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 3, 2007
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 eleventh since enactment of the legislation in October 2001 – summarizes the OIG’s Section 1001-related activities from January 1, 2007, through June 30, 2007.
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:
Audit Division is responsible for independent audits of Department programs, computer systems, and financial statements.
Evaluation and Inspections Division conducts program and management reviews that involve on-site inspection, statistical analysis, and other techniques to review Department programs and activities and make recommendations for improvement.
Investigations Division is responsible for investigating allegations of bribery, fraud, abuse, civil rights violations, and violations of other criminal laws and administrative procedures that govern Department employees, contractors, and grantees.
Oversight and Review Division blends the skills of attorneys, investigators, and program analysts to investigate or review high profile or sensitive matters involving Department programs or employees.
Management and Planning Division provides planning, budget, finance, personnel, training, procurement, automated data processing, computer network communications, and general support services for the OIG.
Office of General Counsel provides legal advice to OIG management and staff. In addition, the office drafts memoranda on issues of law; prepares administrative subpoenas; represents the OIG in personnel, contractual, and legal matters; and responds to Freedom of Information Act requests.
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.
II. SECTION 1001 OF THE PATRIOT ACT
Section 1001 of the Patriot Act provides the following:
The Inspector General of the Department of Justice shall designate one official who shall ―
review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice;
make public through the Internet, radio, television, and newspaper advertisements information on the responsibilities and functions of, and how to contact, the official; and
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 on the implementation of this subsection and detailing any abuses described in paragraph (1), including a description of the use of funds appropriations used to carry out this subsection.
III. CIVIL RIGHTS AND CIVIL LIBERTIES COMPLAINTS
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, each 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 for 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 or by the border patrol are sent to the Department of Homeland Security (DHS) OIG. We also have forwarded complaints to the OIGs at the Department of State, Department of Defense, and Department of the Treasury. In addition, we have referred complainants to state Departments of Correction 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, we discuss the complaint with the DOJ Civil Rights Division for possible prosecution. In some cases, the Civil Rights Division accepts the case and requests additional investigation either by the OIG or the FBI. In other cases, the Civil Rights Division declines prosecution and either the OIG or the appropriate DOJ internal affairs office reviews the case for possible administrative misconduct.
Complaints Processed This Reporting Period
From January 1, 2007, through June 30, 2007, the period covered by this report, the OIG processed 644 Section 1001-related complaints.4
Of these complaints, we concluded that 535 did not fall within the OIG’s jurisdiction or did not warrant further investigation. Approximately 328 of these 535 complaints involved allegations against agencies or entities outside of the DOJ, including other federal agencies, local governments, or private businesses. When possible, we referred those complaints to the appropriate entity or advised complainants of the entity with jurisdiction over their allegations. The remaining 207 of the 535 complaints raised allegations that, on their face, did not warrant investigation. Complaints in this category included, for example, allegations that FBI agents implanted a remote control device in the complainant’s body, and a claim that FBI agents had tortured a complainant for over 5 years causing kidney disorders and eye damage to the complainant.
The remaining 109 of the 644 total complaints involved DOJ employees or components and included allegations that required further review. We determined that 102 complaints raised management issues that generally were not related to our Section 1001 duties, and we referred these complaints to DOJ components for appropriate handling. Examples of complaints in this category included inmates’ allegations about the general conditions at federal prisons, and complaints that the FBI did not initiate an investigation into particular allegations.
One of the 109 complaints did not provide sufficient detail for us to make a determination whether an allegation of civil rights or civil liberties-related abuse had occurred. We requested further information from this complainant but did not receive a response .
The OIG identified the 6 remaining complaints as matters that we believed warranted an investigation to determine if Section 1001-related abuse occurred. One of the matters is being investigated by the OIG, 4 of the matters were referred to the BOP for investigation, and 1 was referred to the FBI for investigation. We discuss the substance of these 6 complaints in the next section of this report.
None of the 644 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 complaints processed during this reporting period:
Total complaints within OIG’s
Section 1001 Cases This Reporting Period
During this reporting period, the OIG opened one new Section 1001 investigation. Additionally, the OIG referred four Section 1001-related complaints to the BOP for investigation and one Section 1001-related complaint to the FBI for investigation. For each of those referrals, we requested that the BOP and the FBI provide the OIG with a copy of their investigative reports upon completion of the investigations.
The following is a summary of the new matter opened by the OIG this reporting period:
The following four complaints were referred to the BOP for investigation:
An inmate alleged that he has been subjected to continuous discrimination and verbal abuse by BOP employees because he is from Afghanistan.
An inmate alleged that a comic strip depicting Muslims as terrorists was distributed inside a BOP facility by BOP staff.
A Muslim inmate alleged that his civil rights were violated because BOP staff ordered him to remove his Kufi and ordered him not to pray in the prison library.
A BOP employee, who is an Iraqi Muslim, alleged that he has been verbally harassed by BOP staff since the September 11, 2001, terrorist attacks.
The following complaint was referred to the FBI for investigation:
The OIG received an allegation that FBI Special Agents unreasonably detained, harassed, intimidated, and searched an individual’s property because of that person’s religion, race, and ethnicity. After receiving this complaint, the FBI Inspection Division conducted a review of the FBI New Orleans Division’s actions in this matter. The FBI Inspection Division determined that the allegations were not substantiated. Their report was forwarded to the OIG for review and we concurred with those findings.
Cases opened during previous reporting periods that the OIG continues to investigate
The OIG is investigating allegations from a BOP inmate that correctional officers came into his cell in the Special Housing Unit during a routine movement of the inmate to another cell and referred to the complainant and his cellmate as “camel jack” and “Saddam Hussein.” The inmate further alleged that when he asked the correctional officers not to speak to him in that manner, they assaulted him. The complainant alleged that when he tried to file a complaint with the BOP, he was told that an investigation could take up to 6 months, during which time he would be placed in the general population where the word would get out that he was a snitch. The OIG investigation is ongoing.
Investigations closed during this reporting period
The OIG directed the BOP to investigate allegations that an inmate was unjustly placed in the Special Housing Unit for 25 days after he reported being harassed by another inmate. The inmate further alleged that he was “mentally tortured” because he is Muslim and his name is Mohammad. The BOP Office of Internal Affairs investigation did not substantiate the allegations.
The OIG directed the BOP to investigate allegations that a BOP correctional officer verbally abused an inmate and called him a “terrorist.” The inmate also alleged that when this correctional officer was on duty, the inmate’s hot food was always served cold. The BOP Office of Internal Affairs investigation did not substantiate the allegations.
The OIG directed the BOP to investigate allegations that a BOP employee, while in the presence of a Muslim inmate, said that he hated all Muslims. The complaint alleged further that a BOP food service employee intentionally wiped pork grease on a Muslim inmate’s food tray after the inmate complained about a rotten tomato. The BOP Office of Internal Affairs investigation did not substantiate the allegations.
IV. OTHER ACTIVITIES RELATED TO POTENTIAL CIVIL RIGHTS AND CIVIL LIBERTIES ISSUES
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. The OIG has initiated or continued several such special reviews that relate to the OIG’s duties under Section 1001. These reviews are discussed in this section of the report.
Review of the FBI’s Use of National Security Letters and Ex Parte Orders for Business Records
On March 9, 2007, as required by the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109-177) (Patriot Reauthorization Act), the OIG issued two reports that examined the FBI’s use of two authorities established or amended by the Patriot Act:
(1) the FBI’s authority to issue national security letters to obtain – without a court order – certain categories of records from third parties , including telephone toll billing records, electronic communication transactional records, financial records, and credit information; 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.
The Patriot Reauthorization Act directed 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 officials 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.
The OIG’s March 2007 reports examined the FBI’s use of national security letters from 2003 through 2005, and Section 215 orders from 2002 through 2005. The OIG produced classified reports on the use of NSLs and Section 215 authority and provided these classified reports to Congress. We also produced and released publicly unclassified versions of these reports.
Report on the FBI’s Use of National Security Letters
The OIG’s 126-page NSL report described the dramatic increase in the use of NSLs since enactment of the Patriot Act in October 2001. The Patriot Act broadened the FBI’s authority to use these letters by lowering the threshold standard for issuance of NSLs; allowing FBI field office Special Agents in Charge to approve issuance of NSLs; and permitting the FBI to use NSLs to obtain full credit reports in international terrorism investigations. The OIG found that in 2000, the last full year prior to passage of the Patriot Act, the FBI issued approximately 8,500 NSL requests. After passage of the Patriot Act, the number of NSL requests issued by the FBI increased dramatically: approximately 39,000 issued in 2003; approximately 56,000 issued in 2004; and approximately 47,000 issued in 2005. In total, during the 3-year period covered by the OIG’s review, the FBI issued over 143,000 NSL requests.
The OIG review also examined the effectiveness of national security letters. NSLs have various uses, including developing evidence to support applications for orders issued under the Foreign Intelligence Surveillance Act (FISA); developing links between subjects of FBI investigations and other individuals; providing leads and evidence to allow FBI agents to initiate investigations or close investigations; and corroborating information obtained by other investigative means. FBI personnel told the OIG that they consider the NSL to be an indispensable investigative tool in conducting many counterterrorism and counterintelligence investigations.
As required by the Patriot Reauthorization Act, the OIG’s review examined whether there were any improper or illegal uses of NSL authorities. The OIG found that from 2003 through 2005 the FBI identified 26 possible intelligence violations involving its use of NSLs, 19 of which the FBI reported to the President’s Intelligence Oversight Board (IOB). The reported violations involved the issuance of NSLs without proper authorization, improper requests under the statutes cited in the NSLs, and unauthorized collection of telephone or Internet e-mail transactional records. Of the 26 possible violations, 22 were the result of FBI errors and 4 were caused by errors made by the entities to which the NSLs were served.
In addition to the possible intelligence violations reported by the FBI, the OIG found evidence of many other possible unidentified and unreported violations. In the OIG’s review of 77 FBI investigative files in four field offices, the OIG determined that 17 of those files – 22 percent – contained one or more possible violations relating to NSLs that were not identified by the field office or reported to FBI Headquarters as required.
The OIG also identified many instances in which the FBI improperly obtained telephone toll billing records and subscriber information from 3 telephone companies pursuant to more than 700 so-called “exigent letters” that were signed by personnel in the FBI’s Counterterrorism Division without first issuing NSLs. We found that the FBI’s acquisition of this information circumvented the requirements of the NSL statute, violated the Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (NSI Guidelines), and contravened internal FBI policy.
This improper conduct was compounded by the fact that the FBI sometimes issued “exigent letters” in non-emergency circumstances; failed to ensure that there were duly authorized investigations to which the requests could be tied; and failed to ensure that NSLs were issued promptly after the “exigent letters” were sent. Moreover, the “exigent letters” inaccurately represented that the FBI had already requested subpoenas for the information when, in fact, it had not.
The OIG’s review also determined that the FBI Headquarters Counterterrorism Division generated over 300 NSLs from “control files” rather than from “investigative files” in violation of FBI policy. When NSLs are issued from “control files” rather than investigative files, case agents and supervisors cannot determine whether the requests are tied to investigations for which the factual predicate required by the NSL statute, the Attorney General’s NSI Guidelines, and internal FBI policy has been established.
The OIG made 10 recommendations to the FBI relating to its use of national security letters, including: improving its database to ensure that it captures timely, complete, and accurate data on NSLs; issuing additional guidance to field offices that will assist in identifying possible intelligence violations arising from the use of NSLs; and taking other steps to ensure that the FBI uses NSLs in accordance with the requirements of national security letter authorities, Attorney General Guidelines, and internal policies. The FBI concurred with all of the OIG’s recommendations and agreed to implement corrective actions.
The Patriot Reauthorization Act also directed the OIG to review the FBI’s use of national security letters in 2006. In this ongoing review, the OIG is examining the areas addressed in its first report and, as directed by the Act, determining whether NSLs issued after implementation of the Act included the necessary certification to require recipients to comply with applicable nondisclosure and confidentiality requirements. The OIG is also examining steps the FBI has taken to implement the OIG’s 10 recommendations, as well as other actions the FBI and DOJ have taken to improve compliance with NSL authorities. Among the corrective actions undertaken by the FBI is the FBI’s self-audit of 10 percent of all NSL-eligible investigations from 2003 through 2006 to determine whether violations of the national security letter authorities or related Attorney General Guidelines or internal policies had occurred. The OIG’s evaluation of the FBI’s 10 percent audit will be included in the OIG’s next report, which is due in December 2007.
In addition, the OIG and the FBI are working together in an OIG-led joint investigation regarding accountability for the misuse of “exigent letters.” The findings of that joint investigation will also be included in the OIG’s December 2007 report.
Report on the FBI’s Use of Section 215 Orders
On March 9, 2007, as required by the Patriot Reauthorization Act, the OIG also issued a report on the FBI’s use of Section 215 orders to obtain business records. Section 215 of the Patriot Act allows the FBI to seek an order from the Foreign Intelligence Surveillance Court to obtain “any tangible thing,” including books, records, and other items from any business, organization, or entity if the item is for an authorized investigation to protect against international terrorism or clandestine intelligence activity.
Section 215 did not create any new investigative authority but instead significantly expanded existing authority by broadening the types of records that can be obtained and lowering the evidentiary threshold to obtain an order. Public concerns about the scope of this expanded authority centered on the FBI’s ability to obtain library records. The OIG review found that the FBI did not obtain a Section 215 order for any library records during the 2002 to 2005 period covered by our review.
The review determined that from 2002 to 2005 the Department, on behalf of the FBI, obtained a total of 21 “pure” Section 215 applications – that is, requests for any tangible item that were not associated with any other FISA authority. In addition, the Department obtained 141 “combination” Section 215 requests – that is, requests pursuant to Section 215 for subscriber information that were added to a FISA application for pen register/trap and trace orders.
The OIG’s review did not identify any instance involving improper or illegal use of “pure” Section 215 orders. We found no instance in which the information obtained from a Section 215 order resulted in a major case development, such as disruption of a terrorist plot. We also found that little of the information obtained through Section 215 orders had been disseminated to intelligence agencies outside the Department. However, FBI personnel said they believe the kind of intelligence gathered from Section 215 orders was essential to national security investigations, noting that the importance of such information may not become known until later in an investigation, well after the information was obtained, when, for example, it may be linked to another piece of intelligence. FBI officials and Department attorneys also stated that Section 215 authority has been useful because it is the only means of compulsory process for certain kinds of records when other processes, such as grand jury subpoenas or NSLs, would not be available or appropriate.
The OIG review also found that the FBI had not used the Section 215 authority as effectively as it could have because of legal, bureaucratic, or other impediments to obtaining these orders. For example, after passage of the Patriot Act, neither the Department nor the FBI issued implementing procedures or guidance on the expansion of Section 215 authority. In addition, the OIG found significant delays within the FBI and the Department in processing requests for Section 215 orders. Finally, we determined through our interviews that FBI field offices did not fully understand Section 215 orders or the process for obtaining them.
As required by the Patriot Reauthorization Act, the OIG is continuing our review of the FBI’s use of Section 215 orders in 2006 and will issue a report in December 2007.
Recommendations in the September 11 Detainee Report
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 examined the treatment of these detainees, including circumstances surrounding their detention, their access to counsel, the timing of their release from custody or removal from the United States, and their conditions of confinement. Our report found significant problems in the way the Department handled the September 11 detainees, and we 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 the beginning of this reporting period, 20 of the recommendations have been resolved. The one open recommendation called 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 initial report, the DOJ and DHS agreed with the recommendation regarding the MOU and began extended negotiations over language in the MOU.
In July 2007, the DOJ provided to the OIG a copy of an MOU, signed by the DHS and the FBI, that became effective on June 7, 2007, and which addresses “The Handling of Administrative Cases Involving Aliens of National Security Interest.” The OIG has reviewed the MOU, and we believe it addresses our recommendation. We also believe that full implementation of the procedures in the MOU in the event of a national emergency could prevent many of the types of problems we uncovered in our review.
Review of the Department’s Involvement with the National Security Agency’s Terrorist Surveillance Program or Warrantless Surveillance Program
The OIG is reviewing the Department’s involvement with the National Security Agency (NSA) program known as the “terrorist surveillance program” or “warrantless surveillance program.” This ongoing review is examining the Department’s controls and use of information related to the program and the Department’s compliance with legal requirements governing the program .
Review of FBI Conduct Relating to Detainees in Military Facilities in Guantanamo Bay and Iraq
The OIG is completing its review of 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 this review, the OIG has interviewed detainees, FBI employees, and military personnel at Guantanamo. In addition, the OIG has administered a detailed questionnaire to more than 1,000 FBI employees who served assignments at Guantanamo Bay, in Iraq, and in 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 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.
Review of the FBI’s Investigation of Certain Domestic Advocacy Groups
The OIG is continuing to review 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 is examining allegations regarding the FBI’s investigation, and the predication for any such investigation, of groups including the Thomas Merton Center, Greenpeace, and People for the Ethical Treatment of Animals (PETA). Our review of the domestic advocacy groups is similar in focus to the OIG’s April 2006 review of the FBI’s investigation of potential protesters at the 2004 Democratic and Republican National Conventions.
V. EXPENSE OF IMPLEMENTING SECTION 1001
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 $1,470,483 in personnel costs, $4,931 in travel costs (for investigators to conduct interviews), and $4,017 in miscellaneous costs, for a total of $1,479,431 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.
The OIG can investigate allegations of misconduct by any Department employee, except for allegations of misconduct by attorneys (or investigators working under the direction of Department attorneys) acting in their capacity to litigate, investigate, or provide legal advice. See Pub. L. 107-273 § 308, 116 Stat. 1784 (Nov. 2, 2002).
This unit also is responsible for coordinating the OIG’s review of allegations of misconduct by employees in the FBI, DEA, and ATF.
The OIG can pursue an allegation either criminally or administratively. Many OIG investigations begin with allegations of criminal activity but, as is the case for any law enforcement agency, do not end in prosecution. When this occurs, the OIG is able to continue the investigation and treat the matter as a case for potential administrative discipline. The OIG’s ability to handle matters criminally or administratively helps to ensure that a matter can be pursued administratively, even if a prosecutor declines to prosecute a matter criminally.
This number includes all complaints in which the complainant makes any mention of a Section 1001-related civil rights or civil liberties violation, even if the allegation is not within the OIG’s jurisdiction.
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