Review of the United States Marshals Service Judicial Security Process
Report No. I-2004-004
March 2004

Protecting the federal judiciary is one of the eight strategic goals of the Department of Justice (Department),¹ and it is the primary mission of the United States Marshals Service (USMS).² No federal judges have been assassinated since 1989, but two federal judges have been assaulted in the last three years, and the USMS receives almost 700 threats against members of the judiciary each year. Further, in the 10 years since the first World Trade Center bombing trials, the federal judiciary has conducted an increasing number of high-threat trials, such as those involving international and domestic terrorism, international drug trafficking, organized crime, and gang activity.³ Since fiscal year (FY) 2001, Congress has increased funding for judicial security by about 50 percent and authorized the USMS to hire 106 new Court Security Inspectors. However, Congress has expressed concern that "as the program has grown sufficient attention has not been provided to program and budget administration…."⁴

The Office of the Inspector General (OIG) evaluated the USMS's efforts since September 11, 2001, to improve its protection of the federal judiciary. We focused specifically on the USMS's ability to assess threats and determine appropriate measures to protect members of the federal judiciary during high-threat trials and while they are away from the courthouse.

RESULTS IN BRIEF

We found that since September 11, 2001, the USMS has placed greater emphasis on judicial security by hiring 106 court security inspectors and increasing courthouse security. However, the USMS's assessments of threats against members of the federal judiciary are often untimely and of questionable validity. Further, the USMS has limited capability to collect and share intelligence on potential threats to the judiciary from USMS districts, the Federal Bureau of Investigation's (FBI's) Joint Terrorism Task Forces (JTTFs), and other sources. Finally, the USMS lacks adequate standards for determining the appropriate protective measures that should be applied to protect the judiciary against identified potential risks (risk-based standards) during high-threat trials and when they are away from the courthouse.

USMS Threat Assessments are Untimely and of Questionable Validity

Timely threat assessments are essential to alert USMS districts to threats with a higher potential for violence, but the USMS routinely fails to meet its internal standard that requires threats against judges to be assessed within a specific time period.⁵ We found that more than 73 percent of the threat assessments conducted from FY 2000 through FY 2003 took more than the standard time.⁶ Furthermore, the USMS failed to improve the timeliness of its threat assessments despite a 30 percent decrease in the number of reported threats since FY 2000. In fact, the number of assessments that took significantly longer than the standard time to complete more than quadrupled from 24 in FY 2000 to 103 in FY 2003.

In addition to taking weeks or months to complete, the validity of USMS assessments is questionable because the historical threat database used to assess reported threats has not been updated since 1996. The database contains no information on the more than 4,900 threats made since then - including threats related to terrorism cases that have occurred since September 11, 2001.

Further, when allocating resources and determining protective measures in response to threats, the USMS continues to rely on statistics developed from the historical threat database which indicate that only about one out of every ten threats escalated or resulted in violence. Because the information in the historical threat database is outdated, we question the validity of threat assessments or resource allocations based on this data.

USMS Has Limited Capability to Collect and Share Intelligence

We also found that the USMS has limited capability to collect and share intelligence on threats to the federal judiciary among its districts and its representatives on the FBI's JTTFs. The limitations persist because the USMS has neither acted on internal studies that identified the need for the USMS to improve its capability to collect and share intelligence nor updated internal guidance to implement the authority granted by Congress in the Patriot Act.⁷ Specifically:

• The USMS has no central program to collect, assess, and share intelligence on threats to the judiciary. Prior to 1994, the USMS operated a centralized intelligence collection and assessment program in its Threat Analysis Division. In a 1994 reorganization, the USMS Director eliminated the Division and did not reassign its duties. After September 11, 2001, internal USMS studies identified the need for the USMS to establish a centralized program to collect and share intelligence from the districts and the USMS representatives on JTTFs. The studies also recommended that the USMS establish liaisons at the Central Intelligence Agency, the Foreign Terrorist Tracking Task Force, and the Secret Service Protective Intelligence Division, among other intelligence organizations. As of October 2003, the USMS had not developed any centralized intelligence-sharing capability.

• Outdated USMS internal guidance limits intelligence collection. An April 5, 1996, USMS Office of General Counsel (OGC) opinion, based on 1983 Attorney General Guidelines, directed the USMS to limit its collection of intelligence, including information in special databases used to track and assess threats to the judiciary.⁸ The Patriot Act has since provided new authority for law enforcement agencies to collect and share intelligence related to terrorism and other threats, and the Attorney General Guidelines have been revised to reflect this new authority. However, the USMS has not revised its internal guidance to implement the new authority to collect intelligence.

• The USMS does not fully participate in the FBI's JTTFs. Some U.S. Marshals have assigned Deputy Marshals to FBI JTTFs, but the USMS has no service-wide policy to ensure that it is represented on each JTTF. As of October 2003, JTTF membership rosters provided by the FBI showed that the USMS has assigned 50 Deputy Marshals to 29 of the FBI's 56 field office JTTFs. Of the 50 Deputy Marshals, 25 are full-time representatives and 25 are part-time representatives. Further, the USMS's Memorandum of Understanding with the FBI requires that JTTF representatives have Top Secret clearances, but we found that only 33 of the 50 USMS representatives to the JTTFs had Top Secret security clearances. According to the Chairman of the USMS Executive Working Group formed by the Director in September 2001 to examine USMS intelligence capabilities, the wide spread lack of clearances is a barrier to improving intelligence collection and sharing.

• The USMS lacks the secure telecommunication systems required to effectively share intelligence on threats to the judiciary. As of August 20, 2003, only 51 of the 94 USMS districts had secure communications equipment required to transmit classified information.

In the two high-threat trials we reviewed, the USMS's limited capability to collect and share JTTF intelligence affected the USMS's efforts to protect the federal judiciary. In one trial of individuals who were providing financial aid to terrorists, the USMS did not receive classified JTTF intelligence that the district considered critical to trial security operations because the district's part-time representative to the JTTF did not have a Top Secret security clearance. In the other trial, the USMS was not informed of the imminent arrest of six terrorists identified by a JTTF investigation until just before the arrests. The short notice precluded the USMS from taking the extensive security measures required to secure a large number of suspected terrorist prisoners.

USMS Lacks Adequate Standards for Determining Appropriate Protective Measures

We found that the USMS lacks adequate risk-based standards for determining the appropriate measures to protect the judiciary during high-threat trials and to protect threatened judges away from the courthouse (protective services details). Without risk-based standards, the USMS cannot ensure that districts consistently apply similar protective measures in response to similar threats, and that limited resources for protecting the judiciary are used in the most effective manner.

High-threat trials. We found that the USMS's Policy and Procedures Manual (Manual) has not been updated in over a decade and provides limited and outdated guidance on specific protective measures for high-threat trials.⁹ The Manual offers no guidance on providing security for trials of individuals associated with international terrorist groups, or for many other types of trials that present significant risks to the judiciary, such as criminal cases involving espionage, prosecutions of gang violence, and cases with cooperating witnesses. Further, the Manual does not provide guidance on the use of special equipment such as trace explosive detectors, armored cars, body armor, and enhanced prisoner restraints.

Protective services details. We found that the USMS's guidance on individual protective measures is outdated.¹⁰ The guidance does not address the use of equipment that has become more widely available in recent years, such as perimeter cameras, car alarms, home alarms, and cellular phones, and has not been updated to account for threats that are beyond the ability of the USMS alone to mitigate, such as the threat of retaliation by international terrorists. Further, the guidance still directs readers to offices and functions that were eliminated almost ten years ago.

Although specific protective measures must be selected based on the characteristics of each individual case, in the absence of risk-based standards we found that districts did not consistently apply similar protective measures in response to similar threats. For example, one district used the USMS Special Operations Group (SOG) (a specially trained and equipped unit deployed in high-risk law enforcement situations) extensively during a high-threat trial while another did not use the SOG at all for a similar high-threat trial. Likewise, the protective services details provided judges varied significantly in the protective measures implemented. The extent and appropriateness of the protective measures applied in each case could not be evaluated fully because the USMS does not complete after-action reports on the measures taken during high-threat trials or protective services details.

Without adequate risk-based standards, the USMS cannot effectively determine when districts should be provided additional resources to support high-threat trials or protective services details. In FY 2002, the USMS provided additional funding to districts to support 117 high-threat trials.¹¹ However, in response to our national survey, districts estimated that about 20 percent of all trials in 2002 involved a "substantial potential for violence." Given that there were 12,817 trials completed in U.S. District Courts in FY 2002, the number of trials with "substantial" risks could have exceeded 2,400.¹² Without adequate risk-based standards, and without after-action reports to evaluate and improve its protection of the judiciary, the USMS cannot effectively ensure that the most significant risks are addressed and that resources are used appropriately.

Conclusions

The USMS should take immediate steps to improve its ability to assess threats to the federal judiciary. Currently, USMS threat assessments are not timely and no new threat information has been entered into the historical threat database used to assess new threats since 1996. The lack of current threat information in the database undermines the validity of new assessments both for determining appropriate protective measures and for allocating resources.

While the USMS has taken steps since September 11, 2001, to evaluate its capability to collect and share intelligence, as of October 2003 the USMS had not acted on internal studies that documented the need to reestablish an intelligence program to collect, analyze, and disseminate information related to high-threat trials and threats to the federal judiciary.

Finally, the USMS needs risk-based standards for determining the appropriate protective measures that should be applied to protect the judiciary during high-threat trials and when using protective services details. In addition, current risk-based standards are also needed to more effectively identify those high-threat trials and protective services details for which the districts should receive additional resources.

Recommendations

To improve the USMS's capacity to carry out its primary mission of protecting the federal judiciary, we recommend that the USMS take the following actions:

1. Ensure that all threats to the judiciary are assessed within established timeframes.

2. Update the historical threat database or develop a new database to perform comparative assessments.

3. Assign full-time representatives to all 56 FBI field office JTTFs and ensure effective USMS liaison with intelligence agencies (e.g., the U.S. Secret Service's National Threat Assessment Center, the Central Intelligence Agency, and the National Security Agency).

4. Create a centralized capability to identify, collect, analyze, and share intelligence with USMS districts, as well as with the USMS JTTF representatives and other intelligence liaisons.

5. Require that all Chief Deputy Marshals and USMS JTTF representatives have Top Secret clearances, and ensure that each district has secure communication equipment.

6. Revise the 1993 Judicial and Court Security Manual and the 1999 Offsite Security Booklet for Judicial Officers to establish risk-based standards and require after-action reports for high-threat trials and protective details.

1. U.S. Department of Justice, FY 2001-2006 Strategic Plan, November 2001, p. 99.

2. Other major USMS missions include supporting the effective operation of the judicial system through the execution of federal warrants; housing and transporting federal prisoners in custody; and ensuring the security, health, and safety of Government witnesses and their immediate dependents.

3. On February 26, 1993, terrorists attempted to blow up the World Trade Center by detonating a rental truck loaded with explosives in the underground parking garage.

4. Conference Report 108-10, February 13, 2003, p. 735-736.

5. The exact time standards are considered by the USMS to be law enforcement sensitive.

6. To obtain sufficient data for comparison we reviewed data from FY 2000 through FY 2003, two years before and two years after September 11, 2001.

7. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 [Patriot Act], Public Law 107-56, October 25, 2001.

8. The Attorney General's Guidelines on General Crimes, Racketeering Enterprise, and Domestic Security/Terrorism Investigations (March 1983) described authorities and activities related to criminal investigations. The Guidelines only mention the FBI but have been interpreted as applying to all Department criminal investigations.

9. USMS Policy and Procedures Manual, Volume X, Judicial and Court Security, July 1, 1993.

10. The USMS's official policy is Policy Directive 99-07, January 7, 1999, Protective Investigations. The Policy Directive does not address protective services details, but refers to guidance in The U.S. Marshals Service Protective Investigations Program, A Procedural Handbook for Threat Investigators and Supervisors, January 1999.

11. We asked how many requests were rejected, but the USMS Judicial Security Division (JSD) responded that it tracks only those requests that are approved.

12. Administrative Office of the United States Courts (AOUSC) FY 2002 Annual Report, Table C-7, U.S. District Courts - Civil and Criminal Trials Completed.