Review of the United States Marshals Service Judicial Security Process
Report No. I-2004-004
[Memorandum to Glenn Fine not available electronically.]
Response to Draft Report A-2003-006
Review of the United States Marshals Service Judicial Security Process
Judicial Security has been the highest priority of the U.S. Marshals Service (USMS) for nearly 215 years. During the years leading up to the tragic events of 9/11, the USMS successfully secured thousands of high risk trials involving foreign and domestic terrorists, drug king pins, Mafia bosses, outlaw motorcycle gangs, and other defendants with long histories of violence. During this same period, the USMS successfully managed numerous trials of high profile public figures whose cases created their own unique set of security risks. None of these trials were disrupted and none of the court family involved were injured.
In spite of this impressive record of success, the USMS renewed and strengthened its commitment to protecting the Judiciary following 9/11. Essentially all management initiatives since 9/11 were designed to enhance an already strong Judicial Security program. These initiatives often taxed the USMS's resources and required the direct participation of hundreds of managers and employees at all levels of the organization. While some of the these accomplishments are appended to the draft report, many are omitted. Some significant examples include:
Accomplishments like these have further enhanced the Judicial Security program's reputation as one of the best in the world. We are currently providing Judicial Security Training to hundreds of Colombian nationals and may soon be called upon to provide this training to other countries as well. In addition, the USMS regularly conducts Judicial Security training for state and local law enforcement agencies at the Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia. There is usually a waiting list of state and local officers who want to attend this training.
DRAFT REPORT OVERVIEW:
The draft report is not required to include all the significant Judicial Security accomplishments, nor is it required to provide complete context for its comments and recommendations. Nonetheless, the USMS believes context of the draft report leaves an inaccurate, or at least, incomplete picture. This is further compounded by the use of anecdotal and/or incomplete information. While the draft report contains many examples of this deficiency, a brief sampling illustrates the problem:
Beginning on the third line of the Executive Summary, the draft report says:
"No federal judges have been assassinated since 1989, but two federal judges have been assaulted in the last three years, and the USMS receives almost 700 threats against members of the judiciary each year."
The USMS believes that this statement totally misrepresents the effectiveness of its Judicial Security program. While a single assault or assassination is unacceptable, the full picture actually supports, rather than questions, the USMS' s capabilities. In the 215 year history of the Federal Judiciary, four judges have been assassinated. The two most recent assassinations occurred in 1988 and 1989. Neither of the judges had been threatened by their assassins and the murders occurred at their homes. The third most recent assassination occurred in 1975. In that case, the Judge was killed after he decided to terminate the security arrangements that had been put in place by the USMS. In none of these cases were the alleged USMS shortcomings mentioned in the draft report the causation factor.
Since September 11th, the USMS has produced prisoners, many of whom were extremely violent, before judges and magistrates over one million times. During this staggering number of occasions when the USMS could have failed in its obligation to protect the judiciary, no judge was ever injured. In addition, the USMS believes that one of the two incidents mentioned in the draft report was actually a random street robbery that had nothing to do with the judge's identity or duties.
Further the Executive Summary states,
"Since fiscal year (FY) 2001, Congress has increased funding for judicial security by about 50 percent and authorized the USMS to hire 106 new Court Security Inspectors. However, Congress has expressed concern that ''as the program has grown sufficient attention has not been provided to program and budget administration."
The draft report never fully explains what the concern actually was and whether or not it was validated. In addition, since the draft report focus is solely on the USMS's ability to analyze threats and its ability to protect the judiciary, a reader could easily assume that Congress's concern was related. First, Congress was concerned that the USMS was not using Judicial Security funding as it had been "earmarked" in the appropriation. A review by the Department of Justice Office of the Inspector General failed to find a single case where the USMS spent these funds other than as Congress intended.
Second, none of the funds appropriated by Congress were "earmarked" for positions to collect or analyze intelligence. If the USMS had diverted funds for this purpose it would have ignored the intent of Congress and violated the well established re-programming requirements.
On page 24, paragraph 3, of the draft report, it says "two trial judges are under express death threats from terrorists groups." Given the repeated allegations of shortcomings in the USMS's ability to analyze threats and protect the judiciary, this is an extremely serious statement. First, the USMS has no information that any judge is under such a threat. Second, those judges who are at increased risk as a result of their participation in terrorist trials have the highest levels of security possible. In fact, their security arrangements are comparable in many ways to those provided to other government officials requiring protection. In some cases these measures are extended to family members. Due to the security sensitivity of these cases, it is not possible to provide more detailed information in this forum.
On page 14, the summary states:
"The USMS's shortcomings in quickly and effectively assessing threats, including those associated with terrorist and other high-threat trials, increase the risk that members of the federal judiciary may not be protected."
Once again, given the overall tenor of the draft report, this is a very serious observation. ill addition, on page 29, the draft report estimates that more than 2,400 trials were held in an environment of "substantial" risk during Fiscal Year 2002 and that ". . . the USMS cannot effectively ensure that the most significant risks are addressed and that its resources are used appropriately." However, the draft report does not mention that no trial has been disrupted and no judge, juror, witness, or prosecutor, has been injured since September 11th. Given these facts, it is not clear upon what information these statements in the draft report are made.
The most troubling example is the summary at the top of page 26. It suggests that the USMS Judicial Protection techniques are not "adequate" or "appropriate." It further alleges that "outdated" policies cause protective measure decisions to be made in an "ad hoc" and "inconsistent" manner. Finally, it tells the reader that the USMS is not able to "effectively allocate resources among all threats." According to the draft report, these USMS deficiencies are primarily due to older policies and a lack of risk-based standards that can be used to determine security requirements and resource allocations. These statements are made without a single example of when these alleged inadequacies resulted in a trial being disrupted or a member of the judicial family being injured.
The summary and narrative that continues through page 31 fail to demonstrate an even basic understanding of how the USMS Judicial Security process works. The requirements for every high threat trial are determined on a case-by-case basis after considering all available information about the case, the instructions from the trial judge, physical characteristics of the courthouse and available resources. Local and/or national Judicial Security specialists and managers develop an operational plan that is tailored specifically to the trial at hand. After sharing the plan with the trial judge and the prosecutor, it is modified as necessary. As the trial unfolds, the operational plan is frequently amended to meet changing conditions. The plans are implemented by personnel who have received specialized training and who utilize the latest in high tech security equipment.
This section of the draft report can also leave the impression that some high-risk trials go without the necessary resources, while resources are wasted on others. The draft report does not mention that 94 per cent of all requests for special assignment resources are approved, nor does it provide any examples of where resource decisions caused disruption or injury. In addition, the draft report provides no factual information or expert analysis of the risks involved to support the statement that "two different protective service details on different judges were maintained while they were both inside the secure courthouse unnecessarily duplicating the protective coverage."
RECOMMENDATION 1: Ensure that all threats to the judiciary are assessed within established time frames.
The USMS agrees that all threats should be assessed according to policy. However, it appears from the narrative supporting this and other recommendations in the draft report that the process through which the USMS responds to potential threats was not fully understood. As a result, the following general description is provided to correct any misunderstandings and clarify the record.
It is the policy of the USMS to encourage all members of the judicial family and their staffs to report any inappropriate communications (IC) immediately. While the USMS believes that this advice is generally followed, it obviously cannot force compliance. When a district is notified of an IC, a trained district threat investigator conducts an immediate assessment to determine if the IC constitutes an imminent and viable threat.
If there is any reason to believe that the IC constitutes a viable threat, district staff, based on their specialized security training and experience, can immediately implement whatever protective measures they deem necessary to mitigate the threat. Protective measures can include every option up to and including XXXXXXXXXXXXXXXXXXXX for the protectee and his/her family. The district can implement these measures for XXXXXXXX without approval from Headquarters and without concern for long-term funding.
Concurrently, the district notifies the Operations Support Team (OST) at Headquarters of the IC and of what steps it has taken to mitigate any potential threats. The district may also alert the FBI of the potential need for a criminal investigation. At this point. the OST determines whether or not to send the IC to the Analytical Support Unit (ASU) for further analysis. If the ASU conducts an analysis. it becomes a factor considered by the OST and the district in determining what steps should be taken next. Further actions may include canceling or increasing protective measures, initiating a full scale protective investigation, seeking court orders governing the conduct of the trial, and determining if the district will require additional resources. It should be noted that if a full scale protective investigation is initiated, it could take months to complete due to its complexity.
We also stress that both the district and the OST personnel have the training, experience, and authority to implement protective measures without a completed analysis from the ASU. In addition, there is nothing in USMS policy or practice to suggest that protective measures would ever be delayed while awaiting the completion of an ASU analysis. Once protective measures have been put in place (XXXXXXXXXXXXXXXXXXXXXXX), they are never removed without first discussing the risk level with the protectee and a thorough review by the OST.
USMS Corrective Action:
The USMS will be revising its policy on time frames for the ASU to complete assessments. The new policy will establish criteria that categorize requests according to urgency. Once the policy is implemented, adherence to the time frames will be made a factor in the annual performance evaluations of the ASU staff. The USMS estimates that the new policy will be implemented by the end of August 2004. The USMS will also review the workload of the ASU and will request additional resources during the FY-2006 budget process if necessary.
RECOMMENDATION 2: Update the historical threat database or develop a new database to perform comparative assessments.
The USMS agrees that the threat database should have been updated. In addition, the USMS believes that the threat database is a valuable part of the overall threat assessment and response process. However, the USMS believes that the draft report greatly overstates the role of the database and adverse impact of not having it current.
As mentioned above, a decision to implement security measures is made before the ASU database is used. The analysis provided by the ASU is only one factor used by Judicial Security specialists in the OST and the districts to determine the level and potential duration of security. The ASU analysis itself does not direct whether security should be applied or what the security should be. These decisions are made by professionals based on their experience, training, and other factors such as the desires and circumstance surrounding the protectees.
In addition, the USMS recently reviewed cases with known outcomes for the period of 1997 through 2003. They were compared with the database of known outcomes that was last updated in 1996. The results showed the level of validity remains relatively high. The percentage results were (1996 data base listed first): specious 97.1/91; enhanced 6.4/5: and violent 2.2/4.
USMS Corrective Action:
A requirements analysis on updating the database is underway. It should be completed by March 15,2004. Once completed, the cost and time to complete the project will be determined.
RECOMMENDATION 3: Assign USMS representatives to all 56 FBI field office JTTF's and ensure effective liaison with intelligence agencies (e.g., the U.S. Secret Service National Threat Assessment Center, the Central Intelligence Agency, and the National Security Agency.
The USMS agrees that having a full time representative at all JTTF's is desirable. It should be noted that since September 11th, it has been able to increase the number of employees assigned to the task forces from less than ten (10) to forty-nine (49). This has been done without the appropriation of positions specifically for this purpose. In addition, the draft report does not mention that the USMS:
USMS Corrective Action:
The USMS will seek additional positions in the FY 2006 budget to station at least one full-time employee at each of the FBI JTTFs.
RECOMMENDATION 4: Create a centralized capability to identify, collect, analyze and share intelligence with USMS districts, as well as the USMS JTTF representatives and other intelligence liaisons.
The USMS agrees with this recommendation and prior to the review had already created an Office of Intelligence. A senior GS-15 Criminal Investigator with extensive experience in Judicial Security and as a U.S. Marshal and Chief Deputy U.S. Marshal has been designated as the Chief of this new office.
USMS Corrective Action:
The USMS will be seeking the resources needed to fully staff the Office of Intelligence as part of the FY 2006 budget process. In the meantime, the USMS will explore ways to provide additional staffing to the office on a temporary duty basis.
RECOMMENDATION 5: Require that all Chief Deputy U.S. Marshals and USMS JTTF representatives have Top Secret clearances and that each district has secure communications equipment.
While the USMS agrees with this recommendation, it is another example of where the draft report understates the efforts of the USMS. Prior to September 11th, only 889 employees held Secret or higher clearance. Currently 2,185 employees hold a Secret clearance or higher. This includes 94 U.S. Marshals and 77 Chief Deputies who hold a Top Secret Clearance. The remaining 14 Chief Deputies are being processed for Top Secret clearances (three Chief Deputy positions are vacant at this time). Of the 49 USMS employees assigned to JTTFs, 42 have Top Secret or Interim Top Secret Clearances. It is obvious by the progress made since September 11th that the USMS understands the importance of security clearances and is moving aggressively to ensure that all employees are appropriately cleared.
At the time the draft report was being compiled, it was well known that the USMS was committed to providing secure telephone communications equipment. Proof that this initiative was well underway is the fact that sixty three districts now have secure communication capability and that STE equipment for the remaining districts is on order. It is also important to point out that all USMS districts have had secure radio communication capability since that equipment first became available. Finally, the USMS has had an aggressive Operations Security (OpSec) program in place since 1997.
USMS Corrective Actions:
The remaining Chief Deputy Marshals and JTTF representatives will have Top Secret clearances within 30 days of completion of their OPM background investigations. Newly appointed Chief Deputy Marshals and JTTF representatives will have background investigations initiated within 15 days of appointment, and Interim Top Secret clearances within 30 days of appointment. The remaining STE units which were ordered from the NSA Contract are scheduled to arrive by the end of June 2004.
RECOMMENDATION 6: Revise the 1993 Judicial and Court Security Manual and the 1999 Offsite Security Booklet for Judicial Officers to establish risk- based standards and require after-action reports for high threat- trials and protective details.
While the USMS agrees with this recommendation, it is important to note that the basic information and guidance in both the Manual and the Booklet are still sound. There is nothing in either document that would jeopardize security if followed. In addition, the ongoing Judicial Security training that is provided to all law enforcement personnel during Basic, Advanced, Specialized and Supervisory/Management classes is regularly reviewed and updated as necessary. It should also be noted that this training is supplemented by ongoing meetings, conferences, operational bulletins, and threat advisories which transmit the very latest intelligence and guidance on Judicial Security. Finally, while after action reports are important, major high threat trials and protective details are closely monitored or supervised by senior Criminal Investigators assigned to either the Judicial Security or Investigative Services Divisions. Therefore, lessons learned are not lost.
USMS Corrective Actions:
The USMS has recently completed a new protocol for conducting judicial threat assessments and has developed risk-based criteria to be used when planning high-risk trials, protective details, and threat investigations. They have been posted on the USMS intranet web site and copies are attached to this response. The Manual, Booklet, and after action-report requirements will be completed by the end of August 2004.
In spite of its impressive record, the USMS is committed to the ongoing evaluation and improvement of the Judicial Security program. The USMS meets regularly with members of the Judicial Conference of the United States, the Administrative Office of U.S. Courts, the General Services Administration, and the U.S. Postal Service on matters of facility and judicial security. U.S. Marshals are required to meet regularly with their local judicial security committees and those judges assigned special security responsibilities. In addition to regular meetings, the Marshals are directed by USMS headquarters to convene special security meetings whenever threat information so justifies. Soon, each U.S. Marshal will be tasked to work with members of the local judicial family to develop individual Continuation of Operation Plans (COOP) as part of the government-wide Continuity of Government (COG) initiative. The USMS will continue to use all opportunities to enhance its Judicial Security capabilities.