T5 B71 Misc Files Re DOS Visa Policy 2 of 3 Fdr- TIPOFF Project Talking Points w AG Memo- Emails-...

8/14/2019 T5 B71 Misc Files Re DOS Visa Policy 2 of 3 Fdr- TIPOFF Project Talking Points w AG Memo- Emails- Info 580

1/11

TIPOFF PROJECTTa lk i ng Points

The Attorney General (AG) strongly supports in cluding TIPOFF records in NCIC. Hedirected tha t this action be taken in Apri l 2002.Of all the in itiatives related to NC IC (absconders, NSEERS), thi s is the most importan tbecause U.S. governmen t agencies ha ve had sufficient cause to be concern ed that theseindividuals are involved in terrorism.W e support the proposal in #4 to test the process by entering only 100 records into NCIC.That way we can address issues before all 40,000 names are entered.A representative of the Depa rtment of Justice's Office of Legal Counsel (OLC) hasattended several interagen cy meetings on the proposal and has review ed draft "guidance"from the AG and Secretary Ridg e (Attachment 1).

OLC has opined that, so long a s an arrest by a state officer is otherwise consistentwith the Fourth Amen dment a nd the state officer is ac ting pursuan t to state-law authority,the officer can ma ke an arrest for a civil imm igration charge.OLC, however, b elieves that the 24-hour watch center m ust be a ble to quicklyrespond to the encountering officer to: 1.) verify the individual's identity and2.) advise whether the indiv idua l should be detained.

This project raises difficult issues:T he 24-houi wa tch system must work quick ly to be responsive to the encountering

officer. In situations where a determination cannot be made with certainty,representatives from the 24-hour watch system will direct either that the individual shouldbe allowed to depart or that the individual should be detained pending furtherinvestigation (ICE has 48 hours within which to decide to initiate rem oval proceedingsagainst an individual).OLC's advice isbased on an April 2002 legal opinion that state and local lawenforcement officers possess the inherent au thority to enforce viol ation s of civilimmigration law, although such a uthority could be precluded by state or local law. ThisOLC opinion ha s been con troversial and has not yet been released to the public. In orderto consult with state a nd local a uthorities as envisioned in #3, we believe that the OLCopinion should be released. (Note: T he Domestic Policy Coun cil directed that the

opinion not be released).

OAG015-0145NCTS000103588


2/11

It is true that a certain number of aliens in the TIPOFF system are allowed to enterthe country for any number of reasons: intelligence purposes, th e underlying informationis classified and the originating agency will no t allow it to be used to deny admission, orth e information is insufficient to deny admission.

The use of classified information is a sensitive issue. This Administration has no tused classified information to remove an admitted alien from the United States (we diduse classified information to deny admission to an unadmitted alien in October 2002). Ifwe proceed with this project, there is a significant likelihood that there will be cases inwhich we will need to use classified information to remove an alien. Of course, theoriginating agency must approve its use for that purpose.Background

On April 11,2002, the AG directed Department components to take rive specific steps tocoordinate information and activities to prevent an d disrupt terrorism. Part of themandate to expand terrorist information in law enforcement databases was to includeterrorist information from the Department of State's TIPOFF system in the FBI's NationalCrime Information Center (NCIC).Since April 2002, FBI has been working to implement the AG's directive. Last fall, KrisKobach from OAG, Laura Baxter from ODAG, an d Clare Huntington from OLC joinedan interagency working group comprised of FBI, State Department, INS, CIA and NSA todiscuss the legal and operational issues raised by this proposal.We discussed whether there should be an individual scrub of all 40,000 TIPOFF recordsbefore entering them into NCIC, or whether all should be entered up front and performthe scrub on the other end, when the individual is encountered. Based on the slow paceof entering alien absconders into NCIC and the fact that these individuals have beenentered into a terrorist watchlist. we determined that the scrub should occur after there isa hit.Th e TIPOFF staff informed us that of the 729 true hits at the border since 1987,105individuals were admitted because it was determined that there was insufficientintelligence information to deny entry. OLC stated that there "is a serious questionwhether a database with a 15% error rate will satisfy th e Fourth Amendment'srequirement of a 'fair an d reliable determination 1 of probable cause." Kris Kobach thenprovided information he obtained from the Foreign Terrorist Tracking Task Force(FTTTF) indicating that the vast majority of such aliens would be consideredinadmissible (even though they were admitted). This information appeared to reassureOLC, although OL C noted litigation risks arising from cases where the alien had beenadmitted to the United States before theTIPOFF record was created. (Email messagesfrom OLC attached asAttachment 2).

OAG015-0146

NCTS000103589


3/11

On A pril 17, 2003, Kris K obach and I attended a PCC on this issue. The Department ofHom eland Secu rity (represented by ICE Chief of Operations Mike Doherty) expressed thefollowing concerns:

based on experience at ports-of-entry, it takes some time to determine identity andto obtain permission from originating agency to use underlying information (there isbroad legal authority to detain aliens seeking admission)

the proposal has huge resource implications for ICE - they areconcerned that theyall their resources w ill be tied up in responding to TIPOFF hits

FB I is not equipped to make de termin ations as to whether an alien is deportable orinadmissible. ICE needs to make that determination.

OAG015-0147

NCTS000103590


4/11

Attachment 1DRAFT

MEMORANDUM FOR THE DIRECTOR OF THE FEDERAL BUREAU OFINVESTIGATION AND THE DIRECTOR OF THE FOREIGN TERRORIST TRACKINGTASK FORCEFROM THE ATTORNEY GENERALSUBJECT: Entering TIPOFF information into NCIC

The attacks of September 11,2001, highlighted the need to vigilantlyassess whether anindividual poses a danger to the national security. The Department of Justice continues to pursuethe September 11 investigation, as well as other investigations related to suspected terroristactivity. As in other criminal investigations, we seek to bring to justice those responsible for theattacks. This investigation, however, has another important purpose as well - to protectAmericans from additional acts of terror. In order to do so, the Department is committed to usingall legal tools available to disrupt and neutralize potential terrorist threats by removing from thestreets of our communities and from this country dangerous individuals who have broken ournation's laws or pose a threat to our national security.

Continuing our ongoing cooperation with other federal, state, and local agencies enhancesour effort to prevent new acts of terrorism. To that end, I previously directed that Departmentcomponents take measures to improve cooperation with other federal, state, and local agencies.In November 2001,1directed Department components to review their policies and procedures toensure information sharing. In addition, on April 11,2002,1directed Department components totake five specific steps to coordinate information and activities to prevent and disrupt terrorism.Part of the mandate to expand terrorist information in law enforcement databases was to includeterrorist information from the Department of State's TIPOFF system in the FBI's National CrimeInformation Center (NCIC). I directed that:

[t]o expand further local and slate law enforcement access to relevant terroristinformation, the FBI shall establish procedures with the Department of State thatwill enable, on a recurring basis, the inclusion of qualifying TTPOFF data intoNCIC. The FBI shall establish procedures that inform law enforcement officerswhat action should be taken when encountering suspected terrorists. Furthermore,the NCIC must properly characterize individuals as either suspected terrorists orknown terrorists, with the latter designation for individuals against whomsufficient evidence exists to justify such a determination.The Department of State and the Bureau of Customs and Border Protection (BCBP) in the

Department of Homeland Security use the TIPOFF system to deny visas and admission to knownor suspected alien terrorists. Both the Department of State and the BCBP vet the information

OAG015-0148NCTS000103591


5/11

presented in order to determine whether adequate identifying information exists to allow a recordto be entered in to the lookout systems.Although the TIPOFF system has proven quite effective in denying m ost of these know n

or suspected terrorists admission, for a variety of reasons, some of them may have escapeddetection and entered the Un ited States. Regardless of the means of entry, there are reasonablegrounds to believe that such an alien is engaged in or is likely to engage in terrorist activity,which is abasis for inadmissibility under 8 U.S.C. 1182(a)(3)(B)(i)(n).' Generally, aliens forwhom there are reasonable grounds to believe are engaged in or are likely to engage in terroristactivity are removable under 8 U.S.C. 1227(a)(l)(A) fo r being inadmissible at the time ofentry.In those cases where the TIPOFF record was created subsequen t to the alien's entry, the recordmay provid e reasonable g rounds to believe that the alien is removable on other g rounds at8 U.S.C. 1227(a). When a federal, state, or local law enforcement official encounters such anindividual in the United States, I direct federal officials, and ask state or local officials, totfae.NCIC record wi ll request that the encountering officer temporarily detain the individual until theBureau of Immigration and Customs Enforcement (ICE) takes custody of the ind ividua l. Anexception m ay be made if , in the judg ment of the-rosponsible-federal official, after oin order tocontact the 24-hour watch cen ter to be established bv the FBI. w|th ICE p resence, to review of allrelevant information pertaining to such individual, the federal official determines the detentionnot to be warranted. I direct that the FBI and request that the ICE establish a 24 hou r system thatwill allow any federal, state, or local law enforcement-official to notify the FBI and the ICE thaton alien whose NCIC hit is based on TIPOFF has been located in the United Stateo. ! roqucot thatthe ICE take steps to ensure that it responds immediately to overy-notifioation related to on alienin the TIPOFF G V G t e m . and determin e whether the individual should be placed in custody. Theremay be circumstances where individuals who have the same name as an alien who is entered intothe TIPOFF system may register as a positive "hit" upon anNCIC query. Accordingly, the24-hour system established by the FBI and ICE must be able to provide on-scene officers withsufficient identifying data to eliminate or confirm the individual as the TIPOFF entrant within aminimal period of time.

In June 2002,1announced that the Department has asked our state and local lawenforcement partners to undertake a "narrow, limited m ission" to assist u s in enfo rcing theimm igration laws by arresting those aliens who have been listed in NCIC and to transf er them tothe custody of immigration officials (the Im mig ration and Naturalization Service, which is nowlocated in the Department of Homeland Security). This request was based on the opinion of theDepartment's Office of Legal Counsel that states have inherent power to ma ke arrests forviolation of federal law. Therefore, under this inherent authority, the Department requested thatlocal law enforcement undertake a narrow activity. When a state or local law enforcementofficer is acting pursuant to state-law authority, the officer may unless prohibited by state or locallaw arrest aliens who have e ither (1) violated crim inal provisions of the Immig ration andNationality Act or (2) violated civil provisions that render them deportable and who are listed inNCIC because they have been determined by federal authorities to pose special risks: either they

1 This finding supersedes ray April 11,2002, directive that requires TIPOFF entrants to be characterized as"known" or "suspected" terrorists.

OAG015-0149

NCTS000103592


6/11

present national security concerns or they are absconders who have no t complied with a finalorder of removal. This inherent authority has not been preempted by the federal government.Obviously, aliens fo r whom records exist in the TIPOFF system are determined to presentnational security concerns.

I have consulted with the Secretary of Homeland Security and he concurs in thismemorandum . W e request that the FBI and the ICE work with the Department's Office of PublicLiaison an d Intergovernmental Affairs to coordinate implementation of this initiative with stateand local la w enforcement, including appropriate training that may be necessary. The war onterrorism is an ongoing effort, and law enforcement cooperation at all levels will ensure ou rfuture success.

OAG015-0150

NCTS000103593


7/11

Attachment 2Original Message

From: Huntington, QareSent: Wednesday, February 19, 2003 3:10 PMTo: Levey, Stuart; Kobach, Kris W; Baxter, LauraCc: Whdan, M Edward HISubject: RE: first draft of TIPOFF memo from AGStuart, Kris & Laura:Please find attached some suggested edits to Laura's draft TIPOFF memo. A few points and questions:1.) I wanted to revisit the probable cause issue to clarify that the real question is notwhether a 15% errorrate in the TIPOFF database as awhole would satisfy the 4th Amendment (one of the questions OLCposed in our Dec 23rd e-mail), but rather whether there are reasonablegrounds to believe that the 400aliens with TIPOFF records who have been admitted to the US are likely to engage in terrorism andtherefore are inadmissible under the INA. I understand that we now have additional information from theFTTTF indicating that the vast majority of such aliens would be considered inadmissible (even though theywere admitted). I wanted toensure that OAG is basing its decision to move forward with the inclusionofall TIPOFF records into NCIC on the FTTTF's assessment of the 400 aliens in the US, and not based onOLC's earlier advice (provided before the new information from the FTTTF was available) that thequestion iswhether adatabase with a 15% error rate satisfies the 4th Amendment. The 15% error rate Isrelevant to the overall accuracy ofTIPOFF - at least 15% ofaliens inTIPOFF would not be consideredinadmissible on terrorism grounds. This figure was derived from the percentage of TIPOFF alienswhoenter the country and for whom State decides there is insufficient intelligence information to deny entry.These names arescrubbed from the database. The relevant cohort for deciding on the proprietyofarresting aliens in the US based on a TIPOFF record is those aliens who were admitted to the country andwhose TIPOFF records were retained. We understand that of the 400 such aliens. FTTTF hasdetermined that the vast majority (I'm unsure of the exact number or percentage) could be consideredinadmissible at the time of entry.2.) I also wanted to reiterate oneother litigation risk. As Kris, Laura, and I discussedat our last meeting,if an alien is included in TIPOFF because since the alien entered the country USG has developed abasisfor concluding the alien has engaged or is engaging in terrorist activity, and this basis did not exist at thetime of admission, then a higher standard applies for the underlying immigration offense. Compare 8 USC1227(a)(4)(B) (aliens who engage interrorist activity after entry are deportable),wjth 8 USC1182(a)(3)(B)(i)(ll) (reasonable ground to believe alien is engaged in or is likely to engage in terrorism isbasis for denying admission). That is, if there are certain aliens for whom at the time of admission therewere not reasonable grounds to believe they were likely to engage in terrorism,but for whom the USG hassince developed a basis for deporting them under 1227(a)(4)(B), a court may be less likely to findprobable cause for the arrest b/c the underlying offense places a higher burden of proof on the AG.3.) NB: the probable cause paragraph is not anexact redline b/c I simply deleted some of the languagewithout striking through it. It was too unreadable to retain everything. All new language, however, isredlined.Please let me know i f you have any questions. Thanks.- Clare

OAG015-0151

NCTS000103594


8/11

OriginalMessageFrom: HunUngton, dareSent Monday, December 23, 2002 5:36 P MTo: Levey, Stuart; Kobach, Kns W ; Baxter, LauraCc: Whelan, M EdwardIIISubject Follow-up to T1 POFT meeting

Stuart. Kris & Laura:Based on the meeting with the TIPOFF staff on December 19th, we offer the following preliminaryadvice:As we advised previously,so longas an arrest by a state officer is otherwise consistent with theFourth Amendment and the state officer is acting pursuant to state-law authority, the officer can arrest analien for being inadmissible under 212(a)(3)(i)(B)(ll) and therefore deportable under 237(a)(1)(A). Fromthe past two meetings itappears that the next question is operational: can the determination that anindividual inTIPOFF/IBIS is inadmissible be made sufficiently quickly, i.e., before the stop becomes anarrest? There are two steps to determiningwhether the person stopped is inadmissible.First, it must be confirmed that the individual stopped is the same person with the TIPOFF/IBIS

record. Based on the State Department's experience at the border, it seems likely that nearly half of thosestopped who get an initial "hit" in the TIPOFF/IBIS system will not necessarily be the same person withaTIPOFF/IBIS file. (Border statistics: of 1,316 "hits" at the border since 1987, 587 were not the actualperson in the file - inState parlance, these are "false hits," as opposed to a "true hit" where thepersonatthe border is confirmed to be the person with the TIPOFF file.) Based on the State Department'sexperience, it also seems likely that the determination whether there is a "true hit" can take some time,with additional questioningoften necessary. Thus, one operational question is whether the false hit/truehit determination can be made in a reasonable time period. Part of the probable cause finding is adetermination that the officer is arresting the correct person. For example, if an officer stopped an alienwhose name happened to match a name in TIPOFF/IBIS but other identifying information did not match,such as gender and race, then there would not be probable cause to think that this person is inadmissible.That said, so long as the officer has probable cause to think it's the right person, this is sufficient. Cf.Baker v. McCollan. 443 U.S. 137,142 (1979) (officer's failure to have certain identification proceduresmay have been a tort, but so long as arrest was made with probable cause, the mistaken identity did notresult in a 4th Amendment violation).Second, once there is a "true hit," there must be a determination that the individual is indeedinadmissible under 212(a)(3)(B) (terrorism). From our review of the computer files on Friday, it seemslikely that in many cases this determination could be made within a reasonable time frame, but an INSofficer likely will need to be present at the 24/7 center to assess the information. We do not, however,think that adetermination can be made exante that all 39,000 aliens inTIPOFF/IBIS are inadmissible.The TIPOFF staff informed us that of the 729 true hits at the border since 1987,105 individuals wereadmitted because it was determined that there was insufficient intelligence information to deny entry.There is a serious question whether a database with a 15% error ratewill satisfy the Fourth Amendment'srequirement of a "fair and reliable determination" of probable cause. Baker v. McCollan. 443 U.S. 137,142 (1979) (citing Gerstein v. Puah. 420 U.S. 103 (1975)). Moreover, of the 729 true hits, an additional288 aliens were admitted despite listing InTIPOFF/IBIS. Although some of these may also have beenconsidered inadmissible under 212(a)(3)(B) and therefore their arrest would be permissible, only 317 ofthe 729 in TIPOFF/IBIS were actually denied entry at the border.W e understand that theTIPOFF staff remove most of the names from the database where there

is insufficient intelligence. Thus, the 105 admitted because of a lack of intelligence would not be in thedatabase after being admitted to the U.S. (This should be confirmed with TIPOFF staff.) It may bepossible to determine that of the roughly 400 aliens in TIPOFF/IBIS who were admitted to the U.S. andwhose names were retained, there isprobable cause to find that virtually all are inadmissible under212(a)(3XB). We recommend that the INSreview asample of these400 files to determine the rates of

OAG015-0152

NCTS000103595


9/11

inadmissibility. Basedon those findings, we can provide further guidance with respect to the FourthAmendment question.With respect to a mass certification under BUSC 1226a(a)(3) - andassuming the statute permitsthe Attorney General tomake a masscertificationanddoes not require an Individualized determination,aquestion we do notanswer here - we do notbelieve there would be a basis forsuch a certification of all39,000 aliens inTIPOFF/IBIS. Giventhe high rate of aliens admittedfor insufficient information, we do notthink there are "reasonable grounds to believe" that all aliens in TIPOFF/IBIS are inadmissible under212(a)(3)(B). It may be possible, however, to conclude that of the aliens admitted to the U.S. and still inTIPOFF/IBIS, there are reasonable grounds to believe these aliens (or the vast majority) are inadmissibleunder 212(a)(3)(B). Again, this determination cannot bemade without a revtew of a sample of the roughly

400 aliens admitted despite having a"true hit* at the border.In sum, our advice regarding state arrest authority remains the same. It is an operational questionwhether the 24/7 center can determine within areasonable lime that the individual stopped is both (1) thesame person with a TIPOFF/IBIS file, and (2) inadmissible under 212(a)(3XB). Making the latterdetermination on a case-by-case basis poses the fewest legal problems, assuming the 24/7 center canquickly make the inadmissibility determination (in light of what we saw on Friday, this seems likely). Ifthere is interest in making an ex ante determination either that (1) all aliens in TIPOFF/IBIS or (2) all aliensin TIPOFF/IBIS who have been admitted to the U.S., are inadmissible, this raises greater concerns underthe Fourth Amendment. Based on the statistics cited above, all aliens in TIPOFF/IBIS are notinadmissible, but whether the 15% error rate Is permissible under the Fourth Amendment is uncertain. Itmay be possible todetermine that all aliens inTIPOFF/IBISwho are admitted to the U.S. are inadmissible,but we cannot make this determination without a more thorough review by the INS of the files of the 400aliens who fall into this category. Basedonthat review,we can provide further legal advice.

Please let me know if you have anyquestions.i

Clare

OAG015-0153

NCTS000103596


10/11

TIPOFF/VGTOF Roll-out Schedule

PCCMeeting DeputiesMeeting

TIPOFF/VGTOFMOU Signed

AG/DHS DetentionMemo Signed

Outreach Period to State and Lncali by DHS, FBI, DOJCompletion ofTechnical TransferWork with FBI

FBI 24/7 capabilityReady-Phase1

Test data enteredinto VGTOF

Evaluation PeriodFull Implementation

S . T I O J 6/IS/03

OAG015-0154

NCTS000103597


11/11

Date post:	30-May-2018
Category:	Documents
Upload:	911-document-archive
View:	218 times
Download:	0 times

T5 B71 Misc Files Re DOS Visa Policy 2 of 3 Fdr- TIPOFF Project Talking Points w AG Memo- Emails-...

Documents