T5 B59 DOS Docs- NIV 5 of 5 Fdr- Letters- Memos- 14 Withdrawal Notices 188

8/14/2019 T5 B59 DOS Docs- NIV 5 of 5 Fdr- Letters- Memos- 14 Withdrawal Notices 188

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WITHDRAWAL NOTICERG: 148 Exp osition, Anniversary, and Mem orial CommissionsSERIES: 9/11 Comm ission, Team 5

NND PROJECT NUM BER: 51630 FOIA CASE NUM BER: 30768WITHDRAWAL DATE: 09/24/2008

BOX: 00025 FOLDER: 0003 TAB: 47 DOC ID: 31198833COPIES: 1 PAGES: 6

The item identified below has been withdrawn from this file:FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE: DOCUM ENT TYPE: MemorandumFROM:TO:SUBJECT: Memorandums of Understanding re. Implementation of the TIPOFF System.Customs, INS, DOS, BIR

This document has been w ithdrawn for the following reason(s):9/11 Closed by Statute

9/11 Law Enforcement Sensitive

WITHDRAWAL NOTICE


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WITHDRAWAL NOTICE

RG: 148 Exposition, Anniversary, and Mem orial Comm issionsSERIES: 9/11 Commission, Team 5

N ND PROJECT NUM BER: 51630 FOIA CASE NUM BER: 30768WITHDRAWAL DATE: 09/24/2008


The item iden tified below has been withdrawn from this file:FOLDER TITLE: DOS Documents - N IV [5 of 5]DOCUMENT DATE: 05/23/1997 DOCU MENT TYPE: MemorandumFROM:TO:SUBJECT: Concept of Operations, US -Canada Terrorist W atch List Program

This document has been withdrawn for the following reason(s):9/11 Closed by Statute


WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Exposition, Anniversary, and Mem orial Com missionsSERIES: 9/11 Com mission, Team 5


BOX: 00025 FOLD ER: 0003 TAB: 49 DOC ID: 31198890COPIES: 1 PAGES: 4

The item identified below has been withdrawn from this file:FOLDER TITLE: DOS Documents - N IV [5 of 5]DOCUMENT DATE: 03/28/1997 DOCU MEN T TYPE: MemorandumFROM: Community Counterterrorism BoardTO:SUBJECT: Memorandum of Agreement - Participation with DO S, in Providing TIPOFF PrognInfo, to the Canadian Govt.



WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Exp osition, Ann iversary, and Memorial C omm issionsSERIES: 9/11 Commission, Team 5


BOX: 00025 FOLDER: 0003 TAB: 50 DOC ID: 31198891COPIES: 1 PAGES:

ACCE SS RESTRICTED jThe item identified below has been w ithdrawn from this file:

FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE: 03/12/1999 DO CUM ENT TYPE: MemorandumFROM:TO:SUBJECT: Mem orandum of Understanding, Implementation and Use of the TIPOF Systems ofRecords at Ports of Entry



WITHDRAWAL NOTICE


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United StatesDepartment ofStateWash ing ton , D.C. 20520

N O V I 2 1999

Dear Mr. Chairman:This is in response to your letter of August 26 in whichyou posed a number of questions regarding the involvement ofPanamanian officials in alien smuggling. Attached pleasefind responses to these questions. We hope this informationis useful to you.The Department is now reviewing your request fordocuments pertaini ng to this matter. We will b in furthercontact with you on this in the near future.Please do not hesitate to contact us if we can be ofassistance to you on this or any other matter.

Sincerely,

Barbara LarkinAssistant SecretaryLegislative Affairs

Enclosure:As stated.

The HonorableJesseCommittee on Foreign Relations,!,-___-- q&rdMU34IMs[ Hi-ate. '

~ i list


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1. Has the U.S. Embassy in Panama proposed the revocationof the U.S. visa of other persons involved in thisscandal? If so, please explain why only Ms. Smith'svisa has been revoked to date.

The United States Embassy in Panama has proposed therevocation of additional visas. In this matter, all thespecific cases are now being reviewed. As a general policy,visas are revoked on a case-by-case basis, provided the alienhas a U.S. visa to revoke and that no waiver of ineligibilityhas been obtained to protect U.S. law enforcement interests.This process is being coordinated with the on-goingDepartment of Justice inquiry into allegations regardingalien smuggling in Panama. Because this matter is thesubject of an on-going law enforcement investigation, andpossible criminal prosecution, the Department of Justice hasrequested that the Department of State not comment further atthis time.2. When was the Embassy or the Department informed by

either the Department of Justice or the Federal Bureauof Investigation of any pending inquiry into thismatter? When were such inquiries reportedly initiatedand what is their current status?

In the second week of June 1999, the Department of Stateinformed the Department of Justice of the existence ofinformation suggesting possible criminal activity involvingalien smuggling. The Department of Justice then began anevaluation of the available information and investigativebodies within the Justice Department, including theImmigration and Naturalization Service, initiated apreliminary investigation. Our Ambassador in Panama wasinformed of the status of the investigation orally at varioustimes by members of the investigative bodies of the JusticeDepartment and in writing on August 17, 1999. The Departmentof State was notified by letter dated August 31, 1999, thatJustice Department attorneys would be working with theinvestigative bodies on the pending inquiry.3. Has the U.S. government asked Panamanian authorities toprovide a list of all Communist Chinese nationals to

whom Panamanian visas have been issued in recent yearsso that U.S. authorities can determine the breadth ofjthis alien smuggling operation? Has such a list been


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The U.S. government has asked for the cooperation of both theprevious and the new Governments of Panama on this issue.Because this matter is the subject of an on-going lawenforcement investigation, and possible criminal prosecution,the Department of Justice has requested that the -Departmentof State not comment further at this matter.4. Have U.S. counterintelligence agencies been instructed

to initiate an inquiry to determine if this aliensmuggling ring might be part of a Communist Chineseespionage plot? What are the results of any suchinquiry to date?

U.S. counterintelligence agencies are charged with monitoringany information that might suggest potential espionage ororganized crime activity affecting the interests, of theUnited States. As the Department generally does* not, as apractice, comment on specific counterintelligence inquirieswhich are the purview of such agencies, we suggest that youdirect your inquiry to the appropriate agency.5. Has the Department urged U.S. law enforcement officials

overseas to treat investigations of alien smuggling as agreater priority?

Yes. We have stressed to all U.S. law enforcement agenciesthat investigations into alien smuggling must be a priority,and we believe such investigations are being so treated byU.S. law enforcement agencies. Additionally, the Departmentof State's Bureau of International Narcotics and LawEnforcement Affairs, with the cooperation of other Statebureaus, has been working with countries worldwide tocounteract alien smuggling by seeking enactment of anti-smuggling legislation, conducting training and jointoperations, and cooperating on other programs.


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Drafted: WHA/CEN/PAN:KMHamannSearcen/Searapan/Helms3.doc x73518Cleared: CA/VO:KAiston (ok)DOJ:TMcHenry (ok)ROAL:DTerry (ok)

WHA/CEN/PAN:CWWebster (ok)WHA/CEN/PAN:JFKeane (infoWHA:RSWood (ok)EAP:BWeber (ok) < H:MTrejo (ok)H:WMiele (ok)INL/ENT:WMcKenna (ok)L/CA:EBO'Connor (ok)L/LEI:MHCarlson (ok)INR/IAA:RNCarhart (ok)


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The Honorable Madeleine AlbrightAugust 24, 1999Page 2 -

recent years so that U.S. authorities can determine the breadth of this aliensmuggling operation? H as such a list been provided?

4. Have U.S. counter intel l igence agencies been instructed to initiate an inquiry todetermine if this alien smuggling ring might be part of Chinese organized crimeactivities or of a Communist Chinese espionage plot? What are the results of anysuch inquiry to date?

5. Has the Department urged U.S. law enforcement officials overseas to treatinvestigations of alien smuggling as a greater priority?Thank you very much fo r your cooperation in this matter. I look forward tohearing from you.

Sincerely,

JESSE HELMS

cc: The Honorable Janet Reno, Attorney General


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CONGRESSIONAL CORRESPONDENCECLEARANCE

9900-4469Initial for clearance or return fo r edits with remarks. Do Not mark on originaldocument. Pass on in numerical order with final stop in H/CCU. PLEASE,DONOT return to drafting office without sending to or notifyingCCUfirst.Name:Helms Date:10/07/1999 4:53 PMSubject: Panamaniam officials and alien smuggling

2: Trejo3: Guest4:BL5: CCU6:COMMENTS:


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WITHDRAWAL NOTICERG: 148 Expo sition, Anniversary, and Mem orial CommissionsSERIES: 9/11 Comm ission, Team 5



ACCESS RESTRICTED iThe item identified below has been withdrawn from this file:

FOLDER TITLE: DOS D ocuments - NIV [5 of 5]DOCUMENT DATE: DOCUM ENT TYPE: ListFROM:TO :SUBJECT: Terrorist Designation List



WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Exposition, A nniversary, and Memorial CommissionsSERIES: 9/11 Commission, Team 5

N N D PROJECT NUM BER: 51630 FOIA CASE NUM BER: 30768WITHDRAWAL DATE: 09/24/2008


The item identified below has been withdrawn from this file:FOLDER TITLE: DOS Documents - N IV [5 of 5]DOCUMENT DATE: DOCUM ENT TYPE: IndexFROM:TO:SUBJECT: Index of Docs, to the Commission, Case No. S200300007, Segment QIC 002

This document has been withdrawn for the following reason(s):9/11 Classified Information

WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Exposition, Anniversary, and Mem orial Com missionsSERIES: 9/11 Comm ission, Team 5



ACCESS RESTRICTEDiThe item identified below has been withdrawn from this file:

FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE: 08/04/2000 DO CUM ENT TYPE: LetterFROM: Bureau of intelligence & ResearchTO: Chief, Counterterrorism CenterSUBJECT: TIPOFF



WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Exposition, Anniversary, and Mem orial Comm issionsSERIES: 9/11 Comm ission, Team 5



ACCESS RESTRICTEDThe item identified below has been withdrawn from this file:

FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE : DO CUM ENT TYPE: MemorandumFROM:TO:SUBJECT: Concept of Operations, US-Autstralian Terrorist Watch List Program



WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Exp osition, Ann iversary, and Memorial CommissionsSERIES: 9/11 Comm ission, Team 5

NND PROJECT NUM BER: 51630 FOIA CASE NU MBE R: 30768WITHDRAWAL DATE: 09/24/2008

BOX: 00025 FOLD ER: 0003 TAB: 56 DOC ID: 31198931COPIES: 1 PAGES: 4

. RESTRICTEE)|_|The item identified below has been withdraw n from this file:

FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE: DOCUM ENT TYPE: MemorandumFROM:TO:SUBJECT: TIPOFF-Crime, Memorandum of Understanding, DOS FBI, CIA, NSA



WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Expo sition, Anniversary, and Mem orial Comm issionsSERIES: 9/11 Commission, Team 5



_ACCESS RESTRICTEDThe item identified below has been withdrawn from this file:

FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE: DOCU MEN T TYPE: IndexFROM:TO:SUBJECT: Index of Docs, to the Commission, Case No. S200300007, Segment H004


WITHDRAWAL NOTICE


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OIG002SEGMENT

QUESTION#11


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WITHDRAWAL NOTICERG: 148 Expo sition, Ann iversary, and Mem orial CommissionsSERIES: 9/11 Comm ission, Team 5

NND PROJECT NUM BER: 51630 FOIA CASE NUM BER: 30768WITHDRAW AL DAT E: 09/24/2008

BOX: 00025 FOLDER: 0003COPIES: 1 PAGES: 48

TAB: 58 DOC ID: 31198934

ACCESS RESTRICTEDThe item identified below has been withdrawn from this file:

FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE: 01/16/1992 DOCU MENT TYPE: ReportFROM:TO:SUBJECT: Charter for the Interagency Border Inspection System (IBIS)



WITHDRAWAL NOTICE


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WITHDRAWAL NOTICERG: 148 Exposition, Anniversary, and Mem orial Com missionsSERIES: 9/11 Com mission, Team 5

NND PROJECT NU MB ER: 51630 FOIA CASE NUM BER: 30768WITHDRAWAL DATE: 09/24/2008

BOX: 00025 FOLDER: 0003COPIES: 1 PAGES: 16

TAB: 59 DOC ID: 31198935

_AOCESS RESTRICTEDThe item identified below has been withdrawn from this file:

FOLDER TITLE: DOS Documents - N IV [5 of 5]DOCUMENT DATE : 10/18/2001 DOC UM EN T TYPE: CableFROM:TO :SUBJECT: Fighting Terrorism, Visas VIPE R Prodedures.

This document has been withdrawn for the following reason(s):9/11 Closed by S tatute


WITHDRAWAL NOTICE


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NCIC generally* The total number of aliens currently entered into NCIC


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LIMITED OFFIC IAL USE / LAW ENFORCEM ENT SEN SITIVENational Crim e Information Center (NCIC) database1) W hat is the total num ber of aliens currently entered into NCIC?As of May 1, 2004, the ICE Law Enforcement Support Center (LESC) reports that thetotal n um ber of alien absconders in NC IC is currently 28,876.

LIMITED OFFICIAL USE / LAW ENFORCEMENT SENSITIVE


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17=38 O f r IC E Ul- I M M I U , I 1 U N L I I

FROM: CHRISTOPHER C. FULLERSenior Litigation Counsel

.6

'OOFFICE OF IM M IGRATION

LITIGATIONCIVIL DIVISIONU.S. DEPARTM ENT OF JUSTICEWASHIN GTON, D.C.1 3 3 1 P E N N S Y L V A N I A A V E N U E , N . W .S U I T E 7 0 0 N O R T HW A S H I N G T O N , D . C . 2 0 0 0 4

M A I L : P . O . B O X 8 7 8 , B E N F R A N K L I N S T A T I O NWASHrN GTON , D.C. 20044

TEL: (202)616-9308F A X ; (202) 616-4949 or secure: (202) 616-4952

.01

TO

S U B J E C TMESSAGE:

u o u i\S( INCLUDING THIS COVER SHEE

PW VILECED. CONFIDENTIAL AND EXEMTT RtOM DISCLOSURE UNCEH ATMJOJJLE LAW. IF THE HEADER Of Tl IIS COVIMUMCATIQK IS NOT Tl IE INTENDEDRCIMEMT OK THE EMPLO YGC Oft AGEMT HESrOKSlflU FO 06UVEWlW ThE MESSAGE TO THEINTENDED IECIFIENT. VOU ABE HEKEIV NOTIFIED THAT ANYDISSKNIHATlOK, DISnUDUTIOS. OH COfYIMO OF THIS COMMUNICATION MA Y DC STKJCTLV MOHlkmO \tYO U HAVE RECEIVtCl TH/S COMMUNICATION INCMO*, PlAAle NOTtTY MC IMMEDIATELY Br tOU-ECTTELEPHONECALL. AX D RETVW TH COMMUNICATION TO MBAT THEADQVB ACOHOJ VIA UtJITEOSTAT6S WSTAl.SERViee THAM1 YOU.

OAG015-0016


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MflY-15-2003 17:39 OFFICE O F IMMIGRflllON L I _ 16 H _

D.S. Department of JusticeOff ice of ihc Depu t y Attorney Genera l

Ailocialc Deputy Anomcy Genenl D.C. 20530

July 17, 1995

MEMORANDUM

TO:

FROM:RE:

Mark Richard, James ReynoldsCriminal DivisionRobert Bryant, Jeffrey Mazanec, Howard Shapiro,Marion Bowman, FBIPhilip Bartz, Robert Bombaugh, Michael Lind'emann,Civil DivisionChris Sale, Scott Blackman, David Martin, Laura Baxc;INSJanes McAdams, Allan KornblumOIPR

D'jJSeth P. Waxman **^~Alien Terrorist Removal Procedures under theAnt iterrorism ACL

v >

The Attorney General has approved the interim procedurespreviously agreed to by all components. A copy of the finaldocument is attached. I appreciate all the work that'went intothis document, which reflects considerable effort and thought.

Recognizing tljat the Court has not yet been formallyestablished, there is still a great deal that can be done. .1would suggest that each component now designate its Task Forcerepresentative, and that TVCS, in its role as chair, commencecoordination of efforts.

Attachment

OAG015-0017


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MflY-15-2003 17:38 OFFICE OF i m i G R R T I O N L I I _ 616

Proposed Interim Procedures To Implement Section 401 of theAntiterrorism and Effective Death Penalty Act of 1996:

REMOVAL COURT ACTIONS AGAINST ALEEN TERRORISTS

* "

By Order of the Attorney General, Removal Court proceedings will be considered,commenced, and conducted on an interim basis as follows:1. The Department will form a Task Force comprised of representatives of theTerrorism and Violent Crime Section, Criminal Division (TVCS); Office ofImmigration Litigation, Civil Division (OIL); FBI; INS; and Office of IntelligencePolicy Review (OIPR). The Task Force will be chaired by TVCS. Each componentwill designate one person as principal Task Force representative.12. The Deputy Attorney General will exercise oversight responsibility relating to theoperation of the Task Force and will designate an attorney within her office who willbe her point of contact for issues relating to the Task Force. Any component agencythat objects to a decision reached by the Task Force may lodge that objection with th eDeputy Attorney General's designated point of contact.3. To ensure that the Rem oval Court process will be utilized consistently withCongressional intent an d Administration policy, the Criminal Division will assist the

FBI in identifying the initial alien terrorists that are the subjects of current FB Iinvestigations to be considered by the Task Force fo r Removal Court a'ction. The FBIand Criminal Division will develop a process tp ensure that future candidates,including those alien terrorists violating 18 U.S.C. 2339B (AED PA's newfundraising criminal penalty provision) are expeditiously identified for Remo val Courtproceedings.

4. INS, the Civil Division (OIL), other agencies, and U.S. Attorneys'Offices havingRemoval Court case recommendations will submit their recommendations to theCriminal Division an d FBI for preliminary review. It is expected that INS agentscurrently assigned to FBI field office counterterrorism squads will continue ;o workwith those-offices to generate case recommendations through FBI channels. INS caserecommendations which result from: (a) independent investigation in other contexts;(b) INS confid ential sources; and (c) ports-of-entry inquiries with respect to arrivingaliens, will be made through INS headquarters.

' U.S. Attorneys m ay ask, or be asked, to detail one or more attorneys to work with th eTask Force in cases arising in the context of terrorism investigations directed by their offices.

OAG015-0018


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/ MflY-15-2003 17:39 OFFICE OF I M M I Q R f l l l Q N L I I _ 61S...

Before any r ecommendat ion is submitted to the f u l l Task Force, I N S , in consultationwith OIL, shall determine prompt ly fo r each individual identified f o r possibleR e m o v a l Court action: alienage; immigrat ion status; eligibility for relief fromdepor tat ion; all possible grounds fo r deportation (based on the in formation availableat th e time); and other pertinent issues within IN S expertise or jurisdiction, . includingpossible grounds fo r criminal prosecution for immigrat ion violations. The INS shal lprovide the resul ts of i ts review to th e FBI in w riting. The INS m ay conduct suchinvestigation as m ay be necessary to obtain evidence of alienage, imm igration status,deportabil ity, or criminal prose cution fo r immigration violations.The FBI,after initial and fo l low-up consultation with the Criminal D ivision andOIL,will t ransmi t all recom me ndat ions fo r Rem oval Cour t ac tion to the Task Force in apackage consisting o f:(a) FBI or other agency fi le information, includin g pertine nt FISA-deriyedin formation and L H M s i h a t relate to the alien;(b ) th e mosi recent annual FB I LHM summar iz ing the act ivi t ies of the terroristo rganizat ion w ith w hich th e alien is affiliated;(c ) F1SA applications and orders relating to ih e al ien and the terroristorganiza t ion, if a n y ;(d ) ihe IN S m a t e r i a l p r o v i d e d p u r s u a n t t o pa r a g r a ph 5; a n d(e ) a m e m o r a n d u m f r o m th e Ass i s t an t Director f o r N a t io n a l S e c u r i t y to th e Task

Force C h a i r m a n , w h i c h m e m o r a n d u m :(i) details the subject alien's activities on behal f of the terroriseorganization;(ii) identifies th e nationa l security risks that conventional deportationproceedings und er Tit le II "w ould pose, inclu ding a discussion of thenature of any inter- or intra-agency disagreements that m ay exist withrespect to that risk;(iii) states w h e t h e r g r o un d s ex is t f o r p r o s ec u t io n based o n passport o rimmigration f raud, or other criminal violations, and whether grand juryinvestigation is pending or contemplated and the bases, scope, andpotential targets of such investigation; 2

.v i )- .A

( . * * .v

. ts.' ' ! ' >< i !r.

1 Grand ju ry in fo rmat ion shou ld be provided to th e Task Force consis tent wi th therequirements o f Fed. R . Crim. P. Rule 6(e), or court order o btained at the Task Force 's request.

O AG015-0019


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MPY-15-2003 17=39 OFFICE OF IMMIGRRTIDN LIT e . - 616 49-. P.

(iv) identifies and summarizes th e unclassified or declassifiable informationthat relates to th e alien which can be released to the alien;(v ) identifies the classified information that cannot be declassified and

explains the extent to which that information mig h t be summarized;(vi) identifies the witnesses who would be available to testify in open coun,in camera, or both, during th e proceeding; an d(vii) states whether the FBI or other agency, including an y U. S. Attorney'soffice, opposes removal and the reasons therefor.

The full submission described in paragraph 6 will be transmitted to the'Task ForceChairman for preliminary review. A t this juncture, other Task Force mem bers wi llreceive the material described in subpans 6(d) an d (e).Upon Task Force request:(a) INS will: (i ) transmit a copy of the subject alien's A-file to the Task Forcefo r review; (ii) place the original file under controls to ensure that originaldocuments wi l l remain 'avail able to the Task Force wh en needed ; (iii) ma rkche original file clearly to indicate that th e alien is curren t ly th e subject ofTask Force review; and (iv) place a ppropriate notat ions in the file and INSsystems to ensure that the alien is not considered for adjustment of status orother imm igration relief without clearance by INS Headquarters officials , inconsultation with th e Task Force;(b) th e State Department, through its Counter-Terrorism Office (S/CT), will

provide the Task Force with its current assessment of the terrorist organizationat issue and a copy of the administrative record on which the designation, ifa n y , is based;(c) the State Department an d the Criminal Division's Off ice of InternationalAffairs will advise w hether an extradition request is possible with' respect tothe alien;

/(d) other Department components will furnish expertise as needed; and(e ) other government agencies may furnish such requested expertise or

assistance.

1 !"*&'.'.M'\0


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HflY-15-2003 17:39 OFFICE OF IMMIGROT ION LI I _ 6 1 6 * ,-

9. As soon as practicable thereafter, the Task Force will convene a meet ing of itsrelevant members, as well as Assistant U.S. Attorneys or other agency officials asneeded, which will:(a) ascertain from INS whether its review of the INS file establishes that a "non-terrorisi" ground exists which can be easily and promptly used, to deport thealien successfully, without posing a risk to the national security;1(b) ascertain from the Criminal Division whether sufficient evidence existswarranting prosecution based on passport or immigration fraud, or other

criminal violations, including violations of AEDPA's criminal fundraisingprovision, 18 U.S.C. 2339B;

(c) review all FBI material to determine whether a "terrorist" ground, within themeaning of 8 U.S.C. 1182(a)(3)(B)(iii) and 125l(a)(4)(B), exists to deportthe alien successfully;(d) determine whether classified FBI File information is material to deportabilityan d warrants the use of the Removal Court;(e ) determine whether an adequate unclassified summary of the evidence can beprepared fo r submission to the alien; an d(f) attempt to reconcile any inieragency disputes regarding the decision to seekr emova l of th e subject alien.

10. The Task Force may, at any t ime, request th e recommending agency to :(a) coordinate with other agencies to pursue alternative enforcement options suchas conventional deportation proceedings or criminal charges;(b) investigate the matter further to develop needed additional evidence or repairdeficient evidence that is material to deporubility;(c) make case agents available for Task Force interview; or

/(d) such other action as the Task Force deems appropriate.

1 Particular consideration should be given to the possibilities that: (1) the alien may presenta meritorious application fo r withholding of deportation that cannot be rebutted through .the useof classified information (8 U.S.C. 1253(h); 8 C.F.R 242.17); and (2) what course of actionshould be taken in the event that the Special Court finds that the alien is not removable underTide V of the INA.

OAG015-0021


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MRY-15-2003 17=39 OFFI CE O F i m i U . i l l U N L I I .6 \ .

11. The Task Force shall determine if the following conditions are present:(a) a terrorist deporution ground exists;(b) np viable non-terrorism deporution ground exists or is preferred;(c) an extradition request is not anticipated, not a viable option, or is not

preferred;(d) no alternative criminal charge is available or preferred;(e) classified information is material to deportability;(f) an adequate s u mma ry can be prepared; and(g) the matter warrants Removal Court referral.

12. Should the conditions required under paragraph 11 be deficient or absent, or if thecase appears deficient as a matter of law or fact to establish deportability, the TaskForce will notify the recommending entity as appropriate.

13. If the Task Force determines that the conditions in paragraph 11 are present, it willtransmit the application package and related material to its Terrorist Alien Trial U n i t .This U n i t of th e Task Force wil l be chaired by OIL and comprised of OIL, I N S , andCriminal Division attorneys and OIL support staff, with O1PR and FBI assistance asthe unit deems necessary, Upon case referral, the unit will:(a) prepare declarations by FBI or other recommending agency officials or agents

detailing the nature of the alien's terrorist activities within the meaning of 8U.S.C. 212(a)(3)(B)(iii);

(b) prepare the evidence to be submitted to the Removal Court:(c) prepare the section 503(a) application;(d) prepare the unclassified summar y;

/(e) draft Attorney General or Deputy Attorney General certifications as neededpursuant to sections 504(e)(l)(C) and 504(e) (3)(A); and( f ) submit the application package through the Task Force Chairman to theDeputy Attorney General for approval.

:ij

'/*s-',' *

.v - , n ;. ' ' - ' v .

..-;*)i

OAG015-0022


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nAY-15-2003 17:40 OhlCt Uh IhnuUluNLII < = _ 616 M _

14. Upon certification by the Deputy Attorney General or Attorney General, the TrialUnit will : . .(a ) submit th e section 5Q3(a) application to the Removal Court and.prepare th e

case for trial;4 :(b) if the subject alien is not already in custody, request that INS take the. alieninto custody5 an d inform th e Removal C ourt of the fact that the'alien has been

detained;(c) prepare for any release hearing if the alien is a lawfu l permanent resident;(d ) if pertinent, notify the Treasury Department's Office of Foreign Assets Controlof the pendenc y of the application, for consideration of any actions that mightbe warranted un de r Exec utive Order 12947; and(e ) notify th e Department of State, through S/CT, of the decision of the.AttorneyGeneral or the Deputy Attorney General to initiate Removal Court proceedingsagainst th e alien.

15. In the case of any subject alien presenting special security conc erns, INS may requestdetention assistance from other agencies, including th e Bureau of Prisons and the U.S.Marshals Service.16 . Should th e Rem oval Court grant th e application, the Trial Unit will try th e casebefore th e Court ,17 . The Trial Uni t will have principal responsibility fo r defending against any collateral

attacks attempted in other courts on the Removal Court provisions or process, -exceptto th e extent that th e subject matter falls within th e particular jurisdiction of anotherDepartment office, in wh ich case the Trial Unit will assist as necessary.18 . Appeals from Removal Court:

(a ) The Trial Unit , wuh the involvement of and assistance as needed by the. CivilDivision's Appellate Staff, will have principal responsibility for:(1) section 505(a) appeals of denials of section 503(a) applications;

* The manner of submission will be prescribed by the Chief Judge.5 Custody w ill be effected almost always simultaneously with the filing of .the application.

6

OAG015-0023


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MflY-15-2003 17:40 OFFICE U- IhnlU i l IUN LI I

(2) section 505(b) interlocutory appeals concerning section 504(e)(3) .summary;(3) section 505(c) appeals from final determinations; and( A ) section 505(e) appeals from section 507(b)(2)(C) continuing detention.

(b) The Appellate Staff of the Civil Division, with the assistance of the TaskForce members as may be necessary, will have principal responsibility fo rhandling appeals to the United States Court of Appeals for the D.C. Circuit byany organization designated under Section 219 of the IN A as a foreign terroristorganization by the Secretary of State.

19. IN S will prepare and furnish to the alien, his attorney, and L h e Task Force, anyperiodic reports required by section 507(2){C) with respect to aliens in continuingdetention.

20. The Task Force and Trial Unit will assist investigating agencies and USA O's withrespect to the requirements of the Title V rem oval process. It will also assist, asrequested, in pendin g investigations with respect to matters within its developingexpertise.21. The Task Force Chairman, or his designate, in conjunction with OIPR, OIL, and theSecurity Staff of JMD, will assist the Chief Justice of the United States in thestructuring of the Removal Court.22. The Task Force m ay revise these interim procedures as necessary, withv th e approvalof the De puty Attorney General.23. The Task Force, in light of its experience under ihese interim procedures, will reportto the Attorney General and Deputy Attorney General within 18 months with itsrecommendations concerning the advisability of creating a permanent Department unitfor handling Removal Cpun proceedings and for proactive participation'by the unit inthe identification of and enforcement efforts concerning alien terrorists. The reportshall also contain an assessment of the level of cooperation between the variousDepartmental components and an evaluation of the Removal Court proceedings underthe interim procedures.

TOTflL P.09

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Report to the Congress Regarding theAlien Terrorist Removal Court

Section 313 of the Intelligence Authorization Act for FiscalYear 2002 (Public Law 107-108) added a new report requirement toTitle V of the Immigration and Nationality Act, (INA) 8 U.S.C. 1531-1537. Under this provision, the Attorney General mustsubmit a report within 90 days of enactment "concerning theeffect and efficacy of alien terrorist removal proceedings,including the reasons why proceedings pursuant to this sectionhave not been used by the Attorney General in the past and theeffect on the use of these proceedings after the enactment of theUSA PATRIOT Act of 2001 (Public Law 107-56") . " This reportresponds to that Congressional directive.Establishment of Alien Terrorist Removal Court

The Antiterrorism and Effective Death Penalty Act of 1996(AEDPA) (Public Law 104-132, Title IV, Subtitle A, 110 Stat. 1258(April 24, 1996)) established the Alien Terrorist Removal Court(ATRC) through the addition of Title V to the INA. Title V ofthe INA provides for the removal of aliens believed to bedeportable on terrorism grounds on the basis of classifiedevidence in proceedings before the ATRC. See INA sections 502-504, 8 U.S.C. 1532-1534. The Chief Justice of the UnitedStates has designated the Chief Judge and four other judges toserve on the ATRC.

In proceedings before the ATRC, the Department of Justicemay present classified evidence in camera and ex parte to provethat the alien is deportable under section 237 (a) (4) of the INA,8 U.S.C. 1227 (a) 4), in that the alien "has engaged, isengaged, or at any time after admission engages in any terroristactivity. " To initiate a case under Title V, the AttorneyGeneral must certify that probable cause exists that the alien'sremoval under Title II of the INA in conventional removalproceedings "would pose a risk to the national security of theUnited States." Section 503 (a) (1) (D) (iii) of the INA, 8 U.S.C. 1533 (a) (1) (D)(iii) .Effect and Efficacy of ATRC

Immediately following the enactment of AEDPA, the Departmentof Justice established an interagency working group to reviewpotential cases for presentation to the ATRC and to develop

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procedures for the handling of such cases. While the Departmentof Justice has devoted substantial resources to the task ofidentifying and evaluating cases, this process has not yetidentified a case that belongs in the ATRC rather than some otherforum.

The fact that the Department has not yet brought a case inthe ATRC is the product of a number of factors. First, the ATRCwas intended to be a low-volume court. As stated above, the ATRClegislation effectively requires that conventional immigrationproceedings under Title II of the INA be considered before resortto the ATRC, as the ATRC can only be utilized if removalproceedings under Title II "would pose a risk to the nationalsecurity of the United States." INA 503, 8 U.S.C. 1533.This is a jurisdictional prerequisite to invoking the ATRC.

In the experience of the Department of Justice, mostsuspected alien terrorists are nonresident aliens removable inconventional Title II proceedings for conventional immigrationviolations (such as overstaying a visa) that can be easily provenwithout the use of classified evidence. Such aliens seldomcontest removability; the litigation has solely concerned theirapplications for relief from removal. In such cases, Title IIauthorizes the Government to present classified information exparte and in camera to the immigration judge to oppose an alien'srequest for discretionary relief from removal. INA 240 (b) (4) ,8 U.S.C. 1229a(b)(4)(B). Thus, Title II protects classifiedinformation in these cases.

Furthermore, the universe of potential ATRC cases decreasedfive months after the enactment of the AEDPA, when Congresspassed the Illegal Immigration Reform and ImmigrantResponsibility Act of 1996 (Div. C, Public Law 104-208, 110 Stat.3546 (Sept. 30, 1996)), (IIRIRA). The ATRC was enacted in orderto remove aliens who are deportable (as opposed to excludable) onterrorism charges without compromising national security.Pursuant to IIRIRA, aliens who may have entered the United Stateswithout inspection are no longer considered "deportable" aliensand, indeed, the Government can use undisclosed classifiedevidence against them in conventional Title II proceedings tooppose their admission into the United States. INA 240, 8U.S.C. 1229. These IIRIRA provisions gave added nationalsecurity protection to conventional Title II proceedings.

In addition to the statutory preference for Title IIproceedings, another important constraint on ATRC action is thatin some cases intelligence objectives or prospects for criminalprosecution take precedence over any type of immigration action,

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including the ATRC. In any event, as a matter of policy, theDepartment would prefer to criminally prosecute, convict, andincarcerate alien terrorists for any criminal act committed thansimply remove them from the United States. However, becausegovernment intelligence investigations are not conducted with thegoal of gathering evidence that can be used to prove criminalcharges or immigration violations in court, they often do notprovide a sufficient basis to sustain a criminal prosecution or aremova1 ac t i on.

Another important factor that hampered use of the ATRC wasthe statutory definition of "engage in terrorist activity" insection 212 of the INA, prior to its amendment by the USA PATRIOTAct. This definition, which provided the sole basis for removalin an ATRC action, proved to be problematic in certain respects.For example, although the statute did encompass fundraisers andother material supporters of terrorist organizations, there wasno definitive ruling in Title II litigation that the statutorydefinition covered material support that the alien claimed wasafforded to a terrorist organization's humanitarian activitiesrather than to its terrorist activities. See former INA 212(a) (3) (B) iii) ("engage in terrorist activity" means, amongother things, the provision of material support to any entity "inconducting a terrorist activity at any time"). A clearerdefinition was not adopted until passage of the USA PATRIOT Act.

Other definitional issues under the pre-USA PATRIOT Actstatutory definition of "engage in terrorist activity" affectedspecific cases under review for the ATRC. These included whetherthe statute clearly encompassed a solo actor's planning ofterrorist activity; the lack of any statutory definition for"assassination"; and the failure of one important provision tocover all weapons, rather than just explosives and firearms.(See former INA 212 (a) (3) (B)(ii) (IV); 212 (a) (3) (B) (ii)(V) (b) ;212 (a) (3) (b)(iii)). Concerns about such provisions influencedthe Department's proposed substantive changes, adopted in part inthe USA Patriot Act.

As noted above, Congress's requirement that the ATRC beutilized only where resort to Title II removal proceedings "wouldpose a risk to national security" clearly demonstrates that theATRC is not intended to be the primary focus of the Government'santiterrorism efforts in the immigration area. Instead, the ATRCis simply one tool in the Government's arsenal for removing alienterrorists.

Despite the fact that it has not been used, the ATRC remainsa potentially important component of our enforcement apparatus.

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It was created to help the United States avoid the dilemma ofeither allowing alien terrorists to remain in the United States,on the one hand, or endangering national security by disclosingclassified evidence in their removal proceedings, on the other.This was a problem prior to the creation of the ATRC and, withoutthe ATRC, the Government is likely to once again face thisdilemma in at least a small number of cases. In our view, theATRC remains a potentially critical tool.Enactment of USA PATRIOT Act

The Uniting and Strengthening America by ProvidingAppropriate Tools Required to Intercept and Obstruct Terrorism(USA PATRIOT) Act of 2001, Pub. L. No. 107-56 (Oct. 26, 2001),contained a broad package of budgetary and statutory amendmentsto enable the Government to combat more effectively the threat ofterrorism. The USA PATRIOT Act made significant amendments toINA 212(a) (3), 8 U.S.C. 1182(a) (3), the security-relatedground of inadmissibility.

As stated above, removal proceedings under Title V of theINA are intended to address aliens who are deportable under INA 237(a) (4), 8 U.S.C. 1227(a)(4), which refers back to thedefinition of "engage in terrorist activity" contained in INA 212(a)(3)(B). The amendments made to the definitions of"terrorist activity" and "engage in terrorist activity" containedin INA 212(a) (3) (B)(iii) and (iv), 8 U.S.C. 1182(a)(3)(B)(iii) and (iv), as well as the new definition of"terrorist organization" contained in INA 212 (a) (3) (B) vi), 8U.S.C. 1182(a) (3) (B) (vi), would apply to cases before the ATRC.

The USA PATRIOT Act expanded these definitions by: broadening the definition of "terrorist activity" which

previously listed only explosives or firearms toinclude the use of other weapons and dangerousdevices other than explosives or firearms;

adding a definition of "terrorist organization" thatincludes: (a) any organization designated under INAsection 219, 8 U.S.C. 1189; (b) any organizationotherwise designated, upon publication in theFederal Register, by the Secretary of State (afterconsultation with or at the request of the AttorneyGeneral) as a terrorist organization after a findingthat the organization commits or incites thecommission of terrorist activity, prepares or plansa terrorist activity, or gathers information on

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potential targets for terrorist activity, or thatthe organization provides material support tofurther terrorist activity; and (c) a . group of twoor more individuals, whether organized or not, thatcommits or incites the commission of terroristactivity, prepares or plans a terrorist activity, orgathers information on potential targets forterrorist activity;

amending the definition of "engage in terrorist activity"in two principal ways: (a) by clarifying that analien's solicitation of funds or members for adesignated terrorist organization constitutes"engaging in a terrorist activity,"even if thealien claims that he did not know and should notreasonably have known that the solicitation wouldfurther the organization's terrorist activity;(b)byproviding that an alien "engages in a terroristactivity" by committing an act that the alien knowsor reasonably should know affords material supportto a designated terrorist organization, even if thealien claims that he did not know and should notreasonably have known that the material supportwould further the organization's terrorist activity;and (c) by providing that once the government provesthat the alien solicted either money or members onbehalf of, or provided material support to, anon-designated terrorist organization, the alienmust show that he did not and should not have knownthat his conduct furthered the terrorist activity ofthe organization.1

clarifying that a solo actor's planning or preparation of aterrorist activity constitutes "engaging in terroristactivity."

The USA Patriot Act contains an express retroactive application clausemandating the application of these new provisions: (a) to actionstaken by an alien before, on, or after the date of enactment, (b)

1 The statute further provides, however, that an alien's solicitationoffunds or members for, or provision of material support to, a terroristorganization will not be deemed "engaging in a terrorist activity" where(i) the organization is at the time of the solicitation or support anon-designated terrorist organization and (ii) the alien demonstratesthat he did not know, and should not reasonably have known, that thesolicitation or material support would further the organization'sterrorist activity.

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to all aliens, without regard to the date of the alien's entry orattempted entry, who are in removal proceedings on or after thedate of enactment (except for proceedings in which there has beena final administrative decision before enactment), or who areseeking admission to the United States on or after the date ofenactment.

Because the USA PATRIOT Act has made some clarifications toand expanded some definitions within the security-relatedprovisions of the INA, the Department of Justice is analyzing indetail how these provisions might affect the potential use of theATRC.Conclusion

Both before and after September 11, 2001, the Department ofJustice has considered a range of options in reviewing the caseof a suspected alien terrorist. These options range fromcontinuing an ongoing intelligence-gathering operation tocriminal prosecution to removal, including both conventionalremoval under Title II of the INA to removal before the ATRCunder Title V. The USA PATRIOT Act expanded the category ofaliens who are subject to removal based on involvement withterrorist activity as defined by the immigration law. TheDepartment continues to review cases with the goal of taking theappropriate action to protect the national security. As statedpreviously, the ATRC is simply one tool in the Government'sarsenal for removing alien terrorists.

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WITHDRAWAL NOTICERG: 148 Exposition, Anniversary, and Mem orial Comm issionsSERIES: 9/11 Comm ission, Team 5



The item identified below has been w ithdrawn from this file:FOLDER TITLE: DOS Documents - NIV [5 of 5]DOCUMENT DATE: 05/23/2003 DO CUM ENT TYPE: CableFROM:TO:SUBJECT: CT


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