Dan Marcus

From: Dan.Levin@usdoj.gov
Sent: Friday, July 09, 2004 1 2:24 PM
To: Philip Zeiikow; Chris Kojm; Steve Dunne; Stephanie Kaplan; Dan Marcus
Cc: Dan.Levin@usdoj.gov
Subject: SELECTED JUSTICE DEPARTMENT SUBSTANTIVE COMMENTS ON CHAPTERS 6, 8
AND 10

More to come .

1. Draft Chapter 8 at 10 & endnote 55: As the report notes, Mr. Pickard says the
Attorney General made the statement and the Attorney General denies it. In addition, (a)
Mr. Ayres, who was present at every meeting between the Attorney General and Mr. Pickard,
denies that the Attorney General made any such statement; (b) Mr. Thompson, who was
present at every meeting between the Attorney General and Mr. Pickard, denies that the
Attorney General made any such statement; (c) David Laufman, then Chief of Staff to Deputy
Attorney General Thompson, who was also present at the second briefing where Mr. Pickard
apparently claims that this statement was made, does not recall the Attorney General
making any such statement and, based on his interactions with the Attorney General, thinks
it highly unlikely that he made any such statement. The statements of Mr. Ayres, Mr.
Thompson and Mr. Laufman should be added to the discussion in the text (or comments of all
individuals other than Pickard 's and the Attorney General's should be placed in the
endnote) .

2. Draft Chapter 8 at 10: Mr. Pickard met with the Attorney General on August 2, so
the statement that there were no meetings between the two between July 26 and August 22 is
incorrect. (They also met on August 20 during this period, although that was not one of
the regular briefings.)

3. Draft Chapter 8 at 10: The placement of the discussion about the

Pickard/Ashcrof t briefing is inappropriate. Mr. Pickard apparently claims that the
Attorney General made this statement in their second meeting - on June 28. Yet the
discussion is not placed at that point in the chronology. If it is to be included, it
should be moved to the proper point in the chronology.

4. Also misleading is the statement in the report that when asked whether there was
intelligence about attacks in the United States, "Pickard said he replied that he could
not assure Ashcroft that there would be no attacks in the United States, although the
reports of threats were related to overseas targets." Draft Chapter 8 at 10. While that
may be Pickard 's description of events, other participants stated that Pickard repeatedly
told the Attorney General that they had no evidence of threats in the United States (which
was consistent with the CIA briefings the Attorney General had received) . The Commission
should present this evidence as well.

5. With respect to the criticism of the Attorney General's May 10, 2001 budget
memorandum (Draft Chapter 6 at 35; Draft Chapter 8 at endnote 55) : The statement of goals
in the May 10, 2001, memorandum is word-for-word from Attorney General Reno's strategic
plan for FY 2000-2005. As the May 10, 2001 memorandum explains, "the Justice Department's
Strategic Plan for FY 2000-2005 is the 'blueprint' that will guide the formulation of 2003
component program budget estimates and performance planning." It further explains that
budget requests "should be focused on the objectives outlined below." May 10, 2001
Memorandum at 1. And those objectives are verbatim the strategic goals from Attorney
General Reno's Strategic Plan for FY 2000-2005 (as should be obvious from the title of the
document since Attorney General Ashcroft had no involvement in any budget before FY 2002
and, therefore, could hardly have been the person responsible for preparing the strategic
plan for FY 2000-2005) . While it may be fair to criticize Attorney General Ashcroft for
not changing Attorney General Reno's strategic plan more quickly, it is not fair to do so
without noting that it was Attorney General Reno who promulgated those goals in the first
place.

6. At any point where the May 10 memorandum is discussed (currently chapters 6 and
8), the report should include the following from Attorney General Ashcroft 's May 9, 2001
testimony: "It goes without saying that our number one goal is the prevention of terrorist
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acts." "One of this nation's most fundamental responsibilities is to protect its
citizens, both home and abroad, from terrorist attacks. The Department of Justice has no
higher priority than the protection of its citizens."

7. The discussion of the FY 2003 budget is unfair. The report states that in the
process of preparing the FY 2003 budget, Pickard appealed for more counterterrorism
enhancements and the Attorney General denied this appeal on September 10. See Draft
Chapter 6 at 35. While this same statement was in the staff statement, the staff
statement at least noted that the same proposed FY 2003 budget included enhancements for
the FBI's information technology program. See Staff Statement 9 at 7. In addition, the
following should be noted:

* In September 2001, the FBI was operating under a Clinton/Reno budget in which
Attorney General Reno did not seek full funding of the FBI budget (and counterterrorism)
requests in her submission to OMB and President Clinton sought even less funding than was
proposed by Attorney General Reno.
*

* In eight out of eight years the Clinton Administration did not seek full
funding of the FBI's budget request, and in seven of those eight years Attorney General
Reno did not propose full funding of the FBI's budget request to OMB. The shortfall in
funding for information technology alone over the eight years totaled more than $800
million.
*
* In every one of the eight years, the Clinton/Reno budgets for the FBI included
less in actual dollars (let alone real dollars) for information technology than was
contained in the last budget of the first Bush Administration. The Clinton/Reno FY 2001
budget included $36 million less for information technology than in the last budget of the
first Bush Administration, eight years earlier.
*
* The FY 2003 budget being developed (which would not take effect until October
2002) also included, as of September 10, 2001, a proposed $300 million increase for the
FBI as a whole and a substantial increase for the FBI counterterrorism program over the
last Clinton/Reno budget. While it did not seek full funding of everything FBI had
requested (as noted, eight out of eight Clinton/Reno budgets also did not seek full
funding of everything the FBI had requested), it did include substantial increases and
seek funds for each of the FBI's top priorities, including information technology. The
items not proposed for funding were those the FBI set as the lowest priorities - among the
"counterterrorism" items not proposed for funding were funds for a G-5 executive aircraft
and additional contract security guards for Quantico.

8. Where the FBI's information technology is criticized (see Draft Chapter 3 at 8),
the report should note that the FBI's information technology budget was underfunded by
$800 million versus FBI's requests in the eight years of the Clinton/Reno Justice
Department.

9. The report states: "neither the Gorelick memorandum nor the Reno procedures
governed whether information could be shared between intelligence and criminal agents with
the FBI, a separation that the Bureau did not begin making formally until well after the
procedures were in place." Draft Chapter 8 at endnote 85; see also Draft Chapter 3 at 5.
But Deputy Attorney General Gorelick's memorandum did precisely that. It stated: "All
foreign counterintelligence information (including all foreign counterintelligence
information relating to future terrorist activities) will be in classified reports which
will be provided to OIPR, but will not be provided either to the criminal agents, the
USAO, or the Criminal Division, without Federal Bureau of Investigation Headquarters and
OIPR concurrence." Gorelick Memorandum at 3 (emphasis added).

10. The report states: "A proposal to increase intelligence sharing went to
Ashcroft in March, right after he had received Lamberth's order. The proposal was
tabled." Draft Chapter 6 at endnote 241. There is no citation for this statement and it
is not accurate. A memorandum was prepared by David Kris, but it never reached the
Attorney General (Mr. Kris notes in his submission that there was no record of the
memorandum being sent to Attorney General Ashcroft, see endnote 76). These two sentences
should be omitted. (There was, however, a memorandum containing such a proposal that was
sent to Attorney General Reno in late 2000, which was not acted upon, as Mr. Kris notes in
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his submission, see page 10 (noting that there was apparently consensus for a change and
meetings with Attorney General Reno to discuss it but no final action was taken by her).)
11. Chapter 10, page 3, fourth paragraph: The discussion of the detention program
is misleading. The deterrence benefit was a result of the program. Without in any way
minimizing any acts of abuse, they were a result of individuals violating the rules they
are supposed to be following, not a part of the program. To present the benefits of
deterrence and then note that some detainees were abused seems to suggest that they
balance out in analyzing the program - but one is a benefit of the program, the other is
deplorable but is not appropriately a cost of the detention program (any more than abuse
of inmates in any other setting is a cost of prosecuting people). Moreover, it is
important to keep in mind that there is a clear track record of illegal aliens who are
released on bond pending removal proceedings absconding. For example, a February 2003
Department of Justice Inspector General report found that while 94% of detained aliens are
deported, only 13% of released aliens are deported once their immigration proceedings are
concluded, and that high-risk aliens are particularly likely to abscond.
Thanks.