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If unable to answer that question, who would be able to answer it? -for

Historical questions

The day of 9/11

all questions.

Please describe what you were asked to do right after the attacks and in the ensuing weeks, how you responded, what the NSLU role and organization set-up were etc.

What broad policies were put in place after 9/11 to encourage cooperation among Moslem and Arab foreign visitors and LPRs?

Your recollections of Commr Zifjglflr during this period

Your interactions with and recollections of key FBI figures

Your interaction with and recollections of key DOJ figures

Your view of the discussions between INS and DOJ prior to 9/11 regarding process for using secret evidence, the ATRC

Questions concerning the 9/11 immigration detainees.

Status. How many of this group were NIVs, how many had adjustments of status pending, and how many were either green card holders/LPRs?

Deportations. How many of the group have been deported?

If there are those who have not been, where are they?

Hearings. How many agreed to depart before a hearing? (What is the procedure for this?)

How many had hearings?

Lawyers. How many of them had lawyers at their deportation hearings?

Evidence. How many times was the boiler plate FBI affidavit used in proceedings against the 762 detainees to argue that they should be denied bond?

How similar to or different from the usual evidentiary standard in an immigration deportation case was the evidentiary standard represented by the FBI affidavit?

Bond. How many were released on bond before the automatic stay provision was imposed? Of these, how many were subsequently determined to have terrorist links?

What is the origin of the provision requiring an automatic stay of the release determination (ergo, no bond or payable bond)?

How many times was the automatic stay provision used on the 762 detainees?

Fruits. How many had a confirmed connection to terrorism? What is the basis for the confirmation?

How many of the original 762 immigrant detainees are currently acting as informants?

How many received S-visas? For how many were written agreements concerning S-visas prepared by lawyers?

How many of them were delivered to foreign government authorities upon deportation?

How many of the deportees are the government continuing to monitor overseas, with or without the assistance of foreign intelligence or law enforcement authorities?

Secrecy of proceedings.

Of the 762, how many names remain secret?

What is your understanding of the reason for the blanket secrecy decision regarding the 762? What would the best case rationale be for taking this decision?

What is the best case rationale for making secret an individual hearing?

Would immigration court judges in your experience have been sympathetic to closing the hearings on an individual basis had the government so requested?

With respect to the secrecy of the proceedings, how was the post-9/11 attack context

different from previous contexts in which terrorists or significant organized crime figures were brought into immigration proceedings to accomplish immigration or non-

immigration ends?

to provide for secrecy, that threatened lives or the government's legitimate interests?

Had there ever been any breaches of court-ordered secrecy, or failure

Do you see any policy reason why some or all of the names of the secret arrestees should not be released to the public?

Subsequent immigration detentions

Have there been any NIVs or LPRs since the initial group of 762 immigration detainees whom investigators had evidence might be a terrorist, who have been charged with immigration violations at any stage rather than a terrorism or other criminal charge?

What is the current policy about secret arrests?

Since the initial group of 762, have an NIVs or LPRs been arrested in secret?

Have there been any secret hearings or partially secret hearings in immigration court involving individuals not included in the group of 762?

Your comments on what the DOJ IG did not address or addressed incompletely.

NIVs and LPRs as material witnesses

Of the group of NIVS and those with status adjustment pending, how many were held at some point as material witnesses?

What happened to the material witnesses? How many of them ever testified as material witnesses before a grand jury or a trial?

Were any of them held after they testified? Were they held by INS, in other federal, or in state and local facilities?

Same questions for LPRs.

Criminal proceedings.

How many NIVS or LPRs among the 762 immigrant detainees were themselves prosecuted criminally, and on what specific charges?

How many NIVS or LPRs among the 762 immigrant detainees actually testified in criminal proceedings including grand jury proceedings in a terrorist-related case?

NSEERS deportations

associated wit h terrorism ?

Other questions, mainly policy

/"

"^ \ e any of the 13,000

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individuals deported

What policies do you recommend to encourage cooperation by foreign visitors and LPRs with national security investigations?

What in your view should the length of detention policy be with regard to a person possibly associated with terrorism?

Has the PATRIOT Act 7 day detention/habeas rights provision been used since 9/11? If

not, why not?

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What should thebond policy be with regard to detainees?

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Should there be the possibility of detention for security reasons after a final removal

order? What should a detainees rights be in this setting?

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What is your view of expedited removal?

*

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Should there be a DHS OIG Depty for Civil and Human Rights?

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Are any changes needed with respect to material witness provisions?

*"

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What should the release/dentention policy be with respect to arriving asylum seekers?

Is ICE at all involved with the discussions with the DOJ IG and FBI concerning future detentions in emergency situations?

Immigration court. Do you think that there should be an immigration court independent of the Attorney General? What is your thinking on this? Has your view been affected one way or the other by the actions taken by DOJ after 9/11?

In your view, should detention policies be different as to a suspected al Qaeda terrorist and a suspected terrorist who is associated with a group not known or suspected to be targeting U.S. persons here or abroad?

Your policy recommendations

Your views on expedited removal from a CT perspective

Your views on how long a visitor should be allowed to stay in the first instance from a CT perspective (length of stay rules)

Your view of national security issues at stake in the benefits adjudication process

y**

WITHDRAWAL NOTICE

Series: Team 5 Files

Folder: Kendall, Sarah

Date: 03/15/2004

Pages: 43

Description: Notes of interview with Sarah Kendall

Reason for withdrawal: national security classified

Box 3

Withdrawn by: kw, 12/23/2008

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MEMORANDUM FOR THE RECORD

Event: Sarah Kendall

Type of event: Interview

Date: 3-15-04

Special Access Issues: None

Prepared by: Tom Eldridge

Team Number: 5

Location: Room 6100, Office of the Principal Legal Advisor, ICE, DHS Building (former INS HQ) 425 Eye Street

Participants - Non-Commission:

Name

Sarah Kendall, currently Director of Training and Program Development, ICE OPLA, Former head, National Security Law Division (NSLD), INS

Agency/Title

Phone

Melissa Mehring, Counsel, Commercial and Administrative Law, OPLA

Participants - Commission:

Tom Eldridge Counsel Team 5

202-401-1686

Susan Ginsburg Counsel Team 5

202-401-1747

Documents/handouts received by the Commission:

Other contacts referred to: None

TEXT:

Background:

None

1991

BA in International Studies and Spanish, minor in French, University of San Antonio, TX

1996

JD from University of Houston Law Center

Honor Program of DOJ - 1998

Line prosecutor in immigration court beginning in 1996 - December 1998, Los Angeles

January 1999 -

moved to the Enforcement Division in Washington, D.C.

January 1999 - September 2000 - Enforcement Law Division, worked with DOJ-OIL, handling a hodge-podge of government litigation issues.

September 2000 - started in the National Security Unit with Laura Baxter as her boss

August 2001 - Became acting head of the NSU when LB went to DOJ-DAG's

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office.

COMMISSION SENSITIVE September 10, 2001 - acquired two new assistants from the field to help her with NSU matters.

January 2002 - Became the Chief of the National Security Division of INS General Counsel's Office.

February 2004 - Became Director of Program and Training, OPLA-ICE

NSU vs. NSLD The National Security Unit (NSU) is the operational part of the INS National Security team before 9-11. The NSLD was the legal component of that team. The NSLD was located on the 6ths floor of 425 Eye Street pre-9-11, while the NSU (with Dan Cadmon as the head) was located on the 5th and 1st floors pre-9-11.

NSLD pre-9-11

The first National Security Legal team within INS was recognized in about 1997. The first National Security training was in San Antonio Texas in 1997 The second training exercise was in 2000 in New Orleans.

The mission of the NSLD in that era was to work the N.S. cases with people in the field. They did not do exclusively terrorism. Their caseload included:

• Human rights abuser cases. In these, Kendall said they had "cross-over

usefulness authority"(?);

• Terrorism cases. They took on cases of potential terrorists seeking naturalization. They would examine how these people got into the United States. Kendall said their attitude was: "There's fraud somewhere, and the question is, 'where is it?"

In their work, they worked closely with the NSU. The NSU could run a CIA name check, and a check against the FBI's "universal system." —ACS?

We asked Kendall how they got their cases.

She said that:

• sometimes an examiner of a naturalization applicant saw a problem ( a good

portion of their cases were naturalization applicants).

• Sometimes, the alien would be in court and would self-identify themselves as being a member of a particular terrorist group.

The NSLD was created in February 2000 by Bo Cooper who wanted an institutional answer to

this and wanted uniform policy.

Before the NSLD was created, National Security cases were handled by the Enforcement Law Division. This sometimes meant that they were lost in competing priorities.

People involved in this process within the Enforcement Division were: Art Arthur (now on the Hill), Roger Sagerman, now Chief of the Enforcement Division, Christina Hamilton, now at the Administrative Appeals Division within CIS, formerly Chief of the Enforcement Division at the time of the NSLD creation.

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• Laura Baxter was the Chief of the NSLD. Baxter left in February 2001 to go to the DAG. Working for Laura were

• Art Arthur, who left in May or June 2001 to work on Capitol Hill

• Roger Sagerman, who took an appellate position on September 10, 2001, and

• Molly Grooms (who specialized in Human Rights abuse cases). Grooms left and

went to the U.S. where she worked on cases associated with genocide in the transfer to East Timorese sovereignty. She now works as the Chief of asylum and Refugees for CIS.

When Kendall took over as the head of the NSLD, on September 10, 2001, she acquired two new assistants:

• Nader Baroukh, who left in September 2003, and now works at DHS

« David A. Landau - who left NSLD in June 2003, for a position in Appellate

Counsel's office. He was just selected to be Deputy Chief Counsel of ICE in Arlington, VA.

• Kendall reached out to DIA Office of General Counsel at the Pentagon, and they

helped her to get information on a couple of matters.

• In general, the intelligence, while an important part of their work, was "very much case driven"

The NSU before 9-11.

• Dan Cadmon - Chief

• Three other people: Ricky Concepcion - and ICE agent and the senior NSU agent

on 9-11, Veronica Gates, and]

• On the main, the NSU gbt intelligence information from CIA and the FBI

I

Chatter before 9-II

Kendall was not aware 0f it while in the NSLD. She said she asked Mark Lamonte (?) about it after 9-11, and he said that he was not aware of the chatter during that time either.

September 11.2001

Kendall was in a staff meeting, when Roger Sagerman poked his head into the room and asked her arid her two new hires, "would you like to come look at what you'll be doing for the next three years." They saw the WTC burning on the television. Eventually, almost everyone was sent home, but Sarah Kendall stayed behind to work.

Kendall said she knew that the "law enforcement pressure would be enormous." She, along with others wondered "when's the next shoe going to drop," i.e. when would there .be the next terror attack. She said she saw what happened on 9-11, and thought that the modus operandi was simple, very successful, and very seriously developed. Shethought there could be more planes used as weapons. She also thought that attacks on our water and electric infrastructure would happen in a step-by-step process.

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9/11 Law Enforcement Privacy

Immediate aftermath to 9-11

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There was discussion about closing the borders. Kendall thought, "That's unbelievable. We're going to go bankrupt." Kendall then gave us her view of the three-legged stool of national security: (1) National Defense, (2) Economic Security, and (3) Domestic Security.

Kendall did research on an evaluation of INA Section 215 to see what was allowed to be done at the border, what kind of searches were permissible for people going out of the United States, and when it could be closed down. She gave this memo to Alice Smith. Kendall also researched the Enemy Alien Act in the days after 9-11. Kendall thinks her early memos went into DOJ-wide consideration of a number of programs, including NSEERS.

The Detainees - Major Case 182

There was no awareness of the impending flood of detainees the first week after 9-11. Kendall was working on legal memos for the INS General Counsel, Bo Cooper. Then, she thinks on Thursday or Friday, September 14, 2001, she learned that the NSU (she called them the 'ops people") were getting a list of 30-40 people the various INS districts were indicating were being detained as part of "Major Case 182" —Penttbom. She said the "ops folks" managed and kept the list.

Kendall said that, by Friday, there were "30 to 40, maybe 50 names on the list."

At about this same time, Mike Beacraft learned of the list, and demanded that everyone involved get into one room "to sort this out." Kendall said at the time the list was "discovered," it was unclear who the people were on the list.

Kendall clearly was unhappy about the fact that it took so long after people were being detained for the NSLD and higher-ups in the INS to get this information. She attributed this to the fact that Dan Cadmon was away from Washington on 9-11 and could not return for several days after the attacks. She thinks his subordinates were not as inclined to share this information with their legal colleagues.

She learned that most of the detainees were in the Newark/New York District. She knew this was a big problem because New York's Varrick Street detention facility was shut down after the attacks due to its proximity to Ground Zero. Washington had no telecommunications with Newark/New York.

Local INS counsel had been housed at 26 Federal Plaza. They had been evacuated. The land lines were down. They did not have cell phones. When she was able to communicate with their local counsel in this office, she found that local counsel did not know who these people were either. Local counsel said they thought the people were arrested on advice of the FBI.

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Kendall said that, from the start, it was clear that the lead investigative agency on these matters was the FBI, and that the lead DOJ entity was the USAO-SDNY. Kendall said there were two senior DOJ attorneys she believed were involved early on: Joe Bianco, and David Kelly.

On Friday, September 14, 2001, she left David Landau with the list of 50 or so people detained to check over and make sure process was being followed.

INS employees involved in the detainees

Kendall said that "Ziglar was directly involved." Also involved were Victor Cerda, INS Chief of Staff, and Mike Beacraft. Kendall said Ziglar was at the INS post "just long enough to see how complicated the INS job was," about three weeks.

By this time, Mary Ann Wyrsch was gone, although there was no Deputy at INS, Kendall said Beacraft was promoted to Acting Deputy shortly after 9-11.

Kendall said she spoke "every single day with Victor [Cerda]."

Kendall said that Bo Cooper was involved, but that he had many competing demands on his time, including drafting the USA Patriot Act and giving advice on what would work, immigration-wise, in the new legislation.

Of herself, Kendall said, "my job became managing field."

Initial impressions of the detainees

this process of cases that were in the

Kendall said initially they thought that agents in the field were arresting many people that were connected to the 9-11 plot. But Kendall was concerned that no one was checking the paperwork to see if these people were being arrested in violation of the INA.

Direction to the field

Mike Pearson issued an order to the field shortly after 9-11. Kendall said she doubted that Dan Cadmon would ever have issued this order had he seen it before it went out. Cadmon was still not back yet when it was issued.

Kendall said that, upon his return, Cadmon issued 11 operational orders to the field after he arrived back. Cadmon's goal was to make clear the guidelines to be followed by the field in detaining people believed to be connected to the 9-11 plot. "There was some

confusion about who was being detained,"

Kendall said.

According to Kendall, Cadmon said only individuals with a nexus to terrorism were tobe detained. Kendall also believed that Cadmon's memos overrode Pearson's.

Direction from Senior INS/DOJ personnel

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Kendall said that she and other senior INS personnel "were on conference calls for several hours in the morning" to determine where the detainees were and who had them. These calls also took place in the evening, so they were two times daily at the start. These initial conference calls on the detainees involved Ziglar, Cerda, Beacraft, and Kendall. Their goals included making sure the correct papers were filed in the detainees' cases.

Kendall said Ziglar told the INS personnel, "I don't want any human rights violations on my watch."

Stuart Levy at the DOJ DAG's office was the contact from main DOJ. He was part of these daily or twice daily conference calls. He said he was getting pressure from the AG's office. Levy kept asking who are the people on the detainee list, do they have any connection to the 9-11 attacks, and when are their immigration hearings coming up?

Within a short period of time, the list got too big to handle in a conference call with Stuart Levy.

We asked Kendall if Levy gave the impression he knew more than her or if he was just as

in the dark as her and the other senior INS personnel.

Kendall said that Levy

"absolutely" was as in the dark as she and the other INS personnel were.

The basic difficulty at this point with establishing any nexus to terrorism was that the people involved in arresting the detainees were all out arresting other people. The impression we got was that Kendall saw herself as at the end of the conveyor belt with no control over the input or process producing the output.

[Note: Kendall mentioned that one half of the INS agents assigned to the JTTFs were in Washington on 9-11 attending training on Middle Eastern terrorism at the CIA. It is unclear what role this lack of expertise may have played in the arrests of the detainees.]

Immigration Law Benefits

Kendall said that "nothing in the Patriot Act increased our tools that are helpful; we had that all on 9-11." Kendall explained that in civil immigration proceedings, the alien has no recourse to federal court. If the alien tries to challenge an administrative immigration proceeding outcome, the federal court will simply rule that the alien has no remedy until they exhaust their administrative remedies, something that can take 2- 3 years. Kendall described this aspect of immigration proceedings as very effective.

Kendall also said that an alien in immigration proceedings does not have Fifth Amendment rights against self-incrimination (you can draw an adverse inference from silence) or Sixth Amendment rights (as in, the government does not have to provide you with a lawyer).

Kendall said that until a final order is issued - i.e., when the Board of Immigration Appeals is done - an alien can apply for benefits.

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The list is growing

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By Saturday, September 15, 2001, Kendall grew concerned that the list was growing. She said they were told the people detained had some nexus with the Penttbom investigation. There were other "assumptions" about the detainees as well, such as that they were "dangerous," that they had committed some immigration violation, and that there was some grounds upon which to hold them.

By Sunday, September 16, 2001, Kendall told Debby Misir (now of OIL), to get the lawyers together so they could call and find out about these cases. She said she told Misir, "This is going to be enormous." Constantly, she wondered "are we doing the right thing?" By that same Sunday, Kendall said, the NSLD started asking for rotating attorneys to come to the NSLD from the regions in order to handle the detainee cases.

Kendall said that, by Monday September 17, 2001, she was focused on the system to deal with the growing list of detainees. The list was "an organic thing" at this point. Many of the detentions continued to be in the New York area where communications had been knocked out. All people detained in this area were sent to the Newark detention facility, but some people sent there were still listed as being "New York."

The "problem was really a communications issue," Kendall said. By two weeks post 9- 11, Washington was able to talk with the Newark jail. In addition, the lawyers from the evacuated New York office could talk with the detention officers in Newark about their cases. Kendall said the immigration hearings were held in the jails as is normal.

Unfortunately, Kendall said that communications between operations people and the NSLD lawyers was not smooth. She said the operations people talked with the lawyers when they had to.

[Note: Kendall said that Alice Fisher came over to the INS HQ "probably on that Saturday" - the first or second weekend. Kendall said that everyone was sleep-deprived by that point, and her memory of those times was "bad." She said that during this visit, she and Fisher had "an unfortunate clash" over who controlled the immigration files. We never had her elaborate on this point or its significance for later events]

Kendal described the growth of the detainees as law enforcement "moving like a wave" starting in the East and moving to the West. It got to Seattle in October. By October 18, 2001, in the East, some cases had already been continued seven times.

The Task Force

Kendall said they set up a task force to handle the detainee cases on the 7th floor of the INS building, in the same suite of offices as the operations people, and the detention and removal people.

She said that eventually the task force devolved into a group of people responsible for making a decision about who gets on the list of "Special Interest" aliens. [Note: This seems true only insofar as they had control over who was actually charged on

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immigration grounds. If the person was appropriately charged, then they did not really have control over which the FBI said should be on the list, no?]

The task force was the result of a decision to centralize legal review of each detainee case. Kendall said that "Ziglar wanted a lawyer's eyeballs on that file and he wanted accountability." The goal was that there be no delay between when the alien started being in INS custody and when the NSLD Task Force reviewed the charges.

This process was in place as of September 19, 2001, and the Task Force was stood down on December 7, 2001.

In the beginning - Phase I -- the flow was as follows:

• In the field, an FBI agent interviewing an alien on a Penttbom lead would

hand the alien off to the INS agent.

• The INS officer in turn, would put on the 1-213 "Penttbom related arrest."

• The INS agent would then request that the alien be put on the Special

Interest Alien list maintained by HQ. The INS NSU would then call the FBI-HQ (in the SIOC) to learn what derogatory information the FBI had on this person.

• If the information was sufficiently derogatory, the person would be put on

the Special Interest list [by the NSU people?]. The file would bear some indication such as, "FBI interested in subject," or "arrested pursuant to lead

1370."

Once someone was on the list, there was "a conclusion that there was a

connection" to terrorism in the minds of the task force lawyers. The message to the lawyers from inclusion on the list was, "do not under any circumstances release this alien." Kendall agreed that this conclusion was based solely on FBI

interest expressed in the case.

» The NSLD was then concerned that the paperwork met the legal sufficiency test.

Over time, Kendall said, the lawyers expressed their view on what the list should look like, and the list did change in response to their views.

Each time someone was arrested in connection with Penttbom on an immigration violation, a separate file was created for that alien's case - the green file. The "ops people" did this work for legal review at INS HQ. It included the alien's name, A#, and documents describing the grounds for detention. The review team would determine whether the facts in the file created "legal sufficiency" for the immigration charge to go forward.

Kendall said that frequently, there was back and forth between the task force personnel and the field on this issue. Task force personnel would send cases back telling the field people the grounds were not sufficient and asking for more.

The first concern was jurisdiction. Did the case establish prima facie legal sufficiency for the chargeleveled.

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The second concern was do we have paperwork filed so the alien can see a judge? The filing of paperwork is very significant in an immigration case, because it is by filing the charges that EOIR "knows" the alien and the case exist. When the charges are filed, the alien can check a box and ask for a bond hearing. They are entitled to one under the INA and accompanyingregs.

According to Kendall, every district with the exception of New York/Newark followed

the operational instructions.

York. New York/Newark's activity was a such a level that "nothing was normal."

Of course, all other districts were less frenetic than New

Nevertheless, Kendall said that people outside New York/Newark were targeted based on their having committed some kind of malfeasance. Outside New York/Newark, e.g., in Denver, Kendall said, "There was a completely different ethic."

"Denver had some very serious detention cases very quickly and they were terrorism related." Kendall recalled 2- 3 cases worked jointly by the FBI and INS-JTTF agents. She said the INS agents involved reported them quickly to INS-HQ. Because of time and volume, the INS agents involved in the Denver cases were able to coordinate with the attorneys in the district before they took action. The aliens involved were, in Kendall's inimitable words, "detained and neutralized."

Whereas in New York/Newark, the district attorneys did not even come into work for one week past 9-11-01, so there was no ability to consult them even if the agents in the field had wanted to do so. Kendall said "something so mundane but so critical which came down to staffing."

Kendall added that New York/Newark did not have great cooperation historically

between the agents and the lawyers. She pointed out that, prior to 1983, it was agents who prosecuted immigration cases in immigration court. In 1983, EOIR was created, and

it was then lawyers who prosecuted cases in court.

Kendall said two people could speak to this "divide" if we wanted. They are:

Charles Parker, Chief Counsel in Newark Brian Myers, Chief Counsel in New York

Kendall said she got involved in the Task Force's proceedings only if they needed her for

a "tiebreaker." She did say, however, that she was careful about "who I sent upstairs," i.e., that they wanted to make sure they had good judgment to handle the important decisions made by the task force.

By October 22, 2001, Kendall said, the task force was already underwater from the list they knew about. This was before the realization about the "shadow list" and the "October Massacre."

Kendall also said that the Task Force put out a report every night to main DOJ with the status of the day's cases - those up in court - and the FBI interest in the case. Kendall said the INS has copies for each day.

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Kendall said they also produced a report of "Hearing Results" every day from October 1, 2001, to December or January 2002.

Work with "The SIOC"

Within a week of 9-11, it was clear that the SIOC was "a massive clearinghouse" for the Penttbom investigation. The USAO-SDNY was using that as their base of operations. "Bianco" and "Kelly" were USAs working out of the SIOC.

Kendall said the INS asked if they could field a team of lawyers at the SIOC. They sent Roger Sagerman, Kathy Hogan, Rick Neville, and Daryl Bloom (now in York, PA), all senior INS personnel.

These people, working in the SIOC, were known as The INS Bond Working Group, or the SIOC Working Group."

On the question of how aliens were "cleared," Kendall said the concern was the clearance of FBI information to give to the alien. Kendall said the FBI was concerned about one alien talking to another alien who might be the real target.

From Kendall's perspective (as the person from the agency holding the bag), her concern was that this clearance process would not move quickly. Of course, her concerns were warranted, as shown by the DOJ-OIG Report.

The INS people at the SIOC worked to see what could be freed up for use in the immigration hearings coming up daily, especially in Newark in bond hearings being handled by Alan Wolf. Kendall said Wolf was using anything he could get his hands on, including the Rollince Memo - a hodge podge of ill-defined allegations.

The question quickly became what level of clearances to which the detainees should be subjected. INS advocated for a low level of basic clearances, including a basic CIA name check for the alien's name. She called this an "indices check," versus a "deep, deep, deep check." Kendall advocated this because she knew at that point, before the Halloween massacre, that there were approximately 300 people who would have to be put through whatever clearance process was developed. She knew that holding 300 people for a month was a significant problem. As usual, the INS was overruled, and a clearance process was developed that was supposed to take 2- 3 weeks and would involve both FBI and CIA "deep checks."

These checks would involve interviewing, polygraphing, and other processes as well. Kendall said that most aliens agreed to participate in these processes because "they wanted people to know they were not terrorists."

Kendall said the INS has a complete record of the actions of the SIOC in SIOC LOGBOOKS, some of which are classified and some of which are not. She also said thit the SIOC Bond Hearing Working Group produced a LIST describing the current status of

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11

Law Enforcement

Privacy

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The bottom line was that the FBI decided how much investigation would be done on the detainees into their background.

TheFBI

According to Kendall the FBI sent an electronic communication (EC) to its agents after 9-11 telling them to take an INS agent with them when they went out on a Penttbom lead. Kendall saicj ~|was likely the person in the FBI SIOC who wrote the EC.

Kendall said her impression was that the FBI would take an INS agent with them, the FBI would question the alien about their issue, and then the INS would ascertain of the alien was in the country illegally. If they were, then the person would be taken away.

She was not clear on exactly what was being said to the INS agent on the scene by the FBI, but imagined it was something to the effect of, "Okay, we're done with him, you can take him."

She said that the INS and immigration law processes were suddenly appreciated for their ability to be used to neutralize potential threats.

[Note: This perspective is key. The FBI was all about preventing another attack.

Yet,

the FBI was not accustomed to risk management.

Penttbom lead who was detainable as an illegal alien and who the FBI believed could present some threat - andhow do we really know they are not a threat? - was detained

on immigration grounds.]

Thus, every alien encountered on a

Detainees and immigrationviolations

Kendall said, "most all with the exception of one" were lawfully detained based on valid immigration violations. "There was no controversy; they were illegally in the country," Kendal said. Kendall said she thought the one who was wrongly detained occurred "in the first week."

Detainees and Terrorism

Kendall said that David Landau is the best person to tell us about who of the detainees had a nexus to terrorism.

Our man in Newark

Kendall said that Alan Wolf, a lawyer from the Manhattan DA's office and one of the best immigration lawyers from ICE ended up as the main point of contact (POC) in Newark for the work of this task force. His headquarters contact was Nader Baroukh.

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October 23. 2001

Meeting

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Present at the meeting were Bob McGraw, Laura Baxter, Ken Elwood, Tony Murry, Dan Cadmon, Lindeman, Ronnie Edelman (of DOJ-TVCS), and Sarah Kendall. Stuart Levy came into the meeting midway.

Kendall said she got into a side argument with Laura Baxter during this meeting. Baxter told her that the law had changed since 9-11. Kendall disagreed, saying, "no, we have changed."

At this meeting, it was decided that the FBI would send out an EC to the field telling them that they cannot send out clearance letters.

Kendall raised the point that the INS could not hold the detainees "indefinitely."

At this meeting, the "hold until cleared" policy was modified albeit for only one week. Kendall said that at this meeting the INS stated that it would adhere to the "no bond" policy until the case has undergone two continuances. After that, she said, they would not abide that policy. This change in policy continued, Kendall believed, in every district in the country EXCEPT Newark/New York after the October Massacre. However, for New York cases, one outcome of the November 2, 2001 meeting was a reversal of this two continuance policy.

The "other list," the October Massacre, and the November 2, meetings

SK recalls the first she learned about this topic was when Nader asked her about "another list." She said she did not know what this could be. She said that Alan Wolf, their lead attorney in Newark, started getting curious.

Wolf noticed cases whose files said "Special Interest" but which were not on the list

being kept in coordination with the HQ task force. Wolf called Baroukh and asked if the list was correct, and Baroukh said yes. At first, it was just one or two cases. Kendall said they (collectively) wiped their brow with relief that the problem could be so easily

corrected. Just a minor mistake, they thought. York/Newark area.

These cases were mostly from the New

In a phone meeting in the SIOC on November 2, 2001, Kendall learned that ? Kerr, the Assistant District Director of Investigations (ADDI) in New York had been giving aliens personal clearances, and was told on October 23, 2001, to stop doing this (in the interest of having a centralized clearance process).

Kendall

had detailed notes of this conversation that she used to relate what happened.

Kendall

said that people at INS headquarters were stunned to learn that there was a whole

"shadow list" of 300 detainees subject to this alternate clearance treatment. "It never occurred to any of us that they were running a parallel universe out there."

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When Kerr was confronted about his actions in the November 2, meeting, Kendall said, he told the group that he had gotten approval to do the personal clearances, and that there were 15-20 requests to the CIA on aliens in New York that were backlogged.

Kerr was working with a list of names that had about 300 people on it. Based on this revelation, Kendall and Victor Cerda tried to sort out how to integrate these names into the already existing list and process.

Kendall says Cerda said, "unless the FBI gives us information to sustain no bond, we won't do it." Kendall told the group that the INS "can't warehouse your people because you don't have criminal authority to hold them." [Note: It is clear that things got testy at this point surrounding the new 300 names.]

Kendall said she also stated that there was "a rule of law."

Stuart Levy, who was part of this conversation, said that the AG's policy on detention is the same as it was before 9-11.

Victor Cerda asked Levy, "is the AG ordering me to hold these 300 people with no information and no bond?" Kendall said that there was silence from Levy, initially.

Kendall then pointed out that 85 of the aliens on the list (she had been reviewing it during the conversation) had no agent even assigned to their cases. This meant that a CIA name check had not even been requested on these aliens.

Kerr at this point said that the New York District Counsel's Office had been working with them on their clearance process. Kendall said "no" they had not. Kendall told us she had spoken with every member of the N.Y. Counsel's Office and they were not working with Kerr on this parallel process.

Levy then asked is all the 300 names were deemed no bond pending investigation. Cerda said that the INS would need more information on each detainee, but "we will do it if you order" us to. According to Kendall, Levy still did not reply.

Levy then settled the matter. He said that:

" All people who Kerr deems should be on the Special Interest List should

be placed on the list.

• If there was no information on the alien, they should still be deemed "no bond" cases.

• The New York list and the previous list should be combined by the end of the day.

• All the people on the list should be leads from the WTC investigation.

Victor Cerda then stated "The INS position is that we do not want to 'no bond' the York list, but we will comply with the 'no bond' policy."

November 2, 2001 phone call following the meeting

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In a phone teleconference following the SIOC meeting, Stuart Levy, Sarah Kendall, and Mindy ? from DOJ public relations, sorted through the implications of the new 300 names. The problem was that the AG was announcing daily totals of detainees, the total he had just announced was 1147 total arrests. Levy thought there were between 247 and 262 names on the Special Interest Aliens List. But it was clear to Kendall that DOJ did not know where the 262 fit with the 1147. And now there were the 300, and no one knew where they fit with the 1147 either.

Mindy said that they could not report these numbers because they are not accurate, and that there should not be a discrepancy between the FBI and INS on the numbers.

Kendall says they discussed what the status of the 300 was. Kendall pointed out that, as to 90 of the 300, the FBI couldn't say whether they had any interest in these aliens. Kendall says that Levy acknowledged in this call that the list of 300 from New York included "people who should not be on it, but the FBI wants them on it, so they get no bond."

November 2 Meeting back at INS about the implications of the New York list

This meeting took place after the previous two meetings and was the INS meeting to try and divide up responsibility for dealing with the new 300 names.

Present:

Mike Pearson, Scott Blackmon, Eastern Regional Director (now at LESC) Dan Mollario, ADDI, NY (Now liaison to Newark airport) Bo Cooper Lou Nardi Richard Kravner

I

J

Note: The New York District Director Mcllroy declined to attend

Pearson - Said that this is bad because it makes it look like the INS or the AG were lying about the number of detainees. He discussed the integration of the New York list, giving instructions to the ADDI for NY about the information they would be required to gather to support these cases. Pearson says they have not complied with his mandate that there would be no rights violated. He asks the ADDI why the ops orders were not followed.

Mollario - says that the INS did not have any clear indicator from the FBI about their interest in these cases. He also said that the op order (no. 10?) was not clear. He whipped out a copy supposedly of the NY District Counsel's list and waved it around. Kendall said she had it in her hands, but that it was collected back BY Mollario. She says she later called David Roy of the NY District Counsel's Office and Roy had "no idea what Mollario was talking about."

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Pearson asked if these aliens were taken in and held "no bond." Mollario said they were, but that they did not bring them to the attention of headquarters because they did not want to "clog up-the process."

| |- a member of the NSU - istold byPearson that it is hisjob to collect

information from FBI-HQ. I home at the SIOC.

kcknowledges this, but says that there is no one '

Following this extraordinary day- November 2, 2001 - Kendall said theterm "Halloween Massacre" was coined based on the belief of the coiners that the INS "just got slaughtered."

Handling of the bond issue

Kendall stressed that the INS is not an intelligence gathering entity like the CIA and FBI. Nor is the INS the investigating agency in most cases, such as terrorism. The INS has to get permission from the FBI or CIA to use any National Security information in court.

Kendall said that this process had been very ponderous, difficult and stressful for the 40- 45 cases she had handled previously for the NSLD (before 9-11). Based on this experience, she was worried that she would not have the personnel necessary to litigate these cases, and was worried that the processes in place would not work to get her the information she needed without compromising any investigation.

Thus, when the cases of the detainees started coming up in immigration court, the INS had to ask the FBI why the particular alien was of concern or danger to the country.

Kendall said that "there was some tap dancing going on by the second week" about how

to address the question of bond for the detainees.

make their case that these people should continue to be detained.

were telling the judges that the person was arrested as a result of a Penttbom lead and they were waiting for information from the FBI about their role.

The lawyers on the ground need data to

The lawyers in Newark

Kendall said the lawyers would proffer the 1-213 - Record of Alien Deportability- asan interim step, and could get "a few more weeks" this way. Kendall said that the 1-166 - the addendum to the 1-213, was called the Record of Investigation. The 1-166 is the equivalent of the FBI 302.

Kendall said in a bond hearing, the factors the judge considers are:

1. Whether the alien will appear if granted bond,

2. Whether the alien is a danger to the community,

3. Whether the alien is a flight risk

Typically, a bond determination takes place within 3 -5 days after the alien is detained.

Eventually, as the INS continued to be strung out by the FBI with no information on the detainees, the day arrived when they had lots of detainees up for bond hearings.

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Meanwhile, Stuart Levy of the DAG's office was making clear, "None of these people are going anywhere until we sort this out."

[Laura Baxter was on vacation on 9-11 in Wisconsin.]

On October 26, 2001, DOJ issued a new regulation on bond. This regulation, which seems controversial, actually makes a great deal of sense when you understand the rationale behind it as explained by Kendall. Prior to 9-11, it was a "race to the courthouse" on the bond issue. If an Immigration Judge issued bond, the government had to have an appeal filed and a stay requested of that decision with the Board of Immigration Appeals (BIA) in Falls Church, VA, in order to halt the ability of the alien to get out on bond. The problem was that the BIA closed at 4 p.m. Virginia time (they are located in Falls Church). Thus, if there was a decision on the west coast and it occurred after 1 p.m. (4 p.m. eastern timeO, there was no way a west coast INS attorney could prevent the alien from bonding out and possibly fleeing.

The new regulation provides that, in cases where the government asks for "no bond" or a bond over $10,000 for the alien, the government has the right to get an automatic stay of the decision. The IJ must accede to the government's request (regardless of the time zone).

The result is that the IJ's decision is automatically stayed for 10 days. This means a transcript is produced quickly for the appeal, and the ultimate decision on appeal comes much more quickly as well. Kendall said the old system allowed for 30 days for the government to file its brief in a case where an appeal was timely filed. Therefore, this new system eliminates some of the arbitrariness of the old system as far as the "race to the courthouse" and actually speeds up the decision-making by the Court. In other words, it is a win-win in some significant ways.

Otherwise, the alien's family could go immediately after

The doubts begin

Sarah Kendall said she thought at first that there must be a reason these people were being questioned and targeted. However, her faith in this eroded quickly because the INS was unable to pry from the FBI information about the detainees supporting such a conclusion. In fairly short order, the lack of information led to serious issues calling into question the integrity of the immigration process and the government attorneys involved with it.

Judges were granting the detainees bond, and the INS lawyershad to use the infamous Rollince letters for appeal.

TheNSLD found itself in a position where they were asking line attorneys to ask judges for continuances in bad faith.

Bo Cooper was raising the concern that this policy was putting the INS "in peril."

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We asked Kendall if INS lawyers ever refused to be part of these delayingtactics. Kendall said that there were instances when people had to be ordered to follow DOJ policy.

OLC Opinion

Kendall said the OLC's view "is certainly a rational interpretation of the statute."

Closure of the hearings

Bo Cooper called Kendall and said, "They want to close all the cases." Kendall said that there was a regulation on this that would require a particularized finding. Cooper said, "they want to issue a directive."

Kendall told Cooper it was her view that the decision to close the cases could comfortably be made on a case-by-case basis. She was in Cooper's office when he called Stuart Levy and made this case.

Said Kendall, 2- 3 days later, the Creppy memo was issued ruling that all Special Interest cases were to be closed. Creppy memo ceased in force when the Special Interest List ceased.

Kendall was somewhat sympathetic to the reasoning behind the Creppy memo. She said that, if there is a rational reason for who you pick up, who the government is picking up

tells the terrorists information they could use tactically. She also noted that the impact of

the Creppy memo was not as broad as sometimes thought.

"secret." They were not closed from the alien. They simply were closed to the press and

public, and there was no notice of the hearing.

The hearings were not

Kendall said the main reason this memo was issued was "fear, fear of the unknown." She said it was a result of "Not having been in the game long enough to know what is important" vis-a-vis stopping a future terror attack. She also said that out of the Creppy memo litigation came the protective order regulation, so there was a positive side.

Some interesting side points. Before 9-11, Kendall said people could successfully FOIA immigration hearings. After 9-11, Kendal learned that FOIA did not apply to hearings. She learned this from Susan Matthias of the Commercial Law Section of INS.

Also, Bo Cooper issued an order (written, according to Kendall by Roger Sagerman) that the 9-11 detainees could not be denied counsel. Aliens were provided lists of attorneys. Kendall said that many times, immigration judges would delay a case so the detainee could get an attorney. Kendall also said that most of the detainees had access to phones, although some were stuck in "the shoe," the equivalent of preventive detention?, where they were allowed one call per week. Kendall said that EOIR can tell if a detainee was represented and when.

The USG lost the issue in the 6th Circuit (Rabi Haddad case), and won it in the Third Circuit. The Creppy memo is no longer in force since no one is on the Special Interest

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list. Kendall said that the policy contained in it could not be reinstated in the Sixth Circuit given that court's ruling.

A case can be closed through the following mechanisms:

1. Asylum or withholding or removal or convention against torture cases have a right to request closure of the hearing - at alien's request.

2. Under 8 CFR Sec. 1003.19, the government can request closure of the case on a

case-by-case basis based on a showing of need.

3. Under 8 CFR Sec. 1003.46, a DOJ regulation issued in the Spring of 2002, in

response to the Haddad litigation, the government can seek a protective order by filing a motion and submitting certificates containing sensitive or classified information - signed by suitably high-ranking personnel - stating why the information should not be made public. The alien gets the motion, but not the certificates with the information. If the judge agrees with the motion and the reasons stated in the certificates, the judge issues a gag order. The alien and the attorney are then given the data under penalty of the loss of benefits if they disclose it.

4. A Creppy-style memo were one to be reissued

5. The ATRC. This is under the control of DOJ, a "vestigial entity" per Kendall.

Use of Protective Order since 9-11

Kendall said that 10- 15 % of the cases worked since 9-11 included the use of evidence pursuant to the protective order regulations.

Kendall also said that the NSLD has worked 74 cases pre-arrest in which they gave legal advice to the investigating agents.

Today, there are approximately 700 on-going terrorism cases, all in the civil area, none using the Creppy Memo. Use of secret evidence depends on the needs of the particular case. NSLD attorneys do not even raise the issue of national security. Sometimes the intelligence community want the information to be made public.

The previous effort to revise Secret Evidence process

Kendall said that the effort in Clinton to revise the process for using secret evidence was phase I. She heard that Phase II would involve an OIL takeover of all National Security litigation from the INS. Unclear if there is any truth to this or if it is just rumor.

Use of Secret Evidence Since 9-11

Kendall said there was only one instance when Secret evidence was used pursuantto section 235(c) (?) since 9-11. This was the Arrar case.

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Terms on the Special Interest Cases List

"Bond" means the alien bonded out after issuance of a Rollince/Pearson letter "clearing" them of connection to the 9-11 attacks.

At the end of the day

The other bottom line is that there was constant pressure of "Do not release until cleared." Kendall was told that this policy was coming from the AG who had a 5 a.m. meeting on this topic daily.

Kendall seemed sympathetic to the initial efforts to detain and neutralize potential future terrorists, and how those concerns affected decisions about, for example, bond determinations, etc. after the attacks. However, Kendall said that she thought that there "should have been a settling after the initial surge to reevaluate how much wheat was among the chaff."

Kendall said that, "At the end of the day, with the exception of four of them, they were all deported or cleared and released." The four were: Moussaoui, Al Marabh, Bennatta, and Hadad.

Kendall admitted she was not the expert on which of the detainees were potential terrorists. However, she could remember the following serious people apprehended: Al Marabh, Maoussaoui, Hadad, Bakarbashat, and Mubarak

Many of the aliens detainees, "took orders" i.e., they acceded to issuance of orders to remove them. Some negotiated for voluntary departure. Kendall said that some were eligible for benefits and were able to apply for them when they left the U.S. Some of the detainees who were deported may well be back in the U.S.

Records and Memories

Kendall said the people with the best information on which of the detainees were potential terrorists would be:

David Venturella - the #2 in Detentions and Removal Rachel Canty ~ Who works sensitive issues in D& R Michael Rozos - Now in Atlanta running the D & R program there Terri Tremper —D& R Director

Kendall said that the files on all 768detainees - the infamous green files - residein D&R.

Material Witnesses

Material Witnesses had BLUE folders, versus green for the otherdetainees.

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Kendall said that if a person was taken from INS custody as a material witness (matwit for short), then they were "remanded to the U.S. Marshal Service as described on the Special Interest List.

The one mistaken arrest in Kendall's view

Kendall said that #411 - Angel Florez, should never have been arrested. Kendal described him as a schizophrenic street person who was picked up at Ground Zero. She said he was processed only after the Spanish Foreign Minister complained about his treatment on CNN

Lessons Learned: Planning for "the next" attack

Kendall identified a number of problems as a result of her extraordinary experience.

1. The strategy pursued by the FBI and supported by the AG was a litigation strategy

versus a whole group of people. It was not based on individualized findings. Rather, the group was determined to be subject to "no bond."

2.

Excessive delays in the litigation process led to the government showing bad faith

in

its handling of the detainees cases.

3.

The SIOC was a poor mechanism to handle this process. There were not enough

SIOC personnel to address the detainee cases. Moreover, the SIOC was not in the chain of command over people in the operational units out in the field. If the agent wouldn't

answer the page, then they would have to bump the matter up to Rollince.

4. Too many decisions were made orally and never memorialized on paper later on.

Kendall said she had the feeling that no one wanted to be on the record.

5. The crisis was never reevaluated to see if there still was one. By the end of

September, Kendall said, they started to get the sense that many of the detainee cases were "crap." Someone needed to take a step back and ask why were these people

arrested? Kendall said, "They were arrested because they were Arab."

6. Kendall said the central challenge for immigration law enforcement was to create

a system where everyone understands the consequences of violating U.S. immigration law. She commented, "What do Americans think if they are tossed out of a foreign

country for violating their immigration laws, do they say that country's laws are unfair?'

7. The U.S. needs to make border security related crimes at the top of the list for

prosecution. Visa, passport, and other frauds. Kendall said she believed there was an upgrade for terrorism related crimes under federal sentencing guidelines. However, she said she would be thrilled if these crimes were made into felonies.

For example, Kendall said that she remembered that three men were arrested in a Sam's Club because they had purchased a large quantity of candy. The candy was for their businesses. But someone in the store thought this was suspicious and called the police. Kendall saidthe case came to her attention because the property people had no room to store the 200 - 300 pounds of candy.

Kendall said she has devoted a lot of resources to making sure the issues that arose aftei 9-11 do not arise again. Today, she says there are 200 trained people (lawyers?) trained through the National Security Law Program. If another attack occurred today, there

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would not be any need for a Special Interest list of aliens as after 9-11. These people would know their role, would know the law, and would know how to interact directly with their headquarters partners. The field attorneys would be responsible for their cases.

Kendall then commented on the plan to staff a 20-person unit in the FBI to address immigration cases. She said that after all that happened post-9-11, it was "unconscionable" that the FBI should get funds from Congress to do that. She said that she had proposed staffing the NSLD at 16 in a memo of July 2003. Instead, they have a staff of three, and they have burned out ten team members since 9-11.

Kendall also commented on the AG's delegation of immigration law enforcement powers

shortly before the creation of DHS. She questioned strongly whether this delegation was

lawful.

involve itself in immigration prosecution, would be that the FBI could go all the way toward filing a Notice to Appear in an alien's case, and no farther. Kendall said that only a DHS lawyer could represent Ridge in court, since that is what the law provides.

She also said that the result, if this unit were to be set up and the FBI actually to

Kendall said of the 9-11 detainee Special Interest List, "the problem was not the list; the problem was what the list meant."

»

Kendall added, "It was not an INS list." Kendall said the INS had no control over FBI resources used to manage the detainee process.

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