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gov] Sent: Friday, July 09, 2004 4:35 PM To: Dan Marcus; Steve Dunne; Chris Kojm; Philip Zelikow Subject: As requested During the Attorney General's April 13, 2004, testimony before the National Commission on Terrorist Attacks Upon the United States, Commissioner Kerrey asked that the Department of Justice provide the Commission with documentation of the benefits of the detentions of illegal aliens encountered during the course of the Department's investigation into the terrorist attacks of September 11, 2001. We are pleased to share this information with the Commission and hope that it will aid the Commission in completing its important work. Following the attacks of September 11, 2001, the leadership of the Department of Justice acted prudently and erred on the side of caution; we did not allow illegal aliens encountered during the course of our investigation of the terrorist attacks to be released until each had been thoroughly investigated. These individuals were in the United States illegally, and their detention was thus fully consistent with federal law, as illegal aliens in removal proceedings are not entitled to bond as a matter of right. Because of the decision to detain these individuals, the FBI was able to conduct complete investigations, to figure out who was involved in the attacks and who might have key information, without having to worry about the subjects of the investigation disappearing or committing further terrorist acts. Indeed, it would have been irresponsible for the Department to release an illegal alien whom the FBI indicated it wanted to investigate further in connection with the September 11 attacks. It is important to keep in mind that there is a clear track record of illegal aliens who are released on bond pending removal proceedings absconding. For example, a February 2003 Department of Justice Inspector General report found that while 94% of detained aliens are deported, only 13% of released aliens are deported once their immigration proceedings are concluded, and that highrisk aliens are particularly likely to abscond. It is also important to understand that, at the time of these detentions, we had limited information about many of these aliens; some possessed identity documents for multiple identities while others had failed polygraphs when questioned as to their knowledge of the hijackers or their involvement in the September 11 attacks. All of the aliens detained were charged with being subject to removal from the United States for committing immigration violations, and some were also charged with criminal violations. Examples of those detained for immigration violations included: * Zacarias Moussaoui, who was initially detained before September 11, was detained on a so-called "technical" immigration violation (overstaying his Visa Waiver Program admission) until he was moved to criminal custody; * an alien who knew two of the hijackers, assisting both of them to obtain Social Security cards and helping one of them to obtain flight lessons. This individual was arrested for overstaying his visa and
obtaining unauthorized employment and was subsequently removed from the country in February 2002; * * an alien subsequently served with a material witness warrant who had been stopped on September 16, 2001, by local law enforcement officers carrying a suspicious package, which contained a pilot's license and flight materials, and whose roommate stated that the alien had "abruptly" left for New York on September 10, 2001. This individual was removed from the country in January 2003; * * an alien who had been trained as a pilot, checked into a hotel on September 13, 2001, and requested that he not be disturbed, even for maid service. This alien's name was found in an organizer linked to the hijackers, and, when he was given a polygraph, there was evidence of deception when he answered the question of whether he was involved in the attacks of September 11, 2001. This individual was subsequently removed from the country in June 2002; * * an alien found with three driver's licenses, two state identify cards, and three social security cards, all in different names. He also possessed box cutters and had traveled extensively throughout the United States, as well as to Egypt and Saudi Arabia, although he held no steady job. This individual was subsequently removed from the country in March 2003; * * an alien subsequently convicted of a criminal immigration violation who worked at a jewelry store where 25 photographs of the World Trade Center (both internal and external shots) were found and which was suspected of money laundering. This individual was removed from the country in November 2002; and * * an alien subsequently served with a material witness warrant who admitted to the FBI that he had trained in terrorist camps in Afghanistan and who was linked to known members of a terrorist organization. This person was subsequently removed from the country in January 2004. * * While relatively few of the detained individuals were ultimately charged with terrorism offenses, this does not mean that these detentions were without operational value. The Department does not know what precise terrorist plots the detentions may have disrupted, but there is evidence that its efforts did make it more difficult for terrorists to carry out additional attacks in the United States. As the draft report acknowledges, "A senior al Qaeda detainee has stated that U.S. government efforts after the 9/11 attacks to monitor its homeland, including . . . deportation of non-permanent residents, made the situation for al Qaeda more difficult. Therefore, it appears this effort [the "special interest" detainee effort] had some deterrent effect." Draft Chapter 10 at 3. * * We also were able to obtain new leads from some of the detainees, which were helpful to the investigation into the attacks of September 11, 2001. Moreover, in many cases, the Department of Justice determined that the best course of action to protect national security was to remove potentially dangerous individuals from the country and ensure that they could not return. While in certain cases we gathered substantial evidence of a detained alien's connection to terrorist activity, there were instances where the evidence either was not sufficient to prove a terrorism crime beyond a reasonable doubt or could not be used in a criminal proceeding because doing so would have involved the disclosure of sensitive sources or
classified information. In such cases, the best available alternative to protect the national security of the United States was to pursue the removal of the alien from the United States, and the Department followed this course of action. * * In conclusion, the detention of illegal aliens encountered during the course of the investigation into the terrorist attacks of September 11, 2001, that was designed to give the FBI the opportunity to investigate these aliens thoroughly, was the appropriate course of action. Had the Department released or granted bond to an illegal alien after September 11, 2001, who went on to commit another terrorist attack on American soil before an investigation of that alien had been completed, it would have been justly criticized for failing to safeguard the people of the United States. These detentions were fully consistent with the law, and some of the detainees provided leads that were helpful to the Department's investigation of the September 11 attacks. In addition, these detentions facilitated the removal of potentially dangerous illegal aliens from the country. Moreover, there is evidence, acknowledged in the draft report, that they contributed to the disruption of additional terrorist attacks.