBI o CIA. What were the briefing and what did they consist of? • NSC or Dick Clarke • Ever any meetings at NSC or with Dick Clarke ? requests for assistance?

15 •

Ever any meetings with Freeh or Mueller or other FBI persons requesting assistance? • The CIA? Was the DOJ, FBI, CIA, White House supportive of INS in CT? o Did you ever seek more intelligence? How did you view your relationship with the intelligence community? o At what point did you become aware of the activities of terrorists in the US? Islamic fundamentalist terrorists? Response to intelligence/information received. o What was your view of the INS role in national security issues? Role of CT events on INS policy and priorities. o Were you aware of UBL as a threat? Did anyone ever discuss with you UBL as a threat? That the INS had a role to play on the borders and in internal enforcement b/c of INS exclusive Title 8 authority? o Were you aware of PDD-39 requiring INS to exclude terrorists? What was your response to that requirement? What about PDD-62? Show documents. Programs. Student tracking. Entry / exit. Counterterrorism. Describe the INS role in CT. o What role, if any, did you see for the INS in counterterrorism? o Whose responsibility was CT, from your vantage point? Recall ever meeting with Dan Molario, NYC INS District Director, to discuss CT. Enforcement. 9/11. Could the INS have helped prevented 9/11? Yes. The terrorist knew that our border security was our soft underbelly, and wholly exploited it. INS bears responsibility for their entry. Relations with Congress. • Their priorities • Who paid attention to • Helpful/unhelpful. Relations with the private sector.

16 • • •

Airline industry Colleges/universities Border communities

DHS organization on border security. Post 9/11, DOJ stated as a goal bifurcation of INS into its service and enforcement missions. Did you agree with dividing the agency? How would you grade the set up currently at DHS, with services reporting directly to the Secretary, and interior and border enforcement separate but under a border security policy shop reporting to Undersecretary Hutchinson? And what about the combining of Customs and INS? Adding air marshals back into ICE? What about Visa Enforcement overseas? Expanding the virtual borders to more preclearance/preinspection sites? What about adding biometrics into all benefits adjudications so that the visa process (for those requiring a visa), and then entry/exit information is just the beginning of alien tracking?

17

Commission Sensitive MEMORANDUM FOR THE RECORD PART II Event: Interview of James Ziglar Commissioner INS August 6, 2001 - December 6, 2002. Date: Monday, November 24, 2003 Special Access Issues: [none] Prepared by: MFR prepared by Janice Kephart-Roberts on Nov. 24, 2003 Team Number: 5 (Border Security) Location: George Washington Law School, 20l and G St.s Participants - Non-Commission:

James Ziglar

Participants - Commission: Janice Kephart-Roberts, counsel Susan Ginsburg, sr. counsel Note: no classification required Documents provided. 1. NSEERS Summary as of 10/15/2002 2400 (report date 10/17/2002); 2. Attorney General's Remarks: Implementation of NSEERS Niagara Falls, NY. (Nov. 7, 2002). 3. The United States Entry Exit Program: White Paper (Entry Exit Program Team) (11/15/2002). 4. Protecting America's Homeland-Rebuilding the INS for a Secure Future,, including chart "Actions INS Needs to Take to Meet Mission Challenges" (late 2002) 5. INS Restructuring Proposal (11/14/01). 6. Border Management INS Proposal for Controlling the Border (undated) 7. INS Request for Military Support (undated) 8. INS' Border Management Proposals for Controlling the Border (Sept.24, 2001) 9. INS Inspections: Regulate the Border At the Ports of Entry (undated) 10. US Border Patrol: Northern Border Strategy and Operations (undated) 11. Briefing for AG Ashcroft re Restructuring (Nov. 22, 2002)

Documents requested, none Recording: no NOTES: Today's interview focuses on the use of immigration laws to target terrorists in the post 9/11 context. Threat Level One. What that meant for the people in the field was: requires an inspection of every vehicle, to do hooding, trunking, glove compartment and otherwise visual of vehicle and more detailed of who is in the car. Only really applicable to land POEs, without a whole lot more at airports, since everyone at airports gets cleared. Changes from random, to everyone checked. We are still at threat level one today, although we have backed off of "everyone" and returned to random checks with respective to particular car, but not to procedure used. Prevent Departure Unit. We have authority to stop people from leaving if need be. Need to be on list to implement. What we created was - anyone we had suspicion about- were folks put on list and list given to airlines. These aliens could've been in a lookout, referred by CIA or FBI as people suspected of terrorist nexus, or had under investigation or surveillance and compiled by us and updated regularly and sent electronically to airlines and POEs. I only dealt with Pearson on it, but Intel probably put it together. I think this was part of actions taken at command center in morning. It went on for quite a while. No idea of numbers of names on that list. The activity of 9/11 was INS Command Center organization, then I went to the AG Command Center where we gathered to go to| |and then the FBI SIOC in late afternoon to evening, about 4-7 pm. At the AG Command Center, everyone was getting together to leave fon I Everyone was doing their own thing as it related to their, own operation/ I was one of last people to get to the SIOC. \ No substantive discussions at offsite in| | We had a few little gatherings, but not on anything other than current activity. Everyone was so frustrated with 0ps in| jthat was a bit of a preoccupation. \ j FBI SIOC meeting on 9/11, about 4-7 pm. Meeting run by AG ostensibly,, but the guy who seemed to be driving the ship was David Ayres. Agenda for that; AG meetings was: where do we go from here. At this point, prevention was key, No one knew whether another shoe was going to fall. That was the theme of the day. Impetus .of the day was to stop any further attacks. There was a lot of talk about what FBI knew afid didn't know. Then people start identifying proposals to prevent the next incident. 1 put on the table the deployment of 300 Border Patrol to help at POEs. The AG wanted each agency to pony up extra bodies to be at POEs, like Marshal Service. Another idea was limiting baggage on airlines. \/

9/11

Closed by Statute

19 The idea that sticks out in my mind was moving into Arab communities and doing sweeps. This was a moment of national hysteria, so there was a lot of discussion about prevention w/o other considerations. But when I heard business about sweeps, that's when I spoke up and said not appropriate. I delivered a bit of a lecture to Ayres. He was the one I directed my comments to. I probably talked down to him a bit, b/c he's not a lawyer, he's a campaign manager. I know I annoyed him. It ended the topic in front of me. Sept 2001 INS proposals on prevention. This document represents everything conceivable, just ideas. Includes ideas about consular offices granting visas being designated as an immigration function. Detainees. That evolved with FBI having a list of people they had under surveillance or under investigation for potential terrorist connections. That list or information provided the basis for the early joint effort by FBI and INS. There was a proposal to have INS agents to lead teams and FBI lead teams. I wasn't prepared to have INS do this when we didn't have information on immigration violations. Made deal that if evidence of immigration violations evolve during the course of an interview, then we'd step in and go from there. I don't have recollection of specifics, but the FBI did take 1A my investigators win first 24 hours, leaving me about 1,000 for all our interior enforcement duties. The AG made very clear at that SIOC meeting that FBI was in charge of the 9/11 investigation and that everyone else was responsible for providing the FBI whatever they needed. We were all responding to that command. Our people were also in SIOC and providing intel and helping the FBI merge it and do analysis, essentially de facto FBI agents post 9/11. Most of our agents are cleared. Our problem is that BP agents don't have clearances. There were times we needed to share info with BP and couldn't get info to them. Most inspectors, as I recall, don't have clearances either. The joint unit I created: GC and NSU and whoever else they needed and some sort of senior person to oversee a shift, with a senior person to oversee shifts, like Ken Elwood from Philly. We anticipated that this was going to be messy to get it done. We had to get info to FBI; had to make immigration determination in 48 hrs with a "reasonable period thereafter" so that weekends/holidays could be accomodated; not intended for a blanket extension on detention. Beau Cooper or Dia Carpenter can verify this information. The federal criminal standard had been using 24 hrs. I knew that 24 hrs couldn't be met, and would only further put us in the hole b/c we couldn't realistically process that fast, which included making terrorism determination, making charging docs, and making bond recommendation. Lack of information from FBI was our big failure. In some cases FBI failed to conduct initial interviews for weeks and weeks. We couldn't release w/o an FBI clearance. Pearson memo. That was b/c FBI had to clear everyone before release; that order I don't remember how I received. All the decisions were centralized in Washington. I don't

20 think FBI assigned enough people to process, they were really stretched. I don't attribute any mal intent, but I wasn't there. There was also a TIP line; Ziglar was getting a lot of calls himself from old friends. Day to day oversight on detainee processing. I sought three things: (1) a report for AG one pager, with numbers on: how many detained; how many questioned; how many detained and questioned, how many released. This one pager went on until close when I left the INS in Dec 2002; (2) daily operation summary, that sometimes would refer to detainees or detention activity and other information on that area, and "daily operations summary" for ex "in west region, p-u 12 illegals in a truck; (3) daily listing by name, country of origin, where and when picked up, where housed, and very thick, believe the charges were on there. These daily reports came out of D&R and the investigations crowd, both reporting to Mr. Pearson. I'd receive them and look at them; but not personally hold meetings on these, unless an issue arose. Not a lot subject to discussion. I'd pull up ones where detention particularly long, or if I had a particularly sensitive case. The extra 200 detainees. When I found out NY not reporting everything- I first got wind of this when -1 remember getting #s, and I got some info, and #s didn't add up, and I asked why, and found out NY was classifying them differently, and thus not tallying them. INS District Directors, Molario (asst for investigations) and MacAvoy -were always fighting and were playing with the numbers. Pearson and whole crowd didn't know about it until one afternoon, a Friday, and I had Becraft and company set up a phone conference on a Saturday morning to straighten out what had happened. That's when we stopped reporting the numbers. I wasn't there for this meeting. Becraft and Pearson ran the meeting. I decided that the NY failure was to report to Pearson and career people. Only explanation was that they didn't understand the classification system. The numbers were straightened out after that. We had meetings all the time on the detainees. I was always upset with the FBI, and always getting continuances from judges, and that's why I raised hell. I talked to DOJ all the time about it: Chertoff and Ayres and Israelite, Viet, and I'd mention in front of people as an issue that would bite us in the butt wit the way it was being run, and that's when I called Mueller and Ayres, and then I called Israelite when Ayres wasn't around b/c putting FBI was putting INS in a bad position. And I said, I would let people out if we didn't start receiving information from the FBI in a timely manner and start moving on these cases. I never wrote a memo on this issue as I recall, too frantic a pace. I think I would've had to release in defiance of AG's order: never had to learn whether I could have actually released anyway, since all my authority came via the AG. Patriot Act from 48 hrs to 7 days. These are for National Security Determinations only. Issue over suspending the writ. Never been used to my knowledge. This is an AG decision about an individual, and once a determination, can detain for 6 months, and then must be reviewed until (1) no longer a threat, (2) removed, or (3) charged. This statute, only once tried to use when I was there, they had to have concurrence from me, needed a recommendation from me, and my recommendation was, there was classified info on this person: I said if you declare a national security threat, he's gong to file a habeas corpus,

21 and then AG will have to disclose classified info to the court (not clear whether to counsel), and if we can't, then lose the case and release the guy. So I said go for it, but understand above. I never heard from the AG again on the case. I'm of two minds on this issue of classified evidence available to the defense. On the one side, I wrote a law review note 30 years ago, that right of confrontation, that you should be able to confront evidence against you. But where in middle of national security stuff, but that classified evidence needs to stay classified, so very difficult problem. The President in his campaign was against its use. I've considered that maybe a three judge panel instead of one to make the national security determination. Granting gov't the right to say "just trust us", is a nonstarter with me. Creppy memo. I expressed my view that indiscriminate closed hearings that would give the perception that DOJ up to no good. Special interest cases—all became so after 9/11. No apparent value in detainee process; although there's no empirical evidence was helpful, or the deterrent effect it may have had. The AG will say that nothing has happened since is evidence that we were effective. This was the only available strategy they had unless they had evidence and probable charge other than immigration status. I wouldn't have done immigration violations on a nationality basis. In the context on time, with hysteria, the strategy of AG went from detection and prosecution to prevention and disruption, that decision made b/c of attacks. We'll never know whether we find out whether disruptions actually happened. In long term, will probably show more disruptive than beneficial, b/c we've created paranoia in these communities, and affected our relations with other countries, such as Pakistan OR may be beneficial in long run, b/c has highlighted vulnerabilities in lack of good intel, good community policing we didn't have pre 9/11. To help prevent again, I'd be building better intel and spending money and enhance money on that instead of processes, at physical border that won't do a lot on hard borders. I don't think US VISIT will solve terrorism. It will substantially enhance US to enforce immigration laws and overstays (about 40% of illegals are overstays), and discouraging those trying to get through undetected, but not a terrorism tool. Biometrics will help if have intel to match up. Entry/exit was not originally about terrorism, it was about overstays in 1996. Trying to reconfigure POEs, as opposed to a border security initiative, is really what entry /exit is all about. International work. Talk to Canadians all the time: Australian, Canadian and Mexican Immigration Service. There's some resentment to heavy handed reaction to them since 9/11. They are not as concerned about it as we are, but don't like high handedness. They

22 are absolutely terrified that the next attack could be from their borders. 82% of Canadian exports come to US; 90% of Mexican. We send 25% to Canada and 15% to Mexico. Anything we did that would seriously limit trade would have a huge impact on their economies; fear of FORTRESS AMERCIA if we experience another attack. The corruption problem in Mexico: they are addressing a little; they have an FBI/CIA combo, and doing pretty well managing corruption. I think that has proven well. In Mexico City we have a highly classified good relationship. At working level, so corrupt. Volunteer Interview Program. The names on the voluntary interview process came from the FTTTF. Steve McGraw, my recollection was that the list of 5000, that list got compiled by FTTTF, compiled by FBI, but came out of INS records, and it was compiled based on national origin. (Commission has Thompson memos on how the interviews would be conducted.) As to relation to CT, our people went out with them. It was seen as legitimate law enforcement technique where terrorists could potentially would be hiding. The real reason was to recruit operatives. That meant that if found out immigration violations, investigators would be act upon them. I didn't get into that level of operation; that was a FBI issue. Nothing says our agents have to deport; that is up to our discretion. LESC is helpful in helping state and locals, and decide whether or not to pick up, and depends on resources we have available, so discretion used every day. Alien Absconder Initiative. I actually started that program. When I got there, sometime after 9/11, there were 314K people out on bond who failed to show up for final order of deportation (in regs, constructive notice didn't count, had to have actual notice), and actual notice without change of status, then afoul of fed crim laws. I said this was unacceptable to have such defiance of US laws. Announced in front of House Judiciary Cmte and luncheon speech at Chamber of Commerce. Idea was to go through files at LESC and determine who'd received notice and who hadn't and who dead or gone. The oldest first orders would go. All paper files, so long process in culling through them. The names would go into NCIC. No activity to affirmatively find them. This was the initial cut. This was not about terrorism at all, but immigration enforcement. I was sitting with the AG, Levy, Ayres waiting to talk to Ridge in Roosevelt Room and I told the AG about the initiative. The AG was very happy about it. One or two weeks later I announced it. It wasn't anytime before it got hijacked by Kobach, and then I was working at direction of AG's office. He saw it as an opportunity to turn it into a terrorist thing. So then was to sort via terrorist sponsor states, and then see is if these people have criminal backgrounds. The truth was that most of these had been removed. Then became the absconder apprehension initiative: terrorist connection, then criminal, and got down to 5,000. As they vetted these cases, then files were sent to field for FBI, US Attorneys along with the INS (b/c federal criminal issue) it was driven through the US Attorneys offices. Locals also worked these via the JTTFs and locals can participate in enforcement of fed crim statutes, as well as immigration matter. It is the administrative, noncriminal part of the INA that they don't have authority to enforce unless there's an MOU, although now AG has an undisclosed opinion saying that locals/state can enforce civil and criminal immigration laws. I don't know if AG changed the constructive notice portion of initiatve; that was done close to time I left. I had no objection to changing the reg:

23 your failure to follow the law should not be a defense, so I had no problem with changing the reg; I initially was just following the reg as written. The Absconder Initiative was not an effective CT measure necessarily because the singling out meant perception of fairness that was damaging. I doubt whether any terrorists were found. We knew more about these b/c had been through the process, so why spend extra money to single one group out. NSEERS. Kobach behind this too, to resurrect to the alien registration act of 1940s, a law still on the books. There was a proposal Kobach put together to register state sponsor citizens, and got attention of WH. It was a stand alone unconnected with Entry/Exit. WH did huge pushback, OHS and DPC. Diana Schacht was primary immigration person at DPC. At OHS, was Poncho Kenney and Flakenrath, Bruce Lawler. Kobach wanted to do this, and went back to drawing board, and decided to marry registration with entry/exit and use NSEERS as the first phase of entry /exit. Now putting these people in secondary, with std set of interviews, and documents carrying got add'l scrutiny. National Security Entry/Exit Registration System. Didn't change the content of it, just gave it new PR. Seems like DOT would sneak things under the cover without full vetting of WH. I didn't think regiratration would be very effective, if at all. I thought very expensive, resource intensive, and not going to yield much if anything, that it would be disruptive of our relations with other countries like Pakistan and Jordan. It is all about effectiveness with me, after rule of law. I saw a money and time sink without tangible results. I was fairly vocal internally. Kobach was a WH fellow that wormed his way into AG's office. Very ambitious. Hope with US VISIT they aren't making two print investment, b/c creates dislocation b/w IAFIS and IDENT system. I'm on board of company that does electronic ten prints, so maybe I shouldn't comment. They've said 11 potential terrorist connections via NSEERS. How many detected through IBIS v. a print match. If they found through prints, then biometric matters, on a risk management system, but I thin the hits were really iBIS hits that POEs would've found without NSEERS in place. Kobach took over NSEERS process; he mislead the Hill and the AG about the effectiveness of NSEERS; would've found these people via IBIS anyway. Call-in registration happened after I left. Would be a mess, and bad policy, and we got nothing out of it. Kobach was driving this train as well. A lot of things WH raised a lot of questions about. The state and local law enforcement opinion from the Office Legal Counsel. In 287(g) IIRIRIA, state and local may assist in enforcement of single immigation laws pursuant to state agency /INS MOU. Legislative history indicates that Congress was creating an exception to the preemption doctrine, we are prepared to have state and local help us do our laws as long as under our guidance. There had been several incidences of MOUs, Utah etc. but local pressure said no. After 9/11, AG revisited the '96 opinion which had been rendered in '89 that state/local law enforcement that couldn't enforce civil immigration laws. In any event, '96 and '89 opinion revisited. In Nov. 2001, OLC confirmed the '96 opinion, and told to go back and do again. In March, opinion said state/local could implement immigration laws. Don't know how got to conclusion with immigration being a fed issue when immigration has

24

been traditionally the plenary power of Congress. I told folks that even if good law, not necessarily a good policy. Remember the AZ Chandler incident. What I learned in the end was that the front office didn't tell the WH about this. I asked Ayres whether he had vetted the opinion with WH; told we'll deal with that. I found out on a Friday afternoon that initiative was going to be released without vetting to the WH. I called Chris Henney, close to Rove. He wasn't in, and I left a message for him, and I was on my way home. The next day it leaked that this was on the offing, and then too late for me to give heads up. I had staled b/c I didn't want to be disloyal. There is a FL MOU. I understand that subliminal messages are sent that state/locals can do this. The AG has never released this opinion. Ziglar has read it and says it has a large breadth. Terrorism is excuse for a lot of activities. Pending statute request on this has refusing money to state and locals if refuse to help. Probably will not pass. (Story off the record re the NSEERS/state and local press conference held by the AG.) Only conversations with Dick Clarke was over the FTTTF, b/c we housed them at beginning, another fusion intel, and made skif available. 56 SES slots. We had largest ratio. I didn't get anymore, and number was taken down to 42 by time I left. Front office was squeezing me to death. Had to have accountability, career tracks for those other than 1811s, and needed good intel, and same level of legal advice, and shared services.