Homeland Security memo reveals terrorism records are being sanitized

A memo leaked to Narco News by some brave soul within the U.S. Department of Homeland Security (DHS) offers a revealing insight into the so-called war on terrorism. In short, the memo seems to show that for at least one federal law-enforcement agency, investigating terrorism is not unlike the childhood game of “Duck, Duck, Goose.”

The memo, issued on March 28 by a high-ranking official with DHS’ Immigration and Customs Enforcement agency (ICE), essentially orders supervisors in the field to sanitize terrorism-related case files maintained in a major law-enforcement computer system called TECS. All told, TECS contains about 12,000 terrorism-related “records,” of which about 4,000 have been generated by ICE, according to the memo.

ICE supervisors, per the memo’s instructions, are to "modify or remove all ICE-generated TECS records designated as ‘terrorist.’”

In other words, the memo instructs ICE supervisors to ensure that if they come across a goose in the game of find-the-terrorist, then they should call it a duck.

As a result, based on the memo’s instructions, existing records originated by ICE and deemed to be terror-related are to be purged from the TECS computer system by reclassifying them to make them appear to be unrelated to terrorism. The deadline for completing this 4,000-record sanitizing task is April 11, two weeks from the issue date of the memo. From the memo, which was issued by Marcy Forman, director of the office of investigations for ICE:

... Modifications to each subject record should be made in the status and/or category field that contain “terrorist” to reflect the nature of the underlying investigation. For example, if a subject is suspected of being involved in terrorist financing, the category should be Financial (category FI). If they are suspected of smuggling terrorists, the category should be Human Smuggling/Trafficking (category HS), etc. ... All records must be modified by April 11, 2005.

Forman drafted the ICE memo in response to Homeland Security Presidential Directive/HSPD-6, which authorized the creation of the Terrorism Screening Center (TSC), which is charged with developing and managing a centralized database for tracking terrorist threats. The TSC operates in coordination with the National Counterterrorism Center, which was created as a post-9/11 solution for eliminating duplication and confusion among the various federal agencies charged with protecting national security.

However, the record-modification instructions in the ICE memo seem to exceed even the parameters of the presidential edict. There is no mention of “modifying” existing records in the directive.

“The directive does not alter existing authorities or responsibilities of department and agency heads to carry out operational activities or provide or receive information,” the president’s directive states.

Whitehouse spokeswomen Christie Parell did not return calls from Narco News seeking comment on the ICE memo.

Turf wars

It is also curious, according to law enforcement sources, that the ICE memo was issued on March 28 of this year, some 18 months after the president promulgated his directive in September 2003.

The memo also states that "at present, and until further notice, the procedure for ICE to nominate a subject to a TSDB (Terrorism Screening Database) watch-list is to submit the name to the FBI for nomination, through the FBI Joint Terrorism Task Force structure."

If ICE officials have reason to believe that some of the modified case reports are indeed terror-related, or if they run across terror-related cases in the future, then, according to the memo, those cases are to be submitted to the FBI, which will then decide whether to continue the investigations.

In the process, though, the FBI also gains control of the cases through its Joint Terrorism Task Force operations and gets credit for their outcome, explains one DHS supervisor who asked not to be named.

That likely means more money for the FBI’s budget, but it also means that ICE agents who spent months, maybe years, developing the cases are left out in the cold. And from the dust of this turf battle, according several law enforcement sources, is where the real danger with the memo, and the record cleansing, begin to take root.

That danger, according to both law enforcement sources and civil liberty experts, includes the threat that government-record cleansing poses to freedom of information in a democracy and to the integrity of ongoing criminal investigations or court cases. In addition, the precedent set by such document sanitizing could be used to justify similar action by other government agencies, the sources point out. Finally, they contend, the record modifications could inadvertently lead to a real terrorist threat falling between the cracks.

Mark Conrad, a former supervisory special agent with U.S. Customs, which was merged into ICE with the creation of DHS, put it this way in an e-mail interview with Narco News:

This is a huge issue, as the Agency (ICE) has stated (previously) that they do not “alter” records. It could open up the door to the selective alterations of other records that, upon reflection, might have embarrassing data in them.

I am concerned about the alteration of any official records. Many of these records have been in the system for a period of time. It would be one thing to start today and go forth following Marcy’s (Forman’s) instructions; however, to retroactively go back and alter the records, no matter how noble the purpose, bothers me a great deal. Unfortunately, I have seen documents within the computer system altered on more than one occasion, and in at least two cases, it materially changed the meaning.

In one of those instances, a report was changed from an investigative finding of the accused did not do it and could not have done what he was accused of to a reflection that the accused did what he was accused of.

In the other, records were changed to reflect that a management official was in compliance with policy when the original and correct entries reflected exactly to the contrary. I have copies of these documents that I suspect that the agency would claim never existed.

... I suspect that the reason for the retroactive actions is simply because ICE was not and has not been in compliance with the President’s directive since it was issued on September 16, 2003, and someone (FBI) is asking why?

Just following orders

Russ Knocke, director of the office of public affairs for ICE, puts a very different spin on the memo, however. Following is his take, which he provided to Narco News in a telephone interview:

You're way off on this one. There's a clear Congressional mandate to put this information into a central database (the Terrorism Screening Database, or TSDB). That's what this is part of. There is a Congressional mandate, and we're following through with it. There will be full integration of this information into a master database.

... What your pulling from the memo is just a glimpse of the broader effort to integrate the information into the central database. If there's confusion in the field (among agents), they can always speak with their supervisors and get further clarification. It's a pretty straightforward consolidation effort.

Knocke added the following in a subsequent telephone interview on the topic:

There's also a presidential directive on this, which is made clear in the memo. The other thing in the memo is clarification about how to proceed if an agent believes there is a terrorism-related case. There is a proper procedure for pursuing it, and the memo clarifies how to enter such a case into the (centralized TSDB) system, so that helps ensure there are no false positives, or it at least minimizes the degradation of the information.

(The memo outlines the) mechanism that a terrorism investigation needs to go through ... and eliminates, or decreases, the likelihood of false positives, such as if an agent decides that a case is terrorism-related on a whim and enters it as a terrorism case (in TECS).

Now it all has to be coordinated with the FBI’s Joint Terrorism Task Force, so there's less of a chance of false positives and better integrity (of the information).

... Granted, it is a major change in the way we do business.

Conrad, however, is unconvinced by Knocke’s explanation.

“I can’t think of a single good reason to go back and alter already approved official documents in a government computer system,” he said in a telephone interview. “To me, that is a criminal offense. The thing to do would be to create separate records that supplement prior records and indicate, if it is the case, that the prior records were erroneously classifed.”

Conrad said records from the TECS system often find their way into court proceedings or are used in advancing investigations by other law enforcement agencies. He stressed that “sanitizing” records opens up a can of worms for prosecutors and other government agents who may find themselves in the unenviable position of having built a case on evidence that, from the point of view of a defense attorney, has been tampered with by the government.

Cleaning the laundry

Conrad added that what he suspects is going on is a “CYA move” on the part of officials at ICE to hide the fact that they have remained out of compliance with the presidential directive for 18 months.

“I think the FBI is the impetus behind this,” he suggested. “Some inquiry was made by the FBI, and ICE looked into it and found out they were not in compliance, and they did not want to face the heat from the Bureau, so they are retroactively cleaning their dirty laundry.”

And it is clear that ICE’s parent agency, DHS, has been under pressure to clean its act up with respect to consolidating terrorist watchlist information. The DHS Office of Inspector General (OIG) gave the department a black mark with respect to its effort in that area in a report to Congress last fall.

While DHS asserted that Homeland Security Presidential Directive-6 precludes the department from leading the consolidation effort, the OIG disagrees and believes that DHS has a legal obligation to play a more robust role than at present by overseeing and coordinating watchlist consolidation activities across agency lines.

... Stronger DHS leadership and oversight would also help improve current watchlist consolidation efforts. Although some progress toward streamlining processes and enhanced interagency information sharing has been made, the consolidation is hampered by a number of issues that have not been coordinated effectively among interagency participants. Specifically, in the absence of central leadership and oversight for the watchlist consolidation, planning, budgeting, staffing and requirements-definition continues to be dealt with on an ad hoc basis, posing a risk to successful accomplishment of the goal.

Motive still a mystery

However, it should be noted that there is no clear evidence, at this point, to indicate why ICE ordered that records be “modified” in the TECS system, which is used by multiple law enforcement agencies. One federal agent advances another theory, speculating that ICE officials could well be reacting to the power grab by the FBI -- which is seeking to corner the market in the terror-investigation game.

“If anything in any way sounds remotely related to terrorism in an investigation, they're (ICE) supposed to stop and refer it to the FBI, and the Bureau usually does nothing,” the agent said. “We are withholding information to the detriment of U.S. citizens and all for political reasons. So they’re (ICE) trying to get the word ‘terrorism’ out of the records.”

The agent then raises the concern that ICE might not be the only agency playing the “Duck, Duck, Goose” game.

“Does this mean, the Secret Service, ATF or other agencies are doing the same thing?” the agent asks. “When you modify records, how does that help the country?”  

The turf war between the FBI and other federal law enforcement agencies is nothing new, but it has been ratcheted up several notches in the wake of 9/11. U.S. Sen. Charles Grassley, R-Iowa, drew out that picture in a statement he made before the Senate Judiciary Committee on April 5 as part of a hearing focused on the USA PATRIOT Act.

... Further, I am concerned about the working relationship between the FBI and other law enforcement agencies on terrorists financing investigations. In early 2003, as the Department of Homeland Security (DHS) had just begun operation, Secretary Ridge and Attorney General Ashcroft signed a Memorandum of Agreement (MOA) which terminated Operation Green Quest and transferred lead responsibility and control of all terrorist financing investigations to the FBI. Operation Green Quest began shortly after the 9/11 attacks and was transferred from the Customs Service to Immigration and Customs Enforcement (ICE) when DHS was created. By all accounts, it was a major success, yielding 38 arrests, 26 indictments, and the seizure of $6.8 million in terrorist assets in its first nine months of existence. Yet, the FBI succeeded in killing the program and ensuring that no similar initiative could be started by ICE in the future.

The MOA represented a significant victory for the FBI in the turf battle surrounding the creation of DHS. In theory, the MOA is supposed to preserve “the significant expertise and capabilities of ICE” in terrorist financing investigations. However, I understand that the way this MOA is being implemented and enforced has created a disincentive in the field for ICE agents to focus their efforts on investigations related to terrorist financing. I know of at least one instance, for example, where ICE spent significant resources pursuing an investigation and coordinating with the FBI every step of the way, only to have FBI headquarters use the MOA to step-in at the last minute, demand control of the investigation, and unnecessarily delay a critical wiretap request. This delay may well have prevented the collection of vitally important information related to terrorist financing, and for what purpose? So, that the FBI can protect its turf?

I have also heard that this is not an isolated incident, that there may be other cases involving similar turf problems. Congress needs to take a hard look at this MOA and the way the FBI is enforcing it. Is it necessary to ensure a unified approach to terrorist financing investigations? Or does it simply serve to protect the interest of the FBI in expanding its own jurisdiction? As Chair of the Finance Committee, I am particularly interested in making sure that the elements of the Treasury Department, ICE, and the FBI are all working together smoothly to stop terrorist financing activity, not battling each other for jurisdiction. Therefore, I intend to inquire about some of these cases in the coming weeks. I hope that Attorney General Gonzales and Director Mueller will welcome an honest look at these questions and cooperate fully with requests for information on these issues.

Dangerous precedent

And beyond all the implications the ICE “modification” memo has for law enforcement and national security, there also is the threat it poses to our civil liberties, which is supposedly the very thing we are seeking to defend in the so-called war on terror.

William Weaver, a civil liberties expert and a professor of political science at the University of Texas in El Paso, pointed out that the ICE memo, if left unchallenged, creates a precedent that encourages other government agencies “to engage in this kind of sanitation of the record.”

“If ICE gets away with doing this, you have to believe other agencies will pick it up, because it is so advantageous for these bureaucracies,” he said in a telephone interview.

Weaver, in a separate e-mail interview, summed up his concerns as follows:

This (the memo) is troubling.  ... It directs that files essentially be altered without preservation of previous versions.  It's hard to know from the context, but it appears that the true motivations for opening the affected TECS records will be lost. They will simply dissolve into the background of the new categories they are assigned.  

Any future FOIA (Freedom of Information Act) or discovery request may be rendered ineffective and unfulfilled because relevant records may be difficult or impossible to find.  

As Conrad says, this sort of agency revisionism could lead to anti-embarrassment policies and agency "sanitation engineers" who mask potentially embarrassing or even criminal activity.  

Like shredding was in years past, this is the ultimate device of secrecy since the original document can never be recovered.

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