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Dan Marcus
From: Sent: To: Cc: Tom Eldridge Tuesday, June 29, 2004 9:04 AM 'Dan.Levin@usdoj.gov' Front Office

Subject: written follow up by the AG DanAt the April 13 hearing, Senator Kerrey asked the Attorney General for documentation of the benefits of the 768 9/1 1 detainees' detentions, and the Attorney General agreed to provide that documentation: Kerrey: And if you can give us some documentation . . . Atty. Gen Ashcroft: Yeah, I'd love to ... Kerrey: I appreciate that. Your staff was nodding like mad when I asked for the documentation. Atty. Gen Ashcroft: Okay. Let them. Kerrey: Yeah. Thank you. Chris Kojm requested that I ask you the status of this material. Has the Attorney General prepared any written submission to follow up on this exchange? As we draft the chapter on post 9/1 1 actions, the Commission certainly would benefit from the Attorney General's most direct statement of the counterterrorism benefits of the detentions of the 768 9/1 1 detainees. Please let me know. Thanks. --Tom

6/30/2004

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Dan Marcus
From: Sent: To: Cc: Tom Eldridge Tuesday, June 22, 2004 11:47 AM Susan Ginsburg; Dan Marcus Janice Kephart-Roberts; Walter Hempel; Kelly Moore

Subject: 9/11 detainee delays in charging Susan and Dan One issue we have discussed is whether there were delays in serving the 9/11 detainees timely with the Notice To Appear (NTA) that begins an immigration case. I glean the following facts from the Justice IG's report:

1. "According to the INS General Counsel's Office, no statute or regulation explicitly states when the INS must serve the NTA on the alien or the Immigration Court." P. 29. The IG does not dispute that this is a correct interpretation of the law. 2. Although it was the general practice of the INS before 9/11 to serve the alien with the NTA within 48 hours, after 9/11, the INS set as its goal to serve the NTAs within 72 hours. P. 29 3. The INS met its goal of serving the alien within 72 hours in 452 out of 762 cases the IG analyzed or 59%. In addition, 118 more of the 762 either had been arrested before 9/11 and had already been served with the NTA, or were not required to be served with an NTA. P. 29 4. Of the 192 aliens not served within the 72 hour window (and not removed from the analysis for the reasons above), most (137 or 71%) were arrested by the INS in the NYC area. 5. In the NYC area, the average time before service of the NTA was 15 days. 6. The IG found a number of factors that contributed to delays in service in the New York City area, including: a. The fact that some of the 192 had criminal charges obviating the INS' need to serve an NTA; b. "logistical disruptions in New York City" that made it extremely difficult for INS personnel to obtain and receive A-file information on the detainees; c. The loss of the INS Varick Street processing center as a detention facility "due to a loss of electricity and utilities" that forced the move of 244 INS aliens to New Jersey, including some 9/11 detainees; and d. "Delays caused by headquarters review of NTAs." The headquarters review process, established at the direction of INS Commissioner Ziglar to centralize processing for all 9/11 detainees and ensure there were no inappropriate charges brought "contributed to the delays in serving NTAs on the September 11 detainees." p. 32. In sum, there does not appear to be support for the assertions of some that there were widescale abuses in the filing of charges against the 9/11 detainees. What delays did occur do not appear to have violated any law. The majority of those cases in which the filing of charges was delayed (beyond the goal INS apparently legitimately set for itself) happened in New York City either for understandable logistical reasons stemming from the 9/11 attack itself or because the INS sought-through centralization of case review in Washington--to be especially diligent in making sure proper charges were filed. We should keep these facts in mind as we consider recommendations.

6/22/2004