# Issues in Homeland Security Policy for the 113th Congress > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR42985 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** September 23, 2013 - **Citation:** R42985 ## Text Issues in Homeland Security Policy for the 113th Congress (name redacted) Analyst in Emergency Management and Homeland Security Policy September 23, 2013 Congressional Research Service 7-.... www.crs.gov R42985 CRS Report for Congress Prepared for Members and Committees of Congress Issues in Homeland Security Policy for the 113th Congress Summary With the 10th anniversary of the establishment of the Department of Homeland Security (DHS), many observers have made a fresh assessment of where America’s homeland security enterprise stands today. DHS is currently the third-largest department in the federal government, although it does not incorporate all of the homeland security functions at the federal level. The definition of homeland security remains unsettled, and questions about the effectiveness and efficiency of the department have been raised since it was first proposed. Evolution of America’s response to terrorist threats 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 113th Congress. After a brief discussion of the overall homeland security budget, the report divides the specific issues into five broad categories: • Counterterrorism and Security Management, • Border Security and Trade, • Immigration, • Disaster Preparedness, Response, and Recovery, and • Departmental Management. Each of those areas contains a survey of topics briefly analyzed by Congressional Research Service experts. The information included only scratches the surface on most of these issues. More detailed information can be obtained by consulting the CRS reports referenced herein, or by contacting the relevant CRS expert. Congressional Research Service Issues in Homeland Security Policy for the 113th Congress Contents What Is Homeland Security? ........................................................................................................... 1 Homeland Security: Definitions and Security ........................................................................... 2 The Budget and Security ........................................................................................................... 3 DHS Appropriations ............................................................................................................ 4 Counterterrorism and Security Management ................................................................................... 5 The Transnational Trend of Terrorism ....................................................................................... 5 Homegrown Jihadist Terrorism ................................................................................................. 7 Cybersecurity........................................................................................................................... 10 Cyber Threats .................................................................................................................... 11 Legislative Branch Efforts to Address Cyber Threats ....................................................... 13 Executive Branch Actions to Address Cyber Threats........................................................ 13 Medical Countermeasures to Chemical, Biological, Radiological, and Nuclear Terrorism .............................................................................................................................. 14 BioWatch: Detection of Aerosol Release of Biological Agents .............................................. 15 Continuity of Government Operations .................................................................................... 17 Federal Facility Security: Federal Protective Service ............................................................. 18 Food Defense ........................................................................................................................... 19 Security of Pipelines ................................................................................................................ 20 Security of Chemical Facilities................................................................................................ 22 Security of Wastewater and Water Utilities ............................................................................. 24 Transit Security .............................................................................................................................. 25 Border Security and Trade ............................................................................................................. 28 Southwest Border Issues.......................................................................................................... 28 Spillover Violence ............................................................................................................. 28 Illicit Proceeds and the Southwest Border ........................................................................ 30 Cross-Border Smuggling Tunnels ..................................................................................... 31 Cargo Security ......................................................................................................................... 32 Customs-Trade Partnership Against Terrorism (C-TPAT)................................................. 33 100% Scanning Requirement ............................................................................................ 34 Port of Entry (POE) Infrastructure and Personnel............................................................. 36 Domestic Nuclear Detection.................................................................................................... 37 Transportation Worker Identification Credential (TWIC) ....................................................... 38 Aviation Security ..................................................................................................................... 40 Explosives Screening Strategy for the Aviation Domain .................................................. 40 Risk-Based Passenger Screening ...................................................................................... 42 The Use of Terrorist Watchlists in the Aviation Domain ................................................... 43 Mitigating the Threat of Shoulder-Fired Missiles to Civilian Aircraft .............................. 44 Security Issues Regarding the Operation of Unmanned Aircraft ...................................... 45 Immigration ................................................................................................................................... 47 Immigration Inspections at Ports of Entry............................................................................... 47 Entry-Exit System ................................................................................................................... 49 Enforcement Between Ports of Entry ...................................................................................... 51 CBP Integrity ........................................................................................................................... 53 Disaster Preparedness, Response, and Recovery ........................................................................... 54 Disaster Assistance Funding .................................................................................................... 54 Congressional Research Service Issues in Homeland Security Policy for the 113th Congress Hurricane Sandy Recovery ...................................................................................................... 56 DHS State and Local Preparedness Grants .............................................................................. 58 Consolidation of DHS State and Local Programs ............................................................. 59 Firefighter Assistance Programs .............................................................................................. 60 Emergency Communications Infrastructure and Technology.................................................. 61 Presidential Policy Directive 8 and the National Preparedness System .................................. 62 Public Health and Medical Services ........................................................................................ 63 Potential Reauthorization of the Defense Production Act of 1950 .......................................... 64 Management Issues at DHS ........................................................................................................... 66 DHS Reorganization Authority ............................................................................................... 66 The Management Budget ........................................................................................................ 67 DHS Financial Management Reforms .............................................................................. 68 Headquarters Consolidation .............................................................................................. 70 Department of Homeland Security Personnel Issues............................................................... 71 Recruitment and Hiring of Highly Qualified Candidates .................................................. 71 Diversity of the Workforce ................................................................................................ 73 Employee Morale .............................................................................................................. 74 Acquisition .............................................................................................................................. 75 Acquisition Workforce ...................................................................................................... 75 Balanced Workforce Strategy (BWS)................................................................................ 76 Homeland Security Research and Development ..................................................................... 77 Tables Table 1. Congressional Funding for Transit Security, FY2002-FY2012 ....................................... 27 Contacts Author Contact Information........................................................................................................... 79 Congressional Research Service Issues in Homeland Security Policy for the 113th Congress What Is Homeland Security? This question has dogged U.S. public policy debates for more than a decade. There is no statutory definition of homeland security that reflects the breadth of the enterprise as currently understood. Although there is a federal Department of Homeland Security, it is neither solely dedicated to homeland security missions, nor is it the only part of the federal government with significant responsibilities in this arena. 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 DHS does include many of the homeland security functions of the federal government, several 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 DHS are officially “homeland security” missions. 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 in the past debated whether FEMA and its disaster relief and recovery missions belong in the department. Some aspects of crime and justice could arguably be included in a broad definition of homeland security. Issues such as the role of the military in law enforcement, monitoring and policing transfers of money, human trafficking, explosives and weapons laws, and aspects of foreign policy, trade, and economics have implications for homeland security policy. Rather than trying to resolve the question of what is and is not homeland security, 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. 110-53): • Counterterrorism and Security Management, • Border Security and Trade, • Immigration, and • Disaster Preparedness, Response, and Recovery. A fifth section covering management issues at DHS rounds out the discussion. As each topic is introduced, the lead expert and author of the section is listed, along with their contact information. In many cases, a specific CRS report is highlighted as a source of more detailed information. 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. Congressional Research Service 1 Issues in Homeland Security Policy for the 113th Congress Homeland Security: Definitions and Security (name redacted), Analyst in Emergency Management and Homeland Security Policy ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R42462, Defining Homeland Security: Analysis and Congressional Considerations. Twelve years after the 9/11 terrorist attacks, policy makers continue to debate the definition of homeland security. Prior to 9/11, the United States addressed crises through the separate prisms of national defense, law enforcement, and emergency management. 9/11 prompted a strategic process that included a discussion about and the development of homeland security policy. Today, this debate and development has resulted in numerous federal entities with homeland security responsibilities. Presently, there are over 30 federal departments, agencies, and entities that have homeland security responsibilities and receive annual appropriations to execute homeland security missions. Congress is responsible for appropriating funds for homeland security missions and priorities. These priorities need to exist and to be clear in order for funding to be most effective. Presently, homeland security is not funded based on clearly defined strategic priorities. In an ideal scenario, there would be a consensus definition of homeland security, as well as prioritized missions, goals, and activities. Policy makers could then use a process based on these defined priorities to incorporate feedback and strategically respond to new facts and situations as they develop. The debate over and development of homeland security definitions and priorities persists as the federal government continues to issue and implement homeland security strategies. The first homeland security strategy document issued by President George W. Bush’s Administration was the 2003 National Strategy for Homeland Security, which was revised in 2007. In 2008, the Department of Homeland Security (DHS) issued the Strategic Plan—One Team, One Mission, Securing Our Homeland. The 2007 National Strategy for Homeland Security primarily focused on terrorism, whereas the 2008 Strategic Plan included references to all-hazards and border security. Arguably, the 2003 and 2007 National Strategies for Homeland Security addressed terrorism due to such incidents as the 9/11 terrorist attacks and the attempted bombing of American Airlines Flight 93 on December 22, 2001, whereas the 2008 Strategic Plan addressed terrorism and all-hazards due to natural disasters such as Hurricane Katrina, which occurred in 2005. These documents have been superseded by several other documents which are now considered the principal homeland security strategies. The White House and DHS are the principle source of homeland security strategies. The current primary national homeland security strategic document is the 2010 National Security Strategy, which unlike the 2007 National Strategy for Homeland Security addresses all hazards and is not primarily terrorism focused.1 DHS’s strategic documents are the 2010 Quadrennial Homeland Security Review; the 2010 Bottom-Up Review; and the 2012 Strategic Plan. DHS states that these documents are nested in the 2010 National Security Strategy and DHS is currently developing the 2014 Quadrennial Homeland Security Review.2 At the national level, the 2010 National Security 1 President Obama’s Administration specifically addresses terrorism and counterterrorism in the 2011 National Strategy for Counterterrorism. 2 DHS states that it intends to issue the 2014 Quadrennial Homeland Security Review in late 2013 or early 2014. Congressional Research Service 2 Issues in Homeland Security Policy for the 113th Congress Strategy guides not just DHS’s activities, but also all federal government homeland security activities. The development of national homeland security strategy will continue as the Obama Administration and DHS develop and implement such strategies as the 2014 Quadrennial Homeland Security Review and a potentially new National Security Strategy that the Obama Administration may issue sometime in the next four years. It has been argued that homeland security, at its core, is about coordination because of the disparate stakeholders and risks.3 Many observers assert that homeland security is not only about coordination of resources and actions to counter risks; it is also about the coordination of the strategic process policy makers use in determining the risks, the stakeholders and their missions, and the prioritization of those missions. Without a general consensus on the literal and philosophical definition of homeland security, achieved through a strategic process, some believe that there will continue to be the potential for disjointed and disparate approaches to securing the nation. From this perspective, general consensus on the homeland security concept necessarily starts with a consensus definition and an accepted list of prioritized missions that are constantly reevaluated to meet risks of the homeland security paradigm of the 21st century. The varied homeland security definitions and concepts represented in the current national and homeland security strategy documents, however, may be the result of a strategic process that has attempted to, in an ad hoc manner, adjust federal homeland security policy to emerging threats and risks. The Budget and Security (name redacted), Analyst in Emergency Management and Homeland Security Policy ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R43147, Department of Homeland Security: FY2014 Appropriations. According to data from the Office of Management and Budget (OMB), the entire U.S. government spent $564 billion (in nominal dollars) on “homeland security”—defined in law as “those activities that detect, deter, protect against, and respond to terrorist attacks occurring within the United States and its territories”4—in the 10 years after the 9/11 attacks. Such spending peaked in FY2009 at $73.8 billion. The total budget request for homeland security activities for FY2014 was $72.7 billion, a reduction of $1.1 billion from its high-water mark in nominal terms.5 By comparison, the budget for the Department of Homeland Security has grown from $31.2 billion in FY2003, when it did not have its own appropriations bill, to $59.9 billion in FY2012, the last year for which we have complete budget data. Roughly $35.1 billion, or 58.6%, is considered “homeland security” spending by OMB’s accounting under the above definition. Some argue that the definition in law is too focused on explicit and directly attributable counterterrorism activities compared to broader theories that have been part of the national 3 Donald F. Kettl, System Under Stress: Homeland Security and American Politics, 2nd ed, Washington, DC, CQPress, 2007, p. 82. 4 116 Stat. 2251. The law refers to a definition from OMB’s 2002 “Annual Report to Congress on Combatting Terrorism.” 5 Office of Management and Budget, FY2014 Analytical Perspectives: Budget of the United States Government, p.415. Congressional Research Service 3 Issues in Homeland Security Policy for the 113th Congress discussion, which consider immigration and border control or disaster response as a part of homeland security. DHS Appropriations In 2010, neither the House nor the Senate completed work on its version of a FY2011 appropriations bill for the Department of Homeland Security. For the first time, the department, like the rest of the federal government that year, was funded through a long-term continuing resolution. This resolution established 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.6 This stood in contrast to previous years, when at least one body passed an appropriations bill funding the department, and legislation providing specific appropriations was either passed on a standalone basis or as part of legislation including multiple bills. Just as importantly, in those years, either a conference report or explanatory statement of the managers provided further direction to the department on allocation of appropriated funds, oversight requirements, and other expressions of congressional intent. For both FY2012 and FY2013, DHS was funded through consolidated appropriations legislation, which carried traditional levels of specific congressional direction for the department. The actual level of budgetary resources available for the FY2013 budget year, however, was impacted by the across-the-board cuts—known as sequestration—mandated by the Budget Control and Deficit Reduction Act of 2011 (BCA). A combination of factors has therefore made the final funding levels for FY2013 difficult to ascertain, including the facts that: • Some activities were legislatively exempt from sequestration; • Sequestration was implemented before the final appropriations legislation for FY2013 was enacted, so the across-the-board reduction was taken against a baseline determined by OMB, rather than the actual amount appropriated; and • Federal agencies have been encouraged to use the budgetary flexibility afforded them—the ability to transfer funds between accounts and to reprogram funding within accounts—to protect some activities deemed more important at the expense of others. Although an expenditure plan was submitted to Congress on April 26, 2013, which outlined the post-sequester funding levels provided to DHS in the consolidated appropriations act for FY20137 before the exercise of budgetary flexibility, it did not include resources provided through supplemental appropriations for disaster relief.8 No official statement of final FY2013 postsequester funding levels by program, project, and activity after the exercise of transfer and 6 For a fuller discussion of this issue, see CRS Report R41189, Homeland Security Department: FY2011 Appropriations, coordinated by (name redacted) and (name redacted). 7 P.L. 113-6. Analysis of the DHS appropriation in the act can be found in CRS Report R42644, Department of Homeland Security: FY2013 Appropriations. 8 P.L. 113-2. Analysis of the supplemental appropriation for FY2013 can be found in CRS Report R42869, FY2013 Supplemental Funding for Disaster Relief. Congressional Research Service 4 Issues in Homeland Security Policy for the 113th Congress reprogramming authority has been made, and is not expected until the release of the FY2015 budget request. As of this writing, the FY2014 annual appropriation for DHS is unresolved, as are the other 11 annual appropriations bills. For FY2014, the Administration’s total discretionary appropriations request for DHS was $44.7 billion, including funding for disaster relief and overseas contingency operations (which do not count against the budget allocation of the bill). Comparable calculations for House-passed and Senate-reported DHS appropriations legislation show similar total funding levels, $44.6 billion and $44.7 billion, respectively. However, the appearance of general agreement on the rough funding level for the department should not be interpreted as a clear path forward for the legislation. The full Senate has not taken up its version of the bill as of this writing. There are significant differences in the policy direction and proposed funding levels that make up the bill’s overall total, and the resolution of these differences and the precise funding level itself is linked to the resolution of the FY2014 budget and the other FY2014 appropriations bills. Some sort of resolution on the size of the overall FY2014 budget will be necessary in order to complete the appropriations process, either through annual appropriations legislation, continuing resolutions, or a combination. The debate in FY2014 hinges in part on whether to continue with the automatic cuts mandated in the BCA as amended. These reductions in the overall discretionary spending cap total $91.6 billion, or roughly 8.7% of the total discretionary budget. The limit on discretionary defense spending described by current law is $497 million, and $469 million for non-defense discretionary spending.9 Homeland security activities as defined in law are funded with both defense and non-defense budget authority, although most of the DHS budget falls in the non-defense category. The current budget environment will likely present challenges to homeland security programs and the department going forward, as ongoing capital investment efforts and staffing needs will compete with the budget demands of the rest of the government for 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 Terrorism John Rollins, Specialist in Terrorism and National Security ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R41004, Terrorism and Transnational Crime: Foreign Policy Issues for Congress. 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 U.S. efforts to address transnational terrorism are actions taken to detect, deter, and defeat Al Qaeda. While recognizing that numerous other terrorist groups may wish to harm U.S. global security interests, the Administration primarily focuses on addressing threats from Al Qaeda, its affiliated 9 CBO, Final Sequestration Report for Fiscal Year 2013, March 2013, p. 4. Congressional Research Service 5 Issues in Homeland Security Policy for the 113th Congress organizations, and adherents to its violence-based philosophy. Speaking before the United Nations Counterterrorism Committee, 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.”10 Understanding how Al Qaeda continues to evolve into a global entity with a diverse set of actors and capabilities is central to formulating sound strategic policy and overseeing its effective implementation. 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 have significantly degraded Al Qaeda’s ability to successfully launch a catastrophic terrorist attack against U.S. global interests. 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—Somalia, Yemen, Pakistan, maybe Mali—suddenly you’re looking at multiple theaters from where catastrophic strikes can be launched.”11 In August 2013 the Director of the Federal Bureau of Investigation noted concerns associated with Al Qaeda inspired entities also migrating to the countries of Tunisia, Libya, Algeria, Egypt, and Syria.12 The balance between ensuring effective counterterrorism policies and being mindful of the current budget environment is not lost on senior Administration officials. In recent years John Brennan, in his former capacity as the Assistant to the President for Homeland Security, now the Director of the Central Intelligence Agency, has spoken of Osama bin Laden’s often stated objective of pursuing global acts of terrorism against the nation’s interests with the desire to “bleed [the U.S.] financially by drawing us into long, costly wars that also inflame anti-American sentiment.”13 The terrorist threat to U.S. global interests will likely remain an important issue for the Administration and remainder of the 113th Congress. Over the past few years numerous individuals were arrested in the homeland and abroad for conducting attacks and planning 10 Remarks by Daniel Benjamin, Coordinator, State Department, Office of the Coordinator for Counterterrorism, Before the United Nations Counterterrorism Committees, July 20, 2011. 11 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/. 12 Pierre Thomas, Jack Cloherty, and Mike Levine, “Outgoing FBI Director Warns of Americans Traveling to Syria and Bringing Terrorist Tactics Home,” ABC News, Aug. 22, 2013, Outgoing FBI Director Warns of Americans Traveling to Syria and Bringing Terrorist Tactics Home. 13 Remarks by the John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, before the Paul H. Nitze School of Advanced International Studies, June 29, 2011. Congressional Research Service 6 Issues in Homeland Security Policy for the 113th Congress terrorism-related activities 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. Thus far the 113th 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 113th Congress have 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 113th Congress may continue 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 Terrorism14 (name redacted), Specialist in Organized Crime and Terrorism ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R41416, American Jihadist Terrorism: Combating a Complex Threat. CRS estimates that, since May 2009, arrests have been made in 50 homegrown jihadist15 terrorist plots by American citizens or legal permanent residents of the United States as part of a muchdiscussed apparent uptick in terrorist activity in the United States.16 Three of these plots resulted in attacks—the bombing of the 2013 Boston Marathon allegedly committed by Tamerlan and Dzhokhar Tsarnaev; U.S. Army Major Nidal Hasan’s 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 17 deaths.17 By comparison, in more than seven years from the September 11, 2001, terrorist strikes (9/11) through May 2009, there were 21 such plots.18 Two resulted in attacks, and never more than six occurred in a single year (2006).19 The apparent spike in such 14 CRS does not presume the guilt of indicted individuals in pending federal cases. For this report, “homegrown” describes terrorist activity or plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or visitors radicalized largely within the United States. “Jihadist” describes radicalized Muslims using Islam as an ideological and/or religious justification for belief in the establishment of a global caliphate—a jurisdiction governed by a Muslim civil and religious leader known as a caliph—via violent means. Jihadists largely adhere to a variant of Salafi Islam—the fundamentalist belief that society should be governed by Islamic law based on the Quran and adhere to the model of the immediate followers and companions of the Prophet Muhammad. 16 In a January 13, 2013, report, CRS listed 63 plots and attacks by homegrown jihadists that occurred between September 11, 2001, and December 2012. The number has risen since then, as additional plots occurred after December 2012. See CRS Report R41416, American Jihadist Terrorism: Combating a Complex Threat, by (name redacted). Hereinafter: Bjelopera, American Jihadist. 17 In addition, the Tsarnaevs also allegedly killed a police officer after the Boston Marathon bombing. 18 For more information on these attacks see Appendix A in Bjelopera, American Jihadist. 19 The two attacks between 9/11 and May 2009 involved Hasan Akbar and Mohammed Reza Taheri-Azar. On March (continued...) 15 Congressional Research Service 7 Issues in Homeland Security Policy for the 113th Congress 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 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 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 acknowledged the significance of the homegrown jihadist threat in two of its recent strategy documents. In June 2011 it announced its National Strategy for Counterterrorism.20 The strategy focuses on Al Qaeda, its affiliates (groups aligned with it), and its adherents (individuals linked to or inspired by the terrorist group).21 John Brennan, at the time 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.”22 (...continued) 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. 20 White House, National Strategy for Counterterrorism, June 2011, http://www.whitehouse.gov/sites/default/files/ counterterrorism_strategy.pdf. Hereinafter: National Strategy. 21 Ibid, p. 3. 22 Mathieu Rabechault, “U.S. Refocuses on Home-Grown Terror Threat,” AFP, June 29, 2011; Karen DeYoung, “Brennan: Counterterrorism Strategy Focused on al-Qaeda’s Threat to Homeland,” Washington Post, June 29, 2011. Congressional Research Service 8 Issues in Homeland Security Policy for the 113th Congress In 2011, the Obama Administration also released a strategy for combating violent extremism.23 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 philosophical statements about the importance of protecting civil rights, federal cooperation with local leaders in the private and public sectors, and the insistence that the strategy does not center solely on fighting one particular radical ideology.24 Radicalization Radicalization has been described as the exposure of individuals to ideological messages and the movement of those individuals from mainstream beliefs to extremist viewpoints.25 Others define it more simply, as changes in belief and behavior to justify intergroup violence and personal or group sacrifice to forward specific closely held ideas.26 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.”27 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.”28 While the concept of “radicalization” and its possible end result of “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., 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 led 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 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.29 However, the new guidelines have generated some controversy. 23 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. 24 For more information on the strategy, see CRS Report R42553, Countering Violent Extremism in the United States, by (name redacted). Eileen Sullivan, “New White House Strategy to Hit Violent Extremism,” Associated Press, August 3, 2011. 25 Royal Canadian Mounted Police, National Security Criminal Investigations, Radicalization: A Guide for the Perplexed, Canada, June 2009, p. 1. 26 Clark McCauley and Sophia Moskalenko, “Mechanisms of Political Radicalization: Pathways Toward Terrorism,” Terrorism and Political Violence, vol. 20, no. 3 (July 2008), p. 416. 27 Home Office, Prevent Strategy, June 2011, p. 108, http://www.homeoffice.gov.uk/publications/counter-terrorism/ prevent/prevent-strategy/prevent-strategy-review?view=Binary. 28 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. 29 According to the FBI, “Although difficult to define, ‘no particular factual predication’ is less than ‘information or allegation’ as required for the initiation of a preliminary investigation (PI). For example, an assessment may be (continued...) Congressional Research Service 9 Issues in Homeland Security Policy for the 113th Congress Civil libertarians have questioned their impacts on privacy.30 Also, the bombing of the 2013 Boston Marathon has prompted some to ask whether the FBI appropriately shared information with state and local officials regarding an assessment of Tamerlan Tsarnaev its agents conducted in 2011.31 To counter violent jihadist plots, U.S. and foreign law enforcement 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 incarcerate him. 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. Cybersecurity John Rollins, Specialist in Terrorism and National Security ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R40836, Cybersecurity: Current Legislation, Executive Branch Initiatives, and Options for Congress. Cyber threats to the United States are a current and growing concern to policy makers. Technology is ubiquitous and relied upon in almost every facet of modern life, such as supporting government services, corporate business processes, and individual professional and personal pursuits. Many of these technologies are interdependent and the disruption to one piece of equipment may have a negative cascading effect on other devices. A denial of service, theft or manipulation of data, or damage to critical infrastructure through a cyber-based attack could have significant impacts on national security, the economy, and the livelihood of individual citizens. These concerns raise many questions for Congress, among them, • Who are the aggressors in cyberspace and what are their intentions and capabilities? • What are the impacts and implications of cyberattacks? • What legislative and policy actions have the Congress and executive branch taken to respond to threats from cyberspace? What further steps should be taken? (...continued) conducted when: (i) there is reason to collect information or facts to determine whether there is a criminal or national security threat; and (ii) there is a rational and articulable relationship between the stated authorized purpose of the assessment on the one hand and the information sought and the proposed means to obtain that information on the other. An FBI employee must be able to explain the authorized purpose and the clearly defined objective(s), and reason the particular investigative methods were used to conduct the Assessment.” See Federal Bureau of Investigation, Domestic Investigations and Operations Guide, redacted, 2011 update, pp. 5-1 through 5-2.For more information see CRS Report R41780, The Federal Bureau of Investigation and Terrorism Investigations, by (name redacted). 30 Charlie Savage, “F.B.I. Agents Get Leeway to Push Privacy Bounds,” New York Times, June 12, 2011. 31 Scott Shane and Michael S. Schmidt, “Boston Police Weren’t Told F.B.I. Got Warning on Brother,” New York Times, May 9, 2013. FBI press release, “Statement by Special Agent in Charge Richard DesLauriers Regarding Information Sharing,” May 9, 2013. Congressional Research Service 10 Issues in Homeland Security Policy for the 113th Congress Cyber Threats Cyber-based technologies32 are now ubiquitous around the globe. The vast majority of their users pursue lawful professional and personal objectives. However, criminals, terrorists, and spies also rely heavily on cyber-based technologies to support organizational objectives. These malefactors may access cyber-based technologies in order to deny service, steal or manipulate data, or use a device to launch an attack. Entities using cyber-based technologies for illegal purposes take many forms and pursue a variety of actions counter to U.S. global security and economic interests. The threats posed by these cyber-aggressors and the examples of types of attacks they can pursue are not mutually exclusive. For example, a hacker targeting the intellectual property of a corporation may be categorized as both a cyberthief and a cyberspy. A cyberterrorist and cyberwarrior may be employing different technological capabilities in support of a nation’s security and political objectives. Commonly recognized cyber-aggressors and representative examples of the harm they can inflict include the following: Cyberterrorists are state-sponsored and non-state actors who engage in cyberattacks as a form of terrorism. Transnational terrorist organizations, insurgents, and jihadists have used the Internet as a tool for planning attacks, radicalization and recruitment, a method of propaganda distribution, and a means of communication.33 While no unclassified reports have been published regarding a cyberattack on a critical component of the nation’s infrastructure, the vulnerability of critical lifesustaining control systems being accessed and destroyed via the Internet has been demonstrated. In 2009, the Department of Homeland Security (DHS) conducted an experiment that revealed some of the vulnerabilities to the nation’s control systems that manage power generators and grids. The experiment, known as the Aurora Project, entailed a computer-based attack on a power generator’s control system that caused operations to cease and the equipment to be destroyed.34 Cyberspies are individuals who steal classified or proprietary information used by governments or private corporations to gain a competitive strategic, security, financial, or political advantage. These individuals often work at the behest of, and take direction from, foreign government entities. For example, a 2011 FBI report noted, “a company was the victim of an intrusion and had lost 10 years’ worth of research and development data—valued at $1 billion—virtually overnight.”35 Likewise, in 2008 the Department of Defense’s (DOD’s) classified computer network system was unlawfully accessed and “the computer code, placed there by a foreign intelligence agency, uploaded itself undetected onto both classified and unclassified systems from which data could be transferred to servers under foreign control.”36 Reportedly, the intelligence community will soon complete a classified National Intelligence Estimate focused on 32 Defined as an electronic device that accesses or relies on the transfer of bytes of data to perform a mechanical function. The device can access cyberspace (Internet) through the use of physical connections or wireless signals. 33 For additional information, see CRS Report RL33123, Terrorist Capabilities for Cyberattack: Overview and Policy Issues, by (name redacted) and (name redacted). 34 See “Challenges Remain in DHS’ Efforts to Security Control Systems,” Department of Homeland Security, Office of Inspector General, August 2009. For a discussion of how computer code may have caused the halting of operations at an Iranian nuclear facility see CRS Report R41524, The Stuxnet Computer Worm: Harbinger of an Emerging Warfare Capability, by (name redacted), (name redacted), and (name redacted). 35 Executive Assistant Director Shawn Henry, Responding to the Cyber Threat, Federal Bureau of Investigation, Baltimore, MD, 2011. 36 Department of Defense Deputy Secretary of Defense William J. Lynn III, “Defending a New Domain,” Foreign Affairs, October 2010. Congressional Research Service 11 Issues in Homeland Security Policy for the 113th Congress cyberspying against U.S. targets from abroad. Many cybersecurity experts expect this report to address activities relating to the “Chinese government’s broad policy of encouraging theft of intellectual property through cyberattacks.”37 Then-DOD Secretary Leon Panetta reportedly stated, “it’s no secret that Russia and China have advanced cyber capabilities.”38 Cyberthieves are individuals who engage in illegal cyber-attacks for monetary gain.39 Examples include an organization or individual who illegally accesses a technology system to steal and use or sell credit card numbers and someone who deceives a victim into providing access to a financial account. One estimate has placed the annual cost of cybercrime to individuals in 24 countries at $388 billion.40 However, given the complex and sometimes ambiguous nature of the costs associated with cybercrime, and the reluctance in many cases of victims to admit to being attacked, there does not appear to be any publicly available, comprehensive, reliable assessment of the overall costs of cyberattacks. Cyberwarriors are agents or quasi-agents of nation-states who develop capabilities and undertake cyberattacks in support of a country’s strategic objectives.41 These entities may or may not be acting on behalf of the government with respect to target selection, timing of the attack, and type(s) of cyberattack and are often blamed by the host country when accusations are levied by the nation that has been attacked. Often, when a foreign government is provided evidence that a cyberattack is emanating from its country, the nation that has been attacked is informed that the perpetrators acted of their own volition and not at the behest of the government. In August 2012 a series of cyberattacks were directed against Saudi Aramco, the world’s largest oil and gas producer and most valuable company, according to the New York Times. The attacks compromised 30,000 of the company’s computers and the code was apparently designed to disrupt or halt the production of oil. Some security officials have suggested that Iran may have supported this attack. However, numerous cyberwarrior groups, some with linkages to nations with objectives counter to those of Saudi Arabia, have claimed credit for this incident.42 Cyberactivists are individuals who perform cyberattacks for pleasure, philosophical, or other nonmonetary reasons. Examples include someone who attacks a technology system as a personal challenge (who might be termed a “classic” hacker), and a “hacktivist” such as a member of a group who undertakes an attack for political reasons. The activities of these groups can range from simple nuisance-related denial of service attacks to disrupting government and private corporation business processes. 37 Ken Dilanian, “U.S. Spy Agencies to Detail Cyberattacks from Abroad,” Los Angeles Times, December 6, 2012. Ibid. 39 For discussions of federal law and issues relating to cybercrime, see CRS Report 97-1025, Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, by (name redacted), and CRS Report R41927, The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues Confronting U.S. Law Enforcement, by (name redacted). 40 Symantec, “Symantec Internet Security Threat Report: Trends for 2010,” Vol. 16, April 2011. Plain text summary with calculations available at http://www.symantec.com/about/news/release/article.jsp?prid=20110907_02. 41 For additional information, see CRS Report RL31787, Information Operations, Cyberwarfare, and Cybersecurity: Capabilities and Related Policy Issues, by (name redacted). 42 Perlroth, Nicole, “Cyberattack On Saudi Firm Disquiets U.S.,” New York Times, October 24, 2012, p. A1. Available at http://www.nytimes.com/2012/10/24/business/global/cyberattack-on-saudi-oil-firm-disquiets-us.html?pagewanted= all. 38 Congressional Research Service 12 Issues in Homeland Security Policy for the 113th Congress Ascertaining information about the aggressor and their capabilities and intentions is very difficult.43 The threats posed by these aggressors coupled with the United States’ proclivity to be an early adopter of emerging technologies,44 which are often interdependent and contain vulnerabilities, make for a complex environment when considering operational responses, policies, and legislation designed to safeguard the nation’s strategic economic and security interests. Legislative Branch Efforts to Address Cyber Threats45 More than 50 federal statutes address various aspects of cybersecurity either directly or indirectly, but there is no overarching framework legislation in place. While revisions to most of those laws have been proposed over the past few years, no major cybersecurity legislation has been enacted since 2002. Recent legislative proposals, including many bills introduced in the 111th and 112th Congresses, have focused largely on issues in 10 broad areas: national strategy and the role of government, reform of the Federal Information Security Management Act (FISMA), protection of critical infrastructure (including the electricity grid and the chemical industry), information sharing and cross-sector coordination, breaches resulting in theft or exposure of personal data such as financial information, cybercrime, privacy in the context of electronic commerce, international efforts, research and development, and the cybersecurity workforce. For most of those topics, at least some of the bills addressing them have proposed changes to current laws. Several of the bills specifically focused on cybersecurity received committee or floor action, but none became law prior to the 113th Congress. Many observers believe that enactment of cybersecurity legislation will be attempted again in the 113th Congress. Executive Branch Actions to Address Cyber Threats46 In 2008, the George W. Bush Administration established the Comprehensive National Cybersecurity Initiative (CNCI) through National Security Presidential Directive 54/Homeland Security Presidential Directive 23 (NSPD-54/HSPD-23). Those documents are classified, but the Obama Administration released a description of them in March 2010.47 Goals of the 12 initiatives in that description include consolidating external access points to federal systems; deploying 43 The concept of attribution in the cyber world entails an attempt to identify with some degree of specificity and confidence the geographic location, identity, capabilities, and intention of the cyber-aggressor. Mobile technologies and sophisticated data routing processes and techniques often make attribution difficult for U.S. intelligence and law enforcement communities. 44 Emerging cyber-based technologies that may be vulnerable to the actions of a cyber-aggressor include items that are in use but not yet widely adopted or are currently being developed. For additional information on how the convergence of inexpensive, highly sophisticated, and easily accessible technology is providing opportunities for cyber-aggressors to exploit vulnerabilities found in a technologically laden society see Global Trends 2030: Alternative Worlds, National Intelligence Council, Office of the Director of National Intelligence, December 10, 2012. 45 Information derived from a multi-authored CRS Report R42114, Federal Laws Relating to Cybersecurity: Overview and Discussion of Proposed Revisions, by (name redacted), November 9, 2012. 46 Information contained in this section was derived from a multi-authored reports and memos produced by numerous CRS analysts working on cybersecurity. 47 The White House, “The Comprehensive National Cybersecurity Initiative,” March 5, 2010. For additional information about this Initiative and associated policy considerations, see CRS Report R40427, Comprehensive National Cybersecurity Initiative: Legal Authorities and Policy Considerations, by (name redacted) and (name re dacted). Congressional Research Service 13 Issues in Homeland Security Policy for the 113th Congress intrusion detection and prevention systems across those systems; improving research coordination and prioritization and developing “next-generation” technology, information sharing, and cybersecurity education and awareness; mitigating risks from the global supply chain for information technology; and clarifying the federal role in protecting critical infrastructure. In December 2009, the Obama Administration created the position of White House Cybersecurity Coordinator. The responsibilities for this position include government-wide coordination of cybersecurity-related issues, including overseeing the implementation of the CNCI. The Coordinator works with both the National Security and Economic Councils in the White House. However, the Coordinator does not have direct control over agency budgets, and some observers argue that operational entities such as the DOD’s National Security Agency (NSA) have far greater influence over federal cybersecurity issues.48 Reportedly, in October 2012 President Obama signed a classified Presidential Decision Directive that “enables the military to act more aggressively to thwart cyberattacks on the Nation’s web of government and private computer networks.”49 The complex federal role in cybersecurity involves both securing federal systems, assisting in protecting nonfederal systems, and pursuing military, intelligence, and law enforcement community detection, surveillance, defensive, and offensive initiatives. Under current law, all federal agencies have cybersecurity responsibilities relating to their own systems and dozens of agencies have government-wide aggressor, issue, and critical infrastructure sector-specific responsibilities and legislative authorities. The cybersecurity roles and responsibilities of these agencies are often complementary but at times are overlapping or competing. In the absence of enactment of cybersecurity legislation, the White House issued an executive order on February 12, 2013, “directing federal departments and agencies to use their existing authorities to provide better cybersecurity for the Nation.”50 Medical Countermeasures to Chemical, Biological, Radiological, and Nuclear Terrorism (name redacted), Specialist, Science and Technology Policy ([redacted]@crs.loc.gov, 7-....) The anthrax attacks of 2001 highlighted the nation’s vulnerability to biological terrorism. The federal government responded to these attacks by increasing efforts to protect civilians against chemical, biological, radiological, and nuclear (CBRN) terrorism. Successful deployment of effective medical countermeasures, such as drugs or vaccines, could reduce the effects of a CBRN attack. The federal government has created several programs over the last decade to develop, procure, and distribute CBRN medical countermeasures. Despite these efforts, the pharmaceutical industry has developed few new countermeasures, and many experts question the government’s ability to quickly distribute countermeasures following an attack. The 113th 48 See, for example, Seymour M. Hersh, “Judging the Cyber War Terrorist Threat,” The New Yorker, November 1, 2010. 49 Nakashima, Ellen, “Obama Signs Secret Directive to Help Thwart Cyberattacks,” The Washington Post, Nov. 14, 2012. 50 Daniel, Michael, “Improving the Security of the Nation’s Critical Infrastructure,” The White House Blog, February 13, 2013. http://www.whitehouse.gov/blog/2013/02/13/improving-security-nation-s-critical-infrastructure. Congressional Research Service 14 Issues in Homeland Security Policy for the 113th Congress Congress will likely consider the effectiveness of the federal efforts and whether these programs should be continued, modified, or ended. 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.51 Congress advance appropriated $5.6 billion for Project BioShield acquisitions for FY2004FY2013. Through August 2013, the federal government had obligated $2.8 billion of this advance appropriation to acquire CBRN countermeasures. Additionally, Congress removed $2.3 billion from this account through rescission or transfers to other programs. The 113th Congress passed the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (PAHPRA, P.L. 113-5) that authorized $2.8 billion in advance funding for Project BioShield through FY2018. The 113th Congress may still consider whether modifying the funding amount or providing appropriations on an annual basis would improve the program’s efficiency or performance. In light of the current fiscal environment, Congress is likely to increase its scrutiny of the planning, coordination, and accountability of federal efforts to research, develop, and procure CBRN medical countermeasures. To this end, PAHPRA requires additional planning and transparency by requiring detailed annual countermeasure strategy and implementation plans and a coordinated multi-year budget. Congress may also consider nontraditional programs that may improve the efficiency of existing efforts, such as the President’s request to create a nonprofit, nongovernmental strategic investment corporation to provide capital and business advice to small companies developing medical countermeasure-related technologies.52 Distribution of existing medical countermeasures during a CBRN emergency remains a challenge for the federal government and its partners. The federal government maintains programs that stockpile and distribute stores of medical countermeasures, including the Centers for Disease Control and Prevention’s Strategic National Stockpile (SNS). Many experts question the sufficiency of these federal programs, and whether state governments have sufficient plans, organization, and resources to receive and effectively disseminate federal stockpiles.53 Congress is likely to continue evaluating the effectiveness of federal programs and may also consider whether to augment these efforts with other stockpiling and distribution methods. Such methods include stockpiling countermeasures at homes or businesses and using the U.S. Postal Service to distribute countermeasures. These proposals may raise some concerns regarding program costs, unintended use of countermeasures, and local implementation. BioWatch: Detection of Aerosol Release of Biological Agents (name redacted), Specialist in Public Health and Epidemiology ([redacted]@crs.loc.gov, 7-....) 51 CRS Report R42349, The Project BioShield Act: Issues for the 112th Congress, by (name redacted). 52 U.S. Department of Health and Human Services, Public Health and Social Services Emergency Fund Justification of Estimates for Appropriations Committees FY2013, p. 18. 53 See, for examples, Senator Bob Graham, Senator James Talent, and Randall Larsen, et al., Bio-Response Report Card, The Bipartisan WMD Terrorism Research Center, Washington, DC, October 2011, pp. 45-49, http://www.wmdcenter.org/wp-content/uploads/2011/10/bio-response-report-card-2011.pdf; and Christopher Nelson, Andrew M. Parker, and Shoshana R. Shelton, et al., Analysis of the Cities Readiness Initiative (Santa Monica, CA: RAND Corporation, 2012), pp. 31-34. Congressional Research Service 15 Issues in Homeland Security Policy for the 113th Congress The BioWatch program—launched in 2003—deploys sensors in more than 30 large U.S. cities to detect the possible aerosol release of a bioterrorism pathogen, in order that medications can be distributed to the population before exposed individuals become ill. Air filters in the sensors are collected daily and tested for biological agents. The DHS Office of Health Affairs (OHA) is responsible for system management, including operational costs and procurements. The Under Secretary for Science and Technology advises the Secretary regarding research and development efforts and priorities in general, in support of the department’s missions. The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) is responsible for some aspects of BioWatch laboratory testing. Local jurisdictions are responsible for the public health response to a bioterrorism incident. BioWatch has not detected such an incident since its inception, although it has detected pathogens of interest; scientists believe that natural airborne “background” levels of these pathogens may exist in certain regions. In July 2012, the Los Angeles Times published the first in a series of investigative articles criticizing the performance of the current BioWatch system.54 The articles claimed that the system is prone to “false alarms” and is also insufficiently sensitive to detect an actual incident. The DHS Assistant Secretary for Health Affairs published a response disputing these claims.55 In addition, some state and local health officials defended the program, saying, among other things, that it has fostered collaboration among federal, state, and local officials, who would be called upon to work together in response to an actual incident.56 Because prompt treatment may minimize casualties in a bioterrorism event, federal officials have sought to reduce the inherent delay in daily BioWatch filter collection by developing so-called autonomous sensors. These sensors would analyze filter deposits and transmit results in near-real time. OHA has been pursuing procurement of this type of sensor, which it terms Generation 3, or Gen-3, since 2007. However, according to the Government Accountability Office (GAO), “BioWatch Gen-3 has a history of technical and management challenges.”57 In particular, “Gen3’s estimated life cycle cost, some $5.8 billion, makes it one of the largest DHS acquisitions. And the question is, whether it justifies that level of investment.”58 GAO recommended that before continuing the acquisition, “DHS reevaluate the mission need and alternatives and develop performance, schedule, and cost information in accordance with guidance and good acquisition 54 David Willman, “The Biodefender That Cries Wolf,” Los Angeles Times, July 8, 2012. Dr. Alexander Garza, Assistant Secretary for Health Affairs, DHS, “The Truth About BioWatch: The Importance of Early Detection of a Potential Biological Attack,” July 12, 2012. Statistics cited in this blog posting were later reported to be inaccurate by a DHS official. See comments of BioWatch Program Manager Dr. Mike Walter before the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Continuing Concerns Over BioWatch and the Surveillance of Bioterrorism, 113th Cong., 1st sess., June 18, 2013, CQ transcription. 56 See for example Robert Roos, “Public Health Officials Respond to Critique of BioWatch,” CIDRAP News, August 17, 2012, http://www.cidrap.umn.edu/cidrap/content/bt/bioprep/news/aug1712biowatch.html. 57 GAO, Biosurveillance: DHS Should Reevaluate Mission Need and Alternatives before Proceeding with BioWatch Generation-3 Acquisition, GAO-12-810, September 10, 2012, p. 3, http://www.gao.gov/products/GAO-12-810. 58 Testimony of William Jenkins, Director, Homeland Security and Justice Issues, GAO, before the House Homeland Security Committee, Subcommittee on Emergency Preparedness, Response and Communications, and Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies, BioWatch Present and Future: Meeting Mission Needs for Effective Biosurveillance?, joint hearing, 112th Cong., 2nd sess., September 13, 2012, CQ transcription. According to GAO, the estimated Gen-3 life cycle costs are based on DHS’s June 2011 Life-Cycle Cost Estimate, which estimates costs through FY2028. 55 Congressional Research Service 16 Issues in Homeland Security Policy for the 113th Congress practices.”59 In June 2013, DHS announced that it had paused Gen-3 deployment to conduct an analysis of alternatives in response to GAO’s recommendation.60 The performance of the BioWatch program has attracted the attention of Members of Congress since the program’s inception. Congressional appropriators have at times sought to limit funding for program expansion and/or called for program reviews.61 Authorizing committees in each Congress since the 108th have held hearings on the program. In the 112th Congress, the House Committee on Energy and Commerce began an investigation of the program, which it has continued in the 113th Congress.62 In August 2013, committee leadership asked GAO for a new study of the technical capabilities of the Gen-3 system intended for deployment.63 Continuity of Government Operations (name redacted), Specialist in American National Government, Government and Finance Division ([redacted]@crs.loc.gov, 7-....) 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 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.64 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 operations65 and 59 GAO, Biosurveillance: DHS Should Reevaluate Mission Need and Alternatives before Proceeding with BioWatch Generation-3 Acquisition, GAO-12-810, September 10, 2012, highlights page. 60 Testimony of BioWatch Program Manager Dr. Mike Walter before the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Continuing Concerns over BioWatch and the Surveillance of Bioterrorism, 113th Cong., 1st sess., June 18, 2013. 61 See BioWatch discussions in CRS Reports on annual DHS appropriations, http://www.crs.gov/pages/subissue.aspx? cliid=2345. 62 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, “Oversight and Investigations Subcommittee Continues Investigation of BioWatch and Surveillance of Bioterrorism,” press release, June 18, 2013, with links to committee report and other documents, http://energycommerce.house.gov/press-releases. 63 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, “Bipartisan Committee Leadership Requests GAO Study of BioWatch,” press release, Aug. 20, 2013, http://energycommerce.house.gov/pressreleases. 64 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). 65 NSPD 51 identifies continuity of operations (COOP) as “an effort within individual executive departments and (continued...) Congressional Research Service 17 Issues in Homeland Security Policy for the 113th Congress continuity of government66 programs in order to ensure the preservation of our form of government67 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 1988,68 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. Federal Facility Security: Federal Protective Service (name redacted), Analyst in Emergency Management and Homeland Security Policy ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R41138, Federal Building, Courthouse, and Facility Security. The federal government’s real property69 is comprised over 900,000 assets.70 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 these properties are 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. (...continued) 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.” 66 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.” 67 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. 68 53 FR 47491; November 23, 1988. 69 Real property is defined as property that is leased or owned by the General Services Administration. 70 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. Congressional Research Service 18 Issues in Homeland Security Policy for the 113th Congress The Federal Protective Service (FPS) is designated as the lead “Government Facilities Sector Agency” for the National Infrastructure Protection Plan, and as such is responsible for the protection and security of federally owned and leased buildings, property, and personnel. 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. FPS employs approximately 1,225 law enforcement officers, investigators, and administrative personnel; and it administers the services of approximately 15,000 contract security guards.71 Federal agencies protected by FPS pay fees that are established by the Office of Management and Budget. FPS’s funding is derived from those fees. Federal facility security practices have been subject to criticism by government auditors and security experts, and have been the topic of congressional oversight hearings. 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 customer service.72 Congress will likely continue oversight of FPS management and operations in the 113th Congress to ensure that it has the necessary staffing, resources, and funding to carry out its mission. Food Defense (name redacted), Specialist in Public Health and Epidemiology ([redacted]@crs.loc.gov, 7-....) Foods may be intentionally contaminated for purposes of terrorism, fraud (e.g., the dilution of a valuable commodity), or other harmful intent. Food safety efforts have long focused on protecting against unintentional contaminants, such as infectious pathogens or pesticide residues. Since the 2001 terrorist attacks, regulators and others have added a focus on food defense, the protection of the food supply from deliberate or intentional acts of contamination or tampering.73 Large-scale foodborne outbreaks can sicken hundreds of people. Sales of affected commodities—as well as unaffected commodities that the consuming public perceives to be involved—can suffer. 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 caused. 71 U.S. Department of Homeland Security, National Protection and Programs Directorate, Federal Protective Service: Fiscal Year 2012 Congressional Justification, Washington, DC, February 2011, p. FPS-1. 72 U.S. Department of Homeland Security, National Protection and Programs Directorate, Federal Protective Service: Strategic Plan, Secure Facilities, Safe Occupants, Washington, DC, 2011, pp. 3-5. 73 Food and Drug Administration (FDA), “Food Defense,” http://www.fda.gov/Food/FoodDefense. Congressional Research Service 19 Issues in Homeland Security Policy for the 113th Congress Federal food safety responsibility rests primarily with the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA). 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.74 State and local authorities assist with inspection, outbreak response, and other food safety functions, and regulate retail establishments. Noting the complexity of the nation’s food and agriculture sector, which accounts for about one-fifth of the nation’s economy, DHS says that “FDA is responsible for the safety of 80 percent 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.”75 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.76 FSMA attempts to prevent both intentional and unintentional contamination of foods through a variety of strategies to prevent food contamination and through enhanced regulatory authorities. However, FDA has not yet implemented some of the law’s provisions.77 In addition, FSMA requires the Secretaries of Health and Human Services and Agriculture to develop a National Agriculture and Food Defense Strategy, implementation plan, and research agenda. This strategy and the accompanying documents have not yet been published.78 GAO has named food safety as a high-risk issue, citing the fragmentation of federal oversight, among other concerns.79 GAO specifically noted delays in the implementation of the nation’s food and agriculture defense policy, Homeland Security Presidential Directive 9 (HSPD-9). This directive, issued by the George W. Bush Administration in 2004, assigns various emergency response and recovery responsibilities to USDA, FDA, DHS, and other agencies. GAO found that there is no centralized coordination of HSPD-9 implementation efforts, and recommended that DHS take on this role to assure that the nation’s food and agriculture defense policy is fully in place. In addition, GAO recommended that the executive branch develop a government-wide performance plan for all of its food safety activities. Security of Pipelines Paul Parfomak, Specialist in Energy and Infrastructure Policy, Resources, Science and Industry Division ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R41536, Keeping America’s Pipelines Safe and Secure: Key Issues for Congress. 74 CRS Report RS22600, The Federal Food Safety System: A Primer, by (name redacted). DHS, National Infrastructure Protection Plan: Agriculture and Food Sector Snapshot, http://www.dhs.gov/foodand-agriculture-sector. 76 CRS Report R40443, The FDA Food Safety Modernization Act (P.L. 111-353), coordinated by (name redacted). 77 FDA FSMA implementation information, http://www.fda.gov/Food/GuidanceRegulation/FSMA/default.htm. 78 FDA, FSMA Reports and Studies, http://www.fda.gov/Food/GuidanceRegulation/FSMA/ucm271961.htm. 79 GAO, “Revamping Federal Oversight of Food Safety,” http://www.gao.gov/highrisk/revamping_food_safety/. 75 Congressional Research Service 20 Issues in Homeland Security Policy for the 113th Congress Nearly a half-million miles of high-volume pipeline transport natural gas, oil, and other hazardous liquids across the United States.80 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, militants, and organized crime. 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.81 Although Al Qaeda attacks on U.S. pipelines are perceived as unlikely, attacks by individuals unaffiliated with organized or terrorist groups may be a growing concern. For example, in August 2011, federal agents arrested a U.S. citizen—acting alone—who confessed to planting an explosive device under a natural gas pipeline in Oklahoma.82 In June 2012, a man was critically injured attempting to plant an explosive device along a natural gas pipeline in Plano, TX.83 One specific area of pipeline security that has recently come to the fore is cybersecurity. In March 2012, the Industrial Control Systems Cyber Emergency Response Team within DHS identified an ongoing series of cyber intrusions among U.S. natural gas pipeline operators dating back to December 2011 “positively identified … as related to a single campaign.”84 Federal pipeline security activities are led by the Pipeline Security Division within the Transportation Security Administration (TSA). Although the TSA has statutory authority to regulate pipeline security, to date, these activities have relied upon voluntary industry compliance with federal security guidance and TSA security best practices. 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.85 In 2008, the TSA initiated its Critical Facility Inspection Program (CFI) to conduct in-depth inspections of all the critical facilities of the 125 largest pipeline systems in the United States. TSA concluded the CFI program in May 2011, having completed a total of 347 facility inspections throughout the United States.86 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 80 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. 81 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. 82 Carol Cratty, “Man Accused in Attempted Bombing of Oklahoma Gas Pipeline,” CNN, August 12, 2011. 83 “Grand Jury Indicts Plano Gas Pipeline Bomb Suspect on Weapons Charge,” Associated Press, July 11, 2012. 84 Industrial Control Systems Cyber Emergency Response Team (ICS-CERT), “Gas Pipeline Cyber Intrusion Campaign,” ICS-CERT Monthly Monitor, April 2012, p.1, http://www.us-cert.gov/control_systems/pdf/ICSCERT_Monthly_Monitor_Apr2012.pdf. 85 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. 86 Transportation Security Administration, personal communication with section author, February 24, 2012. Congressional Research Service 21 Issues in Homeland Security Policy for the 113th Congress overall level of resources, and certain aspects of its CSR program. Because the TSA believes the most critical U.S. pipeline systems generally meet or exceed industry security guidance, the agency believes it achieves better security with voluntary guidelines, and maintains a more cooperative and collaborative relationship with its industry partners as well.87 But some Members of Congress, as well as the Department of Transportation’s Office of Inspector General, have questioned the adequacy of voluntary, rather than mandatory, federal pipeline security requirements.88 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.89 In a 2010 report, the Government Accountability Office 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.90 To date, there has been no federal legislation directly addressing these concerns, but they may receive additional attention in the 113th 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. Security of Chemical Facilities (name redacted), Specialist in Science and Technology Policy ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R42918, Chemical Facility Security: Issues and Options for the 113th Congress and CRS Report R43070, Regulation of Fertilizers: Ammonium Nitrate and Anhydrous Ammonia. Congress provided DHS authority to regulate security at chemical facilities in the Homeland Security Appropriations Act, 2007 (P.L. 109-295, §550). This authority expires on October 4, 2013. Congressional policy makers are considering a range of actions in the 113th Congress, including an extension or revision of this authority. Even before the explosion of the West Fertilizer Company in West, TX, various stakeholders had criticized the content of DHS regulation and the effectiveness and pace of its implementation and recommended changes to the underlying statute. Recommended statutory changes include broadening the regulated community,91 enabling the federal government to require adoption of particular security measures at facilities,92 and increasing access to currently confidential vulnerability information. Other 87 Jack Fox, General Manager, Pipeline Security Division, Transportation Security Administration (TSA), remarks before the Louisiana Gas Association Pipeline Safety Conference, New Orleans, LA, July 25, 2012. 88 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. 89 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. 90 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. 91 See, for example, Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland Security, before the Senate Committee on Homeland Security and Governmental Affairs, March 3, 2010. 92 See, for example, Testimony by Paul Orum, Blue Green Chemical Security Coalition/ Independent Consultant to Center for American Progress, before the House Committee on Energy and Commerce, Subcommittee on Environment (continued...) Congressional Research Service 22 Issues in Homeland Security Policy for the 113th Congress stakeholders, including many industry representatives, support an extension of the existing authority without any changes.93 DHS regulates chemical facilities for security purposes. The Obama Administration and other stakeholders have determined that existing regulatory exemptions, such as for community water systems and wastewater treatment facilities, pose potential risks. Environmental and “right-toknow” 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, but the discovery that information about the chemical inventory of the West Fertilizer Company was not effectively shared between federal agencies has led to reconsideration of existing information sharing policies. The Obama Administration issued Executive Order 13650, Improving Chemical Facility Safety and Security, to begin a multiagency effort to coordinate federal efforts. Challenges facing policy makers 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. While the DHS regulatory program is still in its early stages, it has experienced significant implementation challenges and delays. Few of the thousands of regulated chemical facilities have fully complied with the DHS chemical security regulations,94 the Government Accountability Office estimates that it will be seven to nine years before DHS has completed review and approval of information submitted by regulated facilities,95 and congressional policy makers have questioned the efficacy of DHS regulatory activities.96 Policy makers performing oversight of the program face critical decisions regarding program changes. Significant changes could increase implementation delays, but such changes may be most effective if made early in the program’s implementation, rather than later after companies have invested in specific security measures. (...continued) and the Economy, September 11, 2012. 93 See, for example, Testimony of Matthew J. Leary, Pilot Chemical Company, on behalf of the Society of Chemical Manufacturers and Affiliates, before the House Committee on Energy and Commerce, Subcommittee on Environment and the Economy, September 11, 2012. 94 Testimony of David Wulf, Director, Infrastructure Security Compliance Division, National Programs and Protection Directorate, Department of Homeland Security, before the House Committee on Homeland Security, Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies, on August 1, 2013. 95 Government Accountability Office, Critical Infrastructure Protection: DHS Efforts to Assess Chemical Security Risk and Gather Feedback on Facility Outreach Can Be Strengthened, GAO-13-353, April 2013. 96 See, for example, Representative Robert Aderholt, Chairman, Subcommittee on Homeland Security, House Committee on Appropriations, Opening Statement as Prepared for Delivery at Hearing on Chemical Security AntiTerrorism Standards Program, July 26, 2012. Congressional Research Service 23 Issues in Homeland Security Policy for the 113th Congress Security of Wastewater and Water Utilities (name redacted), Specialist in Resources and Environmental Policy, ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report RL32189, Terrorism and Security Issues Facing the Water Infrastructure Sector. 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, threatening public health and the environment, or possibly causing loss of life. In recognition, Congress and other policy makers 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 2002,97 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. 107-188,98 Congress required drinking water systems serving more than 3,300 persons to conduct vulnerability analyses and to submit the assessments to EPA. Congressional committees have on several occasions 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 under the Chemical Facility Anti-Terrorism Standards program (CFATS); 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 EPA and DHS should 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 should 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 97 98 P.L. 107-297; 116 Stat. 2322. The Public Health Security and Bioterrorism Preparedness and Response Act, 116 Stat. 594. Congressional Research Service 24 Issues in Homeland Security Policy for the 113th Congress expertise in wastewater and water regulatory and security issues. Others have argued that DHS should have overall responsibility. Legislative proposals addressing these issues that received committee approval in the 112th Congress differed in a number of respects but reflected apparent consensus regarding water utility issues: they would have preserved the existing exemption from the DHS CFATS program, and none would have mandated inherently safer technology. Further, none would have altered EPA’s lead role for the water utility sector. None of these bills was enacted by the 112th Congress. A provision of the Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6), extended authority for the existing CFATS program through October 4, 2013. In addition, legislation that would extend statutory authority for the CFATS program for another year, through October 4, 2014 (H.R. 2217), has passed the House and been reported by the Senate Appropriations Committee.99 Other legislation introduced in the 113th Congress (S. 67, the Secure Water Facilities Act) would add coverage of wastewater and drinking water facilities in the CFATS program and would require certain facilities in the water sector that handle chemicals to take action to reduce the consequences of a terrorist attack, such as using different chemicals, or changing to inherently safer technology (IST). The bill would not alter EPA’s lead role in regulating wastewater facilities and community water systems for security purposes. Since the terrorist attacks of 2001, wastewater and water utilities have been engaged in numerous activities to assess potential vulnerabilities and strengthen facility and system protections. Congressional oversight of this sector’s homeland security activities has been limited but could be of interest in the 113th Congress. Transit Security (name redacted), Analyst in Transportation Policy ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report RL33512, Transportation Security: Issues for the 113th Congress. Bombings of passenger trains in Europe and Asia in the past several years illustrate the vulnerability of passenger rail systems to terrorist attacks. Passenger rail systems—primarily subway systems—in the United States carry about five times as many passengers each day as do airlines, over many thousands of miles of track, serving stations that are designed primarily for easy access. The increased security efforts around air travel have led to concerns that terrorists may turn their attention to “softer” targets, such as transit or passenger rail. A key challenge Congress faces is balancing the desire for increased rail passenger security with the efficient functioning of transit systems, with the potential costs and damages of an attack, and with other federal priorities. 99 The CFATS anti-terrorism standards were mandated in DHS funding legislation enacted in 2006 (P.L. 109-295). They were initially established on an interim basis for three years, but Congress has been extending them on a year-toyear basis. Congressional Research Service 25 Issues in Homeland Security Policy for the 113th Congress The volume of ridership and number of access points make it impractical to subject all rail passengers to the type of screening airline passengers undergo. Consequently, transit security measures tend to emphasize managing the consequences of an attack. Nevertheless, steps have been taken to try to reduce the risks, as well as the consequences, of an attack. These include vulnerability assessments; emergency planning; emergency response training and drilling of transit personnel (ideally in coordination with police, fire, and emergency medical personnel); increasing the number of transit security personnel; installing video surveillance equipment in vehicles and stations; and conducting random inspections of bags, platforms, and trains. The challenges of securing rail passengers are dwarfed by the challenge of securing bus passengers. There are some 76,000 buses carrying 19 million passengers each weekday in the United States. Some transit systems have installed video cameras on their buses, and Congress has provided grants for security improvements to intercity buses. But the number and operation characteristics of transit buses make them all but impossible to secure. The Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53), passed by Congress on July 27, 2007, included provisions on passenger rail and transit security and authorized $3.5 billion for FY2008-FY2011 for grants for public transportation security. The act required public transportation agencies and railroads considered to be high-risk targets by DHS to have security plans approved by DHS (§§1405 and 1512). Other provisions required DHS to conduct a name-based security background check and an immigration status check on all public transportation and railroad frontline employees (§§1414 and 1522), and gave DHS the authority to regulate rail and transit employee security training standards (§§1408 and 1517). In 2010 TSA completed a national threat assessment for transit and passenger rail, and in 2011 completed an updated transportation systems-sector specific plan, which established goals and objectives for a secure transportation system. The three primary objectives for reducing risk in transit are to: • mitigate risks to high-risk/high-consequence assets; • expand operational deterrence activities; and • enhance information sharing.100 TSA surface transportation security inspectors conduct assessments of transit systems (and other surface modes) through the agency’s Baseline Assessment for Security Enhancement (BASE) program. The agency has also developed a security training and security exercise program for transit (I-STEP), and its Visible Intermodal Prevention and Response (VIPR) teams conduct operations with local law enforcement officials, including periodic patrols of transit and passenger rail systems, to create “unpredictable visual deterrents.” The House Committee on Homeland Security’s Subcommittee on Transportation Security held a hearing in May 2012 to examine the surface transportation security inspector program. As discussed at the hearing, the number of inspectors had increased from 175 in FY2008 to 404 in FY2011 (full-time equivalents). Issues considered at the hearing included the lack of surface transportation expertise among the inspectors, many of whom were promoted from screening passengers at airports; the administrative challenge of having the surface inspectors managed by 100 Department of Homeland Security, Transportation Security Administration, Surface Transportation Security FY2013 Congressional [Budget] Justification, p. 14. Congressional Research Service 26 Issues in Homeland Security Policy for the 113th Congress federal security directors who are located at airports, and who themselves typically have no surface transportation experience; and the security value of the tasks performed by surface inspectors.101 The Department of Homeland Security (DHS) provides grants for security improvements for public transit, passenger rail, and occasionally other surface transportation modes under the Urban Area Security Initiative program (see Table 1). The vast majority of the funding goes to public transit providers. The Transit Security Grant Program (TSGP) did not receive a specified amount of funding in FY2012, as Congress left program funding allocations to the discretion of DHS. Table 1. Congressional Funding for Transit Security, FY2002-FY2012 Fiscal year Appropriation (millions of dollars) 2002 $63a 2003 65 2004 50 2005 108 2006 131 2007 251 2008 356 2009 498b 2010 253 2011 200 2012 88c 2013 84 Total $2,063 Source: FY2002: Department of Defense FY2002 Appropriations Act, P.L. 107-117; FY2003: FY2003 Emergency Wartime Supplemental Appropriations Act, P.L. 108-11; FY2004: Department of Homeland Security FY2004 Appropriations Act, P.L. 108-90; FY2005-FY2011: United States Government Accountability Office, Homeland Security: DHS Needs Better Project Information and Coordination among Four Overlapping Grant Programs, GAO-12303, February 2012, Table 1; FY2012: DHS, Transit Security Grant Program FY2012 Funding Opportunity Announcement; FY2013: DHS, FY2013 Transit Security Grant Program FY2013 Funding Opportunity Announcement Notes: The Transit Security Grant Program was formally established in FY2005; in FY2003-FY2004, grants were made through the Urban Areas Security Initiative. Does not include funding provided for security grants for intercity passenger rail (Amtrak), intercity bus service, and commercial trucking. a. Appropriated to Washington Metropolitan Area Transit Authority and the Federal Transit Administration. b. Includes $150 million provided in the American Recovery and Reinvestment Act. c. Congress did not specify an amount for transit security grants, leaving funding to the discretion of DHS. 101 United States House of Representatives, Committee on Homeland Security, Subcommittee on Transportation Security, Hearing on TSA’s Surface Inspection Program: Strengthening Security or Squandering Resources?, May 31, 2012, http://homeland.house.gov/hearing/subcommittee-hearing-tsa%E2%80%99s-surface-inspection-programstrengthening-security-or-squandering. Congressional Research Service 27 Issues in Homeland Security Policy for the 113th Congress In a February 2012 report, the Government Accountability Office found opportunity for duplication among four DHS state and local security grant programs with similar goals, one of which was the public transportation security grant program.102 The Obama Administration proposed consolidating several of these programs in the FY2013 budget. This proposal was not supported by congressional appropriators, though appropriators have expressed concerns that grant programs have not focused on areas of highest risk and that significant amounts of previously appropriated funds have not yet been awarded to recipients.103 Border Security and Trade Southwest Border Issues Spillover Violence Kristin M. Finklea, Specialist in Domestic Security ([redacted]@crs.loc.gov, 7-....) For more information, see CRS Report R41075, Southwest Border Violence: Issues in Identifying and Measuring Spillover Violence. There has been an elevated 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 between December 2006 (when Mexican President Felipe Calderón began his campaign against the DTOs) and December 2012 (when the Calderón administration ended) at somewhere between 45,000 and 55,000.104 Mexican DTOs have been at war with each other as well as with the Mexican 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.105 This has generated concern among U.S. policy makers that the violence in Mexico might spill over into the United States. U.S. officials deny that the drug traffickingrelated violence in Mexico has resulted in a spillover into the United States, but they acknowledge that the prospect is a concern.106 102 United States Governmental Accountability Office, Homeland Security: DHS Needs Better Project Information and Coordination among Four Overlapping Grant Programs, GAO-12-303, February 2012. 103 For additional information on preparedness grant consolidation, see “Consolidation of DHS State and Local Programs” in this report. 104 Homicide levels in Mexico—"largely attributable to drug trafficking and organized crime”—began an escalated climb after 2007. There is debate as to whether this violence leveled off or slightly decreased in 2012; nonetheless, researchers have noted that the violence remains “elevated.” University of San Diego, Trans-Border Institute, Drug Violence in Mexico: Data and Analysis Through 2012, February 2013, pp. 1, 11. 105 Jeffrey A. Roth, “Psychoactive Substances and Violence,” National Institute of Justice (Research in Brief Series), February 1994 (Washington, DC: U.S. Department of Justice). 106 Ramon Bracamontes, “CBP Chief Assesses the Border: Alan Bersin, in El Paso, Assures Safety, Backs Mexico’s Fight,” El Paso Times, January 6, 2011. Congressional Research Service 28 Issues in Homeland Security Policy for the 113th Congress Mexican DTOs are reportedly the greatest drug trafficking threat to the United States.107 Mexican DTOs either (1) transport or (2) produce and transport drugs north across the United StatesMexico 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.108 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.109 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 violence110—while other experts and scholars have maintained that trafficker-on-trafficker violence is central to spillover.111 A clear definition of spillover that can be used to track and analyze trends is central to debating policy options to prevent or mitigate such violence.112 A related issue that Congress may consider is how to prevent drug trafficking-related violence in Mexico 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;113 reducing drug demand in the United States; and decriminalizing or legalizing certain drugs. 107 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. 108 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/. 109 Elyssa Pachio, “Trial of Rogue Tijuana Gang Raises Question of Violence Spilling Over to San Diego,” InSight Crime, March 5, 2012. 110 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. 111 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. 112 See CRS Report R41075, Southwest Border Violence: Issues in Identifying and Measuring Spillover Violence by Kristin M. Finklea. See also U.S. Government Accountability Office, Southwest Border Security: Data Are Limited and Concerns Vary About Spillover Crime Along the Southwest Border, GAO-13-175, February 2013. 113 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 (name redacted). Congressional Research Service 29 Issues in Homeland Security Policy for the 113th Congress Illicit Proceeds and the Southwest Border Kristin M. Finklea, Specialist in Domestic Security ([redacted]@crs.loc.gov, 7-....) 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 (Revolutionary Armed Forces of Col [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR42985. Public record. Not legal advice.