Selected Homeland Security Issues in the 115th Congress

Congressional research reportMay 11, 2017

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Selected Homeland Security Issues in the

115th Congress

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Specialist in Homeland Security and Appropriations

May 11, 2017

Congressional Research Service

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R44847

Selected Homeland Security Issues in the 115th Congress

Summary

In 2001, in the wake of the terrorist attacks of September 11th, “homeland security” went from

being a concept discussed among a relatively small cadre of policymakers and strategic thinkers

to a broadly discussed issue among policymakers, including those in Congress. Debates over how

to implement coordinated homeland security policy led to the passage of the Homeland Security

Act of 2002 (P.L. 107-296) and the establishment of the Department of Homeland Security

(DHS). 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.

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, even if one constrains the

definition of homeland security to the narrow field of prevention and response to domestic acts of

terrorism. In policymaking terms, homeland security is a very broad and complex network of

interrelated issues. For example, in its executive summary, the Quadrennial Homeland Security

Review issued in 2014 delineates the missions of the homeland security enterprise as follows:

prevent terrorism and enhance security; secure and manage the borders; enforce and administer

immigration laws; safeguard and secure cyberspace; and strengthen national preparedness and

resilience.

This report outlines an array of homeland security issues that may come before the 115th

Congress. After a brief discussion of the definitions of homeland security, the homeland security

budget, and the role of homeland security actors in the intelligence community, the report divides

the specific issues into five broad categories:



Counterterrorism and Security Management;

Border Security and Trade;

Disaster Preparedness, Response, and Recovery;

Cybersecurity; and

DHS Management Issues.

Each of those areas contains a survey of topics briefly analyzed by Congressional Research

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

issues. More detailed information on these topics and others can be obtained by consulting the

CRS reports referenced herein, or by contacting the relevant CRS expert.

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Selected Homeland Security Issues in the 115th Congress

Contents

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

The Budget and Security ........................................................................................................... 2

DHS Appropriations............................................................................................................ 2

Homeland Security and the U.S. Intelligence Community ....................................................... 3

Selected Intelligence Community (IC) Issues with Homeland Security

Implications ..................................................................................................................... 7

Homeland Security and Research and Development ................................................................ 9

Counterterrorism and Security Management ................................................................................. 10

The Transnational Trend of Terrorism..................................................................................... 10

Al Qaeda ............................................................................................................................ 11

The Islamic State................................................................................................................ 11

Considerations .................................................................................................................. 12

The Islamic State in the Homeland—the Departed, Returned, and Inspired .......................... 12

Beyond the Departed, Returned, and Inspired .................................................................. 14

Preempting and Monitoring Potential Terrorists ............................................................... 14

Medical Countermeasures to Chemical, Biological, Radiological, and Nuclear

Terrorism .............................................................................................................................. 16

Chemical Facilities Security ................................................................................................... 16

Electric Grid Physical Security ............................................................................................... 17

Continuity of Government Operations .................................................................................... 20

U.S. Secret Service.................................................................................................................. 21

Federal Facility Security ......................................................................................................... 22

DHS State and Local Preparedness Grants ............................................................................. 23

Border Security and Trade ............................................................................................................. 24

Southwest Border Issues ......................................................................................................... 24

Drug Trafficking and the Southwest Border ..................................................................... 24

Illicit Proceeds and the Southwest Border ........................................................................ 25

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

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

Customs-Trade Partnership Against Terrorism (C-TPAT) ................................................ 28

100% Scanning Requirement ............................................................................................ 29

Transportation Worker Identification Credential (TWIC) ....................................................... 30

Immigration Inspections at Ports of Entry (POEs).................................................................. 32

Port of Entry (POE) Infrastructure and Personnel ............................................................ 33

Entry-Exit System ............................................................................................................. 34

Enforcement Between Ports of Entry (POEs) ......................................................................... 35

Aviation Security ..................................................................................................................... 36

Explosives Screening Strategy for the Aviation Domain .................................................. 37

Risk-Based Passenger Screening ...................................................................................... 39

The Use of Terrorist Watchlists in the Aviation Domain .................................................. 40

Perimeter Security, Access Controls, and Worker Vetting ................................................ 41

Security Incidents at Airports............................................................................................ 42

Foreign Last Point of Departure Airports ......................................................................... 43

Mitigating the Threat of Shoulder-Fired Missiles to Civilian Aircraft ............................. 43

Security Issues Regarding the Operation of Unmanned Aircraft ...................................... 44

Transit and Passenger Rail Security ........................................................................................ 46

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Disaster Preparedness, Response, and Recovery........................................................................... 48

Disaster Assistance Funding ................................................................................................... 48

Firefighter Assistance Programs.............................................................................................. 50

Emergency Communications .................................................................................................. 50

The National Flood Insurance Program (NFIP) ...................................................................... 52

NFIP Debt and Borrowing ................................................................................................ 53

Affordability and Solvency ............................................................................................... 53

The Role of Private Insurance in the NFIP ....................................................................... 54

FEMA Reauthorization ........................................................................................................... 55

National Preparedness System ................................................................................................ 56

National Health Security ......................................................................................................... 58

Cybersecurity................................................................................................................................. 59

Defining Cybersecurity ........................................................................................................... 60

Federal Network Security ....................................................................................................... 60

Critical Infrastructure and Cybersecurity ................................................................................ 61

Government and Private Sector Roles in Cybersecurity ......................................................... 62

Cyber Response....................................................................................................................... 63

Applied Technologies .............................................................................................................. 64

Encryption ......................................................................................................................... 64

Automation ....................................................................................................................... 65

Cloud Computing .............................................................................................................. 65

Internet of Things .............................................................................................................. 66

Cybersecurity in Selected Transportation Sectors ................................................................... 66

Aviation Cybersecurity ..................................................................................................... 66

Maritime Cybersecurity .................................................................................................... 67

DHS Management Issues .............................................................................................................. 68

Unity of Effort ......................................................................................................................... 68

Chemical, Biological, Radiological, Nuclear, and Explosives Office (CBRNE) .................... 69

Common Appropriations Structure ......................................................................................... 70

DHS Headquarters Consolidation ........................................................................................... 71

Department of Homeland Security Personnel Issues .............................................................. 72

Chief Human Capital Officer (CHCO) Responsibilities ................................................... 73

Human Capital Strategy for Recruitment.......................................................................... 75

Millennials and Federal Government Employment .......................................................... 76

Organizational Culture at DHS ......................................................................................... 78

Interagency Collaboration through Employee Engagement Steering Committee ............ 79

Contacts

Author Contact Information .......................................................................................................... 80

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Selected Homeland Security Issues in the 115th Congress

What Is Homeland Security?

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 intended 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 criminal justice elements 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 should or should not be considered a part of

homeland security, this report is a survey of issues that have come up in the context of homeland

security policy debates. After initial discussion of the definitions of homeland security, the

homeland security budget, and the role of homeland security actors in the intelligence

community, the report groups the issues into five general themes:



Counterterrorism and Security Management;

Border Security and Trade;

Disaster Preparedness, Response, and Recovery;

Cybersecurity; and

DHS Management Issues

As each topic under these themes is introduced, the 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.1

This report is neither exhaustive nor exclusive in its scope, but representative of the broad array

of issues likely to be taken up in one way or another by the 115th Congress in the coming months.

The report includes many issues that were touched upon in the 114th Congress through legislation

or hearings, and remain unresolved. Some specific issues or issue areas are explored from a

variety of perspectives in other CRS work (e.g., issues with law enforcement, domestic policy, or

In cases where an author has left CRS prior to the date of publication, only the supporting reports are mentioned in the

text, while the author is listed in a footnote.

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national security aspects), and the reader is encouraged to reach out to CRS directly or explore

the CRS website to take full advantage of the products available to them on these matters.

While this report may be updated, it should be viewed as an introduction, not a legislative tracker.

Therefore, some issues currently under debate are not included as a focal item in this report, as

the state of the debate is highly dynamic (e.g., the Administration’s proposed construction of a

wall on the U.S.-Mexico border), and other CRS analytical products provide more current

analysis than can practically be provided in a report of this breadth.

The Budget and Security

(name redacted), Specialist in Homeland Security Policy and Appropriations

([redacted]@crs.loc.gov

, 7-....)

For more information, see CRS Report R44621, Department of Homeland Security

Appropriations: FY2017, coordinated by (name redacted) , and CRS Report R44052, DHS

Budget v. DHS Appropriations: Fact Sheet, by (name redacted) .

From FY2003 through FY2015, according to data from the Office of Management and Budget

(OMB), the entire U.S. government spent almost $807 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.” Such spending peaked in

FY2009 at $73.8 billion. The OMB indicated that its initial estimate of the total budget for

homeland security activities for FY2016 was $71.7 billion.2

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 $63.5 billion in FY2015,

the last year for which we have complete budget data as of the date of publication. Roughly $36.7

billion of that amount, or 57.8%, was 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 discussion, which consider immigration and border control or

disaster response as a part of homeland security.

DHS Appropriations

For FY2017, the Obama Administration requested $47.3 billion in discretionary budget authority

for DHS, including over $6.7 billion to pay for the costs of major disasters under the Stafford Act.

Additional Overseas Contingency Operations (OCO) funding was requested by the

Administration for the Coast Guard as a transfer from the U.S. Navy.

Neither the Senate bill3 nor the House bill4 that were reported out of their respective

appropriations committees in response to that request received floor consideration.

On September 29, 2016, President Obama signed P.L. 114-223 into law, which contained a

continuing resolution that funded the government at the same rate of operations as FY2016,

minus 0.496% through December 9, 2016. A second continuing resolution was signed into law on

Finalized budget totals for FY2016, reflecting reprogrammings and transfers, are expected with the release of the

complete FY2018 budget request.

S. 3001, accompanied by S.Rept. 114-264.

H.R. 5634, accompanied by H.Rept. 114-668.

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December 10, 2016 (P.L. 114-254), funding the government at the same rate of operations as

FY2016, minus 0.1901%, through April 28, 2017. A third continuing resolution extended funding

at that rate through May 5, 2017.

On March 16, 2017, the Trump Administration submitted an amendment to the FY2017 budget

request. The amendment proposed $3 billion more in funding for DHS, including funding for

construction of a border wall and increases in staffing for U.S. Customs and Border Protection

and Immigration and Customs Enforcement that had been called for by President Trump in

Executive Orders signed January 25, 2017.

On May 5, 2017, President Trump signed into law P.L. 115-31, Division F of which was the

Department of Homeland Security Appropriations Act, 2017. The act included $49.3 billion in

discretionary budget authority for DHS for FY2017, $1.1 billion of which was included as

supplemental appropriations in response to the March request and emerging developments.

The act included a finalized reorganization of most of the structure of DHS appropriations

intended to improve transparency. However, the appropriations for the U.S. Coast Guard continue

to be presented in their old structure due to complications with their financial management

system.

The current budget environment will likely present challenges to homeland security programs,

DHS components, and the department as a whole, going forward. The funding demands of

ongoing capital investment efforts, such as the proposed border wall and ongoing recapitalization

efforts, and staffing needs for cybersecurity, border security, and immigration enforcement, will

compete with one another for limited funding across the government and within DHS. The

potential impact of the changing budget environment is discussed at various points throughout

this report.

Homeland Security and the U.S. Intelligence Community

(name redacted), Research Fellow,

([redacted]@crs.loc.gov

, 7-....)

Intelligence and National Security Policy

Heidi Peters, Research Librarian ([redacted]@crs.loc.gov

, 7-....)

While many think of homeland security only in terms of DHS, it is a primary mission of the

entire Intelligence Community (IC). In the years since 9/11, the “wall” between foreign and

domestic intelligence has fallen and many efforts have been initiated to better integrate the

capabilities residing in intelligence and law enforcement organizations.5 “National intelligence”

has come to mean “all intelligence,” not just foreign intelligence.6

The many barriers between foreign and domestic intelligence that existed prior to 9/11 were

intended to prevent government spying on U.S. persons and focused the IC on foreign

intelligence. The tragedy of the 9/11 attacks overcame earlier concerns and led Congress and the

See, for example, National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report

(Washington, DC: GPO, 2004), pp. 78-80, under “Legal Constraints on the FBI and ‘the Wall.’” See also Jerry Berman

and Lara Flint, “Commentary: Guiding lights: Intelligence Oversight and Control for the Challenge of

Terrorism.” Criminal Justice Ethics 22, no. 1 (2003): 2-58, at https://www.cdt.org/files/030300guidinglights_3.pdf.

They suggest that there were numerous barriers: “There was never just one wall … there were really many walls, built

between and within agencies…. Some walls were meant to protect individual rights. Others were meant to protect

national security interests.”

P.L. 108-458, §1012. For more on “national intelligence,” see CRS In Focus IF10525, Defense Primer: National and

Defense Intelligence, by (name redacted)

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executive branch to enact legislation, policies, and regulations designed to enhance information

sharing across the U.S. government.

The Homeland Security Act of 2002 (P.L. 107-296) gave the DHS responsibility for fusing law

enforcement and intelligence information relating to terrorist threats to the homeland. Provisions

in the Intelligence Reform and Terrorist Prevention Act (IRTPA) of 2004 (P.L. 108-458)

established the National Counterterrorism Center (NCTC) as the coordinator at the federal level

for terrorism information and assessment and created the position of Director of National

Intelligence (DNI) to provide strategic management across the IC.7 New legal authorities

accompanied these organizational changes.8 At the state and local level, initiatives to improve

collaboration across the federal system, such as the FBI-led Joint Terrorism Task Forces (JTTFs),

have expanded—the number of JTTFs across the country grew from 34 to over 100 between 2001

and 2017—and new ones, such as DHS’s National Network of Fusion Centers (NNFC), have

been put in place.9

The “community” of U.S. government entities that perform some kind of intelligence-related

activity has gradually evolved into 17 organizations/agencies that span six separate government

departments and two independent agencies.10 Two intelligence elements of DHS and one element

of the FBI are most closely associated with homeland security.11

DHS’s missions include “preventing terrorism and enhancing security; securing and managing

our borders; enforcing and administering our immigration laws; strengthening cyberspace and

critical infrastructure; and strengthening national preparedness and resilience to disasters.”12



DHS’s Office of Intelligence and Analysis (OIA) provides intelligence support

across the full range of DHS missions. OIA combines the unique information

collected by DHS components as part of their operational activities (e.g., at

airports, seaports, and the border) with foreign intelligence from the IC; law

enforcement information from federal, state, local, and tribal sources; private

sector data about critical infrastructure and key resources; and information from

domestic open sources to develop homeland security intelligence.13 OIA

analytical products focus on a wide range of homeland security threats to include

For more on the DNI position, see CRS In Focus IF10470, The Director of National Intelligence (DNI), by (name

redacted)

For example, post 9/11 amendments to the Foreign Intelligence Surveillance Act of 1978 broadened the ability of

federal government organizations to collect and share intelligence information domestically.

Federal Bureau of Investigation, “Protecting America From Terrorist Attack: Our Joint Terrorism Task Forces,” at

http://www.fbi.gov/about-us/investigate/terrorism/terrorism_jttfs; U.S. Department of Homeland Security, Fusion

Centers and Joint Terrorism Task Forces, at http://www.dhs.gov/fusion-centers-and-joint-terrorism-task-forces; and

U.S. Department of Homeland Security, National Network of Fusion Centers Fact Sheet, at https://www.dhs.gov/

national-network-fusion-centers-fact-sheet.

For a brief overview of the 17 components of the IC, see CRS In Focus IF10469, The U.S. Intelligence Community

(IC), by (name redacted)

For details on all 17 components of the IC see Office of the Director of National Intelligence, U.S. National

Intelligence: An Overview 2013, at http://www.dni.gov/files/documents/USNI%202013%20Overview_web.pdf. See

also CRS Report R44681, Intelligence Community Programs, Management, and Enduring Issues, by (name redacted)

U.S. Department of Homeland Security, “Homeland Security Roles and Responsibilities,” Appendix A in 2014

Quadrennial Homeland Security Review, June 18, 2014, p. 83, at http://www.dhs.gov/sites/default/files/publications/

2014-qhsr-final-508.pdf.

For more on domestic intelligence see Greg Treverton, “Reorganizing U.S. Domestic Intelligence: Assessing the

Options,” Monograph, RAND Corporation, 2008, at http://www.rand.org/pubs/monographs/MG767.html.

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

foreign and domestic terrorism, border security, human trafficking, and public

health.14 OIA’s customers range from the U.S. President to border patrol agents,

Coast Guard personnel, airport screeners, and local first responders. Much of the

information sharing is done through the NNFC—with OIA providing personnel,

systems and training.15

The U.S. Coast Guard (USCG), made part of DHS in 2002, has intelligence

elements that deal with information relating to maritime security and homeland

defense. The USCG’s responsibilities include protecting citizens from the sea

(maritime safety), protecting America from threats delivered by the sea (maritime

security), and protecting the sea itself (maritime stewardship). Its diverse mission

sets and broad legal authorities allow it to fill a unique niche within the IC.16

The FBI functions as both an intelligence and law enforcement agency.17 Immediately after the

attacks of September 11, 2001, investigators highlighted a number of obstacles to information

sharing among the nation’s intelligence and law enforcement communities, and called for related

reforms. In the decade following 9/11, a number of laws and executive orders included provisions

designed to improve the FBI’s counterterrorism efforts.18 For example, the IRTPA of 2004 (P.L.

108-458) directed the FBI Director “to develop and maintain a specialized and integrated national

intelligence workforce consisting of agents, analysts, linguists, and surveillance specialists who

are recruited, trained, and rewarded in a manner which ensures the existence within the FBI of an

institutional culture with substantial expertise in, and commitment to, the intelligence mission of

the Bureau.”19

The FBI Intelligence Branch “oversees intelligence policy and guidance.” It includes the

Directorate of Intelligence, “the FBI’s dedicated national intelligence workforce.”20 The

directorate has “clear authority and responsibility for all Bureau intelligence functions” and

includes intelligence elements and personnel that reside at FBI Headquarters and in each FBI

field division.21 Such elements play a role in much of the investigative work that the FBI pursues.

For example, intelligence is central to FBI efforts to thwart national security threats. Such activity

is broadly managed by the FBI National Security Branch which includes:

DHS, “Office of Intelligence and Analysis,” at https://www.dhs.gov/office-intelligence-and-analysis.

Ibid. See also Office of the Director of National Intelligence, U.S. National Intelligence: An Overview 2013, pp. 1920, at http://www.dni.gov/files/documents/USNI%202013%20Overview_web.pdf.

U.S. Coast Guard, Intelligence, Coast Guard Publication 2-0, May 2010, at https://www.uscg.mil/doctrine/CGPub/

CG_Pub_2_0.pdf.

For more on the FBI’s role in the IC, see Joint Publication 2-01, Joint and National Intelligence Support to Military

Operations, January 5, 2012, p. A-9.

See for example USA PATRIOT Act (2001) (P.L. 107-56); USA PATRIOT Reauthorization and Improvement Act

of 2005 (P.L. 109-177), and E.O. 12333, as amended by E.O.s 13284 (2003), 13355 (2004) and 13470 (2008).

P.L. 108-458 §2001(c).

See https://www.fbi.gov/about/leadership-and-structure/intelligence-branch.

Ibid. Unlike other IC entities, the FBI is authorized to conduct HUMINT operations within the United States as part

of its law enforcement duties. FBI/DI uses this authority to conduct source operations and interrogations of known or

suspected terrorists, criminals, or facilitators on U.S. soil. See testimony of FBI Director Robert S. Mueller III, U.S.

Congress, House Permanent Select Committee on Intelligence, The State of Intelligence Reform 10 Years after 9/11,

hearings, 112th Cong., 1st sess., October 6, 2011, at https://www.fbi.gov/news/testimony/the-state-of-intelligencereform-10-years-after-911.

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

The Counterintelligence Division. It focuses on preventing theft of sensitive

information and advanced technologies.22

The Counterterrorism Division. It oversees counterterrorism investigations and

the JTTFs located in FBI field divisions.23

The High-Value Detainee Interrogation Group. It is a multiagency body

administered by the FBI and “brings together intelligence professionals from the

U.S. Intelligence Community to conduct interrogations that strengthen national

security and that are consistent with the rule of law.”24

The Weapons of Mass Destruction Division. It helps coordinate intelligencerelated efforts designed to prevent the use of chemical, biological, radiological,

and nuclear weapons.25

The Terrorist Screening Center. It maintains the U.S. government’s consolidated

watch list of known or suspected terrorists.26

Law enforcement information is expected to be shared with other intelligence agencies for use in

all-source products.27 In 2016 testimony to the Senate Committee on Homeland Security and

Governmental Affairs, then-FBI Director James Comey commented on the importance of sharing

intelligence within the broader context of the FBI’s “intelligence transformation:”

Integrating intelligence and operations is part of the broader intelligence transformation

the FBI has undertaken in the last decade. We are making progress, but have more work

to do. We have taken two steps to improve this integration. First, we have established an

Intelligence Branch within the FBI headed by an executive assistant director (EAD). The

EAD looks across the entire enterprise and drives integration. Second, we now have

special agents and new intelligence analysts at the FBI Academy engaged in practical

training exercises and taking core courses together. As a result, they are better prepared to

work well together in the field. Our goal every day is to get better at using, collecting and

sharing intelligence to better understand and defeat our adversaries. 28

See https://www.fbi.gov/about/leadership-and-structure/national-security-branch; FBI, Intelligence National

Strategy, November 4, 2011, at https://www.fbi.gov/news/stories/2011/november/counterintelligence_110411. See also

E.O. 12333 §1.3 (b) (20) (A) which directs the intelligence elements of the FBI to: (1) Collect (including through

clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence to support national

and departmental missions; (2) Conduct counterintelligence activities; and (3) Conduct foreign intelligence and

counterintelligence liaison relationships with intelligence, security, and law enforcement services of foreign

governments or international organizations.

See https://www.fbi.gov/investigate/terrorism. For more information on FBI counterterrorism investigations, see

CRS Report R44521, The Islamic State’s Acolytes and the Challenges They Pose to U.S. Law Enforcement, by (name r

edacted)

; and CRS Report R41780, The Federal Bureau of Investigation and Terrorism Investigations, by (name r

edacted)

See https://www.fbi.gov/about/leadership-and-structure/national-security-branch/high-value-detainee-interrogationgroup.

See https://www.fbi.gov/investigate/wmd.

See https://www.fbi.gov/about/leadership-and-structure/national-security-branch/tsc. For more information see CRS

Report R44678, The Terrorist Screening Database and Preventing Terrorist Travel, by (name redacted), (name redacted),

and (name redacted)

“All-source” products include analysis based on information from all available sources, including those from inside

and outside the intelligence community.

James Comey, FBI Director, Fifteen Years After 9/11: Threats to the Homeland, Statement Before the Senate

Committee on Homeland Security and Governmental Affairs, Washington, DC, September 27, 2016, at

https://www.fbi.gov/news/testimony/fifteen-years-after-911-threats-to-the-homeland.

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Selected Intelligence Community (IC) Issues with Homeland Security

Implications

Domestic Surveillance

Domestic surveillance issues will likely be a concern for the 115th Congress principally because

certain provisions of the Foreign Intelligence Surveillance Act (FISA) of 1978 (P.L. 95-511),29

primarily those associated with Title VII, will sunset on December 31, 2017.

FISA provides a statutory framework regulating when government agencies may gather foreign

intelligence through electronic surveillance or physical searches, capture the numbers dialed on a

telephone line (pen registers) and identify the originating number of a call on a particular phone

line (with trap and trace devices), or access specified business records and other tangible things.

Authorization for such activities is typically obtained via a court order from the Foreign

Intelligence Surveillance Court (FISC), a specialized court created to act as a neutral judicial

decision maker in the context of FISA. The 9/11 attacks prompted a new look at FISA’s

surveillance and search provisions. Major revisions are associated with several pieces of

legislation: Intelligence Authorization Act (IAA) for Fiscal Year (FY) 1999 (P.L. 105-272); USA

PATRIOT Act of 2001 (P.L. 107-56),30 IRTPA of 2004 (P.L. 108-458), Protect America Act of

2007 (P.L. 110-55), and the FISA Amendments Act of 2008 (P.L. 110-261).31

The USA FREEDOM Act of 2015 (P.L. 114-23), enacted during the 114th Congress, reauthorized

three amendments to FISA known as the “roving” wiretap provision, the “Section 215” provision,

and the “lone wolf” provisions.32 Distinctions between the three amendments include



Multipoint, or “roving” wiretaps allow wiretaps to follow an individual even

when he or she changes the means of communication (i.e., wiretaps which may

follow a target even when he or she changes phones). If it had been allowed to

expire, FISA provisions would require a separate FISA Court authorization to tap

each device a target uses.33

“Section 215” broadened the types of records and “other tangible things” that can

be made accessible to the government under FISA. If it had been allowed to

expire, FISA provisions would have read as they did prior to passage of the USA

PATRIOT Act, and accessible business records would have been limited to

“common carrier, public accommodation facility, physical storage facility, or

vehicle rental facility.”34

The original FISA legislation, P.L. 95-511 is available at http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/

STATUTE-92-Pg1783.pdf. As originally passed, FISA contained three sections and was 16 pages long.

The full title of the USA PATRIOT ACT is the Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism Act of 2001.

Most of the major revisions were written in response to recommendations in the 9/11 Commission Report and in

response to the perception that the government needed to improve its collection, production and dissemination of

counterterrorism-related intelligence to prevent more terrorist attacks. As a result of the amendments, FISA has grown

to eight sections and is now 81 pages long. P.L. 95-511, as amended, is available at http://legcounsel.house.gov/Comps/

Foreign%20Intelligence%20Surveillance%20Act%20Of%201978.pdf.

The first two of these provisions were part of the USA PATRIOT Act of 2001 (P.L. 107-56) and the third was passed

as part of the IRTPA of 2004 (P.L. 108-458).

CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Expiring on December 15,

2019, by (name redacted)

Ibid.

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

The “lone wolf” provision allows the government to monitor individuals acting

alone and potentially engaged in international terrorism, providing that they are

not citizens or permanent residents of the United States. If it had been allowed to

expire, there would have been no provision for individuals acting alone.35

Title VII was added to the original FISA legislation pursuant to the FISA Amendments Act of

2008 (P.L. 110-261) with a sunset clause that repealed Title VII on December 31, 2012. The FISA

Amendments Reauthorization Act of 2012 (P.L. 112-238) authorized a five-year extension—such

that Title VII will be automatically repealed on December 31, 2017, unless the 115th Congress

passes legislation to extend it.



Section 702 permits the Attorney General and the DNI to jointly authorize

targeting of persons reasonably believed to be located outside the United States

in order to acquire foreign intelligence information. However, it is limited in

scope. For example, it is limited to targeting non-U.S. persons, the targeting

procedures must be reasonably designed to prevent the intentional acquisition of

any communication where the sender and all intended recipients are known at the

time of the acquisition to be located in the United States, and procedures must be

consistent with Constitutional protections afforded by the 4th Amendment. Once

authorized, such acquisitions may last for periods of up to one year.36 If it is

allowed to expire, orders in effect on December 31, 2017, would be allowed to

continue through their expiration date.37 However, no new orders under Section

702 could be issued after the sunset date.

Information Sharing and Collaboration

The “wall” between domestic and foreign intelligence has come down metaphorically, but

barriers to information sharing and collaboration remain between the IC and law enforcement

entities, between IC entities in the various levels of government—federal, state, local, tribal,

territorial—and between the public and private sector.38

There are a number of efforts underway to overcome those barriers. For example, the White

House-led Information Sharing and Access Interagency Policy Committee (ISA IPC) focuses on

government-wide standards and architecture, security and access, associated privacy protections,

and best practices.39 DHS has developed a Critical Infrastructure Information Sharing and

Ibid.

For more on Section 702, see CRS Report R44457, Surveillance of Foreigners Outside the United States Under

Section 702 of the Foreign Intelligence Surveillance Act (FISA), by (name redacted)

P.L. 110-261, §404(b)(1), as amended by P.L. 112-238, §2(b).

Barriers to information sharing and collaboration include different uses of information collected by various

organizations (e.g., data gathered for intelligence purposes vs. evidence gathered to prosecute a criminal), access to

classified materials, complications associated with information technology, differing organizational cultures, and

concerns over the damage caused by leaked information. Various types of DHS, IC, and law enforcement centers exist

to “fuse” or bridge the gaps between organizations at all levels of government but the system for integrating

intelligence-related information is far from perfect. While the passage of the USA PATRIOT Act removed much of the

statutory basis for the “wall” between law enforcement and intelligence information, making it possible to share law

enforcement information with analysts in intelligence agencies, experts have observed that many obstacles remain.

P.L. 108-458 established the position of Program Manager (PM) to manage the information sharing environment

(ISE) and to be “responsible for information sharing across the Federal Government.” Consistent with the direction and

policies issued by the President, the DNI, and the Director of the Office of Management and Budget (OMB), the PMISE issues government-wide procedures, guidelines, instructions, and functional standards, as appropriate, for the

management, development, and proper operation of the ISE. For more on this topic, see “ISE governance,” at

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Collaboration Program (CISCP) that shares threat, incident and vulnerability information between

government and industry across critical infrastructure sectors such as the chemical, energy, dams,

and financial services sectors in order to meet its public-private cybersecurity data sharing and

analytical collaboration mission.40 The FBI partners with businesses, academic institutions, state

and local law enforcement agencies, and other participants through a program called InfraGard.41

The Department of State promotes security cooperation through its Overseas Security Advisory

Council partnering with business and private sector interests worldwide.42

Congress may choose to explore how these information-sharing organizations, and others, are

measuring progress in efforts such as CISCP. Based on those metrics, it may attempt to assess the

United States’ current situation in terms of information sharing and collaboration on homeland

security-related issues such as cybersecurity, border security, transportation security, disaster

response, drug interdiction, critical infrastructure protection, and homegrown violent extremism.

As Congress reviews cases of collaboration between multiple agencies, it may examine if it is

clear which agency has the lead, and whether any single organization is accountable if a

collaborative arrangement fails.

Homeland Security and Research and Development

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

7-....)

The Directorate of Science and Technology (S&T) has primary responsibility for establishing,

administering, and coordinating DHS R&D activities. The Domestic Nuclear Detection Office

(DNDO) is responsible for research and development (R&D) relating to nuclear and radiological

threats. Several other DHS components, such as the Coast Guard, also fund R&D and R&Drelated activities related to their missions. The Common Appropriations Structure that DHS

introduced in its FY2017 budget includes an account titled Research and Development in seven

different DHS components.

The Under Secretary for S&T has statutory responsibility for coordination of homeland security

R&D both within DHS and across the federal government.43 The Director of DNDO also has an

(...continued)

https://www.ise.gov/ise-governance. For more on IPCs, see Alan G. Whittaker, et al., The National Security Policy

Process: The National Security Council and Interagency System, Industrial College of the Armed Forces, National

Defense University, U.S. Department of Defense, August 15, 2011, pp. 17-18.

U.S. Department of Homeland Security, CIKR Cyber Information and Collaboration Program, at http://csrc.nist.gov/

groups/SMA/ispab/documents/minutes/2013-06/ispab_june2013_menna_ciscp_one_pager.pdf. See also DHS, “Critical

Infrastructure and Key Resources Cyber Information Sharing and Collaboration Program,” at https://www.us-cert.gov/

sites/default/files/c3vp/CISCP_20140523.pdf; and DHS, “Critical Infrastructure Sectors,” at http://www.dhs.gov/

critical-infrastructure-sectors.

The InfraGard National Members Alliance (INMA) is comprised of 84 separate InfraGard Member Alliances (IMAs)

that represent over 37,000 technical experts nationwide. Each of the 84 IMAs is geographically linked with an FBI

Field Office. See “Infra Gard: Partnership for Protection,” at https://www.infragard.org/Application/General/

MoreInfo.

The Overseas Security Advisory Council (OSAC) was created in 1985 under the Federal Advisory Committee Act to

promote security cooperation between American private sector interests worldwide and the U.S. Department of State. It

currently encompasses a 34-member core Council, an Executive Office, over 140 Country Councils, and more than

3,500 constituent member organizations. For more, see “About OSAC,” at https://www.osac.gov/Pages/AboutUs.aspx.

6 U.S.C. 182.

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interagency coordination role with respect to nuclear detection R&D.44 Both internal and external

coordination have been long-standing congressional concerns.

Regarding internal coordination, the Government Accountability Office (GAO) concluded in

2012 that because so many components of the department are involved, it is difficult for DHS to

oversee R&D department-wide.45 In January 2014, the joint explanatory statement for the

Consolidated Appropriations Act, 2014 (P.L. 113-76) directed DHS to implement and report on

new policies for R&D prioritization. It also directed DHS to review and implement policies and

guidance for defining and overseeing R&D department-wide.46 In July 2014, GAO reported that

DHS had updated its guidance to include a definition of R&D and was conducting R&D portfolio

reviews across the department, but that it had not yet developed policy guidance for DHS-wide

R&D oversight, coordination, and tracking.47

A challenge for external coordination is that the majority of homeland security related R&D is

conducted by other agencies, most notably the Department of Defense and the Department of

Health and Human Services. The Homeland Security Act of 2002 directs the Under Secretary for

S&T, “in consultation with other appropriate executive agencies,” to develop a government-wide

national policy and strategic plan for homeland security R&D,48 but no such plan has ever been

issued. Instead, in certain areas, the National Science and Technology Council (a White House

coordinating entity) has issued R&D strategies in certain topical areas, such as biosurveillance,49

and the S&T Directorate has developed R&D plans with individual agencies in response to

certain specific threats.

Provisions regarding R&D coordination have often appeared in congressional report language

accompanying homeland security appropriations bills. In the 115th Congress, they may also be

included in DHS reauthorization legislation.

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.

6 U.S.C. 592.

See U.S. Government Accountability Office, Department of Homeland Security: Oversight and Coordination of

Research and Development Should Be Strengthened, GAO-12-837, September 12, 2012, http://www.gao.gov/products/

GAO-12-837.

“Explanatory Statement Submitted by Mr. Rogers of Kentucky, Chairman of the House Committee on

Appropriations Regarding the House Amendment to the Senate Amendment on H.R. 3547, Consolidated

Appropriations Act, 2014,” Congressional Record, vol. 160, part 9 (January 15, 2014), p. H927.

See U.S. Government Accountability Office, Department of Homeland Security: Continued Actions Needed to

Strengthen Oversight and Coordination of Research and Development, GAO-14-813T, July 31, 2014,

http://www.gao.gov/products/GAO-14-813T.

P.L. 107-296, Sec. 302(2); 6 U.S.C. 182(2).

National Science and Technology Council, National Biosurveillance Science and Technology Roadmap,

Washington, DC, June 2013, https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/

biosurveillance_roadmap_2013.pdf.

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

and manifesting 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 and the

Islamic State. While recognizing that numerous other terrorist groups may wish to harm U.S.

global security interests, the current Administration appears to be primarily focused on addressing

threats from Al Qaeda and the Islamic State, their affiliated organizations, and adherents to their

violence-based philosophy. Understanding how Al Qaeda and the Islamic State continue to evolve

into global entities with a diverse set of actors and capabilities is central to formulating sound

strategic policy and overseeing its effective implementation.

Al Qaeda

The past few years have witnessed a continuation 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 suggested

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.50 Others suggest

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

difficult to detect and defeat.51 Still, Al Qaeda, the organization and its affiliates, persist and have

drawn the attention of the Trump Administration.

The Islamic State52

The Islamic State (IS, also known as the Islamic State of Iraq and the Levant, ISIL, or ISIS) is a

transnational Sunni Islamist insurgent and terrorist group that has expanded its control over parts

of Iraq and Syria since 2013. There is debate over the degree to which the overseas members of

the Islamic State organization might represent a direct terrorist threat to U.S. facilities and

personnel in the region or to the U.S. homeland or whether the more significant concern relates to

how unaffiliated individuals not under the control of IS leadership might become inspired to

undertake attacks.53 The forerunners of the Islamic State were part of the insurgency against

coalition forces in Iraq. In the years since the 2011 U.S. withdrawal from Iraq, the organization

has expanded and contracted its presence in Iraq and broadened its reach and activities in Syria.

The Islamic State has thrived in the disaffected Sunni tribal areas of eastern provinces of Syria

affected by the civil war. Since 2014, IS forces have killed Syrian and Iraqi adversaries, including

some civilians, often from ethnic or religious minorities, and killed hostages, including U.S.

citizens. Islamic State attempts to make further gains in Iraq and Syria continue. The group’s

For additional information, see CRS Report R41809, Osama bin Laden’s Death: Implications and Considerations,

coordinated by (name redacted).

Haridimos Tsoukas and Robert C. H. Chia, Philosophy and Organizational Theory, Research in the Sociology of

Organizations, Volume 32, London, U.K., 2011, pp. 287-290.

For additional information, see CRS Report R43612, The Islamic State and U.S. Policy, by (name redacted)

and (name redacted)

CRS Report R43612, The Islamic State and U.S. Policy, by (name redacted) and (name redacted)

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tactics have drawn international ire, and raised U.S. attention to Iraq’s political problems and to

the war in Syria.54

Considerations

The terrorist threat to U.S. global interests will likely remain an important issue for the

Administration and the 115th Congress. Over the past few years numerous individuals were

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

activities directed at U.S. national security interests. Many of the attacks—successful and

unsuccessful—were of a transnational dimension and included a lone attacker who appears to

have become radicalized over the Internet, terrorist organizations wishing to use airliners as

platforms for destruction, and individuals attempting to detonate large quantities of explosives or

undertaking mass shootings in symbolic areas frequented by large groups of people.

The 114th 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 Congress has 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 115th Congress may assess the Trump Administration’s

counterterrorism-related strategies, policies, and programs to ascertain if additional guidance or

legislation is required. Any such assessments will likely include considerations of how best to

balance perceived risks to U.S. global security interests with other non-security related policy

priorities.

The Islamic State in the Homeland—the Departed, Returned,

and Inspired

(name redacted)

7-.... )

, Specialist in Organized Crime and Terrorism ([redacted]@crs.loc.gov,

For more information, see CRS Report R44521, The Islamic State’s Acolytes and the

Challenges They Pose to U.S. Law Enforcement, by (name redacted)

Congress continues to focus attention on the threat posed by people who have pursued terrorist

activity in the homeland. It may be of value for Congress to undertake its policy discussions with

a broad understanding of the contours of such terrorist plotting, as well as the general types of

actions the government takes to mitigate this threat.

Since 2014, the Islamic State (IS)55 has become the focal point for the bulk of homegrown violent

jihadist terrorist plots.56 According to CRS analysis of publicly available information, IS

For additional information, see CRS Report R43612, The Islamic State and U.S. Policy, by (name redacted)

and (name redacted)

The group is also referred to as the Islamic State of Iraq and the Levant (ISIL/ISIS or the Arabic acronym Da’esh),

among other names. For more information see CRS Report R43612, The Islamic State and U.S. Policy, by (name redact

ed) and (name redacted)

, and CRS Report RL33487, Armed Conflict in Syria: Overview and U.S. Response,

coordinated by (name redacted).

For this report, the term “homegrown” includes American citizens, lawful permanent residents, or visitors radicalized

largely within the United States. “Homegrown violent jihadist” describes homegrown individuals using Islam as an

ideological and/or religious justification for their belief in the establishment of a caliphate—a jurisdiction governed by

a Muslim civil and religious leader known as a caliph—via violent means. Such violence can be perpetrated within the

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supporters have accounted for 80 of the approximately 91 homegrown violent jihadist plots

between 2014 and February 2017. This includes instances in which people in the United States

wanted to travel to Syria to fight with extremist groups in the nation’s civil war as well as plots to

strike domestic targets. These plots can be broken into three rough categories based on the

courses of action that plotters57 pursued as they attempted to support the terrorist group. The first

two categories focus on foreign fighters,58 the last on people who will not or have not traveled to

train or fight overseas, but are willing to do harm in the United States:



The Departed—American foreign fighters who plan to leave or have left the

United States to fight for the Islamic State. This group includes suspects

scheming to travel but who are caught before they arrive in IS territory.

The Returned—American foreign fighters who trained with or fought in the

ranks of the Islamic State and return to the United States, where they can

potentially plan and execute attacks at home.59

The Inspired—Americans lured—in part—by IS propaganda to participate in

terrorist plots within the United States.

The desire to become a foreign fighter (captured in either the departed or the returned category)

played a role in 47 of the 80 IS-related plots. Almost all of the 47 had people either departing the

United States for Syria or considering such a trip. Three of the 47 cases involved investigations of

people who had returned from the conflict zone.60 In 37 cases since the start of 2014, people

inspired by the terrorist group’s propaganda considered striking targets in the United States.61 IS

has tried to inspire attacks via its propaganda. For example, in May 2016, the group issued an

audio recording, particularly encouraging American and European sympathizers to commit

attacks in their home countries during the holy month of Ramadan (early June to early July).62

(...continued)

United States or abroad. The term homegrown violent jihadist includes



People described by U.S. intelligence and law enforcement agencies as homegrown violent extremists—

individuals operating in the United States who are inspired by foreign terrorist organizations but do not

receive direction or assistance from such groups.



Homegrown individuals who receive direction or assistance from foreign terrorist organizations.

The 80 plots have involved more than 130 individuals in total, and this estimate includes indicted co-conspirators in

criminal cases; people who died either in attacks or as foreign fighters; and instances in which some biographical

identifiers exist for the individuals centrally involved in plotting. Unindicted co-conspirators, cooperating informants,

and undercover law enforcement personnel are not counted.

For the purposes of this report, foreign fighters are U.S. citizens and noncitizens who radicalized in the United States

and plotted to or traveled abroad to join a foreign terrorist group. “Plots” include schemes by homegrown individuals or

groups to either join terrorist organizations abroad (become foreign fighters) or to commit violent attacks at home or

abroad. “Attacks” involve ideologically driven physical violence committed by terrorists. To qualify as an attack, the

violence has to harm a person or people in the United States or those targeted as Americans abroad. Plots and attacks

were dated according to when they became publicly known generally via government press releases, publicly released

court documents, or news reporting.

This group does not include people who left the United States but failed to join up with a terrorist group. Such

individuals are among “the departed.”

These three plots apparently did not include viable schemes to strike domestic targets after the plotters returned to the

United States.

Four plots exhibited both departed and inspired qualities.

Paul Cruickshank, “Orlando Shooting Follows ISIS Call for U.S. Ramadan Attacks,” CNN, June 13, 2016; Maher

Chmaytelli, Stephen Kalin, and Ali Abdelaty, “Islamic State Calls for Attacks on the West During Ramadan in Audio

Message,” Reuters, May 22, 2016; U.S. Government Open Source Enterprise (OSE) Report TRO2016052227212358,

“ISIL Spokesman Urges ‘Soldiers’, ISIL ‘Supporters’ to Target ‘Civilians’ During Ramadan,” Twitter in English,

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The January 2016 issue of Dābiq, the Islamic State’s English language magazine, praised the

married couple reportedly involved in the San Bernardino shooting in December 2015.63

Beyond the Departed, Returned, and Inspired

Aside from the three categories based on the courses of action that IS supporters follow, at least

two other sorts of IS foreign fighters pose some threat to U.S. interests.



The Lost—unidentified Americans who fight in the ranks of the Islamic State.

Such individuals may come home after fighting abroad and remain unknown to

U.S. law enforcement. Some American IS fighters will never book a trip back to

the United States. (The post 9/11 record of U.S. counterterrorism investigations

suggests this prospect. None of the Americans who have fought for al-Shabaab, a

terrorist group based in Somalia, are known to have come home to plot attacks.)

Finally, some American IS supporters will perish abroad.

The Others—foreign IS adherents who radicalize in and originate from places

outside of the United States or non-American foreign fighters active in the ranks

of the Islamic State. These persons could try to enter the United States from

abroad.

Preempting and Monitoring Potential Terrorists

Preemption and monitoring of possible IS terrorist activity by U.S. law enforcement can be

broadly described in terms of interdiction, investigation, and countering violent extremism in the

United States.

Interdiction

In this sphere, interdiction activities involve—among other things—stopping a suspected terrorist

from entering the United States. For example, within the Department of Homeland Security

(DHS), components such as Customs and Border Protection (CBP) draw on information from the

federal government’s consolidated terrorist watchlist as they engage in intelligence-driven

screening to mitigate the risk posed by travelers destined for the United States.64 The federal

government has also coordinated with other nations regarding identifying and interdicting foreign

fighters.65 One of the known efforts targeting foreign fighters pursued by DHS involves

enhancements to the Electronic System for Travel Authorization (ESTA) used by CBP to vet

(...continued)

Arabic, May 21, 2016.

Tom Winter and Robert Windrem, “New Issue of ISIS Magazine Dabiq Applauds San Bernardino Carnage,” NBC

News, January 19, 2016.

In 2012, Customs and Border Protection (CBP) described commercial air travel as “the primary target of terrorist

organizations seeking to attack the homeland or move operatives into the United States.... ” See Kevin McAleenan,

then Assistant Commissioner, U.S. Customs and Border Protection, Office of Field Operations, written statement for a

House Committee on Homeland Security, Subcommittee on Border and Maritime Security hearing, “Eleven Years

Later: Preventing Terrorists from Coming to America,” September 11, 2012. For more on the U.S. watchlisting

regimen, see CRS Report R44678, The Terrorist Screening Database and Preventing Terrorist Travel, by (name reda

cted), (name redacted), and (name redacted)

For example see Department of Homeland Security, press release, “Statement by Secretary Johnson on the United

Kingdom’s Decision to Raise Their Threat Level,” August 29, 2014.

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prospective travelers from visa waiver countries “to determine if they pose a law enforcement or

security risk before they board aircraft destined for the United States.”66

In early 2017, the Trump Administration pursued additional broader measures it believed would

thwart terrorist travel. In March 2017, the administration revised its January 27, 2017, Executive

Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.”

Effective on March 16, 2017, the revision imposed a 90-day ban on the entry into the United

States of certain aliens from Iran, Libya, Somalia, Sudan, Syria, and Yemen.67 The executive

order also suspended the United States Refugee Admissions Program for 120 days and lowered

the number of refugees accepted annually from 110,000 to 50,000.68

Investigation

Discussion of counterterrorism investigation activities largely focuses on Joint Terrorism Task

Forces (JTTFs) led by the Federal Bureau of Investigation (FBI) and supported by local, state,

and federal agencies—including DHS.69 The task forces fill the chief role in coordinating federal

counterterrorism cases across the United States, bringing together federal, state, and local

participants in the process. JTTFs have been involved in stopping individuals trying to leave the

United States to fight with the Islamic State as well as investigating people who have returned

from the conflict zone. Beyond U.S. borders, the FBI has legal attachés around the world that

coordinate with foreign law enforcement partners to fight terrorist activity. Additionally, the

Department of Justice (DOJ) has worked to expand its presence in countries that serve as transit

points for foreign fighters.70

Interceding With People on the Cusp of Violent Radicalization

The Obama Administration created a program focused on “proactive actions to counter efforts by

extremists to recruit, radicalize, and mobilize followers to violence.”71 The program—dubbed

countering violent extremism (CVE)—reputedly covered potentially violent extremists acting

from a variety of ideological perspectives (such as homegrown jihadists and white supremacists).

It did not involve intelligence gathering or investigative work tied to criminal prosecutions. CVE

For details see CBP Press Release, “Strengthening Security of the VWP through Enhancements to ESTA.” For

background see CRS Report RL32221, Visa Waiver Program, by (name redacted)

. See also Tom Warrick, Deputy

Assistant Secretary for Counterterrorism Policy, Department of Homeland Security, written statement for a House

Committee on Foreign Affairs joint subcommittee hearing, “ISIS and the Threat from Foreign Fighters,” December 2,

2014; Jeh C. Johnson, (then) Secretary, Department of Homeland Security, written statement for a House Homeland

Security Committee hearing, “Worldwide Threats to the Homeland,” September 17, 2014.

This includes most aliens from the six countries who either lacked a valid visa as of January 27, 2017, or whose visas

expired after January 27, 2017.

White House, “Protecting the Nation from Foreign Terrorist Entry Into the United States,” March 6, 2017,

https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entryunited-states. See also the original order White House, Executive Order 13769, “Protecting the Nation from Foreign

Terrorist Entry Into the United States,” January 27, 2017, https://www.whitehouse.gov/the-press-office/2017/01/27/

executive-order-protecting-nation-foreign-terrorist-entry-united-states.

See http://www.fbi.gov/about-us/investigate/terrorism/terrorism_jttfs.

Tal Kopan, “Holder: DOJ Expanding International Capacity to Stem Foreign Fighters,” Politico, November 13,

2014. In September 2014, DOJ noted that one of its components, Interpol Washington, developed a program dedicated

to thwarting foreign fighters. DOJ Press Release, “Interpol Washington Spearheads Foreign Terrorist Fighter Program,

Serves as Catalyst for Global Information Sharing Network,” September 24, 2014.

White House, “Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the

United States,” October 2016, p. 2.

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emphasized tackling the conditions and factors driving recruitment and radicalization by violent

extremists—people who promoted political goals by supporting or committing ideologically

motivated violence.72 At DHS, the program largely involved community engagement and

partnership efforts.73 It appears that much of CVE addressed people who were not breaking the

law but may have been on the path toward breaking the law by becoming violent extremists (e.g.,

terrorists).74 It is unclear what the Trump Administration plans to do with this program, but media

outlets have reported the Administration is interested in focusing it exclusively on homegrown

violent jihadists.75

Medical Countermeasures to Chemical, Biological, Radiological,

and Nuclear Terrorism

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

(

, 7-....)

Following the 2001 anthrax attacks, the federal government created several programs to support

the research, development, and procurement of new medical countermeasures against chemical,

biological, radiological, and nuclear (CBRN) threats. Despite these efforts, many of the CBRN

threats that the government deems likely to pose the highest risk lack available countermeasures.

The 115th Congress may consider the effectiveness of the federal efforts and whether current

programs should be continued, modified, or ended, and whether new programs should be

established.

The research, development, and procurement of new CBRN medical countermeasures for civilian

use involves a complex multi-agency process, largely within the Department of Health and

Human Services. The Department of Homeland Security provides risk analysis to inform

countermeasure prioritization. Recent Congresses have provided HHS new authorities and

modified existing authorities to improve the performance, efficiency, and transparency of the

multiagency process. However, some key issues remain unresolved, including those related to

appropriations, interagency coordination, and countermeasure prioritization. In addition to

determining the appropriate amount of funding, Congress may decide whether to return to

funding a key procurement program, Project BioShield, through a multiyear advance

appropriation. Policymakers may consider whether the legislative changes to planning and

transparency requirements have sufficiently enhanced coordination of the multiagency

countermeasure development enterprise and congressional oversight. Additionally, Congress may

consider whether the current prioritization process appropriately balances effort between threats

that have some available FDA-approved countermeasures, such as anthrax and smallpox, and

threats which lack any such countermeasure, such as Ebola.

Chemical Facilities Security

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

(

, 7-....)

Ibid, pp. 1-2.

For more information on such activity at DHS, see https://www.dhs.gov/countering-violent-extremism.

For more information on the origins of the program see CRS Report R42553, Countering Violent Extremism in the

United States.

Julia Edwards Ainsley, Dustin Volz and Kristina Cooke, “Exclusive: Trump to Focus Counter-Extremism Program

Solely on Islam—Sources,” Reuters, February 2, 2017.

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Congress authorized DHS to regulate security at chemical facilities through P.L. 113-254, the

Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014. This act repealed

the prior statutory authority that had been granted in the Homeland Security Appropriations Act,

2007 (P.L. 109-295, §550). The new authority expires in December 2018. As the termination date

approaches, the 115th Congress will likely consider whether the authority should be reauthorized,

modified, or allowed to expire.

Congress will likely consider whether the DHS Chemical Facility Anti-Terrorism Standards

program (CFATS) and associated regulations appropriately balance homeland security and

stakeholder needs. Congress may also consider how well DHS has implemented the program and

whether the implementation is aligned with current congressional intent.

In considering whether to reauthorize CFATS, Congress may reconsider previously raised issues.

The Obama Administration and some stakeholders determined that existing regulatory

exemptions, such as for community water systems and wastewater treatment facilities, pose

potential risks.76 Environmental and “right-to-know” groups additionally advocate that Congress

include requirements for facilities to adopt or identify “inherently safer technologies” and widely

disseminate security-related information to first responders and employees.77 The regulated

industry generally opposes granting DHS the ability to require implementation of inherently safer

technologies or other specific security measures. Industry stakeholders 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 also identified the broad

dissemination of chemical security-related information as a potential security concern. However,

following the 2013 explosion of the West Fertilizer Company in West, TX, DHS discovered that

information about that facility’s chemical inventory had not been effectively shared between

federal agencies. This led to reconsideration of existing information-sharing policies and

Executive Order 13650, “Improving Chemical Facility Safety and Security.”78 Additionally, if

Congress decides to reauthorize the program, then it may consider whether to make CFATS

permanent or to include another expiration provision.

Electric Grid Physical Security

Paul Parfomak, Specialist in Energy Policy, Resources, Science and Industry Division

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

For more information, see CRS Report R43604, Physical Security of the U.S. Power Grid:

High-Voltage Transformer Substations

The electric utility industry operates as an integrated system of generation, transmission, and

distribution facilities to deliver electric power to consumers. In the United States, this system has

over 9,000 electric generating units connected to over 200,000 miles of high-voltage transmission

lines rated at 230 kilovolts (kV)79 or greater strung between large towers.80 This network is

Oral testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of

Homeland Security, before the House Committee on Homeland Security, Subcommittee on Cybersecurity,

Infrastructure Protection, and Security Technologies, February 11, 2011.

Department of Homeland Security, “Chemical Facility Anti-Terrorism Standards; Final Rule,” 72 Federal Register

17718, April 9, 2007.

Executive Order 13650, “Improving Chemical Facility Safety and Security,” 78 Federal Register 48029, August 1,

2013.

1 kV=1,000 volts.

North American Electric Reliability Corporation, “Understanding the Grid,” fact sheet, August 2013,

(continued...)

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interspersed with hundreds of large electric power transformers whose function is to adjust

electric voltage as needed to move power across the network. High voltage (HV) transformer

units make up less than 3% of transformers in U.S. power substations, but they carry 60%-70% of

the nation’s electricity.81 Because they serve as vital transmission network nodes and carry bulk

volumes of electricity, HV transformers are critical elements of the nation’s electric power grid.

The various parts of the electric power system are all vulnerable to failure due to natural or

manmade events. However, HV transformers are considered by many experts to be among the

most vulnerable to intentional damage from malicious acts.82 Security analysts have long asserted

that a coordinated and simultaneous attack on multiple HV transformers could have severe

implications for reliable electric service over a large geographic area, crippling its electricity

network and causing widespread, extended blackouts.83 Such an event could have severe electric

reliability consequences, demonstrated in recent grid security exercise, as well as serious

economic and social consequences.84 A handful of recent physical attacks on individual

transformer substation—most notably a 2013 attack on an HV transformer substation in Metcalf,

CA—did not cause widespread blackouts, but did highlight the physical vulnerability of HV

transformer substations and drew the attention of both the media and federal officials to the utility

industry’s substation security efforts.85

Over the last decade or so the electric utility industry and government agencies have engaged in a

number of initiatives to secure HV transformers from physical attack and to improve recovery in

the event of a successful attack. These initiatives include coordination and information sharing,

spare equipment programs, and grid security exercises, among other measures. Grid security

guidelines or standards have been developed to address the physical security of the grid since at

least 2002, including standards promulgated by the North American Electric Reliability

Corporation (NERC) as voluntary best practices.

In November 2014, following the Metcalf attack, the Federal Energy Regulatory Commission

(FERC) approved a new mandatory Physical Security Reliability Standard (CIP-014-1) proposed

by NERC “to address physical security risks and vulnerabilities related to the reliable operation”

of the power grid by performing risk assessments to identify their critical facilities, evaluate

potential threats and vulnerabilities, and implement security plans to protect against attacks.86 As

(...continued)

http://www.nerc.com/AboutNERC/Documents/Understanding%20the%20Grid%20AUG13.pdf. There is no industry

consensus as to what voltage rating constitutes “high voltage.” This report uses 230 kV as the high voltage threshold,

but other studies may use a different one. See, for example: U.S. Department of Energy, Large Power Transformers

and the U.S. Electric Grid, April 2014, p. 4.

C. Newton, “The Future of Large Power Transformers,” Transmission & Distribution World, September 1, 1997;

William Loomis, “Super-Grid Transformer Defense: Risk of Destruction and Defense Strategies,” Presentation to

NERC Critical Infrastructure Working Group, Lake Buena Vista, FL, December 10-11, 2001.

U.S. Department of Energy, Energy Transmission, Storage, and Distribution Infrastructure, April 2015, p. S-11.

ICF, Assessment of Large Power Transformer Risk Mitigation Strategies, prepared for the U.S. Department of

Energy, October 2016, p. 7.

North American Electric Reliability Corporation (NERC), Grid Security Exercise (GridEx II): After-Action Report,

March 2014, p.15; Matthew L. Wald, “Attack Ravages Power Grid. (Just a Test.),” New York Times, November 14,

2013.

RTO Insider, “Substation Saboteurs ‘No Amateurs,’” April 2, 2014, http://www.rtoinsider.com/pjm-grid2020-111303/; Chelsea J. Carter, “Arkansas Man Charged in Connection with Power Grid Sabotage,” CNN, October 12, 2013;

Max Brantley, “FBI Reports Three Attacks on Power Grid in Lonoke County,” Arkansas Times, October 7, 2013;

Rebecca Smith, “U.S. Risks National Blackout From Small-Scale Attack,” Wall Street Journal, March 12, 2014.

Federal Energy Regulatory Commission, Physical Security Reliability Standard, Docket No. RM14-15-000; Order

(continued...)

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of December 2016, NERC had received initial risk assessments and security plans from

transmission owners and operators subject to the standard and was in discussions with FERC

officials about how best to audit them.87 While NERC’s physical security standard was viewed by

many as an important step in improving grid security, some policymakers have advocated

additional measures to facilitate grid recovery in an emergency. For example, a 2015 report by the

(DOE) also recommended a DOE-led effort to develop a critical HV transformer reserve as a

source of emergency spares in the event of natural disaster or physical attack.88

The 114th Congress included provisions in the Fixing America’s Surface Transportation (FAST)

Act (P.L. 114-94), which became law on December 4, 2015, to facilitate recovery during electric

grid emergencies due to physical damage and other causes. The act provides the Secretary of

Energy additional authority to order emergency measures to protect or restore the reliability of

critical electric infrastructure during a grid security emergency (§1104). The act also requires the

Secretary of Energy to submit to Congress a plan for a Strategic Transformer Reserve (§1105).

The reserve would store in strategic locations spare large power transformers to temporarily

replace critical large power transformers damaged by intentional attack or destructive natural

events. This section would authorize the Secretary to establish the reserve six months after

submitting the plan to Congress. As of January 2017, DOE intended to submit its plan “in the

near future.”89 In addition the DOE’s efforts, six industry-led transformer-sharing programs are

operating or being developed in the United States.90

There is widespread agreement among state and federal government officials, utilities, and

manufacturers that HV transformers in the United States are vulnerable to terrorist attack, and

that such an attack potentially could have catastrophic consequences. Congress has long been

concerned about grid security in general, but recent security exercises, together with the Metcalf

attack, have focused congressional interest on the physical security of HV transformers, among

other specific aspects of the grid.91 As the electric utility industry and federal agencies continue

their efforts to improve the physical security of the grid, the 115th Congress may consider several

key issues as part of its oversight of the sector: industry’s implementation of the new physical

security standards, DOE’s plan for a strategic transformer reserve and related grid security

activities, independent private sector efforts to improve HV transformer design and recovery, and

the quality of federal information about threats to the grid.

(...continued)

No. 802, November 20, 2014.

David Ortiz, Deputy Director, Office of Electric Reliability, Federal Energy Regulatory Commission, Remarks at the

CRS seminar on The Changing Electric Power Sector: Transmission and Grid Modernization, December 9, 2016.

U.S. Department of Energy, Energy Transmission, Storage, and Distribution Infrastructure, April 2015, p. 2-40.

Government Accountability Office, Electricity:Federal Efforts to Enhance Grid Resilience, GAO-17-153, January

2017, p. 43.

U.S. Department of Energy, Transforming the Nation’s Electricity System: The Second Installment of the QER,

January 2017, p. 4-48.

See, for example: Senators Dianne Feinstein, Al Franken, Ron Wyden, and Harry Reid, letter to the Honorable

Cheryl LaFleur, Acting Chairman, Federal Energy Regulatory Commission, February 7, 2014, http://www.ferc.gov/

industries/electric/indus-act/reliability/chairman-letter-incoming.pdf.

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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 the 2007 National

Security Presidential Directive (NSPD) on National Continuity Policy, NSPD-51.92 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 operations93 and

continuity of government94 programs in order to ensure the preservation of our form of

government95 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 1988,96 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

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

2007. NSPD-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) . Original document available at https://www.fema.gov/pdf/about/org/ncp/nspd_51.pdf.

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

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

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

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

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

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

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

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

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

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

with continuity planners in the legislative and judicial branch.

53 Federal Register 47491; November 23, 1988.

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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.

U.S. Secret Service

(name redacted), Analyst in Homeland Security Policy

[redacted]@crs.loc.gov

(

, 7-....)

For more information, see CRS Report R44197, U.S. Secret Service: Selected Issues and

Executive and Congressional Responses.

Since 1865, the U.S. Secret Service (USSS) has investigated counterfeiting, and since 1901, at the

request of congressional leadership, has provided full-time presidential protection.

Congress has increased its oversight of the USSS due to concern about terrorism threats, several

security breaches, and misconduct of USSS personnel. A series of incidents has tarnished the

image of the USSS and may have potentially affected its operations. For example, on September

19, 2014, a person gained unauthorized entrance into the White House after climbing the fence.

On September 30, 2014, following a House Oversight and Government Reform Committee

hearing on the USSS, which addressed this breach and previous incidents97 it became public that

on September 16, 2014, a private security contractor at a federal facility, while armed, was

allowed to share an elevator with the President during a site visit, in violation of USSS security

protocols. On March 4, 2015, it was reported that two senior USSS special agents, including one

who was responsible for all aspects of White House security, disrupted the scene of an

investigation of a suspicious package during an elevated security condition at the White House

complex. It was further alleged that these two agents were under the influence of alcohol.

Both Congress and the USSS responded to the incidents. The USSS conducted a review of its

training of personnel and its technology, perimeter security, and operations.98 Congress conducted

a number of oversight hearings on the incidents and USSS policy. At the end of the 114th

Congress, one such hearing was conducted by the House Oversight and Government Reform

Committee.99 The purpose of this hearing was to examine allegations that USSS agents were not

receiving compensation for overtime, and review DHS IG reports addressing USSS’s protection

of sensitive material. Among the criticisms raised at the hearing were assertions that



the USSS’ investigative mission places an additional burden on USSS agents and

distracts from the Service’s protection mission,

the USSS suffers technology failures that cast doubts on the Service’s ability to

protect the nation’s financial infrastructure,

USSS agents are promoted to senior management positions despite alleged

misconduct, and

U.S. Congress, House Committee on Oversight and Government Reform, White House Perimeter Breach: New

Concerns about the Secret Service, 113th Cong., 2nd sess., September 30, 2014.

United States Secret Service Panel, Report from the United States Secret Service Protective Mission Panel to the

Secretary of Homeland Security, Washington, DC, December 15, 2014. The executive summary is the only

nonclassified portion of the report that is publicly available. The executive summary is available at http://www.dhs.gov/

sites/default/files/publications/14_1218_usss_pmp.pdf.

U.S. Congress, House Committee on Oversight and Government Reform, Oversight of the Secret Service, 114th

Cong., 2nd sess., November 15, 2016.

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

USSS senior leadership continues to withhold information pertaining to alleged

misconduct from the committee.100

Congress is likely to continue to pursue these USSS issues in the 115th Congress.

Federal Facility Security

(name redacted), Analyst in Homeland Security Policy

[redacted]@crs.loc.gov

(

, 7-....)

For more information, see CRS Report R43570, Federal Building and Facility Security:

Frequently Asked Questions.

The security of federal government buildings and facilities affects not only the daily operations of

the federal government but also the health, well-being, and safety of federal employees and the

public. Federal building and facility security is decentralized and disparate in approach, as

numerous federal entities are involved, and some buildings or facilities are occupied by multiple

federal agencies. The federal government is tasked with securing over 446,000 buildings and

facilities daily.

The September 2001 terrorist attacks, the September 2013 Washington Navy Yard shootings, and

the April 2014 Fort Hood shootings focused the federal government’s attention on building

security activities. This resulted in an increase in the security operations at federal facilities and

more intense scrutiny of how the federal government secures and protects federal facilities,

employees, and the visiting public.101

In general, federal facility security includes operations and policies that focus on reducing the

exposure of the facility, employees, and the visiting public to criminal and terrorist threats. Each

federal facility has unique attributes that reflect its individual security needs and the missions of

the federal tenants. According to the Department of Justice’s Office of Justice Programs (OJP),

there are approximately 20 federal law enforcement entities that provide facility security.102

Due to the large number and different types of federal facilities, there is no single security

standard that applies to every facility. There is, however, an interagency committee responsible

for providing a number of standards that address federal facility security. The Interagency

Security Committee’s (ISC) mission is to “safeguard U.S. nonmilitary facilities from all hazards

by developing state-of-the-art security standards in collaboration with public and private

homeland security partners.”103

Federal facility security is as diffuse as the number of law enforcement agencies securing them.

Individual facilities secured by the same law enforcement agency may be secured in different

manners based on specific security needs and threats. This makes it challenging to collect official

and comprehensive data on threats to or incidents occurring at federal facilities.

100

Ibid.

See, for example, U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, The Navy

Yard Tragedy: Examining Physical Security for Federal Facilities, 113th Cong., 1st sess., December 16, 2013, and U.S.

Congress, House Committee on Transportation and Infrastructure, Examining the Federal Protective Service: Are

Federal Facilities Secure?, 113th Cong., 2nd sess., May 21, 2014.

102

U.S. Department of Justice, Bureau of Justice Statistics, http://www.bjs.gov/content/pub/pdf/fleo08.pdf.

103

U.S. Department of Homeland Security, Interagency Security Committee, http://www.dhs.gov/about-interagencysecurity-committee.

101

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DHS State and Local Preparedness Grants

(name redacted), Analyst in Homeland Security Policy

[redacted]@crs.loc.gov

(

, 7-....)

For more information, see CRS Report R44669, Department of Homeland Security

Preparedness Grants: A Summary and Issues.

Congress has enacted legislation and appropriated grant funding to states and localities for

homeland security purposes since 1996.104 One of the first programs to provide this type of

funding was the Nunn-Lugar-Domenici Program which was established by Congress in the 1996

Department of Defense Reauthorization Act105 and provided assistance to over 150 cities for

biological, chemical, and nuclear security. Providing homeland security assistance to states and

localities was arguably spurred by the 1993 bombing of the World Trade Center in New York City

and the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City. Following the

September 11, 2001, terrorist attacks, Congress increased focus on state and local homeland

security assistance by, among other things, establishing the Department of Homeland Security

(DHS) and authorizing DHS to administer federal homeland security grant programs. 106

With the increase of international and domestic terrorist threats and attacks against the United

States following the end of the Cold War, and the termination of the old federal civil defense

programs, a number of policy questions arose regarding homeland security assistance programs.

The majority of these questions have not been completely addressed, even though Congress has

debated and enacted legislation that provides homeland security assistance to states and localities

since 1996.

Congressional debate continues on policy questions related to homeland security assistance for

states and localities. Some may contend there is a need for the Congress to conduct further

oversight hearings and legislate on policy issues related to DHS assistance to states and localities.

These potential issues include (1) the purpose and number of assistance programs; (2) the use of

grant funding; and (3) the funding level for the grant programs.

Generally, each grant program has a range of eligible activities. When Congress authorizes a

federal grant program, the eligible activities may be broad or specific depending on the statutory

language in the grant authorization. When grant funds are distributed through a competitive

process, the administering federal agency officials exercise discretion in the selection of grant

projects to be awarded funding within the range of eligible activities set forth by Congress.107

Some may argue the purpose and number of DHS grant programs have not been sufficiently

addressed. Specifically, should DHS provide more all-hazards assistance versus terrorism-focused

assistance? Does the number of individual grant programs result in coordination challenges and

deficient preparedness at the state and local level? Would program consolidation improve

domestic security? Finally, does the purpose and number of assistance programs affect the

administration of the grants?

104

For the purpose of this report, homeland security assistance programs are defined as Department of Homeland

Security (DHS) programs, or programs that were transferred to DHS, which provide funding to states, localities, tribes,

and other entities for security purposes; however, public safety and National Guard programs and funding are not

included in this report. Additionally, the term “homeland security program” was not used until 2002. Prior to this, the

term “domestic preparedness” was used to describe programs and activities that assisted states and localities to prepare

for possible terrorist attacks.

105

P.L. 104-106.

106

P.L. 107-296.

107

CRS Report R42769, Federal Grants-in-Aid Administration: A Primer, by (name redacted).

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Another issue Congress may address is how effectively DHS’s assistance to states and localities is

being spent. One way to review the use of program funding is to evaluate state and local

jurisdictions’ use of DHS’s assistance. When DHS announces annual state and locality homeland

security grant allocations, grant recipients submit implementation plans that identify how these

allocations are to be obligated. However, the question remains whether or not the grant funding

has been used in an effective way to enhance the nation’s homeland security.

Annual federal support, through the appropriations process, for these homeland security grant

programs is another issue Congress may want to examine considering the limited financial

resources available to the federal government. Specifically, is there a need for the continuation of

federal support for these programs, or should Congress reduce or eliminate funding? In the past

13 years, Congress has appropriated approximately $33 billion for state and local homeland

security assistance. Since the establishment of DHS in 2003, Congress appropriated a high total

of funding of $3.5 billion in FY2004, and the lowest appropriated amount was $1.4 billion in

FY2013.

Border Security and Trade

Southwest Border Issues

Drug Trafficking and the Southwest Border

Kristin M. Finklea, Specialist in Domestic Security ([redacted]@crs.loc.gov

, 7-....)

The United States is the world’s largest marketplace for illegal drugs and sustains a multi-billion

dollar market in illegal drugs.108 An estimated 27.1 million Americans (10.1% of the 12 and older

population) were current users of illicit drugs in 2015.109 The most recent National Drug Threat

Assessment Summary indicates that Mexican drug trafficking organizations continue to dominate

the U.S. drug market.110 The Drug Enforcement Administration (DEA) outlined this threat:

Mexican [transnational criminal organizations (TCOs)] remain the greatest criminal drug

threat to the United States; no other groups are currently positioned to challenge them....

By controlling lucrative smuggling corridors across the [Southwest border], Mexican

TCOs are able to introduce multi-ton quantities of illicit drugs into the United States on a

yearly basis. The poly-drug portfolio maintained by these Mexican TCOs consists

primarily of heroin, methamphetamine, cocaine, marijuana, and, to a lesser extent,

fentanyl.111

Mexican criminal networks either (1) transport or (2) produce and transport drugs north across the

United States-Mexico border. After being smuggled across the border by criminal networks, the

drugs are distributed and sold within the United States. The illicit proceeds may then be laundered

or smuggled south across the border. While drugs are the primary goods trafficked by the criminal

networks, those networks also generate income from other illegal activities, such as the

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

Current means within the past month. U.S. Department of Health and Human Services, Substance Abuse and Mental

Health Services Administration, Key Substance Use and Mental Health Indicators in the United States: Results from

the 2015 National Survey on Drug Use and Health, September 2016.

110

Drug Enforcement Administration, 2016 National Drug Threat Assessment Summary, November 2016.

111

Ibid., p. 1.

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smuggling of humans and weapons, counterfeiting and piracy, kidnapping for ransom, and

extortion.

One of the current domestic drug threats fueled, in part, by Mexican traffickers is heroin.112 Not

only has there been an increase in heroin use in the United States over the past several years, but

there has been a simultaneous increase in its availability. This availability is driven by a number

of factors, including increased production and trafficking of heroin by Mexican criminal

networks.113 Some Mexican farmers have reported abandoning marijuana cultivation in favor of

growing opium poppies; the switch may be partly due to the decline in wholesale prices of

marijuana in Mexico—which some claim is linked to increased marijuana legalization in the

United States—and an increase in U.S. heroin demand.114 Increases in Mexican heroin production

and its availability in the United States have been coupled with increased heroin seizures at the

Southwest border. Reportedly, these seizures increased by over 350% between 2008 and 2015.115

The 115th Congress may consider a number of options in attempting to reduce drug trafficking

from Mexico to the United States. For instance, Congress may question whether the Trump

Administration will continue or alter priorities set forth by the Obama Administration’s National

Southwest Border Counternarcotics Strategy, the overarching strategic goal of which was to

“[s]ubstantially reduce the flow of illicit drugs, drug proceeds, and associated instruments of

violence across the Southwest border.”116 Policymakers may also be interested in examining

various federal drug control agencies’ roles in reducing Southwest border trafficking. This could

involve oversight of the DEA and its initiatives such as the Organized Crime Drug Enforcement

Task Force (OCDETF) program, as well as the Office of National Drug Control Policy and its

National Drug Control Strategy and Budget, among others.

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 terrorist operations—including those controlled by

the FARC (Revolutionary Armed Forces of Colombia) in Colombia.117 While this is an issue with

a global scope, this section focuses specifically on the policies affected by movement of illicit

funds across the Southwest border.

As noted in the DEA’s National Drug Threat Assessment Summary¸ “the annual volume of illicit

proceeds generated in the United States is approximately $300 billion” and of that amount, “drug

sales generate an estimated 21 percent, or $64 billion.”118 Money from the traffickers’ illegal sale

112

For more information on heroin trafficking in the United States, see CRS Report R44599, Heroin Trafficking in the

United States, by (name redacted).

113

Drug Enforcement Administration, 2016 National Drug Threat Assessment Summary, November 2016, p. 42.

114

See, for example, Nick Miroff, “Tracing the U.S. Heroin Surge Back South of the Border as Mexican Cannabis

Output Falls,” The Washington Post, April 6, 2014.

115

Drug Enforcement Administration, 2016 National Drug Threat Assessment Summary, November 2016, p. 45.

116

Office of National Drug Control Strategy, National Southwest Border Counternarcotics Strategy, 2013, p. 4.

117

U.S. Department of State, 2016 International Narcotics Control Strategy Report: Volume II, Money Laundering and

Financial Crimes, March 2016.

118

Drug Enforcement Administration, 2016 National Drug Threat Assessment Summary, November 2016, p. 135.

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of drugs in the United States is moved across the border into Mexico, and these funds fuel the

drug traffickers’ criminal activities. This money is often not deposited directly into the U.S.

financial system; instead, it is illegally laundered through mechanisms such as bulk cash

smuggling of U.S. currency into Mexico and “repatriation of the funds into the United States via

couriers or armored vehicles.”119 Additionally, money may be moved through trade-based money

laundering or placed in financial institutions, cash-intensive front businesses, prepaid or stored

value cards, or money services businesses.120

The 115th Congress may examine interagency coordination to reduce the flow of illicit money

(and other goods) across the Southwest border. Various departments and agencies—including the

DEA, Federal Bureau of Investigation, U.S. Immigration and Customs Enforcement, U.S.

Customs and Border Protection, and the Financial Crimes Enforcement Network (FinCEN)—

share responsibility for combating drug-related activity and the flow of illicit proceeds both along

the Southwest border and throughout the United States. Many of these agencies are also

represented in Mexico, increasing U.S.-Mexican bilateral cooperation. Further, while some efforts

explicitly target money laundering and bulk cash smuggling, other investigations might also

uncover evidence of illicit proceeds. For instance, operations targeting southbound firearms

smuggling may intercept individuals smuggling not only weapons, but cash proceeds from illicit

drug sales as well.

Cross-Border Smuggling Tunnels

Kristin M. Finklea, Specialist in Domestic Security ([redacted]@crs.loc.gov

, 7-....)

Mexican traffickers rely on cross-border tunnels to smuggle illicit drugs—primarily marijuana—

from Mexico into the United States. At least 224 tunnels have been discovered along the

Southwest border since the 1990s,121 and some of the more recently discovered tunnels are highly

sophisticated. Early tunnels were rudimentary “gopher hole” tunnels dug on the Mexican side of

the border, traveling just below the surface, and popping out on the U.S. side as close as 100 feet

from the border. Slightly more advanced tunnels relied on existing infrastructure, which may be

shared by neighboring border cities such as Nogales, AZ, in the United States and Nogales,

Sonora, in Mexico. These interconnecting tunnels may tap into storm drains or sewage systems,

allowing smugglers to move drugs further and more easily than in tunnels they dug themselves.

The most sophisticated tunnels can have rail, ventilation, and electrical systems. In April 2016

authorities uncovered the longest drug smuggling tunnel yet. At over 800 yards, it was equipped

with railing, lighting, ventilation, and an elevator. Authorities seized over two thousand pounds of

cocaine and over eleven tons of marijuana.122

U.S. law enforcement uses various tactics to detect these cross-border tunnels. They may use

sonic equipment to detect the sounds of digging and tunnel construction and seismic technology

to detect blasts that may be linked to tunnel excavation. Another tool for tunnel detection is

119

U.S. Department of State, 2016 International Narcotics Control Strategy Report: Volume II, Money Laundering and

Financial Crimes, March 2016, p. 173.

120

According to the Department of the Treasury, a money services business is any person or entity engaging in

activities including exchanging currency; cashing checks; issuing, selling, or redeeming travelers’ checks, money

orders, or stored value cards; and transmitting money. For more information, see http://www.fincen.gov/

financial_institutions/msb/definitions/msb.html.

121

Drug Enforcement Administration, 2016 National Drug Threat Assessment Summary, November 2016, p. 27.

122

Department of Justice, U.S. Attorney’s Office, Southern District of California, “Feds Seize Longest Tunnel on

California-Mexico Border,” press release, April 20, 2016.

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ground penetrating radar.123 However, factors including soil conditions, tunnel diameter, and

tunnel depth can limit the effectiveness of this technology.

Despite these tools, U.S. officials have acknowledged that law enforcement currently does not

have technology that is reliably able to detect sophisticated tunnels, and authorities have

reportedly never found a tunnel with these technologies.124 Rather, tunnels are more effectively

discovered as a result of human intelligence and tips. U.S. officials have noted the value of U.S.Mexican law enforcement cooperation in detecting, investigating, and prosecuting the criminals

who create and use the cross-border tunnels.125 As a result, the 115th Congress may not only

consider how to best help U.S. law enforcement develop technologies that can keep pace with

tunneling organizations, but also examine whether existing bi-national law enforcement

partnerships are effective and whether they may be improved to enhance investigations of

transnational criminals. Policymakers may also question how prominently the issue of combating

cross-border smuggling tunnels may play within the larger border security framework.

Cargo Security

Lisa Sacco, Analyst in Illicit Drugs and Crime Policy ([redacted]@crs.loc.gov

, 7-....)

For more information, see CRS Report R43014, U.S. Customs and Border Protection: Trade

Facilitation, Enforcement, and Security, and CRS Report R43014, U.S. Customs and Border

Protection: Trade Facilitation, Enforcement, and Security.

U.S. Customs and Border Protection (CBP), within DHS, is America’s primary trade enforcement

agency, and CBP seeks to balance the benefits of efficient trade flows against the demand for

cargo security and the enforcement of U.S. trade laws. Thus, the overarching policy question with

respect to incoming cargo is how to minimize the risk that weapons of mass destruction, illegal

drugs, and other contraband will enter through a U.S. port of entry (POE), while limiting the costs

and delays associated with such enforcement.

CBP’s current trade strategy emphasizes “risk management” and a “multi-layered” approach to

enforcement.126 With respect to cargo security, risk management means that CBP segments

importers into higher and lower risk pools and focuses security procedures on higher-risk flows,

while expediting lower-risk flows. CBP’s “multi-layered approach” means that enforcement

occurs at multiple points in the import process, beginning before goods are loaded in foreign ports

and continuing after the goods have been admitted into the United States. In recent years,

congressional attention to cargo security has focused on one of CBP’s primary tools for risk

management, the Customs-Trade Partnership Against Terrorism (C-TPAT) trusted trader program,

and on the statutory requirement that 100% of incoming maritime cargo containers be scanned

123

For more information, see http://www.geophysical.com/militarysecurity.htm.

Ron Nixon, “As Donald Trump Calls for Wall on Mexican Border, Smugglers Dig Tunnels,” The New York Times,

September 1, 2016. See also the statement of Laura E. Duffy, U.S. Attorney, Southern District of California, U.S.

Department of Justice, before the U.S. Congress, Senate United States Senate Caucus on International Narcotics

Control, Illegal Tunnels on the Southwest Border, 112th Cong., 1st sess., June 15, 2011.

125

Ibid.

126

See U.S. Customs and Border Patrol, Vision and Strategy, 2020: U.S. Customs and Border Protection Strategic

Plan; and U.S. Congress, Senate Committee on Appropriations, Subcommittee on Department of Homeland Security,

Strengthening Trade Enforcement to Protect American Enterprise and Grow American Jobs, 113th Cong., 2nd sess.,

July 16, 2014, Testimony of CBP Office of International Trade Acting Assistant Commissioner Richard DiNucci. The

written testimony is available at https://www.dhs.gov/news/2014/07/16/written-testimony-cbp-senate-committeeappropriations-subcommittee-homeland-security.

124

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abroad prior to being loaded on U.S.-bound ships. Congress also faces perennial questions about

spending levels for POE infrastructure and personnel.

Customs-Trade Partnership Against Terrorism (C-TPAT)

Lisa Sacco, Analyst in Illicit Drugs and Crime Policy ([redacted]@crs.loc.gov

, 7-....)

The Customs-Trade Partnership Against Terrorism (C-TPAT) is a voluntary public-private and

international partnership that permits certain import-related businesses to register with CBP and

perform security tasks prescribed by the agency. In return C-TPAT members are recognized as

low-risk actors and are eligible for expedited import processing and other benefits.127 CBP

established C-TPAT in November 2001 following the September 11, 2001 (9/11) terrorist attacks,

and the program was authorized as part of the Security and Accountability for Every Port Act of

2006 (SAFE Port Act, P.L. 109-347).

Proponents of C-TPAT favor increased participation in the program as a way to facilitate legal

trade flows.128 Some businesses, however, have criticized the program for providing inadequate

membership benefits, especially in light of the time and financial investments required to become

certified as C-TPAT members.129

Yet there may be no easy way to substantially expand C-TPAT benefits. In the case of land ports,

the primary trusted trader benefit is access to dedicated lanes where wait times may be shorter

and more predictable. However, adding lanes at land ports is difficult because many of them are

located in urban areas with limited space for expansion and with limited ingress and egress

infrastructure.130 In the case of maritime imports, the primary trusted trader benefit is a reduced

likelihood of secondary inspection.131 Only about 6% of all maritime containers are selected for

such an inspection,132 so C-TPAT membership may offer little practical advantage in this regard.

In February 2017, the Government Accountability Office (GAO) issued a report outlining

challenges in CBP management of the C-TPAT program. GAO recommended that CBP develop:

“(1) standardized guidance for field offices regarding the tracking of information on security

127

See U.S. CBP, “C-TPAT: Customs-Trade Partnership Against Terrorism,” http://www.cbp.gov/border-security/

ports-entry/cargo-security/c-tpat-customs-trade-partnership-against-terrorism. Commercial truck drivers who are

Customs-Trade Partnership Against Terrorism (C-TPAT) members also are eligible to join the Free and Secure Trade

System (FAST), which permits expedited processing at land ports of entry; and C-TPAT members who are residents of

the United States and are known importers that have businesses physically established, located, and managed within the

United States may be eligible for the Importer Self-Assessment Program (ISA), which exempts importers from certain

post-entry enforcement audits. See ibid., and CBP FAST: Free and Secure Trade for Commercial Vehicles,

http://www.cbp.gov/travel/trusted-traveler-programs/fast.

128

See for example, U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Evaluating

Port Security: Progress Made and Challenges Ahead, 113th Cong., 2nd sess. June 4, 2014.

129

See for example, U.S. Congress, House Committee on Ways and Means, Subcommittee on Trade, Supporting

Economic Growth and Job Creation through Customs Trade Modernization, Facilitation, and Enforcement, 112 th

Cong., 2nd sess. May 17, 2012.

130

See U.S. Department of Commerce, Draft Report: Improving Economic Outcomes by Reducing Border Delays,

Facilitating the Vital Flow of Commercial Traffic Across the US-Mexican Border, Washington, DC, 2008,

http://grijalva.house.gov/uploads/

Draft%20Commerce%20Department%20Report%20on%20Reducing%20Border%20Delays%20Findings%20and%20

Options%20March%202008.pdf

131

Secondary inspection may include both nonintrusive imaging (NII) scans and/or physical inspection, in which the

container may be opened and unpacked so that materials can be examined.

132

Based on data provided to CRS by CBP on April 28, 2014.

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validations, and (2) a plan with milestones and completion dates to fix the Dashboard so the CTPAT program can produce accurate data on C-TPAT member benefits.”133

100% Scanning Requirement

(nameredacted)

, Specialist in Transportation Policy ([redacted]@crs.loc.gov

, 7-....),

Sacco, Analyst in Illicit Drugs and Crime Policy ([redacted]@crs.loc.gov

, 7-....)

and Lisa

Section 1701 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L.

110-53) requires that all imported marine containers be scanned by nonintrusive imaging

equipment and radiation detection equipment at a foreign loading port by July 1, 2012, unless

DHS can demonstrate it is not feasible, in which case the deadline can be extended by two years

on a port-by-port basis.

DHS has sought a blanket extension for all ports, citing numerous challenges to implementing the

100% scanning requirement at overseas ports.134 In a report to Congress on the program, CBP

identified three main obstacles to implementing 100% scanning at all foreign ports.135 First, 100%

scanning requires significant host state and private sector cooperation, but some foreign

governments and business groups do not support 100% scanning. Second, 100% scanning would

be logistically difficult. Initial pilots were deployed in relatively low-volume ports with natural

chokepoints, but many cargo containers pass through large volume ports with more varied port

architectures. Third, 100% scanning would be costly. In February 2012, the Congressional Budget

Office (CBO) estimated that 100% scanning at foreign ports would cost an average of $8 million

per shipping lane to implement, or a total of about $16.8 billion for all 2,100 shipping lanes.136

Port operators and foreign partners also absorb additional costs associated with fuel and utilities,

staffing, and related expenses. In a letter requesting renewal of the two-year extension, then-DHS

Secretary Jeh Johnson stated,

I have personally reviewed our current port security and DHS’s short term and long term

ability to comply with 100% scanning requirement. Following this review, I must report,

in all candor, that DHS’s ability to fully comply with this unfunded mandate of 100%

scanning, even in the long term, is highly improbable, hugely expensive, and in our

judgment, not the best use of taxpayer resources to meet this country’s port security and

homeland security needs.137

133

Dashboard is a data reporting tool. U.S. Government Accountability Office, Supply Chain Security: Providing

Guidance and Resolving Data Problems Could Improve Management of the Customs-Trade Partnership Against

Terrorism Program, GAO-17-84, February 2017, http://www.gao.gov/assets/690/682620.pdf.

134

Testimony of Janet Napolitano, Secretary of DHS, before the Committee on Commerce, Science, and

Transportation, U.S. Senate, hearing “Transportation Security Challenges Post 9-11,” December 2, 2009.

135

See CBP, Report to Congress on Integrated Scanning System Pilots (Security and Accountability for Every Port Act

of 2006, §231), ), http://www.apl.com/security/documents/sfi_finalreport.pdf. Also see U.S. GAO, Supply Chain

Security: Container Security Programs Have Matured, but Uncertainty Persists over the Future of 100 Percent

Scanning, GAO-12-422T, February 7, 2012, http://www.gao.gov/assets/590/588253.pdf. Also see letter from Janet

Napolitano, Secretary of Homeland Security, to Hon. Joseph I. Lieberman, Senator, May 2, 2012.

136

Spoken response by Kevin McAleenan, Acting Assistant Commissioner, Office of Field Operations, U.S. CBP, U.S.

Department of Homeland Security, before the Border and Maritime Security Subcommittee of the Homeland Security

Committee, U.S. House, hearing “Balancing Maritime Security and Trade Facilitation: Protecting Our Ports, Increasing

Commerce and Securing the Supply Chain—Part I,” February 7, 2012. CBP reports that the U.S. government spent a

total of about $120 million during the first three years of the Secure Freight Initiative; CBP, Report to Congress on

Integrated Scanning System Pilots, p. 13.

137

Letter from DHS Secretary Jeh Johnson to Senator Carper, Chairman of the Senate Committee on Homeland

Security and Governmental Affairs, May 5, 2014.

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In an October 2015 hearing, DHS officials reiterated their opposition to a 100% scanning strategy

in favor of a risk-based and layered security strategy.138 Major U.S. trading partners also oppose

100% scanning. The European Commission has determined that 100% scanning is the wrong

approach, favoring a multilayered risk management approach to inspecting cargo.139 CBP has

tested the feasibility of scanning all U.S.-bound containers at several overseas ports140 and

identified numerous operational, technical, logistical, financial, and diplomatic obstacles,141

including opposition from host government officials.142 In a July 2016 hearing, DHS officials

restated their opposition to pursuing a 100% scanning strategy.143 One-hundred-percent scanning

conflicts with DHS’s general approach to risk management, which seeks to focus scarce

inspection resources on the highest-risk containers. By scanning a smaller number of containers,

DHS may be able to devote additional resources to each individual scan. This alternative

approach is considered important because reviewing the scans is labor-intensive, and scanning

fewer containers may allow DHS to subject individual scans to greater scrutiny, and to maintain a

lower threshold for opening containers with questionable scanning images.

If illicit cargo is estimated to be limited to less than 1% of incoming containers, as CBP believes

to be the case, an alternative enforcement strategy may be to focus on a smaller set of only the

likeliest containers. This approach would emphasize risk-based scanning along with investment in

CBP intelligence to improve targeting, and/or increase CBP personnel, which would allow ports

to conduct a larger number of targeted special enforcement operations.

Transportation Worker Identification Credential (TWIC)

(nameredacted)

, Specialist in Transportation Policy ([redacted]@crs.loc.gov

, 7-....)

In January 2007, TSA and the Coast Guard issued a final rule implementing the Transportation

Worker Identification Credential (TWIC) at U.S. ports.144 Longshoremen, port truck drivers,

railroad workers, merchant mariners, and other workers at a port must apply for a TWIC card to

obtain unescorted access to secure areas of port facilities or vessels.145 The card was authorized

under the Maritime Transportation Security Act of 2002 (MTSA; §102 of P.L. 107-295). As of

October 2015, the population of TWIC holders was approximately 2.1 million.146 The card must

be renewed every five years.

138

House Committee on Transportation and Infrastructure, Subcommittee on Coast Guard and Maritime

Transportation, Hearing, The Prevention of and Response to the Arrival of a Dirty Bomb at a U.S. Port, October 27,

2015. In particular, see the oral and written testimonies of officials from CBP and the Domestic Nuclear Detection

Office.

139

European Commission Staff Working Paper, Secure Trade and 100% Scanning of Containers, February 2010,

http://ec.europa.eu/taxation_customs/resources/documents/common/whats_new/sec_2010_131_en.pdf.

140

This test was conducted as per Section 231 of the SAFE Port Act (P.L. 109-347).

141

CBP, Report to Congress on Integrated Scanning System Pilots (Security and Accountability for Every Port Act of

2006, §231), http://www.apl.com/security/documents/sfi_finalreport.pdf.

142

Ibid, Appendix A.

143

House Committee on Transportation and Infrastructure, Subcommittee on Coast Guard and Maritime

Transportation, Hearing, An Examination of the Maritime Nuclear Smuggling Threat and Other Port Security and

Smuggling Risks in the U.S., July 7, 2016.

144

72 Federal Register, 3492-3604, January 25, 2007. Codified at 49 C.F.R. §1572.

145

A TWIC does not entitle a card holder to access a maritime facility—the facility owner has the authority and

responsibility to determine if the person has a legitimate business purpose for entering its facility.

146

DHS, Office of Inspector General, “TWIC Background Checks are Not as Reliable as They Could Be,” OIG-16128, September 1, 2016, p. 2.

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TSA conducts a security threat assessment of each worker before issuing a card. The security

threat assessment uses the same procedures and standards established by TSA for truck drivers

carrying hazardous materials, including examination of the applicant’s criminal history,

immigration status, and possible links to terrorist activity to determine whether a worker poses a

security threat. A worker pays a fee of about $130 that is intended to cover the cost of

administering the cards. The card uses biometric technology for positive identification. Terminal

operators were to deploy card readers at the gates to their facilities, so that a worker’s fingerprint

template would be scanned each time he or she enters the port area and matched to the data on the

card.

Finding a card reader that worked reliably in a harsh marine environment has proven difficult. On

August 23, 2016, the Coast Guard issued a final rule requiring that only the highest-risk maritime

facilities install card readers, generally facilities handling dangerous cargoes in bulk or large

passenger vessels (> 1,000 passengers). This limited the facilities required to have card readers to

about 525 facilities (about 16% of the roughly 3,200 maritime facilities regulated under MTSA).

Other facilities, including those handling containerized cargo, would continue to use the TWIC as

a “flash pass,” but the biometric data on the card would not be used to positively identify the

worker. Potential problems with this approach were highlighted by the February 2016

announcement that federal investigators uncovered a “document mill” producing fraudulent

TWIC cards in Los Angeles.147 The final rule becomes effective on August 23, 2018. Currently,

the Coast Guard performs spot checks with hand-held biometric readers while conducting port

security inspections.

GAO and Inspector General audits have been highly critical of how the TWIC has been

implemented. A 2013 GAO audit found that the results of a pilot test of card readers should not be

relied upon for developing regulations on card reader requirements because they were

incomplete, inaccurate, and unreliable.148 This audit was discussed at a hearing by the House

Subcommittee on Government Operations on May 9, 2013,149 and by the House Subcommittee on

Border and Maritime Security on June 18, 2013.150 Another 2013 GAO audit examined TSA’s

Adjudication Center (which performs security threat assessments on TWIC applicants and other

transportation workers), and recommended steps the agency could take to better measure the

center’s performance.151 A 2011 GAO audit found internal control weaknesses in the enrollment,

background checking, and use of the TWIC card at ports, which were said to undermine the

effectiveness of the credential in screening out unqualified individuals from obtaining access to

port facilities.152 Similarly, a 2016 Inspector General audit found that TSA appears to be more

concerned with customer service in administering the cards (e.g., issuing them in a timely

147

IHS Fairlplay Daily News, “Fake TWIC Cards Prompt U.S. Port Security Concerns,” February 10, 2016.

U.S. Government Accountability Office, Transportation Worker Identification Credential—Card Reader Pilot

Results Are Unreliable; Security Benefits Need to Be Reassessed, GAO-13-198, May 8, 2013.

149

U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Government

Operations, Federal Government Approaches to Issuing Biometric IDs, 113th Cong., 1st sess., May 9, 2013.

150

U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security, Threat,

Risk and Vulnerability: the TWIC Program, 113th Cong., 1st sess., June 18, 2013.

151

U.S. Government Accountability Office, Transportation Security: Action Needed to Strengthen TSA’s Security

Threat Assessment Process, GAO-13-629, July 19, 2013.

152

U.S. Government Accountability Office, Transportation Worker Identification Credential—Internal Control

Weaknesses Need to Be Corrected to Help Achieve Security Objectives, May 2011, GAO-11-657.

148

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manner) than a careful scrutiny of applicants.153 For instance, it found that applicants believed to

be providing fraudulent identification documents were nevertheless issued a TWIC.

The 114th Congress enacted the Essential Transportation Worker Identification Credential

Assessment Act (P.L. 114-278) which requires TSA to improve its vetting process, including

fraud detection, and requires DHS to commission an outside organization to conduct a

comprehensive assessment of the benefits and costs of the TWIC card.

Immigration Inspections at Ports of Entry (POEs)154

For more information, see CRS Report R43356, Border Security: Immigration Inspections at

Ports of Entry.

At ports of entry (POEs), Customs and Border Protection’s (CBP’s) Office of Field Operations

(OFO) is responsible for conducting immigration, customs, and agricultural inspections of

travelers seeking admission to the United States. The vast majority of people entering through

U.S. ports are U.S. citizens, U.S. legal permanent residents (LPRs),155 and legitimate visitors.

Thus, CBP officers’ goals are complex in that they are tasked with identifying and intercepting

dangerous or unwanted (high-risk) people or materials, while also facilitating access for

legitimate (low-risk) travelers. The Drug Enforcement Administration has cited the security risks

present at POEs, noting that while transnational criminal organizations use a variety of methods

to bring drugs across the border, “the most common method ... involves transporting drugs in

vehicles through U.S. ports of entry (POEs).”156 Transnational criminal organizations also

transport drugs using commercial trains and busses, which too transit through the POEs.157

Travelers seeking admission at POEs are required to present a travel document, typically a

passport or its equivalent158 and (for non-U.S. citizens) either a visa authorizing permanent or

temporary admission to the United States or proof of eligibility for admission through the Visa

Waiver Program (VWP).159 Foreign nationals are subject to security-related and other background

checks prior to being issued a visa or to receiving travel authorization for the VWP. CBP officers

at U.S. POEs verify the authenticity of travelers’ documents and that each document belongs to

the person seeking admission (i.e., confirm the traveler’s identity). Identity confirmation relies in

part on biometric checks against the Department of Homeland Security’s (DHS) Automated

Biometric Identification System (IDENT) database (see “Entry-Exit System” section, below).

Database interoperability allows CBP officers to check travelers’ records against other biographic

and biometric databases managed by the Departments of Justice, State, and Defense.

The concentration of inspection activity at the border—for travelers and imports—means that

sufficient resources must be present in order to minimize congestion and ensure efficient

153

DHS, Office of Inspector General, “TWIC Background Checks are Not as Reliable as They Could Be,” OIG-16128, September 1, 2016

154

Prepared by Carla Argueta, Analyst in Immigration Policy.

155

Legal permanent residents (LPRs) are foreign nationals authorized to live lawfully and permanently within the

United States. See CRS Report RL32235, U.S. Immigration Policy on Permanent Admissions, by (name redacted) .

156

Drug Enforcement Administration, National Drug Threat Assessment Summary 2016, DEA-DCT-DIR-001-17,

November 2016.

157

Ibid.

158

For more information on other acceptable documents, please see U.S. Customs and Border Protection, “Western

Hemisphere Travel Imitative,” https://www.cbp.gov/travel/us-citizens/western-hemisphere-travel-initiative.

159

For a fuller discussion of travel requirements, see CRS Report RL31381, U.S. Immigration Policy on Temporary

Admissions and CRS Report RL32221, Visa Waiver Program.

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operations. CBP faces pressure to provide for the rapid processing of individuals crossing the

border and must balance this demand with its goal of interdicting threats. Moreover, investment

in POEs arguably has not kept pace with rapid growth in international travel and trade, and there

may be inadequate infrastructure to manage flows at some ports of entry (also see “Port of Entry

(POE) Infrastructure and Personnel” section, below).160

In an effort to streamline admissions without compromising security, CBP has implemented

several trusted traveler programs. Trusted traveler programs require applicants to clear criminal

and national security background checks prior to enrollment, to participate in an in-person

interview, and to submit fingerprints and other biometric data.161 In return, trusted travelers are

eligible for expedited processing at POEs. CBP currently operates three main trusted traveler

programs:



Global Entry, which allows expedited screening of passengers arriving at 45 U.S.

airports and 14 preclearance airports;162

NEXUS, which is a joint U.S.-Canadian program for land, sea, and air crossings

between the United States and Canada, including through dedicated vehicle lanes

at 18 land ports;163 and

the Secure Electronic Network for Travelers Rapid Inspection (SENTRI), which

allows expedited screening at land POEs on the U.S.-Mexican border, including

through dedicated vehicle lanes at 10 land ports.164

Port of Entry (POE) Infrastructure and Personnel165

In light of the substantial flow of cargo and travelers at ports of entry, one perennial issue for

Congress is how to allocate resources to Office of Field Operations (OFO) for POE personnel and

infrastructure. Some in Congress have argued that inadequate personnel levels and infrastructure

have contributed to costly delays and unpredictable wait times at ports of entry, particularly at

land ports on the U.S.-Mexico border.166

160

For example, Representative Jackson Lee stated, “our ports of entry are aging and their infrastructure can no longer

accommodate the volume of trucks, vehicles, and pedestrians that cross every day, resulting in increasing wait times.”

U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security, Port of

Entry Infrastructure: How does the Federal Government Prioritize Investments?, 113th Cong., 2nd sess., July 16, 2014.

161

Individuals are ineligible to participate in a trusted traveler program if they are inadmissible to the United States;

provide false or incomplete information on trusted traveler applications; have been convicted of a criminal offense,

have outstanding warrants, or are subject to an investigation; or have been found in violation of customs, immigration,

or agriculture laws. Trusted travel enrollees are re-checked against certain security databases every 24 hours, every

time they enter the United States, and every time they renew their trusted traveler membership.

162

U.S. airports include airports in U.S. territories. Preclearance airports have airports in other countries, where CBP

officers are placed in order to inspect travelers prior to boarding U.S.- bound flights. U.S. Customs and Border

Protection, “Airports with Global Entry Kiosks,” https://www.cbp.gov/travel/trusted-traveler-programs/global-entry/

locations; U.S. Customs and Border Protection, “Preclearance Locations,” https://www.cbp.gov/border-security/portsentry/operations/preclearance.

163

U.S. Customs and Border Protection, “NEXUS Land Border Crossings,” https://www.cbp.gov/travel/trustedtraveler-programs/nexus/land-border-crossings.

164

U.S. Customs and Border Protection, Report on Business Transformation Initiatives, September 2016.

165

Prepared by Carla Argueta, Analyst in Immigration Policy.

166

See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime

Security, Using Technology to Facilitate Trade and Enhance Security at Our Ports of Entry, 112th Cong., 2nd sess.,

May 1, 2012. On border wait times, also see GAO, CBP Action Needed to Improve Wait Time Data and Measure

Outcomes of Trade Facilitation Effort, GAO-13-603, July 24, 2013.

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CBP’s front-line enforcement personnel at POEs include CBP officers and agriculture specialists.

In general, since 2004, Congress has invested more heavily in enforcement personnel between

POEs (i.e., U.S. Border Patrol agents) than in law enforcement personnel at POEs (i.e., CBP

officers).167 However, the Homeland Security Appropriations Act, 2014 (P.L. 113-76)

appropriated $256 million to increase the number of CBP officers at POEs by no fewer than 2,000

by the end of FY2015. CBP has yet to fully fill these positions due to challenges with its ability to

recruit, hire, and retain personnel. Some recruitment issues include competition for personnel

with other law enforcement agencies, the remote and undesirable locations of some positions, and

a long and rigorous hiring process.168 However, CBP reports that it has taken some steps to

improve its recruitment, hiring, and retention processes.169

Congress created pilot programs that allow CBP to accept donations from stakeholders and/or to

enter into reimbursable services agreement with them as a way to address the issues surrounding

the balance of trade and travel facilitation with security protections.170 The Donations Acceptance

Program (DAP) allows CBP and the U.S. General Services Administration (GSA) to accept

donations from private and public sector entities in the form of real property, personal property,

and nonpersonal services.171 Donations may be used for activities associated with the

construction, alteration, operations, or maintenance of new or existing POEs.172 The

Reimbursable Services Program (RSP) enables CBP and private or public sector entities to

partner in order to fund improvements in border facilities and port services, including hiring

additional CBP officers and underwriting overtime hours.173 These programs provide CBP with

alternative sources of funding outside of the traditional congressional appropriations process.

Entry-Exit System174

Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA, P.L. 104-208, Div. C) required the Secretary of the DHS (formerly the Attorney

General), to develop an automated entry and exit control system that would collect records of

arrivals and departures and allow DHS to use these data to identify nonimmigrants175 who remain

167

Staffing for enforcement between POEs almost doubled from FY2004 to FY2016 (increasing from 10,819 to

19,828), while staffing at POEs increased just 27% during this period (from 18,110 to 22,910). U.S. Customs and

Border Protection Office of Congressional Affairs in January 2013 and U.S. Customs and Border Protection, Snapshot:

A Summary of CBP Facts and Figures, February 2016.

168

U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security, Keeping

Pace with Trade, Travel, and Security: How Does CBP Prioritize and Improve Staffing and Infrastructure?, testimony

by Office of Administration Assistant Commissioner Eugene Schied, CBP Human Resources Management Assistant

Commissioner Linda Jacksta, and CBP Office of Field Operations Deputy Assistant Commissioner John Wagner, 114th

Cong., 2nd sess., April 19, 2016.

169

Ibid.

170

The programs were first created under Section 559 of the Consolidated Appropriations Act, 2014 (P.L. 113-76) and

were later authorized through the Cross-Border Trade Enhancement Act of 2016 (P.L. 114-279).

171

For more information see https://www.cbp.gov/border-security/ports-entry/resource-opt-strategy/public-privatepartnerships/donation-acceptance-program/program-and-process.

172

This includes land acquisition, design, and the deployment of equipment and technologies. U.S. Customs and

Border Protection, Section 559 Donation Acceptance Authority: Proposal Evaluation Procedures and Criteria

Framework, 2014.

173

For more information see https://www.cbp.gov/border-security/ports-entry/resource-opt-strategy/public-privatepartnerships/reimbursable-services-program/program-and-partners.

174

Prepared by Carla Argueta, Analyst in Immigration Policy.

175

Nonimmigrants are foreign nationals who have been admitted to the United States temporarily and for a specific

purpose.

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in the United States beyond the periods of their visas. Congress amended the system’s

requirements and deadlines on several occasions since then, including requiring the entry-exit

system to contain biometric technology and to be fully interoperable with the Departments of

Justice and State’s databases. The entry-exit system, however, remains incompletely

implemented.176

The completion of the exit component of the system has been a persistent subject of

congressional concern. No exit data are collected from persons leaving through southern border

land POEs; and data collection at other POEs is limited to biographic data, is not always collected

from a machine-readable document, and relies on information sharing with Canada and with air

and sea carriers. CBP reportedly believes that for the purpose of exit tracking, biographic

information sharing is cost effective.177 At the same time, CBP has also argued that strengthened

biographic data collection is a necessary precursor to effective biometric data collection, and it

views a biometric system as a desirable long-term goal for the entry-exit system.178 Furthermore,

CBP has implemented various pilot programs at select POEs designed to test new technologies to

verify travelers’ identities.179

Enforcement Between Ports of Entry (POEs)180

For more information, see CRS Report R42138, Border Security: Immigration Enforcement

Between Ports of Entry.

Between POEs, CBP’s U.S. Border Patrol is responsible for enforcing U.S. immigration law and

other federal laws along the border and for preventing all unlawful entries into the United States,

including entries of terrorists, unauthorized migrants, instruments of terrorism, narcotics, and

other contraband. The Border Patrol, in the course of discharging its duties, patrols 7,494 miles of

U.S. international borders with Mexico and Canada and the coastal waters around Florida and

Puerto Rico.

With support from Congress, CBP—and its predecessor agency the Immigration and

Naturalization Service (INS)—has invested in border security personnel, fencing and

infrastructure, and surveillance technology since the 1980s, with CBP’s current budget totaling

$13.3 billion in FY2016.181 However, some Members of Congress have raised questions about

whether CBP’s investments at the border have been effective.182 More recently, the Trump

176

For more information, see U.S. Department of Homeland Security, Comprehensive Biometric Entry/Exit Plan, April

2016.

177

Testimony of DHS Assistant Secretary David Heyman, U.S. Congress, House Committee on Judiciary,

Implementation of an Entry-Exit System: Still Waiting After All These Years, 113th Cong., 1st sess., November 13, 2013.

Hereinafter: Heyman Testimony, 2013.

178

See for example Testimony of CBP Deputy Assistant Commissioner John Wagner, U.S. Congress, House

Committee on Oversight and Government Affairs, Subcommittee on National Security, Border Security Oversight,

Part III: Border Crossing Cards and B1/B2 Visas, 113th Cong., 1st sess., November 14, 2013.

179

For more information, see https://www.cbp.gov/travel/biometric-security-initiatives.

180

Prepared by Carla Argueta, Analyst in Immigration Policy.

181

For a fuller discussion of FY2016 appropriations, see CRS Report R44215, DHS Appropriations FY2016: Security,

Enforcement and Investigations, coordinated by (name redacted) .

182

See for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime

Security, A Study in Contrasts: House and Senate Approaches to Border Security, 113th Cong., 1st sess., July 23, 2013.

The Border Patrol published a national strategy for controlling U.S. borders in May 2012, building on three earlier

strategies published between 1994 and 2005. The new strategy describes the Border Patrol’s approach to risk

management and to striking a balance among its traditional emphasis on preventing unauthorized migration and its

(continued...)

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Administration has shown interest in increasing resources on the Southwest border. For instance,

President Trump signed Executive Order 13767 on January 25, 2017, calling for the immediate

planning, designing, and construction of a “physical wall” along the Southwest border183 and the

hiring of an additional 5,000 Border Patrol agents.184

Congress also has raised questions about how to measure border security. The CBP has used

several different border security metrics that focused on border enforcement outputs, such as the

number of migrants apprehended, the migrant interdiction rate, and the recidivism rate

(previously removed migrants that re-attempt to cross the border without authorization). These

metrics all have limitations. For instance, it is difficult to separate the effects of border security

efforts from other factors, such as the economic, political, and social realities present in migrants’

home countries and the United States. Most recently, CBP has used statistical modeling to

estimate a new border security metric, the level of successful unauthorized entry of migrants into

the United States. This metrics seeks to describe the flow of migrants into the United States but

may not directly speak to border security effectiveness.185

Congress may also question the relative priority attached to the southern and northern borders.

While the Southwest border has experienced more unauthorized immigration, some security

experts have warned that the northern border may represent a more important point of

vulnerability when it comes to terrorism and related threats to homeland security—especially in

light of the more limited enforcement resources deployed there.186

Aviation Security

(name redacted), Specialist in Aviation Policy

[redacted]@crs.loc.gov

(

, 7-....

)

For more information, see CRS Report RL33512, Transportation Security: Issues for the

115th Congress, by (name redacted), (name redacted), and (name redacted)

Following the 9/11 terrorist attacks, Congress took swift action to create the Transportation

Security Administration (TSA), federalizing all airline passenger and baggage screening functions

and deploying significantly increased numbers of armed air marshals on commercial passenger

flights. Despite the extensive focus on aviation security for more than a decade, a number of

challenges remain, including



effectively screening passengers, baggage, and cargo for explosives threats;

(...continued)

post-9/11 priority missions of preventing the entry of terrorists and terrorist weapons, along with the recent U.S. focus

on combating transnational criminal organizations. The strategy does not describe operational plans or address the

interaction among the Border Patrol and other federal agencies (including other parts of DHS) with responsibilities at

the border.

183

There are currently approximately 654 miles of border fencing along the southwest border with Mexico. U.S.

Government Accountability Office, Southwest Border Security: Additional Actions Needed to Better Assess Fencing’s

Contributions to Operations and Provide Guidance for Identifying Capability Gaps, GAO-17-331, February 2017.

184

Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” 82 Federal Register 87938797, January 25, 2017.

185

For more information, see CRS Report R44386, Border Security Metrics Between Ports of Entry and John W.

Bailey, Sarah K. Burns, and David F. Eisler, Assessing Southwest Border Security, Institute for Defense Analysis, May

2016.

186

See, e.g., U.S. Government Accountability Office, Border Security: Enhanced DHS Oversight and Assessment of

Interagency Coordination is Needed for the Northern Border, GAO-11-97, December 2010. Also see CRS Report

R42969, Border Security: Understanding Threats at U.S. Borders, by (name redacted) and (name redacted) .

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Selected Homeland Security Issues in the 115th Congress



developing effective risk-based methods for screening passengers and others with

access to aircraft and sensitive areas;

exploiting available intelligence information and watchlists to identify

individuals who pose potential threats to civil aviation;

effectively responding to security threats at airports and screening checkpoints;

developing effective strategies for addressing aircraft vulnerabilities to shoulderfired missiles and similar weapons; and

addressing the potential security implications of unmanned aircraft operations in

domestic airspace.

Explosives Screening Strategy for the Aviation Domain

The Aviation and Transportation Security Act (ATSA; P.L. 107-71) mandated 100% screening of

all checked baggage placed on domestic passenger flights and on international passenger flights

to and from the United States. In addition, the Implementing the 9/11 Commission

Recommendations Act of 2007 (P.L. 110-53) mandated the physical screening of all cargo placed

on passenger flights. Unlike passenger and checked baggage screening, TSA does not routinely

perform physical inspections of air cargo. Rather, TSA satisfies this mandate through the

Certified Cargo Screening Program. Under the program, manufacturers, warehouses, distributors,

freight forwarders, and shippers carry out screening inspections using TSA-approved

technologies and procedures both at airports and at off-airport facilities in concert with certified

supply-chain security measures and chain of custody standards.

Internationally, TSA works with other governments, international trade organizations, and

industry to assure that all U.S.-bound and domestic cargo carried aboard passenger aircraft meets

the requirements of the mandate. Additionally, TSA works closely with Customs and Border

Protection (CBP) to carry out risk-based targeting of cargo shipments, including use of the CBP

Advance Targeting System-Cargo (ATS-C), which assigns risk-based scores to inbound air cargo

shipments to identify shipments of elevated risk. Originally designed to combat drug smuggling,

ATS-C has evolved over the years, particularly in response to the October 2010 cargo aircraft

bomb plot that originated in Yemen, to assess shipments for explosives threats or other terrorismrelated activities.

In response to a 2009 incident aboard a Northwest Airlines flight, the Obama Administration

accelerated deployment of Advanced Imaging Technology (AIT) whole body imaging screening

devices and other technologies at passenger screening checkpoints. This deployment also

responded to the 9/11 Commission recommendation to improve the detection of explosives on

passengers.187 Explosives screening technologies at passenger screening checkpoints primarily

consist of whole body imaging systems known as Advanced Imaging Technology (AIT);

advanced technology X-ray imagers for carry-on items; and explosives trace detection (ETD)

systems used to test swab samples collected from individuals or carry-on items for explosives

residue. In its FY2017 budget request, TSA indicated that it intends to procure AIT and ETD

systems in small numbers, while it intends to acquire more than 300 advanced technology X-ray

imagers for carry-on items, upgraded with multi-view capabilities or automated explosives

detection capabilities.

187

National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report (New York, NY:

W. W. Norton & Co., 2004).

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The use of AIT has raised a number of policy questions. Privacy advocates have objected to the

intrusiveness of AIT, particularly when used for primary screening.188 To allay privacy concerns,

TSA eliminated the use of human analysis of AIT images and does not store imagery. In place of

human image analysts, TSA has deployed automated targeting recognition (ATR) software that

generates generic avatar images indicating locations of possible threat items. Another concern

raised about AIT centered on the potential medical risks posed by backscatter X-ray systems, but

those systems are no longer in use for airport screening, and current millimeter wave systems

emit nonionizing millimeter waves are not considered harmful.

The effectiveness of AIT and ATR has been brought into question. In 2015, the DHS Office of

Inspector General completed covert testing of passenger screening checkpoint technologies and

processes to evaluate the effectiveness of AIT and ATR.189 In congressional testimony, DHS

Inspector General John Roth revealed that the covert testing consistently found failures in

technology and procedures coupled with human error that allowed prohibited items to pass into

secure areas.190 Even prior to the revelations of weaknesses in passenger checkpoint screening

technologies and procedures, the use of AIT was controversial. Past legislative proposals

specifically sought to prohibit the use of whole body imaging for primary screening (see, for

example, H.R. 2200, 111th Congress). Nonetheless, primary screening using AIT is now

commonplace at larger airports. Checkpoints at many smaller airports have not been furnished

with AIT equipment or other advanced checkpoint detection technologies.

In addition to continued deployment and utilization of AIT, the FAA Extension, Safety, and

Security Act of 2016 (P.L. 114-190) directed TSA to task the Aviation Security Advisory

Commi

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