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Actions taken by Border Agencies in Conjunction with other Law Enforcement Agencies The "Special Interest" Detainees. Beginning on September 11, INS agents, began arresting individuals for immigration violations based on leads in the PENTTBOM case. Eventually, 768 so-called "special interest" aliens were detained and placed on a list maintained by the INS. Attorney General Ashcroft told us that he saw his job in directing this effort as both to find out who committed the attacks and to minimize the risk of a subsequent attack.1 Ashcroft, like most Americans, was surprised by the September 11 attacks, and was determined to prevent a subsequent attack by other terrorists inside the United States. Thus, an essential purpose of the 9/11 detainee program was preventative. Because the effects of being placed on this list turned out to be significant, it is important to explore what is known about how people were rjlacedjDn the list. First, approximately 10 of the 768 people on the list, including Zacharias Moussaoui, were already in custody on September 11, 2001, and were put on the list because of new suspicions about their of connection to terrorism or to the 9/11 attacks.2 Second, some people on this list were already under investigation before September 11, 2001 either for suspicion that they were involved with terrorism or for immigration violations, but were detained on immigration charges after the 9/11 attacks.3 Third, there was not one uniform nationwide policy dictating which people were placed on the list. According to former INS personnel familiar with the process, there were basically two approaches to detentions that led to people being placed on the list in this period, one that was followed in the New York area, and one that was followed in the rest of the country.4 The Justice Department Inspector General described the arrest process in New York as follows: Many of the leads pursued by the JTTF in New York City and elsewhere across the country involved aliens, many from countries with large Arab or Muslim populations. If JTTF teams in New York encountered an illegal alien in the course of pursuing a PENTTBOM lead—whether or not the alien was the subject of the lead—the INS agent on the team examined the alien's immigration and identity documents to determine whether the alien was lawfully in the United States. If an INS agent was not present during the JTTF's initial interview of the individual, the team notified the INS New York District Office, which dispatched an INS agent to determine the alien's

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Ashcroft MFR. Commission Interview with Commission Interview with Commission Interview with

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immigration status. The team would arrest any alien encountered in the course of investigating a JTTF or PENTTBOM lead who was found to be in the country illegally.5 Many, but not all of the aliens arrested in this manner in New York were placed on the list.6 In addition, there were other individuals arrested in New York who were of greater investigative interest to the FBI and to prosecutors in the Southern District of New York, and these people also were placed on the list.7 In the rest of the country, individuals detained and placed on the list generally had been subjected to greater scrutiny before their arrest, and many were arrested pursuant to an arrest warrant obtained from a judge. 8 While we were not able to research the cases of these individuals, with regard to individuals detained in other parts of the United States, a former INS attorney told us that it "certainly was rational that they were on the list and investigated."9 With regard to the New York detainees, who made up approximately half the 768 "special interest" aliens, we were told that, in many instances, it would be difficult to ^y ***f^\ reconstruct the events that led to the detention of these individuals because /^ ct^^ communications links were broken for many days, personnel involved with the arrests ^ V/^

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5 The September 11 Detainees: A review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, April 2003, p. 14. Id. Id. Commission Interview! iApril 16, 2004. 9

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We say this to explain why cannot state definitively the basis for each individual's inclusion on the list. To do so, it would be necessary to investigate each of the 768 cases of the "Special Interest" Aliens, review thoroughly the case file maintained on each person, and in many instances, conduct further investigation such as interviewing the arresting agent. We did not have the resources to conduct such an inquiry. For these reasons, we believe that the origins of many of the 9/11 detentions, like the origins of many government actions taken during this period are lost in the "fog of war," particularly the fog hanging over the New York metropolitan area. Nevertheless, there are several important lessons that can be learned from the handling of these individuals' cases once they were put on the "Special Interest List," some of which reflect poorly on our country in its hour of crisis, but many-of many of which do not. Some key points are: •

It is not disputed that all 768 individuals on the list were detained lawfully on valid immigration charges. Thus, although it has been suggested that individuals were "rounded up" as part of the September 11 detentions, in fact, no one on the list of 768 was wrongly detained in violation of the immigration laws. To the extent the arrest and detention of these predominantly Muslim or Arab individuals suggests to some that they were singled out for prosecution unfairly, this arguably is more a reflection on the general failure of our country to enforce immigration laws than is it an indictment for any alleged failure by our government in the wake of the 9/11 attacks to adhere to the rule of law;

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Great care was taken by INS and FBI personnel to ensure that the civil rights of "Special Interest" aliens were protected. As INS agents were detaining individuals on PENTTBOM leads, INS operations and legal staff in Washington, D.C. were coordinating the immigration cases being brought against these individuals. At the explicit direction of INS Commissioner, a task force of INS lawyers was established whose sole purpose was to determine whether there were valid immigration violations to justify the detention of each person placed on the list. In other words, being put on the list meant the case received substantially more, not less scrutiny to ensure compliance with the rule of law.

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Shortly after September 11, Attorney General Ashcroft established a policy, apparently never reduced to writing, that no "special interest" alien should be allowed to be released—even for deportation-until they had been "cleared" of terrorist connections by the FBI and other agencies. As with the decision to place an individual on the "special interest" list, the effect of this was to substantially increase the scrutiny given these cases by INS attorneys vis-a-vis an average case alleging an immigration violation. For example, bond hearings in immigration cases generally are informal, with lax rules of evidence. However, INS attorneys handling bond review determinations for the 9/11 detainees were ordered by senior INS management not to present any information at a bond hearing before an immigration judge unless they had a copy of the underlying investigative reports for the individual and unless the information in the report had been

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"cleared" by the FBI preferably through inclusion in a sworn declaration from an FBI official. A •

Attorney General John Ashcroft ordered all "special interest" immigration hearings closed to the public and press. This order probably was unnecessary, and contributed to the criticism of Ashcroft's handling of the the detainees cases. Existing rules that allowed for closing cases on a case-by-case basis upon request of the government and in the discretion of the Immigration Judge probably would have sufficed. They had never posed a problem for INS attomeyXs handling national security cases before 9/11.

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INS attorneys charged with prosecuting the immigration violations had difficulty getting information about the detainees, and their terrorist connections, from the FBI. The "clearance" process approved by the Justice Department was involved and time consuming, lasting on average 80 days.

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It is difficult to assess the counterterrorism benefits and costs associated with these detentions. Plainly, individuals were included in the "special interest" aliens with connections to the 9/11 plot. Among the individuals on the list were Zacharias Moussaoui, roommates of the 9/11 hijackers, an individual who helped the hijackers obtain identification documents they may have used to board the aircraft on 9/11, and others who were already under investigation for connections to terrorism. One could engage in a delicate parsing of precisely what each detainee knew and when. But even if we were to carefully comb the files of each detainee, and investigate their detention from origin to conclusion, we could not state how many terrorist plots were prevented by the detentions after 9/11 either because a potential terrorist was detained and held, or because the detentions disruptedsupport networks for a terrorist network. -H^W^,, r The Saudi Flights. Summary Fearing reprisals against Saudi citizens after the 9/11 attacks, the government of Saudi Arabia and Saudi government officials inside the United States began arranging to fly Saudi nationals out of the United States on chartered private planes.11 Other Saudi nationals in the United States began on their own to arrange to depart on chartered planes, some at the urging of their families in Saudi Arabia who feared for their safety. We have not been able to identify any contact between the Saudi government and the FBI or other Administration officials in connection with these flights.12 But we have found that the question whether the flights should be allowed to depart came to the attention of Richard

" Richard Clarke MFR at 2 (stating that the urgency came from the Saudis who feared that Bin Laden relatives would be "hung from the trees"). 13 Attorney General John Ashcroft was asked about the departure of several members of the Saudi family shortly after 9/11 and whether he was aware of the process and played any role in it. "He said he was not sure how the decision was made." Ashcroft MFR at 9.

Clarke who was running an ongoing SVTS out of the White House Situation Room.13 According to Clarke, while he was not sure on what date or with whom he spoke about this issue, he told them that the Saudi evacuation was okay with him if it was okay with the FBI.14 [INSERT ANDY CARD MFR DATA ON FLIGHTS.] National air space was closed on September 11, and did not reopen until September 13, 2001, at 1 p.m.15 Some airports remained closed after that date. No commercial planes, including chartered flights, were permitted to fly into, out of, or within the United States until the airspace reopened. After the airspace reopened, six chartered flights with 142 people, mostly Saudi Arabian nationals, departed from the United States between September 14 and 24.16 They were: • • •

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"The Providence flight" A Northstar Aviation flight with four Saudis, including a Saudi Sheikh, departed from Providence, Rhode Island for Paris, France on September 14, 2001; "The Lexington flight" A Jetlease chartered luxury Boeing 727 with 14 people, including a Saudi Prince, departed from Lexington, Kentucky for England during the evening hours on September 16, 2001; "The First Las Vegas flight" Flight DC-8-73, a chartered Republic of Gabon airplane with 46 people, including several members of the Saudi Royal family, departed from Las Vegas, Nevada for Geneva, Switzerland on September 19, 2001 ;17 "The "Bin Laden flight" Ryan International Flight 441, a Boeing 727 with 26 passengers, most of them relatives of Saudi fugitive Osama Bin Laden, departed the United States from Boston, Massachusetts at 2:05 a.m. on September 20, 2001 (after making stops in Los Angeles, Orlando, Washington (Dulles), and Boston); "The Second Las Vegas flight" Chartered Flight B 727-21, with 18 people,18 members of the same Saudi royal party, departed from Las Vegas, Nevada for Stamstead, England on September 20, 2001 ;19 "The Third Las Vegas flight" American Trans Air flight L-1011 with 34 members of the party of Saudi Prince Turki, departed from Las Vegas, Nevada for Paris, France on September 24, 2001.20

Clarke MFR at 2. Clarke MFRat_2. <^il £•&' 15 John Raidt is the source of this information. 16 RFBI03009447 (Bates 4)("The investigations identified 141 passengers aboard these flights.") 17 RFBI03009447 (Bates 22); RFBI04017298 (Bates l)(flight manifest). Although the FBI states that "a total of 18 Saudi passengers [were] aboard this flight," that does not seem possible since at least two of the names of the passengers - Gualberto Simpao Glore and Gilles Gerard - do not have Arabic names, and their passport numbers are not consistent with Saudi issuance. 18 RFB104017295 (Bates 10). 19 RFB103009447 (Bates 22); RFB104017298 (Bates l)(flight manifest). Although the FBI states that "a total of 18 Saudi passengers [were] aboard this flight," that does not seem possible since at least two of the names of the passengers - Gualberto Simpao Glore and Gilles Gerard — do not have Arabic names, and their passport numbers are not consistent with Saudi issuance. 13

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20 RFBI03009447 (Bates 24). We have found documents regarding other chartered flights that departed after the airspace reopened and that contained either Saudi nationals or nationals of other Arab countries. For example, a flight departing from Boston Logan airport at

One flight, the so-called Bin Ladin flight, departed the United States on September 20 with 26 passengers, most of them relatives of Usama Bin Ladin. We have found no credible evidence that any chartered flights of Saudi Arabian nationals departed the United States before the reopening of national airspace. The Saudi flights were screened by law enforcement officials, primarily the FBI, to ensure that people on these flights did not pose a threat to national security, and that nobody of interest to the FBI with regard to the 9/11 investigation was allowed to leave the country.21 Thirty of the 142 people on these flights were interviewed by the FBI, including 22 of the 26 people (23 passengers and 3 private security guards) on the Bin Ladin flight. Many were asked detailed questions. None of the passengers stated that they had any recent contact with Usama Bin Ladin or knew anything about terrorist activity. The FBI checked a variety of databases for information on the Bin Ladin flight passengers and searched the aircraft. It is unclear whether the TIPOFF terrorist watchlist was checked. At our request, the Terrorist Screening Center has rechecked the names of individuals on the flight manifests of these six Saudi flights against the current TIPOFF watchlist. There are no matches. The FBI has concluded that nobody was allowed to depart on these six flights who the FBI wanted to interview in connection with the 9/11 attacks, or who the FBI later concluded had any involvement in those attacks. To date, we have uncovered no evidence to contradict this conclusion. We have not been able to identify any person in the FBI who "approved" the departure of any of these flights. This is consistent with our investigation of how the flights were handled by the FBI. The FBI, involved in a massive investigation of the 9/11 attacks-directed initially from the FBI's Strategic Information and Operations Center (SIOC)— created a list of individuals of investigative interest to them known as the Security Directive List. The INS, working in tandem with the FBI, established a unit to screen departing passengers to make sure no person of investigative interest to the FBI was allowed to depart. The fact that numerous Saudi nationals were planning to depart from the United States apparently came to the attention of FBI officials in a number of different locations based on leads from a variety of sources, including, for example, people working at hotels where the Saudis were staying and airport officials for airports handling the departing flights. The flights were investigated on a case-by-case basis by a number of federal, state and local law enforcement agencies acting under the direction of the FBI. Greater Detail Four issues have emerged with regard to these Saudi Flights. First, was there any special treatment by government officials that allowed these flights to depart? Second, were 12:30 p.m. on September 18 contained four Saudi nationals; a flight departing from Bedford, Massachusetts on September 23,2001, contained two Saudi nationals, and a flight from Lexington, Kentucky on September 15, 2001, contained UAE nationals. All these flights were investigated by the FBI before takeoff. 21 RFBI040l7295(Batesll).

passengers on these flights interviewed by the FBI or other law enforcement agencies prior to their departure? Third, were the passengers, their luggage, or their aircraft searched before their departure? And fourth, were the passengers' names checked against "watch lists" containing meaningful information about known or suspected terrorists prior to their departure? Special Treatment Our investigation has found no credible evidence that any chartered flights of Saudi Arabian nationals flew departed the United States before the reopening of the national airspace on September 13, 2003. We continue to investigate whether there were any Saudi flights within the United States before the reopening of the national airspace. 2 Thus, it does not appear that the Saudis departing on these flights needed any special permission from the government to depart the United States. Rather, the evidence suggests these flights were addressed by the FBI in the context of their investigation of the terrorist attacks. Prior to the terror attacks, departing charter flight passengers often were not subject to security, immigration, or customs screening unless they intended to depart from a major airport.23 FBI agents escorted two members of the Bin Laden family to the airport on September 19, 2001. They did so because these two individuals - Osama Bin Laden's half-brother who lived in Florida and half-sister who lived in California - told the FBI agents they feared for their safety. FBI agents in Florida used this opportunity to interview Mr. Bin Laden. Interviews Based on the evidence we have reviewed thus far, we believe that four people (everyone) on "the Providence flight," nobody on "the Lexington flight," three people on "the First Las Vegas flight," 22 people on "the Bin Laden flight," one person on "the Second Las There is a report that one chartered flight of Saudis flew from Tampa, Florida to Lexington, Kentucky on September 13,2001 at 4:30 p.m. "Phantom Flight from Florida," Tampa Tribune, October 5,2001. The article relates that a Saudi Prince and his security detail told the Prince's father and his father's security detail (which included several off-duty Lexington police officers) that he had flown to Kentucky from Florida on September 13, 2001 in order to board the September 16, 2001 flight that departed the U.S. from Lexington. However, the FBI found no FAA documentation of any flight from Florida to Lexington prior to September 14,2001. Moreover, according to the FBI, Lexington Airport Police Chief of Police Scott Lanter told the FBI that no planes took off or landed in Lexington until the FAA lifted flight restrictions. Perhaps most significantly, according to the FBI, "one of the members of the private protection detail has confidentially told FBI agents the truth about how the four arrived in Lexington." The "truth" was that the young Prince told his father he flew from Florida rather than admit that he drove there because his father had specifically advised him not to drive for fear the son would be in danger of he did so. RFB104017295 (Bates 10); RFBI03009447 (Bates 4). We are attempting to get the FBI interview reports related to this incident. We continue to investigate whether it is possible the Tampa airport reopened before the Saudi Prince's alleged flight on September 13, 2001, at 4:30 p.m. 23 See 8 CFR Sec. 231.2 (Requiring that air carriers submit "a departure manifest" to an immigration officer "at the port of departure . . . within 48 hours of the departure.") 22

Vegas flight," and nobody on "the Third Las Vegas flight," were interviewed prior to their departure. Thus, out of a total of 142 people on these flights, 30 were interviewed by the FBI. Records indicate that "[additional interviews were conducted by" the Immigration and Naturalization Service and U.S. Customs Service of passengers on "the First Las Vegas Flight." We have not yet determined the nature or substance of these interviews. It is also possible that there were additional interviews by other law enforcement agencies involved in screening these flights. Many agencies participated in screening these flights, including the FBI, the U.S. Secret Service, the INS, the U.S. Customs Service, The Bureau of Alcohol, Tobacco and Firearms, the Defense Criminal Investigative Service, the Los Angeles Police Department, the Massachusetts State Police, the Lexington, Kentucky Police Department, the Rhode Island State Police Department, the Warwick Police Department, and the Boston Police Department. Passengers on 'the Bin Laden flight" were interviewed the most extensively. The FBI spoke with the three passengers who were security guards for the passengers prior to the flight's departure. The FBI interviewed 19 of the remaining 23 passengers. Some passengers were interviewed more than once. The interviews took place in a number of locations, including the passengers' homes, over the telephone, in automobiles, and at the airport. In total, the FBI conducted 22 interviews of the remaining 23 passengers on Ryan Air Flight 441.24 Records of the 22 interviews the FBI conducted of "the Bin Laden flight" passengers amount to 39, single-spaced pages.25 These records show that the "the Bin Laden flight" passengers were asked about a number of topics, including their personal biographical information, which of their relatives lived in the United States and where, what relationship, if any, they had with Osama Bin Laden, when, if ever, they had seen Osama Bin Laden, their knowledge of terrorist groups or activity, whether they had ever traveled to Afghanistan or Pakistan, whether they knew any of the 9-11 hijackers, and whether they had any information about the attacks. None of the passengers stated that they had had any recent contact with Osama Bin Laden or knew anything about terrorist activity. The four "Bin Laden flight" passengers who were not interviewed were: (1) Maria Bayma, possibly the sister of the wife of Khalil Bin Laden, Osama Bin Laden's brother, (2) Sultan Bin Laden, the "17-18" year-old son of Khalil Bin Laden, (3) Reem Hamza Asar, a female Saudi national who embarked in Boston, and (4) an Indonesian maid to one of the Saudi passengers.26 According to the FBI, the first three individuals "were present during interviews" of other people but were not interviewed separately. Searches

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RFBI03009447 (Bates 9). RFB104017299 (Bates 1 - 13, 22 - 47). RFB 103009447 (Bates 18). RFBI03009447(Bates6).

The FBI and Rhode Island State Police searched the luggage of the passengers on "the Providence Flight." The FBI and U.S. Customs Service "inspected" "the Lexington flight" prior to its departure. The FBI and U.S. Customs Service agents "searched" all three of "the Las Vegas flights" before they departed. FBI agents "searched" "the Bin Laden flight" airplane and the passengers' luggage in Los Angeles and Orlando. FBI agents also "searched" the plane before its departure from Boston. Watch Lists The FBI has a searchable database of analyst reports drawn from all cases known as "IIIA."28 In the immediate aftermath of September 11, the FBI created a "watch list" called the Security Directive List, a list of individuals who were wanted for questioning in connection with the September 11 terror attacks. The scope and basis of this list is still under investigation. At the same time, the INS set up a "Prevent Departure Unit," responsible for using this FBI "watch list" to prevent the departure from the U.S. of investigative interest to the FBI.29 At this time, there also existed a State Department terrorist watch list known as TIPOFF, which contained the names and other biographical information on approximately 40,000 known or suspected foreign terrorists. According to FBI records, the FBI and INS checked passengers on "the Providence flight" against FBI and INS databases. It is not clear which databases these were. The FBI checked passengers on "the Lexington flight" against the Security Directive List. The FBI checked passengers on the three "Las Vegas flights" against the "current FBI Watch List and ran for IIIA reports." Based on these checks, the FBI interviewed three people on the first Las Vegas flight, and one on the second one. They found nothing suspicious. The FBI reports that "record checks were conducted" of "the Bin Laden flight" passengers. We have not yet determined what kind of checks those were. At the Commission's request, the Terrorist Screening Center (TSC) on March 29 - 30, 2004, checked the names of individuals on the flight manifests of these six Saudi flights against the current TIPOFF terrorist watch list. The TSC found that there were "no exact matches" between the passengers on these six flights and TIPOFF's list of known or suspected terrorists.30

9-11 Commission Staff Member Michael Jacobson is the source for this description. Testimony of Michael Becraft before the House Committee on Government Reform, Subcommittee on National Security, Veterans Affairs and International Relations, June 11, 2002 (p. 2 - 3). 30 According to Agent n Ithe TSC found one name match, but the TIPOFF record was for an individual born in 1980, and the "Bin Laden flight" passenger was listed on the manifest as born in 1962. The source for this is a telephone conversation between Commission Staff member Tom Eldridge and FBI agent Tim D l&nMarch 30, 2004, We are awaiting the documentation supporting the TSC's work. 28

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