t5 b41 notes 6-26-03 to 9-2-03 3 of 4 fdr- tab 6- fbi briefing request 3 and 7-31-03 brief- notes

8/14/2019 T5 B41 Notes 6-26-03 to 9-2-03 3 of 4 Fdr- Tab 6- FBI Briefing Request 3 and 7-31-03 Brief- Notes

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Thomas H. KeanC H A I R

Lee H. HamiltonV I C E C H A I R

Richard Ben-V en isteM ax Cle landF'red F. FieldingJamie S. GorelickSlade GortonJohn LehmanTimothyJ. RoemerJames R. Thompson

Philip D. ZelikowL X I i C U T I V E D I R E C T O R

FBI BRIEFING REQUEST NO. 3T he National C omm ission on T errorist A ttacks Upon the United States (the"C ommission") requests an informal background briefing from appropriate officials atthe Federal Bureau of Inv estigation (FBI) on the followin g topic:1 . How the role of the F BI in the clearance process for visa applicants has evolvedfrom the period 1998 to the present, includ ing:

i/a.v\).

how the FB I and the State Department share authorities;ho w the FB I provides information to the State D epartment supporting visarefusals under INA section 2 12(a)(3)(b) or other provisions of law; ihow the FBI puts names of suspected terrorists or terrorist affiliates ontowatchlists or into databases in order to prevent their entry into the UnitedStates; -///


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FBI BRIEFING #3National Commission on Terrorist Attacks Against the United StatesJuly 31,2003

How the role of the FBI in the clearance process for visa applicants has evolved from the period1998 to the present including:a. How the FBI and State Department share authorities;(1) Prior to the Hom eland Security Act of 2002,l the Attorney General and consular officersshared authority to determine admissibility under section 212 of the Immigration andNationality Act, 8 U.S.C. 1182.

The Attorney General had delegated his authority to imm igration inspectors tom ake adm issibility determ inations at ports-of-entry and to imm igration judges tomake 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 Stateshare legal au thority over visas, although im m igration judg es retain the authorityto make admissibility determinations for aliens in removal proceedings.

(2) Under Section 105 of the Im m igration and Nationality Act, 8 U.S.C . 1105, the INSCommissioner and Assistant Secretary for Consular Affairs are required to maintain"direct and continuous liaison" with the Directors of the FBI and the CIA "for thepurpose of obtaining and exchanging information for use in enforcing the provisions" ofthe Im m igration and Nationality Act. See Attachm ent A. One of the primary ways that the FBI perform s this liaison function is through theprocess of providing information to the State Dep artm ent's TIPOFF system an dthe INS's LOOKOUT system Another way is through IN S participation on the Joint Terrorism Task Forces andsharing information in individual cases of concern. INS also subm its to FBI nam e checks for applications for certain im m igrationbenefits.

1 The Immigration and Nationality Act ( INA) has not yet been amended to reflect the changes made by theHomeland Security Act of 2002. This document, therefore, contains references to agencies and positions that nolonger exist because the INA continues to make such references.


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(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 toimmigrate permanently to the U.S. may not do so if inadmissible under certainprovisions, 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 undersection 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 knownor believed by the consular officer to be ineligible for such visa. ..may, after approval by the Attorney General of a recommendationby the Secretary of State or by the consular officer that the alien be faf- D f f iadmitted temporarily despite his in admissibility, be granted such a pa / - f o ^eJf^ rnvisa and may be admitted into the United States temporarily as a n_,^ ,-jnonimmigrant in the discretion of the Attorney General. . . ^ s z t f f " * - " **.&

For most cases, the Attorney General had delegated this waiver authority toofficials in the Immigration an d Naturalization Service (INS). The FBI reviewedan d provided its position on waiver requests.

(4) Legislation enacted since September 11, 2001, requires additional sharing of informationamong US government agencies, including the FBI: The USA Patriot Act requires that the FBI share NCIC extracts with StateDepartment and INS. The Enhanced Border Security an d Visa Entry Reform Act requires:

That the President develop and implement an interoperableelectronic data system to provide current an d immediate access toinformation in databases of Federal law enforcement agencies and theintelligence community that is relevant to determine whether to issue avisa or to determine the admissibility or deportability of an alien (alsoknown as the'Chimera system') [Section 202]. T } e > 5 ' ^ ^ ~ cr\ "/The establishment of a commission to oversee the Chimera System[Section 203].


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b. How the FBI provides information to the State Department supporting visa refusalsunder 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.:


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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 forscreening 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 inperson by a consular officer. The applicant's name is checked in the DOS' Consular Lookout andAdministrative Support System (CLASS), which links with TIPOFF (aninteragency database of suspected terrorists). The TIPOFF system relies uponother agencies to submit names of suspected terrorists. DOS had further screening requirements fo r aliens of certain nationalities an dthose suspected of being inadmissible on security-related grounds. Some casesrequired a "Security Advisory Opinion" (SAO) based on consultation with otheragencies before a visa may be issued. In many locations, DOS issued the visa on the same day that the application wasmade.

In October 2001, the Department of Justice approached the Department of State todiscuss security enhancements to the visa issuance process. The Department of Justice and DOS agreed upon several new enhancements to the visascreening 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 beon applicants of concern (this waiting period was lifted during the summer of2002) increasing the categories of cases that ar e subject to the SAO requirement (the"Condor" program)

The specific categories of cases fo r whom Condor SAOs are now required is classified.The criteria is based on intelligence information.


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AttachmentA8 U.S.C. 1105. Liaison with internal security officers data exchange

(a) The Commissioner and the Administrator shall have authority to maintain direct andcontinuous liaison with the Directors of the Federal Bureau of Investigation and the CentralIntelligence Agency an d with other internal security officers of the Government for the purposeof obtaining and exchanging information for use in enforcing the provisions of this chapter in theinterest of the internal and border security of the United States. The Commissioner and theAdministrator shall maintain direct and continuous liaison with each other with a view to acoordinated, uniform, and efficient administration of this chapter, and all other immigration andnationality laws.(b)(l) The Attorney General and the Director of the Federal Bureau of Investigation shall providethe Department of State and the Service access to the criminal history record informationcontained 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 Centerthat may be mutually agreed upon by the Attorney General and the agency receiving the access.fo r the purpose of determining whether or not a visa applicant or applicant for admissionhas acriminal history record indexed in any such file.(2) Such access shall be provided by means of extracts of the records fo r placement in theautomated visa lookout or other appropriate database, an d shall be provided without any fee orcharge.(3 ) The Federal Bureau of Investigation shall provide periodic updates of the extracts at intervalsmutually agreed upon with the agency receiving the access. Upon receipt of such updatedextracts, the receiving agency shall make corresponding updates to its database and destroypreviously provided extracts.(4) Access to an extract does not entitle the Department o f State to obtain the full content of thecorresponding automated criminal history record. To obtain the full content of a criminal historyr ecord, the Department of State shall submit the applicant's fingerprints and any appropriatefingerprint processingfe e authorized by law to the Criminal Justice Information Services Division of the FederalBureau of Investigation.(c) The provision of the extracts described in subsection (b) may be reconsidered by the AttorneyGeneral and the receiving agency upon the development an d deployment of a more cost-effectiveand efficient means of sharing the information.


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(d) For purposes of administering this section, the Department of State shall, prior to receivingaccess 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 ofInvestigation, 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 analien 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 individualswho are subjects of such information.


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AttachmentB

Enhanced Border Security and Visa Entry Reform Act of 2002

SEC. 201. INTERIM MEASURES FOR ACCESS TO AND COORDINATION OF LAWENFORCEMENT AND OTHER INFORMATION.

(a) INTERIM DIRECTIVE- Until the plan required by subsection (c) is implemen ted, Federallaw enforcemen t agencies and the intelligence comm unity shall, to the maxim um extentpracticable, share any information with the Department of State and the Immigration andNaturalization Service relevant to the admissibility and deportability of aliens, consistent with theplan described in subsection (c).

(b) REPORT IDENTIFYING LAW ENFORCEMENT AND INTELLIGENCEINFORMATION-(1) IN GENERAL- Not later than 120 days after the date of enactment of this A ct, thePresident shall submit to the appropriate committees of Congress a report identifying Federal lawenforcement and the intelligence community information needed by the Department of State toscreen visa applicants, or by the Immigration and Naturalization Service to screen applicants foradmission to the United States, and to identify those aliens inadmissible or deportable under theImmigration 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 on e year after the date of enactment ofthe USA PATRIOT Act, the President shall develop and implement a plan based on the findingsof the report under subsection (b) that requires Federal law enforcemen t agencies and theintelligence community to provide to the Department of State and the Immigrationand

Naturalization Service all information identified in that report as expeditiously aspracticable.(2) CONSULTATION REQUIREMENT- In the preparation and implementation of theplan under this subsection, the President shall consult with the appropriate committees ofCongress.(3) PROTECTIONS REGARDING INFORMATION AND USES THEREOF- The planunder this subsection shall establish conditions for using the information described in subsection(b) received by the Department of State and Immigration and Naturalization Service


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(A) to limit the redissemination of such information;(B) to ensure that such information is used solely to determine whether to issue a visa toan alien or to determine the admissibility or deportability of an alien to the United States, exceptas 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 an d destruction of obsolete or

erroneous names and information; and(F) in a manner that protects the sources and methods used to acquire intelligenceinformation 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 whoobtains 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 inthe manner described in any of the paragraphs (1) through (7) of section 1030(a) of such title, orattempts to use such information in such manner, shall be subject to the same penalties as areapplicable 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' an d inserting 'one year'.

SEC. 202. INTEROPERABLE LAW ENFORCEMENT AND INTELLIGENCE DATASYSTEM WITH NAME-MATCHING CAPACITY AND TRAINING.(a) INTEROPERABLE LAW ENFORCEMENT AND INTELLIGENCE ELECTRONICDATA SYSTEM-

(1) REQUIREMENT FOR INTEGRATED IMMIGRATION AND NATURALIZATIONDATA SYSTEM- The Immigration and Naturalization Service shall fully integrate al ldatabases and data systems maintained by the Service that process or contain information onaliens. The fully integrated data system shall be an interoperable component of the electronic datasystem described in paragraph (2).


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(2) REQUIREMENT FOR INTEROPERABLE DATA SYSTEM- Upon the date ofcommencement of implementation of the plan required by section 201(c), the President shalldevelop and implement an interoperable electronic data system to provide current and immediateaccess to information in databases of Federal law enforcement agencies and the intelligencecommunity that is relevant to determine whether to issue a visa or to determine the admissibilityor deportability of an alien (also known as the 'Chimera system").

(3) CONSULTATION REQUIREMENT- In the development and implementationof thedata system under this subsection, the President shall consult with the Director of the NationalInstitute of Standards and Technology (NIST) and any such other agency as may be deemedappropriate.

(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) andsubparagraph (B).

(B ) CONFORMING AMENDMENT- Section 403(c) of the USA PATRIOT Act, asamended by section 201(c)(5), is further amended(i) in paragraph (1), by inserting ', including appropriate bio me trie identifierstandards,'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 INFORMATIONIN 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 ordeportability from the United States; and(C) to any Federal law enforcement or intelligence officer determined by regulation tobe responsible for the investigation or identification of aliens.


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(6) LIMITATION ON ACCESS- The President shall, in accordance with applicableFederal laws, establish procedures to restrict access to intelligence information in the data systemunder this subsection, and the databases referred to in paragraph (2), under circumstances inwhich 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 an d improved, based upon experience with the databases an dimprovements 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 variedspellings and varied separation or combinationof name elements, within a particular language;and(ii) incorporate advanced linguistic, mathematical,statistical, an d anthropological

research and methods.(B ) LANGUAGES REQUIRED-

(i) PRIORITY LANGUAGES- Linguistically sensitive algorithms shaU bedeveloped and implemented for no fewer than 4 languages designated as high priorities by theSecretary of State, after consultation with the Attorney General and the Director of CentralIntelligence.

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(ii) IMPLEMENTATION SCHEDULE- Of the 4 linguistically sensitive algorithmsrequired to be developed and implemented under clause (i)(I) the highest priority language algorithms shall be implemented within 18months 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 shalljointly 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 ofaliens 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 Presidentshall 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 ofthis Act, the Director of Central Intelligence shall complete the survey and issue the reportpreviously 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 120days after the date of enactment of this Act, theDirector of Central Intelligence shall issue the guidelines and submit the copy of those guidelinespreviously required by section 309(b) of the Intelligence Authorization Act for Fiscal Year 1998(5 0 U.S.C. 403-3 note).

(6) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriatedsuch 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 USAPATRIOT Act, the President shall establish a Commission on Interoperable Data Sharing (in thissection referred to as the v Comm ission'). 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;

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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 appointedby 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 theSpeaker of the House of Representatives, the Minority Leader of the House of Representatives,the Majority Leader of the Senate, and the M inority Leader of the Senate.

(c) CONSIDERATIONS- The Commission shall consider recommendations regarding thefollowing 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 securitystandards, to protect the integrity and confidentiality of information to prevent the risks ofaccidental or unauthorized loss, access, destruction, use modification, or disclosure of

information.(3) The adequacy of mechanisms to permit the timely correction of errors in datamaintained by the interoperable data system.(4) Other protectio ns against unauthorized use of data to guard against the misuse of the

interoperable data system or the data maintained by the system, including recommendations fo rmodifications to existing law s and regulations to sanction misuse of the system.(d) AUTHORIZATION OF APPR OPR IATION S- 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 INTHE DEVELOPMENT AND IMPLEMENTATION OF THE INTEROPERABLEELECTRONIC DATA SYSTEM ('CHIMERA SYSTEM).

(a) IN GENERAL- Notwithstanding any other provision of law relating to positionclassification or employee pay or performance, the Attorney General may hire and fix thecompensation of necessary scientific, technical, engineering, and other analytical personnel forthe purpose of the development and implementation of the interoperable electronic datasystem described in section 202(a)(2) (also known as the 'Chimera system').

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(b) LIMITATION ON RATE OF PAY- Except as otherwise provided by law, no employeecompensated under subsection (a) may be paid at a rate in excess of the rate payable for aposition at level III of the Executive Schedule.(c) LIMITATION ON TOTAL CALENDAR YEAR PAYMENTS- Total payments toemployees under any system established under this section shall be subject to the limitation onpayments 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 theJudiciary, the Select Committee on Intelligence, and the Committee on Foreign Relations of theSenate and the Committee on Appropriations, the Committee on the Judiciary, the PermanentSelect Committee on Intelligence, and the Committee on International Relations of the House ofRepresentatives an operating plan

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

(2 ) identifying an y provisions of title 5, United States Code, being waived fo r purposes ofthe development and implementation of the Chimera system,(e) TERMINATION DATE- The authority of this section shall terminate upon theimplementation of the Chimera system.

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t5 b41 notes 6-26-03 to 9-2-03 3 of 4 fdr- tab 6- fbi briefing request 3 and 7-31-03 brief- notes

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