Analysis of the Second Response by the Department of Justice to Recommendations in the Office of the Inspector General's June 2003 Report on the Treatment of September 11 Detainees
January 2004
Office of the Inspector General
Recommendation 1
Status: Closed
OIG Recommendation
We believe the Department and the FBI should develop clearer and more objective criteria to guide its classification decisions in future cases involving mass arrests of illegal aliens in connection with terrorism investigations. For example, the FBI could develop generic screening protocols (possibly in a checklist format) to help agents make more consistent and uniform assessments of an illegal alien's potential connections to terrorism. These protocols might require some level of evidence linking the alien to the crime or issues in question, and might include an FBI database search or a search of other intelligence and law enforcement databases.
In addition, the FBI should consider adopting a tiered approach to detainee background investigations that acknowledges the differing levels of inquiry that may be appropriate to clear different detainees of connections to terrorism. For example, a more streamlined inquiry might be appropriate when the FBI has no information that a detainee has ties to terrorism, while a more comprehensive background investigation would be appropriate in other cases.
DOJ First Response
In September 2002, the Department imposed a requirement that the Office of the Deputy Attorney General approve the addition of all new cases to the September 11 special interest detainee list. The addition of new names to the list had to be based in part on the FBI's representation that the case was clearly linked to the September 11 investigation. As the report indicates, there are very few aliens who remain detained who were encountered during the course of the September 11 criminal investigation.
With regard to future investigations, we agree with the basic premise of the recommendation and will ensure that the FBI works with the Department of Homeland Security (DHS) to establish criteria for such investigations (the specific criteria will depend on the nature of the national emergency). We would note that investigating an individual for ties to terrorism is not as simple as conducting database checks. There are many other steps that are taken, depending on the type of investigation being conducted. Even if the FBI possessed no specific information that a specific alien had ties to terrorism, if we were to experience another large-scale terrorist attack on U.S. soil, it is likely that the FBI would want to check with other agencies, both in the U.S. and abroad, before making a final determination that an alien arrested in connection with the investigation of such an attack in fact had no ties to terrorism.
OIG First Analysis
In our report, we found that the decision to detain and classify aliens as persons "of interest" to the PENTTBOM investigation often was indiscriminate and haphazard. Therefore, we recommended that the DOJ develop clear and objective criteria to guide its classification decisions in future cases involving mass arrests of illegal aliens in connection with terrorism investigations. According to the DOJ's response, its new policy requires that individuals added to the special interest detainee list must be approved by the Deputy Attorney General's office and be clearly linked to terrorism.
While this new procedure will address the lack of uniformity with regard to special interest detainees arrested in connection with the September 11 investigation, we are concerned that this procedure may not be adequate in the future. The objective of the recommendation was to encourage development of a protocol or procedures to enable the DOJ to react effectively and consistently in the event of a future crisis. We also question whether staff from the Deputy Attorney General's Office can effectively play such a "gatekeeper" role with respect to deciding whether a large number of detainees are placed on a special interest list, given their numerous other pressing duties and the large number of decisions that might have to be made on cases throughout the nation.
In addition, the OIG report recognized that investigating a detainee for possible ties to terrorism involves much more than database checks, particularly for those aliens who the FBI actually suspected of having ties to terrorism. However, the report detailed the degree to which the FBI was unable to complete clearance investigations - including checks with other agencies - within the quick time frames that senior DOJ officials thought it could. For example, the FBI did not have the procedures in place or apply the resources needed to analyze large amounts of name check and database information it received from the Central Intelligence Agency (CIA). As detailed in the OIG report, this CIA information sat unreviewed for weeks at FBI Headquarters. As a result of these and other problems encountered in the aftermath of the September 11 attacks, the OIG recommended that the FBI adopt a tiered approach to detainee background investigations that acknowledges the differing levels of inquiry that may be appropriate to clear detainees of connections to terrorism.
The DOJ response does not address these issues directly, including how to more effectively classify detainees at the outset of an investigation, how to prioritize clearance investigations, and how to better allocate FBI resources to conduct such investigations. While we agree with the statement in the DOJ response that the specific investigative criteria to be used during an emergency will depend, to some extent, on the nature of the emergency, we continue to believe that the FBI should develop general criteria and guidance to assist its field offices in making more consistent and uniform assessments of an illegal alien's potential connections to terrorism. We also believe the DOJ should not wait until another national emergency to create such criteria.
To close this recommendation, we request that the DOJ provide by October 3, 2003, additional information about the FBI's efforts to work "with the [DHS] to establish criteria for such investigations (the specific criteria will depend on the nature of the national emergency)."
DOJ Second Response
The FBI is in agreement that we need to work closely with DHS so that subjects are not detained unnecessarily. In order to facilitate this, the FBI has joined in partnership with multiple Federal agencies, including DHS, in the establishment of the Terrorist Threat Integration Center (TTIC). The TTIC will maintain a database that will function as a reference library or "one-stop-shop" for all identities information on international terrorists known to the U.S. Government (USG). This central repository of terrorist identities information will be available through a classified website to those with appropriate access (including all JTTFs), as well as serving as the mechanism for nominating individuals to the newly created Terrorist Screening Center, for watchlisting. It is intended that the FBI analysts assigned to TTIC will manage the FBI's records being inputted into the TTIC database. Director Mueller has directed field offices of the FBI to place the subjects of open terrorism related investigations into the FBI's Terrorism Watch List which is housed within the National Criminal Information Center (NCIC), in the Violent Gangs and Terrorist Organization File (VGTOF). The Terrorism Watch List has been the Counterterrorism Division's single, integrated listing of individuals of an investigative interest to the FBI, be that the lone terrorist subject or a specific terrorist group. It was designed to assist both the intelligence and law enforcement communities in their investigations of terrorist groups and/or individuals. The Terrorism Watch List (VGTOF) is in the process of being consolidated into a single database managed by the TTIC and the Terrorist Screening Center.
The Terrorist Screening Center (TSC) will consolidate all existing terrorist watch lists currently being used by the United States Government into a single function to provide accurate information to terrorist screeners around the country on a 24-hour, 7 days a week, real-time basis. This function will consolidate into one central location information that law enforcement, the Intelligence Community, and the State Department already possess. This integration of existing watch list functions of a variety of agencies will enhance the coordination, consistency and accuracy of on-going efforts by creating a mechanism for one-stop shopping to be used by local, state, and Federal officers, as well as others who may have a need to receive this information, consistent with the Memorandum of Understanding implementing the TSC.
The FBI is of the opinion that the establishment of this critical program will serve as the first step for the field offices, and their counterparts in DHS, in making a determination of whether a subject should be further investigated and/or detained. In those instances where there is a match of the alien, the FBI recommendation to DHS would be that the alien is held for further investigation. If there is no match, the recommendation would be to allow the subject to be released on bond pending removal proceedings. Again, the FBI may request that DHS continue to detain an alien even if the subject has no identifiable traces with anyone within the USIC, if the nature of the subject's activity indicated that they were involved in the planning of, or participation in, a terrorist related activity. All of these decisions would be made at the FBIHQ level, with input from the field offices, and the recommendation of the FBI would be passed to the DHS and/or BOP through the National Joint Terrorism Task Force (NJTTF). Through the continued cooperation shown in the NJTTF, which was not in existence prior to September 11, 2001, the FBI will be better prepared to resolve alien background checks in a timely and efficient manner. In previous OIG correspondence, the concern around the FBI's definition of "a subject of interest" who would meet the criteria for detention was heard by the FBI. In the future, the FBI would consider "a subject of interest" as those individuals whose name and identifying information appear in the Terrorist Screening Center (Identities Tracking Database), or the circumstance surrounding the subject's detention would indicate a pending act of terrorism. If a subject's name is not in the Identities Tracking Database (ITD), and there is no apparent act of terrorism, the clearance of the investigation will occur at the level of the Special Agent in Charge (SAC) of the field office conducting the investigation, with notification to the appropriate unit within FBIHQ. This system will directly address the OIG's concern that clearance investigations, including checks with other agencies, is completed in a timely manner.
Prior to September 11, 2001, the FBI had 12% of total agent resources working on counterterrorism investigations. In the first three months following the attacks, more than half of the FBI's total resources were working on counterterrorism investigations. By the end of June 2003, the number of field agents working counterterrorism had leveled out to approximately 26% of total resources. However, the number of agents working on counterterrorism investigations has continued to be higher than the Funded Staffing Level (FSL) and, as of September 3, 2003, the Counterterrorism Division was utilizing approximately 950 agents over FSL.
The FBI has enhanced the National Name Check Unit, within the Records Management Division, to where it stands today with 119 full time employees. The National Name Check Unit is now in a position to directly deal with the large amount of CIA cables being received by the FBI requesting name checks. In those cases where there are name matches, the cables are directed to the appropriate unit within FBIHQ which has responsibility for either the subject's country of origin, or group affiliation, for further investigation and analysis. With this re-allocation of resources, the FBI is in a better position today to deal with a similar situation to the detention of aliens as occurred in the days, and months, after September 11, 2001.
FBIHQ has established a policy (effective January 25, 2002) which requires each field office to report, via "Urgent Reports", all significant events occurring within a field office's jurisdiction to the Strategic Information & Operations Center (SIOC) immediately. The detention of any alien on the grounds of suspected terrorism connections would require such a reporting to FBIHQ.
Priority criteria for FBI investigations has been developed. Threats reported to the FBI through the CT Watch receive the highest priority as the primary mission and focus of the FBI is to prevent, detect and deter terrorist attacks against the United States and its citizens both at home and abroad. Of the threats received, those dealing with weapons of mass destruction, including chemical, biological, radiological and nuclear threats are given the highest priority. Counterterrorism operations and investigations are prioritized based on the FBI's National Threat Assessment. This threat assessment identified the known, active, terrorist groups having a presence in the United States and ranked them into three tiers. Those that are prioritized in the first tier have high intentions to harm the homeland, moderate to strong links with Al-Qa'ida, and high capabilities to inflict harm. Those that are in the third tier may not have any perceived intention to harm the United States homeland, little or no link with Al-Qa'ida and a low capability to inflict harm today. The prioritization of groups does not mean that those lower tiered groups are necessarily less threatening. Each threat to the United States must be investigated and each is considered significant until proven otherwise. This same criteria will be used in any future major investigation where large numbers of individuals are subject to detention.
OIG Second Analysis
We believe that the DOJ's second response addresses the core concerns of our recommendation. The response describes how decisions will be made to determine whether someone is "of interest" to the FBI, and describes a protocol on how that decision will be made. For its initial decision, the FBI will rely on information from various places, including from the Terrorist Threat Integration Center and the Terrorist Screening Center (TSC). Both of these entities are in the beginning stages of development, particularly the TSC which is not fully operational. But we believe that the steps described by the DOJ provide concrete information on how decisions will be made on whether an alien is of interest to the FBI or whether the alien should be handled according to normal immigration procedures. The protocols appropriately allow for additional information to be considered. How this and other information is used in response to a crisis will be important in avoiding recurrences of problems like those described in the Detainee Report. But we believe that these protocols are a significant step forward in addressing this important issue.
The response also describes additional resources devoted to name checks and provides a general description of levels of priorities to be given certain investigations. Again, how these resources are deployed and the procedures that are implemented in practice will be critical, but we believe that the structure outlined by the DOJ is responsive to our recommendation.
Recommendation 2
Status: Closed
OIG Recommendation
The FBI should provide immigration authorities (now part of the Department of Homeland Security (DHS)) and the BOP with a written assessment of an alien's likely association with terrorism shortly after an arrest (preferably within 24 hours). This, in turn, would assist the immigration authorities in assigning the detainee to an appropriate detention facility and the BOP in determining the appropriate security level within a particular facility. In addition, the FBI should promptly communicate any changes in its assessment of the detainee's connection to terrorism so that the DHS and BOP can make appropriate adjustments to the detainee's conditions of confinement.
DOJ First Response
We agree with the idea that the FBI should provide DHS and BOP with a statement as to whether or not the FBI has a continued interest in an individual alien as expeditiously as possible. The FBI should also update DHS and BOP as new information of significance becomes available. Depending on the individual circumstances of the national emergency and the number of aliens involved, however, it may not be possible for the FBI to provide detailed written information as to an alien's suspected ties to terrorism within the twenty-four hour time frame suggested by the OIG. Also, it may not be desirable for the FBI to widely disseminate sensitive law enforcement or national security information related to the FBI's specific concerns about an individual alien. We will work with DHS to designate points of contact within the FBI, BOP and DHS to exchange information that is particularly sensitive through established channels.
OIG First Analysis
The DOJ appears to agree in principle with the recommendation that the FBI should provide the DHS and the BOP with a statement of its interest in a detainee held in connection with a terrorism investigation as expeditiously as possible. We also recognize that in some cases the FBI should not disseminate sensitive law enforcement information about a particular detainee, and we realize that a variety of factors will affect what information can and should be provided. However, we believe the FBI should normally provide the DHS with sufficient information to justify continued detention, denial of bond, and other restrictive actions. In addition, the FBI should provide the DHS and the BOP with timely information on individual detainees to enable both agencies to make appropriate decisions on detention security levels. Moreover, we believe that, in most cases, the FBI's statements should be provided to the DHS and the BOP in writing, and should be maintained in the detainee's case file.
To close this recommendation, we request that the FBI provide us by October 3, 2003, with specific details of the type of information it plans to provide to the DHS and the BOP with regard to its continued interest in a detainee.
DOJ Second Response
The FBI agrees with the recommendation of providing a "statement of interest" to DHS and BOP. While the FBI may not be able to provide such a statement within 24 hours in all cases, the FBI will provide the statement as expeditiously as possible while maintaining the integrity of the investigation and the national security of the United States. The FBI will strive to provide the "statement of interest" to DHS and BOP in writing. In circumstances where a written statement is not possible, the FBI will provide an initial statement of interest verbally and will provide a written statement as soon as possible thereafter. The FBI is in a position to provide a classified statement of interest to the appropriate DHS/BOP member, with a security clearance, on the NJTTF. The FBI has established points of contact with the DHS and BOP, by placing members of both organizations at the National Joint Terrorism Task Force (NJTTF), and it would be through this formal relationship that the dissemination of the information would occur. The FBI has also detailed personnel within the DHS to facilitate the exchange of information in the event that the DHS/BOP personnel assigned to the NJTTF were not available. Classified statements of interest will be protected under laws and procedures that apply generally to classified national security information.
The FBI is of the opinion that with the creation of TTIC, and the FBI's active participation in this program, the entire intelligence community, not only the DHS, will have more complete access to all of the pertinent terrorist files in the FBI. Through TTIC, those members of the DHS and BOP with the appropriate access to TTIC's classified website will be able to review the file of a subject and the basis of that investigation. Any recommendations regarding detention of a subject would come from the appropriate unit at FBIHQ having oversight of the subject under investigation, with input from the appropriate field division. The Terrorist Screening Center (TSC) will be responsible for developing appropriate policies and criteria to ensure the accuracy of information in the consolidated watch list data base and to ensure that the legal safeguards are in place to protect the privacy rights and personal freedoms, consistent with our Constitution and legal framework. The TSC will also be responsible for quality control issues, such as ensuring the appropriateness of entering a particular name when warranted. It will consolidate overall responsibility for day-to-day operation of the nation's various terrorist watch lists into a single interagency Center for the purpose of continuing efforts to protect the nation. As called for by the 9/11 Congressional Joint Inquiry, this streamlined approach is designed to not only enhance operational efficiencies but to also clearly designate responsibility for the system - all with the goal of making the country safer.
OIG Second Analysis
The DOJ agrees with our recommendation to provide an assessment of an alien's suspected association with terrorism "as expeditiously as possible," but states that it may not be possible to do so within 24 hours in all cases. We agree that this may not be possible, but we believe that 24 hours should be the presumptive time frame. The DOJ response appears to recognize the importance of a quick response, and states that the FBI will strive to provide the statement of interest in writing, as we recommended. The response also indicates that if the initial statement of interest is oral, the FBI will provide a written statement as soon as possible thereafter. This is responsive to our recommendation.
OIG Recommendation
Unless the federal immigration authorities, now part of the DHS, work closely with the Department and the FBI to develop a more effective process for sharing information and concerns, the problems inherent in having aliens detained under the authority of one agency while relying on an investigation conducted by another agency can result in delays, continuing conflicts, and concerns about accountability. At a minimum, we recommend that immigration officials in the DHS enter into a Memorandum of Understanding (MOU) with the Department and the FBI to formalize policies, responsibilities, and procedures for managing a national emergency that involves alien detainees. An MOU should specify a clear chain of command for any inter-agency working group. Further, the MOU should specify information sharing and reporting requirements for all members of such an inter-agency working group.
DOJ First Response
The creation of a new Department of Homeland Security (DHS) has, by definition, changed the way such a situation will be handled in the future. In particular, initial decisions whether to seek to detain illegal aliens during the course of an investigation into their possible terrorist ties will be made primarily by DHS. The Department of Justice and the FBI will continue to provide information for DHS to use in that process. We believe that the information sharing MOU already signed by the Department of Justice and DHS will provide DHS with information relevant to detention determinations. We are willing to consider taking additional measures and providing additional information requested by DHS as well. We have communicated the substance of our response on this recommendation to DHS and are awaiting their views.
Finally, as noted in our response to recommendation 1, we would note that there are likely to be cases where the FBI may not have a great deal of specific information about an individual alien but it may nevertheless be extremely concerned about the release of the alien without further investigation. In that regard, we disagree with the implied point made in the recommendation's preface, that the fact that an alien was arrested in connection with a PENTTBOM lead was not a sufficient basis for detention. Release on bond during removal proceedings is discretionary relief, not a right. The fact that an alien was encountered during a PENTTBOM lead and warranted further investigation by the FBI was a basis for the concern that the alien posed a danger and a risk of flight and was thus a proper basis for pursuing detention. We do agree, however, that efforts should be made to pursue investigative leads quickly to keep such detention brief, understanding that FBI resources again may face competing priorities in the event of future terrorist attacks.
OIG First Analysis
As noted in the DOJ's response, in March 2003 the DOJ entered into an MOU with the DHS and the CIA that, according to the MOU, "provides a framework and guidance to govern information sharing, use, and handling" between the three agencies. Section 3(p) of the MOU, entitled "Information Sharing Mechanisms," states that as soon as practicable the agencies "shall agree upon specific mechanisms" for sharing specific information and may designate "focal points, to maximize the effectiveness and coordination for providing covered information. Subsequent arrangement for information sharing may be reached upon the approval of the parties of their designees."
This MOU, while providing a broad framework of inter-agency cooperation, necessarily does not provide the level of detail specific to many potential scenarios. Moreover, as evidenced in the sections cited above, the MOU envisions the creation of additional mechanisms for sharing information on a variety of issues.
With respect to our recommendation, the OIG suggested that the DOJ and the DHS formalize policies, responsibilities, and procedures for managing a national emergency that involves alien detainees. The DOJ's response appears receptive to this idea, and suggests that it is willing to consider taking additional steps, beyond those outlined in the broad MOU, to provide the DHS with additional information relevant to its detention determination for aliens. However, the response does not state what the additional steps will be or how they will be implemented.
To close this recommendation, we request that the DOJ and the DHS provide by October 3, 2003, further information as to the specific mechanisms for managing a national emergency that involves alien detainees. In addition, we request a copy of the DHS response regarding the DOJ's willingness to consider taking additional measures and providing additional information to the DHS.
Finally, the DOJ's response states that "we disagree with the implied point made in the recommendation's preface, that the fact that an alien was arrested in connection with a PENTTBOM lead was not a sufficient basis for detention. Release on bond during removal proceedings is discretionary relief, not a right. The fact that an alien was encountered during a PENTTBOM lead and warranted further investigation by the FBI was a basis for the concern that the alien posed a danger and a risk of flight and was thus a proper basis for pursuing detention." This is similar to the statement in the second paragraph of the DOJ's response to the OIG Recommendations, which states: The OIG report implies that perhaps certain of the 762 aliens detained in connection with the September 11 investigation should not have been detained while the Federal Bureau of Investigation (FBI) continued to investigate their potential ties to terrorism. We believe that the Department made a sound policy decision immediately after the September 11 attacks to detain aliens present in the United States who might have connections with or possess information pertaining to terrorism activities against the United States until they were cleared by the FBI. These detentions were lawful and necessary to protect both the American people and the integrity of the largest criminal investigation in history, as we did not want to lose potential suspects or witnesses. While aliens in removal proceedings are not entitled to be released on bond, we agree that, if we were to face a similar situation in the future, efforts should be made to complete the investigations as quickly as possible. [Emphasis added.]
While we appreciate the DOJ's intention in the future to conduct clearance investigations more expeditiously, we believe the DOJ's response misperceives part of the OIG's recommendation. We did not criticize the decision to hold and investigate those aliens present in the United States who had violated immigration laws and who the DOJ believed had connections with or possessed information pertaining to terrorist activities. Rather, we criticized the haphazard and indiscriminate manner in which the FBI labeled many detainees as "of interest" because they potentially had connections to or information about terrorism. As we stated in the report, even in the hectic aftermath of the September 11 attacks, we believe the FBI should have taken more care to distinguish between those aliens who it actually suspected of having a connection to terrorism from those aliens who were simply encountered coincidental to a PENTTBOM lead. In New York, all illegal aliens encountered coincidental to a PENTTBOM lead were considered terrorism suspects and therefore subject to clearance investigations, while in other parts of the country the FBI made distinctions as to which aliens it considered terrorism suspects. We believe this determination should have been more considered and more uniform throughout the country, given the significant ramifications that flowed from this initial determination.
DOJ Second Response
As stated in the responses to Recommendations 1 and 2, DHS is working closely with the FBI through their participation in the Foreign Terrorist Tracking Task Force (FTTTF), established by Homeland Security Presidential Directive (HSPD)-2, dated October 29, 2001. Additionally, HSPD-6, dated September 16, 2003, established the Terrorist Screening Center (TSC) with specific DHS participation. The combination of these two entities establishes new information sharing capabilities. Specifically, the FTTTF maintains a data mart with DHS's immigration data and FBI's counter-terrorism data to identify common interests of the two agencies and assist in locating terrorists and their supporters. The TSC will maintain a consolidated list of terrorists and those appropriately suspected to be or have been involved in activities constituting, in preparation for, in aid of, or related to terrorism. These capabilities enhance the government's ability to quickly locate and determine an individual's association with terrorists.
It is clear that, as a general matter, when an alien is arrested on immigration charges, the FBI will provide DHS with information; DHS will then make the determination whether a specific alien should be detained. We are currently exchanging views with DHS regarding the potential terms of a MOU that would address the detention of aliens following a future terrorist attack. We believe that we will need some time to complete these negotiations because it is necessary to preserve flexibility for handling national security-related cases and want to ensure that a potential MOU does not unduly constrain both Departments' ability to adjust readily to different conditions that we may not have contemplated. In the meantime, the mechanisms described in the responses to the first and second recommendations ensure that the FBI will provide appropriate information to DHS in relevant situations.
OIG Second Analysis
The DOJ's second response states that the DOJ and the DHS currently are exchanging views regarding an MOU that would address the detention of aliens following a future terrorist attack, and that such negotiations will take time to complete. In order to close this recommendation, please provide the specific MOU when it is completed or an update as to the status of its development by March 1, 2004.
Recommendation 5
Status: Closed
OIG Recommendation
We believe it critical for the FBI to devote sufficient resources in its field offices and at Headquarters to conduct timely clearance investigations on immigration detainees, especially if the Department institutes a "hold until cleared" policy. The FBI should assign sufficient resources to conduct the clearance investigations in a reasonably expeditious manner, sufficient resources to provide timely information to other agencies (in this case, additional FBI agents to support the SIOC Working Group), and sufficient resources to review in a timely manner the results of inquiries of other agencies (in this case, completed CIA checks). In addition, FBI Headquarters officials who coordinated the detainee clearance process and FBI field office supervisors whose agents were conducting the investigations should impose deadlines on agents to complete background investigations or, in the alternative, reassign the cases to other agents.
DOJ First Response
We agree that it is important for the FBI to devote sufficient resources to these cases. We would note, however, that the FBI was strapped in an unprecedented way in the aftermath of the September 11 attacks, particularly following the anthrax attacks.
In addition, the FBI will explore avenues to obtain additional investigative resources when a surge capacity is required during a crisis situation, perhaps based upon a declaration by the Director and/or the Attorney General. For example, the additional resources to address a shortfall of investigative resources could be obtained through mutual aid agreements with other federal law enforcement agencies and the contracting or rehiring of FBI annuitants.
OIG First Analysis
We believe the DOJ's response addresses the main part of our recommendation. However, it is important to note that the OIG report acknowledged that the FBI was challenged in unprecedented ways by the September 11 attacks and the numerous investigative leads it had to follow in the aftermath of the attacks. Yet, we believe it was an unwise investigative strategy to hold detainees who the FBI apparently suspected of having some connection to terrorism without conducting reasonably expeditious investigations of them. For example, if these detainees actually had knowledge about the terrorism attacks, the FBI's failure to investigate reasonably quickly their ties to terrorism potentially resulted in the loss of valuable investigative information. It also was unfair to allow the detainees who were labeled "of interest" to languish in highly restrictive detention without any clearance investigation being conducted. We believe that the FBI could have, and should have, reallocated some of its personnel that continued to work on non-terrorism related issues after September 11 to help with the clearance investigations of those detainees who the FBI had labeled "of interest" to the terrorism investigation. Alternatively, the FBI could have used the services of other federal, state, and local law enforcement personnel to help with the clearance investigations, many of whom had the necessary clearances and had volunteered to help the FBI in the aftermath of the September 11 attacks.
The OIG agrees that the FBI should explore developing agreements with other federal law enforcement agencies that could provide additional investigative assistance to complete clearance investigations of detained aliens in a crisis situation. However, we continue to recommend that the FBI develop a tiered approach to conducting its background investigations. The DOJ response does not address this issue.
We believe the FBI should develop criteria to help decide which investigations to conduct first, so that potentially time-sensitive intelligence possessed by detainees may be exploited as soon as possible. In addition, conducting timely background investigations may clear individual detainees of any connections to terrorism, thereby avoiding unnecessarily prolonged detention. We also note that the DOJ has not addressed specifically any of the areas cited in the OIG report that caused delays (pages 58-64), such as delays at FBI Headquarters in sending informational requests to the CIA and difficulties in getting personnel with the appropriate skills and access to the necessary computers to analyze the CIA responses.
To close this recommendation, the OIG requests more detailed information from the FBI by October 3, 2003, on its plans to address the resource and training deficiencies cited in the OIG report and on its efforts to explore cooperative agreements with other law enforcement agencies.
DOJ Second Response
Today there are 56 FBI Joint Terrorism Task Forces (JTTF) and 28 annexes spread throughout the United States, with coverage to all states. The JTTFs are made up of over 25 different Federal agencies and hundreds of state and local law enforcement agencies. Every JTTF Officer, Agent, and Analyst has a Top Secret clearance which allows those members unfiltered access to all of the FBI's information. In addition to the local JTTFs spread across the country, the National Joint Terrorism Task Force is located at FBI Headquarters, where 35 different Federal agencies, with access to their respective databases, are represented. The FBI believes that the expansion of the JTTF program has addressed the OIG Recommendation of adding outside personnel to assist in the sharing of information, and at the same time utilizing the services of these additional personnel in future investigations.
The FBI is of the opinion that with the creation, and participation in TTIC, the flow of information between not only the FBI and CIA will be completed in a more timely manner, but the exchange between the FBI and all members of the USIC will be enhanced. The FBI has enhanced the National Name Check Unit, within the Records Management Division, to where it stands today with 119 full time employees. The National Name Check Unit is now in a position to directly deal with the large amount of CIA cables being received by the FBI requesting name checks. TTIC will review, and subsequently nominate, the subjects of terrorist related investigations from various members of the intelligence community. After a review process, the subjects of investigative interest maybe referred to the Terrorist Screening Center (TSC).
The Terrorist Screening Center (TSC) will consolidate all existing terrorist watch lists currently being used by the United States Government into a single function to provide accurate information to terrorist screeners around the country on a 24/7, real-time basis. This function will consolidate into one central location information that law enforcement, the Intelligence Community, and the State Department already possess. This integration of existing watch list functions of a variety of agencies will enhance the coordination, consistency and accuracy of on-going efforts by creating a mechanism for one-stop shopping to be sued by used by local, state, and Federal officers, as well as others who may have a need to receive this information.
FBIHQ has established a policy (effective 01/25/2002) which requires each field office to report, via "Urgent Reports", all significant events occurring within a Field Division's jurisdiction to the Strategic Information & Operations Center (SIOC) immediately. The "Urgent Report" from the field office serves as a notification process to FBIHQ of a detention (or event) and the proposed course of investigation. The "Urgent Report" comes from the respective field division and goes to the executive management of FBIHQ, in addition to the substantive unit having oversight of that particular terrorist group or region of the work where the subject is from. The detention of any alien on the grounds of suspected terrorism connections would require such a reporting to FBIHQ.
Priority criteria for FBI investigation has been developed. Threats reported to the FBI through the CT Watch receive the highest priority as the primary mission and focus of the FBI is to prevent, detect and deter terrorist attacks against the United States and its citizens both at home and abroad. Of the threats received, those dealing with weapons of mass destruction, including chemical, biological, radiological and nuclear threats are given the highest priority. Counterterrorism operations and investigations are prioritized based on the FBI's National Threat Assessment. This threat assessment identified the known, active, terrorist groups having a presence in the United States and ranked them into three tiers. Those that are prioritized in the first tier have high intentions to harm the homeland, moderate to strong links with Al-Qa'ida, and high capabilities to inflict harm. Those that are in the third tier may not have any perceived intention to harm the United States homeland, little or no link with Al-Qa'ida and a low capability to inflict harm today. The prioritization of groups does not mean that those lower tiered groups are necessarily less threatening. Each threat to the United States must be investigated and each is considered significant until proven otherwise. These same criteria will be used in any future major investigation where large numbers of individuals are subject to detention.
OIG Second Analysis
We believe the additional resources that the FBI has devoted to counterterrorism investigations, JTTFs, the TSC, and the FBI Name Check Unit are important steps that could address the problems that we found stemming from insufficient resources devoted to clearance investigations in connection with the September 11 detainees. How those resources are used, and what priority is given to clearance investigations, ultimately will determine whether problems similar to the ones we described in the Detainee Report are repeated. The DOJ's response generally addresses the question of priority investigations, but does not directly address the issue of which investigations would be conducted first, or whether the FBI will impose deadlines or reassign cases to other agents to ensure that clearance investigations are conducted in a timely manner. Implementation of these priorities will be the key factor in preventing similar problems in the future. However, we believe that the DOJ's actions are responsive to our recommendation.
Recommendation 6
Status: Closed
OIG Recommendation
We understand the resource constraints confronting the Department in the days and weeks immediately following the September 11 attacks. We also recognize that decisions needed to be made quickly and often without time to consider all the ramifications of these actions. However, within a few weeks of the terrorist attacks it became apparent to many Department officials that some of the early policies developed to support the PENTTBOM investigation were causing problems and should be revisited. Examples of areas of concern included the FBI's criteria for expressing interest in a detainee and the "hold until cleared" policy. We believe the Department should have, at some point earlier in the PENTTBOM investigation, taken a closer look at the policies it adopted and critically examined the ramifications of those policies in order to make appropriate adjustments. We recommend that the Department develop a process that forces it to reassess early decisions made during a crisis situation and consider any improvements to those policies.
DOJ First Response
We agree that policy decisions must always be subject to reassessment but do not agree that any new process for doing so should be created. There are already ample processes in place for the Department to reassess its practices and policies. For example, the Department's senior national security team convenes for regular bi-weekly meetings with the Deputy Attorney General and the Attorney General's Chief of Staff. There are also regular component head meetings with the Deputy Attorney General as well as numerous other formal and informal opportunities for raising policy issues with the Department's senior leadership. Of course, the success of any such process depends on the components involved to provide, through the components' leadership, ongoing advice and concrete recommendations through appropriate means. Such advice and recommendations allow for a meaningful assessment by the Department's policy makers. The Department's leadership must be informed of the issues by communications from the highest levels of the components, particularly during a crisis situation. The Attorney General and the Deputy Attorney General always are and always have been available if any Department component head wants to discuss an issue or raise a concern.
OIG First Analysis
This recommendation did not suggest that the DOJ lacks feedback mechanisms to reassess its activities under normal conditions. However, the September 11 attacks were an unusual event and our report found that the DOJ failed to reassess critical legal issues, such as its "hold until cleared" policy, in a timely manner. We continue to believe that the DOJ should develop a process - outside its normal processes - that would require a rigorous re-evaluation of policies and operations implemented during a national crisis.
DOJ Second Response
While we appreciate the views of the OIG, we respectfully disagree. In fact, former Deputy Attorney General Larry Thompson explicitly indicated in our July 21 response: "[w]e agree that policy decisions must always be subject to reassessment but do not agree that any new process for doing so should be created." The Department is continually reassessing policy decisions in an attempt to improve our performance, and the Office of the Inspector General plays an important role in that process. The fact that polices implemented since September 11, 2001, have evolved illustrate that we are willing and able to make changes to our policies through established processes. Accordingly, the Department has concluded that it is not necessary and that it might even be counterproductive to establish a new and separate bureaucratic process to evaluate policy decisions during a period of national crisis.
OIG Second Analysis
The DOJ states that it has carefully considered our recommendation to establish a specific process, outside the normal channels, to reassess early decisions made during a crisis situation and consider improvements to those policies. The DOJ believes its normal processes are adequate and that it might be counterproductive to establish a new and separate process to evaluate policy decisions during a crisis. We continue to believe that it would be useful to establish such a mechanism - in advance of a crisis - to assess initial decisions, although we recognize that the DOJ's current mechanisms may work effectively if they are fully used during such a crisis. Ultimately, however, it is the DOJ's responsibility to manage such emergencies. Senior officials believe that mechanisms currently in existence are adequate and, more importantly, will be used to reassess initial decisions in a future crisis. Because the DOJ has carefully considered this recommendation - even though it has declined to adopt it - we are closing this recommendation.
Recommendation 9
Status: Closed
OIG Recommendation
We recommend that Offices of General Counsel throughout the Department establish formal processes for identifying legal issues of concern - like the perceived conflict between the Department's "hold until cleared" policy and immigration laws and regulations - and formally raise significant concerns, in writing, to agency senior management and eventually Department senior management for resolution. Such processes will be even more important now that immigration responsibilities have transferred from the Department to the DHS.
DOJ First Response
We agree with this recommendation. Department of Justice components should already be aware that, throughout the Department, components have an obligation to raise significant legal or policy concerns through the chain of command to component heads and agency leadership by appropriate means. The Department's leadership should be informed of such issues by communications from the highest levels of the components. With either policy or legal issues of great import, it may not be adequate to simply raise them in passing. Rather, it may be appropriate to raise them in writing, with a clear identification of the issues and an analysis of potential alternatives.
The Department's Office of Legal Counsel (OLC) has always been and remains available to provide legal advice to components, as OLC considers and sets forth the definitive legal position of the Department and the Executive Branch. The new Department of Homeland Security (DHS) may avail itself of OLC's services in the event DHS believes it needs further guidance on legal issues.
OIG First Analysis
As we noted in our analysis of Recommendation 6, normal processes often break down in a crisis situation, and we continue to believe that development of a formal process to raise significant legal issues for resolution by senior management would be useful. For example, as discussed in our report, high-level DOJ officials responsible for coordinating immigration issues should have considered the legal ramifications of the DOJ's "hold until cleared" policy well before the end of January 2002 when the policy was changed.
While we recognize that DOJ leaders and OLC are available for consultation with regard to all legal issues, we believe a more formal mechanism should be established to ensure that significant legal and policy concerns are considered and addressed in crisis situations.
DOJ Second Response
Although we agree with the recommendation that legal and policy issues should be raised in writing to senior Department leadership, we again respectfully disagree that a new process should be established to raise such issues during a time of national crisis. In fact, during a crisis situation, we believe that it is even more critical to use the already established lines of communication, through the chain of command to component heads and agency leadership to the Department's leadership, to ensure that all of the relevant officials are aware of issues of concern that need to be addressed. We have, therefore, concluded that agency leadership will notify the Department's leadership through existing processes and will provide concrete advice as to how to resolve the issue.
OIG Second Analysis
Similar to the preceding recommendation, the DOJ agrees with the intent of this recommendation to raise in writing to DOJ leadership legal and policy issues, but it does not believe that any new process needs to be created to ensure that relevant officials are aware of issues of concern that need to be addressed. We continue to believe that Offices of General Counsel should establish a formal process to discuss issues of concern and to ensure that significant matters are raised in writing at an early stage during a crisis. However, we recognize that the DOJ's current mechanisms can work effectively in a crisis if fully used. Therefore, because the DOJ has carefully considered our recommendation and has indicated it will use established lines of communication in a future crisis, we are closing this recommendation.
Recommendation 10
Status: Open
OIG Recommendation
We recommend that the BOP establish a unique Special Management Category other than WITSEC for aliens arrested on immigration charges who are suspected of having ties to terrorism. Such a classification should identify procedures that permit detainees reasonable access to telephones more in keeping with the detainees' status as immigration detainees who may not have retained legal representation by the time they are confined rather than as pre-trial inmates who most likely have counsel. In addition, BOP officials should train their staff on any new Special Management Category to avoid repeating situations such as when MDC staff mistakenly informed people inquiring about a specific September 11 detainee that the detainee was not held at the facility.
DOJ First Response
We concur with this recommendation. The BOP originally believed the new Management Interest Group 155 category that was implemented in late October 2001 would correct the problems the initial WITSEC assignment had created with regard to the September 11 immigration detainees. Upon further review, the BOP believes that this new category continued to cause similar confusion, as the procedures lacked specificity. Accordingly, new procedures will be established for the use of the Management Interest Group 155 category that provide clear and specific guidance. Training will then be provided to appropriate staff, which we believe will prevent any potential misunderstandings about the category.
OIG First Analysis
To close this recommendation, please provide us by October 3, 2003, with a copy of the BOP's new procedures and information about its completed or planned training.
DOJ Second Response
The Bureau of Prisons (BOP) has developed a new policy to address many of the OIG's recommendations. The creation of this policy is an important task that the BOP has taken seriously in order to ensure the policy addresses as many issues as possible regarding the housing of detainees during a crisis situation. While the BOP has completed the review of the policy within the BOP management structure, BOP procedures require management to provide the Union with an opportunity to review all new and/or modified policies. Based on the BOP's contract, the Union has the right to invoke negotiations within 30 days of receipt. Should the Union choose to invoke negotiations on this policy, the possibility does exist for revision. Therefore, although this policy has been signed, it has not yet been implemented. A copy of the new policy is attached at Tab 1. It has been identified as "Limited Official Use - Staff Access Only" because the BOP believes that the release of this information outside the Federal law enforcement community could compromise the security of the BOP's institutions and the safety of BOP staff and the general public.
The new BOP policy, entitled "Management of Select Inmates During National Security Emergency Situations," provides clear and specific procedures, to include telephone access for inmates classified as Category I Management Interest Inmates. The BOP will incorporate training on this policy into the BOP's FY 2005 annual training requirement. Annual training is a mandatory training requirement for all BOP staff and is completed during the first 4 months of the calendar year. In addition, training will be provided during the National Captains' and Associate Wardens' Training in FY 2004, as well as during the BOP Wardens' Training in FY 2005.
OIG Second Analysis
We believe the BOP's new policy, if implemented, will address the concerns underlying this recommendation. The new policy establishes a specific inmate category for "of interest" detainees, designates the Intelligence Section at BOP Headquarters as the unit responsible for determining whether detainees are still of investigative interest related to a national emergency (to be updated at least monthly), and mandates that all information used to support an inmate's classification as an "of interest" detainee be documented in the inmate's central BOP file.
If fully implemented, we believe this policy should avoid the problems that were created by the BOP's classification of the September 11 detainees as "WITSEC" inmates. To close this recommendation, please notify us when the policy is implemented. If not implemented before March 1, 2004, please provide us with an update on the status of the policy.
Recommendation 11
Status: Closed
OIG Recommendation
Given the highly restrictive conditions under which the MDC housed September 11 detainees, and the slow pace of the FBI's clearance process, we believe the BOP should consider requiring written assessments from immigration authorities and the FBI prior to placing aliens arrested solely on immigration charges into highly restrictive conditions, such as disciplinary segregation in its ADMAX SHU. Absent such a particularized assessment from the FBI and immigration authorities, the BOP should consider applying its traditional inmate classification procedures to determine the level of secure confinement required by each detainee.
DOJ First Response
We agree the FBI should provide the BOP with a statement (verbal or written) as to the FBI's interest in the alien but the BOP does not believe that a detailed assessment should be required. The BOP and FBI will discuss whether to implement a system to review the level of security for immigration detainees at regular intervals.
OIG First Analysis
We continue to believe, as we stated in the discussion of Recommendation 2, that FBI statements provided to the BOP and DHS regarding its interest in specific detainees normally should be in writing and be placed in the detainee's case file. The information provided by the FBI to the DHS also should be sufficiently detailed to justify the detainees' continued detention, whether the detainee should be released on bond, and other related issues. Further, the information provided to the BOP should be sufficient to allow it to make an assessment of the detainees' potential security risks and justify confinement under highly restrictive conditions, such as disciplinary segregation in an Administrative Maximum Special Housing Unit, or ADMAX SHU. Absent such a particularized assessment from the FBI and immigration authorities, the BOP should consider applying its traditional inmate classification procedures to determine the level of secure confinement required by each detainee.
To close this recommendation, we request that the DOJ provide, by October 3, 2003, the results of discussions between the FBI and the BOP about whether to implement a system to review periodically the security level of immigration detainees. Specifically, we request that the DOJ's response address whether the BOP plans to use its inmate classification procedures to determine an appropriate level of confinement in cases where no information is forthcoming from the FBI about the security risk posed by individual immigration detainees.
DOJ Second Response
The FBI will provide either a verbal or written statement to the BOP and DHS as to their interest in a detainee. If a written statement is received from the FBI, the BOP will place the information in the inmate's central file. If only a verbal statement is provided, this information will be documented by BOP staff in the inmate's central file. Along with, or in the absence of this statement the BOP will apply its traditional inmate classification procedures to determine the level of secure confinement required by each detainee. Additionally, on a monthly basis the BOP will request and receive a status update from the FBI for each Category I Management Interest Inmate, to determine if continuation in highly restrictive conditions of confinement is still warranted. All information used to support the inmate's classification as a Category I Management Interest Inmate will be documented in the inmate's central file.
OIG Second Analysis
These actions are responsive to the recommendation and we therefore consider it closed.
Recommendation 12
Status: Closed
OIG Recommendation
We found delays of days and sometimes weeks between when the FBI notified the BOP that a September 11 detainee had been cleared of ties to terrorism and when the BOP notified the MDC that the detainee could be transferred from its ADMAX SHU to the facility's general population, where conditions were decidedly less severe. We recommend that BOP Headquarters develop procedures to improve the timeliness by which it informs local BOP facilities when the detention conditions of immigration detainees can be normalized.
DOJ First Response
We also believe it is important that timely notifications are made. The BOP will develop written procedures regarding the timeliness by which we inform local BOP facilities when the detention conditions of detainees can be normalized.
OIG First Analysis
To close this recommendation, the OIG requests by October 3, 2003, a copy of the written procedures for informing local BOP facilities when a detainee's detention conditions can be normalized.
DOJ Second Response
A time frame of 2 business days has been established regarding the timeliness by which local facilities are informed the detention conditions of detainees can be normalized. This time frame is contained in the BOP's new policy described in the response to Recommendation 10, which is attached at Tab 1 and marked as "Limited Official Use - Staff Access Only."
OIG Second Analysis
The new BOP policy requires that the BOP's Assistant Director of Correctional Programs provide written authorization within two business days to the affected BOP institution when an "of interest" inmate has been removed from the new Category I Management Interest assignment. The new policy also stipulates that the BOP institution holding the inmate must remove the inmate from the Category I status within 24 hours. This policy is responsive to our recommendation and we consider the recommendation closed.
Recommendation 13
Status: Open
OIG Recommendation
We found evidence indicating a pattern of physical and verbal abuse by some MDC corrections staff against some September 11 detainees. While the OIG is continuing its administrative investigation into these matters, we believe MDC and BOP management should take aggressive and proactive steps to educate its staff on proper methods of handling detainees (and inmates) confined in highly restrictive conditions of confinement, such as the ADMAX SHU. The BOP must be vigilant to ensure that individuals in its custody are not subjected to harassment or more force than necessary to accomplish appropriate correctional objectives.
DOJ First Response
We agree the BOP must remain vigilant to ensure individuals in our custody are not subjected to harassment or more force than necessary. The BOP will develop a new policy outlining specific procedures for highly restrictive conditions of confinement for detainees. This new policy will encompass procedures for implementing many of the recommendations made by the OIG. Once the policy is published, training will be scheduled to familiarize staff. In the view of the BOP, however, the OIG's finding that there was a "pattern of physical and verbal abuse" by MDC staff is premature in that there is a continuing investigation into this matter. To date, the BOP has not received any investigative reports from the OIG sustaining misconduct against staff which would support this conclusion.
OIG First Analysis
As discussed in the report, the OIG concluded that the evidence indicated a pattern of physical and verbal abuse by some correctional officers against some September 11 detainees housed at the MDC in Brooklyn, New York. In June 2003, we provided an interim briefing to the BOP about our investigation and our findings. The OIG has continued its investigation into these issues and has found additional evidence to support this finding. We are now in the process of concluding our investigation into these issues, and we plan to submit a detailed report to the BOP in the near future that contains findings and recommendations with regard to individual BOP correctional officers, as well as systemic issues that the follow-up investigation has identified. We also intend to release publicly the general findings of that report.
To close this recommendation, the OIG requests a copy by October 3, 2003, of the new BOP policies to address procedures for handling detainees in highly-restrictive conditions of confinement and a schedule for BOP employee training on these new policies.
DOJ Second Response
The new BOP policy, described in the response to Recommendation 10 and attached at Tab 1 marked as "Limited Official Use - Staff Access Only," outlines specific procedures for highly restrictive conditions of confinement for detainees, including a section which specifically addresses the professionalism of staff. The BOP will incorporate training in this regard into the BOP's FY 2005 annual training requirement. The training regarding employee code of conduct and treatment of inmates will be facilitated by the warden or associate warden at each institution. In addition, training will be provided during the National Captains' and Associate Wardens' Training in FY 2004, as well as during the BOP Wardens' Training in FY 2005.
OIG Second Analysis
We believe that the BOP's actions are generally responsive to our recommendation. The new BOP policy states, among other things, that BOP staff should conduct themselves in a professional manner at all times and that any physical or verbal abuse against detainees is "unacceptable." In addition, the BOP has indicated it will provide training to BOP employees on these issues beginning in fiscal year 2004. To close this recommendation, by March 1, 2004, please provide us with a description of that training and when it will occur.
In addition, in December 2003 the OIG provided to the BOP a supplemental report on allegations of physical and verbal abuse against detainees at the MDC. The supplemental report contained an Appendix detailing the evidence against individual employees. To close this recommendation, please provide by March 1, 2004, the actions that the BOP has taken in response to that supplemental report.
Recommendation 14
Status: Closed
OIG Recommendation
BOP and MDC officials anticipated that some September 11 detainees might allege they were subject to abuse during their confinement. Consequently, they took steps to help prevent or refute such allegations by installing cameras in each ADMAX SHU cell and requiring staff to videotape all detainees' movements outside their cells. Unfortunately, the MDC destroyed the tapes after 30 days. We recommend that the BOP issue new procedures requiring that videotapes of detainees with alleged ties to terrorism housed in ADMAX SHU units be retained for at least 60 days.
DOJ First Response
We agree with the principle behind this recommendation but are unsure as to whether the recommended 60 days will be adequate to address the issue. The BOP will further study the length of time videotapes should be maintained in these circumstances and develop policy to implement.
OIG First Analysis
As we discussed in the report, the BOP's decision to allow MDC staff to destroy or reuse videotapes after 30 days hampered the usefulness of the BOP's videotape system to prove or disprove allegations of abuse raised by individual detainees. We agree that retaining the videotapes for 60 days may not be adequate to address this issue: our recommendation was that 60 days was the minimum retention period that the BOP should consider. For example, the BOP may determine that it should retain all videotapes related to a detainee for one year after the alien is released or removed from BOP custody.
To close this recommendation, we request a copy of the BOP's new videotape retention policy by October 3, 2003.
DOJ Second Response
The BOP has conducted a review regarding the length of time videotapes should be maintained in these circumstances. The attached new BOP policy, which is described in the response to Recommendation 10, attached at Tab 1 and marked as "Limited Official Use - Staff Access Only," indicates there may be times when it is deemed necessary to videotape the inmate(s) routine movement outside his/her cells, and the staff entrances into the inmate's cell. The decision to record this activity will be determined on a case-by-case basis and approved only by the Assistant Director, Correctional Programs Division. The specific time frame for retention of videotapes will be 6 months and has been incorporated into the new policy.
OIG Second Analysis
The new BOP policy requires its staff to retain for six months videotapes that depict routine inmate movements outside cells and BOP officers' entrances into the cells of inmates who are confined pursuant to national emergencies. We believe this adequately addresses our recommendation and therefore consider this recommendation closed.
Recommendation 15
Status: Closed
OIG Recommendation
We recommend that the BOP ensure that all immigration detainees housed in a BOP facility receive full and timely written notice of the facility's policies, including procedures for filing complaints. We found that the MDC failed to consistently provide September 11 detainees with details about its Administrative Remedy Program, the formal process for filing complaints of abuse.
DOJ First Response
We agree with this recommendation. BOP policy requires each inmate acknowledge receipt of the rules and regulations of confinement, including procedures for filing complaints. We will take the necessary steps to reinforce this policy and ensure the notice is provided in a clear and consistent manner.
OIG First Analysis
As discussed in our report, an MDC official told the OIG that all September 11 detainees received a facility handbook when they were processed into the MDC. However, MDC staff apparently confiscated the handbooks as unacceptable items for the detainees to retain in their ADMAX SHU cells and, instead, provided many of the detainees with a 2-page summary of MDC policies that did not contain information about procedures for filing a formal complaint. We believe that if the BOP ultimately decides for security reasons that detainees should not be permitted to keep the full facility handbook in their cells, any summary of these policies must contain information describing the process for filing a formal complaint.
To close this recommendation, we request by October 3, 2003, a copy of the specific actions the BOP will take to reinforce its policies and to ensure that detainees are informed about the rules and regulations of BOP detention facilities in which they are confined.
DOJ Second Response
The importance of all detainees receiving full and timely notice of BOP's policies, including procedures for filing complaints, has been reiterated to all Chief Executive Officers (CEOs) in the attached memorandum from the Director dated October 30, 2003 (see Tab 2).
OIG Second Analysis
We believe the clarification of BOP policy contained in the October 2003 memorandum from the Director is responsive to this recommendation. The policy for Category I inmates is explicit that they must receive and be permitted to retain the Admission and Orientation Handbook, which includes the procedures for filing an Inmate Request to Staff and Administrative Remedies. The memorandum from the Director of the BOP also explicitly states that all newly admitted inmates should "receive full and timely written notice of our policies and are allowed to retain institution and Admission and Orientation handbooks, which should include the Inmate's Rights and Responsibilities." It further states that, "These documents should be issued during intake and include procedures for filing Inmate Request to Staff and Administrative Remedies in accordance with current BOP policy." These actions reinforce BOP policy that detainees be informed about BOP rules and regulations, including those for filing a formal complaint. We therefore consider this recommendation closed.
Recommendation 16
Status: Open
OIG Recommendation
Some MDC correctional staff asked detainees "are you okay" as a way to inquire whether they wanted their once-a-week legal telephone call. Detainees told the OIG that they misunderstood this question and, consequently, unknowingly waived their opportunity to place a legal call. We recommend that the BOP develop a national policy requiring detainees housed in SHUs to affirm their request for or refusal of a legal telephone call, and that such affirmance or refusal be recorded in the facility's Legal Call Log.
DOJ First Response
We will incorporate into the policy described in the response to Recommendation 13 the need to allow detainees held in highly restrictive conditions of confinement an appropriate level of communication with counsel. This policy will include the requirement that staff ensure detainees gain initial access to an attorney and that staff document such access (or refusal by the inmate). This policy will be helpful for immigration detainees who have the right to counsel at no expense to the government.
We would note that we have become increasingly aware that with respect to certain pretrial inmates legal phone calls may present substantial opportunities for the transmission of information that could threaten national security and/or public safety. These calls are unmonitored and the staff cannot verify or control who is a party to the call. Accordingly, we intend to carefully review our policy on legal phone calls for pretrial inmates.
Once detainees have obtained counsel, we believe our current policies and procedures provide sufficient opportunities for pretrial inmates (defined in 28 C.F.R. § 551.101(a)(1) to include detainees) to communicate with legal counsel. Detainees have access to unmonitored inmate-attorney correspondence, an opportunity for private legal visits on a daily basis, and the ability to make unmonitored calls to their attorney upon the inmate's request, as often as resources of the institution allow. 28 C.F.R. § 551.117. This access is available to all detainees and other pretrial inmates including those assigned to Special Housing Units (SHU).
OIG First Analysis
The BOP agrees in principle with our recommendation to revise its policies to facilitate detainees' ability to obtain legal representation when they first arrive at a BOP facility, and the DOJ response states that the BOP will incorporate policy changes in this area.
However, the response does not clearly address the situation we found in which an MDC unit counselor used the phrase, "are you okay," to ask September 11 detainees if they wanted their weekly legal telephone call. The OIG report determined that the use of this shorthand statement unduly hindered detainees' ability to consult with legal counsel. We therefore believe the new policy should require the BOP to have detainees housed in SHUs state clearly their request or refusal to make a legal telephone call, and that this request or refusal be recorded in the facility's Legal Call Log.
To close this recommendation, we request by October 3, 2003, a copy of the BOP's policy implementing this recommendation.
DOJ Second Response
BOP staff are required to make routine rounds through the Special Housing Unit. In doing so, staff routinely ask inmates "are you okay" or other similar questions to inquire about their general well-being and any issues or concerns they need to address. Asking "are you okay" was not intended to be a proxy for asking a detainee whether they would like a legal phone call.
The BOP reviewed current policy regarding telephone access for pretrial detainees and determined changes are not necessary. However, specific guidance regarding telephone access for Category I Management Interest Inmates is outlined in the new BOP policy, which is described in the response to Recommendation 10, attached at Tab 1 and marked as "Limited Official Use - Staff Access Only." This policy includes the requirement that staff ensure detainees gain initial access to an attorney and document in a legal call logbook such access or refusal by the inmate.
OIG Second Analysis
We believe that the BOP's response may not clearly address the problems that we identified in our Detainee Report. First, we believe that the BOP's response regarding Category 1 inmates - that they will have guaranteed access to telephones for legal calls - is appropriate and responsive. However, it is not clear if pretrial detainees, like the September 11 detainees described in the Detainee Report, will be classified as Category 1 inmates and, if so, whether they will be subject to these revised policies. To close this recommendation, please provide clarification on this issue.
The BOP's response included revised policies that apply to all inmates held in the Special Housing Unit in Brooklyn, New York. Those revised policies provide for access to legal calls for such inmates, but only if the inmate first submits a request for a call. They do not require any staff member to offer legal phone calls to the inmates, or to keep a record of whether inmates accept or decline offers of legal phone calls.
In addition, the DOJ response was inaccurate in stating that BOP staff at the MDC routinely asked September 11 detainees "are you okay" to inquire about their well-being and that the question was not intended as a proxy for asking whether the detainees would like a legal telephone call. In fact, this statement is directly contradicted by what we were told by the BOP employee who was responsible for providing telephone calls to the September 11 detainees at the MDC. He admitted to the OIG that he considered a detainee's affirmative answer to his question "are you okay" to mean that the detainee did not want a legal call that week.
To close this recommendation, we request by March 1, 2004, information regarding how detainees who are not in Management Category 1, and who are not charged criminally, will be provided with access to telephones to obtain and communicate with legal counsel. With respect to these inmates, we request information regarding who will provide access to legal calls, how often the calls will be provided, and whether an inmate's acceptance or refusal of such a call will be recorded in the facility's Legal Telephone Log Book.
Recommendation 17
Status: Open
OIG Recommendation
We recommend that the MDC examine its ADMAX SHU policies and practices in light of the September 11 detainees' experiences to ensure their appropriateness and necessity. For example, we found that while the MDC offered September 11 detainees exercise time in the facility's open-air recreation cell, they failed to provide suitable clothing during the winter months that would enable the detainees to take advantage of this opportunity. In addition, we found that the MDC kept both lights on in the detainees' cells 24 hours a day for several months after they had the ability to turn off at least one of the cell lights.
DOJ First Response
We concur with this recommendation. The BOP will review the MDC's housing unit policies and conditions to ensure they are appropriate and that detainees with suspected ties to terrorism are detained in conditions with the appropriate level of security.
OIG First Analysis
To close this recommendation, we request by October 3, 2003, a copy of the BOP's review of the MDC's housing unit policies that address the specific issues raised in the recommendation. We also believe that any policy revisions that result from this review should be implemented throughout the BOP, and not solely at the MDC.
DOJ Second Response
The BOP conducted a review of the MDC's Special Housing Unit policies and made recommendations for change. The MDC revised its policies based on this review and recommendations. The BOP reviewed and approved the revised policies. A copy of the BOP's reviews and MDC's policies are attached at Tab 3. These documents are also marked as "Sensitive Limited Official Use Only" due to our belief that release of these documents outside the Federal law enforcement community could compromise the security of our institutions and the safety of our staffs and the general public.
It was determined national policy did not require a revision, as the problems noted at the MDC were local. The Director has, however, addressed these issues in a memorandum to all Chief Executive Officers (see Tab 2).
OIG Second Analysis
We believe the BOP's new policies are generally responsive to our recommendation. Although the policies state that staff members must provide inmates "foul weather gear" during "inclement weather," we believe that "inclement weather" includes cold weather, which was the issue in the Detainee Report.
While some of the problems identified in the Detainee Report were unique to the MDC, we continue to believe that certain policy revisions that result from this review should be implemented throughout the BOP.
To close this recommendation, we request by March 1, 2004, a copy of the housing unit policies at the MDC that address the specific issues raised in this second analysis. We also request that the BOP reconsider its decision not to implement these policy revisions throughout the BOP.
Recommendation 20
Status: Closed
OIG Recommendation
How long the INS legally could hold September 11 detainees after they have received final orders of removal or voluntary departure orders in order to conduct FBI clearance checks was the subject of differing opinions within the INS and the Department. A February 2003 opinion by the Department's Office of Legal Counsel concluded, however, that the INS could hold a detainee beyond the normal removal time for this purpose. That issue also is a subject in an ongoing lawsuit.
Regardless of the outcome of the court case, we concluded that the Department failed to turn its attention in a timely manner to the question of its authority to detain such individuals. Where policies are implemented that could result in the prolonged confinement of illegal aliens, we recommend that the Department carefully examine, at an early stage, the limits on its legal authority to detain these individuals.
DOJ First Response
We agree with this recommendation. Because the initial detention authority for aliens in immigration proceedings is now with the Department of Homeland Security, however, we believe that this recommendation is primarily applicable to that Department. This recommendation also is addressed in part by our response to Recommendation 9. And, as the Inspector General's report notes, the February 2003 legal opinion issued by the Office of Legal Counsel addresses the legal issues presented by the detention of the September 11 detainees. That opinion makes clear that the Department of Homeland Security may detain illegal aliens during their removal proceedings and after a formal order of removal for the purpose of investigating their possible ties to terrorism, at least for the six months deemed presumptively reasonable by the Supreme Court in Zadvydas v. Davis.
OIG First Analysis
The DOJ's response does not explain how it plans to address, in a timelier manner, legal questions regarding the federal government's authority to detain such individuals. The OLC opinion mentioned in both the
OIG Recommendation and the DOJ's response was not issued until February 2003 - one year after the DOJ changed its policy and began releasing individual detainees without completing an FBI clearance investigation related to their potential connections to terrorism.
While the majority of aliens will be confined under the jurisdiction of the DHS in the future, legal issues relating to detainee confinement are likely to remain within the jurisdiction of the DOJ. Given the situation the DOJ encountered in identifying and resolving issues related to its legal detention authority in a timely manner after the September 11 attacks, we continue to believe that the DOJ, along with the DHS, should adopt a mechanism to carefully examine, at an early stage, the parameters of the legal authority for confining immigration detainees for an extended period of time.
DOJ Second Response
Our responses to the OIG's analyses for the first, second, fourth and fifth recommendations describe the new terrorist-related entities that have been established since September 11, 2001, such as the FTTTF and TTIC, as well as the augmentation of counterterrorism resources within the FBI. With these enhancements, we believe that, in the event of another large-scale terrorist attack, we will have a much-improved flow of information related to aliens encountered during the investigation of that attack. Consequently, the FBI will be able to provide DHS with information expeditiously about aliens whom the FBI believes may pose national security concerns. Also, as noted in our response to the fourth recommendation, DHS, not the Department of Justice or the FBI, will make the initial determination whether aliens will be maintained in custody. The Department of Justice's role will be limited to the FBI's providing information to DHS and to the immigration judges and the Board of Immigration Appeals (part of the Executive Office for Immigration Review) conducting bond redetermination hearings and deciding bond appeals.
In addition to being able to provide information to DHS on a more targeted basis, we believe that OLC's February 2003 legal opinion and other legal research on detention issues that has been conducted since September 11, 2001, both the Department of Justice and DHS already have knowledge concerning the federal government's legal authority for detaining aliens who are present in the United States in violation of law. Also, the Civil Division and the Offices of Legal Counsel and Solicitor General are constantly monitoring new developments in case law, and the Office of Legislative Affairs monitors Congressional consideration of new legislation. By copying the heads of these components on this memorandum, I am instructing these offices to pay special attention to immigration detention-related issues and to provide immediate notice to OLC and DHS of developments that would affect the existing legal opinions on the issue. We have concluded that providing this instruction to these Department components and making OLC available to provide prompt advice to DHS during a crisis situation is the best way to "carefully examine, at an early stage, the limits" on legal authority to detain aliens encountered during a future investigation resulting from a terrorist attack.
OIG Second Analysis
The DOJ's response, similar to its responses to recommendations 6 and 9, is that mechanisms currently in place are adequate to reexamine any legal issues that arise in an emergency situation. Similar to our responses to those two recommendations, we believe the DOJ should develop an additional mechanism to ensure that these issues are addressed timely during a future crisis. Having said that, we again recognize that the current mechanism can work if implemented fully and effectively. Consequently, based on the DOJ's consideration of this response and indication that it will use the current mechanisms to carefully examine the legal limits on holding detainees, we are closing this recommendation.