Federal Bureau of Investigation Legal Attaché Program*
Report No. 04-18
Office of the Inspector General
|Chapter 3:||Legat Investigative Activities|
A key function of the FBI’s Legal Attaché offices involves responding to requests for investigative assistance, known as investigative leads, from FBI headquarters and field offices. These requests range from simple tasks such as tracing telephone numbers or obtaining copies of documents to more complex, time-consuming activities such as tracking financial transactions, locating suspected criminals and terrorists, or interviewing individuals in connection with a matter under investigation. Because the Legats lack the jurisdiction to carry out investigations in foreign countries, they rely on their role as an intermediary to obtain cooperation and assistance from their foreign police liaisons, which in turn conduct the inquiries on behalf of the FBI.
In recent years, the number of leads handled by Legats has grown significantly primarily due to an increase in international crimes and terrorism but also because the number of Legat offices has grown. Overall, Legats appear to have been able to cope with the increasing workload. Legat Ottawa, however, has a significant volume of pending leads—a longstanding problem that the FBI has not addressed adequately. In addition, we found that controls over temporary duty travel by FBI personnel to Canada needs strengthening. Specifically, the FBI could not provide us with documentation showing that required Ambassador approval, known as a country clearance, had been obtained for 135 of the 422 personnel who traveled to Canada during a 19-month period between October 2001 and April 2003.
Legats’ Process for Responding to Investigative Leads
When a federal crime occurs, the FBI office in the vicinity of the crime must decide whether to open an investigation.18 If it decides to do so, the office is known as the Office of Origin and the investigation is referred to as a case. When the Office of Origin needs assistance on a case from another field office, FBI headquarters, or a Legal Attaché office, it prepares a request, which is known as a lead. At the time we began our fieldwork, there were two categories of leads: administrative, which involve non-investigative tasks and investigative, which are case-related tasks; in this review we focused on investigative leads.19 Legats receive leads when an investigation by the Office of Origin identifies issues that need to be pursued in a country in the Legat’s assigned territory. Leads are a significant component of the Legal Attaché office’s workload, and prompt resolution of the leads can be critical to the FBI’s investigations in the United States.
When an Office of Origin initiates an investigation, the case is entered into the Automated Case Support (ACS) system, the FBI’s centralized records and case management system. The case is assigned an identification number and an investigative program. An investigative program, such as Counterterrorism or Violent Crimes Major Offenders (VCMO) program, provides oversight for the investigation of particular groupings of classifications. For example, when a “272C” case is opened (money laundering), it is assigned to the VCMO program.
When an Office of Origin determines that leads need to be pursued by other offices, such as Legats, it prepares an electronic communication (EC) within ACS.20 The request typically includes background information on the investigation, priority level,21 and instructions on what action is required from the receiving office. For example, the request may ask the Legat to identify the subscriber of a telephone number, identify and track financial transactions, locate suspects, or conduct interviews. The amount of work involved in responding to these requests can vary widely depending on the nature of the request.
An Office Assistant in each Legat office checks ACS to determine if any new leads have been assigned to their office. The applicable ECs are printed and assigned to investigative personnel. At the Legal Attaché offices we reviewed, the leads were usually assigned to individual agents by investigative program, such as Counterterrorism or Violent Crimes Major Offenders. Legat staff at the four Legal Attachés we reviewed confirmed that their offices’ top priority was to address leads pertaining to counterterrorism matters and, thus, counterterrorism leads are typically worked before others.
Investigative personnel review the action requested and determine which foreign law enforcement or intelligence agencies can provide the needed assistance. They then prepare a request to the law enforcement agency or agencies and either hand deliver, facsimile, or mail the request. The Legat personnel cannot undertake these investigations on their own because they do not have law enforcement jurisdiction in foreign countries. Thus, they rely on their law enforcement contacts in the foreign country to obtain an answer to the lead. Legat personnel keep track of their assigned leads and follow up when necessary. Once an answer is received in whole or in part, the Legat staff analyzes the information and sends a response to the Office of Origin.
Legats Have Coped With Sizeable Rise in Leads
As Exhibit 3-1 shows, investigative leads handled by Legal Attaché offices have increased significantly. In the 5-year period between FYs 1998 and 2002, the number of leads rose from 20,267 to 53,105, an increase of about 162 percent. The increase in investigative leads assigned to Legats is largely attributable to the surge in international crime and terrorism, especially leads related to the terrorist attacks on September 11, 2001. Another contributing factor is that the FBI opened 14 new Legal Attaché offices and 2 sub-offices during this period. As these offices develop relationships with their foreign law enforcement counterparts, additional leads are generated. As Exhibit 3-1 also shows, despite the sharp increase in leads, the number of pending leads has remained relatively stable, increasing from 6,489 in FY 1998 to 7,683 in FY 2002, or about 18 percent. Compared another way, the data shows that pending leads as a percent of total leads have decreased from 32 to 14 percent during the 5-year period as Exhibit 3-2 illustrates.
Exhibit 3-3 shows investigative lead data for the four Legal Attaché offices we reviewed. Similar to the data for the Legat offices as a whole, these four offices have also experienced significant increases in the number of leads received, completed, and pending from FYs 1998 to 2002.
Review of Pending Leads at Four Offices
We judgmentally selected and reviewed a sample of open investigative leads at Legat Ottawa, the first location we reviewed, because the volume of pending leads was significant in that office and because we were told that the files for closed leads were not readily available due to space limitations within the Embassy. To be consistent, we also reviewed judgmentally selected samples of pending leads at the other three Legats. Consequently, because our samples of pending leads were judgmentally selected and because we did not review closed leads, our results are not necessarily representative of how the offices responded to their leads overall.
As Exhibit 3-4 shows, we reviewed 114 leads that were pending at the time of our review of these offices. We identified minor discrepancies at all four of the offices involving 28 leads, which remained open in ACS, yet all the work had been completed. The Legal Attachés acknowledged that these leads should have been closed. In addition, we found that two offices, Ottawa and Pretoria, were sometimes slow to either initiate work on a lead, conduct follow up, or respond to the Office of Origin. The Legal Attachés in these two offices acknowledged the delays but explained that they occurred because the offices concentrated on higher priority matters.
The following are examples of some of the delays we identified during our review of Pretoria and Ottawa’s open investigative lead files.
Backlog of Pending Leads in Ottawa
According to FBI officials, Legat Ottawa has a heavy workload and receives a large volume of leads relative to most other offices because its proximity to the United States results in its playing a substantial role in supporting many FBI investigative matters. This heavy workload has resulted in a backlog of pending leads. As Exhibit 3-5 shows, as of June 30, 2003, Legat Ottawa had 1,134 leads pending, the highest number of pending leads of any Legal Attaché office.22 In comparison, the other Legat offices averaged 104 pending investigative leads on the same date. According to the Ottawa Legat, about one-half of the backlog consisted primarily of white-collar criminal matters such as telemarketing fraud, child pornography, organized crime, and Internet scams.
The Legat also told us that several factors account for the backlog. Many pending investigative matters could not be fully addressed between 1999 and 2001 because a majority of the personnel assigned to the Ottawa Legal Attaché office were working full-time on the BORDERBOM case. Soon thereafter the September 11 terrorist attacks occurred, which resulted in a huge upsurge in investigative leads—more than 7,000—that had to be pursued before any others. Because of the heavy workload associated with the BORDERBOM and PENTTBOM investigations, the office had a difficult time keeping up with other lower priority, but still important leads.
In addition, the Legal Attaché told us that Canadian authorities were sometimes slow to respond to the FBI’s requests partly because of the significant volume of requests that were submitted to them. Officials from a component of the CSIS, one of Legat Ottawa’s primary liaisons, for example, told us that the number of requests they received from the Legat office after September 11 increased by 300 percent, and each request had to be researched. They added that the increased volume of these requests presented a major challenge for their agency.
We believe another contributing factor to the office’s backlog could be the process it used for requesting and obtaining information from Canadian law enforcement and intelligence authorities. The process was paper intensive and time consuming, especially given the volume of leads. Ottawa staff advised that they spent considerable time typing requests for assistance and often a lead required requests to both of the Legat’s primary liaisons.
CSIS officials told us that the hard-copy correspondence they received from the Legat slowed down their ability to respond because CSIS was highly automated and operated in a virtually paperless environment. Consequently, preparing hard-copy responses to the Legat’s requests was time consuming. [CLASSIFIED INFORMATION REDACTED].
The Legat acknowledged the inefficiency of the office’s process for requesting information from the foreign liaisons and told us in October 2002 that plans were underway to establish an electronic link with CSIS and the RCMP. During a follow up visit to Ottawa in April 2003, the Legat told us an electronic link had been set up with CSIS that now allows the office to transmit its requests and receive responses electronically and we were provided with a demonstration of the process. The Legat added that he hoped to establish a similar electronic link with the RCMP in the near future. As of October 2003, this had not yet occurred.
Ottawa Backlog Previously Reported by FBI Inspection Division
The last two reviews conducted of the Ottawa Legal Attaché Office by the FBI’s Inspection Division reported that the office was having difficulty addressing its heavy workload. For example, the July 1998 inspection noted that the number of leads assigned to Legat Ottawa had increased by 122 percent since a previous inspection in 1993, yet the staffing level had remained the same. The report added that because of the excessive workload in the office, investigative personnel were unable to properly follow up on the large number of outstanding leads. The report recommended that Ottawa’s staffing levels be reviewed. In response, FBI headquarters officials said they would dispatch TDY personnel to Ottawa until the workload was brought to a manageable level and would monitor the office’s workload and provide continued TDY assistance until a permanent solution was found.
A subsequent inspection of the Ottawa Legat in July 2001 indicated that the backlog of pending leads persisted and concluded that the office’s staffing level was inadequate to address the workload. The report noted that during the inspection period 31 special agents and 15 support employees were detailed to the Legat to help with the workload. The report went on to say, however, that this short-term strategy of assigning TDY personnel on a continuing basis to address the huge backlog of leads was not cost effective and did not lend itself to the assignment of long-term complex matters to TDY personnel. The inspection report recommended that the FBI consider assigning permanent rather than temporary staff to reduce the backlog.
Actions Taken by FBI Have Yet to Fully Address the Backlog
In response to the Inspection reports, the FBI has continued to send staff to Legat Ottawa on a temporary basis. For example, since the last Inspection in July 2001 through the end of fiscal year 2002, a total of 47 additional special agents and support personnel were assigned to help reduce the office’s workload. Temporary staff continued to be sent in FY 2003, including two agents from the Criminal Division specifically tasked to work on the unaddressed white-collar crime leads.
The FBI’s heavy reliance on short-term temporary duty staff has had limited success, however, in reducing the backlog of pending leads in Ottawa and, in our opinion, the use of TDY staff does not appear to be an efficient or effective solution. According to the Legat, most of the temporary personnel are assigned for 30 to 60 days, which is disruptive to the operation because it is not enough time to master the process for requesting assistance from Canadian law enforcement authorities or work on complex matters. For example, the Legat said that TDY agents often initiate requests with Canadian law enforcement authorities but return stateside before a response is received, thus necessitating someone else, usually another TDY agent, to become familiar with the matter and to prepare the response to the Office of Origin. The use of TDY staff is also disruptive, the Legat said, because each new temporary employee needs training and closer supervision than permanently assigned staff.
In 2001, the FBI opened a sub-office in Vancouver staffed by one ALAT and one Office Assistant. A second sub-office to be located in Toronto, and staffed by two ALATs and one Office Assistant, was approved in 2003. OIO officials told us in November 2003, however, that the sub-office was unlikely to be opened due to difficulty locating suitable space in a controlled access area. The establishment of the sub-office in Vancouver and the one in Toronto, if opened, could alleviate some of the workload in Ottawa but these sub-offices will likely create additional work as new liaisons are established.
At the end of FY 2001, the Ottawa Legat had four agents and four office assistants. During FY 2002, an additional ALAT position was reallocated to Ottawa from the Mexico City Legal Attaché Office and the FBI plans to fill an additional ALAT position during FY 2004 for a total of two additional agents. Therefore, in FY 2004, Legat Ottawa will be staffed with 10 permanent positions.
Controls Over Temporary Duty Travel Need Improvement
Department of State rules require that all U.S. government employees obtain approval from the U.S. Ambassador before traveling to a foreign country to conduct official business. This approval is known as a country clearance.23 By Memorandum of Understanding (MOU) signed by the Department of Justice and the Department of State, the FBI has agreed to keep the U.S. Ambassadors informed beforehand of all FBI employees and their activities in the Ambassadors’ territories. At the same time, it is also critical for the Legal Attachés to be aware of all FBI personnel who are traveling on official business in their assigned countries or regions.
Requests for overseas travel must be approved by the Special Agent in Charge of the appropriate field office, the Assistant Director in Charge of the Field Division, the Assistant Director of the corresponding headquarters division, and the Legal Attaché who obtains the country clearance from the U.S. Ambassador of the destination country. Requests vary depending on the circumstances and the country to be visited, but at a minimum are expected to include such things as the name of the traveler(s), purpose and nature of the trip, name of country to be visited, identity of persons or entities to be contacted, proposed itinerary, and estimated travel costs. Requests and approvals of country clearances are normally processed electronically within the ACS system. We were told, however, that sometimes clearances are processed outside the ACS system and that no mechanism is in place to ensure that the required clearances are obtained.
On at least two occasions since 2000 the FBI has issued memoranda to its employees emphasizing the importance of obtaining country clearances. In a July 2000 memorandum, OIO reported instances where FBI personnel had traveled to foreign countries without obtaining the required country clearances. Without identifying the countries involved, the July 2000 memorandum stated that some FBI personnel traveled repeatedly without obtaining country clearances, and as a result a U.S. Ambassador denied the FBI permission to travel to or through the foreign country until discussions were held at the highest levels of the FBI and the Department of State. In other instances, the memorandum noted that an Ambassador denied country clearances when the requests for country clearances were presented late. The memorandum emphasized that the failure to obtain country clearances was more than a breach of etiquette; it violated the Departments of Justice and State Memorandum of Understanding requiring the FBI to keep U.S. Ambassadors informed of all activities and operations of FBI employees within the Ambassadors’ territories.
In March 2002, the FBI Director issued a memorandum to all Special Agents in Charge noting that Legats were continuing to encounter inappropriate actions on the part of domestic agents who apparently were unaware of international rules. The Director pointed out that FBI employees must contact the appropriate Legat and request and obtain country clearance before traveling to any country as a representative of the Executive Branch of the U.S. government.
The Ottawa Legal Attaché told us that he believed that some FBI personnel were traveling into Canada on official business without his knowledge and, therefore, without the required country clearances. Because this appeared to be a continuing problem and because we noted that country clearances were not an area covered during FBI inspections of Legat offices, we requested that the Travel Advance and Payment Unit in the FBI’s Finance Division identify all personnel who had traveled on official business to Canada between October 1, 2001, and April 17, 2003. After adjusting the list for travel that either had not occurred, was listed in error, or involved duplicate entries, we determined that 422 people on the list had traveled to Canada during this period.24
We compared the Travel Unit’s list to the Legat’s list of personnel who had received country clearances. According to the Legat’s records, only 173 of these FBI employees had been granted country clearance. However, the Legat acknowledged that his list was not necessarily complete and said that some country clearances could have been overlooked and not added to the list, especially soon after September 11. At FBI headquarters, we asked OIO staff to research the remaining 249 names for evidence of country clearance. Through research of the ACS system, OIO found approved country clearances for 75 personnel who were not on the Legat’s list and claimed that 39 others had attended a conference in Toronto and had received a blanket country clearance. For the remaining 135 personnel, OIO was unable to locate a record of either a country clearance request or approval in ACS. Subsequent to our exit conference, OIO officials directly contacted some of these travelers and were told by some that they had copies of their country clearances. While the number of travelers without country clearances may decrease somewhat as a result, the fact that OIO had to contact individuals, rather than obtaining this information from a centralized source, in our opinion, demonstrates an absence of internal control over these records.
We recognize that our review period started on October 1, 2001, shortly after the September 11 terrorist attacks. Given the national emergency and the need for an immediate response by the FBI, we can understand why many FBI personnel might have traveled to Canada without obtaining country clearances beforehand. Indeed, according to the information provided by the Travel Unit, 18 of the 135 FBI employees lacking country clearance traveled to Canada between October and December 2001 and 94 traveled during 2002. Nevertheless, our analysis also indicates that some FBI personnel have continued to travel to Canada long after the September 11 attacks without a country clearance. Of the 135 people lacking country clearance, 23 traveled between January 2003 and April 2003. In our opinion, the continued lack of compliance with FBI procedures and Department of Justice and State agreements is not defensible.
We also found discrepancies between the Travel Advance and Payment Unit’s list of 183 FBI employees who had traveled to Germany between October 2001 and June 2003 and Legat Berlin’s records of country clearances; 58 of the travelers had not obtained a country clearance according to the Legat’s records. We asked OIO staff to research the ACS system for evidence of country clearances, and based on the documentation or the explanation subsequently provided we concluded that for 9 travelers the FBI had no record of a country clearance.
Legal Attaché offices generally appear to have been able to cope with the sharp increase in investigative leads in the last five years. But backlogs of investigative leads have been a longstanding problem at the Ottawa Legat and efforts to reduce the backlog with temporary personnel have not been effective. The FBI’s efforts to enhance the permanent staffing of the Ottawa Legat appears to be a step in the right direction although we are not sure that the addition of two agents will be sufficient to significantly reduce the office’s backlog. Nevertheless, this approach could help alleviate the problems associated with the use of TDY personnel. The establishment of the sub-offices in Vancouver and Toronto (if opened) could also alleviate some of the workload in Ottawa but these sub-offices will likely create additional work as new liaisons are established.
It is important for U.S. Ambassadors to be aware of all federal employees who are traveling in a foreign country on official business. The Ambassadors rely on FBI Legal Attachés to keep them informed through the country clearance process of all FBI employees, both permanent and temporary, who are assigned to the Legat’s territory. Legal Attachés can do this only if FBI personnel follow procedures for requesting country clearances before traveling abroad and if accurate and complete records of country clearances are maintained.
Based on the results of our testing in Canada and to a lesser extent in Germany, it appears that some FBI personnel traveling on official business have not obtained appropriate country clearances. Previous OIO memoranda apparently have not been sufficient to eliminate this problem. In addition, both Legat Ottawa and Berlin’s records of country clearances were incomplete and further research by OIO personnel did not provide documentation for all of the remaining discrepancies. Consequently, we believe the FBI needs to take stronger measures to ensure that country clearances are obtained as required, and develop a system that ensures that complete records of country clearances are maintained. In addition, the FBI’s Inspection Division should include compliance with country clearance requirements as part of its reviews of FBI offices.
We recommend that the FBI:
* BECAUSE THIS REPORT CONTAINED INFORMATION CLASSIFIED AS "SECRET" BY THE FEDERAL BUREAU OF INVESTIGATION, WE REDACTED (WHITED OUT) THAT INFORMATION FROM THE VERSION OF THE REPORT THAT IS BEING PUBLICLY RELEASED. WHERE SUCH INFORMATION WAS REDACTED IS NOTED IN THE REPORT.