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
Office of the Inspector General
THE CLEARANCE PROCESS
This chapter examines the Department's process for clearing the September 11 aliens who were detained because of possible links to terrorism. Specifically, we examine how problems with the process significantly lengthened the time detainees spent in custody. First, we discuss the origins of the Department's directive that all September 11 detainees be held until the FBI cleared them of any connection to terrorism. Next, we examine the series of Operational Orders issued by INS Headquarters to its field offices in the weeks immediately following the September 11 attacks that sought to address the growing number of detainees arrested in connection with the PENTTBOM investigation.
We then turn to the process developed by the Department to clear the detainees of any connection to terrorism. In particular, we examine the activities of the squad created by the FBI New York Field Office that conducted most of the clearance investigations of September 11 detainees. We then describe the problems caused when the INS New York District failed to inform Headquarters of the arrest of hundreds of aliens "of interest," and the discovery of a separate list of September 11 detainees kept by the FBI New York Field Office in the weeks immediately following the terrorist attacks, a list apparently unknown to FBI and INS officials in Washington, D.C. who were attempting to coordinate all September 11 detainee cases. We also discuss the effects of detainee name checks in databases maintained by the Central Intelligence Agency (CIA). We end by examining the FBI's development of a "watch list" of potential terrorist suspects and its process for adding and removing names from that list.
I. "HOLD UNTIL CLEARED" POLICY
Officials from the FBI and the INS told the OIG they clearly understood from the earliest days after the terrorist attacks that the Department wanted September 11 detainees held without bond until the FBI cleared them of any connections to terrorism. This "hold until cleared" policy was not memorialized in writing, and our review could not determine the exact origins of the policy. However, this policy was clearly communicated to INS and FBI officials in the field, who understood and applied the policy.
We found that the directive was communicated to the INS and the FBI by a number of Department officials, including Stuart Levey, the Associate Deputy Attorney General responsible for oversight of immigration issues. Michael Pearson, the INS Executive Associate Commissioner for Field Operations, said that Levey called a senior INS official the week after the September 11 attacks and directed that no INS detainees should be released without being cleared by the FBI. Pearson said he also received instructions from INS Commissioner James Ziglar that none of the detainees should be released by the INS until they had been cleared by the FBI of any connections to terrorism. Pearson told the OIG that he passed these instructions along to employees at INS Headquarters's units assigned to handle September 11 detainee cases.
Similarly in the FBI, our interviews and review of documents confirm that FBI officials understood and applied the "hold until cleared" policy. For example, an October 26, 2001, electronic communication (EC) (similar to an e-mail) from an FBI agent in the SIOC to FBI field offices stated that, "Pursuant to a directive from the Department of Justice, the INS will only remove individuals from [the special interest] list after the INS has received a letter from FBIHQ [FBI Headquarters] stating that the FBI has no investigative interest in the detainee."
In addition, an attorney with the FBI's Office of General Counsel who worked on the SIOC Working Group told the OIG that it was understood that the INS was holding September 11 detainees because the Deputy Attorney General's Office and the Criminal Division wanted them held. She said the Deputy Attorney General's Office took a "very aggressive stand" on this matter, and the Department's policy was clear even though it was not written.
Levey told the OIG that the idea of detaining September 11 detainees until cleared by the FBI was "not up for debate." He said he was not sure where the policy originated, but thought the policy came from "at least" the Attorney General.
A Senior Counsel in the Deputy Attorney General's Office who worked closely with Levey on immigration matters ("Senior Counsel to the DAG") stated in her response to the draft of this report that those involved in the discussion of the process, including attorneys from the INS, OIL, and the Criminal Division (including TVCS), were aware that the strategy had risks, and clearly anticipated the filing of habeas corpus petitions because of the position the Department planned to take that any illegal alien encountered pursuant to a PENTTBOM lead should be detained until cleared by the FBI. She noted that this was "unchartered territory." On September 27, 2001, the Senior Counsel sent an e-mail to David Ayers, Chief of Staff to the Attorney General, on September 27, 2001, that discussed this "hold until cleared" policy. The e-mail described the "strategy for maintaining individuals in custody." The document attached to the e-mail, entitled "Maintaining Custody of Terrorism Suspects," begins with a "Potential AG Explanation" that states:
The Department of Justice (Department) is utilizing several tools to ensure that we maintain in custody all individuals suspected of being involved in the September 11 attacks without violating the rights of any person. If a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant. Many people believed to be involved in the attacks, however, are not present legally and they may be detained, at least temporarily, on immigration charges. As of September 27, 2001, the Immigration and Naturalization Service (INS) was detaining without bond 125 aliens related to this investigation on immigration charges.
The document then describes plans for handling bond hearings and coordination efforts among the FBI, INS, and Criminal Division to ensure that September 11 detainees would remain in custody. Levey told us this document was drafted to enable the Attorney General to provide an explanation as to how, within the bounds of the law, the Department could hold and not release aliens who were suspected of terrorism.
Other senior Department officials confirmed that the directive to hold the September 11 detainees without bond stemmed from discussions at the highest levels of the Department. Assistant Attorney General Michael Chertoff told the OIG that in the early days after the terrorist attacks the issue was discussed among the Attorney General, Deputy Attorney General, and FBI Director that detention should be sought of a charged person "if there is a link to the hijackers and we are not able to assure that the person is not a threat and there is a legal violation." Alice Fisher, a Deputy Assistant Attorney General in the Criminal Division and a participant in the SIOC Working Group, told the OIG that Chertoff told her that "we have to hold these people until we find out what is going on" and that, in some cases, they could use immigration charges to keep the detainees in custody.
David Laufman, Chief of Staff to the Deputy Attorney General, told the OIG that he recalled a meeting which INS representatives attended soon after the terrorist attacks that included a discussion of whether potential immigration violations could be "leveraged" against September 11 detainees when there was insufficient information for criminal cases. He added that it was recognized that, "if we turn one person loose we shouldn't have, there could be catastrophic consequences." He said he recalls, however, asking Levey to take whatever steps were appropriate to expedite clearance by the FBI and the CIA.
Daniel Levin, Counselor to the Attorney General, told the OIG that he could not say for certain when the clearance policy was developed or at what level. He described a "continuous meeting" for the first few months after the terrorist attacks involving the Attorney General, Deputy Attorney General, FBI Director, and Chertoff, and said he was sure that the issue of holding aliens until they were cleared was discussed.
The Deputy Attorney General told the OIG that he remembers the "decision to hold without bond" being discussed, and that he was in favor of requiring the clearance process "within the bounds of the law." He explained that the threat after September 11 was a different threat that required a different approach. He said that investigating and prosecuting could not be the focus, as it had been before the terrorist attacks, and the Department needed to aggressively protect public safety, within the bounds of the law, by disrupting and preventing further incidents.
FBI Director Mueller stated that he did not recall being involved in any discussions about the creation of the "hold until cleared" policy, although he learned about the policy later.
When asked about a "hold until cleared" policy, the Attorney General told the OIG that the Department would want to know whom the detainees were if it was getting ready to remove them. He noted the inherent difficulty involved in conducting a "clearance" process, in that clearing someone is akin to "proving a negative." He also noted that the Department does not assert that it could hold anyone "forever" without regard to a predicate offense. However, the Attorney General said he had no reluctance to do those things legally permissible to detain someone who had violated the law.
From the first days after the terrorist attacks, the INS adopted the term "of interest" to identify aliens arrested on immigration violations in connection with the September 11 investigation who needed to be cleared by the FBI of any connections to terrorism before they could be released or removed from the United States. Detainees who were not "of interest" to the FBI's terrorism investigation did not have to be cleared by the FBI and could be processed according to normal INS procedures. The FBI was responsible for determining whether an alien arrested in connection with a PENTTBOM lead on immigration charges should be further investigated. If it found further investigation warranted, then the alien was "of interest" and the FBI notified the INS of that determination. However, there were many cases where the FBI told the INS that it could not determine at the outset whether it had an interest in the alien. In cases of affirmative FBI interest or a statement that interest could not be determined, the INS treated the alien as "of interest."
Problems quickly arose upon implementation of the "hold until cleared" policy for aliens arrested on PENTTBOM leads, because the Department and the FBI did not develop clear criteria for determining who was, in fact, "of interest" to the FBI's terrorism investigation. From our interviews, we determined that, for the most part, aliens were deemed "of interest" based on the type of lead the law enforcement officers were pursuing when they encountered the aliens, rather than any evidence that they were terrorists. In the New York City area, for example, anyone picked up on a PENTTBOM lead was deemed "of interest" for purposes of the "hold until cleared" policy, regardless of the strength of the evidence or the origin of the lead. A PENTTBOM lead was considered any lead that was in any way connected to the World Trade Center or Pentagon investigation, or a lead that raised the specter of "suspicious activity" by an alien who might possibly be a terrorist. However, there need not be any evidence of connection to the terrorists or to the World Trade Center or Pentagon bombings for a lead to be considered a PENTTBOM lead. Any illegal alien encountered by New York City law enforcement officers following up a PENTTBOM lead - whether or not the alien turned out to have a connection to the September 11 attacks or any other terrorist activity - was deemed to be a September 11 detainee.
In a January 2002 court proceeding, the Department defined the term "September 11 detainees" as "individuals who were originally questioned because there were indications that they might have connections with, or possess information pertaining to, terrorist activity against the United States including particularly the September 11 attacks and/or the individuals and organizations who perpetrated them."36
Many of the persons arrested as part of the PENTTBOM investigation were aliens unlawfully present in the United States either because they entered this country illegally or because they entered legally but remained after their authorization to do so had expired. It is unlikely that most if not all of the individuals arrested would have been pursued by law enforcement authorities for these immigration violations but for the PENTTBOM investigation.37 Some appear to have been arrested more by virtue of chance encounters or tenuous connections to a PENTTBOM lead rather than by any genuine indications of a possible connection with or possession of information about terrorist activity.
For example, on September 15, 2001, New York City police stopped a group of three Middle Eastern men in Manhattan on a traffic violation. The men had the plans to a public school in their car. The next day, their employer confirmed that the men were working on construction at the school and that it was appropriate for them to have the plans. Nonetheless, they were arrested and remained detained as September 11 detainees. Another alien was arrested on September 22, 2001, because the phone company mistakenly put his phone calls home to ŻŻŻŻŻŻŻŻ on the bill of a New York ŻŻŻŻŻŻŻŻ office and the ŻŻŻŻŻŻŻŻ office called to report the "suspicious" bill. The alien was arrested, detained on immigration charges, and considered a September 11 detainee. He was not cleared until January 9, 2002. Another Middle Eastern alien was arrested because he went to a car dealership on September Ż, 2001, and was anxious to purchase a car right away. He put down a ŻŻŻŻ deposit on a car but did not return on September ŻŻ, 2001, for the car as he agreed he would. He was arrested on September 29, 2001 and was not cleared until April 29, 2002. Another alien was arrested because a person called the FBI a few days after the terrorist attacks to say that six to ten weeks prior, the ŻŻŻŻŻŻ ŻŻ Ż ŻŻŻ she hired through Ż ŻŻŻ ŻŻŻŻŻŻŻ, who was an ŻŻŻŻŻŻŻŻ male, told her that he was a licensed pilot and was saving to go to flight school in the U.S. to learn to fly commercial jets. He was arrested on September 24, 2001, and not cleared until February 12, 2002.38
In the days immediately following the September 11 attacks, before the clearance process was centralized in Washington, D.C., the INS could obtain an indication of "no interest" from an FBI field office and proceed to process the alien as a "regular" immigration case. In mid-September 2001, however, the Department instructed the INS that before it could treat a September 11 detainee as a "normal" immigration case, the INS needed to obtain a clearance letter from Michael Rolince, Chief of the FBI's International Terrorism Operations Section (ITOS) in its Counterterrorism Division.39 According to several witnesses with whom we spoke, the FBI and the Department believed that the PENTTBOM investigation should be viewed as a "mosaic" that contained countless individual pieces of information and evidence, and field offices would not be in a position to determine if any single item was of significance to this mosaic. Therefore, it was believed that FBI Headquarters would have a broader perspective on the PENTTBOM investigation and would be in a better position to make an assessment of whether an individual alien detained in connection with a PENTTBOM lead was "of interest" to the investigation. However, as we describe below, this centralized clearance process was slow and insufficiently staffed, resulting in many detainees being held for long periods of time while no clearance investigations were being conducted.
II. INS OPERATIONAL ORDERS
By September 17, 2001, INS agents working with the FBI on PENTTBOM leads had detained approximately 69 aliens, and 40 bond hearings were scheduled for the following week. Michael Rozos, Chief of the INS's Long Term Review Branch, told the OIG that, at the time, staff at INS Headquarters began to believe that the PENTTBOM investigation could involve the largest number of INS detainees since the Mariel boatlift in 1980.40
In response to the increasing number of aliens being detained as a result of the PENTTBOM investigation, officials at INS Headquarters developed a series of procedures to ensure that the detainees' cases were handled uniformly. INS Headquarters officials told the OIG they also wanted to ensure that they had complete information on each September 11 detainee, because senior Department officials were requesting regular updates on the status of the cases. Consequently, Pearson, the INS Executive Associate Commissioner for Field Operations, disseminated 11 Operational Orders to INS field offices regarding the handling of September 11 detainees during a 12-day period beginning on September 15, 2001.
These Operational Orders varied the normal procedures for handling INS detainees. Routine immigration cases are usually handled by INS district offices and normally do not come to the attention of INS Headquarters officials. However, even before September 11 the National Security Unit (NSU) in INS Headquarters handled immigration cases involving terrorism and war crimes. Prior to September 11, the NSU consisted of three INS agents stationed at INS Headquarters and three agents working at the FBI's ITOS at FBI Headquarters. Among other duties, the NSU coordinated the INS's participation in the New York JTTF.
The Operational Orders created a different track for aliens detained in connection with the PENTTBOM investigation. After the September 11 attacks, Pearson designated the NSU as the INS's intake unit for all immigration detainees designated as "special interest" cases. In the weeks after the attacks, the NSU received information, primarily by facsimile, from INS field offices across the country that had detained aliens in connection with the PENTTBOM investigation. Daniel Cadman, the head of the NSU, told the OIG that the NSU consulted with the FBI to determine whether detainees were "of interest." If the FBI notified the INS that the detainee was "of interest," or if the FBI could not state whether or not it had interest, the INS labeled the detainee as a "special interest" case and forwarded the appropriate documentation to its Custody Review Unit (CRU). This unit, created after September 11, 2001, was the unit at INS Headquarters responsible for managing the September 11 detainees' immigration cases.
Pearson's Operational Orders described these INS procedures. His first order required that "information relating to investigating events or actions taken in [September 11] cases should be relayed immediately - repeat, immediately - to Headquarters NSU, with concurrent notification to the appropriate regional office." Pearson told the OIG that he did not want INS field offices handling any September 11 cases without INS Headquarters's full involvement and approval. A second order, sent later that same day, set forth the specific documents field offices were required to send to the NSU for each case.
Pearson's third order, issued September 16, 2001, directed INS field offices to obtain approval from INS Headquarters before issuing any charging documents for September 11 detainees. In addition, the order instructed INS agents working with the FBI on the terrorism investigation to "exercise sound judgment" in deciding whether to arrest illegal aliens they encountered and generally to do so only if the FBI had "an interest" in the aliens.
A seventh operational order from Pearson on September 18, 2001, stated that the FBI had issued an EC to FBI field offices that included the following language:
As of early this morning, INS has sixty-one suspect foreign nationals in their custody for administrative violations of the Immigration and Nationality Act. In order to ensure continued custody of these individuals until an informed decision has been made regarding their potential as criminal suspects/material witnesses, it is essential that all field offices immediately make contact with their respective INS counterparts and articulate IN WRITING why these detained individuals are of significance. In turn, those submissions will be used by INS to argue for continued custody in imminent bail recommendation hearings as well as by the Criminal Division for possible preparation of material witness warrants.
Pearson's order instructed INS field offices that participated in these arrests to communicate to their local FBI field office the urgency of receiving written assessments of the detainees' investigative significance because bond re-determination hearings were forthcoming for many of the detainees.41
A variety of INS, FBI, and Department officials who worked on these September 11 detainee cases told the OIG that it soon became evident that many of the people arrested during the PENTTBOM investigation might not have a nexus to terrorism. To address this concern, Pearson issued an order on September 22, 2001, the tenth in the series, which addressed the responsibilities of INS agents who were participating in joint operations with the FBI when they encountered illegal aliens. The order instructed INS field agents to "exercise sound judgment" in determining whether circumstances require immediate arrest and detention, and urged INS agents to limit arrests to those aliens in whom the FBI has an "interest" given the "Servicewide resource implications" of the September 11 attacks. The order reiterated that field offices were required to "immediately notify" the NSU and INS District Counsel of any arrests and to provide information regarding the "degree of interest expressed by the FBI field office, if known."
The order stated that "[n]o charging documents will be issued in any such case until the facts and circumstances of the case have been reviewed and the documents approved jointly by Headquarters National Security Unit and Headquarters Counsel (National Security Law Division, 'NSLD')." In instances where the person was already under arrest or where the detainee's connection to terrorism is unknown, the order said, "we encourage and expect forwarding of cases for review and consideration - this is one reason we require the field to advise us of expressions of interest by the FBI." Conversely, the order discouraged INS field offices from submitting cases that are "clearly of no interest in furthering the investigation of the terrorist attacks of September 11th."
In addition to issuing a series of Operational Orders, INS Headquarters developed standard operating procedures for processing September 11 detainees. The procedures were intended to keep INS Headquarters informed of INS field activities related to the terrorism investigation, to enable the INS to maintain an accurate list of all INS detainees in whom the FBI had an interest, and to ensure that the INS did not inadvertently release a detainee in violation of the Department's instructions to hold all September 11 detainees until cleared by the FBI. Under normal circumstances, INS Headquarters officials would not have reviewed charging documents in "routine" immigration cases.
III. THE CLEARANCE PROCESS
Department officials told the OIG that they initially believed the FBI would be able to clear, relatively quickly, aliens arrested in connection with a September 11 lead and who were "of interest" to the FBI's PENTTBOM investigation. Many said they thought the clearance process generally would take only a few days for the majority of the aliens arrested on PENTTBOM leads. At most, they expected the process would take a few weeks to clear aliens arrested on PENTTBOM leads but who had no additional indications of a connection to terrorism.
For example, Michael Chertoff, the Assistant Attorney General in charge of the Criminal Division, told the OIG that he believed many clearances could be done "within a few days." In his estimation, the clearance process involved a check of Government databases - including those at the CIA - and an evaluation by the FBI of all investigative information that had come to light. As late as the summer of 2002, other Department officials told the OIG that they were under the impression FBI clearances were completed in only a few days. The Attorney General stated that he did not recall hearing any complaints about the timeliness of the clearance process or a lack of resources dedicated to the effort to clear detainees.
The belief that the clearance process would occur quickly was inaccurate. As we describe below, the FBI cleared only 2.6 percent of the 762 September 11 detainees within three weeks of their arrests. The average length of time from arrest of a September 11 detainee to clearance by FBI Headquarters was 80 days.
As described above, the INS tried to hold without bond any alien arrested on immigration charges in whom the FBI expressed an interest, or any alien in whom the FBI's interest was undetermined. If the FBI could not state whether it had an interest in a particular detainee (i.e., the level of interest was "undetermined" or "unknown"), then the INS treated the case as if it was "of interest" to the FBI. For example, Daniel Cadman, the head of the INS's NSU, said that INS Executive Associate Commissioner Pearson instructed him that, absent a clear written statement to the contrary from Rolince, the ITOS Chief in the FBI's Counterterrorism Division, any aliens arrested in connection with the PENTTBOM investigation should be considered "of interest."
Kenneth Ellwood, the INS Philadelphia District Director who was brought to INS Headquarters to assist in the detainee operation, told the OIG that the FBI created difficulties by not giving the INS clear signals about who should be on the "special interest" list. Ellwood said the FBI did not have enough agents to run down all the leads on many of the aliens to the point where they could feel comfortable about making an initial determination as to who was "of interest." The FBI attorney assigned to the SIOC Working Group said that the FBI did its best with regard to "interest" classification determinations, but she acknowledged that the pace of information from FBI field offices about detainee cases was slow. Others told us they believed the FBI did not provide sufficient support to the clearance process. Nonetheless, given that the FBI was leading the PENTTBOM probe, the INS deferred to FBI assessments about who was "of interest" to its investigation.
We also found that the classification issue was not handled uniformly nationwide. In the New York City area, the INS forwarded case files for all aliens it arrested to the FBI New York Field Office for clearance. We found that neither the FBI nor the INS in New York attempted to distinguish between aliens encountered coincidentally to a PENTTBOM lead and those who were the subject of a PENTTBOM lead. In contrast, INS offices in jurisdictions outside of the New York City area used the procedures in Pearson's Operational Orders described earlier in this chapter to try to screen out cases in which illegal aliens showed no evidence of any connection to terrorism. Officials at INS Headquarters told the OIG that this "vetting process" was somewhat helpful in ensuring that only meritorious cases were classified as September 11 detainees and, consequently, held without bond and required to undergo clearance by the FBI. However, this "vetting process" was not applied in New York City.
Several Department officials involved in the terrorism investigation also told the OIG that it soon became clear that many of the September 11 detainees had no immediately apparent nexus to terrorism. As a result, the terrorism investigation soon narrowed its focus to a few of the individuals who were detained, not the vast bulk of the aliens arrested in connection with PENTTBOM leads. For example, David Kelley, the Deputy U.S. Attorney for the Southern District of New York who immediately after the September 11 attacks came to Washington, D.C., to help supervise the investigation of the attacks, told the OIG that within one to three days of the attacks prosecutors were focusing on individuals of "genuine investigative interest," such as a person whose telephone number was linked to one of the hijackers or a person who lived in a building near a location of high interest to the terrorism investigation, as opposed to aliens identified by the FBI simply as "of interest." Other Department officials acknowledged to the OIG that they realized that many in the group of September 11 detainees were not connected to the attacks or terrorism in general.
Nevertheless, the Department required the FBI to clear all September 11 detainees before they could be released - a policy supported uniformly by FBI staff interviewed by the OIG. Many witnesses told the OIG that no one wanted to prematurely release a September 11 detainee only to find out later that the person was a terrorist who posed a threat to the United States. Yet, as we next describe, the FBI clearance process for September 11 detainees was slow and not given sufficient priority, which resulted in most detainees being held for months before they were cleared.
The responsibility for clearing an individual September 11 detainee of a connection to terrorism fell, at least initially, to the FBI field office in whose jurisdiction the alien was arrested.42 The FBI New York Field Office bore the brunt of this requirement because almost 60 percent of the 762 September 11 detainees were arrested in the New York City area. The FBI in New York City created a special squad called "I-44A" to assist FBI agents and the JTTF in following up on some of the more than 20,000 PENTTBOM leads covered by the FBI New York Field Office in the year following the terrorist attacks. This unit also was given the responsibility for clearing aliens arrested in connection with PENTTBOM.
Members of the I-44A squad told the OIG that after an alien's arrest in connection with a PENTTBOM lead, the INS agent forwarded a copy of the detainee's A-File to the I-44A squad for its use during the detainee's clearance investigation. After receiving the A-File, paralegals working in the I-44A squad began a series of computer checks to examine the detainee's background. These included checks of Department of Motor Vehicle records, the FBI's National Criminal Information Center database, Drug Enforcement Administration's databases, databases with information on authorized federal wiretaps, Federal Aviation Administration databases, State Department databases, INTERPOL databases, and searches of as many as nine other databases. While we were told that the FBI paralegals generally processed these database checks, if any "positive" information came back on an alien it was an FBI agent's responsibility to review that information and determine whether additional investigation was necessary.
Supervisors in the I-44A squad said they tried to assign each detainee's clearance investigation to the FBI agent who was present at the detainee's arrest. In some instances, however, this was not possible because the alien was arrested by other JTTF members or local law enforcement. In these cases, the clearance investigation was assigned to an FBI agent in the I-44A squad. FBI agents assigned detainee investigations were given a detailed set of instructions outlining the steps necessary to clear a detainee. In addition to conducting computer database and fingerprint checks, the agents were instructed to obtain from the detainee items such as identification documents and cell phone, and to run checks on all names, addresses, and telephone numbers obtained from those items. The clearance instructions also suggested interviewing landlords or employers "if necessary."
FBI agents conducting clearance investigations also were required to interview detainees unless the agents determined that initial interviews with the detainees at the time of their arrests adequately addressed the required topics. However, the list of 31 issues FBI agents were required to cover during their review was so comprehensive that in all 28 New York cases the OIG reviewed, FBI agents had to re-interview detainees during the clearance investigations. None relied solely on the detainees' arrest interviews for the clearance investigation. Moreover, the instructions directed FBI agents to interview detainees after I-44A paralegals had completed computer checks and clearance investigations. Given the required interview topics, the FBI agents' questions often elicited names, telephone numbers, and addresses that required additional investigation.
The OIG's review of 28 I-44A squad clearance files revealed that for many detainees the field work was rather straightforward - a few interviews in addition to the computer checks. In other cases, however, the clearance process required a substantial amount of investigative work for FBI agents.
The computer checks and detainee interviews were considered only the first level of clearance investigation. According to the instructions, if a detainee was "determined to be involved or associated with hijackers or terrorist organization" based upon the FBI agent's initial work, the agent was required to refer the matter to another FBI unit for additional investigation. In cases not referred for additional investigation, the agents drafted a summary document describing the clearance investigation and including their recommendation as to whether the detainee exhibited any connections to the September 11 attacks or terrorism in general. FBI agents sent the reports to Kenneth Maxwell, the Assistant Special Agent in Charge of the FBI New York Field Office, who, among his many other duties in the weeks immediately after the terrorist attacks, made the ultimate determination for the FBI New York Field Office regarding clearance of September 11 detainees.
FBI agents assigned to the I-44A squad told the OIG that obtaining final approval from Maxwell on a clearance investigation often took a significant amount of time because of his hectic schedule. Agents said they would gather ten or more cases before approaching Maxwell to conduct reviews and, in most instances, they said Maxwell would sign clearance letters for all of the detainees. However, FBI agents said sometimes Maxwell would return a case to them for further investigation or would refer the case to the JTTF.
Until October 24, 2001, the FBI New York Field Office believed that no additional checks, other than its clearance process, were required to clear a detainee. On October 24, however, officials at FBI Headquarters notified its field offices that FBI Headquarters, rather than individual field offices, would be responsible for coordinating CIA "name checks" on all detainees (discussed in more detail below). The remainder of the tasks associated with the clearance investigation, including interviews of the detainee and any other witnesses as well as checks of law enforcement databases, remained the responsibility of FBI field offices.
As part of the clearance process, the Department decided to ask that the CIA also conduct name checks on all September 11 detainees. The FBI centralized the CIA checks at FBI Headquarters because of concerns that requests from individual FBI field offices would flood the CIA and complicate its ability to respond. Prior to the September 11 attacks, FBI field offices across the country used a computer system to check if the CIA had information on a particular person. If that search was positive, or if the field offices wanted a more in-depth search, they contacted the CIA directly for information on a particular person. Similarly, the INS's NSU would send its inquiries directly to the CIA's Office of General Counsel (OGC), the point of contact for these informational requests.
An attorney in the CIA OGC explained to the OIG that prior to September 11, after receiving an inquiry from the FBI or INS, CIA OGC staff would send queries to the various CIA branches that might have pertinent information. CIA OGC staff would gather all relevant files and notify the FBI or INS that the information was available for review. AN FBI analyst or INS attorney would then review the CIA information. While this process was labor intensive and time consuming both for the CIA and the agency seeking the information, the CIA OGC attorney said that it had worked well in the past because the number of requests before September 11 was relatively small.
After the September 11 attacks, this system no longer worked because of the large volume of requests from the FBI. For example, a November 6, 2001, letter from the CIA OGC to an FBI special agent assigned to the SIOC Working Group explained that files of 42 individuals had been collected and were awaiting review. The letter also noted that the OGC has limited space in its offices for file storage and requested that the files be reviewed promptly.
In late October 2001, because of concerns that the checks which could be done from FBI offices were not adequate and because of the volume of requests for name checks sent directly to the CIA, FBI Headquarters centralized the process and required that all contact with the CIA concerning September 11 detainees be routed through FBI Headquarters. The FBI New York Field Office received an EC dated October 24, 2001, from an FBI agent assigned to the SIOC Working Group that stated:
Effective with this communication, all CIA name checks will be conducted by FBIHQ. Therefore, once FBI New York has determined that there is no investigative interest in a detainee, FBI New York should send an EC to [the FBI] requesting that CIA name checks be conducted. Once [the FBI] has received the results of the CIA name checks, and a determination is made that there is no information of lead value, [FBI Headquarters] will advise FBI New York of this fact so that FBI New York can provide INS New York with a no investigative interest letter. FBI New York should not provide no interest letters to INS New York without CIA name checks being conducted.
Consequently, as of October 24, 2001, FBI Headquarters took over responsibility for the CIA name check portion of the detainee clearance process. After that date, the FBI New York Field Office did not issue clearance letters until it heard from FBI Headquarters that the CIA name check had not discovered any negative information associated with a September 11 detainee.
IV. TIMING OF CLEARANCES
We found the FBI took a long period of time to clear September 11 detainees. In an effort to examine the timeliness of the clearance process, the OIG analyzed information detailing the date detainees were arrested and the date FBI Headquarters issued final clearance letters.
The FBI cleared less than 3 percent of the 762 September 11 detainees within three weeks of their arrest. The average length of time from arrest of a September 11 detainee to clearance by FBI Headquarters was 80 days, and the median was 69 days. Further, we found that more than a quarter of the 762 detainees' clearance investigations took longer than 3 months. See Table 3 and Figure 7.
|Number of days from arrest |
to FBI HQ clearance:
|Figure 7: |
Number of Days from Arrest to FBI HQ Clearance
is not available electronically.
|*Arrest date or FBI Headquarters clearance date missing|
V. DELAYS IN THE CLEARANCE PROCESS
A variety of factors contributed to the discrepancy between the time frames envisioned by Department officials overseeing the detainee clearance process and the actual time it took to clear detainees. Some of the delay was attributable to a Department decision to include all New York City area arrests in the pool of detainees who needed FBI clearances. Another reason for the delay was a shortage of agents at FBI field offices available to conduct detainee clearance investigations, given the many demands on the FBI in the fall of 2001 and early 2002. We concluded that the delay was not significantly affected by CIA response time on name checks, as some officials claimed to the OIG. Rather, a larger part of the delay was because of the length of time it took for FBI Headquarters officials to review CIA responses to the name checks.
Despite the elaborate system developed by INS Headquarters to identify and process aliens arrested in connection with the PENTTBOM case, INS officials in Washington, D.C. discovered - almost by accident - a large number of "special interest" cases not included on its Custody List that required clearances before release. By the end of October 2001, officials at INS Headquarters determined that the FBI's New York Field Office was maintaining a separate list of approximately 300 detainees arrested in connection with the PENTTBOM investigation, most of whom were not on the INS Headquarters's Custody List. These aliens were arrested on immigration charges in the New York City area by INS agents working with the New York JTTF. The names had been provided to the FBI's New York Field Office, but had not been reported to the INS NSU as required by the Operational Orders issued by INS Headquarters, which we described previously in this chapter. By the time officials at INS Headquarters became aware of these additional detainees, many already had been detained for several weeks.
During discussions about what to do about the detainees on this separate New York list, officials at the INS, FBI, and the Department raised concerns about, among other things, whether the aliens had any nexus to terrorism. However, in the end, the New York list was combined with the INS Headquarters's Custody List because of concerns that without further investigation of these aliens prior to removal, the FBI could unwittingly permit a dangerous individual to leave the United States.
As noted above, unlike elsewhere in the country, where detainee cases were individually assessed for placement on the national INS Custody List, the FBI New York Field Office decided that all aliens arrested in connection with a PENTTBOM lead would be investigated fully, regardless of the factual circumstances of their arrests. In the first weeks after the terrorist attacks, FBI officials in New York City created a list of every alien arrested in connection with a PENTTBOM lead, regardless of the circumstances of the arrest. New York FBI and INS officials agreed that the INS New York District would detain all of the aliens without bond until the FBI had a chance to fully investigate and clear each one. As discussed previously, prior to centralization of the clearance process at FBI Headquarters in October 2001, aliens were removed from New York's custody list only after receiving a clearance letter signed by Maxwell, the Assistant Special Agent in Charge of the FBI New York Field Office.
In early October 2001, an INS attorney in Newark forwarded INS Headquarters case names that the INS Newark District believed were on the INS Custody List but that in fact were not on the list. This led INS representatives to the SIOC Working Group to realize that the INS in New York and Newark had not been reporting all PENTTBOM-related cases to Headquarters, as required by the Operational Orders.
INS officials convened a meeting on November 2, 2001, to discuss why its New York office had failed to report the names contained on this separate list of "special interest" detainees, given efforts at INS Headquarters to ensure that it would be aware of all "special interest" cases. According to notes from the meeting, the INS New York Assistant District Director for Investigations explained that the FBI could not determine its interest in a large group of aliens arrested in connection with the PENTTBOM probe. Therefore, the INS New York District had read Pearson's Operational Order 10 to mean that such cases not be forwarded to INS Headquarters.43 During the meeting, Pearson asked whether the aliens in question had been initially held without bond, and he learned that they had been.
The OIG attempted to determine why the New York FBI and INS offices failed to keep FBI and INS Headquarters informed of all aliens who would be subject to the clearance investigation requirement. A variety of witnesses told the OIG that federal law enforcement organizations in New York City have a long history of taking actions independent of direction from their Washington, D.C., headquarters. Several witnesses pointed out that the U.S. Attorney's Office in the Southern District of New York and the FBI's New York Field Office have coordinated many major terrorism investigations in the United States, including the 1993 World Trade Center bombing and the African embassy bombings. Witnesses told the OIG that the U.S. Attorney's Office and FBI's New York Field Office were accustomed to functioning in a highly independent manner with little oversight from officials in Washington, D.C.
Discovery of a large group of PENTTBOM-related detainees who had to be cleared and who were unknown to INS Headquarters until mid-October 2001 presented a host of problems, and several persons told the OIG that the INS aggressively sought to prevent wholesale incorporation of the New York list of approximately 300 detainees into its "INS Custody List." By this time, INS officials already were concerned about the slow pace of FBI clearances even though the SIOC Working Group was only dealing with 200 detainee cases. Moreover, INS officials were concerned about such a merger's impact because the New York list indicated that 85 cases were "unassigned," meaning no FBI agents were working clearance investigations for these detainees. In addition, contemporaneous notes indicate that at least one INS Headquarters official was concerned about how it would look when the Department's statistics regarding the number of September 11 detainees doubled overnight.
On October 22, 2001, the Senior Counsel in the Deputy Attorney General's Office who worked on immigration matters, an attorney from the Terrorism and Violent Crime Section (TVCS), two attorneys from the Department's Office of Immigration Litigation (OIL), an attorney from the FBI's OGC, and the Unit Chief of the FBI ITOS staff met with INS staff to discuss the problems presented by the New York list. The INS sent multiple representatives to the meeting, including Victor Cerda (Commissioner Ziglar's Chief of Staff), INS Deputy General Counsel Dea Carpenter, and others. Notes taken at the meeting by an INS attorney reflect that INS officials argued vehemently against subjecting all September 11 detainees on the New York list to the full FBI clearance process because, among other things, the clearance investigations were not being expeditiously completed.
According to meeting notes, Carpenter also stated that the Department might be subject to "Bivens liability" if it did not release the New York detainees in a timely manner.44 Another person at the meeting commented that the INS could not hold the detainees "forever." One of the INS attorneys at the meeting who was in the SIOC Working Group noted that the recent reassignment of a helpful FBI special agent had brought the information flow from the FBI to the INS to a "grinding halt," further delaying the clearance process. Among the issues raised at the meeting was the Department's requirement that CIA checks be completed on all detainees before they could be released.
A similar group held a follow-up meeting at the FBI's SIOC on November 2, 2001, to continue discussing what to do about the separate New York list. Associate Deputy Attorney General Levey attended the meeting, along with representatives from INS OGC; Cadman, the Director of the INS's NSU; Cerda; and attorneys from the INS's Bond Unit, OIL, and TVCS, among others. Raymond Kerr, the Supervisory Special Agent in charge of the I-44A squad in the FBI's New York Field Office, participated by speakerphone. Contemporaneous notes taken by participants and subsequent OIG interviews indicate that the meeting was very contentious. According to the notes, INS officials expressed a wide range of concerns during the meeting, including the fact that FBI clearance checks on the detainees were not timely, that the INS had insufficient evidence for upcoming bond hearings, and that Immigration Judges already had ordered certain September 11 detainees to be removed from the United States. When an INS official complained that the INS could not continue to hold the detainees, Levey responded that the INS needed to be patient. According to the notes, Levey said that he did not expect INS to wait months for the results of the clearance checks, but that the INS could wait four to five days for the CIA checks. The group also discussed resource problems at the FBI and INS, as well as ways to improve the flow of information between the two agencies.
According to the notes of the meeting, FBI Supervisory Special Agent (SSA) Kerr said the time frame for assigning a September 11 detainee case to an FBI agent for a clearance investigation was a few days. He urged Levey to direct that all the detainees on the New York list continue to be held without bond until cleared. Notes taken by a participant at the meeting summarized the conflict: "In NY, all people FBI picks up on pentbom [sic] get held no bond. Everyone else, INS exercises a little discretion, looking for a scintilla of evidence, to justify no bond."
Cerda argued that the New York list should not be added wholesale to the INS's Custody List. He explained that the INS did not want to begin treating all the detainees on the New York list under the more restrictive INS policies applicable to September 11 detainees. He stated that, for the most part, detainees' placement on the list meant they did not get off for a long time. During the meeting, at least one INS official suggested dispensing with CIA checks for detainees who otherwise had been fully cleared by the FBI. Levey told the group that the Criminal Division favored the CIA checks and that he would need to check to see if any detainees could be released without the CIA check.
At the conclusion of the meeting, Levey decided that all the detainees on the New York list would be added to the INS Custody List and held without bond. In explaining his decision later to the OIG, Levey said he wanted to err on the side of caution so that a terrorist would not be released by mistake. He also stated that he had received a commitment from the FBI to "expedite" its investigation of everyone on the list, and a promise that the FBI would "analyze" all the detainees within one or two weeks. The FBI OGC attorney present at the November 2 meeting said she does not recall making, or hearing Kerr make, such a commitment. Kerr told the OIG that, while present at the November 2 meeting, he may well have committed to assigning the case within a short time frame but he does not recall making a commitment to expedite all the cases or analyze all the cases within two weeks. The notes of this meeting provided to the OIG by INS and TVCS officials contain mention of Kerr's commitment to assign the "unassigned" cases to agents within a few days, but make no mention of a commitment to "expedite" the investigations or of any promise to "analyze" the cases within one to two weeks. According to contemporaneous notes from the meeting, Cerda stated at the end of the meeting that the "INS position is that we don't want to 'no bond' the NY list. But we will comply with the no bond policy."
As a result, on November 2, 2001, the INS Custody List contained 185 active INS cases and 34 inactive cases (meaning 34 detainees had been cleared). On November 5, 2001, after the New York cases were added, the INS Custody List contained 440 active and 41 inactive cases. The addition of the New York cases to the INS Custody List made the task of removing people from the list "unmanageable," according to one INS participant at the meeting, and it clearly had the effect of slowing the clearance process.
According to members of the I-44A squad, reassignment of FBI agents to other duties contributed to delays in detainee field investigations. Kerr, the Supervisory Special Agent in charge of the I-44A squad, said he consistently requested additional resources for clearance investigations but was told they were unavailable, and that he had been given all the resources that could be spared, given the many priorities assigned to the FBI. For example, during the fall of 2001 and the spring of 2002, the FBI Newark Field Office had been assigned a substantial amount of work in connection with the anthrax investigation and the Daniel Pearl kidnapping in Pakistan. The FBI Philadelphia Field Office had responsibility for the Fresh Kills landfill on Staten Island, where officials were examining debris and remains from the World Trade Center. In addition, FBI agents were assigned to investigate the crash of an American Airlines flight in Queens on November 12, 2001, while other agents were sent to Salt Lake City in early 2002 to help with security at the Winter Olympics.
In addition, during some clearance investigations, FBI agents uncovered information that Maxwell, the Assistant Special Agent in Charge of the New York Field Office, thought warranted review by the New York JTTF. In those cases, FBI agents transferred the files to the JTTF. The documents we reviewed showed that the files often were not returned to the I-44A squad for many months.
Moreover, the method by which the FBI managed the clearance investigation process affected the timeliness of these investigations. According to the members of the I-44A squad, once the FBI investigated a lead and the INS arrested an individual in connection with that lead, agents generally moved on to the next lead rather than taking time to investigate or clear the person arrested. Furthermore, we found that FBI Headquarters did not impose deadlines on squad members or other FBI agents to complete September 11 clearance investigations.
We also found instances in which I-44A squad supervisors did not prioritize clearance investigations, even in response to ECs from FBI Headquarters alerting the FBI New York Field Office about upcoming detainee bond hearings. FBI agents working in the I-44A squad said they never were told about any time limits with respect to the INS's authority to detain these aliens without bond. While an FBI member of the SIOC Working Group was designated to serve as liaison to the I-44A squad, that person changed in mid-November 2001. The INS New York District liaison to the I-44A squad changed frequently, according to the squad supervisor. Consequently, the flow of information from the SIOC to the I-44A squad and from the FBI New York Field Office to INS Headquarters staff concerning the status of individual detainee clearances was, in the INS's view, sporadic at best.
Several FBI and INS officials interviewed by the OIG expressed frustration with the CIA checks required by FBI Headquarters. For example, Kerr told the OIG that he believed his office had the ability to conduct an adequate clearance investigation using its own contacts at the CIA and its long-standing experience investigating al Qaeda and other related terrorist groups. Within the INS, the frustration came not so much from who handled the CIA checks but rather how long it took.
According to INS officials, the FBI told them that the CIA name check played a major role in delaying completion of detainee clearance investigations for September 11 detainees. Cerda, the INS Chief of Staff, told Levey that the CIA name checks were causing delays in the clearance process. As a result, Levey attempted to facilitate an expedited CIA name check that would meet the Department's desire to ensure that dangerous individuals were not released, but would not cause unreasonable delay.
Consequently, representatives from the CIA, FBI, INS, and the Department met at the FBI SIOC on October 23, 2001, and agreed that an expedited name check would be sufficient to meet the FBI's needs. On October 29, 2001, the CIA's Litigation Division Chief sent a draft letter to Levey that outlined the new, expedited process. The Litigation Division Chief explained that the FBI would send a cable to the CIA with detainee names, in priority order, together with required identifying information. The CIA agreed to check its main database for each name and provide copies of the search results to the FBI, including a summary of any "derogatory" information, on an "expedited basis." Levey said he was told this expedited name check could be accomplished in 48 hours. An FBI agent in the SIOC Working Group told the OIG that he was told the CIA checks should take only a "few days."
This check of the CIA's main database was a less thorough search than had been pursued in the past at CIA Headquarters. The new process required only that the raw information be summarized by the CIA, rather than requiring the FBI to review the files itself. Under the plan, FBI and Criminal Division attorneys would review the initial CIA summary information and send the CIA a letter identifying any individuals for whom they wanted the CIA to conduct a broader database and records search. The letter from the CIA stated that the more thorough search, which would be initiated only upon receiving a specific request, in most cases would take approximately two weeks.
Yet, despite the new, expedited procedures, several FBI and Department officials we interviewed stated that there continued to be a substantial delay in the CIA's response to requests for name checks on the September 11 detainees. Several officials argued this was a big part of the reason why the clearance process for September 11 detainees continued to take so long. According to CIA officials, after the Department and the CIA developed the expedited name check process, the CIA's initial checks for September 11 detainees were completed within approximately eight days. However, our analysis did not substantiate this claim.
First, in a number of instances, we found the CIA's response was delayed due to a failure by the FBI or INS to submit complete information. We found multiple instances in which the CIA responded that it was waiting on the INS Form I-213 (the INS's arrest report) in order to complete the check.45 CIA staff interviewed by the OIG noted that the cables received from the FBI often did not contain adequate identifying information on the detainees, thereby making the searches more difficult and ultimately less helpful. For example, a November 26, 2001, letter from the CIA OGC to Levey and the Chief of the FBI OGC's National Security Law Division explained that the FBI name check requests "do not provide all of the information upon which we agreed during our meeting." The letter explained that the information from the INS Form I-213 allowed the CIA to more quickly discard nonresponsive hits on similar names, thereby improving the response time. The attachments to the letter demonstrated that the FBI had failed to include information from the INS Form I-213, as agreed, and had also failed to prioritize the names.
Second, we found that the substantial delays in many of the September 11 detainee clearance investigations were attributable to delays at FBI Headquarters, not because of delays in CIA name checks. In many cases, the OIG found that the CIA provided the FBI with the results of its name check months before FBI Headquarters cleared the detainee. The OIG's review of 54 detainees' files showed that the CIA was not responsible for clearance delays.46 In these 54 cases, the CIA responded in just over 2 weeks on average. In 18 of 54 cases, the CIA responded within 8 days. While these times slightly exceeded the time frame the Department anticipated during discussions at the October 23, 2001, SIOC meeting, the response times do not seem unreasonable, given that the Department sent up to 190 names to the CIA at one time.
In contrast, we found that the FBI took months to analyze the information after receiving a response from the CIA. In 36 of the 54 detainee cases in our sample, the records reflect an average of 54 days between when the FBI received the CIA name check information and when it cleared the detainees. In all 36 of these cases, the aliens ultimately were cleared. In 14 of these 36 cases, the CIA had responded that either there were no records of the individuals in its databases or the information they had was "not identifiable" with the detainees.47 In 22 cases, the FBI received some information but deemed it "not identifiable" with the detainees. In the remaining 18 of the 54 cases, we were unable to determine the time it took to analyze this information, due to insufficient data in the file.
In most instances, we found that Rolince, the ITOS Chief in the FBI's Counterterrorism Division, issued the detainee's clearance letter shortly after receiving an EC from the Supervisory Special Agent assigned to evaluate the CIA information that affirmed there was no identifiable CIA information on the detainee. Consequently, it appears that failure by the FBI to provide sufficient resources to review the CIA name check results in a timely manner significantly delayed the issuance of detainees' clearance letters.
The FBI OGC attorney assigned to the SIOC Working Group explained to the OIG that she recognized that she and her fellow OGC attorneys could not evaluate the CIA cables themselves, because they lacked the expertise to do so, and the personnel in the SIOC assigned to the detainees did not have adequate resources to handle the analysis. She alerted her superior, FBI General Counsel Larry Parkinson, who contacted the Deputy Executive Assistant Director, Tim Caruso. Caruso then contacted the Chief of the National Domestic Preparedness Office, Tom Kinnally, which was part of the ITOS. Kinnally assigned two SSAs from that unit to assist with and oversee the analysis of the CIA information. One of the SSAs told the OIG that, at the time, every member of her unit was working on a "critical" assignment, including work related to the anthrax investigation. She said she and the other SSA were assigned to do the CIA checks full time beginning in late November 2001, but later in December they also were assigned to work on the creation of a document exploitation unit. Beginning in approximately January 2002, 2 special agents were detailed to the CIA name check project for 30 days at a time. While this provided some help, it also required new agents to be trained on the project every month.
Moreover, we found that these resources were insufficient to permit the group to analyze the CIA information in a more timely manner for a number of reasons. First, according to one of the SSAs assigned to the project, the volume of cases was simply too great. One of the FBI requests to the CIA for information contained the names of 190 detainees. Second, the SSA pointed to many technical difficulties and "growing pains" they faced when they first started in late November 2001. For example, they had to find a person who had access to and was trained on the computer system that contained many of the documents they needed. According to the SSA, it took "several weeks" to get things in place and running. Third, many of the people working on this project were not focused exclusively on this task, due to the many demands on the FBI. Finally, some of the cases required contacting FBI offices overseas or other agencies, which took time, especially because the FBI offices in the Middle Eastern countries also were over-burdened at the time.
The SSA also stated that, despite all the efforts made to carefully evaluate the CIA information, for the most part it was almost impossible to determine if the information provided by the CIA was identifiable with the detainee. Even if the name was the same or quite similar, many of the names were common and the lack of other identifiers beyond names made connecting the information to the detainees nearly impossible.
The SSA explained that the group of agents and intelligence analysts assigned to the project attempted to prioritize its work so that those with final orders of removal or other issues could be dealt with first. Cases were sometimes brought to their attention that were "priority" due to a court date or order of removal.
In late November 2001, INS Chief of Staff Cerda contacted Levey by e-mail to complain again about the timeliness of the CIA checks. He stated that 157 September 11 detainees who otherwise had been cleared by the FBI were "in limbo" while waiting for CIA checks. He asked Levey whether the Department would reconsider its policy to require CIA checks under these circumstances.48
By the time Cerda raised this concern, even Fisher, a Criminal Division Deputy Assistant Attorney General and a member of the SIOC Working Group who initially imposed the CIA check requirement, was willing to reconsider the issue. In a November 29, 2001, e-mail to TVCS supervisors, Fisher wrote, "I guess my initial view is that we should triage at this point, rather than scrap the system. Let's hold on people where we have other [negative] information until the CIA checks go through. Let's get a CIA list with priority. And for those who are ready to be deported and we have no other [negative] info, let's let them be deported if CIA can't check, as a last resort."
Levey told the OIG that he did not feel comfortable making the decision about Cerda's request to change the CIA check policy without additional input, so he consulted David Laufman, the Deputy Attorney General's Chief of Staff. Levey told the OIG that Laufman advised him to continue to require CIA checks, and Levey said he communicated this decision to Cerda by e-mail. Laufman told the OIG that while he did not recall specifically being asked by Levey about the CIA check policy, he did not dispute Levey's claim that they discussed the matter. Laufman also stated that there could be "catastrophic consequences" if the Department turned one person loose it should not have.
Levey said that even after the decision to keep requiring CIA checks, he continued to try to expedite the CIA check process. Ultimately, however, the decision to require CIA checks and FBI clearance before a September 11 detainee could be removed from the country was changed. On February 6, 2002, based upon the FBI's re-evaluation of the "hold until cleared" policy, Levey changed the Department's policy that up to that point required formal clearance from both the FBI and CIA before removing a detainee. Neither the FBI nor the Criminal Division opposed the change. This reversal is described in detail in Chapter 6 of this report.
The following are examples of how delays in conducting clearance investigations affected individual September 11 detainees:
[A]ll response ECs should contain a statement from the SAC or his/her designee stating whether the FBI has an investigation [sic] interest in [the] detainee. If a field office does not have an investigative interest in a detainee, the response EC should state this fact and request that Project INS/FBI Detainee conduct appropriate CIA name checks. Once the no interest EC is received from a field office and CIA name checks are completed, a letter will be generated to INSHQ advising of FBI's no interest if the name checks do not provide information of investigative interest.
The EC contained no specific deadline for a response, although it had a precedence of "Immediate" and requested the information "as soon as possible."49 We could find no response from the FBI Newark Field Office. In early December 2001, FBI Headquarters requested that the CIA conduct a name check for the detainee. In mid-December 2001, FBI Headquarters sent a follow-up EC to the FBI Newark Field Office, also with a precedence of "Immediate," again requesting the "interest/no interest" assessment. Before it received a response to this second EC, FBI Headquarters received the results of the CIA name check that found "no identifiable information" in connection with the detainee. The CIA response arrived 17 days after the FBI requested the name check. This detainee's name subsequently appeared on a list of detainees held more than 90 days that the INS forwarded to the Office of the Deputy Attorney General during the third week of January 2002. Within a week of the detainee's name appearing on this list, the FBI Newark Field Office provided FBI Headquarters with an EC stating it had "no interest" in the detainee and, based on that information, FBI Headquarters produced a clearance letter indicating that the INS could remove the detainee.
Thus, it appears that the FBI completed all field investigative work within three weeks of the detainee's arrest. The CIA check, which was negative, took slightly more than two weeks. Yet the detainee was not cleared for nearly four months. Based on the FBI Newark Field Office's and Headquarters's records in connection with this case, there does not appear to be any justification for the three-and-a-half-month delay in clearing this detainee. Furthermore, the timing of the clearance suggests that the reason the FBI finally cleared him was due to his inclusion on the list forwarded by the INS to the Office of the Deputy Attorney General.
Within a week, the New York FBI Field Office conducted a detailed interview of the detainee. By mid-November 2001, the Field Office concluded that the detainee was of no interest. However, FBI Headquarters did not request a CIA name check until December 7, 2001. In addition, FBI Headquarters failed to include the INS Form I-213 with its request to the CIA, even though the FBI Field Office's records reflected that the FBI had a copy of the detainee's Form I-213 in its file. A CIA response to the FBI's request, dated late February 2002, indicated that the detainee's case was one of those "pending 213s from 12/7." The response also indicated that the CIA found "no identifying information" about the detainee in its databases. FBI Headquarters issued the detainee a clearance letter the next day. Thus, it appears that this alien, who was cleared by the New York FBI Field Office by mid-November 2001, was not cleared by FBI Headquarters until late February 2002 due to an administrative oversight.
At the end of September 2001, an attorney from the Criminal Division's TVCS, who was also a member of the SIOC Working Group, raised concerns to his superiors that the FBI lacked adequate resources to conduct detainee clearances in a timely manner. In response, the Principal Deputy Chief of the TVCS drafted a memorandum in late September or early October 2001 from Assistant Attorney General Chertoff to Dale Watson, then the Assistant Director of the FBI's Counterterrorism Section. The draft memorandum requested that each FBI field office designate at least one agent to promptly interview September 11 detainees held in that district, and urged that these interviews be conducted on a "priority basis." The memorandum also requested that "[s]ufficient resources must be allocated in SIOC to provide notification to field offices of detainees and bond hearings in their districts and to facilitate the exchange of information to the INS attorney who will appear at the bond hearing. Currently, one person is handling this responsibility for all detainees and detention hearings with only intermittent assistance." Finally, the draft memorandum noted that "It is important that these aliens in detention are handled appropriately to make sure that those who are of investigative interest continue to be detained and those who are not of investigative interest are handled by the INS in the manner that similarly situated aliens would be handled."
After reviewing the draft memorandum, the TVCS attorney sent a typed note to the Chief and Deputy Chief of TVCS saying he believed that the FBI Director would "want to know that the field isn't getting the job done." He added, "To be candid, we are all getting screwed because the Bureau's SACs haven't been told explicitly they must clear, or produce evidence to hold, these people and given a deadline to do it." He suggested that the way to resolve the problem was to "get to [FBI Director] Mueller or [Deputy Director] Pickard, and have them direct the SACs to interview, run checks and clear or recommend holding people within 24 hours and direct necessary HQ personnel to clear NLT [no less than] 24 hours after that."50 He told the OIG the purpose of his typed note was to "urge that the memo to the FBI be more blunt." He said, with respect to this note, that the FBI was not staffing the detainee cases with sufficient resources. According to this attorney, the Criminal Division eventually decided not to send the memorandum to the FBI.
When interviewed by the OIG, Chertoff said that while he was familiar with the contents of the draft memorandum, he did not know whether it was sent (it was not, according to other witnesses). Chertoff recalled orally raising the issue of the pace of clearance investigations with FBI Director Mueller and Assistant Director Watson, but indicated that during the first few months after the attacks he believed these issues related to the impact of the clearance process on bond hearings (as opposed to removal of aliens from the United States). Chertoff told the OIG that he later became aware of a delay in removing detainees when he received questions from Congress about this issue as a follow-up to his November 28, 2001, testimony before the Senate Committee on the Judiciary.51
Director Mueller said he did not recall hearing about any problems with the clearance policy until the spring or summer of 2002. He said he did not recall any expectation of how long the process would take, and he did not learn how long the process in fact was taking. At some point, however, he said he learned that it was taking more than a few days. He said he would have expected problems with the clearance process and the time it was taking to be handled at a level lower than him.
INS Commissioner Ziglar told the OIG that he called FBI Director Mueller on October 2, 2001, to discuss the INS's problems in obtaining timely clearances from the FBI. FBI Deputy Director Pickard returned the call. Ziglar said he told Pickard that the FBI was putting the INS in the awkward position of holding aliens in whom the FBI had expressed "interest" but then failing to follow through with a timely investigation. Ziglar said he told Pickard that unless the INS received written releases in a timely manner, the INS would have to start releasing September 11 detainees. Pickard, who retired from the FBI in November 2001, told the OIG that he did not recall this conversation with Ziglar. Further, he said that he had no recollection of any complaints from the INS regarding the pace of the FBI clearance process.
Ziglar also told the OIG that he contacted the Attorney General's Office on November 7, 2001, to discuss concerns about the clearance process, especially the impact of adding the New York cases to the INS Custody List. He initially called David Ayres, the Attorney General's Chief of Staff, but recalls reaching David Israelite, the Deputy Chief of Staff. According to Ziglar, he alerted Israelite to the fact that September 11 detainee cases were not being managed properly and warned of possible problems for the Department. Ziglar told the OIG that he was frustrated at this time and felt powerless to resolve the situation because he had no authority over the FBI, which was responsible for determining which detainees were "of interest," who would be cleared, and when. Israelite told the OIG that he could not recall this particular conversation with Ziglar and did not recall any complaints from the INS during the fall of 2001 regarding the clearance process for September 11 detainees.
Ziglar said that based on these and other contacts with senior Department officials, he believed the Department was fully aware of the INS's concerns about the ramifications caused by the slow pace of the detainee clearance process. When asked why he did not press the issue with the Attorney General or the Deputy Attorney General, he acknowledged that at some point he should have "gone around the chain of command" directly to the Attorney General or the Deputy Attorney General, but he felt it would have been futile to approach them directly about these issues because he did not think the outcome would have been different.
Deputy Attorney General Thompson told the OIG that he had not been made aware of the slow pace of FBI clearance investigations. He said that had the INS alerted him to the time limits it believed were applicable, he would have contacted the FBI immediately. Thompson said he received regular briefings during this period regarding the INS in which he was assured that the immigration processes for the detainees were being handled "properly."
The Attorney General stated that he had no recollection of being advised that the clearance process was taking months, nor did he recall hearing any complaints about the timeliness of the clearance process or a lack of resources dedicated to the effort to clear detainees.
VI. FBI WATCH LIST
In contrast to the inefficient way that the clearance process for September 11 detainees on the INS Custody List was handled, the FBI handled clearances from another important list - its watch list - in a more efficient manner.52 We briefly discuss the FBI's handling of this watch list to illustrate the differences in how the two clearance processes were handled.
The day after the terrorist attacks, the FBI began developing a watch list originally designed to identify potential hijackers who might be planning additional terrorist acts once air travel resumed. The FBI distributed the watch list to airlines, rail stations, and other common carriers to assist in its terrorism investigation.
The FBI developed two versions of the list. One contained a person's name and date of birth only and the other contained additional information. The information on the lists was updated once or twice daily. The FBI provided the name and date of birth list to common carriers such as Amtrak, bus companies, truck rental companies, and the National Business Aviation Association. By September 26, 2001, the list had grown from the initial names to several hundred. As word spread nationwide that such a watch list existed, various agencies requested that names be added to the list.
Kevin Perkins, the Inspection Division Section Chief at FBI Headquarters who coordinated the watch list, told the OIG that he immediately recognized that the existence of the list created risks that innocent persons not connected to terrorists would be unfairly implicated. He said he wanted to create a mechanism for limiting who was placed on the list and for removing people from the list as quickly as possible. Perkins recruited an attorney from the FBI's Office of General Counsel to assist with managing the watch list and asked the attorney to develop parameters for placing names on the list that followed the Attorney General's guidelines for opening a criminal case. The attorney prepared a one-page document called "Screening Characteristics for Lookout Lists" that set out three categories of persons to be placed on the list.
Perkins said the list eventually grew to as many as 450 people. At one point, Perkins's supervisor said he directed that no one could be added to the list without his authorization. When interviewed by the OIG, Perkins and the attorney assisting him said they became concerned that individuals were being placed on the list who had no connection to terrorists. For example, because the airlines use a "soundex" system to retrieve like-sounding names, this resulted in names ending up on the list as soundex matches to names that were entirely different. Perkins also gave an example where a group of entries on the list all had the same first initial and a common last name, with no additional information.
Perkins told the OIG that he quickly turned his attention from regulating who got on the list to working to get people off the list. He recruited a group of legal instructors stationed at the FBI Academy in Quantico, Virginia, to help manage the process. Perkins said he ensured that all of the names on the list were indexed and he created a file for each. He asked the legal instructors to take each file and review how each person got on the list and what work had been done by FBI field offices to follow up on any initial leads. He told the OIG that he asked the legal instructors to review the sufficiency of the information and to run records checks for each person.
Perkins said that in some instances, removing people from the list was not difficult. For example, a ŻŻŻŻŻŻŻ FBI field office had provided information that approximately 20 Arab men attended the same flight schools as the hijackers, so these men were placed on the list. Upon further checking, this information turned out to be inaccurate - the men had attended flight schools, but not the same ones as the hijackers. Consequently, the men's names were taken off the list.
By late October 2001, the FBI alerted its field offices that it had stopped adding names to the watch list. By the end of November 2001, Perkins said the team had reduced the watch list to 20 to 30 names, 19 of which were the names used by the hijackers (the FBI was uncertain whether they had used their real names).
VII. OIG ANALYSIS
The Department reacted swiftly to the attacks on the World Trade Center and Pentagon by launching a massive investigation in this country and abroad. Within a week of the attacks, the FBI had assigned more than 7,000 employees to the task of tracking down anyone who had aided the terrorists and attempting to prevent additional attacks. In the ensuing weeks, JTTF agents and other law enforcement officers across the country arrested hundreds of illegal aliens they encountered while pursuing PENTTBOM leads, whether or not they were the subjects of the leads. While it is beyond the scope of the OIG's review to assess the appropriateness of these law enforcement actions, we saw some instances of the detention of aliens that appear to be extremely attenuated from the focus of the PENTTBOM investigation.
The Department instituted a policy that all aliens in whom the FBI had interest in connection with the PENTTBOM investigation, no matter how tangential the connection, required clearance by the FBI of any connection to terrorism before they could be removed or released. Therefore, determining which of these aliens was "of interest" to the FBI's terrorism investigation became the first of a series of critical decision points. We found that often the FBI could not state whether or not it had an interest in a particular alien and therefore, out of an abundance of caution, the FBI labeled the alien of interest or of unknown interest, and consequently the INS treated the alien as a September 11 detainee who required clearance from the FBI before he could be released.
In fact, in New York City we found that the FBI and the INS made little attempt to distinguish between aliens arrested as subjects of a PENTTBOM lead and those encountered coincidentally. This lack of precision had important ramifications for many aliens in the time they spent confined and the conditions of that confinement, as we discuss in subsequent chapters of this report.
We do not criticize the decision to require FBI clearance of aliens to ensure they had no connection to the September 11 attacks or terrorism in general. However, we criticize the indiscriminate and haphazard manner in which the labels of "high interest," "of interest," or "of undetermined interest" were applied to many aliens who had no connection to terrorism. Even in the hectic aftermath of the September 11 attacks, we believe the FBI should have taken more care to distinguish between aliens who it actually suspected of having a connection to terrorism as opposed to aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead. Alternatively, by early November 2001, when it was clear that the clearances could not be accomplished in a matter of days (or even weeks), the Department should have permitted the FBI and INS to review the cases and keep on the list only those detainees for whom there was some factual basis to suspect a connection to terrorism or to the PENTTBOM investigation.
We found that the information provided to high-level Department officials suggested that this "hold until cleared" policy was being applied to persons "suspected of being involved in the September 11 attacks." In practice, the policy applied much more broadly to many detainees for whom there was no affirmative evidence of a connection to terrorism. This disconnect should have been discovered earlier and should have caused a review of the manner in which detainees were being categorized.
We appreciate the difficulty of making a definitive and expeditious determination in many cases, and realize that in the weeks and months after September 11 law enforcement decided to err on the side of caution. However, the manner that these designations were applied to arrested aliens was in many cases weak. Moreover, the FBI failed to provide adequate field office staff to quickly conduct the detainee clearance investigations and failed to provide adequate FBI Headquarters staff to effectively coordinate and monitor the detainee clearance process. This contributed to the slow pace of the FBI's clearance process, which meant the FBI's initial determination of its "interest" had enormous consequences for the detained aliens.
We also found that the FBI's clearance process was understaffed and not accorded sufficient priority. Moreover, despite the belief at high levels of the Department that the clearance investigations underlying the "hold until cleared" policy could be and were being done quickly, we found that they were not. The average time from arrest to clearance was 80 days and less than 3 percent of the detainees were cleared within 3 weeks of their arrest.
We found several reasons for this substantial delay. Although initially the clearance process was handled exclusively at local FBI offices, the clearance decision was soon centralized at FBI Headquarters. While the desire to centralize these decisions was supportable, given the need for a consistent process overseen on a national basis, centralization delayed the clearance process.
Moreover, the FBI failed to devote adequate resources to the task. Agents responsible for clearance investigations were often assigned other duties and were not able to focus on clearance investigations. The result was that detainees languished on the list for weeks and months, with no investigations being conducted.
Another reason for the delay was the inclusion of all New York City detainees arrested in connection with PENTTBOM leads being placed on the INS Custody List and therefore requiring FBI clearance. While this decision also was supportable, given the desire not to release any alien who might be connected to the attacks or terrorism, the inclusion of so many detainees in the clearance process required the FBI to devote additional resources to the clearance task. This did not happen, and the inclusion of 300 new names on the list overwhelmed the resources of the FBI in conducting clearance investigations.
As part of the clearance investigation, the Department required CIA name checks for all September 11 detainees. While we were told that the CIA delayed conducting the checks, we did not find this to be true. We found that the CIA conducted the checks in a timely fashion and that the delays relating to CIA name checks resulted from inaction by the FBI in reviewing the checks, not delays by the CIA in conducting them.
In contrast to the untimely manner in which the FBI handled the clearance process for September 11 detainees, the FBI handled adding and removing names to its watch list in a much more timely manner. Although we did not conduct an in-depth analysis of the watch list, it is clear from our limited review that the FBI was cognizant of the need to expeditiously remove people from that list who should not be on it. By contrast, the FBI did not devote similar attention to clearing September 11 detainees who had no connection to terrorism. The handling of the watch list also demonstrates the benefits of placing an individual with operational authority and access to substantial resources in charge of a project of this nature.
The untimely clearance process had enormous ramifications for September 11 detainees, who were denied bond and also were denied the opportunity to leave the country until the FBI completed its clearance investigation. For many detainees, this resulted in their continued detention in harsh conditions of confinement, which we describe in the chapters that follow.
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