# Issues in Homeland Security Policy for the 112th Congress

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3AR42025

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 22, 2011
- **Citation:** R42025

## 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.

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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

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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

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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

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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.
1

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.
2
For a fuller discussion of this issue, see CRS Report R41189, Homeland Security Department: FY2011
Appropriations, coordinated by (name redacted) and (name redacted).
3
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).
4
Prepared by John Rollins, Specialist in Terrorism and National Security, [redacted]@crs.loc.gov, 7-.....

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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
5

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.
7
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.
8
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.
9
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/.
10
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.
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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

11
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.
12
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.
13
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.
14
For more information on these attacks see Appendix A in Bjelopera, American Jihadist.
15
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.

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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
16
White House, National Strategy for Counterterrorism, June 2011, http://www.whitehouse.gov/sites/default/files/
counterterrorism_strategy.pdf. Hereafter: National Strategy.
17
Ibid, p. 3.
18
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.
19
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.

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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
20

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.
21
Home Office, Prevent Strategy, June 2011, http://www.homeoffice.gov.uk/publications/counter-terrorism/prevent/
prevent-strategy/prevent-strategy-review?view=Binary.
22
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.
23
Royal Canadian Mounted Police, National Security Criminal Investigations, Radicalization: A Guide for the
Perplexed, Canada, June 2009, p. 1.
24
Clark McCauley and Sophia Moskalenko, “Mechanisms of Political Radicalization: Pathways Toward Terrorism,”
Terrorism and Political Violence, vol. 20, no. 3 (July 2008), p. 416.
25
Home Office, Prevent Strategy, June 2011, p. 108, http://www.homeoffice.gov.uk/publications/counter-terrorism/
prevent/prevent-strategy/prevent-strategy-review?view=Binary.
26
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.

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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
27

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).
28
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.
29
Prepared by (name redacted), Specialist, Science and Technology Policy, [redacted]@crs.loc.gov.

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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)
30
See CRS Report R41033, Project BioShield: Authorities, Appropriations, Acquisitions, and Issues for Congress, by
(name redacted).

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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.

31

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-.....
32
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.

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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
33

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).
34
Ibid.
35
Ibid.
36
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.
37
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.
38
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.
39
National Rifle Association-Institute for Legislative Action, “Keeping An Eye On ‘Terror Watchlist’ Legislation, May
20, 2011.
40
Prepared by (name redacted), Specialist in American National Government, Government and Finance Division,
[redacted]@crs.loc.gov, 7-.....

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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.

41

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).
42
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.”
43
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.”
44
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.
45
53 FR 47491; November 23, 1988.

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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
46

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).
47
Real property is defined as property that is leased or owned by the General Services Administration.
48
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.
49
These security guards are both federally employed and contracted.
50
40 U.S.C. 1315.
51
Information regarding any changes to FPS or their operations in FY2012 has not been addressed.
52
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.

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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

53

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.
54
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).
55
U.S. Marshals Service, Fact Sheet, Judicial Security 2011, April 5, 2011, http://www.usmarshals.gov/duties/
factsheets/jsd-2011.pdf.
56
“Judges Plead for Improved Judicial Security,” The Third Branch: Newsletter of the Federal Courts, Washington,
DC, June 2005, pp. 1-2.
57
USMS provided this information to the author by electronic mail on August 1, 2011.

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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
58

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).
60
DHS, National Infrastructure Protection Plan: Agriculture and Food Sector Snapshot, May 2007,
http://www.dhs.gov/files/programs/gc_1188565256722.shtm.
61
CRS Report R40443, The FDA Food Safety Modernization Act (P.L. 111-353), coordinated by (name redacted).
59

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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.
62

Ibid, p. 39.
FDA, “FSMA: Progress Reports,” http://www.fda.gov/Food/FoodSafety/FSMA/ucm255893.htm.
64
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.
65
Prepared by Paul Parkfomak, Specialist in Energy and Infrastructure Policy, Resources, Science and Industry
Division, [redacted]@crs.loc.gov, 7-.....
66
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.
67
“Already Hard at Work on Security, Pipelines Told of Terrorist Threat,” Inside FERC, McGraw-Hill Companies,
January 3, 2002.
68
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.
69
Transportation Security Administration, Office of Intelligence, Pipeline Threat Assessment, January 18, 2011, p. 3.
63

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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

70

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.
71
GAO, August 2010, p. 32.
72
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.
73
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.
74
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.
75
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.
76
For further analysis, see CRS Report R41536, Keeping America’s Pipelines Safe and Secure: Key Issues for
Congress, by (name redacted).

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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,
77

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).
79
Prepared by (name redacted), Specialist in Resources and Environmental Policy, [redacted]@crs.loc.gov, 7-.....
78

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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
80
81

P.L. 107-297; 116 Stat. 2322.
The Public Health Security and Bioterrorism Preparedness and Response Act, 116 Stat. 594.

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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
82

For additional information, see CRS Report RL32189, Terrorism and Security Issues Facing the Water
Infrastructure Sector, by (name redacted).
83
Prepared by (name redacted), Specialist in Science and Technology Policy, [redacted]@crs.loc.gov, 7-.....

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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.
84

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.
85
Prepared by Randy Peterman, Analyst in Transportation Policy, [redacted]@crs.loc.gov, 7-.....
86
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.
87
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.

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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.

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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
88

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.
89
See University of San Diego, Trans-Border Institute, http://justiceinmexico.org/2011/02/07/trans-border-institutereleases-report-on-drug-violence-in-mexico/.
90
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).
91
“Department of Homeland Security (DHS): Mexican Assassin Teams Targeting U.S. Law Enforcement,” Homeland
Security Newswire, April 6, 2010.
92
Ramon Bracamontes, “CBP Chief Assesses the Border: Alan Bersin, in El Paso, Assures Safety, Backs Mexico’s
Fight,” El Paso Times, January 6, 2011.
93
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.

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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.
94

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/.
95
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.
96
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.
97
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.
98
Prepared by Kristin M. Finklea, Analyst in Domestic Security, [redacted]@crs.loc.gov, 7-.....
99
Office of the Coordinator for Counterterrorism, Country Reports on Terrorism 2009, U.S. Department of State,
(continued...)

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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.”

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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.

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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.
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

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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

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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 Int

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR42025. Public record. Not legal advice.