Dennis Hollingsworth, et al v. USDCSF, et al

Filing 1

FILED PETITION FOR WRIT OF MANDAMUS. DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. NOTIFIED REAL PARTIES IN INTEREST OF FILING. [7187906] (HH)

Dennis Hollingsworth, et al v. USDCSF, et al

Doc. 1 Att. 5

Exhibit 23

Dockets.Justia.com

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

Review of the Protection of the Judiciary and the United States Attorneys December 2009

Redacted - For mtblic Release

REDACTED - FOR PUBLIC RELEASE EXECUTIVE DIGEST

Threats and inappropriate communications to federal judges, U.S. Attorneys, and Assistant U.S. Attorneys (AUSA)have increased dramatically during the past several years, growing from 592 in fiscal year (FY) 2003 to 1,278 in FY 2008. Overall, during this 6-year period, there were 5,744 threats directed at these federal officials. United States Marshals Service (USMS) district offices have primary responsibility for ensuring the safety and security of federal judicial proceedings and protecting the more than 2,000 federal judges and approximately 5,250 other federal court officials, including U.S. Attorneys and AUSAs. Three other Department of Justice components - the Executive Office for United States Attorneys (EOUSA),United States Attorneys' Offices (USAO),and the Federal Bureau of Investigation (FBI)- are also involved in responding to these threats. EOUSA provides oversight, guidance, and support to USAOs on threats and related matters, and coordinates interactions between USAOs and other Department components. The USAOs are responsible for reporting threats against U.S. Attorneys, AUSAs, and their families to the USMS and EOUSA, and the USAOs also provide some protective measures in response to threats.2 In addition, the FBI is responsible for conducting criminal investigations of threats against federal judges, U.S. Attorneys, and AUSAs. The Office of the Inspector General (OIG) conducted this review to examine the USMS's response to threats made against federal judges and the USMS's, EOUSA's, and USAOs' handling of threats against U.S. Attorneys and AUSAs. This is the third OIG review to examine the
1 According to USMS Directive 10.3.G. 12, Protective Investigations, 2007, a threat is any action or communication, explicit or implied, of intent to assault, resist, oppose, impede, intimidate, or interfere with any member of the federal judiciary, or other USMS protectee, including members of their staffs or family. According to USMS Directive 10.3.G.5, Protective Investigations, 2007, an inappropriate communication is any communication directed to a USMS protectee or employee that warrants further investigation. In this report, we use the term "threat" to encompass both threats and inappropriate communications.

2 The USAOs report threats against USAO personnel to EOUSA via Urgent Reports. The Urgent Report contains a brief synopsis of the facts and a concise summary of the event.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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REDACTED - FOR PUBLIC RELEASE protection of federal court officials.3 In this review, we examined the role and responsibilities of USMS district offices, procedures that USMS district offices employ to assess and respond to threats, and the roles of EOUSA and the USAOs in the protection of the U.S. Attorneys and AUSAs. Our review examined the 1,587 threats reported during FY 2007 and FY 2008. In addition, we conducted a detailed examination of 26 threats in four judicial districts that we visited.

RESULTS IN BRIEF
Our review found deficiencies in the response to threats by the USMS and EOUSA. As a threshold matter, we found that threats against judges, U.S. Attorneys, and AUSAs are not consistently and promptly reported. Moreover, when threats are reported the USMS does not consistently provide an appropriate response for the risk level posed by the threat. In addition, the USMS does not fully or effectively coordinate with other law enforcement agencies to respond to threats against federal judicial officials. We also found that threatened USAO personnel may not receive sufficient protection because EOUSA and USAO staff providing protective measures lack threat response expertise and training similar to that of the USMS's judicial security staff, who are specifically trained in threat response procedures. EOUSA and USAO staff are also responsible for numerous security-related duties, which limits the time they have to devote to threat response. In addition, coordination on threat responses among EOUSA, the USAOs, and the USMS is inconsistent. Moreover, EOUSA is not consistently notified of threats against U.S. Attorneys and AUSAs and often lacks important information about threats and protective responses taken in response. These deficiencies prevent EOUSA from providing emergency support or tracking trends in threats against USAO personnel. The following sections of this Executive Digest describe these findings in more detail. Federal Judges, U.S. Attorneys, and AUSAs do not consistently and promptly report threats. For the USMS to most effectively protect federal judges, U.S. Attorneys, AUSAs, and their families from harm, protectees must promptly notlfy the USMS when they receive threats. In our interviews and
3

The OIG's prior reports are described in Appendix I.

U.S.Department of Justice
Office of the Inspector General Evaluation and Inspections Division

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surveys most federal judges, U.S. Attorneys, and AUSAs told the OIG that they reported every threat made to them, but some said they did not. Although we could not determine the number of unreported threats, our interviews and surveys indicate that as many as 25 percent of all threats were not reported to the USMS. We also found that even when the judges and AUSAs reported threats, they often did not do so promptly. In about one-quarter of the reported threats made in FY 2007 and FY 2008, 2 or more days elapsed between receipt of the threat by the judge or AUSA and when they reported the threat to the USMS. USMS district managers are required to ensure that protectees are aware of the importance of reporting threats. However, according to USMS directives, federal judges receive the USMS security handbook containing the guidance on reporting threats only after they receive a threat. Moreover, the handbook does not emphasize the consequences of delays or failures to report all threats immediately. The USMS told u s that it instructs all Judicial Security Inspectors to provide the security handbook to all members of the judiciary a s part of the USMS ongoing efforts to protect the judges. U.S. Attorneys and AUSAs have other potential sources of guidance on threat reporting, such a s the U.S. Attorneys' Manual. However, we found these sources do not require that all threats be reported to the USMS and do not include guidance that all threats should be reported promptly.

The USMS does not consistently provide an appropriate response for the risk level posed by the threat.
USMS district offices are required to conduct a risk assessment of each threat to iden* whether the risk level qualifies a s low, potential, or high. The USMS is then required to implement protective measures corresponding to the identified risk level. In conducting our review of 26 threat cases involving 25 protectees at the 4 districts we visited, we found that the USMS did not record the risk level ratings for any of these threats in its threat database. Because the USMS had not recorded the ratings, we were unable to determine whether the protective measures implemented by the USMS were commensurate with the risk level rating. Therefore, we sought to determine whether the 25 threatened judges and AUSAs we interviewed had received at least 4 of the
U.S.Department of Justice
Office of the Inspector General Evaluation and Inspections Division

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protective measures prescribed by the USMS for threats assessed as low risk. Under the USMS protocol, these protective measures should be provided in response to every threat. Through our interviews and a database review, however, we found that only one protectee received all four protective measures. In addition, five protectees were not provided any of the low risk level protective measures they should have received.

The USMS does not fully or effectively coordinate with other law enforcement agencies to respond to threats against federal judicial officials.
The USMS does not consistentlv track threat referrals to the FBI. According to USMS policy, the USMS must not]@ the appropriate FBI field office when it learns of a threat against a protectee. We examined the threats against judges, U.S. Attorneys, and AUSAs in the USMS threat database that were reported during FY 2007 and FY 2008, and we found that 639 (40 percent) of the 1,587 threats in the database contained no information regarding FBI n 0 ~ c a t i o n . 4We also examined the 26 threats we selected for review in the 4 districts to determine whether USMS records indicated that the FBI was notified of the threat. We found that 5 of the 26 threats (19 percent) contained no information regarding FBI notilkation. Coordination between the USMS and the FBI is inconsistent among districts, and there are no formal protocols for coordination.
USMS and FBI policies state that the two agencies should work together closely to respond to threats against judicial officials. USMS and FBI personnel we interviewed at two of the four sites we visited said they coordinate with each other on the protective and criminal investigations in response to threats. However, at the other two sites we visited USMS personnel stated that the FBI does not communicate or share information concerning its criminal investigations, although FBI personnel said the components were coordinating.

No formal or informal agreement between the USMS and FBI defines their respective roles and responsibilities for threat response. As a result, personnel from both components told u s that their working relationship and, more speciilcally, their communication on investigations depend on
4 Because the USMS threat database does not distinguish between threats and inappropriate communications, our analysis may include both.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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REDACTED - F R PUBLIC RELEASE O personalities in each of the offices. They stated that a formal memorandum of understanding between the FBI and the USMS is needed. The USMS districts fail to effectivelv coordinate with local law enforcement agencies for notification of emergencv responses to judges' residences.
USMS policy requires district offices to send letters to the local law enforcement agencies in the jurisdictions where federal judges reside requesting that the USMS be notified whenever a police agency responds to any emergency call at a judge's residence. Three of the four sites we visited had sent such letters that included 24-hour/7-day-a-week USMS contact numbers. USMS officials at the fourth site told u s they had not sent the letters because the judges in the district refused to allow the USMS to provide their home addresses to local law enforcement agencies.

We tested the USMS contact numbers provided in the three letters to the local law enforcement agencies. In two districts, when we called the contact numbers we received a recording that they were not working numbers. In the third district, our test call connected first to the courthouse communications office and then was re-directed to a USMS duty officer. U A staff who provide protective measures for threatened SO U.S. Attorneys and AUSAs lack sufficient expertise and training in threat response, and coordination among these entities is inconsistent. USAO personnel lack expertise in threat response. While EOUSA and the USAOs have implemented measures to protect USAO personnel against threats, we determined that EOUSA and USAOs lack threat response expertise and training similar to that of the USMS's judicial security staff. Deputy Marshals involved in ensuring the safety of protectees generally have extensive law enforcement training, along with specific training in determining and implementing threat response procedures. Although some USAO staff may have prior law enforcement experience, many do not, and the training available to EOUSA and USAO personnel in security and personal protection is limited. In particular, they do not receive formal training in determining the protective measures that are appropriate for each threat that is equivalent to the training that USMS staff receive. The Assistant Director and the Threat Management Specialist of EOUSA's Security Programs Staff are responsible for providing guidance to
U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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help the USAOs respond to a threat and for providing funding for the protective measures that are implemented. However, the two individuals in those positions during FY 2007 and FY 2008 did not have backgrounds comparable to that of USMS judicial security staff in responding to threats against individuals. The Assistant Director had prior physical security experience in other agencies, but is responsible for numerous security-related duties and therefore has limited time to devote to threat response or to develop more specialized expertise in the area. EOUSA relies primarily on the USAOs' District Office Security Managers to provide a protective response in the field. However, at the four locations we visited none of the District Office Security Managers had law enforcement or other experience in threat response. Moreover, the District Office Security Managers told u s that they were responsible for numerous other security-related functions in addition to responding to threats. Additionally, training opportunities for District Office Security Managers are limited, and this is problematic for staff with little or no experience in threat response. Coordination between the USMS and USAOs is inconsistent and is not guided bv formal protocols for coordination. We found that USMS and USAO staff responsible for threat response did not share important information about threats and were not clear on each other's roles and responsibilities regarding protective response. For example, in one district we visited we found that USAO staff did not believe the USMS was required to provide USAO personnel with any protective in response to the highest measures other than level threats. In that district - even though the courthouse and the USAO's building are adjacent and joined by a common hallway - the USMS district office did not provide USAO building security staff with threat information that had been distributed to courthouse security staff. Similarly, we found that USMS staff did not regularly advise USAOs about or monitor protective measures implemented by EOUSA and the USAOs. During our site visits we found instances in which EOUSA and the USAOs implemented protective measures without the USMS's knowledge. There is no agreement or memorandum of understanding between the USMS and EOUSA, or between the USMS and any USAOs we visited, which addresses the sharing of information about threats against U.S. Attorneys and AUSAs and coordination of protective measures.

U.S.Department of Justice
Office of the Inspector General Evaluation and Inspections Division

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REDACTED - F R PUBLIC RELEASE O EOUSA is not consistently notified of threats against U.S. Attorneys and AUSAs and often lacks important information about threats and protective responses. Some USAOs failed to submit required Urgent Reports to EOUSA on threats, and the submitted Urgent Reports fi-equentlv lack important information. We found that threats against USAO personnel are generally not reported to EOUSA. When we compared the threats reported by the USAOs and the USMS districts in FY 2007 and FY 2008, we found that USAOs had reported fewer than half the number of threats reported by the USMS. In each of the four districts we visited, we found that the USAOs sent fewer Urgent Reports to EOUSA than the number of threats recorded in the USMS threat database.5 Additionally, when we reviewed the 165 Urgent Reports that District Office Security Managers submitted to EOUSA in FY 2007 and FY 2008 for threats against USAO personnel, we found that 75 percent of the reports were missing key information such as the date the threat occurred and whether the USMS and FBI were notified. EOUSA is not kept informed of actions taken to protect threatened U.S. Attornevs and AUSAs. At the time of our fieldwork, the USAOs did not routinely inform EOUSA of the USMS's protective responses to mitigate threats and protect threatened AUSAs. We analyzed the Security Programs Staff threat management database and Urgent Reports submitted by District Office Security Managers about threats and found the USAOs had submitted only 16 updates to the 165 initial Urgent Reports submitted to EOUSA. EOUSA personnel told us that they may receive updates via telephone, e-mails, or updated Urgent Reports. However, EOUSA was unaware of the protective measures provided by the USAO or the USMS, the initiation of a n FBI investigation, or the progress of the FBI investigation. EOUSA told u s that it planned to improve the collection of information from USAOs by providing a web-based Urgent Report program in December 2009 or January 20 10 so that District Office Security Managers can submit their reports directly to the threat management database, and these webbased forms will include the key information EOUSA needs.

5 The USAOs report threats against USAO personnel to EOUSA via Urgent Reports. The Urgent Report contains a brief synopsis of the facts and a concise summary of the event.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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REDACTED - FOR PUBLIC RELEASE RECOMMENDATIONS

As a result of our review, we made 1 4 recommendations to: improve the understanding of federal judges, U.S. Attorneys, and AUSAs of the need for prompt reporting of threats and the consequences of delays or failure to report; ensure that the USMS provides protectees with protective measures that are commensurate with the risk level of the threat; ensure that the USMS collects information that will enable it to monitor the performance of its response to threats against protectees; ensure the USMS coordinates effectively with the FBI and local law enforcement agencies to keep the protectees safe; better prepare EOUSA and USA0 personnel for responding to threats and to ensure better cooperation between the USMS and the USAOs; and ensure that EOUSA receives more complete and timely information to manage its threat response program and ensure the safety of the U.S. Attorneys and AUSAs.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

Viii

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........................................................................... 1 BACKGROUND .............................................................................4 RESULTS OF THE REVIEW ........................................................ .14 CONCLUSION AND RECOMMENDATIONS ................................... .40
INTRODUCTION

...........................................................43 APPENDIX 1 : METHODOLOGY OF THE OIG REVIEW .................45 1
APPENDIXIn: RESULTS OF OIG SURVEY OF U.S. ATTORNEYS AND ASSISTANT U.S. ATTORNEYS

APPENDIX I: PREVIOUS OIG REPORTS ON THE JUDICIAL SECURITY PROCESS

............48

APPENDIX IV: THE UNITED STATES MARSHALS SERVICE'S RESPONSE APPENDIX V: OIG'S ANALYSIS OF THE UNITED STATES MARSHALS SERVICE'S RESPONSE

...........................................................................78

......................................83

APPENDIX VI: THE EXECUTIVE OFFICE FOR UNITED STATES -89 ATTORNEYS' RESPONSE

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APPENDIX VII: OIG'S ANALYSIS OF THE EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS' RESPONSE .93

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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U.S.Department of Justice
Office of the Inspector General Evaluation and Inspections Division

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REDACTED - FOR PUBLIC RELEASE INTRODUCTION

Introduction Threats against federal judges, U.S. Attorneys, Assistant U.S. Attorneys (AUSA),and other court officials investigated by the U.S. Marshals Senrice (USMS) have more than doubled during the past several years, increasing fi-om 592 in fiscal year (FY) 2003 to 1,278 in FY 2008.6 Overall, during this 6-year period, there were 5,744 threats directed at these federal court officials. Figure 1 presents the number of threats investigated each fiscal year. Figure 1: Number of Threats Against Federal Court Officials Investigated by the USMS, FY 2003 Through FY 2008
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Sources: USMS FY 2008 Budget and www.ExpectMore.gov.

6 According to USMS Directive 10.3.G. 12, Protective Investigations, 2007, a threat is any action or communication, explicit or implied, of intent to assault, resist, oppose, impede, intimidate, or interfere with any member of the federal judiciary, or other USMS protectee, including members of their staffs or family. According to USMS Directive 10.3.G.5, Protective Investigations, 2007, an inappropriate communication is any communication directed to a USMS protectee or employee that warrants further investigation. In this report, we use the term "threat" to encompass both threatening and inappropriate communications.

U S . Department of Justice Office of the Inspector General Evaluation and Inspections Division

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Job-related threats to federal judges, U. Attorneys, and AUSAs include physical assaults, verbal assaults, an( threateAg letters posted on the Internet. In a 2008 Department of Examples o Threatening Letters f Justice (Department) Office of Inspector General (OIG) survey, 7 percent of threatened -, U.S. Attorneys and AUSAs reported incidents Example 1: 'Go to d , , . [REDACTED] court and get g~ictures that went beyond written and verbal threats. of him and his staff. Look for ways In those incidents, the threats included to follow each of them after vvork. attempts to physically intimidate the Get hang outs, and glet phon U.S. Attorneys and AUSAs. For example, two numbers too -we- mt recor.ds now this is du ----- ulegal ancd against VCLY AUSAs reported being physically attacked, : very careful.. .". thek one reported that an alleged "contract hit" was put out on him, and another AUSA aple ; I : ue you reported being followed by a family member aomg'? Don't rnrrur we wonK l i j KIU sc of a defendant. smarten you amd your
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Media reports also highlight the nature -Example : -tioa wants me of threats faced by federal judges and AUSAs. this. This3 what he wants I is For example, in one incident, a speaker at a He wants me to destroy the 1 rally in Washington, D.C., urged the crowd to that jiudge is evil - hc:wants-: get rid of her " find the home of an AUSA who was prosecuting a domestic terrorist and locate Source: USMS documents. where his children attended school. In another incident, a white supremacist wrote on an online blog that three narned federal juc es deserved to die. The blog post included the judges' narnes, work addres IS, and telephone numbers, as well a s photos of the judges and a map sho ing the location of the courthouse in which they worked.

Purpose
This is the third OIG review to examine the protection of federal court officials. The f r s t review examined the USMS's protection of federal judges, focusing on measures applied during high-threat trials. The second review examined the USMS headquarters threat assessment process and the USMS's progress in establishing a protective intelligence function.7

7 The previous OIG reviews were both titled Review o the United States Marshals f Seruice Judicial Security Process and were issued in March 2004 (Evaluation and Inspections Report 1-2004-004)and September 2007 (Evaluation and Inspections Report 1-2007-010). The prior reports are described in Appendix I.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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We conducted this review to examine the USMS's and the Executive Office for United States Attorneys' (EOUSA)response to threats made against federal judges, U.S. Attorneys, and AUSAs. Specifically, we examined the:
1. role and responsibilities of the USMS district offices in the protection of federal judges, U.S. Attorneys, and AUSAs;

2. procedures that USMS district offices employ to assess and respond to threats and incidents against federal judges, U.S. Attorneys, and AUSAs; and
3. role of EOUSA in the protection of the U.S. Attorneys and AUSAs.

Scope
The USMS's district offices are primarily responsible for protecting federal judges, U.S. Attorneys, and AUSAs. Accordingly, we examined how those offices hIffled the USMS's mission to provide protection when federal judges, U.S. Attorneys, and AUSAs were threatened. Because EOUSA coordinates the relationships between United States Attorneys' Offices (USAO)and other Department components, we also examined its role in the protection of U.S. Attorneys and AUSAs.8 Our review encompassed threats that occurred during FY 2007 and FY 2008. Additionally, although the USMS threat response consists of two functions that occur simultaneously - the protective response and the protective investigation - in this review we focused on the protective response portion of the process. A detailed description of the methodology of the review is contained in Appendix 11.

8 We did not review the USMS district offices' actions related to protecting other members of the judicial community, such as probation officers, court reporters, court clerks, or jurors.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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REDACTED - FOR PUBLIC RELEASE BACKGROUND

In this section, we identlfir the primary organizations that have a role in responding to threats against federal court officials. These organizations include the USMS district offices, the Federal Bureau of Investigation (FBI), EOUSA, USAOs, and the Administrative Office of the U.S. Courts. We also describe the USMS and EOUSA threat response processes.
USMS

The USMS is responsible for ensuring the safe and secure conduct of federal judicial proceedings and for protecting more than 2,000 federal judges and approximately 5,250 U.S. Attorneys and AUSAs and other court l officials at more than 400 court facilities in al 94 federal judicial districts. Protecting the judiciary is one of the primary missions of the USMS and a strategic objective of the Department.9 The USMS budget for judicial security was $343 million in FY 2007 and $344 million in FY 2008. lo
USMS district offices identlfir potential threats or have threats reported to them and are responsible for determining the protective measures needed to ensure the safety of the protectee. The USMS refers to this as the "protective response." USMS district office staff is also responsible for conducting a "protective investigation" into a threat. The judicial security hnctions performed by USMS personnel are detailed below.

Judicial Securitv Ins~ectors Judicial Security Inspectors are senior-level Deputy Marshals in the districts who oversee protective investigations conducted by District Threat Investigators. They also implement protective measures, such as conducting residential security surveys and security briefings for threatened
9

28 U.S.C. 566(e)(I)(A).

10 Additionally, the Court Security Improvement Act of2007 authorized $20 million for each fiscal year from 2007 through 20 11 for the USMS to supplement its judicial security operations. However, according to USMS headquarters officials, none of the authorized funding has been appropriated to the USMS.

1 1 According to USMS Directive 10.3.G.9, Protective Investigations, 2007, a protective investigation is the collection and assessment of information to determine a suspect's true intent, motive, and ability to harm a USMS protectee. The objective of this type of investigation is to eliminate or mitigate any potential risk of harm to the protectee.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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federal judges, U.S. Attorneys, and AUSAs. 12 As of February 2009, 113Judicial Security Inspectors were assigned to the USMS's 94 districts. District Threat Investigators In consultation with the Judicial Security Inspectors, the District Threat Investigators conduct protective investigations into threats against USMS protectees. Their primary goal is to implement a threat management strategy to mitigate potential risks to threatened protectees. The District Threat Investigator duty is designated as a collateral duty for Deputy U.S. Marshals, although some District Threat Investigators performed those duties on a full-time basis, while others performed the duties on a part-time or as-needed basis. Protective Intelligence Investigators The Protective Intelligence Investigator is a recently created full-time position responsible for conducting complex protective investigations. Protective Intelligence Investigators report directly to the Chief Deputy U.S. Marshal or Assistant Chief Deputy U.S. Marshal. They are also responsible for proactively i d e n w g , mitigating, and managing potential threats to USMS protectees. Protective Intelligence Investigators provide expertise to the District Threat Investigators during protective investigations and ensure they are adequately trained. As of August 3, 2009, there were 34 Protective Intelligence Investigators in USMS district offices.
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U received severa prota ~ Wed voicemails from an individ who was previously arrested for threatening the President of the l United ! The US1vS work ding see!urityofl with us

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the USA0 building. A s a strate&to mitigate the threat, wht:n the USMS rd----uk. 3hr District Threat 11lveaugi interviewed the individual, the investigator warned him that he would be arrested if he attempted to harass or intimidate any court source:
USMS

aocuments.

12 Residential security surveys identify areas of vulnerability and provide on-site safety and security recommendations. The residential security survey also provides information and guidance about emergency preparedness and general off-site safety and security. Security briefings provide the protectees with personal security awareness information such as keeping doors to their residences locked and being aware of their surroundings. Judges are given booklets containing this information.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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REDACTED - FOR PUBLIC RELEASE Federal Bureau of Investigation The FBI is responsible for conducting criminal investigations of threats against federal judges, U.S. Attorneys, and AUSAs. According to USMS policy, USMS District Threat Investigators must not@ the appropriate FBI field office when they learn of a threat against a USMS protectee.13 Likewise, when the FBI learns of a threat against a USMS protectee the FBI has responsibility for informing the USMS of the threat. When a criminal investigation into a threat is initiated, the FBI case agent should work jointly with the District Threat Investigator. Executive OMce for U S Attorneys .. EOUSA's primary mission is to provide general executive assistance and supervision to the 94 USAOs, including coordinating and directing the relationships of the USAOs with other components of the Department and providing overall management oversight and technical and direct support to the USAOs in the area of security programs. When U.S. Attorneys or AUSAs are threatened, EOUSA provides financial assistance and guidance to help the USAOs respond to the threat. Within EOUSA, the Security Programs Staff of the Operations Branch is responsible for providing assistance and advice to the USAOs. According to EOUSA, the Security Programs Staff provides policy and procedural assistance to USAOs for the implementation and conduct of all aspects of security programs and ensures compliance with all national and Department security policies and regulations. The Security Programs Staff also provides general and specialized security training for personnel responsible for security and emergency management or preparedness related duties. The Security Programs Staff supports USAO security education and awareness efforts, including conferences, briefings, videos, brochures, and other materials. It provides budgetary and facilities management support to facilitate the design, procurement, and installation of all security-related equipment, services, and systems. Additionally, the Security Programs Staff oversees the Threat Management program to assist USAOs during threat situations, providing emergency and contingency planning and emergency security support in response to reported threats and natural disasters, as well as a structured methodology for analyzing the overall security practices of each USAO.

13

USMS Directive 10.3.E.1.c, Protective Investigations, 2007.

U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division

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The Security Programs Staff is headed by a n Assistant Director and includes a Chief of the Regional Security Program, who oversees 22 Regional Security Specialists located in some USAOs, and a Threat Management Specialist, who collects threat-related information to provide emergency support and security to the USAOs.
U.S. Attorneys' Offices

The USAOs are responsible for reporting threats against U.S. Attorneys, AUSAs, and their families to the USMS. According to the District Offie Security Manager's Handbook, the District Office Security Manager is the principal security officer in each USAO and is responsible for relaying to EOUSA and the USMS all threats against AUSAs that are reported in the District. There are 93 District Office Security Managers in the 94 USAOs. 14 According to the District Offie Security Manager's Handbook, the District Office Security Manager advises the U.S. Attorney on all security matters and is assisted by other individuals a s required. In addition to relaying threats reported by the attorneys to the USMS district office, the District Office Security Manager's duties include: coordinating the actions of personnel who are assigned security functions; analyzing the overall security needs of the USAO and recommending necessary security systems, equipment, and services to reduce vulnerabilities and risks; implementing and overseeing the Physical, Information, Personnel, Computer, and Communications Security programs, a s well a s the Security Education and Awareness, Loss Prevention, and Safety and Health programs; developing the District Office Security Plan and all contingency and emergency plans; preparing budget estimates for implementing office security programs and coordinating with the Security Programs Staff; and preparing and submitting Urgent Reports and Security Incident Reports. 15
14 One District Office Security Manager oversees both the Guam a n d Northern Mariana Islands USAOs.

15 Urgent Reports are submitted on significant events of interest or concern to the Attorney General and Deputy Attorney General. Such events include threats against USAO Cont'd.

U.S. Department of Justice Office of the Inspector General Evaluation a n d Inspections Division

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Figure 2 presents the number of threats made against USAO personnel. l6
Figure 2: Number of Threats Against USAO Personnel, FY 2005 Through FY 2008
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Sources: Data from D W Report on the Security of Federal Prosecutors for FY 2005 and FY 2006,and data from USMS threat database for F Y 2007 and FY 2008.

Administrative Office of the U S Courts ..

Under the s u p e ~ s i o n direction of the Judicial Conference of the and United States, the Administrative Office of the U.S. Courts monitors and provides some funding for the USMS's implementation of the judicial facilities security program to provide security inside federal courthouses. Additionally, the Administrative Office of the U.S. Courts has worked with the USMS to obtain supplemental hnding for the USMS to install intrusion detection systems in the residences of federal judges. To date, approximately 1,600judges have had the systems installed in their residences.
personnel, bomb threats that directly involve a USAO, and any emergency that affects the continued operation of a n office.
16 The USMS threat database does not distinguish between attorneys and other USAO personnel. For this analysis, we used Urgent Reports and USMS threat records for all USAO personnel during F Y 2007 and FY 2008.

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The Threat Response Process The USMS district offices receive reports of threats from a variety of sources. Typical sources include judges and their staffs; defense attorneys reporting threats made by their clients; the Federal Bureau of Prisons reporting threats made by inmates; and confidential informants. Threats against U.S. Attorneys and AUSAs may be reported to the USMS by the USA0 District Office Security Manager or the attorney being threatened. Figure 3 shows the threat reporting and response process according to policy. Initial USMS District Res~onse When a threat is reported to the USMS, the District Threat Investigator or the Protective Intelligence Investigator initially determines whether the communication meets the standard of an "inappropriate communication," that is, if it is a legitimate threat. If it does, the District Threat Investigator or the Protective Intelligence Investigator notifies the FBI to determine whether a criminal investigation is warranted. The District Threat Investigator then completes a form, USM-550 Preliminary Threat Report, in the USMS's threat database. The report contains information about the target of the threat, the type of threat, the delivery method, the suspect, other agencies that have been notified, and a brief synopsis of the threat. District Threat Investigators update the case using a form USM- 1 1 Report of Investigation a s more information becomes available. Determining the Threat Risk Level The District Threat Investigator and the Protective Intelligence Investigator, in consultation with the Judicial Security Inspector, assess the risk to the protectee. The risk assessment is a n initial examination of the suspect's intent, motive, and ability to carry out the threat. To determine the risk to the protectee, the District Threat Investigator and Protective Intelligence Investigator consider how, where, and to whom the threat was delivered, whether identities of the victim of the threat and any suspects are known, whether any suspect is incarcerated, whether additional victims were named, and how the suspect intends to carry out the threat. Based on this information, the District Threat Investigator and the Protective Intelligence Investigator categorize the threat a s a low, potential, or high risk threat.

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Figure 3: Threat Response Process

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~

Figure 3: Threat Response Process (Continued)

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Recommending the Appropriate Response Based on the risk assessment, the District Threat Investigator and the Protective Intelligence Investigator recommend an appropriate protective response to the Judicial Security Inspector and the management of the USMS district office. USMS directives establish a progressive protective response based on each of the three risk levels. The protective measures corresponding to these risk levels are considered to be the minimum protective measures that should be implemented for the threat level rating. Risk levels and the associated protective measures are detailed on pages 18 and 19 of this report. Additional protective measures may be implemented if deemed necessary by the District Threat Investigator or Protective Intelligence Investigator.
Conducting the Protective Investigation

The District Threat Investigator or the Protective Intelligence Investigator also conducts a protective investigation to develop further information about the suspect's intent, motive, and likelihood of carrying out the threat, and to mitigate the risk of harm to the protectee.17 If the protective investigation indicates that a threat is likely to be carried out, the District Threat Investigator or the Protective Intelligence Investigator, in consultation with the Judicial Security Inspector, determines an appropriate investigative response to mitigate the threat.
USMS Headquarters Role

Entering the Preliminary Threat Report into the threat database notifies the Threat Management Center within the Office of Protective Intelligence at USMS headquarters of the threat. '8 Using information from the report, the Office of Protective Intelligence conducts background checks of law enforcement databases, including the threat database, to determine whether any data exists on any suspect or previous threats. The Office of Protective Intelligence then makes investigative recommendations and provides its report to the USMS district office within 1 business day after the threat is reported. The Office of Protective Intelligence also conducts a
17 The protective measures and the protective investigation are initiated simultaneously.

18 The USMS opened the Threat Management Center (TMC)at USMS headquarters in September 2007. Duty inspectors are available to respond to the districts' questions and receive reports of threats 24 hours a day.

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computer-based analysis, referred to a s a comparative analysis, using the

Threats Against U.S. Attornevs and AUSAs The District Office Security Managers in the USAOs are responsible for reporting threats received by U.S. Attorneys and AUSAs. A District Office Security Manager may learn of a threat directly fi-om the threatened attorney, a supervisor, or from any other source. When the District Office Security Manager learns of a threat, the Security Manager is required to not@ the USMS, the local FBI office, and EOUSA. The District Office Security Manager notifies EOUSA of a threat by e-mailing an Urgent Report to the EOUSA Security Programs Staff. The Urgent Report contains a oneparagraph synopsis of the facts and a concise summary of the situation surrounding the event. EOUSA Emergencv Support The Threat Management Specialist at EOUSA receives and reviews Urgent Reports to determine if details about the threat, the protective measures implemented by the USMS, or any other pertinent facts were omitted from the report. If information was omitted, the Threat Management Specialist contacts the USAO's District Office Security Manager to request additional information. After reviewing a n Urgent Report, EOUSA may provide emergency security support to the USAO, including a review of the district's security measures and advice and assistance to threatened individuals on dealing with the threat. EOUSA also compiles and coordinates threat-related information with the USMS, the FBI, and other sources to determine the nature of the emergency security support required by the USAO or individual to adequately address the risk posed by the threat. During the threat response process, the Threat Management Specialist maintains contact with the District Office Security Manager to monitor changes in the status of the threat. In addition, the Threat Management Specialist acts a s a liaison with the USMS to obtain any further information that it may have about the threat against a U.S. Attorney or AUSA.
19 A comparative analysis compares the case's known characteristics with the characteristics of previous threat cases maintained in the USMS's threat database. The result of the comparative analysis is expressed as a score that indicates how closely the characteristics of the case being assessed match those of prior cases.

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RESULTS OF THE REVIEW
W found deficiencies in several critical areas of the USMS e threat response program. Federal judges, U.S. Attorneys, and AUSAs do not consistently and promptly report threats they receive. Moreover, we found that when threats are reported, the USMS protective response is not fully or effectively coordinating with other law enforcement agencies to respond to threats against federal court officials. In addition, we found that USA0 personnel without sufficient expertise and training are providing some protective measures for threats against U.S. Attorneys and AUSAs. Moreover, when U.S. Attorneys and AUSAs are threatened, USAOs do not typically provide EOUSA with the information it needs to provide emergency security support to the USAOs and the threatened U.S. Attorneys and AUSAS. Judges, U.S. Attorneys, and AUSAs do not consistently and promptly report threats. Judges, U.S. Attornevs, and AUSAs do not report all threats. Although we could not determine the number of unreported threats, our l i n t e ~ e w and surveys indicate that a s many as a quarter of al threats were s not reported to the USMS. Most federal judges, U.S. Attorneys, and AUSAs told u s that they reported every threat made to them, but others said they did not l report al threats they received. Table 1 summarizes the reporting and nonreporting of threats by judges, U.S. Attorneys, and AUSAs i n t e ~ e w e d or surveyed by the OIG.

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Table 1: Threat Reporting by Protectees
Interviewees Did Not Report Reported All AU Threats Threats
8 (73%)
11 (79%)

Protectee
Judges U.S. Attorneys and AUSAs

Survey Respondents Did Not Report Reported AU AU Threats Threats
174 (78%) 47 (77%) 48 (22%) 14 (23%)

3 (27%) 3 (21%)

Note: The OIG surveyed the federal judges in 2006 and the U.S. Attorneys and AUSAs in 2008. Sources: OIG i n t e ~ e w and surveys. s

The federal judges, U.S. Attorneys, and AUSAs who did not report all threats to the USMS said they did not do so because they believed the threats were not serious. For example, one judge stated that he reported physical or anonymous threats to the USMS, but did not report threats he viewed as vague or indirect. Additionally, one AUSA stated that he did not immediately report a threat he received because he did not take it seriously. A day or two later, he casually mentioned it to a supervisor who then reported it. Federal iudges, U.S. Attornevs, and AUSAs delayed reporting threats to the USMS. We found that even when judges, U.S. Attorneys, and AUSAs reported threats they did not always promptly not@ the USMS of the threats. According to the USMS threat database, during FY 2007 and FY 2008 judges, U.S. Attorneys, and AUSAs reported 1,368 threats.20 Of 766 threats reported by the protectees in FY 2007, 196 (26 percent) were reported to the USMS 2 or more days after the threats were received (Figure 4). Of 602 threats reported in FY 2008, 138 (23 percent) were similarly delayed. In fact, one threat was not reported until 363 days after it was received. Although the number of delayed threat reports decreased from FY 2007 to FY 2008, untimely reporting of threats remains a problem a s it prevents the USMS from immediately ensuring the safety of the protectees.

20 We excluded from this analysis threats that were brought to the attention of the protectee or the USMS by a n informant because there may have been a delay between the date the threat was made and the date the informant reported the threat. We also counted threats that were made to multiple protectees by one threatener on a single date and were reported to the USMS on a single date as one threat.

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REDACTED - FOR PUBLIC RELEASE Figure 4: Number o f Threats Reported After 2 or More Days
120

3

100

3 H
8

I
60

1 z
?

40 20
0
2-7 Days 8-30 days

FY07 FY08

More than 30 days

Number of Days to Report
Source: USMS database.

Federal iudges, U.S. Attorneys. and AUSAs receive insufficient guidance on reporting threats. We believe that the USMS must ensure that judges, U.S. Attorneys, AUSAs, and court personnel are aware of the importance of reporting threats to the USMS. For federal judges, guidance is contained in a security handbook that instructs judges to contact the USMS district office if they receive a threat. However, the USMS is only required to provide the handbook containing the fe guidance on reporting threats a t r the judge is threatened. Moreover, our review of the handbook found that it does not emphasize the consequences of delays or failures to report all threats immediately for the judicial security program to operate most effectively. The USMS told u s that it instructs all Judicial Security Inspectors to provide the off-site security handbook to all members of the judiciary as part of its ongoing efforts to protect the judges. U.S. Attorneys and AUSAs do not receive the USMS's security handbook. Instead, they refer to the U.S. Attorneys' Manual,which establishes fe requirements for what must be done only a t r a threat has been reported to the District Office Security Manager. The manual does not provide USA0 staff with guidance on what to do when they receive a threat, and it does not require that all threats must be reported to the District Office Security Manager. The District Office Security Managers we interviewed stated that they only briefly discuss the need to report with the U.S. Attorneys and AUSAs in their offices. The importance of reporting threats is not being effectively communicated, a s
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demonstrated by our 2008 survey results showing that 6 of the 36 U.S. Attorneys and AUSAs who received training and were threatened did not report the threats. When judges, U.S. Attorneys, and AUSAs do not promptly report to the USMS all threats they receive, the USMS cannot provide timely protection or take other actions to prevent suspects from harming the protectees. Additionally, failure to report all threats makes it more difficult for the USMS to detect patterns of behavior that might indicate a suspect may escalate a threat to a violent attack. Consequently, the ability of the USMS to protect federal judges, U.S. Attorneys, and AUSAs can be compromised. Conclusion and Recommendations To improve the understanding of federal judges, U.S. Attorneys, and AUSAs of the need for prompt reporting of threats and the consequences of delays or failure to report, we recommend that:
1. the USMS clearly explain to protectees the detrimental effect that delays or the failure to report has on the security provided.

2. the USMS update its security handbook to emphasize both the importance of immediately reporting threats to the USMS and the consequences of delays or failures to report.

3. EOUSA amend the U.S. Attorneys' Manual to clearly instruct the AUSAs that all threats must be reported promptly to the District Office Security Manager. Such instruction should include an explanation of the detrimental effect that delays or the failure to report has on the security provided.
4. the USMS review trends in reporting timeliness annually and provide the results of that analysis to the Administrative Office of the U.S. Courts and EOUSA for their use in judicial conferences and attorney training seminars.

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The USMS does not consistently provide an appropriate response for the risk level posed by the threat.
The USMS did not consistentlv use its risk levels in assessing threats. Determining whether the USMS implemented a protective response that was commensurate with the risk to the protectee requires a comparison of the implemented protective measures to the identified risk level of a threat.21 The minimum protective response is the response required by USMS directives, but the districts may implement other protective measures to ensure the safety of the protectee. The minimum protective response is dependent on the risk level determined by the District Threat Investigator. The following is a description of the risk levels and minimum protective measures for each level:

Low risk - Risk of injury or death is assessed as unlikely and it is
determined that the suspect does not appear to currently pose a credible, imminent risk to the protectee. Minimum protective measures to be taken are:

21 In this section, we use the term "threat" to encompass both threatening and inappropriate communications.

Cont'd.
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Potential risk - Risk of injury or death to the protectee is assessed a s possible, but not imminent. These measures are implemented in addition to the protection provided for low level risks.

High risk - Risk of injury or death to the protectee is assessed a s likely. These measures are implemented in addition to the protection provided for low and potential level risks.

We examined the USMS threat database and interviewed USMS personnel to assess whether they determined the risk levels. However, we found no risk level ratings recorded in the threat database for any of the 26 threats we reviewed during our site visits.25 Moreover, District Threat Investigators at the four sites we visited did not consistently use the risk levels as the minimum standard for determining the protective measures they provided to threatened judges, U.S. Attorneys, or AUSAs. Only one of four District Threat Investigators we interviewed said that he performed the risk assessments, although he said he did not document the levels in the threat database.26 He said he did document "potential" and "high" risk level ratings in written threat assessments.27 Although it was his responsibility to do so, a second District Threat Investigator said he does not perform risk assessments.

25 One of the 25 protectees we interviewed during our site visits had 2 threats, which made the total number of threats we reviewed 26.
26 According to USMS Directive 10.14.E. 1, Protection Details, 2006, a risk assessment determines the appropriate level of protective response.
27 According to USMS Directive 10.3.G. 11, Protective Investigations, 2007, a threat assessment is a determination that a suspect either poses a threat or does not pose a threat to a USMS protectee.

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Instead, he said that the Judicial Security Inspector performed them. The only time the third District Threat Investigator said that he performed a risk assessment was to determine whether a protectee needed a protective detail. The fourth District Threat Investigator said he depended upon his experience and knowledge and that he relied on the risk levels only for guidance. None of these three District Threat Investigators documented the risk levels in the threat database. The USMS does not ensure that districts consistentlv provide the minimum protective measures that are reauired for each threat. Although risk levels were not recorded for any of the threats we reviewed, for every threat received by its protectees, the USMS is required to provide at least the protective measures for the low risk level.28 However, we found that the USMS threat database did not contain documentation to show that the minimum required protective measures had been provided to the protectees. Therefore, we sought to determine through i n t e ~ e w whether the USMS s had provided 25 judges and AUSAs at the sites we visited with at least four of the low risk level protective measures in response to the threats they recalled receiving all received.29 Only 1 of the 25 protectees we i n t e ~ e w e d four protective measures required for a low risk level threat. In addition, 5 of the 25 protectees (4judges and 1 AUSA) did not recall receiving any of the required protective measures, and the USMS database did not indicate that they had received any. Figure 5 below presents the results of our analysis.

28 According to USMS Directive 10.3.E.1.b, Protective Investigations, 2007, "when district management receives a report of a threat/inappropriate communication, involving a protectee, steps will be taken immediately to ensure the protectee's safety."
29 As noted previously, we did not include in our analysis the office facility security survey protective measure.

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Figure 5: Number of Protective Measures Provided to 25 Protectees Who Received Threats

0

C , C ,

8 8

25 20 15

,

2 1 10 5 3 'ij 5 :

E

0

L--

L
4

rj Z

0

1

2

3

Number of Low Risk Protective Measures Received

Sources: OIG interviews and USMS database.

Conclusion and Recommendation The USMS does not ensure that the protective measures provided to protectees are commensurate with the threat because the risk assessments are not consistently performed or documented. In addition, the evidence did not show that the USMS was consistently implementing even the minimum protective measures required for the lowest risk threats. We recommend that:
5. the USMS implement controls to ensure that required risk assessments are completed and documented in the USMS threat database, including the assignment of risk levels, and that the protective measures provided in response to each threat also be documented in the USMS threat database.

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REDACTED - F R PUBLIC RELEASE O The USMS does not fully or effectively coordinate with other law enforcement agencies to respond to threats against federal judicial officials. The USMS does not consistentlv track threat referrals to the FBI. We examined the threats against judges, U.S. Attorneys, and AUSAs in the USMS threat database reported during FY 2007 and FY 2008 to determine whether the USMS reported them to the FBI.30 Because the USMS threat management database does not distinguish between threats and inappropriate communications, our analysis may include both. We found that 639 (40 percent) of the 1,587 threats in the database contained no information regarding FBI notifications. Figure 6 displays the notification information for the threats by fiscal year. Figure 6: FBI Threat Notifications in the USMS Threat Database for FY 2007 and F Y 2008
900 800
I

=
z

2 h

700 600 500

336 38% 303 43%

II

100 0
-0

FY 2007
.Notification in Database ONoMication Not in Database Source: USMS threat database.

We also examined whether USMS records indicated that the FBI had been notified of the 2 6 threats we selected for review at the four sites we visited. We found that only 2 1 of the 26 threat entries in the database
30 In this section, we use the term "threat" to encompass both threats and inappropriate communications.

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(81 percent) showed that the FBI had been notified. The remaining 5 entries (19 percent) contained no information in the "Date Notified" field regarding FBI notification.

The USMS threat database is the only written record that informs USMS headquarters of whether or not the FBI h a s been informed of threats, and only the district offices can enter this information based on their actions. If the data fields are blank, the only way that USMS headquarters can venfl that the FBI has been notified of threats is to call the districts and rely on the memory of district personnel. Coordination between the USMS and the FBI is inconsistent among districts, and there are no formal protocols for coordination. USMS and FBI policies state that the two agencies should work closely together to respond to threats against judicial officials.31 We i n t e ~ e w e d District Threat Investigators and FBI Special Agents at each of the four sites we visited to determine the extent of coordination between the USMS and FBI. At two sites, we found that the USMS and FBI coordinate the protective and criminal investigations.
An Example of Inconsistent Statements abou
n
7

slt a r ~ WIUI LCU UIC GI uwu tO y harass a n AUSA who was prosecuting a domestic terrorist, berating him and telling the crowd to find where the AUSA lived i went to ked, whcere his c
5

Wnen m e AUM learnea 01 u s rauy, ne informed the USMS, the USA0 IIistrict I 088ce Security Manager, and thle FBI. '?he anrl USMS and the FBI investigated , monitored the case, but according to the USMS, the FBI took 7 days to respond with its case information. Without the FBI's was unsible investigzitive results, t h e t:o deterrnine wh, ether ar ion of lres w a I~rotectiv ary. ;I stated that it I 1 faction JSMS's I lation sl
-.. --a

.--,.-

.. .

1

However, we received Sources: News articles and inte with inconsistent statements from the the USMS and the FBI. USMS and the FBI about the level of coordination at the other two sites we visited. At both of those sites, the USMS District Threat Investigators stated that the FBI does not communicate
31 When the FBI opens a criminal investigation regarding a threat, the District Threat Investigator should work jointly with the FBI case agent. According to the USMS Guide to Protective Investigations and Contemporary Threat Management, joint investigations with the FBI must be full partnerships, with complete sharing of information and sources, but the district should not delay conducting a protective investigation in deference to the FBI's criminal investigation. The FBI Manual of Investigative Operations and Guidelines states that when the FBI institutes a criminal threat investigation, close liaison should be established with the USMS office responsible for the protectee.

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or share information concerning its criminal investigations. In contrast, the FBI Special Agents said the components were coordinating. The FBI agent at one site stated that he considers himself and the District Threat Investigator to be partners in the investigation. The FBI agent at the other site told us that once the FBI is notified of a threat, the FBI provides all the information it has to the USMS. We also found there is no formal or informal agreement between the USMS and FBI that defines the roles and responsibilities of USMS District Threat Investigators and FBI agents. District Threat Investigators and FBI agents we i n t e ~ e w e