T5 B59 Dos Docs- Niv 5 Of 5 Fdr- Letters- Memos- 14 Withdrawal Notices 188
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WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 47
DOC ID: 31198833
6
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Memorandum
FROM:
TO: SUBJECT:
Memorandums of Understanding re. Implementation of the TIPOFF System. Customs, INS, DOS, BIR
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 48
DOC ID: 31198889
11
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 05/23/1997
DOCUMENT TYPE: Memorandum
FROM: TO: SUBJECT:
Concept of Operations, US-Canada Terrorist Watch List Program
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 49
DOC ID: 31198890
4
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 03/28/1997
DOCUMENT TYPE: Memorandum
FROM: Community Counterterrorism Board TO: SUBJECT:
Memorandum of Agreement - Participation with DOS, in Providing TIPOFF Progn Info, to the Canadian Govt.
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
TAB: 50
DOC ID: 31198891
COPIES: 1 PAGES:
ACCESS RESTRICTED j The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 03/12/1999
DOCUMENT TYPE: Memorandum
FROM:
TO: SUBJECT:
Memorandum of Understanding, Implementation and Use of the TIPOF Systems of Records at Ports of Entry
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
United States Department of State Washington, D.C. 20520
NOV I 2 1999 Dear Mr. Chairman: This is in response to your letter of August 26 in which you posed a number of questions regarding the involvement of Panamanian officials in alien smuggling. Attached please find responses to these questions. We hope this information is useful to you. The Department is now reviewing your request for documents pertaining to this matter. We will b£ in further contact with you on this in the near future. Please do not hesitate to contact us if we can be of assistance to you on this or any other matter. Sincerely,
Barbara Larkin Assistant Secretary Legislative Affairs
Enclosure: As stated.
The Honorable Jesse Committee on Foreign Relations, !,-___-q&rdMU34£IMs[ ^Hi-ate. ' ~
i list
1.
Has the U.S. Embassy in Panama proposed the revocation of the U.S. visa of other persons involved in this scandal? If so, please explain why only Ms. Smith's visa has been revoked to date.
The United States Embassy in Panama has proposed the revocation of additional visas. In this matter, all the specific cases are now being reviewed. As a general policy, visas are revoked on a case-by-case basis, provided the alien has a U.S. visa to revoke and that no waiver of ineligibility has been obtained to protect U.S. law enforcement interests. This process is being coordinated with the on-going Department of Justice inquiry into allegations regarding alien smuggling in Panama. Because this matter is the subject of an on-going law enforcement investigation, and possible criminal prosecution, the Department of Justice has requested that the Department of State not comment further at this time. 2.
When was the Embassy or the Department informed by either the Department of Justice or the Federal Bureau of Investigation of any pending inquiry into this matter? When were such inquiries reportedly initiated and what is their current status?
In the second week of June 1999, the Department of State informed the Department of Justice of the existence of information suggesting possible criminal activity involving alien smuggling. The Department of Justice then began an evaluation of the available information and investigative bodies within the Justice Department, including the Immigration and Naturalization Service, initiated a preliminary investigation. Our Ambassador in Panama was informed of the status of the investigation orally at various times by members of the investigative bodies of the Justice Department and in writing on August 17, 1999. The Department of State was notified by letter dated August 31, 1999, that Justice Department attorneys would be working with the investigative bodies on the pending inquiry. 3.
Has the U.S. government asked Panamanian authorities to provide a list of all Communist Chinese nationals to whom Panamanian visas have been issued in recent years so that U.S. authorities can determine the breadth of jthis alien smuggling operation? Has such a list been
The U.S. government has asked for the cooperation of both the previous and the new Governments of Panama on this issue. Because this matter is the subject of an on-going law enforcement investigation, and possible criminal prosecution, the Department of Justice has requested that the -Department of State not comment further at this matter. 4.
Have U.S. counterintelligence agencies been instructed to initiate an inquiry to determine if this alien smuggling ring might be part of a Communist Chinese espionage plot? What are the results of any such inquiry to date?
U.S. counterintelligence agencies are charged with monitoring any information that might suggest potential espionage or organized crime activity affecting the interests, of the United States. As the Department generally does* not, as a practice, comment on specific counterintelligence inquiries which are the purview of such agencies, we suggest that you direct your inquiry to the appropriate agency. 5.
Has the Department urged U.S. law enforcement officials overseas to treat investigations of alien smuggling as a greater priority?
Yes. We have stressed to all U.S. law enforcement agencies that investigations into alien smuggling must be a priority, and we believe such investigations are being so treated by U.S. law enforcement agencies. Additionally, the Department of State's Bureau of International Narcotics and Law Enforcement Affairs, with the cooperation of other State bureaus, has been working with countries worldwide to counteract alien smuggling by seeking enactment of antismuggling legislation, conducting training and joint operations, and cooperating on other programs.
Drafted: WHA/CEN/PAN:KMHamann Searcen/Searapan/Helms3.doc x73518 Cleared:
CA/VO:KAiston (ok) DOJ:TMcHenry (ok) ROAL:DTerry (ok) WHA/CEN/PAN:CWWebster (ok) WHA/CEN/PAN:JFKeane (info WHA:RSWood (ok) EAP:BWeber (ok) <• H:MTrejo (ok) H:WMiele (ok) INL/ENT:WMcKenna (ok) L/CA:EBO'Connor (ok) L/LEI:MHCarlson (ok) INR/IAA:RNCarhart (ok)
The Honorable Madeleine Albright August 24, 1999 Page 2 recent years so that U.S. authorities can determine the breadth of this alien smuggling operation? Has such a list been provided? 4.
Have U.S. counterintelligence agencies been instructed to initiate an inquiry to determine if this alien smuggling ring might be part of Chinese organized crime activities or of a Communist Chinese espionage plot? What are the results of any such inquiry to date?
5.
Has the Department urged U.S. law enforcement officials overseas to treat investigations of alien smuggling as a greater priority?
Thank you very much for your cooperation in this matter. I look forward to hearing from you. Sincerely,
JESSE HELMS
cc: The Honorable Janet Reno, Attorney General
CONGRESSIONAL CORRESPONDENCE CLEARANCE 9900-4469 Initial for clearance or return for edits with remarks. Do Not mark on original document. Pass on in numerical order with final stop in H/CCU. PLEASE, DO NOT return to drafting office without sending to or notifying CCU first. Name: Helms
Date: 10/07/1999 4:53 PM
Subject: Panamaniam officials and alien smuggling
2: Trejo 3: Guest 4:BL 5: CCU 6: COMMENTS:
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
TAB: 51
FOLDER: 0003
COPIES: 1 PAGES:
DOC ID: 31198892
2
ACCESS RESTRICTED
i
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: List
FROM:
TO: SUBJECT:
Terrorist Designation List
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
TAB: 52
DOC ID: 31198927
COPIES: 1 PAGES: _ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Draft
FROM:
TO: SUBJECT:
IPASS - The Interagency Panel on Advanced Science and Security
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 53
DOC ID: 31198928
1
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Index
FROM: TO: SUBJECT:
Index of Docs, to the Commission, Case No. S200300007, Segment QIC 002
This document has been withdrawn for the following reason(s): 9/11 Classified Information
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
TAB: 54
FOLDER: 0003
COPIES: 1 PAGES:
DOC ID: 31198929
2
i ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 08/04/2000
DOCUMENT TYPE: Letter
FROM: Bureau of intelligence & Research TO: Chief, Counterterrorism Center SUBJECT:
TIPOFF
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 55
DOC ID: 31198930
6
ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Memorandum
FROM:
TO: SUBJECT:
Concept of Operations, US-Autstralian Terrorist Watch List Program
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 56
DOC ID: 31198931
4
.
RESTRICTEE)|_|
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Memorandum
FROM:
TO: SUBJECT:
TIPOFF-Crime, Memorandum of Understanding, DOS FBI, CIA, NSA
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 57
DOC ID: 31198933
1
_ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Index
FROM: TO: SUBJECT:
Index of Docs, to the Commission, Case No. S200300007, Segment H004
This document has been withdrawn for the following reason(s): 9/11 Classified Information
WITHDRAWAL NOTICE
OIG002 SEGMENT QUESTION #11
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 58
DOC ID: 31198934
48
ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 01/16/1992
DOCUMENT TYPE: Report
FROM:
TO: SUBJECT:
Charter for the Interagency Border Inspection System (IBIS)
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 59
DOC ID: 31198935
16
_AOCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 10/18/2001
DOCUMENT TYPE: Cable
FROM: TO: SUBJECT:
Fighting Terrorism, Visas VIPER Prodedures.
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
NCIC generally *
The total number of aliens currently entered into NCIC
LIMITED OFFICIAL USE / LAW ENFORCEMENT SENSITIVE National Crime Information Center (NCIC) database 1) What is the total number of aliens currently entered into NCIC? As of May 1, 2004, the ICE Law Enforcement Support Center (LESC) reports that the total number of alien absconders in NCIC is currently 28,876.
LIMITED OFFICIAL USE / LAW ENFORCEMENT SENSITIVE
17=38
Of r ICE Ul- IMMIU ,I1UN LI I
.6
.01
'O OFFICE OF IMMIGRATION LITIGATION CIVIL DIVISION U.S. DEPARTMENT OF JUSTICE WASHINGTON, D.C. 1331 PENNSYLVANIA AVENUE, N.W. SUITE 700 NORTH WASHINGTON, D.C. 20004 MAIL: P.O. BOX 878, BEN FRANKLIN STATION WASHrNGTON, D.C. 20044
FROM: CHRISTOPHER C. FULLER Senior Litigation Counsel
TEL: (202)616-9308 FAX; (202) 616-4949 or secure: (202) 616-4952
TO
SUBJECT MESSAGE:
uoui \S (INCLUDING THIS COVER SHEET
PW VILECED. CONFIDENTIAL AND EXEMTT RtOM DISCLOSURE UNCEH ATMJOJJLE LAW. IF THE HEADER Of Tl IIS COVIMUMCATIQK IS NOT Tl IE INTENDED R£CIMEMT OK THE EMPLO YGC Oft AGEMT HESrOKSlflU FO» 06U VEWlW ThE MESSAGE TO THE INTENDED IECIFIENT. VOU ABE HEKEIV NOTIFIED THAT ANY DISSKNIHATlOK, DISnUDUTIOS. OH COfYIMO OF THIS COMMUNICATION MAY DC STKJCTLV MOHlkmO \t YOU HAVE RECEIVtCl TH/S COMMUNICATION IN CMO*, PlAAle NOTtTY MC IMMEDIATELY Br tOU-ECTTELEPHONE CALL. AXD RETVW TH» COMMUNICATION TO MB AT THE ADQVB ACOHOJ VIA UtJITEO STAT6S WSTAl. SERViee THAM1 YOU.
OAG015-0016
MflY-15-2003
17:39
_ £16 H_
OFFICE OF IMMIGRflllON LI I
D.S. Department of Justice Office of ihc Deputy Attorney General
D.C. 20530
Ailocialc Deputy Anomcy Genenl
July 17, 1995
MEMORANDUM TO:
Mark Richard, James Reynolds
Criminal Division Robert Bryant, Jeffrey Mazanec, Howard Shapiro, Marion Bowman, FBI Philip Bartz, Robert Bombaugh, Michael Lind'emann, Civil Division Chris Sale, Scott Blackman, David Martin, Laura Baxc; INS Janes McAdams, Allan Kornblum OIPR D'jJ
FROM:
Seth P. Waxman **^~
RE:
Alien Terrorist Removal Procedures under the Ant i terrorism ACL-_-;
The Attorney General has approved the interim procedures previously agreed to by all components. A copy of the final document is attached. I appreciate all the work that'went into this document, which reflects considerable effort and thought. Recognizing tljat the Court has not yet been formally established, there is still a great deal that can be done. .1 would suggest that each component now designate its Task Force representative, and that TVCS, in its role as chair, commence coordination of efforts. Attachment
OAG015-0017
•v>
MflY-15-2003
17:38
OFFICE OF imiGRRTION LI I
_ 616
*
Proposed Interim Procedures To Implement Section 401 of the Antiterrorism and Effective Death Penalty Act of 1996:
•"
REMOVAL COURT ACTIONS AGAINST ALEEN TERRORISTS
By Order of the Attorney General, Removal Court proceedings will be considered, commenced, and conducted on an interim basis as follows: 1.
The Department will form a Task Force comprised of representatives of the Terrorism and Violent Crime Section, Criminal Division (TVCS); Office of Immigration Litigation, Civil Division (OIL); FBI; INS; and Office of Intelligence Policy Review (OIPR). The Task Force will be chaired by TVCS. Each component will designate one person as principal Task Force representative.1
2.
The Deputy Attorney General will exercise oversight responsibility relating to the operation of the Task Force and will designate an attorney within her office who will be her point of contact for issues relating to the Task Force. Any component agency that objects to a decision reached by the Task Force may lodge that objection with the Deputy Attorney General's designated point of contact.
3.
To ensure that the Removal Court process will be utilized consistently with Congressional intent and Administration policy, the Criminal Division will assist the FBI in identifying the initial alien terrorists that are the subjects of current FBI investigations to be considered by the Task Force for Removal Court a'ction. The FBI and Criminal Division will develop a process tp ensure that future candidates, including those alien terrorists violating 18 U.S.C. § 2339B (AEDPA's new fundraising criminal penalty provision) are expeditiously identified for Removal Court proceedings.
4.
INS, the Civil Division (OIL), other agencies, and U.S. Attorneys'Offices having Removal Court case recommendations will submit their recommendations to the Criminal Division and FBI for preliminary review. It is expected that INS agents currently assigned to FBI field office counterterrorism squads will continue ;o work with those-offices to generate case recommendations through FBI channels. INS case recommendations which result from: (a) independent investigation in other contexts; (b) INS confidential sources; and (c) ports-of-entry inquiries with respect to arriving aliens, will be made through INS headquarters.
' U.S. Attorneys may ask, or be asked, to detail one or more attorneys to work with the Task Force in cases arising in the context of terrorism investigations directed by their offices.
OAG015-0018
/
MflY-15-2003
17:39
OFFICE OF IMMIQRflllQN LI I
_ 61S ...
.
vi) Before any recommendation is submitted to the full Task Force, INS, in consultation with OIL, shall determine promptly for each individual identified for possible Removal Court action: alienage; immigration status; eligibility for relief from deportation; all possible grounds for deportation (based on the information available at the time); and other pertinent issues within INS expertise or jurisdiction,.including possible grounds for criminal prosecution for immigration violations. The INS shall provide the results of its review to the FBI in writing. The INS may conduct such investigation as may be necessary to obtain evidence of alienage, immigration status, deportability, or criminal prosecution for immigration violations. The FBI, after initial and follow-up consultation with the Criminal Division and OIL, will transmit all recommendations for Removal Court action to the Task Force in a package consisting of: (a)
FBI or other agency file information, including pertinent FISA-deriyed information and LHMs ihat relate to the alien;
(b)
the mosi recent annual FBI LHM summarizing the activities of the terrorist organization with which the alien is affiliated;
(c)
F1SA applications and orders relating to ihe alien and the terrorist organization, if any;
•••(•.*
• *.v
. ts
.' <• '!i!r.'•>
(d)
ihe INS material provided pursuant to paragraph 5; and
(e)
a memorandum from the Assistant Director for National Security to the Task Force Chairman, which memorandum:
(i)
details the subject alien's activities on behalf of the terrorise organization;
(ii)
identifies the national security risks that conventional deportation proceedings under Title II "would pose, including a discussion of the nature of any inter- or intra-agency disagreements that may exist with respect to that risk;
(iii)
-.A
states whether grounds exist for prosecution based on passport or
immigration fraud, or other criminal violations, and whether grand jury investigation is pending or contemplated and the bases, scope, and potential targets of such investigation;2
1 Grand jury information should be provided to the Task Force consistent with the requirements of Fed. R. Crim. P. Rule 6(e), or court order obtained at the Task Force's request.
OAG015-0019
MPY-15-2003
OFFICE OF IMMIGRRTIDN LIT
17=39
e. - 616 49-.
(iv)
identifies and summarizes the unclassified or declassifiable information that relates to the alien which can be released to the alien;
(v)
identifies the classified information that cannot be declassified and explains the extent to which that information might be summarized;
(vi)
identifies the witnesses who would be available to testify in open coun, in camera, or both, during the proceeding; and
(vii)
states whether the FBI or other agency, including any U. S. Attorney's office, opposes removal and the reasons therefor.
The full submission described in paragraph 6 will be transmitted to the'Task Force• Chairman for preliminary review. At this juncture, other Task Force members will receive the material described in subpans 6(d) and (e). Upon Task Force request: (a)
INS will: (i) transmit a copy of the subject alien's A-file to the Task Force for review; (ii) place the original file under controls to ensure that original documents will remain'avail able to the Task Force when needed; (iii) mark che original file clearly to indicate that the alien is currently the subject of Task Force review; and (iv) place appropriate notations in the file and INS systems to ensure that the alien is not considered for adjustment of status or other immigration relief without clearance by INS Headquarters officials, in consultation with the Task Force;
(b)
the State Department, through its Counter-Terrorism Office (S/CT), will provide the Task Force with its current assessment of the terrorist organization at issue and a copy of the administrative record on which the designation, if any, is based;
(c)
the State Department and the Criminal Division's Office of International Affairs will advise whether an extradition request is possible with' respect to the alien;
(d)
other Department components will furnish expertise as needed; and
(e)
other government agencies may furnish such requested expertise or assistance.
/
P.
1 !"•
*& '.'.M'\0
HflY-15-2003
9.
10.
17:39
OFFICE OF IMMIGROT ION LI I
_ 616 «*„ ,-
As soon as practicable thereafter, the Task Force will convene a meeting of its relevant members, as well as Assistant U.S. Attorneys or other agency officials as needed, which will: (a)
ascertain from INS whether its review of the INS file establishes that a "nonterrorisi" ground exists which can be easily and promptly used, to deport the alien successfully, without posing a risk to the national security;1
(b)
ascertain from the Criminal Division whether sufficient evidence exists warranting prosecution based on passport or immigration fraud, or other criminal violations, including violations of AEDPA's criminal fundraising provision, 18 U.S.C. § 2339B;
(c)
review all FBI material to determine whether a "terrorist" ground, within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iii) and § 125l(a)(4)(B), exists to deport the alien successfully;
(d)
determine whether classified FBI File information is material to deportability and warrants the use of the Removal Court;
(e)
determine whether an adequate unclassified summary of the evidence can be prepared for submission to the alien; and
(f)
attempt to reconcile any inieragency disputes regarding the decision to seek removal of the subject alien.
The Task Force may, at any time, request the recommending agency to: (a)
coordinate with other agencies to pursue alternative enforcement options such as conventional deportation proceedings or criminal charges;
(b)
investigate the matter further to develop needed additional evidence or repair deficient evidence that is material to deporubility;
(c)
make case agents available for Task Force interview; or / such other action as the Task Force deems appropriate.
(d)
1 Particular consideration should be given to the possibilities that: (1) the alien may present a meritorious application for withholding of deportation that cannot be rebutted through .the use of classified information (8 U.S.C. § 1253(h); 8 C.F.R § 242.17); and (2) what course of action should be taken in the event that the Special Court finds that the alien is not removable under Tide V of the INA.
OAG015-0021
MRY-15-2003
OFFICE OF i m i U . i l l U N LI I
17=39
.6
•\. •
11.
The Task Force shall determine if the following conditions are present:
:ij
(a)
a terrorist deporution ground exists;
(b)
np viable non-terrorism deporution ground exists or is preferred;
(c)
an extradition request is not anticipated, not a viable option, or is not preferred;
'/*s
(d)
no alternative criminal charge is available or preferred;
(e)
classified information is material to deportability;
(f)
an adequate summary can be prepared; and
(g)
the matter warrants Removal Court referral.
•-',
'•*
.
v-,n; .''-••'v.
12.
Should the conditions required under paragraph 11 be deficient or absent, or if the case appears deficient as a matter of law or fact to establish deportability, the Task Force will notify the recommending entity as appropriate.
13.
If the Task Force determines that the conditions in paragraph 11 are present, it will transmit the application package and related material to its Terrorist Alien Trial Unit. This Unit of the Task Force will be chaired by OIL and comprised of OIL, INS, and Criminal Division attorneys and OIL support staff, with O1PR and FBI assistance as the unit deems necessary, Upon case referral, the unit will: (a)
prepare declarations by FBI or other recommending agency officials or agents detailing the nature of the alien's terrorist activities within the meaning of 8 U.S.C. § 212(a)(3)(B)(iii);
(b)
prepare the evidence to be submitted to the Removal Court:
(c)
prepare the section 503(a) application;
(d)
prepare the unclassified summary;
(e)
draft Attorney General or Deputy Attorney General certifications as needed pursuant to sections 504(e)(l)(C) and 504(e) (3)(A); and
/
(f)
submit the application package through the Task Force Chairman to the Deputy Attorney General for approval.
OAG015-0022
..-•;*)i
nAY-15-2003
14.
17:40
OhlCt Uh Ihnlu UluNLII
<=
_ 616 M_
Upon certification by the Deputy Attorney General or Attorney General, the Trial Unit will: . . (a)
submit the section 5Q3(a) application to the Removal Court and.prepare the case for trial;4 :
(b)
if the subject alien is not already in custody, request that INS take the. alien into custody5 and inform the Removal Court of the fact that the'alien has been detained;
(c)
prepare for any release hearing if the alien is a lawful permanent resident;
(d)
if pertinent, notify the Treasury Department's Office of Foreign Assets Control of the pendency of the application, for consideration of any actions that might be warranted under Executive Order 12947; and
(e)
notify the Department of State, through S/CT, of the decision of the.Attorney General or the Deputy Attorney General to initiate Removal Court proceedings against the alien.
15.
In the case of any subject alien presenting special security concerns, INS may request detention assistance from other agencies, including the Bureau of Prisons and the U.S. Marshals Service.
16.
Should the Removal Court grant the application, the Trial Unit will try the case before the Court,
17.
The Trial Unit will have principal responsibility for defending against any collateral attacks attempted in other courts on the Removal Court provisions or process, -except to the extent that the subject matter falls within the particular jurisdiction of another Department office, in which case the Trial Unit will assist as necessary.
18.
Appeals from Removal Court: (a)
The Trial Unit, wuh the involvement of and assistance as needed by the. Civil Division's Appellate Staff, will have principal responsibility for: (1) section 505(a) appeals of denials of section 503(a) applications;
* The manner of submission will be prescribed by the Chief Judge. 5
Custody will be effected almost always simultaneously with the filing of .the application.
6
OAG015-0023
MflY-15-2003
17:40
OFFICE U- IhnlU il IUN LI I
(2) section 505(b) interlocutory appeals concerning section 504(e)(3) .summary; (3) section 505(c) appeals from final determinations; and (A) section 505(e) appeals from section 507(b)(2)(C) continuing detention. (b)
The Appellate Staff of the Civil Division, with the assistance of the Task Force members as may be necessary, will have principal responsibility for handling appeals to the United States Court of Appeals for the D.C. Circuit by any organization designated under Section 219 of the INA as a foreign terrorist organization by the Secretary of State.
19.
INS will prepare and furnish to the alien, his attorney, and Lhe Task Force, any periodic reports required by section 507(2){C) with respect to aliens in continuing detention.
20.
The Task Force and Trial Unit will assist investigating agencies and USAO's with respect to the requirements of the Title V removal process. It will also assist, as requested, in pending investigations with respect to matters within its developing expertise.
21.
The Task Force Chairman, or his designate, in conjunction with OIPR, OIL, and the Security Staff of JMD, will assist the Chief Justice of the United States in the structuring of the Removal Court.
22.
The Task Force may revise these interim procedures as necessary, withv the approval of the Deputy Attorney General.
23.
The Task Force, in light of its experience under ihese interim procedures, will report to the Attorney General and Deputy Attorney General within 18 months with its recommendations concerning the advisability of creating a permanent Department unit for handling Removal Cpun proceedings and for proactive participation'by the unit in the identification of and enforcement efforts concerning alien terrorists. The report shall also contain an assessment of the level of cooperation between the various Departmental components and an evaluation of the Removal Court proceedings under the interim procedures.
TOTflL P.09
OAG015-0024
Report to the Congress Regarding the Alien Terrorist Removal Court Section 313 of the Intelligence Authorization Act for Fiscal Year 2002 (Public Law 107-108) added a new report requirement to Title V of the Immigration and Nationality Act, (INA) 8 U.S.C. §§ 1531-1537. Under this provision, the Attorney General must submit a report within 90 days of enactment "concerning the effect and efficacy of alien terrorist removal proceedings, including the reasons why proceedings pursuant to this section have not been used by the Attorney General in the past and the effect on the use of these proceedings after the enactment of the USA PATRIOT Act of 2001 (Public Law 107-56") . " This report responds to that Congressional directive. Establishment of Alien Terrorist Removal Court The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (Public Law 104-132, Title IV, Subtitle A, 110 Stat. 1258 (April 24, 1996)) established the Alien Terrorist Removal Court (ATRC) through the addition of Title V to the INA. Title V of the INA provides for the removal of aliens believed to be deportable on terrorism grounds on the basis of classified evidence in proceedings before the ATRC. See INA sections 502504, 8 U.S.C. §§ 1532-1534. The Chief Justice of the United States has designated the Chief Judge and four other judges to serve on the ATRC. In proceedings before the ATRC, the Department of Justice may present classified evidence in camera and ex parte to prove that the alien is deportable under section 237 (a) (4) of the INA, 8 U.S.C. § 1227 (a) (4), in that the alien "has engaged, is engaged, or at any time after admission engages in any terrorist activity. " To initiate a case under Title V, the Attorney General must certify that probable cause exists that the alien's removal under Title II of the INA in conventional removal proceedings "would pose a risk to the national security of the United States." Section 503 (a) (1) (D) (iii) of the INA, 8 U.S.C. § 1533 (a) (1) (D) (iii) . Effect and Efficacy of ATRC Immediately following the enactment of AEDPA, the Department of Justice established an interagency working group to review potential cases for presentation to the ATRC and to develop
OAG015-0025
procedures for the handling of such cases. While the Department of Justice has devoted substantial resources to the task of identifying and evaluating cases, this process has not yet identified a case that belongs in the ATRC rather than some other forum. The fact that the Department has not yet brought a case in the ATRC is the product of a number of factors. First, the ATRC was intended to be a low-volume court. As stated above, the ATRC legislation effectively requires that conventional immigration proceedings under Title II of the INA be considered before resort to the ATRC, as the ATRC can only be utilized if removal proceedings under Title II "would pose a risk to the national security of the United States." INA § 503, 8 U.S.C. § 1533. This is a jurisdictional prerequisite to invoking the ATRC. In the experience of the Department of Justice, most suspected alien terrorists are nonresident aliens removable in conventional Title II proceedings for conventional immigration violations (such as overstaying a visa) that can be easily proven without the use of classified evidence. Such aliens seldom contest removability; the litigation has solely concerned their applications for relief from removal. In such cases, Title II authorizes the Government to present classified information ex parte and in camera to the immigration judge to oppose an alien's request for discretionary relief from removal. INA § 240 (b) (4) , 8 U.S.C. § 1229a(b)(4)(B). Thus, Title II protects classified information in these cases. Furthermore, the universe of potential ATRC cases decreased five months after the enactment of the AEDPA, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Div. C, Public Law 104-208, 110 Stat. 3546 (Sept. 30, 1996)), (IIRIRA). The ATRC was enacted in order to remove aliens who are deportable (as opposed to excludable) on terrorism charges without compromising national security. Pursuant to IIRIRA, aliens who may have entered the United States without inspection are no longer considered "deportable" aliens and, indeed, the Government can use undisclosed classified evidence against them in conventional Title II proceedings to oppose their admission into the United States. INA § 240, 8 U.S.C. § 1229. These IIRIRA provisions gave added national security protection to conventional Title II proceedings. In addition to the statutory preference for Title II proceedings, another important constraint on ATRC action is that in some cases intelligence objectives or prospects for criminal prosecution take precedence over any type of immigration action,
OAG015-0026
including the ATRC. In any event, as a matter of policy, the Department would prefer to criminally prosecute, convict, and incarcerate alien terrorists for any criminal act committed than simply remove them from the United States. However, because government intelligence investigations are not conducted with the goal of gathering evidence that can be used to prove criminal charges or immigration violations in court, they often do not provide a sufficient basis to sustain a criminal prosecution or a remova1 ac t i on. Another important factor that hampered use of the ATRC was the statutory definition of "engage in terrorist activity" in section 212 of the INA, prior to its amendment by the USA PATRIOT Act. This definition, which provided the sole basis for removal in an ATRC action, proved to be problematic in certain respects. For example, although the statute did encompass fundraisers and other material supporters of terrorist organizations, there was no definitive ruling in Title II litigation that the statutory definition covered material support that the alien claimed was afforded to a terrorist organization's humanitarian activities rather than to its terrorist activities. See former INA § 212(a) (3) (B) (iii) ("engage in terrorist activity" means, among other things, the provision of material support to any entity "in conducting a terrorist activity at any time"). A clearer definition was not adopted until passage of the USA PATRIOT Act. Other definitional issues under the pre-USA PATRIOT Act statutory definition of "engage in terrorist activity" affected specific cases under review for the ATRC. These included whether the statute clearly encompassed a solo actor's planning of terrorist activity; the lack of any statutory definition for "assassination"; and the failure of one important provision to cover all weapons, rather than just explosives and firearms. (See former INA §§ 212 (a) (3) (B) (ii) (IV) ; 212 (a) (3) (B) (ii) (V) (b) ; 212 (a) (3) (b) (iii)) . Concerns about such provisions influenced the Department's proposed substantive changes, adopted in part in the USA Patriot Act. As noted above, Congress's requirement that the ATRC be utilized only where resort to Title II removal proceedings "would pose a risk to national security" clearly demonstrates that the ATRC is not intended to be the primary focus of the Government's antiterrorism efforts in the immigration area. Instead, the ATRC is simply one tool in the Government's arsenal for removing alien terrorists. Despite the fact that it has not been used, the ATRC remains a potentially important component of our enforcement apparatus.
OAG015-0027
It was created to help the United States avoid the dilemma of either allowing alien terrorists to remain in the United States, on the one hand, or endangering national security by disclosing classified evidence in their removal proceedings, on the other. This was a problem prior to the creation of the ATRC and, without the ATRC, the Government is likely to once again face this dilemma in at least a small number of cases. In our view, the ATRC remains a potentially critical tool. Enactment of USA PATRIOT Act The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56 (Oct. 26, 2001), contained a broad package of budgetary and statutory amendments to enable the Government to combat more effectively the threat of terrorism. The USA PATRIOT Act made significant amendments to INA § 212(a) (3), 8 U.S.C. § 1182(a) (3), the security-related ground of inadmissibility. As stated above, removal proceedings under Title V of the INA are intended to address aliens who are deportable under INA § 237(a) (4), 8 U.S.C. § 1227(a) (4), which refers back to the definition of "engage in terrorist activity" contained in INA § 212(a)(3)(B). The amendments made to the definitions of "terrorist activity" and "engage in terrorist activity" contained in INA §§ 212(a) (3) (B) (iii) and (iv), 8 U.S.C. §§ 1182(a)(3)(B)(iii) and (iv), as well as the new definition of "terrorist organization" contained in INA § 212 (a) (3) (B) (vi), 8 U.S.C. § 1182(a) (3) (B) (vi), would apply to cases before the ATRC. The USA PATRIOT Act expanded these definitions by: • broadening the definition of "terrorist activity" which previously listed only explosives or firearms to include the use of other weapons and dangerous devices other than explosives or firearms; • adding a definition of "terrorist organization" that includes: (a) any organization designated under INA section 219, 8 U.S.C. § 1189; (b) any organization otherwise designated, upon publication in the Federal Register, by the Secretary of State (after consultation with or at the request of the Attorney General) as a terrorist organization after a finding that the organization commits or incites the commission of terrorist activity, prepares or plans a terrorist activity, or gathers information on
OAG015-0028
potential targets for terrorist activity, or that the organization provides material support to further terrorist activity; and (c) a. group of two or more individuals, whether organized or not, that commits or incites the commission of terrorist activity, prepares or plans a terrorist activity, or gathers information on potential targets for terrorist activity; • amending the definition of "engage in terrorist activity" in two principal ways: (a) by clarifying that an alien's solicitation of funds or members for a designated terrorist organization constitutes "engaging in a terrorist activity,"even if the alien claims that he did not know and should not reasonably have known that the solicitation would further the organization's terrorist activity;(b)by providing that an alien "engages in a terrorist activity" by committing an act that the alien knows or reasonably should know affords material support to a designated terrorist organization, even if the alien claims that he did not know and should not reasonably have known that the material support would further the organization's terrorist activity; and (c) by providing that once the government proves that the alien solicted either money or members on behalf of, or provided material support to, a non-designated terrorist organization, the alien must show that he did not and should not have known that his conduct furthered the terrorist activity of the organization.1 •
clarifying that a solo actor's planning or preparation of a terrorist activity constitutes "engaging in terrorist activity."
The USA Patriot Act contains an express retroactive application clause mandating the application of these new provisions: (a) to actions taken by an alien before, on, or after the date of enactment, (b)
The statute further provides, however, that an alien's solicitation of funds or members for, or provision of material support to, a terrorist organization will not be deemed "engaging in a terrorist activity" where (i) the organization is at the time of the solicitation or support a non-designated terrorist organization and (ii) the alien demonstrates that he did not know, and should not reasonably have known, that the solicitation or material support would further the organization's terrorist activity. 1
OAG015-0029
to all aliens, without regard to the date of the alien's entry or attempted entry, who are in removal proceedings on or after the date of enactment (except for proceedings in which there has been a final administrative decision before enactment), or who are seeking admission to the United States on or after the date of enactment. Because the USA PATRIOT Act has made some clarifications to and expanded some definitions within the security-related provisions of the INA, the Department of Justice is analyzing in detail how these provisions might affect the potential use of the ATRC.
Conclusion Both before and after September 11, 2001, the Department of Justice has considered a range of options in reviewing the case of a suspected alien terrorist. These options range from continuing an ongoing intelligence-gathering operation to criminal prosecution to removal, including both conventional removal under Title II of the INA to removal before the ATRC under Title V. The USA PATRIOT Act expanded the category of aliens who are subject to removal based on involvement with terrorist activity as defined by the immigration law. The Department continues to review cases with the goal of taking the appropriate action to protect the national security. As stated previously, the ATRC is simply one tool in the Government's arsenal for removing alien terrorists.
OAG015-0030
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
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WITHDRAWAL DATE: 09/24/2008
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DOC ID: 31198936
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The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 05/23/2003
DOCUMENT TYPE: Cable
FROM: TO: SUBJECT:
CT
This document has been withdrawn for the following reason(s): 9/11 Classified Information
WITHDRAWAL NOTICE
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6
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Memorandum
FROM:
TO: SUBJECT:
Memorandums of Understanding re. Implementation of the TIPOFF System. Customs, INS, DOS, BIR
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
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The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 05/23/1997
DOCUMENT TYPE: Memorandum
FROM: TO: SUBJECT:
Concept of Operations, US-Canada Terrorist Watch List Program
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 03/28/1997
DOCUMENT TYPE: Memorandum
FROM: Community Counterterrorism Board TO: SUBJECT:
Memorandum of Agreement - Participation with DOS, in Providing TIPOFF Progn Info, to the Canadian Govt.
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
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ACCESS RESTRICTED j The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 03/12/1999
DOCUMENT TYPE: Memorandum
FROM:
TO: SUBJECT:
Memorandum of Understanding, Implementation and Use of the TIPOF Systems of Records at Ports of Entry
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
United States Department of State Washington, D.C. 20520
NOV I 2 1999 Dear Mr. Chairman: This is in response to your letter of August 26 in which you posed a number of questions regarding the involvement of Panamanian officials in alien smuggling. Attached please find responses to these questions. We hope this information is useful to you. The Department is now reviewing your request for documents pertaining to this matter. We will b£ in further contact with you on this in the near future. Please do not hesitate to contact us if we can be of assistance to you on this or any other matter. Sincerely,
Barbara Larkin Assistant Secretary Legislative Affairs
Enclosure: As stated.
The Honorable Jesse Committee on Foreign Relations, !,-___-q&rdMU34£IMs[ ^Hi-ate. ' ~
i list
1.
Has the U.S. Embassy in Panama proposed the revocation of the U.S. visa of other persons involved in this scandal? If so, please explain why only Ms. Smith's visa has been revoked to date.
The United States Embassy in Panama has proposed the revocation of additional visas. In this matter, all the specific cases are now being reviewed. As a general policy, visas are revoked on a case-by-case basis, provided the alien has a U.S. visa to revoke and that no waiver of ineligibility has been obtained to protect U.S. law enforcement interests. This process is being coordinated with the on-going Department of Justice inquiry into allegations regarding alien smuggling in Panama. Because this matter is the subject of an on-going law enforcement investigation, and possible criminal prosecution, the Department of Justice has requested that the Department of State not comment further at this time. 2.
When was the Embassy or the Department informed by either the Department of Justice or the Federal Bureau of Investigation of any pending inquiry into this matter? When were such inquiries reportedly initiated and what is their current status?
In the second week of June 1999, the Department of State informed the Department of Justice of the existence of information suggesting possible criminal activity involving alien smuggling. The Department of Justice then began an evaluation of the available information and investigative bodies within the Justice Department, including the Immigration and Naturalization Service, initiated a preliminary investigation. Our Ambassador in Panama was informed of the status of the investigation orally at various times by members of the investigative bodies of the Justice Department and in writing on August 17, 1999. The Department of State was notified by letter dated August 31, 1999, that Justice Department attorneys would be working with the investigative bodies on the pending inquiry. 3.
Has the U.S. government asked Panamanian authorities to provide a list of all Communist Chinese nationals to whom Panamanian visas have been issued in recent years so that U.S. authorities can determine the breadth of jthis alien smuggling operation? Has such a list been
The U.S. government has asked for the cooperation of both the previous and the new Governments of Panama on this issue. Because this matter is the subject of an on-going law enforcement investigation, and possible criminal prosecution, the Department of Justice has requested that the -Department of State not comment further at this matter. 4.
Have U.S. counterintelligence agencies been instructed to initiate an inquiry to determine if this alien smuggling ring might be part of a Communist Chinese espionage plot? What are the results of any such inquiry to date?
U.S. counterintelligence agencies are charged with monitoring any information that might suggest potential espionage or organized crime activity affecting the interests, of the United States. As the Department generally does* not, as a practice, comment on specific counterintelligence inquiries which are the purview of such agencies, we suggest that you direct your inquiry to the appropriate agency. 5.
Has the Department urged U.S. law enforcement officials overseas to treat investigations of alien smuggling as a greater priority?
Yes. We have stressed to all U.S. law enforcement agencies that investigations into alien smuggling must be a priority, and we believe such investigations are being so treated by U.S. law enforcement agencies. Additionally, the Department of State's Bureau of International Narcotics and Law Enforcement Affairs, with the cooperation of other State bureaus, has been working with countries worldwide to counteract alien smuggling by seeking enactment of antismuggling legislation, conducting training and joint operations, and cooperating on other programs.
Drafted: WHA/CEN/PAN:KMHamann Searcen/Searapan/Helms3.doc x73518 Cleared:
CA/VO:KAiston (ok) DOJ:TMcHenry (ok) ROAL:DTerry (ok) WHA/CEN/PAN:CWWebster (ok) WHA/CEN/PAN:JFKeane (info WHA:RSWood (ok) EAP:BWeber (ok) <• H:MTrejo (ok) H:WMiele (ok) INL/ENT:WMcKenna (ok) L/CA:EBO'Connor (ok) L/LEI:MHCarlson (ok) INR/IAA:RNCarhart (ok)
The Honorable Madeleine Albright August 24, 1999 Page 2 recent years so that U.S. authorities can determine the breadth of this alien smuggling operation? Has such a list been provided? 4.
Have U.S. counterintelligence agencies been instructed to initiate an inquiry to determine if this alien smuggling ring might be part of Chinese organized crime activities or of a Communist Chinese espionage plot? What are the results of any such inquiry to date?
5.
Has the Department urged U.S. law enforcement officials overseas to treat investigations of alien smuggling as a greater priority?
Thank you very much for your cooperation in this matter. I look forward to hearing from you. Sincerely,
JESSE HELMS
cc: The Honorable Janet Reno, Attorney General
CONGRESSIONAL CORRESPONDENCE CLEARANCE 9900-4469 Initial for clearance or return for edits with remarks. Do Not mark on original document. Pass on in numerical order with final stop in H/CCU. PLEASE, DO NOT return to drafting office without sending to or notifying CCU first. Name: Helms
Date: 10/07/1999 4:53 PM
Subject: Panamaniam officials and alien smuggling
2: Trejo 3: Guest 4:BL 5: CCU 6: COMMENTS:
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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i
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: List
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Terrorist Designation List
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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COPIES: 1 PAGES: _ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Draft
FROM:
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IPASS - The Interagency Panel on Advanced Science and Security
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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1
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DOCUMENT TYPE: Index
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Index of Docs, to the Commission, Case No. S200300007, Segment QIC 002
This document has been withdrawn for the following reason(s): 9/11 Classified Information
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WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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i ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 08/04/2000
DOCUMENT TYPE: Letter
FROM: Bureau of intelligence & Research TO: Chief, Counterterrorism Center SUBJECT:
TIPOFF
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
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ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Memorandum
FROM:
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Concept of Operations, US-Autstralian Terrorist Watch List Program
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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4
.
RESTRICTEE)|_|
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Memorandum
FROM:
TO: SUBJECT:
TIPOFF-Crime, Memorandum of Understanding, DOS FBI, CIA, NSA
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
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1
_ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE:
DOCUMENT TYPE: Index
FROM: TO: SUBJECT:
Index of Docs, to the Commission, Case No. S200300007, Segment H004
This document has been withdrawn for the following reason(s): 9/11 Classified Information
WITHDRAWAL NOTICE
OIG002 SEGMENT QUESTION #11
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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ACCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 01/16/1992
DOCUMENT TYPE: Report
FROM:
TO: SUBJECT:
Charter for the Interagency Border Inspection System (IBIS)
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
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_AOCESS RESTRICTED The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 10/18/2001
DOCUMENT TYPE: Cable
FROM: TO: SUBJECT:
Fighting Terrorism, Visas VIPER Prodedures.
This document has been withdrawn for the following reason(s): 9/11 Closed by Statute 9/11 Law Enforcement Sensitive
WITHDRAWAL NOTICE
NCIC generally *
The total number of aliens currently entered into NCIC
LIMITED OFFICIAL USE / LAW ENFORCEMENT SENSITIVE National Crime Information Center (NCIC) database 1) What is the total number of aliens currently entered into NCIC? As of May 1, 2004, the ICE Law Enforcement Support Center (LESC) reports that the total number of alien absconders in NCIC is currently 28,876.
LIMITED OFFICIAL USE / LAW ENFORCEMENT SENSITIVE
17=38
Of r ICE Ul- IMMIU ,I1UN LI I
.6
.01
'O OFFICE OF IMMIGRATION LITIGATION CIVIL DIVISION U.S. DEPARTMENT OF JUSTICE WASHINGTON, D.C. 1331 PENNSYLVANIA AVENUE, N.W. SUITE 700 NORTH WASHINGTON, D.C. 20004 MAIL: P.O. BOX 878, BEN FRANKLIN STATION WASHrNGTON, D.C. 20044
FROM: CHRISTOPHER C. FULLER Senior Litigation Counsel
TEL: (202)616-9308 FAX; (202) 616-4949 or secure: (202) 616-4952
TO
SUBJECT MESSAGE:
uoui \S (INCLUDING THIS COVER SHEET
PW VILECED. CONFIDENTIAL AND EXEMTT RtOM DISCLOSURE UNCEH ATMJOJJLE LAW. IF THE HEADER Of Tl IIS COVIMUMCATIQK IS NOT Tl IE INTENDED R£CIMEMT OK THE EMPLO YGC Oft AGEMT HESrOKSlflU FO» 06U VEWlW ThE MESSAGE TO THE INTENDED IECIFIENT. VOU ABE HEKEIV NOTIFIED THAT ANY DISSKNIHATlOK, DISnUDUTIOS. OH COfYIMO OF THIS COMMUNICATION MAY DC STKJCTLV MOHlkmO \t YOU HAVE RECEIVtCl TH/S COMMUNICATION IN CMO*, PlAAle NOTtTY MC IMMEDIATELY Br tOU-ECTTELEPHONE CALL. AXD RETVW TH» COMMUNICATION TO MB AT THE ADQVB ACOHOJ VIA UtJITEO STAT6S WSTAl. SERViee THAM1 YOU.
OAG015-0016
MflY-15-2003
17:39
_ £16 H_
OFFICE OF IMMIGRflllON LI I
D.S. Department of Justice Office of ihc Deputy Attorney General
D.C. 20530
Ailocialc Deputy Anomcy Genenl
July 17, 1995
MEMORANDUM TO:
Mark Richard, James Reynolds
Criminal Division Robert Bryant, Jeffrey Mazanec, Howard Shapiro, Marion Bowman, FBI Philip Bartz, Robert Bombaugh, Michael Lind'emann, Civil Division Chris Sale, Scott Blackman, David Martin, Laura Baxc; INS Janes McAdams, Allan Kornblum OIPR D'jJ
FROM:
Seth P. Waxman **^~
RE:
Alien Terrorist Removal Procedures under the Ant i terrorism ACL-_-;
The Attorney General has approved the interim procedures previously agreed to by all components. A copy of the final document is attached. I appreciate all the work that'went into this document, which reflects considerable effort and thought. Recognizing tljat the Court has not yet been formally established, there is still a great deal that can be done. .1 would suggest that each component now designate its Task Force representative, and that TVCS, in its role as chair, commence coordination of efforts. Attachment
OAG015-0017
•v>
MflY-15-2003
17:38
OFFICE OF imiGRRTION LI I
_ 616
*
Proposed Interim Procedures To Implement Section 401 of the Antiterrorism and Effective Death Penalty Act of 1996:
•"
REMOVAL COURT ACTIONS AGAINST ALEEN TERRORISTS
By Order of the Attorney General, Removal Court proceedings will be considered, commenced, and conducted on an interim basis as follows: 1.
The Department will form a Task Force comprised of representatives of the Terrorism and Violent Crime Section, Criminal Division (TVCS); Office of Immigration Litigation, Civil Division (OIL); FBI; INS; and Office of Intelligence Policy Review (OIPR). The Task Force will be chaired by TVCS. Each component will designate one person as principal Task Force representative.1
2.
The Deputy Attorney General will exercise oversight responsibility relating to the operation of the Task Force and will designate an attorney within her office who will be her point of contact for issues relating to the Task Force. Any component agency that objects to a decision reached by the Task Force may lodge that objection with the Deputy Attorney General's designated point of contact.
3.
To ensure that the Removal Court process will be utilized consistently with Congressional intent and Administration policy, the Criminal Division will assist the FBI in identifying the initial alien terrorists that are the subjects of current FBI investigations to be considered by the Task Force for Removal Court a'ction. The FBI and Criminal Division will develop a process tp ensure that future candidates, including those alien terrorists violating 18 U.S.C. § 2339B (AEDPA's new fundraising criminal penalty provision) are expeditiously identified for Removal Court proceedings.
4.
INS, the Civil Division (OIL), other agencies, and U.S. Attorneys'Offices having Removal Court case recommendations will submit their recommendations to the Criminal Division and FBI for preliminary review. It is expected that INS agents currently assigned to FBI field office counterterrorism squads will continue ;o work with those-offices to generate case recommendations through FBI channels. INS case recommendations which result from: (a) independent investigation in other contexts; (b) INS confidential sources; and (c) ports-of-entry inquiries with respect to arriving aliens, will be made through INS headquarters.
' U.S. Attorneys may ask, or be asked, to detail one or more attorneys to work with the Task Force in cases arising in the context of terrorism investigations directed by their offices.
OAG015-0018
/
MflY-15-2003
17:39
OFFICE OF IMMIQRflllQN LI I
_ 61S ...
.
vi) Before any recommendation is submitted to the full Task Force, INS, in consultation with OIL, shall determine promptly for each individual identified for possible Removal Court action: alienage; immigration status; eligibility for relief from deportation; all possible grounds for deportation (based on the information available at the time); and other pertinent issues within INS expertise or jurisdiction,.including possible grounds for criminal prosecution for immigration violations. The INS shall provide the results of its review to the FBI in writing. The INS may conduct such investigation as may be necessary to obtain evidence of alienage, immigration status, deportability, or criminal prosecution for immigration violations. The FBI, after initial and follow-up consultation with the Criminal Division and OIL, will transmit all recommendations for Removal Court action to the Task Force in a package consisting of: (a)
FBI or other agency file information, including pertinent FISA-deriyed information and LHMs ihat relate to the alien;
(b)
the mosi recent annual FBI LHM summarizing the activities of the terrorist organization with which the alien is affiliated;
(c)
F1SA applications and orders relating to ihe alien and the terrorist organization, if any;
•••(•.*
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(d)
ihe INS material provided pursuant to paragraph 5; and
(e)
a memorandum from the Assistant Director for National Security to the Task Force Chairman, which memorandum:
(i)
details the subject alien's activities on behalf of the terrorise organization;
(ii)
identifies the national security risks that conventional deportation proceedings under Title II "would pose, including a discussion of the nature of any inter- or intra-agency disagreements that may exist with respect to that risk;
(iii)
-.A
states whether grounds exist for prosecution based on passport or
immigration fraud, or other criminal violations, and whether grand jury investigation is pending or contemplated and the bases, scope, and potential targets of such investigation;2
1 Grand jury information should be provided to the Task Force consistent with the requirements of Fed. R. Crim. P. Rule 6(e), or court order obtained at the Task Force's request.
OAG015-0019
MPY-15-2003
OFFICE OF IMMIGRRTIDN LIT
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e. - 616 49-.
(iv)
identifies and summarizes the unclassified or declassifiable information that relates to the alien which can be released to the alien;
(v)
identifies the classified information that cannot be declassified and explains the extent to which that information might be summarized;
(vi)
identifies the witnesses who would be available to testify in open coun, in camera, or both, during the proceeding; and
(vii)
states whether the FBI or other agency, including any U. S. Attorney's office, opposes removal and the reasons therefor.
The full submission described in paragraph 6 will be transmitted to the'Task Force• Chairman for preliminary review. At this juncture, other Task Force members will receive the material described in subpans 6(d) and (e). Upon Task Force request: (a)
INS will: (i) transmit a copy of the subject alien's A-file to the Task Force for review; (ii) place the original file under controls to ensure that original documents will remain'avail able to the Task Force when needed; (iii) mark che original file clearly to indicate that the alien is currently the subject of Task Force review; and (iv) place appropriate notations in the file and INS systems to ensure that the alien is not considered for adjustment of status or other immigration relief without clearance by INS Headquarters officials, in consultation with the Task Force;
(b)
the State Department, through its Counter-Terrorism Office (S/CT), will provide the Task Force with its current assessment of the terrorist organization at issue and a copy of the administrative record on which the designation, if any, is based;
(c)
the State Department and the Criminal Division's Office of International Affairs will advise whether an extradition request is possible with' respect to the alien;
(d)
other Department components will furnish expertise as needed; and
(e)
other government agencies may furnish such requested expertise or assistance.
/
P.
1 !"•
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HflY-15-2003
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10.
17:39
OFFICE OF IMMIGROT ION LI I
_ 616 «*„ ,-
As soon as practicable thereafter, the Task Force will convene a meeting of its relevant members, as well as Assistant U.S. Attorneys or other agency officials as needed, which will: (a)
ascertain from INS whether its review of the INS file establishes that a "nonterrorisi" ground exists which can be easily and promptly used, to deport the alien successfully, without posing a risk to the national security;1
(b)
ascertain from the Criminal Division whether sufficient evidence exists warranting prosecution based on passport or immigration fraud, or other criminal violations, including violations of AEDPA's criminal fundraising provision, 18 U.S.C. § 2339B;
(c)
review all FBI material to determine whether a "terrorist" ground, within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iii) and § 125l(a)(4)(B), exists to deport the alien successfully;
(d)
determine whether classified FBI File information is material to deportability and warrants the use of the Removal Court;
(e)
determine whether an adequate unclassified summary of the evidence can be prepared for submission to the alien; and
(f)
attempt to reconcile any inieragency disputes regarding the decision to seek removal of the subject alien.
The Task Force may, at any time, request the recommending agency to: (a)
coordinate with other agencies to pursue alternative enforcement options such as conventional deportation proceedings or criminal charges;
(b)
investigate the matter further to develop needed additional evidence or repair deficient evidence that is material to deporubility;
(c)
make case agents available for Task Force interview; or / such other action as the Task Force deems appropriate.
(d)
1 Particular consideration should be given to the possibilities that: (1) the alien may present a meritorious application for withholding of deportation that cannot be rebutted through .the use of classified information (8 U.S.C. § 1253(h); 8 C.F.R § 242.17); and (2) what course of action should be taken in the event that the Special Court finds that the alien is not removable under Tide V of the INA.
OAG015-0021
MRY-15-2003
OFFICE OF i m i U . i l l U N LI I
17=39
.6
•\. •
11.
The Task Force shall determine if the following conditions are present:
:ij
(a)
a terrorist deporution ground exists;
(b)
np viable non-terrorism deporution ground exists or is preferred;
(c)
an extradition request is not anticipated, not a viable option, or is not preferred;
'/*s
(d)
no alternative criminal charge is available or preferred;
(e)
classified information is material to deportability;
(f)
an adequate summary can be prepared; and
(g)
the matter warrants Removal Court referral.
•-',
'•*
.
v-,n; .''-••'v.
12.
Should the conditions required under paragraph 11 be deficient or absent, or if the case appears deficient as a matter of law or fact to establish deportability, the Task Force will notify the recommending entity as appropriate.
13.
If the Task Force determines that the conditions in paragraph 11 are present, it will transmit the application package and related material to its Terrorist Alien Trial Unit. This Unit of the Task Force will be chaired by OIL and comprised of OIL, INS, and Criminal Division attorneys and OIL support staff, with O1PR and FBI assistance as the unit deems necessary, Upon case referral, the unit will: (a)
prepare declarations by FBI or other recommending agency officials or agents detailing the nature of the alien's terrorist activities within the meaning of 8 U.S.C. § 212(a)(3)(B)(iii);
(b)
prepare the evidence to be submitted to the Removal Court:
(c)
prepare the section 503(a) application;
(d)
prepare the unclassified summary;
(e)
draft Attorney General or Deputy Attorney General certifications as needed pursuant to sections 504(e)(l)(C) and 504(e) (3)(A); and
/
(f)
submit the application package through the Task Force Chairman to the Deputy Attorney General for approval.
OAG015-0022
..-•;*)i
nAY-15-2003
14.
17:40
OhlCt Uh Ihnlu UluNLII
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Upon certification by the Deputy Attorney General or Attorney General, the Trial Unit will: . . (a)
submit the section 5Q3(a) application to the Removal Court and.prepare the case for trial;4 :
(b)
if the subject alien is not already in custody, request that INS take the. alien into custody5 and inform the Removal Court of the fact that the'alien has been detained;
(c)
prepare for any release hearing if the alien is a lawful permanent resident;
(d)
if pertinent, notify the Treasury Department's Office of Foreign Assets Control of the pendency of the application, for consideration of any actions that might be warranted under Executive Order 12947; and
(e)
notify the Department of State, through S/CT, of the decision of the.Attorney General or the Deputy Attorney General to initiate Removal Court proceedings against the alien.
15.
In the case of any subject alien presenting special security concerns, INS may request detention assistance from other agencies, including the Bureau of Prisons and the U.S. Marshals Service.
16.
Should the Removal Court grant the application, the Trial Unit will try the case before the Court,
17.
The Trial Unit will have principal responsibility for defending against any collateral attacks attempted in other courts on the Removal Court provisions or process, -except to the extent that the subject matter falls within the particular jurisdiction of another Department office, in which case the Trial Unit will assist as necessary.
18.
Appeals from Removal Court: (a)
The Trial Unit, wuh the involvement of and assistance as needed by the. Civil Division's Appellate Staff, will have principal responsibility for: (1) section 505(a) appeals of denials of section 503(a) applications;
* The manner of submission will be prescribed by the Chief Judge. 5
Custody will be effected almost always simultaneously with the filing of .the application.
6
OAG015-0023
MflY-15-2003
17:40
OFFICE U- IhnlU il IUN LI I
(2) section 505(b) interlocutory appeals concerning section 504(e)(3) .summary; (3) section 505(c) appeals from final determinations; and (A) section 505(e) appeals from section 507(b)(2)(C) continuing detention. (b)
The Appellate Staff of the Civil Division, with the assistance of the Task Force members as may be necessary, will have principal responsibility for handling appeals to the United States Court of Appeals for the D.C. Circuit by any organization designated under Section 219 of the INA as a foreign terrorist organization by the Secretary of State.
19.
INS will prepare and furnish to the alien, his attorney, and Lhe Task Force, any periodic reports required by section 507(2){C) with respect to aliens in continuing detention.
20.
The Task Force and Trial Unit will assist investigating agencies and USAO's with respect to the requirements of the Title V removal process. It will also assist, as requested, in pending investigations with respect to matters within its developing expertise.
21.
The Task Force Chairman, or his designate, in conjunction with OIPR, OIL, and the Security Staff of JMD, will assist the Chief Justice of the United States in the structuring of the Removal Court.
22.
The Task Force may revise these interim procedures as necessary, withv the approval of the Deputy Attorney General.
23.
The Task Force, in light of its experience under ihese interim procedures, will report to the Attorney General and Deputy Attorney General within 18 months with its recommendations concerning the advisability of creating a permanent Department unit for handling Removal Cpun proceedings and for proactive participation'by the unit in the identification of and enforcement efforts concerning alien terrorists. The report shall also contain an assessment of the level of cooperation between the various Departmental components and an evaluation of the Removal Court proceedings under the interim procedures.
TOTflL P.09
OAG015-0024
Report to the Congress Regarding the Alien Terrorist Removal Court Section 313 of the Intelligence Authorization Act for Fiscal Year 2002 (Public Law 107-108) added a new report requirement to Title V of the Immigration and Nationality Act, (INA) 8 U.S.C. §§ 1531-1537. Under this provision, the Attorney General must submit a report within 90 days of enactment "concerning the effect and efficacy of alien terrorist removal proceedings, including the reasons why proceedings pursuant to this section have not been used by the Attorney General in the past and the effect on the use of these proceedings after the enactment of the USA PATRIOT Act of 2001 (Public Law 107-56") . " This report responds to that Congressional directive. Establishment of Alien Terrorist Removal Court The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (Public Law 104-132, Title IV, Subtitle A, 110 Stat. 1258 (April 24, 1996)) established the Alien Terrorist Removal Court (ATRC) through the addition of Title V to the INA. Title V of the INA provides for the removal of aliens believed to be deportable on terrorism grounds on the basis of classified evidence in proceedings before the ATRC. See INA sections 502504, 8 U.S.C. §§ 1532-1534. The Chief Justice of the United States has designated the Chief Judge and four other judges to serve on the ATRC. In proceedings before the ATRC, the Department of Justice may present classified evidence in camera and ex parte to prove that the alien is deportable under section 237 (a) (4) of the INA, 8 U.S.C. § 1227 (a) (4), in that the alien "has engaged, is engaged, or at any time after admission engages in any terrorist activity. " To initiate a case under Title V, the Attorney General must certify that probable cause exists that the alien's removal under Title II of the INA in conventional removal proceedings "would pose a risk to the national security of the United States." Section 503 (a) (1) (D) (iii) of the INA, 8 U.S.C. § 1533 (a) (1) (D) (iii) . Effect and Efficacy of ATRC Immediately following the enactment of AEDPA, the Department of Justice established an interagency working group to review potential cases for presentation to the ATRC and to develop
OAG015-0025
procedures for the handling of such cases. While the Department of Justice has devoted substantial resources to the task of identifying and evaluating cases, this process has not yet identified a case that belongs in the ATRC rather than some other forum. The fact that the Department has not yet brought a case in the ATRC is the product of a number of factors. First, the ATRC was intended to be a low-volume court. As stated above, the ATRC legislation effectively requires that conventional immigration proceedings under Title II of the INA be considered before resort to the ATRC, as the ATRC can only be utilized if removal proceedings under Title II "would pose a risk to the national security of the United States." INA § 503, 8 U.S.C. § 1533. This is a jurisdictional prerequisite to invoking the ATRC. In the experience of the Department of Justice, most suspected alien terrorists are nonresident aliens removable in conventional Title II proceedings for conventional immigration violations (such as overstaying a visa) that can be easily proven without the use of classified evidence. Such aliens seldom contest removability; the litigation has solely concerned their applications for relief from removal. In such cases, Title II authorizes the Government to present classified information ex parte and in camera to the immigration judge to oppose an alien's request for discretionary relief from removal. INA § 240 (b) (4) , 8 U.S.C. § 1229a(b)(4)(B). Thus, Title II protects classified information in these cases. Furthermore, the universe of potential ATRC cases decreased five months after the enactment of the AEDPA, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Div. C, Public Law 104-208, 110 Stat. 3546 (Sept. 30, 1996)), (IIRIRA). The ATRC was enacted in order to remove aliens who are deportable (as opposed to excludable) on terrorism charges without compromising national security. Pursuant to IIRIRA, aliens who may have entered the United States without inspection are no longer considered "deportable" aliens and, indeed, the Government can use undisclosed classified evidence against them in conventional Title II proceedings to oppose their admission into the United States. INA § 240, 8 U.S.C. § 1229. These IIRIRA provisions gave added national security protection to conventional Title II proceedings. In addition to the statutory preference for Title II proceedings, another important constraint on ATRC action is that in some cases intelligence objectives or prospects for criminal prosecution take precedence over any type of immigration action,
OAG015-0026
including the ATRC. In any event, as a matter of policy, the Department would prefer to criminally prosecute, convict, and incarcerate alien terrorists for any criminal act committed than simply remove them from the United States. However, because government intelligence investigations are not conducted with the goal of gathering evidence that can be used to prove criminal charges or immigration violations in court, they often do not provide a sufficient basis to sustain a criminal prosecution or a remova1 ac t i on. Another important factor that hampered use of the ATRC was the statutory definition of "engage in terrorist activity" in section 212 of the INA, prior to its amendment by the USA PATRIOT Act. This definition, which provided the sole basis for removal in an ATRC action, proved to be problematic in certain respects. For example, although the statute did encompass fundraisers and other material supporters of terrorist organizations, there was no definitive ruling in Title II litigation that the statutory definition covered material support that the alien claimed was afforded to a terrorist organization's humanitarian activities rather than to its terrorist activities. See former INA § 212(a) (3) (B) (iii) ("engage in terrorist activity" means, among other things, the provision of material support to any entity "in conducting a terrorist activity at any time"). A clearer definition was not adopted until passage of the USA PATRIOT Act. Other definitional issues under the pre-USA PATRIOT Act statutory definition of "engage in terrorist activity" affected specific cases under review for the ATRC. These included whether the statute clearly encompassed a solo actor's planning of terrorist activity; the lack of any statutory definition for "assassination"; and the failure of one important provision to cover all weapons, rather than just explosives and firearms. (See former INA §§ 212 (a) (3) (B) (ii) (IV) ; 212 (a) (3) (B) (ii) (V) (b) ; 212 (a) (3) (b) (iii)) . Concerns about such provisions influenced the Department's proposed substantive changes, adopted in part in the USA Patriot Act. As noted above, Congress's requirement that the ATRC be utilized only where resort to Title II removal proceedings "would pose a risk to national security" clearly demonstrates that the ATRC is not intended to be the primary focus of the Government's antiterrorism efforts in the immigration area. Instead, the ATRC is simply one tool in the Government's arsenal for removing alien terrorists. Despite the fact that it has not been used, the ATRC remains a potentially important component of our enforcement apparatus.
OAG015-0027
It was created to help the United States avoid the dilemma of either allowing alien terrorists to remain in the United States, on the one hand, or endangering national security by disclosing classified evidence in their removal proceedings, on the other. This was a problem prior to the creation of the ATRC and, without the ATRC, the Government is likely to once again face this dilemma in at least a small number of cases. In our view, the ATRC remains a potentially critical tool. Enactment of USA PATRIOT Act The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56 (Oct. 26, 2001), contained a broad package of budgetary and statutory amendments to enable the Government to combat more effectively the threat of terrorism. The USA PATRIOT Act made significant amendments to INA § 212(a) (3), 8 U.S.C. § 1182(a) (3), the security-related ground of inadmissibility. As stated above, removal proceedings under Title V of the INA are intended to address aliens who are deportable under INA § 237(a) (4), 8 U.S.C. § 1227(a) (4), which refers back to the definition of "engage in terrorist activity" contained in INA § 212(a)(3)(B). The amendments made to the definitions of "terrorist activity" and "engage in terrorist activity" contained in INA §§ 212(a) (3) (B) (iii) and (iv), 8 U.S.C. §§ 1182(a)(3)(B)(iii) and (iv), as well as the new definition of "terrorist organization" contained in INA § 212 (a) (3) (B) (vi), 8 U.S.C. § 1182(a) (3) (B) (vi), would apply to cases before the ATRC. The USA PATRIOT Act expanded these definitions by: • broadening the definition of "terrorist activity" which previously listed only explosives or firearms to include the use of other weapons and dangerous devices other than explosives or firearms; • adding a definition of "terrorist organization" that includes: (a) any organization designated under INA section 219, 8 U.S.C. § 1189; (b) any organization otherwise designated, upon publication in the Federal Register, by the Secretary of State (after consultation with or at the request of the Attorney General) as a terrorist organization after a finding that the organization commits or incites the commission of terrorist activity, prepares or plans a terrorist activity, or gathers information on
OAG015-0028
potential targets for terrorist activity, or that the organization provides material support to further terrorist activity; and (c) a. group of two or more individuals, whether organized or not, that commits or incites the commission of terrorist activity, prepares or plans a terrorist activity, or gathers information on potential targets for terrorist activity; • amending the definition of "engage in terrorist activity" in two principal ways: (a) by clarifying that an alien's solicitation of funds or members for a designated terrorist organization constitutes "engaging in a terrorist activity,"even if the alien claims that he did not know and should not reasonably have known that the solicitation would further the organization's terrorist activity;(b)by providing that an alien "engages in a terrorist activity" by committing an act that the alien knows or reasonably should know affords material support to a designated terrorist organization, even if the alien claims that he did not know and should not reasonably have known that the material support would further the organization's terrorist activity; and (c) by providing that once the government proves that the alien solicted either money or members on behalf of, or provided material support to, a non-designated terrorist organization, the alien must show that he did not and should not have known that his conduct furthered the terrorist activity of the organization.1 •
clarifying that a solo actor's planning or preparation of a terrorist activity constitutes "engaging in terrorist activity."
The USA Patriot Act contains an express retroactive application clause mandating the application of these new provisions: (a) to actions taken by an alien before, on, or after the date of enactment, (b)
The statute further provides, however, that an alien's solicitation of funds or members for, or provision of material support to, a terrorist organization will not be deemed "engaging in a terrorist activity" where (i) the organization is at the time of the solicitation or support a non-designated terrorist organization and (ii) the alien demonstrates that he did not know, and should not reasonably have known, that the solicitation or material support would further the organization's terrorist activity. 1
OAG015-0029
to all aliens, without regard to the date of the alien's entry or attempted entry, who are in removal proceedings on or after the date of enactment (except for proceedings in which there has been a final administrative decision before enactment), or who are seeking admission to the United States on or after the date of enactment. Because the USA PATRIOT Act has made some clarifications to and expanded some definitions within the security-related provisions of the INA, the Department of Justice is analyzing in detail how these provisions might affect the potential use of the ATRC.
Conclusion Both before and after September 11, 2001, the Department of Justice has considered a range of options in reviewing the case of a suspected alien terrorist. These options range from continuing an ongoing intelligence-gathering operation to criminal prosecution to removal, including both conventional removal under Title II of the INA to removal before the ATRC under Title V. The USA PATRIOT Act expanded the category of aliens who are subject to removal based on involvement with terrorist activity as defined by the immigration law. The Department continues to review cases with the goal of taking the appropriate action to protect the national security. As stated previously, the ATRC is simply one tool in the Government's arsenal for removing alien terrorists.
OAG015-0030
WITHDRAWAL NOTICE RG: 148 Exposition, Anniversary, and Memorial Commissions SERIES: 9/11 Commission, Team 5 NND PROJECT NUMBER:
51630
FOIA CASE NUMBER: 30768
WITHDRAWAL DATE: 09/24/2008
BOX: 00025
FOLDER: 0003
COPIES: 1 PAGES:
TAB: 60
DOC ID: 31198936
3
The item identified below has been withdrawn from this file: FOLDER TITLE: DOS Documents - NIV [5 of 5] DOCUMENT DATE: 05/23/2003
DOCUMENT TYPE: Cable
FROM: TO: SUBJECT:
CT
This document has been withdrawn for the following reason(s): 9/11 Classified Information
WITHDRAWAL NOTICE
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