Report to Congress on Implementation
of Section 1001 of the USA PATRIOT Act
(as required by Section 1001(3) of Public Law 107-56)
August 15, 2006
Office of the Inspector General
Section 1001 of the USA PATRIOT Act (Patriot Act), Public Law 107-56, directs the Office of the Inspector General (OIG) of the U.S. Department of Justice (DOJ or Department) to undertake a series of actions related to claims of civil rights or civil liberties violations allegedly committed by DOJ employees. It also requires the OIG to provide semiannual reports to Congress on the implementation of the OIG’s responsibilities under Section 1001. This report – the ninth since enactment of the legislation in October 2001 – summarizes the OIG’s Section 1001-related activities from January 1, 2006, through June 30, 2006.
According to the Inspector General Act, the OIG is an independent entity within the DOJ that reports to both the Attorney General and Congress. The OIG’s mission is to investigate allegations of waste, fraud, and abuse in DOJ programs and personnel and to promote economy and efficiency in DOJ operations.
The OIG has jurisdiction to review programs and personnel in all DOJ components, including the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Federal Bureau of Prisons (BOP), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the U.S. Attorneys’ Offices, and other DOJ components.1
The OIG consists of the Immediate Office of the Inspector General and the following divisions and offices:
The OIG has a staff of approximately 400 employees, about half of whom are based in Washington, D.C., while the rest work from 16 Investigations Division field and area offices and 7 Audit Division regional offices located throughout the country.
Section 1001 of the Patriot Act provides the following:
Review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice.
The OIG’s Special Operations Branch in its Investigations Division manages the OIG’s investigative responsibilities outlined in Section 1001.2 The Special Agent in Charge who directs this unit is assisted by three Assistant Special Agents in Charge (ASAC), one of whom assists on Section 1001 and DEA matters, a second who assists on FBI matters, and a third who provides support on ATF cases. In addition, four Investigative Specialists support the unit and divide their time between Section 1001 and FBI/DEA/ATF responsibilities.
The Special Operations Branch receives civil rights and civil liberties complaints via mail, e-mail, telephone, and facsimile. The complaints are reviewed by an Investigative Specialist. After review, the complaint is entered into an OIG database and a decision is made concerning its disposition. The more serious civil rights and civil liberties allegations that relate to actions of DOJ employees or DOJ contractors normally are assigned to an OIG Investigations Division field office, where OIG special agents conduct investigations of criminal violations and administrative misconduct.3 Some complaints are assigned to the OIG’s Oversight and Review Division for investigation.
Given the number of complaints received compared to its limited resources, the OIG does not investigate all allegations of misconduct against DOJ employees. The OIG refers many complaints involving DOJ employees to internal affairs offices in DOJ components such as the FBI Inspection Division, the DEA Office of Professional Responsibility, and the BOP Office of Internal Affairs (OIA) for appropriate handling. In certain referrals, the OIG requires the components to report the results of their investigations to the OIG. In most cases, the OIG notifies the complainant of the referral.
Many complaints received by the OIG involve matters outside our jurisdiction. The ones that identify a specific issue for investigation are forwarded to the appropriate investigative entity. For example, complaints of mistreatment by airport security staff are sent to the Department of Homeland Security (DHS) OIG. We also have forwarded complaints to the OIGs at the Department of Veterans Affairs, Department of State, United States Postal Service, Department of Defense, Department of the Treasury, Social Security Administration, Department of Education, the Equal Employment Opportunity Commission, and Administrative Office of the U.S. Courts. In addition, we have referred complainants to several state and local Department of Corrections offices that have jurisdiction over the subject of the complaints.
When an allegation received from any source involves a potential violation of federal civil rights statutes by a DOJ employee, the complaint is discussed with the DOJ Civil Rights Division for possible prosecution. In some cases, the Civil Rights Division accepts the case and requests additional investigation by either the OIG or the FBI. In other cases, the Civil Rights Division declines prosecution.
From January 1, 2006, through June 30, 2006, the period covered by this report, the OIG processed 803 complaints that were sent primarily to the OIG’s Section 1001 e-mail or postal address.4
Of these complaints, we concluded that 647 did not fall within the OIG’s jurisdiction or did not warrant further investigation. Slightly more than half of the complaints – 336 of the 647 – involved allegations against agencies or entities outside of the DOJ, including other federal agencies, local governments, or private businesses. We referred those complaints to the appropriate entity or advised complainants of the entity with jurisdiction over their allegations. The remaining 311 complaints raised allegations that, on their face, did not warrant an investigation. For example, complaints in this category included frivolous allegations that FBI agents implanted a global positioning system into a complainant’s body or controlled an individual’s sleep cycle.
The remaining 156 of the 803 complaints involved DOJ employees or components and included allegations that required further review. We determined that, of those complaints, 143 raised management issues not related to our Section 1001 duties, and we referred them to DOJ components for appropriate handling. Examples of complaints in this category included inmates’ allegations about the general conditions at federal prisons or complaints that the FBI did not initiate an investigation into a particular complainant’s allegations.
Five of the 156 complaints did not provide sufficient detail to make a determination whether an abuse was alleged. We requested further information but did not receive responses from these 5 complainants.
The OIG identified 8 matters out of the 156 that we believed warranted an investigation to determine if a Section 1001-related abuse occurred. We referred 6 of the matters to the BOP for investigation and 2 to the FBI. We discuss the substance of these eight complaints in the next section of this report.
None of the 803 complaints we processed during this reporting period specifically alleged misconduct by DOJ employees relating to use of a provision in the Patriot Act.
The following is a synopsis of the new complaints processed during this reporting period:
As mentioned previously, the OIG referred six Section 1001 complaints to the BOP and two to the FBI for investigation during this reporting period. The OIG requested that these components provide the OIG a copy of their investigative reports upon completion of the investigations. The complaints involve the following allegations:
The investigation revealed that several correctional officials violated BOP procedures in processing the male detainee into the facility by conducting a body cavity search in the vicinity of female staff. We also found that the correctional officers later tried to conceal their role in this incident. In addition, the investigation found evidence of mishandling of the original videotape of the inmate’s processing at the BOP facility. The OIG also found that poor management by BOP managers resulted in the improper collection, documentation, and safeguarding of the videotapes.
In April 2004, the OIG presented this matter to the U.S. Attorney’s Office for prosecution, and it declined prosecution in December 2005. The OIG provided its report of investigation to the BOP for appropriate administrative action.
The OIG conducts other reviews that go beyond the explicit requirements of Section 1001 in order to implement more fully its civil rights and civil liberties oversight responsibilities. Using this approach, the OIG has initiated or continued several special reviews that relate to the OIG’s duties under Section 1001. We also report on a DOJ OPR ongoing review during this reporting period.
Orders for Business Records
In December 2005, the OIG initiated a review examining the FBI’s use of two authorities amended by the Patriot Act:
(1) the FBI’s authority to issue National Security Letters to obtain certain categories of records from third parties, including telephone toll and transactional records, financial records, and consumer reports; and
(2) the FBI’s authority to obtain business records from third parties by applying for ex parte orders issued by the Foreign Intelligence Surveillance Court pursuant to Section 215 of the Patriot Act.
This review is required by the USA Patriot Improvement and Reauthorization Act of 2005 (Public Law 109-177). This lawdirects the OIG to review the extent to which the FBI has used these authorities; any bureaucratic impediments to their use; how effective these authorities have been as investigative tools and in generating intelligence products; how the FBI collects, retains, analyzes, and disseminates information derived from these authorities; whether and how often the FBI provided information derived from these authorities to law enforcement entities for use in criminal proceedings; and whether there has been any improper or illegal use of these authorities. See Sections 106A and 119 of Public Law 109-177.
In this review, the OIG is examining the FBI investigative files, interviewing FBI and other DOJ officials, visiting FBI field offices, and analyzing the FBI’s use of these authorities in the last several years. According to the law, the OIG is required to report the results of its review by March 2007.
In June 2003, the OIG issued a report entitled, “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks.” In that report, the OIG made 21 recommendations related to issues under the jurisdiction of the FBI, the BOP, and leadership offices at the DOJ, as well as immigration issues now under the jurisdiction of the DHS. As of this reporting period, 20 of the recommendations have been resolved. The one open recommendation calls for the Department and the DHS to enter into a memorandum of understanding (MOU) to formalize policies, responsibilities, and procedures for managing a national emergency that involves alien detainees. After the OIG’s issuance of the report, the DOJ and DHS agreed with the recommendation and began negotiating over language in the MOU to implement the recommendation. However, more than two years after the OIG made the recommendation, the MOU still has not been completed. As of July 2006, we were informed that discussions between the Department andthe DHS over the language of this MOU remain ongoing.
In April 2006, the OIG issued a report on the FBI’s use of its investigative authorities to conduct interviews of potential protesters in advance of the 2004 national political conventions. News articles in 2004 stated that the FBI had questioned political demonstrators across the United States in connection with threatened violent and disruptive protests at the Republican and Democratic National Conventions held in the summer of 2004. The initial article stated that dozens of people had been interviewed in at least six states, including anti-war demonstrators and political demonstrators and their friends and family members. The FBI issued a statement responding to these allegations which stated in part: “The FBI is not monitoring groups, or interviewing individuals, unless we receive intelligence that such individuals or groups may be planning violent and disruptive criminal activity or have knowledge of such activity.”
Following publication of the news articles, several members of Congress requested that the OIG initiate an investigation into “possible violations of First Amendment free speech and assembly rights by the Justice Department in connection with their investigations of possible protests at the Democratic and Republican political conventions in Boston and New York and other venues.” In response, the OIG initiated an examination of the FBI’s use of its investigative authorities to conduct interviews in advance of the national political conventions and the FBI’s monitoring of protest groups in connection with the national political events. During the course of its review, the OIG interviewed more than two dozen FBI headquarters and field personnel and examined approximately 10,000 pages of documents.
The OIG’s review did not substantiate the allegations that the FBI improperly targeted protesters for interviews in an effort to chill the exercise of their First Amendment rights at the 2004 national political conventions. The OIG concluded that the FBI’s interviews of potential convention protesters and other related interviews, together with its related investigative activities, were conducted for legitimate law enforcement purposes and were based upon a variety of information associated with possible bomb threats and other violent criminal activities.
The OIG found that nearly all of the FBI’s protester-related investigative activity was devoted to addressing 17 distinct threats to the conventions falling within the FBI’s domestic terrorism program. The report concluded that the FBI addressed each threat in accordance with the Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations (General Crimes Guidelines). In addition, the review identified seven terrorism enterprise investigations not initiated in connection with the conventions that generated convention-related criminal intelligence. The OIG concluded that the investigative techniques used to obtain this intelligence were a logical outgrowth of the underlying investigations and that the investigative activity was undertaken in a manner consistent with the requirements of the General Crimes Guidelines.
With respect to the protester-related interviews, the OIG’s investigation revealed that the FBI identified 74 persons and the residents of 3 addresses for contact who satisfied the following criteria: 1) they were likely convention demonstrators or, through affiliation with one or more organizations or persons, were individuals with access to information about potential protest activity at the conventions; and 2) they were persons whom the FBI reasonably believed had, or might have, knowledge about planned criminal acts at the conventions. In addition, the FBI contacted and interviewed eight individuals in an attempt to locate persons who satisfied the two criteria above. Of the individuals targeted for contact, the FBI was successful in locating 60 persons in 9 states, 41 of whom consented to interviews and provided the FBI with information. The OIG concluded that the FBI’s contacts with these individuals were appropriate and occurred in response to the 17 threats of criminal activity.
In June 2006, the OIG initiated a review to examine allegations that the FBI targeted domestic advocacy groups for scrutiny based solely upon their exercise of rights guaranteed under the First Amendment of the United States Constitution. The review will examine allegations regarding the FBI’s investigation, and the predication for any such investigation, of certain domestic advocacy groups including the Thomas Merton Center, Greenpeace, and People for the Ethical Treatment of Animals (PETA). Our review of the domestic advocacy groups will be similar in focus to the OIG’s review of the FBI’s investigation of potential protesters at the 2004 Democratic and Republican National Conventions.
The OIG is reviewing FBI employees’ observations and actions regarding alleged abuse of detainees at Guantanamo Bay, Abu Ghraib prison, and other venues controlled by the U.S. military. The OIG is examining whether FBI employees participated in any incident of detainee abuse, whether FBI employees witnessed incidents of abuse, whether FBI employees reported any abuse, and how those reports were handled by the FBI. In addition, the OIG is assessing whether the FBI inappropriately retaliated against or took any other inappropriate action against any FBI employee who reported any incident of abuse.
As part of this ongoing review, the OIG has interviewed detainees, FBI employees, and military personnel at Guantanamo. In addition, the OIG has administered a detailed questionnaire to approximately 1,000 FBI employees who served assignments at Guantanamo Bay, in Iraq, and Afghanistan. The questionnaire requested information on what the FBI employees observed, whether they reported observations of concern, and how those reports were handled. The OIG has received over 900 responses to its questionnaire. The OIG investigative team is in the process of drafting the report summarizing the results of the investigation.
In the OIG’s March 2006 Section 1001 report, we described our examination of the FBI’s process for reporting possible violations involving intelligence activities to the Intelligence Oversight Board (IOB). The examination focused on fiscal years 2004 and 2005. As set forth in the last report, the FBI made 108 reports of possible violations to the IOB for fiscal years 2004 and 2005.
The FBI’s reports to the IOB describe incidents that generally fell into one or more of the following three categories: (1) improper utilization of authorities under FISA; (2) failure to adhere to Attorney General Guidelines or implementing FBI policy; and (3) improper utilization of authorities involving National Security Letters. The matters reported to the IOB encompassed a broad range of intelligence activities used by the FBI, although most of the possible violations involved electronic surveillance.
The OIG continues to monitor the FBI’s handling of IOB matters. We intend to update our review in the next Section 1001 report.
As we described in our last report, DOJ OPR has opened an inquiry regarding the DOJ’s use of material witness warrants. This review was opened after the American Civil Liberties Union and Human Rights Watch issued a report in June 2005 entitled “Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11.” The report reviewed a number of material witness cases and alleged that the material witness law had been misused to hold suspects in cases where there was insufficient evidence to charge them criminally; a number of witnesses were not brought promptly before a judge, were denied counsel, or were not provided with the reason for their arrest; the government had improperly alleged that every witness was a flight risk; the government had conducted abusive interrogations; and many of the judicial proceedings were improperly conducted in secret.
Based on the allegations in the report, DOJ OPR opened an inquiry regarding the allegations concerning 13 individuals, and one group of 8 individuals detained together. Some of these matters involved allegations that individuals were held for long periods of time on material witness warrants with no effort to obtain their testimony. Several of these individuals were later charged criminally or deported based on immigration violations. Other matters involved the alleged failure to bring individuals before a court within the required time frame and failure to inform witnesses of the basis for their arrest. According to DOJ OPR, its inquiry remains ongoing.
Section 1001 requires the OIG to:
Submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate on a semi-annual basis a report…including a description of the use of funds appropriations used to carry out this subsection.
During this reporting period, the OIG spent approximately $1,388,726 in personnel costs, $51,485 in travel costs (for investigators to conduct interviews), and $1,552in miscellaneous costs, for a total of $1,441,726 to implement its responsibilities under Section 1001. The total personnel and travel costs reflect the time and funds spent by OIG special agents, inspectors, and attorneys who have worked directly on investigating Section 1001-related complaints, conducting special reviews, and implementing the OIG’s responsibilities under Section 1001.