COMMITTEE ON THE JUDICIARY UNITED STATES HOUSE OF REPRESENTATIVES JUNE 5,2003
Written answers by the Department of Justice to the Committee on the Judiciary to questions by the Committee asked on a hearing held in June 5, 2003. The answers were sent to the Committee on February 13, 2004, with an apology for the delay.
Question 5(d): How many aliens have been charged on terrorism-related crirrlinnl grounds since September 11,2001? Are these the only aliens whom the Justice Department believes are related to terrorism?
Answer: Since September 11,2001, six aliens have been charged with terrorism-related criminal grounds in connection with the PENTBOMB investigation. Similar to the response to questions (a) and (c) above, there may be many reasons why the Department has not brought criminal charges against individuals whom we believe to be connected to terrorism. For example, the information we possess may not relate to a~pecificr iminal violation under U.S. law, or the information may be classified and cannot be declassified. In addition, the burden of proof is higher for criminal cases, and the information that we possess may not be sufficient to prove guilt beyond a reasonable doubt.
Question 5 (e): Are there any reasons why the Justice Department would deport an alien who is suspected of terrorist ties or of engaging in terrorist activities rather than charging the alien criminally? Why would the Justice Department do this? Has the Justice Department done this?
Answer: In some cases, the FBI and other law enforcement agencies were able to determine that aliens detained in connection with the September 11" investigation were no longer of investigatory interest and those individuals were subsequently released or deported. In other cases, while there may have been information linking an individual to criminal or terrorist activity, the information was not substantial enough to prosecute and all indications were that no further substantive information would surface. In those cases, in the interest of national security, it was determined that the best course of action was to proceed with deportation and remove a potentially dangerous person from our borders based upon an immigration violation rather than release the individual into American society. The Department believes that it is best advised to use all legal tools at our disposal to detain, investigate and prosecute violations of our nation’s laws and ensure that any threats to the American people are neutralized, whether it be through detention or removal.
Question 12 (c): Does the Justice Department, any agent of the Department, or contractor on behalf of the Department investigate or maintain files on people who are not legitimate suspects of crime or terrorism?
Answer: Yes. The Department of Justice maintains a variety of investigative and background files on individuals who are not currently "legitimate suspects of crime or terrorism." Examples of such persons or entities would include: employees of the Department or applicants for employment (e, the results of background checks); contractors and bidders; grant applicants and recipients; material witnesses; civil litigants; foreign agents; persons entered into the National Crime Information Center; and others, consistent with the Department’s lawful responsibilities. This list is not intended to be exclusive.
Question 14. On May 31, a Philadelphia Inquirer editorial made the following observations: Why, for instance, have so many criminal cases been mislabeled as instances of international terrorism? As Inquirer staff writer Mark Fazlollah has documented, dozens and dozens of people charged in such cases have proven to be unconnected to terror groups. Could someone be trying to hype the antiterrorism beneJits of the new powers to build a case to extend them even further? In New Jersey, federal prosecutors recently pulled 65 Middle Eastern students’ cases @om terrorism lists. They said the students’ hiring of stand-ins to take English exams for college was not terrorism-related. What is your response?
Answer: The allegation that the Department is intentionally mislabeling numerous terrorismrelated matters is not accurate. The information cited in this editorial appears to be based on a January 2003 report by the General Accounting Office (GAO) that cited 288 terrorism-related cases as being "misclassified". The problem cited by the GAO report was caused not by intentional mislabeling, but by transition issues resulting from a change in how anti-terrorism cases were categorized prior to September 11′ and how they are subsequently categorized after September 1l th. The "misclassifications~w’ ere the result of late notice to the United States Attorneys’ Offices of Terrorism and Anti-Terrorism code changes and insufficient time for offices to make the changes prior to the GAO report. The GAO report acknowledged the fact that 127 of the "misclassified" cases fell under new anti-terrorism case categories and that only five of the 288 cases the GAO cited, or less than two percent, were unrelated to terrorism or our anti-terrorism efforts.
These classification codes were revised and supplemented after September 1 lth to properly capture the types of prosecutions being used to fight terrorism. Prior to September 1 lth, the Executive Office for United States Attorneys (EOUSA) had only two terrorism-related case classification codes — International Terrorism and Domestic Terrorism. Reflecting the new reality after September 1 lth, EOUSA first added a case classification code for Terrorism-Related Hoaxes, then later added a code for Terrorist Financing and several codes for Anti-Terrorism (such as Identify Theft, Immigration, and Violent Crime) to capture activity intended to prevent or disrupt potential or actual terrorist threats where the offense conduct would not fall within one of the already-existing codes.
Under the new codes, the broad range of prosecutions used to disrupt activities that could facilitate or enable future terrorist acts and anti-terrorism cases are now able to be captured. While some of these illegal acts may prove to be for personal benefit, activities such as identity theft, and immigration violations may also be used to position individuals who plan to commit future acts of terrorism. So called "sleepers" are difficult to identify as they will seek to blend in with minimal illegal activity until they are activated.
To ensure that data on all anti-terrorism cases is captured and included in EOUSA statistics, EOUSA, working with the Department’s Criminal Division, on August 7,2002, sent a memorandum to all United States Attorneys directing that appropriate pending cases and appropriate cases closed in Fiscal Year 2002 be reclassified, if needed, to reflect the new case classification codes. Under this directive, all TerrorismIAnti-Terrorism cases in Fiscal Year 2002 should have been re-sorted according to the new codes. With the transition to a new coding scheme so close to the end of the fiscal year, some United States Attorneys’ Offices either did not have time to, or did not fully understand the need to, reclassify ‘already closed cases.
EOUSA has and will continue to take every reasonable step to ensure that proper reclassification is completed and that future data entries are complete and accurate. A process exists for the review of United States Attorney case management system data and EOUSA is working to continue to oversee and validate the accuracy of case classification and conviction data entered into the case tracking system by the various United States Attorneys7 Offices. On April 9,2003, EOUSA sent a directive to the United States Attorneys asking them to review all Terrorism and Anti-Terrorism matters and cases and ensure that the most appropriate Terrorism or Anti- Terrorism program category code is assigned. The United States Attorneys’ Offices are required to perform this data quality review quarterly. This directive re-emphasized the critical role of the United States Attorneys in providing the Department with accurate and timely caseload data.
The Department is committed to accurate reporting and accountability for cases prosecuted in federal court. This reporting ensures, for example, that Congress is able to provide adequate oversight of the Department’s activities, and ensure that the Department has adequate resources. To the extent that the GAO Report identified various weaknesses in the current system, the Department is committed to taking every reasonable step to ensure that proper reclassification is completed and that future data entries are complete and accurate.
Finally, the referenced cases in the District of New Jersey began as an investigation into a fraudulent scheme whereby people paid imposters to take the Test of English as a Foreign Language (TOEFL). During the course of the investigation, it was discovered that one of the test takers had in his possession material that caused the investigation to broaden. The investigation into possible terrorist activity was pursued vigorously and fortunately terrorist activity was not discovered. At the conclusion of the investigation, it would have been more appropriate for the cases to be coded under an Anti-Terrorism category.