DM B4 Homeland Security Fdr- Draft DHS Memo and Correspondence w DHS Re Access- Document Requests 323

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O C T . 8 . 2 0 0 3 3 : 4 1 P M 9 - 1 1 C O M M I S S I O N N O . 0 8 7 8 P . 2

III D e p a r t m e n t o f H o m e l a n d S e c u r i t yOctober 8,2003

Daniel Marcus, Esq.General CounselNational Commission on TerroristAttacks Upon th e United States301 7* Street SW , Room 5125Washington, D C 20407D e a r D a n :

This i s a fol low-up to m y le t te r to you of Sep tember 5, 2003, r e l a ting to the D epar tm en t 'sresponses to the Co m m ission 's docum ent r eques t s. T he pur pos e of this letter is to provide yo uwith an up da te on the s t a tus of the "exceptions" di scussed in the th ird th rough s ixth paragraphso f such le t te r , which re late to cer ta in item s i n D HS D oc um e n t R e ques t No. 1 spec if ied in yourm e m o r a n d u m to Joe Whitley of A ugus t 2 6 , 2 0 0 3 . A s you m ay reca ll , those "exceptions" relatedto I t ems 2, 8, and 18 of such Docum ent Request .

In the case of It em 2 , CBP and ICE have now provided access to the do cum ents tha tcontain c lass ified inform ation. In the case of I tem 8, organizat ional char ts tha t include n a m e s o fpe r sonne l and da te s o f incumbency were prepared by ICE, and access to them was provided onSeptember 11,2003.In th e case of Item 18, the individu al 's A-file was located and on ly arr ived at ICE

headquar ters on Se p te m be r 2 6 , 2 0 0 3 , Th e f ile i s very large , a l thoug h IC E ini t ia lly de term inedtha t i t con ta ins o n ly one docu m ent tha t m ight be re spons ive to the Commission's D o c u m e n tRe quest . A ccess to that docu m ent , the 1-213 Record of Depor tab le Alien, has been provided tothe Com m ission. W e have requested c lar ificat ion from the Com m ission (spec ifical ly fromJanice Kephart-Rober ts) on othe r documents from the f i le to which th e Commiss ion might de s i reaccess, In an e-mai l on O ctober 6, 2 0 0 3 , M s. Kephar t-Rob e r ts in form ed us tha t she would besat isfied with the t r ansc rip t of the ind iv idua l 's imm igra tion bon d hear ing. Tod ay we wereinformed by ICE tha t th i s docum ent has been loca ted , and we will provide the Co m m iss ion withaccess to the do cum ent by the end o f th is week.

The D epar tmen t r emains com m i tted to coo pe ra ting with the C om m iss ion as it con t inuesit s imp or tan t work. P lease do n o t hes i ta te to call m e t o discuss an y concerns yo u m ight have .Sincerely,

John M . M i tn ickA ss is tan t G ene ra l C ounse l

W a s h i n g t o n , 1 , C . 2 0 5 2 6


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The National Commission on Terrorist Attacks Upo n th e United States (the "9/11Com mission") has asked the Department of Hom eland Security ("DHS") for access torecords on individuals w ho are citizens o r legal permanent residents and are, therefore,entitled to the protections of the Privacy Act of 1974 (the "Privacy Act").That statute strictly governs the release of records maintained by a federal agency that areretrieved by na me or personal iden tifier. The alien files at issue, which are maintained byUnited States Citizenship and Immigration Services, are retrieved by nam e and /orpersonal iden tifier (alien registration n umb er). That being the case, the Privacy Actspecifies that there are only twelve conditions un der which disclosures may be madewithout first obtaining consent o f the record subject . See 5 U.S.C. 552a(b). There arethree po tential cond itions tha t apply in this case, but non e provides the authority for therequested disclosure d irectly to the Comm ission.The first potential condition is found at 5 U.S.C. 552a(b)(3), w hich allows, but do es no trequire, agencies to make disclosures without consent "for a routine use . . . . " A routineuse is defined as disclosure o f the record for a use that is compa tible with the purpose forwhich the record was collected. 5 U.S.C. 552a(a)(7). The alien files requested by the9/11 Commission are found in a system of records en titled Justice/INS-001 A, theImmigration an d Naturalization Service Alien File and C entral Ind ex System("Justice/INS-OOlA").1We have reviewed the routine uses published for this system, but non e appears to coverdisclosure to the 9/11 Comm ission. The closest applicable routine use allows disclosureto a "federal, state, tribal, local or foreign governmen t agency or o rganization, orinternational organization, lawfully engaged in collecting law enforcement intelligenceinformation, whether civil or criminal, or charged w ith investigating, prosecuting,enforcing or implementing civil or criminal laws, related rules, regulations or orders, toenable these entities to carry out their law enforcemen t responsibilities, including thecollection of law enforcement intelligence." 66 Fed. Reg. 46812, at 46813 (Sept. 7,2001). N on e of the stated purposes for the 9/11 Com mission has "law enforcem ent" asits principal goal as that term is generally understood. See, e.g.. Ru ral Hou sing Alliancev. USDA. 498 F2d 73, 81 (D.C. Cir. 1974) (distinguishing files compiled fo r governmentoversight and those compiled for an investigation o f a possible violation of law whichcould result in civil or criminal penalties). Because the Comm ission has no legalauthority to pursue civil or criminal penalties, its functions would not appear to m eet thegenerally understood meaning of "law enforcement responsibilities." The remainingroutine uses for this system of records also co ntemplate that the information may bereleased to a government agency engaged in a criminal or civil law enforcemen tinvestigation or activity or for administrative purposes n ot relevant to this ana lysis.Accordingly, disclosure under this routine use would not be warranted.

The Department of Homeland Security is in the process of reordering and republishing its system noticesat which time the name of this system will change. Because the former Immigration and NaturalizationService was a component of the Department of Justice, the system still bears the DOJ/INS nomenclature.


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The second potential mea ns of disclosure, wh ich is found at 5 U.S.C. 552a(b)(7), issimilarly unavailing. This provision allow s an agency to ma ke a nonconsensual releaseof records "to another agency or to an instrumentality of any governmental jurisdictionwithin or under the control of the United States for a civil or criminal law enforcem entactivity under certain circumstances wh ich have otherwise been me t here. The 9/11Commission is not a federal agency. Although it is arguably an "instrumentality of anygovernm ental jurisdiction," again, given its mandate, we do not believe that theCom mission is a law enforcement entity that can pursue civil or criminal action as aresult of its activities. W e recognize that the Comm ission may m ake recomm endationsthat would result in further law enforcement activities, but we continue to believe thatrelease of protected alien files directly to the Commission is not contemplated by thisprovision of the Privacy Act.The third potential basis for disclosure is found in 5 U.S.C. 552a(b)(9), which permitsdisclosure to either House of Congress, or to any committee or subcommittee, jointcomm ittee or subcomm ittee of a joint committee, "to the extent of matter within itsjurisdiction." Although the 9/11 Com mission was created by Congress, it does not appearto meet the threshold requirement for disclosure in this instance, because it is neither aHouse of Congress nor a committee or subcomm ittee thereof. Consequently, directrelease to the Comm ission is not allowed under this condition for disclosure..The DHS Privacy Office regrets that it is unable to assist the C omm ission by providingthese records, but the Privacy Act forbids direct disclosure to the Com mission in thisinstance.


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H. Kean

H. HamiltonC H A I RBen-Veniste

F. FieldingS. GorelickGorton

KerreyF. Lehman

J . RoemerR . Thompson

D . ZelikowD I R E C T O R

March 4, 2004BY F AC S IMILE (202) 254.4285Clark Kent Ervin, EsquireInspector GeneralDepartment of H omeland SecurityWashington, DC 20528Dear Mr. Ervin:A s you may know , the statute that created the National C omm ission onTerrorist A ttacks Up on the United States directs the Commission to "buildupon" the investigations of other entities, and to "evaluate the lessons learnedfrom the terrorist attacks of September 11, 2001, regarding the structure,coordination, management policies, and procedures of the FederalGovernm ent." The statute authorizes the C omm ission to secure informationdirectly from any executive department, bureau or agency for purposes of itsinvestigation. W e understand that your office is completing a review of D H S 'role in watchlisting, an issue that was discussed in the congressional Jo intInquiry report on the September 11th attacks.To assist the C omm ission in fulfilling its statutory mandate, we hereby requestthat your office provide to the Commission and its staff copies of theinformation gathered during your watchlisting review, including :

1. A ll DH S, Terrorist Screening C enter, and Terrorist Id entitiesGroup documents collected during your review, other thandocuments that were provided to the congressional Joint Inquiry;2. A ny transcripts of interviews conducted by you r office during thisreview;3. Fo r interviews for which there is no existing transcript,memoranda or "write-ups" of such interviews;4. For interviews for which there is no transcript, interviewmemoranda or "write-ups," interview notes made for any suchinterviews; an d5. Your final report, once it becomes available.

1 7th Street SW, R o o m 5125DC 20407

F 202.296.5545lcommission.gov

26 Federal PlazaSuite 13-100New York, NY 10278T 212.264.1505 F 212.264.1595


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Clark Kent E rvin, Esq.March 4, 2004Page 2We will use these materials to assist us in identifying and evaluating lessonslearned on the issue of watchlisting.Thank you very much fo r your willingness to cooperate with the Commissionand its staff in this important matter. Please do not hesitate to call SusanGinsburg 202-331-1747 if you have any questions or concerns ab out thisrequest.Yours sincerely,

)aniel MarcusGeneral Counsel

Documents

DM B4 Homeland Security Fdr- Draft DHS Memo and Correspondence w DHS Re Access- Document Requests 323