Justice Department: Better Management Oversight and Internal Controls Needed to Ensure Accuracy of Terrorism-Related Statistics
Released: 2003-02-19T00:00:00

Letter

Scope and Methodology

To address our objectives, among other things, we interviewed DOJ’s Criminal Division, Justice Management Division, FBI, and EOUSA officials; reviewed FBI’s and EOUSA’s policies and guidance for classifying cases; researched terrorism definitions in the United States Code and Code of Federal Regulations; compared FBI and EOUSA conviction data for fiscal years 1997 through 2002; and reviewed conviction data included in DOJ’s Fiscal Years 2000 and 2001 Performance Reports and similar data the 94 USAO districts had reported to EOUSA for fiscal year 2002.

Additionally, to determine whether documentation supported the FBI’s classification of certain cases as terrorism-related, we reviewed information in the FBI case files for 28 convictions. This included all 19 convictions that the FBI had classified as terrorism-related for fiscal years 1999 and 2000 in three FBI field offices (Baltimore, Dallas, and Washington, D.C.). Additionally, concerning the 18 USAO terrorism- related convictions investigated by the FBI that were covered by the scope of the Philadelphia Inquirer article, as requested by your staff, we reviewed documentation in the FBI case files for all 9 convictions that were classified by the FBI as terrorism-related. We did not review investigative files for the remaining 9 convictions that were not classified by the FBI as terrorism-related convictions because these cases were classified under other categories (e.g., violent crime, National Infrastructure Protection and Computer Intrusions, foreign counterintelligence, and civil rights).

To determine the scope of USAO’s cases covered by the article, we compared and analyzed EOUSA, FBI, and Transactional Records Access Clearinghouse (TRAC) data, which the Philadelphia Inquirer had relied on. We did not review cases that the FBI did not classify as terrorism- related or cases that were investigated by other law enforcement agencies. We also did not attempt to review the appropriateness of the FBI’s investigative activities. Rather, we sought to determine whether documents in the case files detailing the investigative activities supported a terrorism-related classification based on the FBI’s classification system.

Because of concerns we had with the significant increase in the total number of USAO terrorism-related conviction statistics that resulted from EOUSA’s efforts late in fiscal year 2002 to have USAO districts retroactively identify cases relating to terrorism, we reviewed data detailing specific statutory charges in these cases. Discrepancies we found led to a request that EOUSA follow-up with all USAO districts reporting four or more domestic or international terrorism-related convictions to validate the accuracy of the districts’ reclassification efforts. The results of EOUSA’s follow-up with these districts raise concerns about the accuracy and reliability of EOUSA’s fiscal year 2002 statistics included in this report.

We conducted our work at FBI headquarters and EOUSA in Washington, D.C., and at FBI field offices in Baltimore, Dallas, Philadelphia, and Washington, D.C., between February and December 2002 in accordance with generally accepted auditing standards.

Background

Multiple federal agencies have a role in U.S. efforts to combat terrorism. The DOJ components primarily responsible for investigating and prosecuting terrorism-related cases are the FBI and the USAOs. The FBI is the lead federal agency responsible for investigating crimes for which it has primary or concurrent jurisdiction and which involve terrorist activities, or acts in preparation of terrorist activities, within the statutory jurisdiction of the United States. The USAOs prosecute federal criminal cases, including those related to terrorism.

There is no single, uniform definition of terrorism. Several federal statutes define terrorism in a variety of contexts. Appendix I provides examples of various statutory terrorism definitions. In addition to these statutory definitions, the FBI has a regulatory definition of terrorism, which refers to the “unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”

Although the FBI’s regulatory definition of terrorism relates to cases involving the unlawful use of force or violence, this same regulation designates the FBI as the lead federal agency for investigating both terrorist activities and acts in preparation of terrorist activities. Thus, the FBI may investigate cases that do not involve the use of force or violence that may be terrorism-related (e.g., cases involving money laundering or drug trafficking in support of a terrorist organization).

FBI and EOUSA Classification Criteria Differ

Prior to fiscal year 2002, the FBI and EOUSA’s criteria for classifying cases and any resulting convictions differed. The FBI classified a case as terrorism-related based on the overall violation being investigated. USAOs, following EOUSA guidance, classified a case based on the charges in the indictment or the charges for which the defendant was convicted. For example, if the FBI arrested an individual for money laundering and, as part of its investigation, gathered evidence that indicated that the defendant was laundering money for a terrorist group, the FBI generally classified such a case as terrorism-related. On the other hand, if a USAO prosecuted the defendant and obtained a conviction solely on money laundering charges, USAO generally classified the conviction in the case as a money laundering conviction and not a terrorism conviction.

Although the FBI’s regulatory definition of terrorism refers to cases involving force and violence, as previously noted, this same regulation also designates the FBI as the lead agency responsible for investigating both terrorist activities, and acts in preparation of terrorist activities, within the statutory jurisdiction of the United States. Thus, a case need not involve force or violence to be classified by the FBI as terrorism-related. For example, the FBI may also classify nonviolent crimes (e.g., money laundering and fraud) as terrorism-related if they are undertaken to support terrorism-related activities. To capture and track the volume of its counterterrorism work, the FBI used the classification criteria contained in its Manual of Investigative Operations and Guidelines. The Manual, among other things, set forth multiple classification codes for domestic and international terrorism investigations and extensive guidance for agents and squad supervisors to determine the appropriate classification of an investigation.

As stated previously, at the time of the Philadelphia Inquirer’s allegation, EOUSA used a classification system that was based on the charges in an indictment or the charges for which a defendant were convicted. EOUSA’s classification guidelines are set forth in the Legal Information On-line System (LIONS) Users Manual. As outlined in the Manual, for an international terrorism classification, EOUSA used a representative (but not exhaustive) list of statutes that may relate to an international terrorist incident, (e.g., 18 U.S.C. 32 relating to destruction of aircraft or aircraft facilities and 18 U.S.C. 1203 relating to hostage taking). For a domestic terrorism classification, the case must involve force or violence or the threat of force or violence undertaken by an individual or group seeking to further political or social goals.

EOUSA’s classification had no bearing on the FBI’s classification of a conviction resulting from a terrorism-related investigation, according to an FBI official. Occasionally, the FBI may reclassify a case when new facts become available that were not known at the time of the original classification.

Number of Reported FBI and EOUSA Terrorism-Related Convictions Differs

The FBI’s number of reported terrorism-related convictions will differ from EOUSA’s because (1) the FBI and EOUSA had been using different criteria to classify terrorism-related cases and resulting convictions and (2) the FBI numbers include federal, state, local, or international court convictions resulting from its investigative efforts while EOUSA’s numbers include only federal court convictions. As shown in figure 1, the FBI has reported a different number of terrorism-related convictions than EOUSA over the past 6 fiscal years.

DOJ Used the FBI’s Terrorism-Related Statistics in Its 2000 Performance Report but Has Since Switched to Reporting EOUSA Statistics

In its Fiscal Year 2000 Performance Report provided to the Congress, DOJ used the FBI’s number of terrorism-related investigations and convictions. This report highlighted DOJ’s terrorism-related investigation and prosecution accomplishments. As noted earlier, DOJ used the FBI’s statistics because they track DOJ’s accomplishments beginning at the investigative stage through the prosecutive stage.

In response to concerns raised by the Philadelphia Inquirer article and to avoid any misinterpretation of DOJ’s statistics, beginning with the Fiscal Year 2001 Performance Report, DOJ switched from using the FBI’s statistics to using the statistics reported by EOUSA, according to DOJ officials. EOUSA’s statistics are intended to be representative of the cases prosecuted in federal courts that result in terrorism-related convictions and are less likely to be misinterpreted, according to DOJ officials. These statistics do not include cases for which the FBI had conducted a terrorism-related investigation that resulted in (1) a conviction in a state, local, or international court or (2) a federal conviction that was investigated by the FBI as terrorism-related but not classified by EOUSA as terrorism-related.

FBI Case Files Contained Documentation to Support Terrorism- Related Classifications

We reviewed FBI investigative case files to ascertain whether documentation existed to support the FBI’s classification for 28 FBI terrorism-related convictions included in our review. We found documentation to support the FBI’s terrorism-related classifications for all 28 convictions. This included all of the convictions (19) that the FBI had classified as terrorism-related for fiscal years 1999 and 2000 in three FBI field offices (Baltimore, Dallas, and Washington, D.C.) and 9 of the 18 USAO terrorism convictions covered by the scope of the Philadelphia Inquirer article that were investigated by the FBI.

Concerning the 18 USAO terrorism-related convictions investigated by the FBI that were covered by the scope of the Philadelphia Inquirer article, we found that the FBI had classified 9 of these cases as terrorism-related and had documentation in every case file to support these classifications. The FBI did not classify the remaining 9 convictions as terrorism-related and as a result, we did not review those investigative case files. These cases were classified under other categories (e.g., violent crime, National Infrastructure Protection and Computer Intrusions, foreign counterintelligence, and civil rights). Appendix II provides a summary of the case files that we reviewed, including a description of the cases.

Several Factors Contributed to Recent Increases in EOUSA’s Number of Terrorism- Related Convictions

As figure 1 shows, EOUSA’s number of terrorism-related convictions increased significantly in fiscal year 2002, going from an average of 35 convictions per fiscal year for the previous 5 years to about 160 in fiscal year 2002. EOUSA attributed this increase to (1) the Attorney General’s and the President’s direction to make antiterrorism efforts a priority and heightened awareness, investigation, and prosecutorial efforts after September 11, 2001, and (2) the implementation of a new EOUSA classification system in fiscal year 2002, intended to better capture terrorism-related efforts.

On November 8, 2001, the Attorney General announced plans to prioritize the Justice Department and its components to focus on antiterrorism. The Attorney General noted that the attacks of September 11, 2001, had redefined the mission of DOJ. He described defending the nation and defending the citizens of America against terrorist attacks as the department’s first and overriding priority. On November 29, 2001, in a speech at a U.S. Attorney’s conference, the President said that terrorist violence on the home front must be prevented and defeated with vigilance, aggressive investigation, and certain punishment.

In December 2001, EOUSA issued new procedures for classifying cases as terrorism-related. Through these new procedures, EOUSA instructed all USAO district offices to immediately begin using terrorism-related program codes as the first code to identify and report on criminal and civil matters and cases arising out of terrorist attacks on the U.S. In addition, the policy memorandum added a new code to track terrorism-related hoaxes that had not been previously tracked under the old classification system. In an August 7, 2002, policy memo, EOUSA added a new code to track terrorist financing, updated its guidance for classifying international and domestic terrorism cases, and provided additional procedures regarding how USAOs are to report terrorism-related cases. In addition, the August 7, 2002, policy memo, instructed the various USAOs to retroactively review the classification of cases opened or closed during fiscal year 2002 to ensure that all cases related to or involving terrorism-related activities were coded in LIONS and that the most appropriate terrorism-related or antiterrorism-related criminal program category code were used. This resulted in the reclassification of convictions in USAO cases.

The new policy introduced changes to EOUSA’s classification system. According to EOUSA officials, under the previous system cases were classified based on the lead charge for which a defendant was indicted or convicted. For example, if the lead conviction charge was money laundering, the primary classification of the case would have been classified as money laundering, even if terrorism-related purposes were also evident during the investigation. Under the new system, a case of this nature would result in the case being classified as a terrorism-related conviction. The new case classification system accounts for evidence that the crime was committed for terrorism-related purposes, as does the FBI’s classification system.

DOJ Lacks Internal Controls to Ensure Reliability of EOUSA Terrorism-Related Statistics

Federal internal control standards require agencies to implement adequate controls over information processing. A variety of control activities may be used in information processing such as edit checks of data entered into information systems, reconciliation of summary information to verify data completeness, and management review of output reports. However, during the course of our engagement, we discovered that DOJ does not have sufficient management oversight and internal controls in place to ensure the accuracy and reliability of terrorism-related conviction statistics included in its annual performance reports.

We found that DOJ lacks a formal system, as required by federal internal control standards, to verify the accuracy or oversee the reliability of case data entered in LIONS by the various USAO districts and subsequently included in DOJ’s annual performance reports. Specifically, as table 2 shows, the various USAO districts originally classified 288 convictions as terrorism-related for fiscal year 2002. However, our subsequent request that EOUSA follow-up with all USAO districts reporting four or more domestic or international terrorism-related convictions to validate the accuracy of the districts’ reclassification efforts revealed that at least 132 of the 288 (about 46 percent) USAO convictions were misclassified. These 132 cases did not result in terrorism-related convictions. 127 of the 132 were subsequently reclassified as anti-terrorism-related convictions. The remaining 5 were reclassified as related to other types of crimes. These discrepancies occurred despite a semiannual effort by EOUSA requiring managers in the various USAO districts to certify the accuracy of case data.

EOUSA officials attributed the discrepancies we found with the fiscal year 2002 statistics to limited time afforded the various USAOs to thoroughly reevaluate caseload and investigative data during their efforts to retroactively reclassify and identify convictions in closed terrorism-related cases dating back to the beginning of the fiscal year. Because EOUSA did not validate the accuracy of the terrorism-related conviction data reported by the remaining USAO districts, we have some concerns about the overall accuracy of EOUSA conviction statistics to be included in DOJ’s Fiscal Year 2002 Annual Performance Report.

Conclusions

Efforts on the part of EOUSA to implement new procedures to better ensure that DOJ prosecutors fully account for their efforts to combat terrorism-related activities are commendable. However, because the Congress and the American public rely on DOJ, in accordance with the Government Performance and Results Act, to provide annual performance data on the progress of its efforts to combat terrorism, it is equally important that the various USAOs accurately account for their efforts and not misclassify cases as terrorism-related that are not terrorism-related. Without reliable terrorism-related conviction data, DOJ and the Congress’s ability to accurately assess terrorism-related performance outcomes of our criminal justice system and the results of efforts to combat terrorism will be limited. Discrepancies discovered in the accuracy of fiscal year 2002 terrorism-related conviction statistics that the USAO districts had initially provided to EOUSA raise concerns about the overall quality and reliability of EOUSA terrorism-related conviction statistics. In addition, these discrepancies identify the need for improvements in management oversight and internal controls to better ensure the accuracy of USAO terrorism-related performance data.

Recommendation for Executive Action

To improve the accuracy and reliability of terrorism-related conviction statistics reported by DOJ in its annual performance reports, we recommend that the Attorney General, in accordance with federal internal control standards, implement a formal system to oversee and validate the accuracy of case classification and conviction data entered in LIONS by the various USAO districts. This system should entail edit checks of data entered into information systems, reconciliation of summary information to verify data completeness, and management review of output reports.

Agency Comments and Our Evaluation

We provided copies of this report to the Attorney General and the Director of the FBI. DOJ and the FBI agreed with the report findings and DOJ agreed to implement our recommendation.

Unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the issuance date. At that time, we will send copies of this report to the Attorney General, the Director of the FBI, and other interested parties. We will also make copies available to others upon request. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff have any questions about this report, please contact Charles Michael Johnson or me at (202) 512-8777 or at johnsoncm@gao.gov or ekstrandl@gao.gov. Key contributors to this report are acknowledged in appendix III.

Appendix I: Summaries of Selected Statutory Terrorism Definitions

U.S. Code Citation 8 U.S.C. 1182(a)(3)(B)(iii),(iv) Generally defines ‘‘terrorist activity’’ as an unlawful activity, undertaken with the intent to endanger

the safety of one or more individuals or to cause substantial damage to property, which involves the hijacking or sabotaging of any conveyance; hostage-taking; violent attacks upon internationally protected persons; assassinations; the use of weapons or dangerous devices, including explosives, firearms, biological, chemical, or nuclear weapons; or a threat, attempt, or conspiracy to do any of the foregoing. The statute further defines the term “engage in terrorist activity”— conduct that can render an alien inadmissible to the United States. The term encompasses not only the commission of terrorist activities, but a broad range of conduct in support of terrorist activities, generally involving such things as preparation or planning; gathering information on potential targets; soliciting funds or members, or affording material support. Generally defines terrorism as unlawful acts that are dangerous to human life and that appear intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping. Terrorism may be domestic or international under 18 U.S.C. 2331 depending on whether the crime occurred primarily outside or within the territorial jurisdiction of the United States, or whether the crime transcended national boundaries in certain respects defined by the statute. Lists numerous offenses in defining the term “Federal crime of terrorism” where the offense was calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct. Defines “terrorism” for purposes of the State Department’s annual country reports as premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents. Further defines “international terrorism” as terrorism involving citizens or the territory of more than one country. Defines an “act of international terrorism” for purposes of the State Department’s rewards program as any act substantially contributing to the acquisition of unsafeguarded special nuclear material or any nuclear explosive device by individuals, groups, or non-nuclear weapon states, or any act that materially supports the conduct of international terrorism, including the counterfeiting of U.S. currency or the illegal use of other monetary instruments.

Appendix II: Summary of Case Files GAO Reviewed

The following table provides a summary of Federal Bureau of Investigation (FBI) field office case files we reviewed for 28 convictions to determine whether documentation existed to support the FBI’s classification of these cases.

Summary of case This case involved a joint FBI and Immigration and Naturalization Service task force in which the defendant was arrested for harboring an illegal alien. During the investigation, the FBI uncovered evidence (i.e., telephone records and wire transfers) linking the defendant to a known associate of Usama bin Laden who was connected to the U.S. Embassy bombings in Kenya and Tanzania. This case involved a man who was deported from the United States in 1997 for counterfeiting, but who had returned to the United States and owned and operated convenience stores in Texas. The FBI investigated him for laundering money, using stolen and fraudulent credit cards, and shipping generators to a Middle Eastern country, in violation of a U.S. embargo. The case involved two brothers who were arrested in a joint FBI/Bureau of Alcohol, Tobacco and Firearms operation in which the men were attempting to purchase automatic weapons and deal guns without a license. During the investigation, FBI agents learned that the men were originally from India and were associated with a violent Sikh faction. This case involved a foreign national and his son who had attempted to enter an agreement with a Middle Eastern country to build an electrical power plant in violation of a U.S. embargo on doing business with this country. The State Department had designated this country as a sponsor of terrorism. In this case, a juvenile made a threat to bomb FBI headquarters in Washington, D.C.

Summary of case Four defendants were investigated for purchasing and shipping dozens of weapons from various U.S. locations to the United Kingdom and Northern Ireland. The weapons were purchased at various gun shows, shops and from individual person. The defendants were citizens of the United Kingdom and the Republic of Ireland, and one of the defendants had claimed membership in the Irish Republican Army. Among other items found by investigators, was literature on the Irish Republican Army. The Anti- terrorist branch of New Scotland Yard opened this investigation and contacted the FBI. This case involved a defendant that made bomb threats against a federal government facility in New Jersey. FBI agents found that the defendant had made a pipe bomb. This case involved a man who made a biological bomb threat against a U.S. courthouse in Pennsylvania. A Joint Terrorism Task Force investigated this case. This case involved a man who mailed letters including the words, “Anthrax, Anthrax, Anthrax” to his former place of employment. This case involved a defendant who fired 20 shots to the Pacific Gas and Electric power substation in Redwood City. His actions eliminated power in the immediate area and caused over $500,000 in damage. The suspect was described as a possible terrorist member and to have protested the Oklahoma City trial. This case involved a defendant who made death threats against a U.S. Magistrate Judge and two other individuals. The defendant belonged to a group that refers to themselves as Cypherfunks who advocate the overthrow of established governments via crypto-anarchy.

Appendix III: GAO Contacts and Staff Acknowledgments

GAO Contacts

Acknowledgments

Chan My J. Battcher, Christopher Conrad, Christine F. Davis, Michele Fejfar, Melissa Hinton, Anne E. Laffoon, and Kay Muse made key contributions to this report.