t5 b42 ziglar materials 6 of 6 fdr- 11-14-03 mfr- james ziglar (pg 22 unredacted 134

8/14/2019 T5 B42 Ziglar Materials 6 of 6 Fdr- 11-14-03 MFR- James Ziglar (Pg 22 Unredacted 134

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Com mission SensitiveM E M O R A N D U M FOR THE RECORDPART I

Event: Interview of James ZiglarINS Com missioner August 6, 2001 - December 6, 2002.

Date: Friday, No vem ber 14, 2003Special Access Issues: [none]Prepared by: MFR prepared by Janice Kephart-Roberts on Nov. 14, 2003Team Number: 5 (Border Security)Location: George Washington La w School, 20 th and G St.sParticipants - Non-Commission: James ZiglarParticipants - C omm ission: Janice Kephart-Roberts, counselSusan Ginsburg, sr. counselDan Marcus, general counselNote: no classification requiredDocuments provided.

1. IN S Briefing to Gov Ridge D ec. 3, 2002. (Later briefed on Ridge, Hutchinson,and others in the White House Situation Room.)2. Review of Regulations, Policies and Procedure Issued since August 2001.(Caveat: ma y not be all regs issued during time period .)Documents requested.Sept. 10 , 2001. Restructuring plan.Sept. 26, 2001. National security initiatives presented to DAG by Ziglar withpower point.Recording: yesNOTES:Background.How did you come a cross your job at INS? The truth is that that process is still a bit of amystery to me, because I had no experience with immigration. My only contact withimmigration was working in the 1960s for a Senator who happened to be chairman of theimmigration subcommittee.However, from best I can tell, they couldn't find anyone experienced who would takejob, but they wanted someone w ith ma nagem ent / restructuring experience, and I 'd hadsome experience, and done Bureau of Reclamation restructuring earlier in my career.


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2. Jumpstarted personnel plan and restructuring plan. I knew that the longer the planlanguished, the harder to do get it done. Part of that was to give ow nership of agencyback to the employees. Learned that at Reclamation; you have to have a bureau to buyinto and build team spirit. Thanks to Doris, a lot of work had been done; she had a goodplan and shame on Congress that they wouldn't listen to her. I drew on that planimmediately. So plan put on AG's desk on Sept 10 . I took the guys out to celebrate.Restructuring program . Given to Hill Nov. 20, 2001 for reprogramming, and essentiallywhat gave AG on Sept. 10 . The program w ent thru NSC, do mestic policy an d homelandsecurity and then a two hour OHS deputies meeting where others signed off with minorchanges. The deputies meeting was early in November. The plan was a split of servicesand enforcement, having some common functions and shared functions of technology,general counsel, an d rejiggering of the 33 districts along state lines (dealing w ithgovernors and locals and do it on business/political lines). Enforcem ent would houseinspectors in restructure plan. We talked to Customs, but Bonner very difficult to workwith. (Mike Garcia doesn' t like Bonner at all).3. Shake every IN S employee hand in DC, and I did that in big group meetings, at theFD L and out at airports. I knew I needed to convince them I wasn't an ogre or that I 'm amoron completely.Counterterrorism (CT) at IN S as a priority.I can' t remember when I first got into CT. I knew there was a NSU for purpose ofantiterrorist area, but don't recall the details. Believe I had met Cad ma n pre Sept. 11 .Don' t know what CT strategy on board at beginning of tenure; had some b riefings thatwere being planned at FBI or CIA pre 9/11.Intel briefings pre 9/11. I was down there at scif on investigations ongoing in re to Bisonor Golden State.UBL pre 9/11 at INS. We all knew who he was, bu t nothing specific I recall. Truth is, Iused Au gust, with AG on vacation A ND congress OU T, press quiet, and I worked nightan d day to get restructuring done, and this was the opportunity to get it done.Senior Policy Papers.

o 9/20/01 from Ziglar to Canadian Am bassador re arming p reclearance officer inCanada. Com me nt: Canadians just don't like guns.o 10/3/01 from Ziglar to AG re "INS em ployee Assignme nts in Support of 9/11Efforts". To support O peration Safe Passage and pay OT to border patrol agents.Comment: purely administrative. 11/8/01 from the AG to al l DOJ dept heads re "Comprehensive Review andReorganization of the D OJ to Meet CT Mission".


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o Goal no. 5: Restructure INS, consistent with President's objective, torestructure INS to separate enforcem ent an d functions, reduce backlogapplication processing an d improve effectiveness and accountability.Strengthen IN S border security and interior enforcem ent. 1/4/02 from Ziglar to Thompson re "INS border security initiatives to increaseborder security". See below.o 9/02 Itr from Ziglar to Bonner. USCS support on special registration ofnonimm igrant aliens. To discuss at another time in re to NSEE RS.1/4/02 border security initiatives. Right after 9/11,1 convened all senior INS policypeople. I said we oughta have a litany of everything we can think of that might beactions gov' t could take to thwart terrorism to increase security. W e used to do this kindof brainstorm on W all Street with new ideas (it made us $ in private sector) so we had abig effort going on, so something like 50 initiatives going on, from ridiculous to sublime,and so we threw it up on a wall, and on Sept. 21 or 26 and then briefed the DAG and hisstaff with our staff. A lot of stuff came out of that which was done. Not classified item.Ziglar did entire briefing. Many of the same initiatives are in 1/4/02 doc. Some of thepriorities for me were: enhance remote video surveillance, having army provide intel atborder posts to analyze intel on ground of people at border, more DOD helicopters,entry/exit, more border patrol on northern border. Some weren't smart or doableMost important from Ziglar 's view to implem ent. Enhanced intel gathering, mak ingmore info available at border, the CCD, that Mary Ryan and I put together. This wholenotion of putting the CCD at secondary, was really jus t an electronic transmission thing,an d wasn' t that hard, so I called up M ary, you and I are testifying tomorrow morning,let's just announce it. So we testified in front of Dorgan's comm ittee, and w e were goingto do it and by January (we testified in Oct/Nov) and all bureaucracy just quit talking anddid it. It was great.CCD only has photos. Wh at about CCD availability at primary? W ould overwhelmprimary in processing time by two or three times. We thus decided we would worktowards eventually mov ing the CC D up to primary. A big part of work at INS was tomake investments in technology from primary and have in front of our inspectors mu ltiscreens. That was a huge undertaking an d thus was down the line in seeking itsimplementation.A great deal of interest was gen erated in this 1/04/02 docum ent. W e added into theseinitiatives $ and timin g estimates on all these prog ram s. I think a part and parcel was thatwhen combined time, $ and priority of "show factor", these became ultimate priorities.Do n't recall what prompted that document, but w e did get a lot of requests for DAG touse at White House.

1. 9/02. Bonner pro forma doc. ???2. 2/22/02, Border Policy Options at Deputy m tg. This is a major vision of bordersof the future, a total interagency restructuring and gap of what envisioned andbudget and FTE to do at moment. Are you familiar with the doc? There are a lot


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of those docs ou t there, and not sure which do c this one is. The relationshipamong Customs, INS and Coast Guard was pretty bad for awhile. Even Jim Loywas out of sorts with Bonner, b/c Bonner was being so difficult. Never seen suchunbridled power grabbing. On about Dec. 10, 2001 ,1 called a peace mtg, withBonner, Loy and myself. Ridge wanted a new border security agency, and I wasconcerned at the pace of the idea and the lack of reality that W hite H ouse de alingwith. We felt the need to present issues, and we were at times concerned withbeing considered disloyal, so I called peace mtg, so the three of us coulddetermine how to integrate our operations much more effectively and make thatpresentation up the chain of comma nd. We w ould have it done by end of year (Iworked all through X ma s on it) for presentation to W H and w e produced thisdocument. Primarily INS and Coast Guard took th e lead. Bonner wouldn't help,sat on it for months, an d finally signed it, but by this time it is spring of 2002 an dthen took over by events. Sesen brenner really delayed us, and even withBonner 's delay, may have gotten the restructuring through if it hadn 't be en forSesenbrenner.I w as working with Flakenrath during this time. I'll never forget one meeting with him.Flakenrath wanted by D ec. 28 some really stupid thing. All my guys at INS were sickan d been w orking hugely long hours. I told Falkenrath, I'm not doing this, my people aresick, your ideas are stupid and we've done everything you've asked. Maybe by Jan 15we can do it, but not this soon. Falkenra th was always w anting things in 24 hours thatrequired a lot of thought. Falkenrath then backed off. A couple of people on the NSCstaff told Z iglar later that that was the right thing to do. I had choice words fo r them fo rnot supporting me with Falkenrath.I comm unicated regularly with Mary Rya n at this time.On this process on mo ving things forward to W H. They usually fell into a black hole.W e did not get feed back, the first feedback would be next meeting where other itemswould be brough t up.Before deputies meetings, we did get to see briefings. Occasionally I'd go in Larry'sstead, with Stuart there too, with litany of subjects and would get involved in collateralissues.Absolutely at beginning of OHS, preconceived notion that only thing could do was tocreate new agency, an d address Rud man , Gilmore comm ission, and all had said thereneeded a new border age ncy, so they started o ff with notion that decision already ma de.Then we g ot into how w e do it, and that's when some of us said not simple and need tothink in context of ma naging better what we have then changing horses at this time . Soall we 'd do is throw 3 or 4 dysfunctional agencies together to one large one. Like whenwe bought Kidde r Peabo dy, it took u s years to fully integrate them, and a very successfulmerger b/c we planned all the integration and succession of leadership, so we wereraising ques tions about that, and Gov. Ridge go t slapped d own hard a t a cabinet m tg togo forward with m erge r, and only one vote for it, and that was G en. Wa lters of Drug


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Czar's off ice . In fact , Aschroft was most articulate in arguing case against it, and hehandled that very well . So that got struck dow n. So issue was how do we fix glaringproblems there. Wh at w e didn' t know, was that W H went down to do i t anyway with itsOHS people . Don't recall date. Feb or March 2002. A ndy Card told Ashcroft sameevening then called Ziglar to tell o f WH decision of DHS. Falkenrath was probably guybehind knew idea behind i t .Bruce Lawler and I were good friends from old days and we 'd discuss things. Falkenrathwas commit t ed to idea and ran over people w ho didn't agree. Lawler a grown up, butothers we ren't . Think Ridge hadn't studied it much. Flakenrath thought it was just turfbattle what Ziglar though t. This was one t ime Ashcrof t , who I didn' t ge t along with well,did l isten o n this note. The AG and I didn' t ge t along well in a philosophical sense, butno t a personal thing, except fo r once, an d that was on me. The only thing w e reallyagreed on was that a quick me rger would increase danger to the Am erican people ratherthan decreasing it by a sloppy, unthoughtful me rger, even though should happen in thefuture.Falkenrath was an arrogant acade mic .9/11.Travel lo g of day. First th ing in m orning, had a scheduled me et ing with MikeAntonovich , who was seeking money for LA for holding o f illegal aliens. Just as hecame in the door , by assistant to ld m e that a small plane had hit the WTC. I worked inshadow of towers for years, and Mike came into off ice to pass pleasantries prior to staffm tg on transfer of custody from LA to INS detent ion, and then a second plane hi t. Thenwe got the staffs together, talked a second, and then I saw the plumes out of Pentagon.A t this point, m tg broke up, Mike took o f f .Immediately my secretary, Wanda, came in and told me the DAG has called and askedfo r you to c o m e to 7 th f loor co mm and center asap. Ziglar said would ge t there asap, an dcalled senior staff together . I didn't have a deputy at time, so I promo ted Becraft to beact ing deputy. Whe n I first got there, the INS had jus t completed an emergency opscenter that could be up in 2 hrs t ime. So we brought up ops center, DM had conce ived o fit, we had a wall of TVs and interactive, and a whole area o f phones, with place fo r otheragencies like Customs, an d close to skif, so we stood that up immediately. I created achain of c o m m a n d , an d prevent departure l ist . W e developed that imme diately. I wentaround roo m and asked what each person did in an em erge ncy . So we did all that. I got acall from Customs, saying Customs w as moving to threat level one. I said good, b/c wejust decided to do the same. This was necessary to do together, b/c at some bo rders w eshare inspectors.Emregency decisions made in mo rning: inspections, border patrol, inve stigations;Authorizing OT; put t ing people on longer shifts; sett ing up criteria for level one search."Hooding an d trunking", "alternative hood an d trunk", "hood trunk an d glove


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compartment". We did the whole sha-bang, including the departure list. IN Spreclearance / inspection: we set out an alert on high level of interest.I then went to DOJ, by driving on sidewalk.W hen I arrived, DOJ co mm and center on 7th floor was pure chaos, a mere staging forsenior people. I got to DO J around 10:30. As soon as I got to DOJ, I was talking to MikeBecraft. The decision tree was showing up as to what we were to do. I realized I neededto determine whether ou r emergency ops on Hill were up and running, as there was abrand new Sergeant at Arms from Sept 6 w/o a clearance, an d hadn't been briefed intoZiglar 's emergency preparedness. I spent a half hour on phone the Chief of Policedirecting things, an d working fine. (Lott answered the phone.)W e got in our little va n, and we drove on grass down the mall and got to "place" aroundnoon an d went to our pod and it was a huge disaster. The comm unications w eren'tworking, and just a mess, so bad that hell I couldn 't even call the INS. Larry Thom psonwas there, (Ashcoft was in the air), and Ayres and Chertoff, a lot of senior people. W estayed maybe tw o hours, when we got all clear went back to the SIOC in late afternoo n.9/11 SIOC Meeting. From about 4 until about 7, we were in SIOC with AG. By then AGback, and we all went in to a conference room, an d Mueller was there, and it wasinteresting time. Some of things being suggested I found offensive: blockades,roundups. That began m y adversarial relationship with the AG . I said we got aconstitution and law and procedure an d only time w orth a damn is in crisis an d DavidAyres was after me from day one after that as disloyal. Larry Thompson and M ikeChertoff after that supported me. Ziglar said why didn't you say something in there.(Philly Inquirer reporter found somebody who said what Ziglar said that day.)While I was there, a discussion of options, no decisions m ade. I felt need to get back toIN S and be in command. I got cut out at t imes. Principals meeting at WH that evening,the AG w ent to W H, I have no idea if there were any discussion of border mea sures orinterior managem ent. The AG knew what we had done on the border. The idea todispatch more fed workers to the agencies in airports was ours. W e had 300 border patrolat airports w/in 3 days. I was very proud of that.Discussion was to do a sweep; a lot of talk came out of David Ayres, an d very hostiletalk, an d maybe just over the top, but I told him we can't m ake decisions like this, we areto invoke rule of law.I saw a line of dem arcation in terms of trust level in me the reafter. La rry and I still havea good relationship. He was badly treated there. The result was : a lot of initiatives werebeing made at AG level everything from S levels on snitches and NSEER S, on O LCopinion on state/locals, we were last to know, an d things would be crammed down on usor care about resources being diverted from us. I'd ask effectiveness an d didn ' t matter.Important policies from Kobach, Ciongoli, and never quite sure where V iet Dinh fi t inthese. I'd have some post IN S discussions with Viet that have been ambiguous. I for a


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long time thou ght he was m y nemesis, but I hope to figure it out. Quite often Staurt wascu t out and he didn't know what was going on .9/11 briefing of Congress . That evening, INS, FBI and CIA were to set to provide to atleast top Hill leadership a classified briefing. The NSC stopped it, and I argued againstnot doing it. I went back to INS at 7. I got a call saying to attend an op en m eeting w ithCongress at a police building, as many as could crowd into room, we didn't tell themanything they didn't know. This was at about 10 pm .Returned to INS, left at about 1 or 2 am, and back at 7 am Sept. 12.Never any serious discussion to shut down the borders, and national com man d staff neverconvened on that of which I'm aware of.While I was out at "place", I was talking to probably Mike Pearson, ha d alreadyidentified M oussa ui as being in custody. By time got there at night, had already ided agood # of hijackers, and by early next m orning, had I-94s matched w ith m anifests fromour databases and had ided the hijackers.Evening of Sept 11, had a classified brief, on what knew from agency and bureau, ourchief intel officer from Cliff Landsman. Then I had a briefing every day and at timestwice a day from CIA . Nobo dy else in those briefings. Primarily, the briefings wasfocused was in the threat matrix fo r that day, an d then focus on a subject for the day, withanalysis of something or other.Contact with White House. Meeting or two with Dick Clarke in few days subsequent to9/11. W hen OH S brought on board, my activity with White House intensified greatly.On Sept. 12, it was clear that FBI in charge of PEN TBO M B investigation, and we neededto help, so we lost 1000 of 2000 investigators assigned to PEN TBO M B, and those folkslost under our chain of comm and. That had difficult implications for our INS work.Detainees information. (Went off the record.)At INS, when arrests first started happening, we created task forces with NSU, generalcounsel, 24/7, they operated across from me physically. W e brought in a senior people tooversee the process, and try to vet every case as they came in, so we could hit the 48hours turn around time (24 to 48 for notices to appear change in regs supported by me).Their job was to get info, vet cases, work with FBI to clear or put in material witness, w edid everything we could to facilitate process to get vetted. W e couldn't control whogetting picked up, but if we were to use imm igration law, we were going to process asap.W e did our dam n level best to do that, and we worked our teams off, 24/7, and I was inthere at 2 am sometimes w orking with our folks. So we'd vet for imm igration violations,and we w ere trying to clarify who an d what they are, if only imm ig violations, w e'd putin normal processing, and if other reasons for holding, we'll turn them on that side. W asa CYA, but it has to do with fairness and due process. During 48 hr period trying to work


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with FBI. The FBI w as not very forthcoming with info we needed in a timely matter. Icom plained to bureau mightily about it. I called M ueller and got return call fromPickard, the deputy. And also to AG staff. No one recalls the phone calls. I was as madas I could be on that day. Told them I would start release people if didn't share infobetter. I didn't release anyone b/c info got a bit better afterwards.S visas. I learned about S visa when AG had press conference.No bond memo. I don't recall being asked about the blanket no bond memo from FBI,covering their ability not to process timely.AG and Ayres were running the FBI for about 2 months, totally m icromanaged. I feltsorry for Mueller.Viet and I got over it over provision that do n't n eed ( ), and tried to get way w rit ofhaebus corpus. All this classified information, either disclose or drop it. It was a onepage mem o that made front office as mad as hell. If you say you'll disclose classifiedinfo, I'll sign it. Section 241 Patriot Act.The Patriot Act, in terms of tap and trace, was probably necessary. Th e tone of the DOJpost Sept 11 is biggest problem, not the substance, and I've told the AG that. W e need tohave a different face in way we do things.Automatic stay provision was not new news.When 200 detainees discovered didn't know about, there was a come to Jesus meetingwith me, and that's when # of detainees stopped being disclosed by DOJ.Gov't transparency is something I believe in. If we are embarrassed about it , probablyshouldn't be doing it.IN S manager of detention process managed detainee program. Mike Pearson ultimatelyin charge. Pearson would sign off on release.W hite House only interested in bits and pieces. I briefed VP at one time on large groupof issues at one time, don't recall when or exact contents of brief.Perceived AG need to get bad guys and disrupt bad guys and we m oved into areas w heremost likely to be found, and used immigration as only vehicle to get bad guys, and thensome of these people hadn't even been interviewed for a month or two. A couple ofSenator friends called about th eir detainee friends, so I intervened a couple of times onbehalf of a couple of mem bers. I didn't do for politics (dem senators) bu t when I gotfacts of case, clear FBI playing games. A lot of people took voluntary removal.W hy I l e f t th e INS. Atta and Al-Shehi I-20s. There adjustment ha d been done in 2001,and sent to each of them during the summer 2001. The private Kor that entered info


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provided that you 'd send forms to them, they'd enter info, the recipient, the y'd get copyof approval in summers of 2001, They were supposed to give to school. The Kor holdsthat form 6 mos and then sends to school for perm anent file copy to school. Interestingly,in Oct/Nov, I found about the 6 mo lag. W e had already negotiated change, and this Korjust took off shelf and put in new K.The W H, AG and Hill all knew the truth.I was watching TV, and saw AG and he was asked whether he'd ask for m y resignation.He knew the truth, but didn't back me up . That night wrote m y Press Release, an d wroteletter to President and AG . I wanted to talk to him personally. AG called m e late thatafternoon. I want to look yo u in the face when I resign. W e had a nasty conversation. Itold him about loyalty and he asked me not to resign an d wanted to talk to the WH. Ididn't release th e letter. I talked to the W H, they didn' t want m e to do it. At that point, Isaid okay I 'l l stay, and I looked for my exit strategy. W hen An dy Card called me in Junere DHS, that was my exit strategy. I spoke to Clay Johnson an d told him I was resigningbefore the end of the year an d would tie to end of DHS creation so little disruption. InAugust , go t wind that W H replacing me. So I called Clay an d said we had an agreementthat this would be kept quiet. By m id August, I announced. I left one week after signingof Hom eland Security bill . Loyalty was one way street for them, and I took m y way.No regret about staying. The day I left, they started doing nasty stuff to the INSem ployees, and I 'm glad I stayed and kept my foot in the door to keep them from doing itsooner. I don ' t regret staying for as long as I did a m inute.


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1 1QUESTIONS FOR JAMES ZIGLARNov. 14 , 2003Com mission on Sept. 11

Background. Previous experience how did you come by your jo b at INS ? what were you told your job would entail ? what were th e high priorities at the time you became Commissioner? Who did Commissioner answer to on a day to day basis? When began, what was the priority assigned CT at INS? Did you get a sense ofits priority at DOJ? At the White House? Was there a CT strategy in place whenyou came on board? Did you receive any briefings pre-9/11 indicating that UBL was threatening th eUS, and m uch chatter was in the air?

Senior policy papers.o 9/20/01 from Ziglar to Canadian Ambassador re arming preclearance officer inCanada.o 10/3/01 from Ziglar to AG re "INS emp loyee Assignm ents in Support of 9/11Efforts". To support Operation Safe Passage and pay OT to border patrol agents. 11/8/01 from the AG to all DOJ dept heads re "Comprehensive Review andReorganization of the DO J to Meet CT Mission".o Goal no. 5: Restructure INS, consistent with President's objective, torestructure INS to separate enforcement and functions, reduce backlogapplication processing and improve effectiveness and accountability.Strengthen INS border security and interior enforcement. 1/4/02 from Ziglar to Thompson re "INS border security initiatives to increaseborder security"o Who wrote this? How was it received? What were you able to getimplemented?o 9/02 Itr from Ziglar to Bonner. USCS support on special registration ofnonimmigrant aliens.

9/11. 5 Ws for the day and immediately thereafter generally, at deputies meetings, who in attendance, what discussed, and whatoutcomes what work with office of homeland security v the nsc

what intel receiving and from whomRelationship with the Wh ite H ouse:

Who work with? What issues?


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W ork with Dick Clarke. W hat issues? W hen? W hat taskings? How did yourespond to the taskings? W hat involvement w ith the CSGs? How did you receive PDDs? ( 9 , 3 9 , 6 2 )

Relationship with DOJ: Their priorities? Describe relationship? INS W eeklies. Please describe them. What DOJhelped accomplish. What you wanted to do that DOJ discouraged.


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Responses to 9-11Proposals to stop entrance of aliens from certain countries Did he participate in meetings where Justice officials suggested issuing aPresidential Proclamation preventing the entry of aliens from certain countries?If so, when, who, what? What o ther proposals o f a drastic nature does he recall being suggested in theimmediate aftermath of 9-11?9-11 Detainees What is you r view of the value to our counterterrorism efforts from thesedetentions?

To your know ledge, were any of the 762 held on immigration violations evercharged with terrorism-related charges? According to the Justice OIG, the AG instructed that aliens encountered duringthe investigation who had violated the law should be charged with the appropriateviolations. W as this com mu nicated to you by the AG o r DAG, and if so, how andwhen? Pearson says Z iglar told him hold until cleared. Did he? If so, when an d why?

The OIG says an "INS custody list" was created for aliens "of interest" to the FBI,and that being placed on this list ha d "significant ramifications for the detainee'splace and length of detention." What do you know about the creation of this list,and any policy direction provided to INS officials as to its use? Did you have an y involvement w ith the SIOC W orking Group or the FBI "INSDetainee Unit" both run out of the FBI 's SIOC in the immediate aftermath of 9-11 ? If so, what w as your k now ledge of their role? Were you concerned about delays in obtaining FBI clearances for the detainees?If so, who did you co ntact? According to the OIG report, you said yo u should have gone around the "chain ofcomm and" to the AG and DA G. Is that how you feel now? And why didn't youif you w ere truly concerned about these delays in clearances? Did you ever put your concerns in writing fo r Director M ueller, DAG Thompson,or AG Ashcroft? If not, why not?

Abscon der Initiatives In a memo to the AG, you laid o ut significant problem s with this program. Whatis your view o f the effectiveness of this program, or indeed, any prog ram usingstate and local law enfo rcement to enfo rce imm igration laws?Voluntary Interview Project What w as your role in the development and implementation o f this program? According to the GA O, there ha s been no effort to determine the value from thisprogram. What is your view of its value?NS EERS What w as your role in the development of this program?


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What is your view of its effectiveness?

N O T T O D A Y . . . For subsequent meetingRelations with the CT Coordinator, later th e NSU:

what briefed on?o Special interest cases. Ever associates of UBL? Related to well knowterrorist incidents such as W TC I, Sheik Rahman landmark case, Africabomb ings, Saudi barracks bombing? Ever request a strategy? Ever see or hear from Mike Pearson on the strategy thatCadman provided to him in 1998? JTTFs. What did you see, if any, of the value to the INS of INS agents beingdetailed to the JTTFs? CIA. What value to the INS of INS agents being detailed to the CIA?

Information avenues and intelligence. Did you receive regular intelligence briefings?o How often?

o What was included?o What was your knowledge of Islamic fundamentalism an d UBL?o Who from within th e INS? Intel. Unit (George Regan, Cliff Landsman).

What type of information? How often briefed? Regular briefings? Ever requestregular briefings? Ever hear of terrorist organizations using alien smuggling?Did you ever ask intel unit to look into nexus b/w aliensmuggling an d terrorists?

NSU : how did it come about? Lookout Unit Counsel's Office on special interest cases The field JTTF detailees or CIA detailees Headquarters Watch/Operations Center.

Please explain the roles of each of these un its within the INS.o Who did you receive intelligence from outside the INS?o DOJ DA G or J im Reynolds Office

o FBIo CIA. What were the briefing an d what did they consist of? NSC or Dick Clarke Ever an y meetings at NSC or with Dick Clarke ? requests fo rassistance?


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15 Ever an y meetings with Freeh or Mueller or other FBI personsrequesting assistance? The CIA?Was the DOJ, FBI, CIA, White House supportive of INS in CT?

o Did you ever seek more intelligence? How did you view your relationship withthe intelligence community?o At what point did you become aware of the activities of terrorists in the U S?Islamic fundamentalist terrorists?

Response to intelligence/information received.o What was your view of the INS role in national security issues?

Role of CT events on INS policy an d priorities.o W ere you aware of UB L as a threat? Did anyone ever discuss with you UB L as athreat? That the INS had a role to play on the borders and in internal enforcementb/c of INS exclusive Title 8 authority?o W ere you aware of PDD-39 requiring INS to exclude terrorists? What was yourresponse to that requireme nt? W hat about PDD-62? Show documents.

Programs.Student tracking.Entry / exit.Counterterrorism.Describe the INS role in CT.o W hat role, if any, did you see for the INS in counterterrorism?o Whose responsibility was CT, from your vantage point?Recall ever mee ting with Dan Molario, NYC INS District Director, to discuss CT.Enforcement.9/11. Could the INS have helped prevented 9/1 1? Yes. The terrorist knew that ourborder security was our soft underb elly, and wholly exploited it. INS bears responsibilityfor their entry.Relations with Congress.

Their priorities Whopaid attention to Helpful/unhelpful.

Relations with th e private sector.


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Airline industry Colleges/universities Border comm unities

DHS organization on border security.Post 9/11 , DOJ stated as a goal bifurcation of INS into its service and enforcem entmissions. Did you agree with dividing the agency?How w ould you grade the set up currently at DHS, with services reporting directly to theSecretary, and interior and border enfo rcem ent separate but under a border securitypolicy shop reporting to Undersecretary Hutchinson? And what about the combining ofCustoms an d INS? Adding air marshals back into ICE? What about Visa Enforce men toverseas? Expan ding the virtual borders to more preclearance/preinspection sites? Wh atabout adding biom etrics into al l benefits adjudications so that the visa process (for thoserequiring a visa), and then entry/exit informa tion is just the beginning of alien tracking?


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Commission SensitiveMEMORANDUM FO R THE RECORDPART II

Event: Interview of James ZiglarCommissioner INSAugust 6,2001 - December 6, 2002.

Date: Monday, November 24, 2003Special Access Issues: [none]Prepared by: M FR prepared by Janice Kephart-Roberts on Nov. 24, 2003Team Number: 5 (Border Security)Location: George Washington Law School, 20 l and G St.sParticipants - Non-Comm ission: James ZiglarParticipants - Commission: Janice Kephart-Roberts, counselSusan Ginsburg, sr. counselNote: no classification requiredDocuments provided.

1. NSEERS Summ ary as of 10/15/2002 2400 (report date 10/17/2002);2. Attorney General's Rem arks: Implementation of NSEERS N iagara Falls, NY .

(Nov. 7, 2002).3. The United States Entry Exit Program : W hite Paper (Entry Exit Program Team)

(11/15/2002).4. Protecting America's Homeland-Rebuilding the INS for a Secure Future,,

including chart "Actions IN S Needs to Take to Meet M ission Challenges" (late2002)

5. INS Restructuring Proposal (11/14/01).6. Border Management IN S Proposal fo r Controlling the Border (undated)7. INS Request fo r Military Support (undated)8. INS' Border Management Proposals for Controlling the Border (Sept.24, 2001)9. IN S Inspections: Regulate the Border At the Ports of Entry (undated)10. US Border Patrol: Northern Border Strategy and Operations (undated)11. Briefing for AG Ashcroft re Restructuring (Nov. 22, 2002)


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Documents requested, noneRecording: noNOTES: Today's interview focuses on the use of immigration laws to target terroristsin th e post 9/11 context.Threat Level One. What that meant for the people in the field was: requires aninspection of every vehicle, to do hooding, trunking, glove compartment and otherwisevisual of vehicle an d more detailed of who is in the car. Only really applicable to landPOEs, without a whole lot more at airports, since everyone at airports gets cleared.Changes from random, to everyone checked. We are still at threat level one today,although we have backed off of "everyone" and returned to random checks withrespective to particular car, but not to procedure used.Prevent Departure Unit. W e have authority to stop people from leaving if need be. Needto be on list to implement. What we created was - anyone we had suspicion about- werefolks put on list and list given to airlines. These aliens could've been in a lookout,referred by CIA or FBI as people suspected of terrorist nexus, or had under investigationor surveillance and compiled by us and updated regularly an d sent electronically toairlines an d POEs. I only dealt with Pearson on it, but Intel probably put it together. Ithink this was part of actions taken at command center in morning. It went on for quite awhile. No idea of numbe rs of names on that list.The activity of 9/11 was INS Command Center organization, then I went to the AGCommand Center where we gathered to go to| |and then the FBI SIOC in lateafternoon to evening, about 4-7 pm .At the AG Command Center, everyone was getting together to leave fon IEveryone was d oing their own thing as it related to their, own operation/ I was one of lastpeople to get to the SIOC. \No substantive discussions at offsite in | | We had a few little gatherings, butnot onanything other than current activity. Everyone was so frustrated with 0ps in | jthatwas a bit of a preoccupation. \ jFBI SIOC m eeting on 9/11, about 4-7 pm. Meeting run by A G ostensibly,, but the guywho seemed to be driving the ship was David Ayres. Agenda for that;A G meetings was:where do we go from here. A t this point, prevention w as key , No one knew whetheranother shoe was going to fall. That was the theme of the day. Im petus .of the day was tostop an y further attacks. There was a lot of talk about what FBI knew afid didn't know.Then people start identifying proposals to prevent th e next incident. 1 put on the table th edeployment of 300 Border Patrol to help at POEs. The AG w anted each agency to ponyup extra bodies to be at POEs, like Marshal Service. Another idea was limiting baggageon airlines. \/

9/11 Closed by Statute


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19The idea that sticks out in my m ind was m oving into Arab com mu nities and doingsweeps. This was a moment of national hy steria, so there was a lot of discussion aboutprevention w /o other considerations. But when I heard business about sweeps, that'swhen I spoke up and said not appropriate. I delivered a bit of a lecture to Ayres. He wasthe one I directed m y comments to. I probably talked dow n to him a bit, b/c he's not alawyer, he's a campaign m anager. I know I annoyed him. It ended th e topic in front ofm e.Sept 2001 IN S propo sals on preve ntion. This document represents everythingconceivab le, jus t ideas. Include s ideas about consular offices granting visas beingdesignated as an im migration function.Detainees. That evolved with FB I having a list of people they had under surveillance o runder investigation for potential terrorist connections. That list or inform ation providedthe basis for the early joint effort by FBI and INS. There was a proposal to have INSagents to lead team s and FBI lead teams. I wasn't prepared to have INS do this when wedidn't hav e information on immigration violations. Made deal that if evidence ofimmigration violations evolve during th e course of an interview, then we'd step in and gofrom there. I don ' t have recollection of specifics, but the FBI did take 1A my investigatorswin first 24 hours, leaving me about 1,000 for all our interior enforcem ent duties.The AG made ve ry clear at that SIOC mee ting that FBI was in charge of the 9/11investigation and that everyone else was responsible for providing the FBI whatever theyneeded. W e were all responding to that command. Our people were also in SIOC an dproviding intel and helping the FBI m erge it and do analysis, essentially de facto FBIagents post 9/11.Most of our agents are cleared. Our problem is that BP agents don ' t have clearances.There were times we needed to share info with BP and couldn't ge t info to them. Mostinspectors, as I recall, don ' t have clearances either.The joint unit I created: GC and NSU and whoever else they needed an d some sort ofsenior person to oversee a shift, with a senior person to oversee shifts, l ike Ken Elwoodfrom Philly. W e anticipated that this was going to be me ssy to get it done . W e had to getinfo to FBI; had to mak e imm igration determination in 48 hrs with a "reasonable periodthereafter" so that weekends/holidays could be accomodated; not intended for a blanketextension on detention. Beau C ooper or Dia Carpenter can verify this information. Thefederal criminal standard had been using 24 hrs. I knew that 24 hrs couldn't be met , an dwould only further put us in the hole b/c we couldn 't realistically process that fast, whichincluded ma king terrorism determination, ma king charging docs, and mak ing bondrecommendation. Lack of information from FBI was our big failure. In some cases FBIfailed to conduct initial interviews for weeks and w eeks. We co uldn't release w/o an FBIclearance.Pearson memo. That was b/c FBI had to clear everyone before release; that order I don ' trememb er how I received. All the decisions were centralized in W ashington. I don 't


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20think FBI assigned enough people to process, they were really stretched. I don't attributeany mal intent, but I wasn't there. There w as also a TIP line; Ziglar was getting a lot ofcalls himself from old friends.D ay to day oversight o n detainee processing. I sought three things: (1) a report for AGone pager, with num bers on: how many detained; how many questioned; how manydetained an d quest ioned, how many released. This on e pager went on until close when Ileft the INS in Dec 2002; (2) daily operation summary, that sometimes would refer todetainees or detention activity an d other information on that area, an d "daily operationssummary" for ex "in west region, p-u 12 illegals in a truck; (3) daily listing by name,country of origin, where an d when picked up, where housed, an d very thick, believe thecharges were on there. These daily reports came out of D&R and the investigationscrowd, both reporting to Mr. Pearson. I'd receive them an d look at them; but notpersonally hold meetings on these, unless an issue arose. Not a lot subject to discussion.I'd pull up ones where detention particularly long, or if I had a particularly sensitive case.The extra 200 detainees. When I found out NY not reporting everything- I first got windof this when -1remem ber getting #s, and I got some info, and #s didn't add up, and Iasked why, an d found out NY was classifying them differently, an d thus not tallyingthem. IN S District Directors, Molario (asst fo r investigations) and MacAvoy -werealways fighting an d were playing w ith the numbers. Pearson an d whole crowd didn'tknow about it until one afternoon, a Friday, and I had Becraft and company set up aphone con ference on a Saturday morning to straighten out what had happened. That'swhen we stopped reporting the numbers. I wasn ' t there fo r this meeting. Becraft an dPearson ran the me eting. I decided that the NY failure was to report to Pearson andcareer people. Only explanation was that they d idn't understand th e classificationsystem. The numbe rs were straightened out after that.W e had mee tings all the time on the detainees. I was always up set with the FBI, andalways getting continuances from judges, and that's why I raised hell. I talked to D OJ allthe time about it: Chertoff and A yres and Israelite, Viet, and I 'd mention in front ofpeople as an issue that would bite us in the butt wit the way it was being run, an d that 'swhen I called Mueller and Ayres, and then I called Israelite when Ay res wasn 't aroundb/c putting FBI was putting INS in a bad position. And I said, I would le t people out ifwe d idn't start receiving information from the FBI in a timely manner and start movingon these cases. I never w rote a memo on this issue as I recall, too frantic a pace. I think Iwould've had to release in defiance of AG's order: never had to learn whether I couldhave actually released anyway, since all my authority cam e via the AG .Patriot Act from 48 hrs to 7 days. These are for National S ecurity Determinations only.Issue over suspending the writ. Never been used to my knowledge. This is an AGdecision about an individual, an d once a determination, ca n detain for 6 months, an d thenmust be reviewed until (1) no longer a threat, (2 ) removed, or (3) charged. This statute,only once tried to use when I was there, they had to have concurrence from me, needed arecommendation from me, and my recomm endation was, there was classified info on thisperso n: I said if you d eclare a national security threat, he 's gon g to file a habeas corpu s,


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21an d then AG will have to disclose classified info to the court (not clear w hether tocounsel), and if we can't, then lose the case and release the guy. So I said go for it, butunderstand above. I never heard from the AG again on the case.I 'm of two minds on this issue o f classified evidence available to the defense. On the oneside, I wrote a law review note 30 years ago, that right of con frontation, that you shouldbe able to confront evidence against you. But where in middle of national security stuff,but that classified evidence needs to stay classified, so very difficult problem. ThePresident in his cam paign was against its use. I 've considered that m aybe a three judg epanel instead of one to make the national security determination. Granting gov't the rightto say "just trust us", is a n onstarter with m e.Creppy m e m o . I expressed m y view that indiscriminate closed hearings that would givethe perception that DO J up to no good.Special interest case sall became so after 9/11.N o a p p a r en t value in d e t a ine e pr o c e ss; although there's no em pirical evidence washelpful, or the deterrent effect it m ay have had. The AG will sa y that nothing ha shappened since is evidence that we were effective.This was the only available strategy they had unless they had evidence and probab lecharge other than im m igration status.I wouldn't have done immigration violations on a nationality basis.In the context on tim e, with hysteria, the strategy of AG went from detection andprosecution to prevention and disruption, that decision m ade b/c of attacks. W e'll neverknow whether we find out whether disruptions actually happened. In long term , willprobably show m ore disruptive than beneficial, b/c we've created paranoia in thesecommunities , an d affected our relations with other countries, such as Pakistan OR m ay bebeneficial in long run, b/c has highlighted vulnerabilities in lack of good intel, goodcommuni ty policing we d idn't have pre 9/11. To help prevent again, I 'd be buildingbetter intel and spending m oney and enhance m oney on that instead of processes, atphysical border that won 't do a lot on hard borders.I don't think US VISIT will solve terrorism . It will substantially enhance US to enforceimmigration laws an d overstays (about 40% of illegals are overstays), and discouragingthose trying to get through undetected, but not a terrorism tool. Biom etrics will help ifhave intel to m atch up. Entry /exit was not originally about terrorism , it was aboutoverstays in 1996. Tryin g to reconfigu re PO Es, as opposed to a border security initiative,is really what entry /exit is all about.International w o r k . Talk to C anadians all the tim e: Australian, Canadian and M exicanImmigration Service. There's some resentment to heavy handed reaction to them since9/11. They are not as concerned about it as we are, but don ' t like high hand edness. They


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22are absolutely terrified that the next attack could be from their borders. 82% of Canadianexports com e to US; 90% of Mexican. We send 25% to Canada and 15% to Mexico.Anything we did that would seriously lim it trade would have a huge im pact on theireconomies; fear of FOR TRE SS A ME RCIA if we experience another attack. Thecorruption problem in Mexico: they are addressing a little; they have an FBI/CIA com bo,an d doing pretty well m anaging corruption. I think that has proven well. In Mexico C itywe have a highly classified good relationship. At working level, so corrupt.Volunteer Interview Program. The nam es on the voluntary interview process cam efrom the FTTTF. Steve McG raw, m y recollection was that the list of 5000, that list gotcom piled by FTTTF, com piled by FBI, but came out of INS records, and it was com piledbased on national origin. (Com m ission has Thompson m em os on how the interviewswould be conducted.) As to relation to CT, our people went out with them . It was seenas legitim ate law enforcem ent technique w here terrorists could potentially would behiding . The real reason was to recruit operatives. That m eant that if found ou timmigrat ion violations, investigators would be act upon them. I didn ' t get into that levelof operation; that was a FBI issue. Nothing says our agents have to deport; that is up toou r discretion. LESC is helpful in helping state and locals, and decide whe ther or not topick up, and depends on resources we have available, so discretion used every day.Alien Absconder Initiative. I actually started that program . When I got there, som etimeafter 9/11, there w ere 314K people out on bond who failed to show up for final order ofdeportation (in regs, constructive notice didn't count, had to have actual notice), andactual notice without change of status, then afoul of fed crim laws. I said this wasunacceptable to have such defiance of US laws. Announced in front of House JudiciaryCmte and luncheon speech at Cham ber of Com m erce. Idea was to go through files atLESC and determine who'd received notice and who hadn't and who dead or gone. Theoldest first orders would go. All paper files, so long process in culling through them .The names would go into NCIC . No activity to affirmatively find them . This was theinitial cut. This was not about terrorism at all, but imm igration enforcem ent.I was sitting with the AG, Levy, A yres waiting to talk to Ridge in Roosevelt Room and Itold the AG about the initiative. The AG was very happy about it. One or two w eekslater I announced it. It wasn' t anytime before it got hijacked by Kobach, and then I wasworking at direction of AG's office. He saw it as an opportunity to turn it into a terroristthing. So then w as to sort via terrorist sponsor states, and then see is if these peop le havecriminal backgrounds. The truth was that m ost of these had been rem oved. Then becam ethe absconder apprehension initiative: terrorist connection, then criminal, and got downto 5,000. As they vetted these cases, then files were sent to field for FBI, US Attorneysalong with the INS (b/c federal crim inal issue) it was driven through the US Attorneysoffices. Locals also worked these via the JTTFs and locals can participate in enforcem entof fe d crim statutes, as well as im m igration m atter . It is the administrative, noncriminalpart of the INA that they don' t have authority to enforce unless there 's an MOU , althoughnow AG has an und isclosed opinion saying that locals/state can enforce civil andcriminal immigration laws. I don ' t know if AG changed the constructive notice portionof initiatve; that was done close to time I left. I had no objection to changing the reg:


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23your failure to follow the law should not be a defense, so I had no problem with changingthe reg; I initially w as just fol lowing the reg as written. The Absconder Init iative was notan effective CT mea sure necessar i ly because th e singling out meant perception of fairnessthat w as damaging. I doubt whether any terrorists were found. W e knew more aboutthese b/c had been through th e process, so why spend extra money to single one groupout.NSEERS. Kobach behind this too, to resurrect to the alien registration act of 1940s, alaw still on the books. There was a proposal Kobach pu t together to register state sponsorcitizens, and got attention of WH. It w as a stand alone unconnected with Entry/Exit.W H di d huge pushback, OHS and DPC . D iana Schacht w as primary im migrat ion personat D PC . A t OHS, w as Poncho Kenney and Flakenrath, Bruce Lawler . Kobach wanted todo this, and went back to drawing board, and decided to marry registration with entry/exitand use NSEERS as the first phase of entry /exit. Now putting these pe ople in secondary,with std set of interviews, and documen ts carrying go t add'l scrutiny. National SecurityEntry/Exit Registration System. Didn't change th e content of it, just gave i t new PR.Seems l ike DO T would sneak things under the cover without full vetting of WH. I didn'tthink regiratration would be very effective, i f at al l . I thought very expensive, resourceintensive, and not going to yield much if anything, that it would be disruptive of ourrelations with other countries l ike Pakistan and Jordan. It is all about effectiveness withm e, after rule of law . I saw a mone y and time sink w ithout tangible results. I w as fairlyvocal internally.Kobach w a s a W H fellow that wormed his way into A G's office. Very ambitious. Hopewith US VISIT they aren' t m aking tw o print investment, b/c creates dislocation b/wIAFIS and IDENT system. I'm on board of company that does electronic te n prints, somaybe I shouldn't comment. They've said 11 potential terrorist connections viaNSEERS . How ma ny detected through IBIS v. a print match. I f they found throughprints, then biom etric ma tters, on a r isk ma nagem ent system, but I thin th e hits werereally iBIS hits that POEs w ould've found without NSEERS in place. Kobach took overNSEERS process; he mislead the Hill and the AG about the effectiveness of NSEERS;would 've found these people via IBIS anyway.Call-in registration happened after I left. Would be a mess, and bad pol icy, and we gotnothing out of it. Kobach w as driving this train as well .A lot of things WH raised a lot of questions about. The state and local law en forcem entopinion from th e Office Lega l Counsel. In 287(g) IIRIRIA, state a nd local may assist inenforcement of single immigation laws pursuant to state agency /INS M O U . Legislativehistory indicates that Congress w as creating an exception to the preemption doctrine, w eare prepared to have state and local help us do our laws as long as under ou r guidance.There had been several incidences of MOUs, Utah etc. but local pressure said no. After9/11, A G revisited th e '96 opinion which had been rendered in '89 that state/local la wenforcement that couldn't enforce civil immigration laws. In any event, '96 and '89opinion revisited. In Nov. 2001, OLC confi rmed the '96 opinion, and told to go back anddo again. In March, opinion said state/local could implement immigration laws. Don'tknow how got to conclusion with immigration being a fed issue when immigration has


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been traditionally the plenary power of Congress. I told folks that even if good law, notnecessarily a good policy. Rem emb er the AZ C handler incident. W hat I learned in theend was that the front office didn't tell the WH about this. I asked A yres whether he hadvetted the opinion with WH; told we'll deal with that. I found out on a Friday afternoonthat initiative w as going to be released without vetting to the WH. I called Chris Henney,close to Rove. H e wasn't in, and I left a message fo r him, and I was on my way home.The next day it leaked that this wa s on the offing, and then too late for me to give headsup. I had staled b/c I didn 't want to be disloyal. There is a FL M OU . I understand thatsubliminal messages are sent that state/locals can do this. The AG has never released thisopinion. Ziglar has read it and says it has a large breadth. Terrorism is excuse for a lot ofactivities. Pending statute req uest on this has refusing money to state and locals if refuseto help. Probably will not pass.(Story off the record re the NSEE RS/state and local press conferen ce held by the AG.)Only conversations with Dick C larke was over the FTTTF, b/c we housed them atbeginning, another fusion intel, and made skif available.56 SES slots. W e had largest ratio. I didn't get anymore, and number was taken down to42 by t ime I left. Front office was squeezing me to death.Had to have accoun tability, career tracks for those other than 1811s, and neede d goodintel, and sam e level of legal advice, and shared services.