Thomas H. Kean FBI BRIEFING REQUEST NO.

3
CHAIR

Lee H. Hamilton
VICE CHAIR The National Commission on Terrorist Attacks Upon the United States (the
"Commission") requests an informal background briefing from appropriate officials at
Richard Ben-Veniste
the Federal Bureau of Investigation (FBI) on the following topic:
Max Cleland

F'red F. Fielding
1 . How the role of the FBI in the clearance process for visa applicants has evolved
from the period 1998 to the present, including:
Jamie S. Gorelick

Slade Gorton i/a. how the FBI and the State Department share authorities;
v\). how the FBI provides information to the State Department supporting visa
John Lehman refusals under INA section 2 12(a)(3)(b) or other provisions of law; i
TimothyJ. Roemer how the FBI puts names of suspected terrorists or terrorist affiliates onto
watchlists or into databases in order to prevent their entry into the United
James R. Thompson States; <^ ££-£&> - /£// <^^'-~«/ ^j^^
State Department access to the NCIC and yipjenKjanp and Terrorist
Philip D. Zelikow Organization data files, and the Automated Fingerprint Identification System;
LXIiCUTIVE DIRECTOR
the Visas Condor program;
the FBI's role in the Foreign Terrorist Tracking Task Force;
nce pprocess; and
the role of INS/DHS detailees to the FBI in the clearance
the role of the FBI's Namecheck Unit. ~~> n0T

The requested briefing is for general background purposes only and will not be a
substitute for later interviews the Commission and its staff may wish to conduct.

June 19, 2003 Daniel Marcus

General Counsel

TEL (202) 331-4060

FAX (202) 296-5545
www.9-1 lcommission.gov
 FBI BRIEFING #3
National Commission on Terrorist Attacks Against the United States
July 31,2003

How the role of the FBI in the clearance process for visa applicants has evolved from the period
1998 to the present including:

a. How the FBI and State Department share authorities;

(1) Prior to the Homeland Security Act of 2002,l the Attorney General and consular officers
shared authority to determine admissibility under section 212 of the Immigration and
Nationality Act, 8 U.S.C. § 1182.

• The Attorney General had delegated his authority to immigration inspectors to

make admissibility determinations at ports-of-entry and to immigration judges to
make admissibility determinations for aliens in removal proceedings.

• Consular officers determined admissibility in the context of visa applications.

• Under current law, the Secretary of Homeland Security and the Secretary of State
share legal authority over visas, although immigration judges retain the authority
to make admissibility determinations for aliens in removal proceedings.

(2) Under Section 105 of the Immigration and Nationality Act, 8 U.S.C. § 1105, the INS
Commissioner and Assistant Secretary for Consular Affairs are required to maintain
"direct and continuous liaison" with the Directors of the FBI and the CIA "for the
purpose of obtaining and exchanging information for use in enforcing the provisions" of
the Immigration and Nationality Act. See Attachment A.

• One of the primary ways that the FBI performs this liaison function is through the
process of providing information to the State Department's TIPOFF system and
the INS's LOOKOUT system

• Another way is through INS participation on the Joint Terrorism Task Forces and
sharing information in individual cases of concern.

• INS also submits to FBI name checks for applications for certain immigration
benefits.

1 The Immigration and Nationality Act (INA) has not yet been amended to reflect the changes made by the
Homeland Security Act of 2002. This document, therefore, contains references to agencies and positions that no
longer exist because the INA continues to make such references.
(3) Section 212(a)(3) of the Immigration and Nationality Act (INA) contains the security-
related grounds of inadmissibility (terrorism, espionage, etc.). An alien seeking to
immigrate permanently to the U.S. may not do so if inadmissible under certain
provisions, including all of the terrorism provisions, of this section of the law.

• An alien seeking admission temporarily as a nonimmigrant, however, may be

issued visa if the Attorney General grants a waiver of inadmissibility under
section 212(d)(3)(A) of the INA, 8 U.S.C. § 1182(d)(3)(A) which states:

[A]n alien who is applying for a nonimmigrant visa and is known

or believed by the consular officer to be ineligible for such visa. .
.may, after approval by the Attorney General of a recommendation
by the Secretary of State or by the consular officer that the alien be faf- Dffi
admitted temporarily despite his in admissibility, be granted such a pa / -fo ^eJf^ rn
visa and may be admitted into the United States temporarily as a n _,^ ^,-j
nonimmigrant in the discretion of the Attorney General. . . ^sztff "*-" **.&£

For most cases, the Attorney General had delegated this waiver authority to
officials in the Immigration and Naturalization Service (INS). The FBI reviewed
and provided its position on waiver requests.

(4) Legislation enacted since September 11, 2001, requires additional sharing of information
among US government agencies, including the FBI:

• The USA Patriot Act requires that the FBI share NCIC extracts with State
Department and INS.

• The Enhanced Border Security and Visa Entry Reform Act requires:

» That the President develop and implement an interoperable

electronic data system to provide current and immediate access to
information in databases of Federal law enforcement agencies and the
intelligence community that is relevant to determine whether to issue a
visa or to determine the admissibility or deportability of an alien (also
known as the'Chimera system') [Section 202]. T}e>5 '^^^^^^~^cr\^ "/

The establishment of a commission to oversee the Chimera System

[Section 203].
b. How the FBI provides information to the State Department supporting visa refusals
under INA section 212(a)(3)(B) or other provisions of law;

• Information is provided to the State Department through the SAO process (National
Name Check Program to be described in Ih).

• FBI provides written response through a cable to State Department.

• Ongoing issues of discussion among Departments of State, Homeland Security and

Justice.:
e. the Visas Condor Program

• The Department of State issued some 44 million nonimmigrant visas in Fiscal Year 2001.
Prior to September 11, the Department of State had in place certain requirements for
screening some visa applicants from some countries:
• Each visa applicant must submit a visa application, photograph, valid passport
(with certain limited exceptions), and any required supporting documentation.
• The applicant may apply through the mail or be required to be interviewed in
person by a consular officer.
• The applicant's name is checked in the DOS' Consular Lookout and
Administrative Support System (CLASS), which links with TIPOFF (an
interagency database of suspected terrorists). The TIPOFF system relies upon
other agencies to submit names of suspected terrorists.
• DOS had further screening requirements for aliens of certain nationalities and
those suspected of being inadmissible on security-related grounds. Some cases
required a "Security Advisory Opinion" (SAO) based on consultation with other
agencies before a visa may be issued.
• In many locations, DOS issued the visa on the same day that the application was
made.

• In October 2001, the Department of Justice approached the Department of State to

discuss security enhancements to the visa issuance process.

• The Department of Justice and DOS agreed upon several new enhancements to the visa
screening process:
• a new form that is filled out by all nonirnmigrant visa applicants
• a 20-day waiting period before visas may be issued so that name checks may be
on applicants of concern (this waiting period was lifted during the summer of
2002)
• increasing the categories of cases that are subject to the SAO requirement (the
"Condor" program)

• The specific categories of cases for whom Condor SAOs are now required is classified.
The criteria is based on intelligence information.
 Attachment A

8 U.S.C. § 1105. Liaison with internal security officers data exchange

(a) The Commissioner and the Administrator shall have authority to maintain direct and
continuous liaison with the Directors of the Federal Bureau of Investigation and the Central
Intelligence Agency and with other internal security officers of the Government for the purpose
of obtaining and exchanging information for use in enforcing the provisions of this chapter in the
interest of the internal and border security of the United States. The Commissioner and the
Administrator shall maintain direct and continuous liaison with each other with a view to a
coordinated, uniform, and efficient administration of this chapter, and all other immigration and
nationality laws.

(b)(l) The Attorney General and the Director of the Federal Bureau of Investigation shall provide
the Department of State and the Service access to the criminal history record information
contained in the National Crime Information Center's Interstate Identification Index (NCIC-III),
Wanted Persons File, and to any other files maintained by the National Crime Information Center
that may be mutually agreed upon by the Attorney General and the agency receiving the access.
for the purpose of determining whether or not a visa applicant or applicant for admission has a
criminal history record indexed in any such file.

(2) Such access shall be provided by means of extracts of the records for placement in the
automated visa lookout or other appropriate database, and shall be provided without any fee or
charge.

(3) The Federal Bureau of Investigation shall provide periodic updates of the extracts at intervals
mutually agreed upon with the agency receiving the access. Upon receipt of such updated
extracts, the receiving agency shall make corresponding updates to its database and destroy
previously provided extracts.

(4) Access to an extract does not entitle the Department of State to obtain the full content of the
corresponding automated criminal history record. To obtain the full content of a criminal history
record, the Department of State shall submit the applicant's fingerprints and any appropriate
fingerprint processing

fee authorized by law to the Criminal Justice Information Services Division of the Federal
Bureau of Investigation.

(c) The provision of the extracts described in subsection (b) may be reconsidered by the Attorney
General and the receiving agency upon the development and deployment of a more cost-effective
and efficient means of sharing the information.
(d) For purposes of administering this section, the Department of State shall, prior to receiving
access to NCIC data but not later than 4 months after the date of enactment of this subsection,
promulgate final regulations—

(1) to implement procedures for the taking of fingerprints; and

(2) to establish the conditions for the use of the information received from the Federal Bureau of
Investigation, in order—

(A) to limit the redissemination of such information;

(B) to ensure that such information is used solely to determine whether or not to issue a visa to an
alien or to admit an alien to the United States;

(C) to ensure the security, confidentiality, and destruction of such information; and

(D) to protect any privacy rights of individuals who are subjects of such information.
 Attachment B

Enhanced Border Security and Visa Entry Reform Act of 2002

SEC. 201. INTERIM MEASURES FOR ACCESS TO AND COORDINATION OF LAW

ENFORCEMENT AND OTHER INFORMATION.

(a) INTERIM DIRECTIVE- Until the plan required by subsection (c) is implemented, Federal
law enforcement agencies and the intelligence community shall, to the maximum extent
practicable, share any information with the Department of State and the Immigration and
Naturalization Service relevant to the admissibility and deportability of aliens, consistent with the
plan described in subsection (c).

(b) REPORT IDENTIFYING LAW ENFORCEMENT AND INTELLIGENCE

INFORMATION-

(1) IN GENERAL- Not later than 120 days after the date of enactment of this Act, the
President shall submit to the appropriate committees of Congress a report identifying Federal law
enforcement and the intelligence community information needed by the Department of State to
screen visa applicants, or by the Immigration and Naturalization Service to screen applicants for
admission to the United States, and to identify those aliens inadmissible or deportable under the
Immigration and Nationality Act.

(2) REPEAL- Section 414(d) of the USA PATRIOT Act is hereby repealed.

(c) COORDINATION PLAN-

(1) REQUIREMENT FOR PLAN- Not later than one year after the date of enactment of
the USA PATRIOT Act, the President shall develop and implement a plan based on the findings
of the report under subsection (b) that requires Federal law enforcement agencies and the
intelligence community to provide to the Department of State and the Immigration and
Naturalization Service all information identified in that report as expeditiously as
practicable.

(2) CONSULTATION REQUIREMENT- In the preparation and implementation of the

plan under this subsection, the President shall consult with the appropriate committees of
Congress.

(3) PROTECTIONS REGARDING INFORMATION AND USES THEREOF- The plan

under this subsection shall establish conditions for using the information described in subsection
(b) received by the Department of State and Immigration and Naturalization Service—
 (A) to limit the redissemination of such information;

(B) to ensure that such information is used solely to determine whether to issue a visa to
an alien or to determine the admissibility or deportability of an alien to the United States, except
as otherwise authorized under Federal law;

(C) to ensure the accuracy, security, and confidentiality of such information;

(D) to protect any privacy rights of individuals who are subjects of such information;

(E) to provide data integrity through the timely removal and destruction of obsolete or
erroneous names and information; and

(F) in a manner that protects the sources and methods used to acquire intelligence
information as required by section 103(c)(6) of the National Security Act of 1947 (50 U.S.C.
403-3(c)(6)).

(4) CRIMINAL PENALTIES FOR MISUSE OF INFORMATION- Any person who

obtains information under this subsection without authorization or exceeding authorized access
(as defined in section 1030(e) of title 18, United States Code), and who uses such information in
the manner described in any of the paragraphs (1) through (7) of section 1030(a) of such title, or
attempts to use such information in such manner, shall be subject to the same penalties as are
applicable under section 1030(c) of such title for violation of that paragraph.

(5) ADVANCING DEADLINES FOR A TECHNOLOGY STANDARD AND REPORT-

Section 403(c) of the USA PATRIOT Act is amended-

(A) in paragraph (1), by striking '2 years' and inserting '15 months'; and

(B) in paragraph (4), by striking '18 months' and inserting 'one year'.

SEC. 202. INTEROPERABLE LAW ENFORCEMENT AND INTELLIGENCE DATA

SYSTEM WITH NAME-MATCHING CAPACITY AND TRAINING.

(a) INTEROPERABLE LAW ENFORCEMENT AND INTELLIGENCE ELECTRONIC

DATA SYSTEM-

(1) REQUIREMENT FOR INTEGRATED IMMIGRATION AND NATURALIZATION

DATA SYSTEM- The Immigration and Naturalization Service shall fully integrate all
databases and data systems maintained by the Service that process or contain information on
aliens. The fully integrated data system shall be an interoperable component of the electronic data
system described in paragraph (2).
 (2) REQUIREMENT FOR INTEROPERABLE DATA SYSTEM- Upon the date of
commencement of implementation of the plan required by section 201(c), the President shall
develop and implement an interoperable electronic data system to provide current and immediate
access to information in databases of Federal law enforcement agencies and the intelligence
community that is relevant to determine whether to issue a visa or to determine the admissibility
or deportability of an alien (also known as the 'Chimera system").

(3) CONSULTATION REQUIREMENT- In the development and implementation of the

data system under this subsection, the President shall consult with the Director of the National
Institute of Standards and Technology (NIST) and any such other agency as may be deemed
appropriate.

(4) TECHNOLOGY STANDARD-

(A) IN GENERAL- The data system developed and implemented under this subsection,
and the databases referred to in paragraph (2), shall utilize the technology standard established
pursuant to section 403(c) of the USA PATRIOT Act, as amended by section 201(c)(5) and
subparagraph (B).

(B) CONFORMING AMENDMENT- Section 403(c) of the USA PATRIOT Act, as

amended by section 201(c)(5), is further amended—

(i) in paragraph (1), by inserting ', including appropriate bio me trie identifier
standards,'after 'technology standard'; and

(ii) in paragraph (2) —

(I) by striking 'INTEGRATED' and inserting 'INTEROPERABLE'; and

(II) by striking 'integrated' and inserting 'interoperable'.

(5) ACCESS TO INFORMATION IN DATA SYSTEM- Subject to paragraph (6),

information in the data system under this subsection shall be readily and easily accessible-

(A) to any consular officer responsible for the issuance of visas;

(B) to any Federal official responsible for determining an alien's admissibility to or

deportability from the United States; and

(C) to any Federal law enforcement or intelligence officer determined by regulation to

be responsible for the investigation or identification of aliens.
 (6) LIMITATION ON ACCESS- The President shall, in accordance with applicable
Federal laws, establish procedures to restrict access to intelligence information in the data system
under this subsection, and the databases referred to in paragraph (2), under circumstances in
which such information is not to be disclosed directly to Government officials under paragraph
(5).

(b) NAME-SEARCH CAPACITY AND SUPPORT-

(1) IN GENERAL- The interoperable electronic data system required by subsection (a)
shall-

(A) have the capacity to compensate for disparate name formats among the different
databases referred to in subsection (a);

(B) be searchable on a linguistically sensitive basis;

(C) provide adequate user support;

(D) to the extent practicable, utilize commercially available technology; and

(E) be adjusted and improved, based upon experience with the databases and
improvements in the underlying technologies and sciences, on a continuing basis.

(2) LINGUISTICALLY SENSITIVE SEARCHES-

(A) IN GENERAL- To satisfy the requirement of paragraph (1)(B), the interoperable

electronic database shall be searchable based on linguistically sensitive algorithms that-

(i) account for variations in name formats and transliterations, including varied
spellings and varied separation or combination of name elements, within a particular language;
and

(ii) incorporate advanced linguistic, mathematical, statistical, and anthropological

research and methods.

(B) LANGUAGES REQUIRED-

(i) PRIORITY LANGUAGES- Linguistically sensitive algorithms shaU be

developed and implemented for no fewer than 4 languages designated as high priorities by the
Secretary of State, after consultation with the Attorney General and the Director of Central
Intelligence.

10
 (ii) IMPLEMENTATION SCHEDULE- Of the 4 linguistically sensitive algorithms
required to be developed and implemented under clause (i)—

(I) the highest priority language algorithms shall be implemented within 18

months after the date of enactment of this Act; and

(II) an additional language algorithm shall be implemented each succeeding year

for the next three years.

(3) ADEQUATE USER SUPPORT- The Secretary of State and the Attorney General shall
jointly prescribe procedures to ensure that consular and immigration officers can, as required,
obtain assistance in resolving identity and other questions that may arise about the names of
aliens seeking visas or admission to the United States that may be subject to variations hi format,
transliteration, or other similar phenomenon.

(4) INTERIM REPORTS- Six months after the date of enactment of this Act, the President
shall submit a report to the appropriate committees of Congress on the progress in implementing
each requirement of this section.

(5) REPORTS BY INTELLIGENCE AGENCIES-

(A) CURRENT STANDARDS- Not later than 60 days after the date of enactment of
this Act, the Director of Central Intelligence shall complete the survey and issue the report
previously required by section 309(a) of the Intelligence Authorization Act for Fiscal Year 1998
(50 U.S.C. 403-3 note).

(B) GUIDELINES- Not later than 120 days after the date of enactment of this Act, the
Director of Central Intelligence shall issue the guidelines and submit the copy of those guidelines
previously required by section 309(b) of the Intelligence Authorization Act for Fiscal Year 1998
(50 U.S.C. 403-3 note).

(6) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated

such sums as are necessary to carry out the provisions of this subsection.

SEC. 203. COMMISSION ON INTEROPERABLE DATA SHARING.

(a) ESTABLISHMENT- Not later than one year after the date of enactment of the USA
PATRIOT Act, the President shall establish a Commission on Interoperable Data Sharing (in this
section referred to as the v Commission'). The purposes of the Commission shall be to-

(1) monitor the protections described in section 201(c)(3);

(2) provide oversight of the interoperable electronic data system described in section 202;

11
and

(3) report to Congress annually on the Commission's findings and recommendations.

(b) COMPOSITION- The Commission shall consist of nine members, who shall be appointed
by the President, as follows:

(1) One member, who shall serve as Chair of the Commission.

(2) Eight members, who shall be appointed from a list of nominees jointly provided by the
Speaker of the House of Representatives, the Minority Leader of the House of Representatives,
the Majority Leader of the Senate, and the Minority Leader of the Senate.

(c) CONSIDERATIONS- The Commission shall consider recommendations regarding the

following issues:

(1) Adequate protection of privacy concerns inherent in the design, implementation, or

operation of the interoperable electronic data system.

(2) Timely adoption of security innovations, consistent with generally accepted security
standards, to protect the integrity and confidentiality of information to prevent the risks of
accidental or unauthorized loss, access, destruction, use modification, or disclosure of
information.

(3) The adequacy of mechanisms to permit the timely correction of errors in data
maintained by the interoperable data system.

(4) Other protections against unauthorized use of data to guard against the misuse of the
interoperable data system or the data maintained by the system, including recommendations for
modifications to existing laws and regulations to sanction misuse of the system.

(d) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to

the Commission such sums as may be necessary to carry out this section.

SEC. 204. PERSONNEL MANAGEMENT AUTHORITIES FOR POSITIONS INVOLVED IN

THE DEVELOPMENT AND IMPLEMENTATION OF THE INTEROPERABLE
ELECTRONIC DATA SYSTEM ('CHIMERA SYSTEM).

(a) IN GENERAL- Notwithstanding any other provision of law relating to position

classification or employee pay or performance, the Attorney General may hire and fix the
compensation of necessary scientific, technical, engineering, and other analytical personnel for
the purpose of the development and implementation of the interoperable electronic data
system described in section 202(a)(2) (also known as the 'Chimera system').

12
 (b) LIMITATION ON RATE OF PAY- Except as otherwise provided by law, no employee
compensated under subsection (a) may be paid at a rate in excess of the rate payable for a
position at level III of the Executive Schedule.

(c) LIMITATION ON TOTAL CALENDAR YEAR PAYMENTS- Total payments to

employees under any system established under this section shall be subject to the limitation on
payments to employees under section 5307 of title 5, United States Code.

(d) OPERATING PLAN- Not later than 90 days after the date of enactment of this Act, the
Attoniey General shall submit to the Committee on Appropriations, the Committee on the
Judiciary, the Select Committee on Intelligence, and the Committee on Foreign Relations of the
Senate and the Committee on Appropriations, the Committee on the Judiciary, the Permanent
Select Committee on Intelligence, and the Committee on International Relations of the House of
Representatives an operating plan—

(1) describing the Attorney General's intended use of the authority under this section; and

(2) identifying any provisions of title 5, United States Code, being waived for purposes of
the development and implementation of the Chimera system,

(e) TERMINATION DATE- The authority of this section shall terminate upon the
implementation of the Chimera system.

13
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