Issues in Homeland Security Policy for the 112th Congress

Congressional research reportSep 22, 2011

Ask Donna

What actually matters in this document.

Text

Issues in Homeland Security Policy for the

112th Congress

(name redacted), Coordinator

Analyst in Emergency Management and Homeland Security Policy

September 22, 2011

Congressional Research Service

7-....

www.crs.gov

R42025

CRS Report for Congress

Prepared for Members and Committees of Congress

Issues in Homeland Security Policy for the 112th Congress

Summary

With the tenth anniversary of the September 11th terrorist attacks, many observers are making a

fresh assessment of where America’s homeland security enterprise stands today. In the wake of

those attacks, Congress made extensive changes to the structure and function of many agencies,

establishing a consolidated Department of Homeland Security and dedicating significant

additional resources expressly to the security of the homeland. After the initial surge of activity,

evolution of America’s response has continued under the leadership of different Administrations,

Congresses, and in a shifting environment of public opinion.

This report outlines an array of homeland security issues that may come before the 112th

Congress. After a brief discussion of the overall homeland security budget, the report divides the

specific issues into five rough categories:

•

Counterterrorism and Security Management

•

Border Security and Trade

•

Immigration

•

Disaster Preparedness, Response, and Recovery

•

Departmental Management

In each of those areas, you will find a survey of topics briefly analyzed by Congressional

Research Service experts. The information included only scratches the surface on most of these

issues. For more detailed information, you may choose to consult their more in-depth works or

consult directly with the individual authors.

This report will not be updated.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Contents

What Is Homeland Security? ........................................................................................................... 1

The Budget and Security ........................................................................................................... 1

Counterterrorism and Security Management ................................................................................... 2

The Transnational Trend of Terrorism ....................................................................................... 2

Homegrown Jihadist Terrorism ................................................................................................. 4

The Threat: Four Key Themes ............................................................................................ 5

Countering the Threat.......................................................................................................... 5

Medical Countermeasures to Chemical, Biological, Radiological, and Nuclear

Terrorism ................................................................................................................................ 7

Terrorist Screening and Background Checks for Firearms and Explosives .............................. 9

Continuity of Government Operations .................................................................................... 10

Federal Building Security: Federal Protective Service............................................................ 12

Judicial and Court Security ..................................................................................................... 13

Food Safety.............................................................................................................................. 14

Security of Pipelines ................................................................................................................ 15

Security of Chemical Facilities................................................................................................ 17

Security of Wastewater and Water Utilities ............................................................................. 17

Cybersecurity........................................................................................................................... 19

Transit Rail Emergency Preparedness ..................................................................................... 20

Border Security and Trade ............................................................................................................. 22

Southwest Border Issues.......................................................................................................... 22

Spillover Violence ............................................................................................................. 22

Illicit Proceeds and the Southwest Border ........................................................................ 23

Southwest Border Gun Trafficking ................................................................................... 25

Cross-Border Smuggling Tunnels ..................................................................................... 26

Cargo Security ......................................................................................................................... 27

Domestic Nuclear Detection.................................................................................................... 29

Port Security ............................................................................................................................ 30

Aviation Security ..................................................................................................................... 31

Explosives Screening Strategy for the Aviation Domain .................................................. 31

The Use of Terrorist Watchlists in the Aviation Domain ................................................... 32

Mitigating the Threat of Shoulder-Fired Missiles to Civilian Aircraft .............................. 34

Airport Access Controls and Physical Security................................................................. 35

Immigration ................................................................................................................................... 36

Screening at Ports of Entry ...................................................................................................... 36

Entry-Exit System ................................................................................................................... 38

Enforcement between Ports of Entry ....................................................................................... 40

CBP Integrity ........................................................................................................................... 41

Disaster Preparedness, Response and Recovery ............................................................................ 42

Disaster Assistance Funding .................................................................................................... 42

DHS State and Local Preparedness Grants .............................................................................. 43

Firefighter Assistance Programs .............................................................................................. 44

Emergency Communications Infrastructure: Next Generation Technologies ......................... 45

National Preparedness System................................................................................................. 46

Public Health and Medical Services ........................................................................................ 47

FEMA Disaster Assistance Recoupment ........................................................................... 48

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

DHS Management and Administration .......................................................................................... 49

The Management Budget ........................................................................................................ 49

DHS Financial Management Reforms .............................................................................. 50

Headquarters Consolidation .............................................................................................. 50

DHS Reorganization Authority ............................................................................................... 51

Department of Homeland Security Personnel Issues............................................................... 53

Workforce Planning........................................................................................................... 53

Leadership Development and Training ............................................................................. 53

Human Resources Information Technology (HRIT) ......................................................... 54

Acquisition .............................................................................................................................. 54

Organization of the Acquisition Function ......................................................................... 55

Acquisition Workforce ...................................................................................................... 55

Balanced Workforce Initiative ........................................................................................... 55

Consolidated Terrorist Watch Lists.......................................................................................... 56

Homeland Security Research and Development ..................................................................... 59

Contacts

Author Contact Information........................................................................................................... 61

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

What Is Homeland Security?

This question has dogged U.S. public policy debates for ten years. At this point, there is no

statutory definition of homeland security. What conventional wisdom defines as “homeland

security missions” and the missions undertaken by the Department of Homeland Security are not

the same.

The Department of Homeland Security (DHS) was established by the Homeland Security Act of

2002 (P.L. 107-296), which was signed into law on November 25, 2002. The new department was

assembled from components pulled from 22 different government agencies and began official

operations on March 1, 2003. Since then, DHS has undergone a series of restructurings and

reorganizations to improve its effectiveness and efficiency.

Although at this point, DHS does include many of the homeland security functions of the federal

government, many of these functions or parts of these functions remain at their original executive

branch agencies and departments, including the Departments of Justice, State, Defense, and

Transportation. Not all of the missions of the Department are officially “homeland security”

missions, either. Some components have historical missions that do not directly relate to

conventional homeland security definitions, such as the Coast Guard’s environmental and boater

safety missions, and Congress has debated whether FEMA and its disaster relief and recovery

missions belong as a part of the Department.

Some issues have implications for homeland security, such as the role of the military in law

enforcement, monitoring and policing transfers of money, human trafficking, explosives and

weapons laws, and several aspects of foreign policy, trade, and economics.

Rather than trying to resolve this debate, this report is limited to topics that generally fall within

the four mission study areas used to develop the Quadrennial Homeland Security Review

mandated by the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 11053):

•

Counterterrorism and Security Management

•

Border Security and Trade

•

Immigration

•

Disaster Preparedness, Response, and Recovery

A fifth section covering management issues at DHS rounds out the discussion.

The issues included in this report do not represent a comprehensive list of possible issues—they

represent a broad array of issues likely to be addressed by Congress in the coming months.

The Budget and Security

According to a recent analysis of data from the Office of Management and Budget (OMB)

conducted by the National Priorities Project, the U.S. government has spent $636 billion (adjusted

for inflation) on homeland security in the wake of the 9/11 attacks. According to the Project’s

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

analysis, spending on homeland security activities has risen over 300% from 2001 to 2011.1

Funding rose every year until it peaked in FY2009 at $74 billion. The total budget request for

homeland security activities for FY2012 is $71.6 billion, a reduction of nearly $2.4 billion from

its high-water mark in nominal terms.

In 2010, for the first time since the establishment of the Department of Homeland Security,

neither the House nor the Senate completed work on its version of an appropriations bill for the

department. This stands in contrast to previous years, when the bill moved relatively easily

through the legislative process, despite the emergence of occasional controversial issues. The

concurrent resolution provided $41.7 billion in discretionary appropriations for DHS for FY2011,

establishing funding levels for some components and activities, while leaving others to be funded

at FY2010 levels. The resolution overall gave the department much less explicit direction from

Congress than previous funding vehicles, in several cases leaving decisions usually made by

Congress about how to allocate limited funds in DHS’s hands.2

Given the increasing level of concern about the size of the federal government’s budget deficit,

security spending will continue to be a target for those seeking budget savings. Under the Budget

Control and Deficit Reduction Act of 2011, security spending is a newly defined category,

including discretionary spending for: the Departments of Homeland Security, Defense, and

Veterans Affairs; the National Nuclear Security Administration; the intelligence community

management account; and all accounts in the international affairs budget function.3 These

accounts will be limited to $684 billion in FY2012—roughly the level they were funded at in

FY2010, and then be required to limit their growth to $2 billion (less than 0.3%) in FY2013.

The current budget environment will likely present challenges to the department going forward,

as DHS’s ongoing efforts to consolidate its headquarters, recapitalize the Coast Guard, upgrade

the department’s technology and management systems, complete data center consolidation, and

maintain its staffing levels will compete with the budget demands of a limited subset of

government agencies for more limited funds. The potential impact of the changed budget

environment is discussed at various points throughout this report.

Counterterrorism and Security Management

The Transnational Trend of Terrorism4

Terrorism remains a transnational threat that entails risks to U.S. global interests emanating from

and manifested in both the international and domestic environment. Central to United States

efforts to address transnational terrorism are actions taken to detect, deter, and defeat Al Qaeda.

Chris Hellman, U.S. Security Spending Since 9/11, National Priorities Project, Northampton, MA, May 26, 2011,

http://nationalpriorities.org/en/publications/2011/us-security-spending-since-911.

For a fuller discussion of this issue, see CRS Report R41189, Homeland Security Department: FY2011

Appropriations, coordinated by (name redacted) and (name redacted).

Even this broader definition of “security spending” does not include homeland security activities in other

departments, such as the Department of Transportation, Department of Justice, and the Department of Energy. For a

discussion of the total federal spending on homeland security missions, see the appendix to CRS Report R41982,

Homeland Security Department: FY2012 Appropriations, coordinated by (name redacted) and (name redacted).

Prepared by John Rollins, Specialist in Terrorism and National Security, [redacted]@crs.loc.gov, 7-.....

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

While recognizing that numerous other terrorist groups may wish to harm U.S. global security

interests, the June 2011 release of the Administration’s National Strategy for Counterterrorism

was nonetheless primarily focused on addressing threats from Al Qaeda.5 In a statement before

the United Nations Counterterrorism Committee on July 20, 2001, Daniel Benjamin, the

Coordinator of the Office of the Counterterrorism at the State Department, said “rather than trying

to combat directly every single terrorist organization regardless of whether they have the intent or

capability to ever attack the U.S. or our citizens, President Obama’s counterterrorism strategy is

(focused on) Al Qaeda and its affiliates and adherents.”6 Understanding the global nature and

capabilities of this subset of terrorist groups and individuals is central to formulating sound

strategic policy and overseeing its effective implementation.7

The past few years have witnessed an increase in terrorist actions by entities claiming some

affiliation with or philosophical connection to Al Qaeda. Many of the past year’s global terrorist

attacks were conducted by individuals or small terrorist cells that received support ranging from

resources and training to having minimal connections, if any, with the terrorist groups to which

they claim allegiance. Some argue that recent U.S. counterterrorism successes may be reducing

the level of terrorist threats to the nation emanating from core Al Qaeda. U.S. officials suggest

that the killing of Osama bin Laden in May 2011 coupled with continuous post-9/11 global

military and intelligence counterterrorism actions has significantly degraded Al Qaeda’s ability to

successfully launch a catastrophic terrorist attack against U.S. global interests.8 Others suggest

that Al Qaeda has changed from an organization to a philosophical movement, making it more

difficult to detect and defeat. These security experts suggest that Al Qaeda and associated

affiliates will remain viable, due in part to the prospective security implications related to the

nation’s budgetary situation. Noted author on counterterrorism issues, Daveed Gartenstein-Ross,

argues that “the U.S. will not be (defeated) by Al Qaeda. But one can see that as the national debt

increases, we (will) have to make spending cuts and as Al Qaeda gets stronger in multiple

countries simultaneously—Somali, Yemen, Pakistan, maybe Mali—suddenly you’re looking at

multiple theaters from where catastrophic strikes can be launched.”9 The long-term fiscal

implications of United States counterterrorism policies and responses appear to be of concern to

John Brennan, the Assistant to the President for Homeland Security and Counterterrorism. In June

2011, Mr. Brennan spoke of Osama bin Laden’s often stated objective of pursuing global acts of

terrorism against the nation interests with the desire to “bleed [the United States] financially by

drawing us into long, costly wars that also inflame anti-American sentiment.”10

The terrorist threat to U.S. global interests will likely remain a critical issue for the

Administration and 112th Congress. Over the past few years numerous individuals were arrested

in the homeland and abroad for conducting attacks and planning terrorism-related activities

National Strategy for Counterterrorism, released June 29, 2011, available at http://www.whitehouse.gov/.

Remarks by Daniel Benjamin, Coordinator, State Department, Office of the Coordinator for Counterterrorism, Before

the United Nations Counterterrorism Committees, July 20, 2011.

For more information on this issue see CRS Report R41070, Al Qaeda and Affiliates: Historical Perspective, Global

Presence, and Implications for U.S. Policy, coordinated by John Rollins.

Greg Miller, U.S. Officials believe al-Qaeda on the Brink of Collapse, The Washington Post, July 28, 2011.

http://www.washingtonpost.com/world/national-security/al-qaeda-could-collapse-us-officials-say/2011/07/21/

gIQAFu2pbI_story.html.

Spencer Ackerman, Even Dead, Osama Has a Winning Strategy, Wired, July 20, 2011. http://www.wired.com/

dangerroom/2011/07/even-dead-osama-has-a-winning-strategy-hint-its-muhammad-alis/.

Remarks by the John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, before the

Paul H. Nitze School of Advanced International Studies, June 29, 2011.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

directed at U.S. national security interests. All of the attacks—successful and unsuccessful—were

of a transnational dimension and ranged from a lone shooter who appears to have become

radicalized over the Internet to terrorist organizations wishing to use airliners as platforms for

destruction to individuals attempting to detonate large quantities of explosives in symbolic areas

frequented by large groups of people.

The first session of the 112th Congress undertook efforts, largely through hearings, to better

understand the nature of terrorism in various geographic regions and assess the effectiveness of

U.S. and partnering nations’ counterterrorism efforts. Programs and policies that the 112th

Congress reviewed include public diplomacy efforts; imposition of sanctions; terrorism financing

rules; the nexus between international crime, narcotics, and terrorism; and the relationship

between domestic and international terrorism activities. The second session of the 112th Congress

may desire to assess the Obama Administration’s counterterrorism-related strategies, policies, and

programs to ascertain if additional guidance or legislation is required. These assessments will

likely entail considerations of how best to balance perceived risks to U.S. global security interests

with concerns about the long-term fiscal challenges facing the nation.

Homegrown Jihadist Terrorism11

As part of a much-discussed apparent increase in terrorist activity in the United States, CRS

estimates that since May 2009 arrests have been made in more than 30 homegrown jihadist12

terrorist plots by American citizens or legal permanent residents of the United States. 13 Two of

these resulted in attacks—U.S. Army Major Nidal Hasan’s alleged assault at Fort Hood in Texas

and Abdulhakim Muhammed’s shooting at the U.S. Army-Navy Career Center in Little Rock,

AR—that produced 14 deaths. By comparison, in more than seven years from the September 11,

2001 terrorist strikes (9/11) through May 2009, there were 21 such plots.14 Two resulted in

attacks, and never more than six occurred in a single year (2006).15 The apparent spike in such

activity after May 2009 suggests that at least some Americans—even if a tiny minority—are

susceptible to ideologies supporting a violent form of jihad. Most of the homegrown plots after

Prepared by (name redacted), Specialist in Organized Crime and Terrorism, [redacted]@crs.loc.gov, 7-..... This

section of this report does not presume the guilt of indicted individuals in pending federal cases.

For this report, “homegrown” describes terrorist activity or plots perpetrated within the United States or abroad by

American citizens, legal permanent residents, or visitors radicalized largely within the United States. “Jihadist”

describes radicalized Muslims using Islam as an ideological and/or religious justification for belief in the establishment

of a global caliphate—a jurisdiction governed by a Muslim civil and religious leader known as a caliph—via violent

means. Jihadists largely adhere to a variant of Salafi Islam—the fundamentalist belief that society should be governed

by Islamic law based on the Quran and adhere to the model of the immediate followers and companions of the Prophet

Muhammad.

In a December 7, 2010 report, CRS listed 43 plots and attacks by homegrown jihadists that occurred between

September 11, 2001, and November 2010. The number has risen since then, as additional plots occurred after

November 2010. See CRS Report R41416, American Jihadist Terrorism: Combating a Complex Threat, by (name reda

cted). Hereinafter: Bjelopera,

American Jihadist.

For more information on these attacks see Appendix A in Bjelopera, American Jihadist.

The two attacks between 9/11 and May 2009 involved Hasan Akbar and Mohammed Reza Taheri-Azar. On March

23, 2003, two days after the U.S. invasion of Iraq, U.S. Army Sergeant Akbar killed two U.S. Army officers and

wounded 14 others at U.S. Army Camp Pennsylvania in Kuwait, 25 miles from the Iraq border. On March 3, 2006,

Taheri-Azar, a 22-year-old naturalized American citizen from Iran, drove his sport utility vehicle (SUV) into a crowd at

The Pit, a popular student gathering spot at the University of North Carolina at Chapel Hill. The SUV struck and

injured several people.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

May 2009 likely reflect a trend in jihadist terrorist activity away from schemes directed by core

members of significant terrorist groups such as Al Qaeda.

The Threat: Four Key Themes

Homegrown violent jihadist activity since 9/11 defies easy categorization. CRS analysis of the

terrorist plots and attacks since 9/11 suggests four broad themes:

•

Various Endgames: Plots have involved individuals interested in a variety of

ways to harm U.S. interests. Some individuals focused their efforts on becoming

foreign fighters in conflict zones, such as Somalia. Others planned attacks using

explosives, incendiary devices, or firearms. Yet others incorporated multiple,

unspecific, or unique tactics. Finally, outside of the post-9/11 violent plots,

additional individuals intended only to fund or materially support jihadist

activities.

•

Little Interest in Martyrdom: A minority of homegrown jihadists clearly

exhibited interest in killing themselves while engaged in violent jihad.

•

Success of Lone Wolves: Individuals acting alone, so-called “lone wolves,”

conducted all four successful homegrown attacks since 9/11.

•

Divergent Capabilities: The operational capabilities of participants diverge

greatly. Some evinced terrorist tradecraft such as bomb-making skills. Others

appeared to be far less experienced.

Countering the Threat

The Obama administration has recognized the significance of the homegrown jihadist threat in

two of its recent strategy documents. In June 2011 it announced its National Strategy for

Counterterrorism.16 The strategy focuses on Al Qaeda, its affiliates (groups aligned with it), and

its adherents (individuals linked to or inspired by the terrorist group).17 John Brennan, President

Obama’s top counterterrorism advisor publicly described the strategy as the first one, “that

designates the homeland as a primary area of emphasis in our counterterrorism efforts.”18

In August 2011, the Obama Administration also released a strategy for combating violent

extremism.19 It revolves around countering the radicalization of all types of potential terrorists. As

such, the radicalization of violent jihadists falls under its purview. The strategy’s domestic focus

includes general philosophical statements about the importance of protecting civil rights, federal

White House, National Strategy for Counterterrorism, June 2011, http://www.whitehouse.gov/sites/default/files/

counterterrorism_strategy.pdf. Hereafter: National Strategy.

Ibid, p. 3.

Mathieu Rabechault, “U.S. Refocuses on Home-Grown Terror Threat,” AFP, June 29, 2011, http://www.google.com/

hostednews/afp/article/ALeqM5hLyJyB7khhqIxWOOlm1mCj7fYsRQ?docId=

CNG.3f90005700ea65e0b05509a135c7a3a8.471; Karen DeYoung, “Brennan: Counterterrorism Strategy Focused on

al-Qaeda’s Threat to Homeland,” Washington Post, June 29, 2011, http://www.washingtonpost.com/national/nationalsecurity/brennan-counterterrorism-strategy-focused-on-al-qaedas-threat-to-homeland/2011/06/29/

AGki1LrH_story.html.

White House, Empowering Local Partners to prevent Violent Extremism in the United States, August 2011,

http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

cooperation with local leaders in the private and public sectors, and the insistence that the strategy

does not center solely around fighting one particular radical ideology.20 However, the eight-page

document lacks details, especially when compared to the approaches of other nations. The

unclassified United Kingdom’s counter-radicalization strategy, known as “Prevent,” details

numerous specific programs and is over 100 pages long.21 One radicalization expert described the

U.S. strategy as “very aspirational.”22

Congress may wish to consider oversight

of the Obama Administration’s new

strategy to combat violent extremism,

since it lacks specifics. From a more

strictly counterterrorism perspective,

critics also note that there is no national

estimate of domestic terrorist threats;

national domestic intelligence collection

plan; nor domestic intelligence collection

requirements, priorities, or coordination.

Congress may also wish to consider

requiring the Director of National

Intelligence to examine whether and how

to develop a national domestic

intelligence framework or plan as part of a

unified strategy to combat violent

extremism within the United States.

Radicalization

Radicalization and terrorism are terms that are sometimes

used interchangeably but do not necessarily mean the same

thing. Radicalization has been described as the exposure of

individuals to ideological messages and the movement of those

individuals from mainstream beliefs to extremist viewpoints.23

Others say radicalization consists of changes in belief and

behavior to justify intergroup violence and personal or group

sacrifice to advance specific closely held ideas.24 The United

Kingdom’s “Prevent” counter-radicalization strategy defines

radicalization as: “the process by which a person comes to

support terrorism and forms of extremism leading to

terrorism.”25 The Obama Administration’s counterradicalization strategy frames its discussion around “violent

extremists” which it defines as “individuals who support or

commit ideologically-motivated violence to further political

goals.”26

While “radicalization” and “terrorism” are certainly related,

an important distinction between the terms exists as they

relate to the threshold of U.S. law enforcement interest and

action. This is because Americans have the right under the

First Amendment to adopt, express, or disseminate ideas,

even hateful and radical ones. But when radicalized individuals

mobilize their views, i.e., they move from a radicalized

viewpoint to membership in a terrorist group, or to planning,

materially supporting, or executing terrorist activity, then the

nation’s public safety and security interests are activated.

In the post-9/11 environment, the public

expects law enforcement to disrupt

terrorist plots before an attack occurs.

This has lead authorities to adopt a

preventive policing approach that focuses

not just on crime that has occurred, but on

the possibility that a crime may be committed in the future. In this context, a major challenge for

Eileen Sullivan, “New White House Strategy to Hit Violent Extremism,” Associated Press, August 3, 2011,

http://www.google.com/hostednews/ap/article/ALeqM5hLU4EFgXfCXmXryTs3Z3UpSRO8CA?docId=

a159313d96c14cff94e4b5a87bc53730.

Home Office, Prevent Strategy, June 2011, http://www.homeoffice.gov.uk/publications/counter-terrorism/prevent/

prevent-strategy/prevent-strategy-review?view=Binary.

Dina Temple-Raston, “White House Unveils Counter-Extremism Plan,” NPR, August 3, 2011, http://www.npr.org/

2011/08/03/138955790/white-house-unveils-counter-extremism-plan. For more on what a counter-radicalization

strategy for the U.S. should broadly entail, see Peter Neumann, Preventing Violent Radicalization in America,

Bipartisan Policy Center (June 2011), http://www.bipartisanpolicy.org/sites/default/files/NSPG.pdf.

Royal Canadian Mounted Police, National Security Criminal Investigations, Radicalization: A Guide for the

Perplexed, Canada, June 2009, p. 1.

Clark McCauley and Sophia Moskalenko, “Mechanisms of Political Radicalization: Pathways Toward Terrorism,”

Terrorism and Political Violence, vol. 20, no. 3 (July 2008), p. 416.

Home Office, Prevent Strategy, June 2011, p. 108, http://www.homeoffice.gov.uk/publications/counter-terrorism/

prevent/prevent-strategy/prevent-strategy-review?view=Binary.

Empowering Local Partners to Prevent Violent Extremism in the United States, August 2011, p. 1,

http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

federal law enforcement, particularly the Federal Bureau of Investigation (FBI), is gauging how

quickly and at what point individuals move from radicalized beliefs to violence so that a terrorist

plot can be detected and disrupted. A 2008 revision to the Attorney General’s Guidelines for

Domestic Federal Bureau of Investigation Operations was intended to be helpful in this regard,

streamlining FBI investigations and making them more proactive. The revision permits the

Bureau to conduct assessments of individuals or groups without factual predication.27 However,

the new guidelines have generated some controversy among civil libertarians. The FBI is further

revising the guidelines.28

To counter violent jihadist plots, both U.S. and foreign law enforcement agencies have employed

two sets of innovative tactics. Using violations of civil laws to arrest and prosecute suspected

terrorists and their support networks is known as taking the “Al Capone” approach, in reference

to the federal government’s successful use of the mobster’s violations of tax law to bring him

down. Law enforcement has also successfully used “agents provocateurs” – people employed to

associate with suspects and incite them to commit acts that they can be arrested for. These tactics

have long been used in a wide variety of criminal cases but have particular utility in

counterterrorism investigations as they allow suspects to be arrested prior to the commission of a

terrorist act rather than after the damage has been done.

Law enforcement agencies also appreciate that the prevention of terrorist attacks requires the

cooperation and assistance of the public, particularly American Muslim communities. Currently,

numerous U.S. government agencies conduct outreach, engage, and partner with these

communities.

Medical Countermeasures to Chemical, Biological, Radiological,

and Nuclear Terrorism29

Successful deployment of effective medical countermeasures, such as drugs or vaccines,

following a chemical, biological, radiological, or nuclear (CBRN) terrorist attack could reduce

the effects of an attack. The federal government has created several programs over the last decade

to develop, procure, and distribute CBRN medical countermeasures. Despite these efforts, the

pharmacuetical industry has developed only a few new countermeasures and many experts

question the government’s ability to quickly distribute countermeasures following an attack. The

112th Congress is considering reauthorizing some of these programs, as well as further enhancing

the federal government’s ability to develop, procure, and distribute medical countermeasures.

In 2004, Congress passed the Project BioShield Act (P.L. 108-276) to encourage the private sector

to develop CBRN medical countermeasures by creating a guaranteed federal market.30 Congress

According to the Guidelines, Section II, “Investigations and Intelligence Gathering,” (p. 17), “Assessments …

require an authorized purpose but not any particular factual predication.… [T]he FBI must proactively draw on

available sources of information to identify terrorist threats and activities. It cannot be content to wait for leads to come

in through the actions of others, but rather must be vigilant in detecting terrorist activities to the full extent permitted by

law, with an eye towards early intervention and prevention of acts of terrorism before they occur.” For more

information see CRS Report R41780, The Federal Bureau of Investigation and Terrorism Investigations, by (name reda

cted).

Charlie Savage, “F.B.I. Agents Get Leeway to Push Privacy Bounds,” New York Times, June 12, 2011,

http://www.nytimes.com/2011/06/13/us/13fbi.html?_r=2&hp.

Prepared by (name redacted), Specialist, Science and Technology Policy, [redacted]@crs.loc.gov.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

advance appropriated $5.6 billion for Project BioShield acquisitions for FY2004-FY2013.

Through July 2011, the federal government had obligated $2.563 billion of this advance

appropriation to acquire CBRN countermeasures. Congress removed an additional $1.461 billion

from this account through rescission or transfers to other programs. The President has requested

transferring $765 million from this account to other CBRN-development related accounts for

FY2012. Congress is also considering other Project BioShield related proposals. These include

whether to extend the program authority beyond FY2013, whether to change the structure and

purpose of the account, and how much funding should be authorized for acquisition through this

account.

In 2006, Congress passed the Pandemic and All-Hazard Preparedness Act (P.L. 109-417) creating

the position of the Assistant Secretary for Preparedness and Response (ASPR) in the Department

of Health and Human Services (HHS), in part, to improve the planning, coordination, and

accountability of the government’s efforts to perform CBRN countermeasure advanced research,

development, and procurement. Congress is considering whether changes to existing programs or

new programs would further improve governmentwide CBRN countermeasure efforts. These

include moving programs for countermeasure stockpiling and distribution to ASPR, allowing

more flexibility in using Project BioShield-appropriated funds, and improving planning and

transparency by requiring a new countermeasure implementation plan and a five-year budget

plan. Additionally, the President has requested the creation of a nongovernmental strategic

investment firm. This firm would provide capital and business advice to small companies

developing medical countermeasure-related technologies that could fill government needs.

Distribution of existing medical countermeasures against potential CBRN agents remains a

challenge. The federal government has attempted to address this challenge through programs that

stockpile and distribute stores of medical countermeasures, including the Centers for Disease

Control and Prevention’s (CDC’s) Strategic National Stockpile (SNS). Many experts question the

sufficiency of current federal programs to distribute federal stockpiles to states and localities in

the midst of an emergency, and whether state governments have sufficient plans, organization,

and resources to receive federal stockpiles and effectively disseminate them. The 112th Congress

is considering whether transferring the CDC’s SNS to ASPR would improve the efficiency and

coordination of the countermeasure development and procurement programs with the stockpiling

and distribution programs. Congress is evaluating the effectiveness of current federal programs

designed to help state and local governments improve their stockpiling and distribution programs.

Congress may also consider to what extent other stockpiling and distribution methods should

augment the SNS. Such methods include home or business countermeasure stockpiling and using

the postal service to distribute countermeasures. These proposals may improve countermeasure

distribution but also raise some issues regarding program costs, unintended use of stockpiles, and

ability of local authorities to fully implement programs. Finally, Congress may consider HHS’s

request for changes to its authority to allow the use of unapproved countermeasures in

emergencies. According to HHS, these changes would allow greater flexibility in prepositioning

countermeasures and thus improve countermeasure distribution in response to an emergency.

(...continued)

See CRS Report R41033, Project BioShield: Authorities, Appropriations, Acquisitions, and Issues for Congress, by

(name redacted).

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Terrorist Screening and Background Checks for Firearms and

Explosives31

The November 2009 Fort Hood shootings renewed interest in terrorist watch lists and firearmsrelated background checks through the National Instant Criminal Background Check System

(NICS). Since February 2004, when the Department of Justice first incorporated terrorist watch

list checks into the NICS process, three possible issues have emerged for Congress. First, should

terrorist watch list checks be incorporated statutorily into the firearms- and explosives-related

background check processes? Second, should approved firearm transfer records be maintained on

a temporary basis to determine whether persons of interest in counterterrorism investigations have

obtained firearms improperly? Third, should persons watch-listed as known or suspected

terrorists be prohibited statutorily from possessing firearms and explosives?

Before 2004, the Federal Bureau of Investigation (FBI) did not conduct terrorist watch list queries

as part of NICS background checks pursuant to the Brady Handgun Violence Prevention Act (P.L.

101-159). Such watch list checks were not conducted, because being a known or suspected

terrorist was not, and is not, a disqualifying factor for firearms or explosives transfer and

possession eligibility. In February 2004, however, the FBI modified its NICS operating

procedures and began querying terrorist watch list records for both firearms and explosives

transfers. Terrorist watch list records were downloaded into the National Crime Information

Center (NCIC), one of the computer systems that is queried by NICS and includes several “hot

files” on persons who are of interest to U.S. law enforcement agencies, and who are also usually

prohibited under federal law from possessing a firearm and/or explosives.

Today, the NCIC “hot file” into which terrorist watch list records are downloaded is the Known

and Appropriately Suspected Terrorist (KST) file. Formerly, watch list records were downloaded

into the NCIC Violent Gang and Terrorist Offender File (VGTOF). Information related to the

subjects of NICS-generated terrorist watch list hits were, and are, passed on to FBI

Counterterrorism Division and special agents in the field, who are usually members of Joint

Terrorism Task Forces (JTTFs) for two purposes, principally: (1) to validate the match between

the individual and the watch list record, and (2) to check for information that would prohibit that

individual, the prospective transferee, licensee, or permittee, from possessing firearms or

explosives (e.g., illegal immigration or fugitive status). Despite these measures, the Government

Accountability Office (GAO) has reported that subjects of valid terrorist watch list matches have

been transferred firearms and, less frequently, explosives.32 Beginning in the 109th Congress,

these GAO reports lent impetus to legislative proposals that would grant the Attorney General

authority to not only screen applicants against the terrorist watch list, but to deny them firearms

and explosives transfers based solely on having been placed on a terrorist watch list by federal

agents.

Prepared by (name redacted), Specialist in Domestic Security and Crime Policy, [redacted]@crs.loc.gov, 7-....;

and (name redacted), Legislative Attorney, [redacted]@crs.loc.gov, 7-.....

From February 2004 through December 2010, out of 1,453 federal firearms-related background checks that resulted

in valid terrorist watch list hits, 1,321 (90.9%) were allowed to proceed. U.S. Government Accountability Office,

Update on Firearm and Explosives Background Checks Involving Terrorist Watch List Records, for the Honorable

Frank R. Lautenberg, United States Senate, April 27, 2011, p. 2.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

As Senator Susan M. Collins observed in May 2011, however, denying a firearms transfer raises

issues, possibly constitutional in nature, that denying an explosives license or permit does not.33

At the same time, Senators Collins and Joseph I. Lieberman expressed their shared concern about

the fact that known and suspected terrorists had passed federal background checks and acquired

firearms and explosives legally through normal commercial channels, despite valid terrorist watch

list hits.34 They also noted that Muslim extremists (radicalized jihadists) and other terrorists had

used, or had planned to use, firearms and explosives with deadly effect in the past.35 Such

concerns were recently reinforced by Al Qaeda’s U.S.-born spokesperson, Adam Gadahn, when

he exhorted Muslim extremists in the United States to acquire firearms and carry out terrorist

attacks in the United States in a June 2011 Internet posting.36

To address such concerns in the 112th Congress, Senator Frank R. Lautenberg and Representative

Peter T. King have reintroduced the Denying Firearms and Explosives to Dangerous Terrorists

Act of 2011 (S. 34/H.R. 1506).37 Based on an April 2007 Department of Justice legislative

proposal, this bill would authorize the Attorney General to deny a firearms transfer, state-issued

firearms permit, or explosives license/permit to any person who has been found “to be or have

engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.” Supporters

have dubbed this legislation the “Terror Gap” proposal; they include 550 mayors of U.S. cities.38

On the other hand, the National Rifle Association (NRA) and other opponents of the bill argue

that the Terror Gap proposal, if enacted, would be unconstitutional, because it would allow the

Attorney General to deny a person his “individual right to keep and bear arms,” and would do so,

“without due process of law.”39 Supporters of the Terror Gap bill counter that it would provide a

level of redress and due process that is currently unavailable to others who face a denial of some

benefit or activity, because they are identified as known or suspected terrorists through other

federal terrorist watch list screening activities.

Continuity of Government Operations40

Continuity of government operations refers to programs and initiatives to ensure that governing

entities are able to recover from a wide range of potential operational interruptions. Government

Terrorists and Guns: The Nature of the Threat and Proposed Reforms: Hearing Before the S. Comm. on Homeland

Sec. and Gov’t Affairs, 111th Cong. May 5, 2010 (CQ Congressional Transcripts).

Ibid.

Larry McShane, “Terror At Gun Store. U.S. Great Place To Buy Firearms, ‘American Al Qaeda’ Tells Jihadis,”

Daily News (New York), June 4, 2011, p. 6.

In addition, during consideration of the FISA Sunsets Reauthorization Act of 2011 (H.R. 1800) in the House

Judiciary Committee, Representative Mike Quigley offered an amendment that would have allowed the Attorney

General to deny a firearms transfer to any person about whom the Attorney General gathered information during the

course of a national security investigation (under FISA), if that information generated a “reasonable belief” that the

firearm(s) might be used by the prospective transferee in terrorism-related conduct. This amendment was defeated by a

vote of 11 to 21 in full-committee markup.

Letter from Mayors Against Illegal Guns to the Honorable John Boehner, Speaker of the House, and the Honorable

Harry Reid, Senate Majority Leader, “Re: 550 Mayors Call on Congress to Support H.R. 1506/S. 34 and Close the

‘Terror Gap,’” May 11, 2011.

National Rifle Association-Institute for Legislative Action, “Keeping An Eye On ‘Terror Watchlist’ Legislation, May

20, 2011.

Prepared by (name redacted), Specialist in American National Government, Government and Finance Division,

[redacted]@crs.loc.gov, 7-.....

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

continuity planning may be viewed as a process that incorporates preparedness capacities,

including agency response plans, employee training, recovery plans, and the resumption of

normal operations. These activities are established in part to ensure the maintenance of civil

authority, provision of support for those affected by an incident, infrastructure repair, and other

actions in support of recovery. Arguably, any emergency response presumes the existence of an

ongoing, functional government to fund, support, and oversee recovery efforts. Interruptions for

which contingency plans might be activated include localized acts of nature, accidents,

technological emergencies, and military or terrorist attack-related incidents.

Current authority for executive branch continuity programs is provided in a 2007 National

Security Presidential Directive (NSPD) 51 on National Continuity Policy.41 To support the

provision of essential government activities, NSPD 51 sets out a policy “to maintain a

comprehensive and effective continuity capability composed of continuity of operations42 and

continuity of government43 programs in order to ensure the preservation of our form of

government44 under the Constitution and the continuing performance of national essential

functions (NEF) under all conditions.”

Executive Order (E.O.) 12656, Assignment of Emergency Preparedness Responsibilities, was

issued in 1988,45 and assigns national security emergency preparedness responsibilities to federal

executive departments and agencies. E.O. 12656 requires the head of each federal department and

agency to “ensure the continuity of essential functions in any national security emergency by

providing for: succession to office and emergency delegation of authority in accordance with

applicable law; safekeeping of essential resources, facilities, and records; and establishment of

emergency operating capabilities.” Subsequent sections require each department to carry out

specific contingency planning activities in its areas of policy responsibility.

Although contingency planning authorities are chiefly based on presidential directives, Congress

could consider whether current authorities accurately reflect current government organization and

goals, the costs of these programs, potential conflicts that might result from departments and

agencies complying with different authorities, and the extent to which government contingency

planning ensures that the federal executive branch will be able to carry out its responsibilities

under challenging circumstances.

White House, Office of the Press Secretary, National Security and Homeland Security Presidential Directive, May 9,

2007, HSPD 51 is also identified as Homeland Security Presidential Directive (HSPD) 20 A more detailed discussion

of national continuity policy is available in CRS Report RS22674, National Continuity Policy: A Brief Overview, by (na

me redacted).

NSPD 51 identifies continuity of operations (COOP) as “an effort within individual executive departments and

agencies to ensure that Primary Mission-Essential Functions continue to be performed during a wide range of

emergencies, including localized acts of nature, accidents, and technological or attack-related emergencies.”

NSPD 51 identifies continuity of government (COG) as “a coordinated effort within the federal government’s

executive branch to ensure that national essential functions continue to be performed during a catastrophic emergency.”

The directive notes “that each branch of the federal government is responsible for its own continuity programs,” and

requires an executive branch official to “ensure that the executive branch’s COOP and COG policies ... are

appropriately coordinated with those of the legislative and judicial branches in order to … maintain a functioning

federal government.” The legislative branch and the federal judiciary maintain continuity programs consonant with

their positions as coequal branches of government. NSPD 51 does not specify the nature of appropriate coordination

with continuity planners in the legislative and judicial branch.

53 FR 47491; November 23, 1988.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Federal Building Security: Federal Protective Service46

In FY2009, the government’s real property47 comprised over 900,000 assets.48 The security of this

federal property affects not only the daily operations of the federal government but the safety of

federal employees and the public. A number of this property is multi-tenant federal buildings that

house federal courthouses, and some congressional state and district offices. Security of federal

facilities includes physical security assets such as closed-circuit television cameras, barrier

material, and security personnel.49

The Federal Protective Service (FPS), as the lead “Government Facilities Sector Agency” for the

National Infrastructure Protection Plan, is responsible for the protection and security of federally

owned and leased buildings, property, and personnel.50 P.L. 111-83 (FY2010 appropriations for

the Department of Homeland Security), transferred FPS from Immigration and Customs

Enforcement to the National Protection and Programs Directorate in DHS. In general, FPS

undertakes security and law enforcement activities that reduce vulnerability to criminal and

terrorist threats, which include all-hazards based risk assessments; emplacement of criminal and

terrorist countermeasures, such as vehicle barriers and closed-circuit video cameras; law

enforcement response; assistance to federal agencies through facility security committees; and

emergency and safety education programs. FPS also assists other federal agencies, such as the

U.S. Secret Service at National Special Security Events. Federal agencies protected by FPS pay a

fee that is established by the Office of Management and Budget, which has been directed to

increase the fee as appropriate to address threats and to adjust the existing fee for FY2011.51 FPS

employs approximately 1,225 law enforcement officers, investigators, and administrative

personnel; and it administers the services of approximately 15,000 contract security guards.

Federal facility security practices have been subject to criticism by government auditors and

security experts, and have been the topic of congressional oversight hearings.52 Elements that

have received criticism include the use of private security guards, FPS management and security

practices, and the coordination of federal facility security. According to FPS, it plans to (1)

improve the strategic methods used in identifying and reducing actual and potential threats

directed at FPS-protected facilities; (2) restore proactive monitoring activities to mitigate the

increased risk to these facilities; (3) improve the service provided by contract security guard

forces through acquisition strategies and “intensive” monitoring and training; (4) develop riskbased security standards tied to intelligence and risk-assessments; (5) refine business practices

through stakeholder interface; and (6) implement a capital plan that will improve security and

Prepared by (name redacted), Analyst in Homeland Security Policy, Government and Finance Division,

[redacted]@crs.loc.gov, 7-..... For more information on this issue, see CRS Report R41138,Federal Building,

Courthouse, and Facility Security, by (name redacted) and (name redacted), and CRS Report RS22706,The Federal

Protective Service and Contract Security Guards: A Statutory History and Current Status, by (name redacted).

Real property is defined as property that is leased or owned by the General Services Administration.

U.S. Government Accountability Office, Federal Real Property: Overreliance on Leasing Contributed to High-Risk

Designation, GAO-11-879T, August 4, 2011, p. 1, http://www.gao.gov/new.items/d11879t.pdf.

These security guards are both federally employed and contracted.

40 U.S.C. 1315.

Information regarding any changes to FPS or their operations in FY2012 has not been addressed.

U.S. Congress, House Committee on Homeland Security, Subcommittee on Cybersecurity, Infrastructure Protection,

and Security Technologies, Securing Federal Facilities: Challenges of the Federal Protective Service and the Need For

Reform, 112th Cong., 1st sess., July 13, 2011.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

customer service.53 Congress will likely continue oversight of FPS management and operations in

the 112th Congress to ensure that it has the necessary staffing, resources, and funding to carry out

its mission.

Judicial and Court Security54

By statute 28 U.S.C. §566(a), the U.S. Marshals Service (USMS), within the Department of

Justice, has primary responsibility for the security of more than 2,000 sitting federal judges and

approximately 5,250 other court officials at over 400 court facilities in the United States and its

territories. An appointed U.S. marshal has security responsibility in each of the 94 federal judicial

districts and the District of Columbia Superior Court. U.S. marshals provide and oversee security

with over 4,500 court security officers (under contract with USMS). According to USMS, threats

and inappropriate communications against judges and other protectees have more than doubled

from 592 each year in 2003 to approximately 1,400 each year in 2011.55

Congress has enacted legislation to improve the safe conduct of court proceedings and to

strengthen judicial and court security. For example, Congress passed the Court Security

Improvement Act of 2007 (P.L. 110-177), a bill to enhance security for judges, court personnel,

and members of the public visiting court facilities (following the murders and violence against

judges and their families, and court personnel at the federal and state level in 2005 and 200656). In

May 2005, Congress enacted legislation to provide home intrusion detection systems for judges

(P.L. 109-13). On March 14, 2011, legislation was introduced (H.R. 1059) to provide permanent

authority to the Judicial Conference of the United States for redacting financial disclosure reports

filed by a judicial officer or employee if the personal information could compromise the security

of the individual or a family member. Current redaction authority, granted under the Ethics in

Government Act of 1978, expires at the end of 2011. H.R. 1059 passed the House under

suspension of the rules on September 12, 2011.

After a deputy U.S. marshal was wounded and a court security officer was killed at the Lloyd D.

George U.S. Courthouse and Federal Building in Las Vegas in January 2010, USMS convened a

National Security Review Committee. The committee was tasked to determine whether adequate

procedures and practices are in place in courthouses nationwide. USMS has conducted a

nationwide review of court security in consultation with the judiciary. The committee’s report on

the review is expected in September 2011.57

U.S. Department of Homeland Security, National Protection & Programs Directorate, President’s FY2011 Request

Federal Protective Service: Fiscal Year 2011 Overview, Congressional Justification, Washington, DC, February 2011,

p. FPS-8.

Prepared by (name redacted), Analyst in American National Government, Government and Finance Division,

[redacted]@crs.loc.gov, 7-..... For more information on judicial and court security, see CRS Report R41138,

Federal

Building, Courthouse, and Facility Security, by (name redacted) and (name redacted).

U.S. Marshals Service, Fact Sheet, Judicial Security 2011, April 5, 2011, http://www.usmarshals.gov/duties/

factsheets/jsd-2011.pdf.

“Judges Plead for Improved Judicial Security,” The Third Branch: Newsletter of the Federal Courts, Washington,

DC, June 2005, pp. 1-2.

USMS provided this information to the author by electronic mail on August 1, 2011.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

The workload of the federal courts has increased in almost all case filings. In August 2010, to

address the increase of immigration and drug related cases along the U.S. southwest border,

Congress appropriated $10 million to the judiciary under P.L. 111-230 (FY2010 emergency

supplemental appropriations for border security which also provided $600 million to enhance

southwest border security for several executive branch law enforcement agencies). These funds

were to be made available until September 30, 2011. In the event more suspects charged with

terrorism are tried in federal courts rather than military tribunals, additional security and

resources for the courts would be necessary. There could also be a need for greater coordination

with local and state law enforcement entities as well as intelligence agencies in such trials. In the

112th Congress, congressional interest will likely continue to ensure that the federal judiciary is

provided resources and funding to carry out its constitutional responsibilities.

Food Safety58

Intentional contamination of food can result from fraud (e.g., the dilution of a valuable

commodity), terrorism, or other harmful intent. Food safety efforts have long focused on

preventing common unintentional threats, such as infectious pathogens in poultry or pesticide

residues in crops. Since the 2001 terrorist attacks, interest has grown regarding ways to prevent

intentional contamination. Large-scale foodborne disease outbreaks can sicken hundreds of

people. They can also impose serious economic effects on involved commodities, as well as on

uninvolved commodities that the consuming public perceives to be involved. The public’s

response to the 2001 anthrax attacks and to high-profile unintentional foodborne disease

outbreaks suggests that an intentional incident of food contamination, especially if it were an act

of terrorism, could have serious economic consequences, in addition to any illnesses it causes.

Federal food safety responsibility rests primarily with the Food and Drug Administration (FDA)

and the U.S. Department of Agriculture (USDA). USDA’s Food Safety and Inspection Service

(FSIS) regulates most meat and poultry and some egg products; FDA is responsible for the safety

of most other foods.59 State and local authorities assist with inspection, outbreak response, and

other food safety functions, and regulate retail establishments. DHS notes the complexity of the

nation’s food and agriculture sector, which accounts for 15% of the nation’s economy. In

particular, DHS says that “FDA is responsible for the safety of [80%] of all of the food consumed

in the United States ... FDA regulates $240 billion of domestic food and $15 billion of imported

food. In addition, roughly 600,000 restaurants and institutional food service providers, an

estimated 235,000 grocery stores, and other food outlets are regulated by State and local

authorities that receive guidance and other technical assistance from FDA.”60

The 111th Congress enacted a comprehensive food safety law, the Food Safety Modernization Act

(FSMA, P.L. 111-353), focused mainly on foods regulated by FDA.61 FSMA attempts to prevent

intentional and unintentional contamination of food through a variety of provisions requiring

FDA to develop food safety standards, and requiring food producers and processors to develop

Prepared by (name redacted), Specialist in PublicHealth and Epidemiology, [redacted]@crs.loc.gov, 7-.....

CRS Report RS22600, The Federal Food Safety System: A Primer, by (name redacted). See also CRS Report R41629,

Food Safety Issues for the 112th Congress, by (name redacted).

DHS, National Infrastructure Protection Plan: Agriculture and Food Sector Snapshot, May 2007,

http://www.dhs.gov/files/programs/gc_1188565256722.shtm.

CRS Report R40443, The FDA Food Safety Modernization Act (P.L. 111-353), coordinated by (name redacted).

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

comprehensive food safety plans, among others. The law expands FDA’s authority to inspect

foods and food facilities and to issue recalls, and requires promulgation of regulations to protect

against the intentional contamination of food. In addition, FSMA requires the Secretaries of

Health and Human Services (HHS) and Agriculture to develop a National Agriculture and Food

Defense Strategy, implementation plan, and research agenda, to be consistent with broader

national preparedness and response plans.62

Implementation of many of FSMA’s enhanced regulatory authorities is proceeding.63 However,

some Members of Congress disagree regarding whether activities that would require enhanced

FDA funding (such as more frequent FDA inspections of food facilities) are necessary, given

budgetary constraints.64

Security of Pipelines65

Nearly a half-million miles of high-volume pipeline transport natural gas, oil, and other

hazardous liquids across the United States.66 These pipelines are integral to U.S. energy supply

and link to other critical infrastructure, such as power plants, airports, and military bases. While a

fundamentally safe means of transport, gas and oil pipelines, globally, have been a favored target

of terrorists, militant groups, and organized crime. Federal warnings about Al Qaeda also have

mentioned pipelines specifically as potential terror targets in the United States.67 Since September

11, 2001, U.S. officials have foiled plots to attack jet fuel pipelines at the John F. Kennedy

International Airport and to attack the Trans Alaska Pipeline System and a major natural gas

pipeline in the eastern United States.68 Notwithstanding these incidents, the most recent U.S.

federal threat assessment concludes “with high confidence that the terrorist threat to the U.S.

pipeline industry is low ... [with] no specific or credible threat information indicating that violent

transnational extremist groups or domestic extremists are actively plotting to conduct attacks on

the U.S. pipeline industry.”69 Terrorist tactics are in constant flux, however, and difficult to

predict, so such attacks remain a possibility in the future.

Federal pipeline security activities are led by the Pipeline Security Division within the

Transportation Security Administration (TSA). To date, these activities have relied upon

voluntary industry compliance with federal security guidance and TSA security best practices.

Ibid, p. 39.

FDA, “FSMA: Progress Reports,” http://www.fda.gov/Food/FoodSafety/FSMA/ucm255893.htm.

See, for example, House debate among Reps. John Dingell, Cynthia Lummis, Jack Kingston, and Frank Pallone

regarding consideration of H.R. 2112, appropriations for Agriculture, Rural Development, FDA, and Related Agencies

for FY2012, Congressional Record, June 15, 2011, p. H-4253 ff.

Prepared by Paul Parkfomak, Specialist in Energy and Infrastructure Policy, Resources, Science and Industry

Division, [redacted]@crs.loc.gov, 7-.....

Hazardous liquids primarily include crude oil, gasoline, jet fuel, diesel fuel, home heating oil, propane, and butane.

Other hazardous liquids transported by pipeline include anhydrous ammonia, carbon dioxide, kerosene, liquefied

ethylene, and some petrochemical feedstocks.

“Already Hard at Work on Security, Pipelines Told of Terrorist Threat,” Inside FERC, McGraw-Hill Companies,

January 3, 2002.

U.S. Attorney’s Office, Middle District of Pennsylvania, “Man Convicted of Attempting to Provide Material Support

to Al-Qaeda Sentenced to 30 Years’ Imprisonment,” Press release, November 6, 2007; U.S. Dept. of Justice, “Four

Individuals Charged in Plot to bomb John F. Kennedy International Airport,” Press release, June 2, 2007.

Transportation Security Administration, Office of Intelligence, Pipeline Threat Assessment, January 18, 2011, p. 3.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

TSA has been engaged in a number of specific pipeline security initiatives since 2003, including

developing security standards; implementing measures to mitigate security risk; building and

maintaining stakeholder relations, coordination, education and outreach; and monitoring

compliance with voluntary pipeline security standards. The cornerstone of TSA’s pipeline

activities is its Corporate Security Review (CSR) program, wherein the agency visits the largest

pipeline and natural gas distribution operators to review their security plans and inspect their

facilities. TSA has completed CSRs covering the largest 100 pipeline systems (84% of total U.S.

energy pipeline throughput) and is in the process of conducting second CSRs of these systems.70

In 2008, the TSA initiated its Critical Facility Inspection Program (CFI), under which the agency

conducts in-depth inspections of all the critical facilities of the 125 largest pipeline systems in the

United States. By the end of 2011, TSA expects to complete CFIs for all of these pipeline

operators.71 The agency estimates that these 125 pipeline systems collectively include

approximately 600 distinct critical facilities.72

While TSA is generally credited with significantly strengthening U.S. pipeline security, Congress

has had ongoing concerns about the adequacy of the agency’s pipeline security standards, its

overall level of resources, and certain aspects of its CSR program. Some Members of Congress,

as well as the Department of Transportation’s (DOT) Office of Inspector General, have

questioned the adequacy of voluntary, rather than mandatory, federal pipeline security

requirements.73 In 2010, a Member expressed concern that TSA’s pipeline division—with 13 fulltime equivalent staff—did not have sufficient staff to carry out a federal pipeline security program

on a national scale.74 In a 2010 report, the GAO recommended a number of specific actions to

improve TSA’s pipeline security priority-setting and CSR assessment processes, such as

transmitting CSR recommendations in writing to pipeline operators.75 To date, there has been no

federal legislation directly addressing these concerns, but they may receive additional attention in

the 112th Congress. In addition to these specific issues, the next Congress may assess how

pipeline security fits together with the U.S. pipeline safety program, administered by the DOT, in

the nation’s overall strategy to protect transportation infrastructure. While the DOT and TSA

have distinct missions, pipeline safety and security are intertwined.76

Government Accountability Office (GAO), Pipeline Security: TSA Has Taken Actions to Help Strengthen Security,

but Could Improve Priority-Setting and Assessment Processes, GAO-10-867, August, 2010, Executive Summary.

GAO, August 2010, p. 32.

Department of Homeland Security, “ Intent to Request Renewal and Amendment From OMB of One Current Public

Collection of Information: Critical Facility Information of the Top 100 Most Critical Pipelines,” 76 Federal Register

35229, June 16, 2011.

U.S. Dept. of Transportation, Office of Inspector General, Actions Needed to Enhance Pipeline Security, Pipeline

and Hazardous Materials Safety Administration, Report No. AV-2008-053, May 21, 2008, p. 6.

The Honorable Gus M. Billirakis, Remarks before the House Committee on Homeland Security, Subcommittee on

Management, Investigations, and Oversight hearing on “Unclogging Pipeline Security: Are the Lines of Responsibility

Clear?,” Plant City, FL, April 19, 2010.

U.S. Government Accountability Office, Pipeline Security: TSA Has Taken Actions to Help Strengthen Security, but

Could Improve Priority-Setting and Assessment Processes, GAO-10-867 August 4, 2010, pp. 56-57.

For further analysis, see CRS Report R41536, Keeping America’s Pipelines Safe and Secure: Key Issues for

Congress, by (name redacted).

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Security of Chemical Facilities77

Congress provided DHS authority to regulate security at chemical facilities in the Homeland

Security Appropriations Act, 2007 (P.L. 109-295, Section 550). This authority expires on October

4, 2011. Congressional policymakers are considering a range of actions in the 112th Congress,

including an extension or revision of this authority. Various stakeholders have criticized the

content of DHS regulation and the pace of its implementation and have recommended changes to

the underlying statute. Recommended changes include broadening the regulated community,

enabling the federal government to require adoption of particular security measures at facilities,

and increasing access to currently confidential vulnerability information. Other stakeholders,

including industry representatives, support an extension of the existing authority without any

changes.

The DHS regulates chemical facilities for security purposes. The Obama Administration and

others have determined that existing regulatory exemptions, such as for community water systems

and wastewater treatment facilities, pose potential risks. Environmental and “right-to-know”

groups additionally advocate that Congress include requirements for facilities to adopt or identify

“inherently safer technologies” and widely disseminate security-related information to first

responders and employees. The regulated industry generally opposes granting DHS the ability to

require implementation of inherently safer technologies or other specific security measures. They

question the maturity and applicability of the inherently safer technology concept as a security

measure and cite the need to tailor security approaches for each facility. The Obama

Administration has identified potential security concerns if chemical security-related information

is more broadly disseminated. Challenges facing policymakers include whether to extend or

change the existing statutory authority, whether to mandate consideration or implementation of

inherently safer technologies, what the appropriate balance is between protecting security

information and releasing information to non-governmental stakeholders, and how to assess and

potentially ameliorate costs associated with implementing required security measures.

The DHS regulatory program is still in its early stages and has experienced implementation

delays. No chemical facility has yet to fully comply with the DHS chemical security regulations.

Significant changes in this program could lead to further delays. In contrast, changes to the

regulatory program may be most effective if made early in the program’s implementation, rather

than later after companies have invested in specific security measures.78

Security of Wastewater and Water Utilities79

The systems that comprise the nation’s water supply and water quality infrastructure have long

been recognized as being potentially vulnerable to terrorist attacks of various types, including

physical disruption, bioterrorism/chemical contamination, and cyber attack. Across the country,

these systems consist of 16,000 publicly owned wastewater treatment facilities and 168,000

public drinking water facilities, plus thousands of miles of pipes, aqueducts, water distribution,

and sewer lines. Damage or destruction could disrupt the delivery of vital human services,

Prepared by (name redacted), Specialist in Science and Technology Policy, [redacted]@crs.loc.gov, 7-.....

For further CRS research on this issue, consult CRS Report R41642, Chemical Facility Security: Issues and Options

for the 112th Congress, by (name redacted).

Prepared by (name redacted), Specialist in Resources and Environmental Policy, [redacted]@crs.loc.gov, 7-.....

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

threatening public health and the environment, or possibly causing loss of life. In recognition,

Congress and other policymakers have considered a number of initiatives in this area, including

enhanced physical security of water infrastructure facilities, improved communication and

coordination, and research. Recent policy interest has focused on two issues: (1) security of

wastewater utilities, and (2) whether to include wastewater and water utilities in chemical plant

security regulations implemented by DHS.

When Congress created DHS in 2002,80 it gave DHS responsibility to coordinate information to

secure the nation’s critical infrastructure, including the water sector, through partnerships with the

public and private sectors. Under Homeland Security Presidential Directive 7, the Environmental

Protection Agency (EPA) is the lead federal agency for protecting wastewater and drinking water

utility systems, because EPA has regulatory authority over both types of water utilities under the

Clean Water Act and the Safe Drinking Water Act, respectively. Separately, in P.L. 107-188,81

Congress required drinking water systems serving more than 3,300 persons to conduct

vulnerability analyses and to submit the assessments to EPA. Since the 108th Congress,

congressional committees have considered legislation to encourage or require wastewater

treatment facilities to similarly conduct vulnerability assessments and develop site security plans

(such as H.R. 2883 in the 111th Congress), but no bill has been enacted.

Congress also has been considering requirements for wastewater and drinking water utilities in

connection with legislation to establish risk-based and performance-based security standards at

the nation’s chemical plants (see discussion of “Security of Chemical Facilities”). Issues debated

for some time include (1) whether to preserve an existing exemption for water utilities from

chemical facility standards or include them in the scope of DHS rules; and (2) whether water

utilities that store or use extremely hazardous substances, such as chlorine gas, should be required

to consider the use of different chemicals or safer processes (so-called “inherently safer

technology”). A third issue is what roles should EPA and DHS play in implementing such

requirements and generally in overseeing homeland security at wastewater and drinking water

utilities. There has been considerable debate about coordination between EPA and DHS and

whether EPA’s lead role for the water utility sector would be altered. Water utilities have urged

Congress not to create a dual or split regulatory arrangement between two agencies, arguing that

EPA has long-standing expertise in wastewater and water regulatory and security issues. Others

have argued that DHS should have overall responsibility.

Legislative proposals addressing these issues in the 112th Congress include H.R. 901, approved by

the House Homeland Security Committee in June; H.R. 908, approved by the House Energy and

Commerce Committee in May; and S. 473, approved by the Senate Homeland Security and

Government Affairs Committee in June. These bills differ in a number of other respects but

reflect apparent consensus regarding water utility issues: all of the bills would preserve the

existing exemption from DHS chemical facility standards, and none would mandate inherently

safer technology. Further, none would alter EPA’s lead role for the water utility sector. Separate

Senate legislation, S. 711, includes provisions for inherently safer technology and would add

coverage of wastewater and drinking water facilities in the DHS rules.

Since the terrorist attacks of 2001, wastewater and water utilities have been engaged in numerous

activities to assess potential vulnerabilities and strengthen protections. Congressional oversight of

P.L. 107-297; 116 Stat. 2322.

The Public Health Security and Bioterrorism Preparedness and Response Act, 116 Stat. 594.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

this sector’s homeland security activities has been limited but could be of interest in the 112th

Congress.82

Cybersecurity83

Cyberspace (the globally integrated system of computers, servers, routers, data centers, etc. and

the information and software contained therein) is vulnerable to nefarious activity. Threats may

come from state actors, criminal syndicates or individuals, terrorist and other politically

motivated groups, industrial competitors, and individuals wanting to test their mettle against

efforts to thwart them. The nefarious activities include stealing, modifying, or destroying

information or disrupting the flow of information through cyberspace. Possible consequences

include loss of financial resources, economic competitiveness, and the ability for federal agencies

to carry out their missions or critical infrastructures to produce and deliver needed products.

There is also concern that in some cases, stealing, modifying, destroying, or disrupting the flow

of information could result in catastrophic failures in industrial processes leading to loss of life,

physical property, and environmental quality.

The Department of Homeland Security plays a major role in helping to defend cyberspace,

primarily focused on protecting the federal government’s non-national security information

systems and the information systems of critical infrastructures. However, the range of national

risks involved, and the roles and relationships between stakeholders are complex and go beyond

the ability of a single agency to address. Current efforts are guided in a large part by the Obama

Administration’s Cybersecurity Review.

Near term efforts focus on improving defenses – monitoring networks, detecting nefarious

activity, responding quickly to that activity once its been detected, and recovering from it. This

requires information sharing among stakeholders, awareness programs so all stakeholders are

cognizant of the risks, training of skilled cyber security personnel, and quick and agile security

management techniques.

Mid-term activities include improving the security of software and products being introduced into

the market. This requires analyzing current vulnerabilities and intrusion techniques and

introducing development processes to improve the security of products before they come to the

market. Mid-term activities also include international treaties, multi-lateral, and bi-lateral

cooperation and coordination in criminalizing, investigating and prosecuting cyber perpetrators or

international treaties on allowable rules of engagement in cyberspace. Long-term activities

include research and development that might lead to new network protocols or architectures that

make cyberspace more inherently secure. Another area of study is the restructuring of incentives

to favor security.

Both the executive branch and Congress have been active in trying to secure cyberspace for many

years. Partnerships have been developed between federal agencies and between the federal

government and the private sector, and state, local, tribal, and territorial governments. Both

federal and non-federal owners and operators of networks, as well as private firms to which

owners and operators have contracted out network security, are monitoring networks and

For additional information, see CRS Report RL32189, Terrorism and Security Issues Facing the Water

Infrastructure Sector, by (name redacted).

Prepared by (name redacted), Specialist in Science and Technology Policy, [redacted]@crs.loc.gov, 7-.....

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

communicating with each other. Government and private firms have established cyber response

teams. The federal government and private sector are funding R&D, awareness, and training

programs. Some issues have received relatively less attention. These include the role of the

National Security Agency in protecting critical infrastructures; at what point a cyber intrusion or

attack becomes the domain of the Department of Defense (triggering rules of engagement in a

cyber conflict); and emergency powers for the President.

During the first session of the 112th Congress, several bills have been proposed that address one

or more aspects of the policy issues associated with cybersecurity. Among those bills are H.R. 76,

H.R. 174, H.R. 1136, H.R. 2096, S. 372, S. 413, S. 1152, and S. 1342. In July, 2011, the White

House, too, proposed legislative language meant to improve cybersecurity. The issues addressed

by one or more of these bills include statutory establishment of a high level office that would

coordinate cybersecurity policy across the federal government; modification of the current

Federal Information Security Management Act and clarification of agencies’ roles; penalties for

cybercrimes; national standards for breach notification; research and development; and,

workforce development. Some of the bills expand into new areas such as considering or requiring

private sector owners/operators of critical infrastructure assets to develop cybersecurity plans (S.

372, S. 413, H.R. 174, and the White House proposal) and emergency powers for the President

(S. 413). To date only H.R. 2096 has been reported out of committee.

Although none of the bills have made it to either the House or Senate floor, the leadership in both

chambers have expressed interest in pursuing comprehensive cybersecurity legislation. Senate

Majority Leader Reid’s office is heading an effort to draft comprehensive legislation that would

cut across committee jurisdiction. The Senate Minority Leader McConnell’s office has expressed

interest in participating in the effort’s working groups.84 Also, the House Republican leadership

has formed a cybersecurity task force to develop legislative language. It is reported that the task

force will present its findings to Speaker Boehner by October 2011.

Transit Rail Emergency Preparedness85

Each day, on average, some 12 million trips are made using transit rail (i.e., heavy rail, light rail,

and commuter rail).86 While emergency incidents involving transit rail are relatively rare, such

incidents can result in extensive injuries and death due to the number of passengers involved.

Congress has given TSA responsibility for transit security oversight, and has created a transit

security grant program under DHS. The DHS Inspector General’s Office recommended that TSA

take steps to provide more support to transit rail stakeholders in preparing for and responding to

emergencies.87 Members of the 112th Congress might elect to evaluate these recommendations

and consider legislative action.

Diane Bartz, “Reid pushes US Republicans for cybersecurity bill” Reuters, July 27, 2011. See,

http://www.reuters.com/article/2011/07/27/congress-cybersecurity-idUSN1E76Q1M320110727. Last viewed

September 8, 2011.

Prepared by Randy Peterman, Analyst in Transportation Policy, [redacted]@crs.loc.gov, 7-.....

American Public Transportation Association, 2010 Public Transportation Fact Book, April 2010, Table 5: Unlinked

Passenger Trips by Mode, Millions, http://www.apta.com/resources/statistics/Documents/FactBook/

APTA_2010_Fact_Book.pdf; The table gives an annual total; CRS calculated daily trips by dividing the total by 365

days.

Department of Homeland Security, Office of Inspector General, TSA’s Preparedness for Mass Transit and Passenger

Rail Emergencies, OIG-10-68, March 2010, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-68_Mar10.pdf.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

The DHS OIG looked at four aspects of TSA’s effort to help transit rail stakeholders prepare for

and respond to emergencies, and made recommendations for improvements:

•

Evaluation of transit agency security practices by TSA inspectors.

The OIG concluded that TSA’s evaluations of agencies’ security practices were not

consistent and thorough, which made it difficult for TSA and the agencies to develop

corrective actions. The OIG recommended that TSA provide better training to its

inspectors and implement a new database tool to ensure that the assessments are

consistent. TSA said a new training program for its inspectors is being developed, as

is an improved database tool.

•

Promotion of knowledge sharing and coordination of security efforts among

transit rail providers, regional emergency managers, and first responders through

the convening of regional workshops by TSA, in cooperation with the Federal

Transit Administration (FTA) of the Department of Transportation.

The OIG found that FTA had funded all but one of the 20 workshops held thus far,

although the Memorandum of Understanding says that TSA and FTA will jointly

sponsor the workshops. The OIG recommended that TSA provide more funding so

that workshops can be held more frequently. TSA responded that they were willing

and able to provide more funding, but that FTA had not sought additional support.

TSA agreed to provide more support to transit rail preparedness by promoting

coordination of transit rail agency efforts with state and federal partners, law

enforcement, and first providers.

•

Development of training programs by TSA to prepare frontline transit employees

for responding to security threats, in cooperation with the Federal Emergency

Management Agency:

The OIG found that 54 of 59 courses were focused on law enforcement management

of security incidents, with only a few courses tailored to transit agency personnel and

firefighters. The OIG found that no courses were devoted to responding to

improvised explosive devices (IEDs). The OIG recommended that TSA offer more

courses focused on transit rail operations and on threats posed by IEDs. TSA said that

they were developing a more comprehensive training program including courses

focused on dealing with the threat of IEDs.

•

Organization of regional security exercises by TSA that bring together transit rail

providers and first responders to train for prevention of, and response to, acts of

terrorism.

The OIG found that TSA had offered only three intermodal security training exercises

for transit rail stakeholders in two years, compared to forty such exercises for port

facility stakeholders, and that the transit rail exercises had focused on classroom

training. The OIG recommended that TSA offer more intermodal security training

exercises that included representatives of transit rail agencies and firefighting

agencies, and that these exercises should include live, realistic field drills. TSA said

they planned to offer 4 to 6 transit rail exercises in 2010, and planned to include law

enforcement officers and other first responders in these exercises, as well as to

incorporate live, realistic field drills.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Border Security and Trade

Southwest Border Issues

In recent years, the rising level of violence in communities on the south side of the U.S.-Mexico

borders has drawn the attention of the U.S. government and the media. The resulting discussion

has touched on a number of issues that have a nexus with homeland security—not just the

physical security of the border communities on the U.S. side, but flows of illicit money,

trafficking in firearms and continued efforts to thwart development of smuggling tunnels intended

to compromise the U.S. border. All of these topics have historically been of interest to

Congress—along with the flow of people which is discussed in the Immigration section.

Spillover Violence88

There has been an increase in the level of drug trafficking-related violence within and between

the drug trafficking organizations (DTOs) in Mexico, and some estimates have placed the number

of drug trafficking-related deaths in Mexico at over 34,500 between December 2006 (when

Mexican President Felipe Calderón began his campaign against the DTOs) and December 2010.89

Mexican drug trafficking organizations are now at war with each other as well as with the police

and military personnel who are attempting to enforce the drug laws in northern Mexico along the

U.S. border. Further, in an illegal marketplace, such as that of illicit drugs, where prices and

profits are elevated due to the risks of operating outside the law, violence or the threat of violence

becomes the primary means for settling disputes.90 This has generated concern among U.S. policy

makers that the violence in Mexico might spill over into the United States. In particular, an

increase in violence in Mexican cities such as Juárez and Nuevo Laredo has sparked fears that the

violence may spill into the neighboring U.S. “sister cities” of El Paso and Laredo, TX. For

instance, the Department of Homeland Security (DHS) issued a safety alert to law enforcement

officers in the El Paso area warning that DTOs and associated gangs may target U.S. law

enforcement.91 U.S. federal officials deny that the recent increase in drug trafficking-related

violence in Mexico has resulted in a spillover into the United States, but they acknowledge that

the prospect is a serious concern.92

The 2010 National Drug Threat Assessment indicates that the Mexican DTOs are the greatest

drug trafficking threat to the United States.93 Mexican DTOs either (1) transport or (2) produce

Prepared by Kristin M. Finklea, Analyst in Domestic Security, [redacted]@crs.loc.gov, 7-..... For more information

on measuring spillover violence, see CRS Report R41075, Southwest Border Violence: Issues in Identifying and

Measuring Spillover Violence, coordinated by Kristin M. Finklea.

See University of San Diego, Trans-Border Institute, http://justiceinmexico.org/2011/02/07/trans-border-institutereleases-report-on-drug-violence-in-mexico/.

Jeffrey A. Roth, “Psychoactive Substances and Violence,” National Institute of Justice (Research in Brief Series),

February 1994 (Washington, D.C.: U.S. Department of Justice).

“Department of Homeland Security (DHS): Mexican Assassin Teams Targeting U.S. Law Enforcement,” Homeland

Security Newswire, April 6, 2010.

Ramon Bracamontes, “CBP Chief Assesses the Border: Alan Bersin, in El Paso, Assures Safety, Backs Mexico’s

Fight,” El Paso Times, January 6, 2011.

U.S. Department of Justice, National Drug Intelligence Center, National Drug Threat Assessment 2010, Product No.

2010-Q0317-001, February 2010, http://www.justice.gov/ndic/pubs38/38661/38661p.pdf.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

and transport drugs north across the United States-Mexico border. After being smuggled across

the border by DTOs, the drugs are distributed and sold within the United States. The illicit

proceeds may then be laundered or smuggled south across the border. The proceeds may also be

used to purchase weapons in the United States that are then smuggled into Mexico. The United

States is the largest marketplace for illegal drugs and sustains a multi-billion dollar market in

illegal drugs—thus partially fueling the threat posed by the DTOs.94 While drugs are the primary

goods trafficked by the DTOs, they also generate income from other illegal activities, such as the

smuggling of humans and weapons, counterfeiting and piracy, kidnapping for ransom, and

extortion. Reports of these crimes in the United States have contributed to the fear of spillover

violence.

One issue that may be of concern to Congress involves determining exactly what constitutes

spillover violence above and beyond the level of drug trafficking-related violence that has

previously existed in the United States. The interagency community has defined “spillover

violence” as violence targeted primarily at civilians and government entities—excluding

trafficker-on-trafficker violence95—while other experts and scholars have maintained that

trafficker-on-trafficker violence is central to spillover.96 A clear definition of spillover is central to

debating policy options to prevent or mitigate such violence. A related issue that Congress may

consider is how to prevent drug trafficking-related violence from spilling into the United States.

Potential options that experts have presented include increasing border enforcement efforts;

providing additional aid to Mexico to support the disruption of organized crime, implementation

of judicial reform, enhancement of a 21st century border, and strengthening communities;97

reducing drug demand in the United States; and decriminalizing or legalizing certain drugs.

Illicit Proceeds and the Southwest Border98

The flow of money outside legal channels not only presents challenges to law enforcement, but it

also has a significant nexus with homeland security policy. Proceeds from illegal enterprises are

sometimes used to fund broader destabilizing activities, such as smuggling, illegal border

crossings, or more violent activities, such as the operations of the FARC and right-wing

paramilitary groups in Colombia.99 While this is an issue with a global scope, this section focuses

specifically on the policies affected by movement of illicit funds across the Southwest border.

Oriana Zill and Lowell Bergman, “Do the Math: Why the Illegal Drug Business is Thriving,” PBS Frontline,

http://www.pbs.org/wgbh/pages/frontline/shows/drugs/.

According to the DEA, “[S]pillover violence entails deliberate, planned attacks by the cartels on U.S. assets,

including civilian, military, or law enforcement officials, innocent U.S. citizens, or physical institutions such as

government buildings, consulates, or businesses. This definition does not include trafficker on trafficker violence,

whether perpetrated in Mexico or the U.S.” See Drug Enforcement Administration, Statement of Joseph M. Arabit

Special Agent in Charge, El Paso Division, Regarding “Violence Along the Southwest Border” Before the House

Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009,

http://www.usdoj.gov/dea/speeches/s032409.pdf.

Testimony by David Shirk, Director, Trans-Border Institute, University of San Diego, before the U.S. Congress,

House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies, Federal

Law Enforcement Response to US-Mexico Border Violence, 111th Cong., 1st sess., March 24, 2009.

For more information on U.S. assistance to Mexico and on bilateral security cooperation, see CRS Report R41349,

U.S.-Mexican Security Cooperation: The Mérida Initiative and Beyond , by (name redacted) and Kristin M.

Finklea.

Prepared by Kristin M. Finklea, Analyst in Domestic Security, [redacted]@crs.loc.gov, 7-.....

Office of the Coordinator for Counterterrorism, Country Reports on Terrorism 2009, U.S. Department of State,

(continued...)

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

The sale of illegal drugs in the United States generates somewhere between $18 billion and $39

billion in annual wholesale proceeds for Mexican and Colombian drug trafficking organizations

(DTOs).100 Money from the DTOs’ illegal sale of drugs in the United States is moved south across

the border into Mexico. Moving these funds from the United States into Mexico fuels the drug

traffickers’ criminal activities. This money is not directly deposited into the U.S. financial system,

but rather is illegally laundered through mechanisms such as bulk cash smuggling, the Black

Market Peso Exchange101 (BMPE), or placed in financial institutions, cash-intensive front

businesses, prepaid stored value cards (PSVCs), or money services businesses (MSBs).102

The National Drug Intelligence Center (NDIC) indicates that the development of new

technologies has provided outlets through which DTOs may conceal their illicit proceeds.103

Increasingly, the use of stored value cards, 104 mobile banking systems, and other technologies,

allow traffickers to move profits more quickly and stealthily. In addition, profits that the Mexican

DTOs generate from the sale of Colombian cocaine can be moved directly from the United States

to the source country without traversing through middlemen.105

While bulk cash smuggling has been an important means by which criminals have moved illegal

profits from the United States into Mexico, traffickers have increasingly turned to stored value

cards to move money. With these cards, criminals are able to avoid the reporting requirement

under which they would have to declare any amount over $10,000 in cash moving across the

border. Current federal regulations regarding international transportation only apply to monetary

instruments as defined under the Bank Secrecy Act.106 A stored value card is not, however,

(...continued)

Washington, DC, August 5, 2010, http://www.state.gov/s/ct/rls/crt/2009/140888.htm.

100

U.S. Department of Justice, National Drug Intelligence Center (NDIC), National Drug Threat Assessment 2009,

Product No. 2008-Q0317-005, December 2008, p.49, http://www.usdoj.gov/ndic/pubs31/31379/31379p.pdf. This is the

most recent estimate of total annual proceeds. With respect to bulk cash, the most recent NDIC threat assessment

(2010) indicates that from 2003 – 2004, an estimated $17.2 billion was smuggled from the United States to Mexico in

the form of bulk cash alone. See U.S. Department of Justice, National Drug Intelligence Center, National Drug Threat

Assessment 2010, Product No. 2010-Q0317-001, February 2010, p. 47, http://www.justice.gov/ndic/pubs38/38661/

38661p.pdf. (Hereafter NDTA, 2010).

101

The Department of the Treasury defines the BPME as “a large-scale money laundering system used to launder

proceeds of narcotic sales in the United States by Latin American drug cartels by facilitating swaps of dollars in the

U.S. for pesos in Colombia through the sale of dollars to Latin America businessmen seeking to buy U.S. goods to

export,” http://www.fincen.gov/statutes_regs/guidance/html/advis04282006.html.

102

According to the Department of the Treasury, a money services business is any person or entity engaging in

activities including exchanging currency; cashing checks; issuing, selling, or redeeming travelers’ checks, money

orders, or stored value; and transmitting money. For more information, see http://www.fincen.gov/

financial_institutions/msb/definitions/msb.html.

103

See NDTA, 2010, pp. 47 – 50 for more information on developments in illicit finance.

104

According to the Code of Federal Regulations, stored value are “funds or monetary value represented in digital

electronics format (whether or not specially encrypted) and stored or capable of storage on electronic media in such a

way as to be retrievable and transferable electronically,” 31 C.F.R. § 103.11(vv).

105

Douglas Farah, “Money Laundering and Bulk Cash Smuggling: Challenges for the Merida Initiative,” in Shared

Responsibility: U.S.-Mexico Policy Options for Confronting Organized Crime, ed. Eric L. Olson, David A. Shirk, and

Andrew D. Selee (2010), p. 144.

106

31 U.S.C. § 5312(a)(3) defines a monetary instrument as “(A) United States coins and currency; (B) as the Secretary

may prescribe by regulation, coins and currency of a foreign country, travelers’ checks, bearer negotiable instruments,

bearer investment securities, bearer securities, stock on which title is passed on delivery, and similar material; and

(C) as the Secretary of the Treasury shall provide by regulation for purposes of sections 5316 and 5331 , checks, drafts,

notes, money orders, and other similar instruments which are drawn on or by a foreign financial institution and are not

in bearer form.”

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

considered a monetary instrument under current law, and thus is not subject to these international

transportation regulations. Policy makers may debate the proper balance between providing for

the ease of legitimate monetary transactions and inhibiting the movement of proceeds from illegal

activities.

Various departments and agencies—including the Drug Enforcement Administration, Federal

Bureau of Investigation, U.S. Immigration and Customs Enforcement, U.S. Customs and Border

Protection, and the Financial Crimes Enforcement Network—share responsibility for combating

drug-related activity and the flow of illicit proceeds both along the Southwest border and

throughout the United States. Many of these agencies are also represented in Mexico, increasing

U.S.-Mexican bilateral cooperation. Further, while some efforts explicitly target money

laundering and bulk cash smuggling, other efforts are more tangentially related. For instance,

operations targeting southbound firearms smuggling may intercept individuals smuggling not

only weapons, but cash proceeds from illicit drug sales as well. http://www.crs.gov/pages/

Reports.aspx?PRODCODE=R41547&Source=search - fn110http://www.crs.gov/pages/

Reports.aspx?PRODCODE=R41547&Source=search - fn108

Southwest Border Gun Trafficking107

Many view illegal gun trafficking from the United States as a significant factor in the escalating

drug-related violence in Mexico. To stem the flow of illegal guns, the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) has stepped up enforcement of domestic gun control

laws in the four Southwest border states under a program known as “Project Gunrunner.”

Although the magnitude of the flow of illegal guns from the United States to Mexico is unknown,

ATF firearms trace data indicates that such a flow exists. However, it is unclear whether that flow

is an “ant run” that has trickled across the border over many years, or an “iron river of guns” that

has surged in recent years as Mexico drug traffickers have sought to arm themselves with

firearms that are commonly available on U.S. civilian markets. Those firearms include

semiautomatic variants of AK-47 and AR-15 rifles, .50 caliber sniper rifles, and 5.7 FN pistols, as

well as other semiautomatic pistols and revolvers of various calibers.108

In February 2011, Project Gunrunner came under scrutiny for a Phoenix, AZ-based investigation

known as “Operation Fast and Furious,” when ATF whistleblowers alleged to Members of

Congress that suspected straw purchasers were allowed to amass relatively large quantities of

firearms as part of a long-term gun trafficking investigation.109 They alleged further that ATF

allowed those firearms to “walk,” meaning that ATF allowed known straw purchasers110 to

transfer firearms to gunrunners, without taking additional steps to surveil those suspects, monitor

the movement of those firearms, or expeditiously arrest either the suspected straw purchasers or

gunrunners. Two of those firearms—AK-47 style rifles—were reportedly found at the scene of a

shootout near the U.S.-Mexico border where U.S. Border Patrol Agent Brian Terry was shot to

107

Prepared by (name redacted), Specialist in Domestic Security and Crime Policy, [redacted]@crs.loc.gov, 7-....;

and (name redacted), Legislative Attorney, [redacted]@crs.loc.gov, 7-.....

108

U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico

Face Planning and Coordination Challenges, GAO-09-709, June 2009, p. 17 .

109

James v. Grimaldi and Sari Horwitz, “ATF Probe Strategy Is Questioned,” Washington Post, February 2, 2011.

110

A “straw purchase” occurs when a person, who is otherwise eligible to purchase a firearm, purchases a firearm from

a federally licensed dealer for another person, who is either prohibited from possessing a firearm or does not want a

paper trail linking him to the purchased firearm.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

death.111 Questions, moreover, have been raised about whether a firearm—an AK-47 style

handgun—that was reportedly used to murder U.S. ICE Special Agent Jamie Zapata and wound

Special Agent Victor Avila in Mexico on February 15, 2011, was initially trafficked by a subject

of a Houston, TX-based ATF Project Gunrunner investigation.112 While it remains an open

question whether ATF or other federal agents were in a position to interdict the firearms used in

these deadly attacks before they were smuggled into Mexico,113 neither DOJ nor ATF informed

their Mexican counterparts about these investigations and the possibility that some of these

firearms could be reaching Mexico.114

Cross-Border Smuggling Tunnels115

Mexican traffickers rely on the use of cross-border tunnels to smuggle persons and drugs, as well

as other contraband, from Mexico into the United States. The use of smuggling tunnels has

increased not only in frequency but in the sophistication of the tunnels themselves.116 More than

150 tunnels have been discovered along the Southwest border since the 1990s.117 Early tunnels

were rudimentary “gopher hole” tunnels dug on the Mexican side of the border, traveling just

below the surface, and popping out on the U.S. side as close as 100 feet from the border. Slightly

more advanced tunnels to relied on existing infrastructure, which may be shared by neighboring

border cities such as the tunnel shared by Nogales, AZ, in the United States and Nogales, Sonora,

in Mexico. These interconnecting tunnels may tap into storm drains or sewage systems, allowing

smugglers to move drugs further and more easily than in tunnels they dug themselves. The most

sophisticated tunnels can have rail, ventilation, and electrical systems. The most extensive of such

tunnels discovered to date was found in January 2006 in Otay Mesa, CA, 85 feet below the

surface of the earth. It stretched three-quarters of a mile in length, boasted lighting, ventilation

and groundwater drainage systems, and its discovery resulted in the seizure of more than two tons

of marijuana.118 In November 2010, the San Diego Tunnel Task Force119 uncovered two similar

tunnels running between Tijuana, Mexico, and Otay Mesa, CA.120

111

Ibid.

113

Operation Fast and Furious was launched in November 2009. It was approved as an Organized Crime and Drug

Enforcement Task Force (OCDETF) investigation in February 2010. As an OCDETF investigation, it was then directed

largely by the U.S. Attorney’s Office in Phoenix. While Immigration and Customs Enforcement (ICE) and Internal

Revenue Service (IRS) agents were also part of this investigation, so far their role in this operation has not generated

public or congressional scrutiny.

114

Richard A. Serrano, “U.S. Embassy Kept in Dark as Guns Flooded Mexico,” Salt Lake Tribune, July 25, 2011.

115

Prepared by Kristin M. Finklea, Analyst in Domestic Security, [redacted]@crs.loc.gov, 7-.....

116

Ken Stier, “Underground Threat: Tunnels Pose Trouble from Mexico to Middle East,” Time, May 2, 2009.

117

Statement of James A. Dinkins, Executive Associate Director, Homeland Security Investigations, U.S. Immigration

and Customs Enforcement, before the U.S. Congress, Senate United States Senate Caucus on International Narcotics

Control, Illegal Tunnels on the Southwest Border, 112th Cong., 1st sess., June 15, 2011.

118

U.S. Drug Enforcement Administration, “DEA/ICE Uncover ‘Massive’ Cross-Border Drug Tunnel, Cement lined

passage thought to link warehouses in Tijuana and Otay Mesa,” press release, January 26, 2006,

http://www.justice.gov/dea/pubs/pressrel/pr012606.html.

119

This Task Force was created in 2003 as a partnership between ICE, DEA, and the USBP, along with state law

enforcement and Mexican counterparts.

120

U.S. Drug Enforcement Administration, “Discovery of 2nd Major San Diego-Area Cross-Border Drug Tunnel Leads

to 8 Arrests, Seizure of More Than 20 Tons of Marijuana,” press release, November 26, 2010, http://www.justice.gov/

dea/pubs/states/newsrel/2010/sd112610.html.

112

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

U.S. law enforcement uses various tactics to detect these cross-border tunnels. Law enforcement

may use sonic equipment to detect the sounds of digging and tunnel construction and seismic

technology to detect blasts that may be linked to tunnel excavation. Another tool for tunnel

detection is ground penetrating radar.121 However, factors including soil conditions, tunnel

diameter, and tunnel depth can limit the effectiveness of this technology.

Despite these tools, U.S. officials have acknowledged that law enforcement currently does not

have technology that is reliably able to detect sophisticated tunnels.122 Rather, tunnels are more

effectively discovered as a result of human intelligence and tips. U.S. officials have noted the

value of U.S. – Mexican law enforcement cooperation in detecting, investigating, and prosecuting

the criminals who create and utilize the cross-border tunnels.123 As a result, the 112th Congress

may not only consider how to best help U.S. law enforcement develop technologies that can keep

pace with tunneling organizations, but also examine whether existing bi-national law enforcement

partnerships are effective and whether they may be improved to enhance investigations of

transnational criminals.

Cargo Security124

Approximately 9.8 million maritime cargo containers arrived at our nation’s seaports in 2009,

down from a high point of 11.7 million in 2006.125 In an effort to strike a balance between

securing America’s borders and facilitating legitimate trade, U.S. Customs and Border Protection

(CBP) employs a layered security approach to screen the large number of containers. The

approach is centered on advance intelligence, effective inspections, a secure port environment,

and international screening of cargo.

In 2006, the Security and Accountability for Every Port Act of 2006 (SAFE Port Act) (P.L. 109347) directed the Department of Homeland Security (DHS), in coordination with the Department

of Energy (DOE), the private sector, and foreign governments, to pilot an integrated system in

three foreign ports to scan 100% of containers destined for the United States from those ports. In

2007, section 1703 of the Implementing Recommendations of the 9/11 Commission Act of 2007

(9/11 Act) (P.L. 110-53) amended the SAFE Port to require that 100% of containers originating

outside the United States and unloaded at a U.S. seaport undergo a screening to identify high-risk

containers; that 100% of containers that have been identified as high-risk are scanned or searched

before such containers leave a U.S. seaport facility; and that 100% of containers loaded on a

vessel in a foreign port bound for the United States (either directly or via a foreign port) shall not

enter the United States unless the container was scanned by non-intrusive imaging equipment and

radiation detection equipment at the foreign port before it is loaded on a vessel.126 The law

requires 100% screening to be implemented by July 2012, but permits the Secretary of Homeland

Security to extend the deadline under certain conditions.

121

For more information, see http://www.geophysical.com/militarysecurity.htm.

Statement of Laura E. Duffy, U.S. Attorney, Southern District of California, U.S. Department of Justice, before the

U.S. Congress, Senate United States Senate Caucus on International Narcotics Control, Illegal Tunnels on the

Southwest Border, 112th Cong., 1st sess., June 15, 2011.

123

Ibid.

124

Prepared by (name redacted), Specialist in Immigration Policy, [redacted]@crs.loc.gov, 7-.....

125

U.S. Bureau of Transportation Statistics, “Container Entries into the United states from All Countries and by All

Modes: 2000-2009,” http://www.bts.gov/publications/americas_container_ports/2011/html/table_07.html

126

P.L. 109-347, Section 232(a).

122

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Concerns have been raised about the effectiveness and the feasibility of the 100% screening

requirement for incoming U.S. cargo. Many have argued that the physical imaging and radiation

screening of millions of containers bound for the United States is unrealistic. Others note that the

scanning requirement takes only radioactive threats into account, but that a biological weapon is a

more likely weapons of mass destruction (WMD) scenario.127 CBP maintains that its use of a

layered, risk-based approach to maritime and cargo security—including the use of advanced

electronic information and automated systems to conduct risk-assessments, human resources and

technology to inspect and scan all high-risk cargo, and partnerships with the trade community and

foreign governments—ensures the security of the supply chain and protects against the

introduction of WMD to the United States.128

Two cargo screening programs are at the core of this layered approach. The Container Security

Initiative (CSI) uses automated targeting tools, strategic intelligence, and CBP officers stationed

in foreign ports to identify high-risk containers. High-risk containers receive additional screening

by large-scale X-ray and gamma ray machines and radiation detection devices before they are

loaded on U.S.-bound ships. CSI was operational in 58 ports in FY2011, and screened over 80

percent of the volume of maritime containers destined for the United States.129

Second, pursuant to the SAFE Port Act, three federal agencies—DHS, DOE’s National Nuclear

Security Administration, and the Department of State—launched the Secure Freight Initiative

(SFI) in December 2006; and DHS established the SFI International Container Security pilot

program. Under the SFI pilot program, 100% of containers at participating ports are scanned by

radiation portal monitors and non-intrusive inspection imaging systems as they move through the

ports. Data from these systems are provided to CBP officers stationed at the ports and within the

United States at the National Targeting Center-Cargo (NTC-C). CBP officers determine if

containers should be referred for secondary examination.

The Administration has requested reductions to CSI and SFI in each of the last two funding

cycles, including a 49% reduction from the FY2011 base funding level as a technical adjustment

and a 58% reduction in overall funding for FY2012.130 Based on the initial SFI pilot, CBP

concluded that 100 percent scanning of U.S.-bound maritime containers is possible on a limited

scale in low volume ports, but that “this process will be difficult to achieve” in many ports and in

the case of many transshipped goods.131 Thus, the Administration proposes to remove CBP

officers from most CSI ports and to rely more heavily on remote risk-based targeting at the NTCC and reciprocal inspections agreements with foreign governments.132

In light of the Administration’s plans to scale back 100% screening through the SFI pilots,

Congress may be interested in the degree to which the NTC-C is positioned to support the

127

Colonel Randall Larsen, Executive Director of the U.S. Congress Commission on the Prevention of Mass

Destruction Proliferation and Terrorism, quoted in Rob Margetta, “Maritime Cargo Screening: The Wrong Approach

for Avoiding Nuclear Attack?,” Congressional Quarterly Homeland Security, Aug. 19, 2010, http://homeland.cq.com/

hs/display.do?docid=3724840&sourcetype=31.

128

U.S. Customs and Border Protection, Report to Congress on Integrated Scanning System Pilots (SAFE Port Act of

2006, Section 231), p. 7, http://www.apl.com/security/documents/sfi_finalreport.pdf. Hereafter: CBP SAFE Port Act

Report to Congress.

129

U.S. Customs and Border Protection, Congressional Budget Justifications FY2012, CBP-S&E–37.

130

Ibid., p. CBP-S&E-32.

131

CBP SAFE Port Act Report to Congress, p. 9.

132

U.S. Customs and Border Protection, Congressional Budget Justifications FY2012, CBP-S&E–51.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

increase in workload that will result from the proposed changes to CSI. Congress may also wish

to examine the impact the proposed changes will have on the security of U.S.-bound containers

arriving in the United States from CSI ports. Also of possible interest is the degree to which these

proposed reductions represent a change in cargo security strategy from one focused on the

congressionally-mandated 100% scanning requirement to a remote screening posture focused on

high-risk shipments.

Domestic Nuclear Detection133

Congress has emphasized the need to detect and interdict smuggled nuclear and radiological

material before it enters the United States, funding investment in nuclear detection domestically

and abroad. The DHS has adopted a strategy of securing the border through emplacement of

radiation portal monitors and non-intrusive imaging equipment. Experts have criticized this

combined system as being insufficient to detect all smuggled special nuclear material. The DHS

has spent several years developing, testing, and evaluating next-generation detection equipment.

The development of these next-generation systems, the Advanced Spectroscopic Portal and the

Cargo Advanced Automated Radiography System, has not met testing and evaluation milestones

and has lagged performance and timeline expectations.

The DHS has deployed radiation portal monitors and other nuclear and radiological material

detection equipment since its establishment. In 2005, DHS established a new office, the Domestic

Nuclear Detection Office (DNDO), to research, develop, and procure needed necessary detection

equipment and coordinate nuclear detection activities located mainly in Customs and Border

Protection, U.S. Coast Guard, and the Transportation Security Administration. The Government

Accountability Office (GAO) and other groups have questioned the efficacy of DNDO’s efforts to

develop a next-generation radiation detection system. Congress has annually barred full-scale

procurement of this system until the DHS Secretary certifies that it will provide a significant

increase in operational effectiveness relative to existing detection equipment. In July 2011, DHS

announced that it would not procure this system.

Congress also has required DHS to scan all containerized cargo entering the United States for

nuclear and radiological material. The DHS has not yet met this requirement, and stakeholders

question whether the DHS approach will meet this requirement in the future. In addition, a

shortfall of a key neutron detection material, helium-3, may force a reconsideration of the current

nuclear detection approach, either through development of new neutron-detection materials or

through refitting deployed systems with less advantageous neutron-detection capabilities.

DHS activities to detect smuggled radiological and nuclear materials at the U.S. border are part of

a large interagency effort to develop a global nuclear detection architecture (GNDA). Congress

made DHS, through DNDO, responsible for coordinating federal efforts within the GNDA and

implementing this architecture domestically. A GNDA strategic plan has recently been released.

The GAO has identified weaknesses in the strategic plan, and they and others await the release of

a domestic implementation plan for the GNDA.

The 112th Congress may continue its oversight over the development, testing, and procurement of

current and next-generation nuclear detection equipment, interagency coordination in nuclear

133

Prepared by (name redacted), Specialist in Science and Technology Policy, [redacted]@crs.loc.gov, 7-.....

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

detection, the sufficiency of the global nuclear detection architecture that links this equipment

together, and DHS’s approach to the helium-3 shortage.134

Port Security135

The bulk of U.S. overseas trade is carried by ships and thus the economic consequences of a

maritime terrorist attack could be significant. A key challenge for U.S. policy makers is

prioritizing maritime security activities among a virtually unlimited number of potential attack

scenarios. There are far more potential attack scenarios than likely ones, and far more than could

be meaningfully addressed with limited counter-terrorism resources. In addition to the 100%

container scanning requirement (see discussion above under “Cargo Security”), other port

security-related issues before Congress include ongoing implementation of a port worker security

card, addressing the threat posed by small craft, and progress towards establishing harbor

interagency operational centers.

On January 25, 2007, TSA and the Coast Guard issued a final rule implementing the

Transportation Worker Identification Credential (TWIC) at U.S. ports.136 Longshoremen, port

truck drivers, merchant mariners, and other workers entering a port must apply for a TWIC card

to obtain unescorted access to port facilities or vessels. The card uses biometric technology for

positive identification and TSA conducts a security threat assessment of each worker before

issuing a card. The security threat assessment uses the same procedures and standards established

by TSA for truck drivers carrying hazardous materials, including examination of the applicant’s

criminal history, immigration status, mental incapacity, and links to terrorist activity to determine

whether a worker poses a security threat. A worker pays a fee of about $133 that is intended to

cover the cost of administering the cards. Port facility operators will be responsible for deploying

card readers at the gates to their facilities. TSA has tested card readers at a handful of ports to

determine the best kind of card reader technology to require. A recent GAO audit found internal

control weaknesses in the enrollment, background checking, and use of the TWIC card at ports,

which were said to undermine the effectiveness of the credential in screening out unqualified

individuals from obtaining access to port facilities.137

The use of smaller vessels by terrorists to smuggle weapons or themselves onto U.S. shores or to

conduct suicide bombings against larger cargo or passenger ships, similar to the attacks on the

U.S.S. Cole and the French oil tanker M/V Limburg, is a concern. There are too many smaller

boats for the Coast Guard to track, and recreational boaters oppose tracking because of the cost of

transponders and privacy concerns.138 Even if small vessels were tracked, there is skepticism

about the Coast Guard’s ability to thwart an attack given that small vessels routinely sail near

potential targets in busy harbor environments. Based on a DHS strategy report, it appears the

134

For further CRS research on this issue, consult CRS Report RL34750, The Advanced Spectroscopic Portal

Program: Background and Issues for Congress, by (name redacted), (name redacted), and (name redacted).

135

Prepared by (name redacted), Specialist in Tran

sportation Policy, [redacted]@crs.loc.gov, 7-.....

136

Federal Register, v. 72, no. 16, January 25, 2007, pp. 3492 - 3604.

137

GAO, Transportation Worker Identification Credential – Internal Control Weaknesses Need to Be Corrected to

Help Achieve Security Objectives, May 2011, GAO-11-657.

138

Statement of Margaret Podlich, Boat Owners Association, Subcommittee on Coast Guard and Maritime

Transportation, House Committee on Transportation and Infrastructure, Hearing on Maritime Domain Awareness,

December 9, 2009.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Coast Guard has no immediate plans to require smaller vessels be outfitted with transponders but

will continue to pursue methods to identify small craft.139

The Coast Guard is establishing interagency operational centers in major U.S. ports where federal

and local law enforcement agencies can share maritime intelligence and coordinate responses

when the need arises, such as boarding higher risk vessels.140 The Coast Guard is planning to colocate these centers with existing Vessel Traffic Service (VTS) stations where Coast

Guard “watch-standers” track and monitor ship movements in a harbor for safety purposes. While

these command centers appear to facilitate efforts by law enforcement agencies to “connect the

dots” in the maritime environment, Congress has been concerned with the pace at which the

Coast Guard is setting up these centers.

Aviation Security141

Following the 9/11 terrorist attacks, Congress took swift action to create the Transportation

Security Administration (TSA), federalizing all airline passenger and baggage screening functions

and deploying large numbers of armed air marshals on commercial passenger flights. TSA

remains specifically focused on screening passengers, baggage, and air cargo for explosives and

other threats, and considerable challenges remain in effectively screening for explosive threats.

Additionally, challenges remain regarding the effective use of watchlists and intelligence

information to detect and deter individuals who may pose a threat to civil aviation. Challenges

also remain in developing effective strategies and technologies for protecting commercial

airliners from attacks by shoulder-fired missiles and other standoff weapons. Finally, challenges

remain regarding effective regulation and oversight of airport security measures and access

control technologies and procedures.

Explosives Screening Strategy for the Aviation Domain142

Prior to the 9/11 attacks, explosives screening in the aviation domain was limited in scope and

focused on selective screening of checked baggage placed on international passenger flights.

Immediately following the 9/11 attacks, the Aviation and Transportation Security Act (ATSA, P.L.

107-71) mandated 100% screening of all checked baggage placed on domestic and international

passenger flights to and from the United States. In addition, the Implementing the 9/11

Commission Recommendations Act of 2007 (P.L. 110-53) mandated the physical screening of all

cargo placed on passenger flights. While TSA has met the requirement for cargo screening

domestically, largely through implementation of its Certified Cargo Screening Program to oversee

screening at off-airport shipping and consolidation facilities combined with supply chain security

measures, additional work is needed to implement similar measures for U.S.-bound international

flights.143 Although TSA has yet to fully implement 100% screening of cargo placed on

international flights, recent attention has particularly focused on improving explosives screening

of passengers in response to continued threats.

139

DHS, Small Vessel Security Strategy, April 2008. For a critical review of this strategy, see DHS OIG, DHS’s

Strategy and Plans to Counter Small Vessel Threats Needs Improvement, September 2009.

140

IOCs were authorized in the Security and Accountability for Every Port Act of 2006 (P.L. 109-347, sec. 108).

141

Prepared by (name redacted), Specialist in Aviation Policy, [redacted]@crs.loc.gov, 7-.....

142

Prepared by (name redacted), Specialist in Aviation Policy, [redacted]@crs.loc.gov, 7-.....

143

See CRS Report R41515, Screening and Securing Air Cargo: Background and Issues for Congress, by (name redacted).

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

On December 25, 2009, Umar Farouk Abdulamutallab, a 23-year-old Nigerian, attempted to

detonate an explosive device concealed in his underwear aboard Northwest Airlines flight 253

during its approach to Detroit, MI. Al-Qaeda in the Arabian Peninsula claimed responsibility. AlQaeda and its various factions have maintained a particular interest in attacking U.S.-bound

airliners. Since 9/11, Al-Qaeda has been linked to a plot to bomb several trans-Atlantic flights

departing the United Kingdom for North America in 2006 and to the Richard Reid shoe bombing

incident aboard American Airlines flight 63 en route from Paris to Miami on December 22, 2001.

In response to the Northwest Airlines flight 253 incident, the Obama administration accelerated

deployment of Advanced Imaging Technology (AIT) whole body imaging (WBI) screening

devices and other technologies at passenger screening checkpoints. This deployment responds to

the 9/11 commission recommendation to improve the detection of explosives on passengers.144

In addition to AIT, next generation screening technologies for airport screening checkpoints

include advanced technology x-ray systems for screening carry-on baggage, bottled liquids

scanners, cast and prosthesis imagers, shoe scanning devices, and portable explosives trace

detection equipment. The use of AIT has raised a number of policy questions. Privacy advocates

have objected to the intrusiveness of AIT, particularly if used for primary screening.145 The

screening of children, the elderly, and individuals with medical conditions and disabilities has

been particularly contentious. Recent modifications to pat-down screening procedures, involving

more detailed inspection of private areas, have also raised privacy concerns.146 To allay privacy

concerns, TSA currently requires remote screening of images outside of public view and forbids

recording or storage of AIT images. It has also begun implementing automated threat detection

capabilities that will eliminate the need for TSA screeners to view AIT-generated images.

Other concerns about AIT include the amount of time it takes to screen passengers and the

potential medical risks posed by backscatter x-ray systems, despite assurances that the radiation

doses from screening are comparatively small. Some have advocated for risk-based use of AIT,

perhaps in coordination with a program such at the recently announced trusted traveler test

program scheduled to begin in the fall of 2011. Past legislative proposals have specifically sought

to prohibit the use of WBI technology for primary screening (see, e.g., H.R. 2200, 111th

Congress).147

The Use of Terrorist Watchlists in the Aviation Domain148

The failed bombing attempt of Northwest Airlines flight 253 on December 25, 2009, also raised

policy questions regarding the effective use of terrorist watchlists and intelligence information to

identify individuals that may pose a threat to aviation. Specific failings to add the suspect to

144

National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, New York, NY:

W. W. Norton & Co., 2004.

145

See, e.g., American Civil Liberties Union. ACLU Backgrounder on Body Scanners and “Virtual Strip Searches,”

New York, NY., January 8, 2010.

146

Donna Goodison, “Passengers Shocked by New Touchy-Feely TSA Screening,” The Boston Herald, August 24,

2010.

147

For further reading see CRS Report R40543, Airport Passenger Screening: Background and Issues for Congress, by

(name redacted), and CRS Report R41502,

Changes in Airport Passenger Screening Technologies and Procedures:

Frequently Asked Questions, by (name redacted).

148

For additional information see CRS Report RL33645, Terrorist Watchlist Checks and Air Passenger Prescreening,

by (name redacted) and (name redacted).

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

either the no-fly or selectee list, despite intelligence information gathered prior to the flight

suggesting that he potentially posed a security threat, prompted reviews of the intelligence

analysis and terrorist watchlisting processes. Adding to these concerns, on the evening of May 3,

2010, New York Times Square attempted bombing suspect Faisal Shazad was permitted to board

an Emirates Airline flight to Dubai at the John F. Kennedy International airport, even though his

name had been added to the no-fly list earlier in the day. He was subsequently identified, removed

from the aircraft, and arrested after the airline forwarded the final passenger manifest to CBP’s

National Targeting Center just prior to departure.149 Subsequently, TSA modified security

directives to require airlines to check passenger names against the no-fly list within two hours of

being electronically notified of a urgent update, instead of allowing 24 hours to recheck the list.

The event also prompted calls to accelerate the ongoing transfer of watchlist checks from the

airlines to the TSA under the Secure Flight program, a process which has now been completed.

By the end of November 2010, the DHS announced that 100% of passengers flying to or from

U.S. airports are being vetted using the Secure Flight system.150 Secure Flight continues the nofly and selectee list practices of vetting passenger name records against a subset of the Terrorist

Screening Database (TSDB). These practices, designed to strike a balance between detecting

threats and minimizing false positives, have been criticized because they do not check each

passenger against the full set of available government data on potential terrorist threats. Central

issues surrounding the Secure Flight program and the use of terrorist watchlists in the aviation

domain that may be considered during the 112th Congress include the timeliness of updating

watchlists as new intelligence information becomes available; the extent to which complete

terrorist information available to the federal government is exploited to assess possible threats

among airline passengers and airline and airport workers; the ability to detect potential identity

fraud or other attempts to circumvent terrorist watchlist checks, including the potential use of

biometrics; the adequacy of established protocols for providing redress to individuals improperly

identified as potential threats by watchlist checks; and the adequacy of coordination with

international partners.

Recent months have seen renewed efforts to establish a trusted traveler program, intended to offer

participants expedited screening. TSA asserts that the program will allow it to focus resources on

passengers more likely to pose a risk. A similar test program, called the Registered Traveler

program, which involved private vendors that issued and scanned participants’ biometric

credentials, was scrapped because it failed to show a demonstrable additional security benefit.

The planned trusted traveler program aims to build upon existing CBP trusted traveler programs

and airline frequent flyer programs.151 Questions remain regarding whether such a program will

be an effective tool to assist in directing security resources to unknown or elevated risk travelers

while expediting the screening of program participants.

In addition to these various efforts to screen passengers based on biographic information and

biometric data, TSA has invested heavily in developing a passenger behavior detection program

to indentify potential threats based on observed behavioral characteristics. In addition to

employing observational techniques, TSA Behavior Detection Officers are field testing more

149

Scott Shane, “Lapses Allowed Suspect to Board Plane,” The New York Times, May 4, 2010.

Department of Homeland Security. DHS Now Vetting 100 Percent Of Passengers On Flights Within Or Bound For

U.S. Against Watchlists, Press Release, November 30, 2010.

151

Transportation Security Administration, Expedited Screening Pilot, http://www.tsa.gov/what_we_do/

escreening.shtm.

150

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

extensive passenger interviews based on methods employed at Israeli airports.152 Questions

remain regarding the effectiveness of the behavioral detection program, and privacy advocates

have cautioned that it could devolve into racial or ethnic profiling of passengers despite concerted

efforts to focus solely on behaviors rather than individual passenger traits or characteristics.

Mitigating the Threat of Shoulder-Fired Missiles to Civilian Aircraft153

The threat to civilian aircraft posed by shoulder-fired missiles or other standoff weapons capable

of downing an airliner, remains a vexing concern for aviation security specialists and

policymakers. The threat was brought into the spotlight by the November 2002 attack on a

chartered Israeli airliner in Mombasa, Kenya. In 2003, then-Secretary of State Colin Powell

remarked that there was “no threat more serious to aviation.”154 Since then, Department of State

and military initiatives seeking voluntary reductions of man-portable air defense systems

(MANPADS) stockpiles have reduced worldwide inventories by at least 30,000.155 Despite this

progress, an unknown number of such weapons may still be in the hands of insurgents. This

threat, combined with the limited capability to improve security beyond airport perimeters and to

modify flight paths, leaves civil aircraft vulnerable to missile attacks, especially in conflict zones

and other high-risk areas.

The most visible DHS initiative to address the threat was the multiyear Counter-MANPADS

program carried out by the DHS Science &Technology Directorate. The program concluded in

2009 with extensive operational and live-fire testing along with FAA certification of systems

from two vendors capable of protecting airliners against heat-seeking missiles. The systems have

not been operationally deployed on commercial airliners, however, due largely to the high

acquisition and life-cycle costs of these units. Some critics have also pointed out that the units do

not protect against the full range of potential weapons that pose a potential threat to civil airliners.

Proponents, however, argue that the systems do appear to provide effective protection against

what is likely the most menacing standoff threat to civil airliners: heat-seeking MANPADS.

Nonetheless, the airlines, which continue to face economic difficulties, have not voluntarily

invested in these systems for operational use and argue that the costs for such systems should be

borne, at least in part, by the federal government. Policy discussions have focused mostly on

whether to fund the acquisition of limited numbers of the units for use by the Civil Reserve

Aviation Fleet, civilian airliners that can be called up to transport troops and supplies for the

military. Other approaches to protecting aircraft, including ground-based missile countermeasures

and escort planes or drones equipped with antimissile technology, have been considered on a

more limited basis, but these options face operational challenges that may limit their

effectiveness.

At the airport level, improving security and reducing the vulnerability of flight paths to potential

MANPADS attacks continues to pose unique challenges. While major airports have conducted

vulnerability studies, and many have partnered with federal, state, and local law enforcement

agencies to reduce vulnerabilities to some degree, these efforts face significant challenges

because of limited resources and large geographic areas where aircraft are vulnerable to attack.

152

Katie Johnston, “A Question for You,” The Boston Globe, August 3, 2011.

Prepared by (name redacted), Specialist in Aviation Policy, [redacted]@crs.loc.gov, 7-.....

154

Katie Drummond, “Where Have All the MANPADS Gone?” Wired, February 22, 2010.

155

Ibid.

153

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

While considerable attention has been given to this issue in years past, considerable

vulnerabilities remain, and any terrorist attempts to exploit those vulnerabilities could quickly

escalate the threat of shoulder-fired missiles to a major national security priority.

Airport Access Controls and Physical Security156

Whereas passenger and baggage screening are carried out by TSA, airports are directly

responsible for airport physical security and access control measures. This includes perimeter

security, access control systems and badges for secured and restricted areas, surveillance, law

enforcement support, and so on. The adequacy of airport access control measures, physical

security of airport properties, and TSA oversight of airport security programs has been under

scrutiny following a rash of security breaches in 2010. Notably, on January 3, 2010, Haisong

Jiang bypassed security at Newark Liberty Airport in New Jersey by entering the sterile area of a

passenger terminal through an exit lane that was left unguarded by a transportation security

officer. The incident resulted in the evacuation of the terminal, which remained closed for six

hours. The policy response to the incident focused primarily on increasing penalties for violators

who breach security measures and gain unauthorized access to sterile and secured areas of

airports and aircraft. On August 19, 2010, a man being chased by police crashed a stolen pickup

truck through a perimeter gate at Dallas Love Field in Texas and drove onto the air operations

area, forcing the closure of the airport to flight operations. The incident raised concerns over the

adequacy of perimeter access control measures as well as airport security response. Additionally,

on August 31, 2010, a woman was shot and killed by police after allegedly making threats with a

firearm outside a Delta Airlines maintenance facility at the Atlanta Hartsfield Jackson

International Airport in what was described as a domestic situation. While none of these incidents

was tied to terrorism, this string of unrelated events has raised policy concerns regarding the

implementation and regulatory oversight of airport access controls and physical security

measures.

In 2010, concern over firearms at airports also became an issue of considerable debate following

consideration of state legislation in Georgia to allow the carriage of firearms in public transit

facilities, including commercial airport terminals. The state law would have superseded local

ordinances banning firearms carriage in airport terminals. It was not enacted, but prompted debate

at the federal level over whether to ban firearms in the non-sterile areas of all commercial airport

terminals.

The smuggling of firearms past security checkpoints and onto flights at Orlando International

Airport in 2007 prompted considerable concern over the lack of physical screening of airport

workers. Preventing airport workers from introducing threats, including weapons and explosives,

into the sterile and secured areas of airports has proven difficult. The current TSA approach

includes statutory background checks for workers coupled with random and targeted screenings.

TSA has tested various screening concepts under its Aviation Direct Access Screening Program

(ADASP) and carried out tests to compare these methods to 100% screening. GAO, however,

found that design limitations and poor documentation of the pilot program prevented any

conclusions from being reached.157 TSA maintains that random and targeted screening of airport

156

Prepared by (name redacted), Specialist in Aviation Policy, [redacted]@crs.loc.gov, 7-.....

Government Accountability Office. Aviation Security: A National Strategy and Other Actions Would Strengthen

TSA’s Efforts to Secure Commercial Airport Perimeters and Access Controls. GAO-09-399, September 30, 2009.

157

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

workers, coupled with statutory background check requirements, provides an adequate level of

security.

Identity authentication of various groups including airport workers, airline workers, and law

enforcement officers authorized to carry weapons in airport sterile areas and on aircraft has also

proven difficult. While crew identification systems for commercial airline pilots and law

enforcement officers are being tested at various sites, TSA currently has no plans to implement

universal access credentials to airline and airport workers, leaving it up to individual airports to

issue access credentials and develop and maintain TSA-approved access control systems.

Also, security procedures affecting general aviation facilities have been controversial and have

raised a number of issues regarding credentialing and background check requirements,

particularly for transient aircraft operators. General aviation operators often must go through

redundant background checks and credentialing processes at multiple airports. TSA has

implemented guidance allowing transient operators to gain escorted access to their aircraft and to

other airport facilities, but multiple credentials are often needed when crews utilize specific

airports on a more regular basis.

Immigration158

Immigration policy is multi-tiered and has a variety of key elements: border control and visa

security; legal immigration; documentation and verification; interior immigration enforcement;

integration, status, and benefits; and refugees and other humanitarian populations.159 This portion

of the report summarizes several immigration issues related to boder security and passenger

screening at ports of entry by U.S. Customs and Border Protection (CBP), the agency within DHS

within DHS responsible for these activities.160

Screening at Ports of Entry161

At ports of entry, CBP’s Office of Field Operations (OFO) is responsible for conducting

immigration, customs, and agricultural inspections of travelers seeking admission to the United

States. The vast majority of people entering through U.S. ports are U.S. citizens, U.S. lawful

permanent residents (LPRs), and other legitimate visitors. Thus, the overarching task for CBP

officers is to identify and intercept dangerous or unwanted (high-risk) people or goods, while

facilitating access for legitimate (low-risk) travelers and commerce. CBP seeks to accomplish

these screening tasks without excessive infringement on privacy or civil liberties and while

controlling enforcement costs.

158

Prepared by (name redacted), Specialist in Immigration Policy, [redacted]@crs.loc.gov, 7-.....

For summaries of legislative activity in recent years, see CRS Report R40848, Immigration Legislation and Issues

in the 111th Congress, coordinated by (name redacted); CRS Report RL34204,Immigration Legislation and Issues in the

110th Congress, coordinated by (name redacted); CRS Report RL33125,Immigration Legislation and Issues in the 109th

Congress, coordinated by (name redacted); and CRS Report RL32169,Immigration Legislation and Issues in the 108th

Congress, by (name redacted) et al.

160

For a fuller discussion of immigration issues, see CRS Report R41704, Overview of Immigration Issues in the 112th

Congress, by (name redacted).

161

Prepared by (name redacted), Specialist in Immigration Policy, [redacted]@crs.loc.gov, 7-.....

159

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Travelers seeking admission at ports of entry are required to present a travel document, typically

a passport or its equivalent and (for non-U.S. citizens) either a visa authorizing permanent or

temporary admission to the United States or proof of eligibility for admission through the Visa

Waiver Program. Foreign nationals are subject to security-related and other background checks

prior to being issued a visa or to receiving travel authorization through the Visa Waiver Program.

The utility of these background checks depend fundamentally on screening at ports of entry,

where CBP officers verify the authenticity of travelers’ documents and that each document

belongs to the person seeking admission (i.e., confirm the traveler’s identity). Identity

confirmation relies in part on biometric checks through the US-VISIT system (see “Entry-Exit

System”), which matches travelers fingerprints against information provided during the visa

application process and recorded in the State Department’s Consular Consolidated Database.

The concentration of inspection activity at the border means that sufficient resources must be

present in order to ensure efficient operations. Congestion at ports of entry is costly to businesses

at the border and in the interior. CBP thus faces considerable pressure to provide for the rapid

processing of individuals crossing the border, but expedited processing can lead to missed

opportunities for interdicting threats. Moreover, investment in ports of entry has not kept pace

with rapid growth in international travel and trade, and there is inadequate infrastructure to

manage flows at many ports of entry. Thus, one perennial issue for Congress is how to allocate

resources for port of entry infrastructure, including the maintenance and improvement of existing

ports, the construction of new ports, and the number of OFO inspectors.

In an effort to streamline admissions without compromising security, CBP has implemented

several trusted traveler programs. Trusted traveler programs require applicants to clear criminal

and national security background checks prior to enrollment, to participate in an in-person

interview, and to submit fingerprints and other biometric data. Individuals are ineligible to

participate in a trusted traveler program if they are inadmissible to the United States, provide false

or incomplete information on trusted traveler applications; have been convicted of a criminal

offense, have outstanding warrants, or are subject to an investigation; or have been found in

violation of customs, immigration, or agriculture laws. Trusted travel enrollees are re-checked

against certain security databases every 24 hours, and they undergo additional screening every

time they enter the United States and every time they renew their trusted traveler membership.162

CBP currently operates four trusted traveler programs: Global Entry, which allows expedited

screening of passengers arriving at 20 major U.S. airports;163 NEXUS, which is a joint U.S.Canadian program for land, sea, and air crossings between the United States and Canada,

including through dedicated vehicle lanes at 19 land ports;164 the Secure Electronic Network for

Travelers Rapid Inspection (SENTRI), which allows expedited screening at land POEs on the

U.S.-Mexican border, including through dedicated vehicle lanes at 10 land ports;165 and the Fast

and Secure Trade Program (FAST), which allows expedited screening for U.S., Mexican, and

Canadian commercial truck drivers, including through dedicated truck lanes at 55 land ports on

the northern and southern borders.166

162

Susan Holliday, “Global Entry Takes Off,” CBP Frontline, Winter 2011, p. 7.

Ibid.

164

U.S. Customs and Border Protection, “Fact Sheet: NEXUS,” http://www.cbp.gov/linkhandler/cgov/newsroom/

fact_sheets/travel/nexus_fact.ctt/nexus_fact.pdf

165

U.S. Customs and Border Protection, “SENTRI Program Description,” http://www.cbp.gov/xp/cgov/travel/

trusted_traveler/sentri/sentri.xml.

166

U.S. Customs and Border Protection, “Fact Sheet: Fast and Secure Trade,” http://www.cbp.gov/linkhandler/cgov/

(continued...)

163

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

Entry-Exit System167

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 required the

development of an automated entry-exit system that collects a record of departure for every alien

departing the United States; matches exit records against alien arrival records, and allows the

identification through online searches of nonimmigrants who remain beyond their period of

authorized stay.168 Subsequent legislation has revised and expanded this entry-exit requirement on

several occasions.169 Following the September 11, 2001 terrorist attacks, the tracking of

nonimmigrants who overstayed their visas remained an important goal, but border security at and

between ports of entry became the paramount concern.

Since 2004 DHS has also collected biometric data, including digital photographs and fingerprints,

from certain travelers entering the United States through the U.S. Visitor and Immigrant Status

Indicator Technology (US-VISIT) system.170 Biometric data are added to the Automated

Biometric Identification System (IDENT) database, which also includes biometric data from

individuals apprehended at U.S. borders. The entry component of US-VISIT started at 115

airports and 14 sea ports beginning in January, 2004, expanded to the 50 busiest land POEs by the

end of 2004, and has been operational at almost all U.S. ports of entry since December 2006.171 In

November 2007, the system upgraded its data collection from two fingerprint to ten prints, a

change that increased its accuracy for identification purposes and that allows US-VISIT data to be

checked against the Federal Bureau of Investigation’s (FBI) Automated Fingerprint Identification

System (IAFIS).172 Since January 2009, US-VISIT has collected biometric data from all non-U.S.

citizens entering the United States except for Canadian nationals admitted as visitors, U.S. lawful

permanent residents (LPRs) returning from cruises that begin and end in the United States or

entering at land ports of entry, Mexican nationals with border crossing cards, and travelers with

(...continued)

newsroom/fact_sheets/travel/fast/fast_fact.ctt/fast_fact.pdf.

167

Prepared by (name redacted), Specialist in Immigration Policy, [redacted]@crs.loc.gov, 7-.....

168

§110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208, Division C).

169

See CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, by Lisa

M. Seghetti and (name redacted).

170

US-VISIT is a stand-alone division within DHS’s National Protection and Programs Directorate.

171

US-VISIT was operational at all 115 airports, 14 seaports, and 154 of 170 land ports. According to GAO, US-VISIT

was not deployed to the remaining land POE’s because most visitors subject to US-VISIT requirements were not

authorized to use them or because, in two cases, the ports did not have the necessary transmission lines to operate USVISIT. See U.S. Government Accountability Office, Homeland Security: Key US-VISIT Components at Varying Stages

of Completion, but Integrated and Reliable Schedule Needed, GAO-10-13, November 2009, p. 7, http://www.gao.gov/

new.items/d1013.pdf.

172

IAFIS conducts criminal and terrorist background checks in response to requests from federal, state, and local law

enforcement agencies by checking fingerprints against the IAFIS database of fingerprints, criminal histories,

photographs, and biographic information. The IAFIS database includes the records of more than 66 million subjects in

its criminal master file along with more than 25 million civil fingerprints. See Federal Bureau of Investigation,

“Integrated Automated Fingerprint Identification System,” http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/

iafis/iafis.

Congressional Research Service

Issues in Homeland Security Policy for the 112th Congress

other visas explicitly exempted from the program.173 These exemptions include more than threequarters of all nonimmigrants entering the United States.174

The entry-exit system is also required to record the identity of travelers who leave the United

States so that DHS can identify individuals who overstay their visas and gather data that may be

of value for intelligence analysis. But the exit component has proven difficult to implement.

Currently, DHS uses biographic information from I-94 forms and other traveler information to

match entry and exit data through the Arrival and Departure Information Sy

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.