9/11 Commission Recommendations: Implementation Status
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9/11 Commission Recommendations:
Implementation Status
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Specialist in International Security
December 4, 2006
Congressional Research Service
7-....
www.crs.gov
RL33742
CRS Report for Congress
Prepared for Members and Committees of Congress
9/11 Commission Recommendations: Implementation Status
Summary
This report provides a review of the 9/11 Commission recommendations and the status of their
implementation at the end of the 109th Congress. The discussions herein are organized on the
basis of policy themes that are at the core of the 9/11 Commission’s recommendations, rather than
through a review of each numbered item set out in the Commission’s final report. The analysis
was produced by a large team of CRS Specialists, analysts, and attorneys who are responsible for
the wide variety of policy areas covered by the 9/11 Commission in its work. The authors of the
varied segments of this report are identified in footnotes. Each section of the report summarizes
the pertinent elements of the 9/11 Commission’s recommendation relevant to the section’s policy
theme. Then a review is made of responses made by the Congress to implement, in whole or in
part, the given recommendation. Where appropriate, notice is taken of Executive branch actions
regarding the policy matter. A detailed table of contents provides the reader with a guide to each
of the policy themes discussed. Footnotes in each section of the report provide references to more
detailed information on particular topics related to each policy theme.
This report will only be updated if circumstances warrant.
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9/11 Commission Recommendations: Implementation Status
Contents
Introduction ................................................................................................................................1
Strengthening the Intelligence Function.......................................................................................1
Commission Concerns and Recommendations.......................................................................1
Congressional Responses ......................................................................................................1
Intelligence Oversight: Congressional Options ............................................................................2
Commission Concerns and Recommendations.......................................................................2
Congressional Responses ......................................................................................................3
Improving Transitions Between Administrations .........................................................................4
Commission Concerns and Recommendations.......................................................................4
Congressional Responses ......................................................................................................5
Enacted Provisions..........................................................................................................5
Related Potential Congressional Concerns for the 110th ...................................................8
Afghanistan and Terrorism ..........................................................................................................9
Commission Concerns and Recommendations.......................................................................9
Congressional Responses .................................................................................................... 10
Future Considerations ................................................................................................... 11
Pakistan and Terrorism.............................................................................................................. 11
Commission Concerns and Recommendations..................................................................... 11
Congressional Responses .................................................................................................... 12
Foreign Assistance ........................................................................................................ 12
Coalition Support Funds................................................................................................ 13
Saudi Arabia and Terrorism....................................................................................................... 13
Commission Concerns and Recommendations..................................................................... 13
Congressional Responses .................................................................................................... 14
Provisions Enacted........................................................................................................ 14
Related Options Also Considered .................................................................................. 15
Terrorism: Its Global Dimensions.............................................................................................. 15
Commission Concerns and Recommendations..................................................................... 15
Congressional Responses .................................................................................................... 16
Legislation Enacted....................................................................................................... 16
Policy Concerns Not Addressed or Postponed ............................................................... 16
Islam and U.S. Policy................................................................................................................ 17
Commission Concerns and Recommendations..................................................................... 17
Congressional Responses .................................................................................................... 17
Policy Concerns Not Addressed .......................................................................................... 18
Radical Islam in Europe ................................................................................................ 18
Islam in Politics ............................................................................................................ 19
Terrorism: U.S. Policy Instruments............................................................................................ 19
Commission Concerns and Recommendations..................................................................... 19
Congressional Responses .................................................................................................... 19
Public Diplomacy, Education and Exchange Programs ........................................................ 20
Commission Concerns and Recommendations............................................................... 20
Congressional Response................................................................................................ 20
Terrorist Financing.................................................................................................................... 22
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Commission Concerns and Recommendations..................................................................... 22
Congressional Responses .................................................................................................... 23
U.S. Military Forces and the War on Terrorism.......................................................................... 24
Commission Concerns and Recommendations..................................................................... 24
Congressional Responses .................................................................................................... 25
Relevant Provisions Enacted by Congress ..................................................................... 25
Policy Concerns Not Addressed .................................................................................... 25
Options Considered by the 109th Congress..................................................................... 25
Weapons of Mass Destruction: Proliferation Security and Threat Reduction .............................. 26
Commission Concerns and Recommendations..................................................................... 26
Congressional Responses .................................................................................................... 26
Border Security and Immigration .............................................................................................. 27
Terrorist Travel ................................................................................................................... 27
Commission Concerns and Recommendations............................................................... 27
Congressional Response................................................................................................ 28
Terrorist Screening and Watch Lists .................................................................................... 29
Commission Concerns and Recommendations............................................................... 29
Congressional Response................................................................................................ 29
Related Administrative Response .................................................................................. 29
Biometric Screening System and Data Systems Integration ................................................. 31
Commission Concerns and Recommendations............................................................... 31
Congressional Responses .............................................................................................. 31
Standards for Identification Documents ............................................................................... 32
Commission Concerns and Recommendations............................................................... 32
Congressional Response................................................................................................ 32
Other Immigration Concerns ............................................................................................... 33
Commission Concerns .................................................................................................. 33
Congressional Response................................................................................................ 33
Transportation Security ............................................................................................................. 35
Aviation Security ................................................................................................................ 35
Commission Concerns and Recommendations............................................................... 35
Congressional Response................................................................................................ 36
Policy Concerns Not Addressed In Enacted Legislation................................................. 40
Port and Maritime Security ................................................................................................. 41
Commission Concerns and Recommendations............................................................... 41
Congressional Response................................................................................................ 41
Surface Transportation Security........................................................................................... 43
Commission Concerns and Recommendations............................................................... 43
Status of Implementation of the Recommendations ....................................................... 43
Critical Infrastructure Security .................................................................................................. 44
Commission Concerns and Recommendations..................................................................... 44
Congressional Responses .................................................................................................... 45
Emergency Preparedness and Response and the 9/11 Commission............................................. 46
Commission Concerns and Recommendations..................................................................... 46
Congressional Responses .................................................................................................... 47
Department of Defense and the 9/11 Commission...................................................................... 49
Commission Concerns and Recommendations..................................................................... 49
Congressional Responses .................................................................................................... 50
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Homeland Security Oversight: Congressional Options............................................................... 50
Commission Concerns and Recommendations..................................................................... 50
Congressional Responses .................................................................................................... 50
Civil Liberties and Government Information Policies and Practices ........................................... 51
Driver’s Licenses, Personal Identification Cards, Birth Certificates, and Social
Security Numbers ............................................................................................................ 51
Commission Concerns and Recommendations............................................................... 51
Congressional Responses .............................................................................................. 51
Future Considerations ................................................................................................... 53
Protection of Civil Liberties ................................................................................................ 54
Commission Concerns and Recommendations............................................................... 54
Congressional Responses .............................................................................................. 55
Balancing Security and Information Sharing ....................................................................... 57
Commission Concerns and Recommendations............................................................... 57
Congressional and Administrative Responses ................................................................ 57
DHS Reorganization Related to Information Sharing..................................................... 61
Contacts
Author Contact Information ...................................................................................................... 62
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9/11 Commission Recommendations: Implementation Status
Introduction
This report provides a review of the 9/11 Commission recommendations and the status of their
implementation at the end of the 109th Congress. It is intended to provide a structured road map to
this end. The discussions herein are organized on the basis of policy themes that are at the core of
the 9/11 Commission’s recommendations, rather than a review of every numbered item set out in
the Commission’s final report. The analysis was produced by a large team of CRS Specialists,
analysts, and attorneys who are responsible for the wide variety of policy areas covered by the
9/11 Commission in its work. The authors of the varied segments of this report are identified in
footnotes. Each section of the report summarizes the pertinent elements of the 9/11 Commission’s
recommendations relevant to that section’s policy theme. Then a review is made of responses
made by the Congress to implement, in whole or in part, the given recommendation. Where
appropriate, notice is taken of executive branch actions regarding the policy matter. A detailed
table of contents provides the reader with a guide to each of the policy themes discussed.
Footnotes in each section of the report provide references to more detailed information on
particular topics related to each policy theme.
Strengthening the Intelligence Function1
Commission Concerns and Recommendations
The 9/11 Commission concluded that the organization of the U.S. Intelligence Community had
contributed to a failure to develop a management strategy to counter Islamic terrorism. The
Commission recommended a major reordering of the Intelligence Community to enable a single
official to manage the entire national intelligence effort and oversee the agencies that contribute
to it. The Commission also recommended the establishment of national intelligence centers,
including a National Counterterrorism Center (NCTC), to correlate and analyze information from
all sources on particular topics.
A principal recommendation of the Commission was the creation of the position of Director of
National Intelligence (DNI), separate from the Director of the Central Intelligence Agency
(CIA), who would have major statutory authorities over the Intelligence Community’s 16
agencies, including the preparation of budgets, systems acquisition, and the setting of personnel
policies and standards for information use throughout the Intelligence Community. The DNI
would also be the principal intelligence advisor to the President and would prepare national
intelligence estimates.
Congressional Responses
Congress responded to many of the recommendations of the 9/11 Commission by passing the
Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), hailed by some as the
most important intelligence legislation since the National Security Act of 1947. The Act
established a DNI (along with a separate Director of the CIA) and provided him with additional
1
Prepared by Richard A. Best, Jr., Specialist in National Defense, Foreign Affairs, Defense and Trade Division.
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authorities beyond those that the former Director of Central Intelligence (DCI) had over all
intelligence agencies. The DNI possesses substantial authorities to prepare the national
intelligence budget and the expenditure of funds appropriated for the national intelligence
effort. The DNI also is charged with establishing priorities for collection and analysis; and
managing intelligence centers composed of analysts from various intelligence and law
enforcement agencies.
Questions involving the DCI’s budgetary authorities were debated at length during consideration
of the legislation. The management and oversight authorities proposed by the 9/11 Commission
and reflected in some versions of intelligence reform legislation appeared to some Members as
complicating, undermining, or replacing the authorities of the Secretary of Defense over
intelligence agencies in the Defense Department (in particular, the National Security Agency,
National Reconnaissance Office, and National Geospatial-Intelligence Agency, that are also
integral components of DOD’s warfighting capabilities). The agreement reflected in the final
legislation provides the DNI with authority to “develop and determine an annual consolidated
National Intelligence Program budget,” along with authorities to manage appropriations, transfer
or reprogram funds (within strict limitations), transfer a limited number of personnel annually,
and establish common information technology standards. At the same time, the Act called for the
President to issue guidelines to ensure that the authorities granted to the DNI are implemented “in
a manner that respects and does not abrogate the statutory responsibilities” of other departments
including DOD. Some observers have suggested that the legislation has not definitively resolved
the question of the DNI’s responsibilities for the Defense agencies in particular, and have argued
that further legislative changes may be required and/or that an effective solution will depend on
the ability of the DNI and the Secretary of Defense to work in close coordination.
To a large extent P.L. 108-458 adopted the recommendations of the 9/11 Commission regarding
the organization of the Intelligence Community but it did not centralize management of the
Intelligence Community to the extent that at least some on the 9/11 Commission would have
preferred. As a result there remains a potential that the national intelligence agencies within the
Department of Defense may be subject to conflicting guidance from the Secretary of Defense and
the DNI. Thus far, however, there has been little public controversy regarding the budgets of
intelligence agencies since the enactment of P.L. 108-458.
Intelligence Oversight: Congressional Options2
Commission Concerns and Recommendations
The 9/11 Commission stated that congressional oversight for intelligence and counter-terrorism is
“dysfunctional.” Commission members suggested two basic alternatives for strengthening and
improving Congress’s oversight of these policy domains. The two recommendations were: (1) to
create either a joint committee on intelligence modeled after the former Joint Committee on
Atomic Energy; or (2) establish a committee in each chamber that has the authority to both
authorize and appropriate for intelligence agencies and activities. In addition, the commission
suggested that an intelligence committee should have a subcommittee specifically dedicated to
oversight; the panel should have subpoena authority; majority party representation on the
2
Prepared by (name redacted), Senior Specialist in the Legislative Process, Government and Finance Division.
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panel should exceed the minority by only one member; a member from each of these panels—
Armed Services, Judiciary, Foreign Affairs, and the Defense Appropriations Subcommittee—
should serve on an intelligence committee; Members who serve on an intelligence committee
should not be subject to term limits; the staff of an intelligence committee should be nonpartisan
and serve the entire committee; and the size of an intelligence committee should range from
seven to nine members.
Congressional Responses
The House and Senate did not create a joint intelligence committee, nor did either chamber
consolidate authorizing and appropriating responsibility for the intelligence community in a
single committee. On the other hand, the two chambers followed some but not all of the
commission’s other recommendations.
In the House, the Permanent Select Intelligence Committee for the 109th Congress has an
oversight subcommittee, subpoena authority, and members who serve also on the Defense
Appropriations Subcommittee and the Armed Services, Judiciary, and International Relations
Committees. The House panel’s ratio of majority to minority party members does not, however,
track the commission’s recommendation. The House Permanent Select Intelligence Committee’s
size is larger than nine; its members are subject to tenure limitations with exceptions for the chair
and ranking minority member; and it has a partisan staff model.
In October 2004, the Senate adopted S.Res. 445, which made a number of changes affecting
oversight of the intelligence community. Some of the recommendations in S.Res. 445 parallel the
commission’s ideas, while others are new proposals agreed to by the Senate. The ideas in S.Res.
445 that affect the Select Intelligence Committee, and which generally emulate the commission’s
proposals, are these: an oversight subcommittee; subpoena authority; a one-seat margin for the
majority party; a two-seat representation on the panel from each of these committees:
Appropriations, Armed Services, Foreign Relations, and Judiciary; moreover, Intelligence
members are not subject to term limits. On the other hand, the Select Intelligence Committee
employs a partisan staff model and its size is larger than nine members.
S.Res. 445 made a number of other changes affecting the Select Intelligence Committee. These
include granting the Majority Leader formal authority to name the chairman, and the Minority
Leader the vice chairman, of the panel; authorizing the chair and vice chair of the Intelligence
panel to name, respectively, the chair and vice chair of any subcommittee; assigning to the panel
jurisdiction over civilian nominations to advice-and-consent positions within the intelligence
community; permitting each Intelligence member to appoint a staff aide to the committee (subject
to appropriate security clearances); allocating committee staff resources between the parties on a
60/40 ratio, excluding staff designees appointed by individual Senators; expanding current
requirements that the Intelligence Committee report periodically to the Senate on its findings and
to require such reports quarterly; elevating the Select Intelligence Committee to a category “A”
assignment status; obligating the panel to consult with the Majority Leader and Minority Leader
about the disclosure of classified information given to the committee by the executive branch; and
reducing what are called “on demand sequential referrals” from 30 days to 10 days.
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S.Res. 445 recommended that the Committee on Appropriations “shall reorganize into 13
subcommittees as soon as possible after the convening of the 109th Congress.” The Senate
Committee on Appropriations did not establish its customary 13 subcommittees. Bicameral
discussions at the start of the 109th Congress involving, among others, the majority party leaders
and the respective House and Senate Appropriations chairs, led to a downsizing and reshuffling of
Appropriations subcommittees and jurisdictions.
In mid-February 2005, the House panel established 10 subcommittees, eliminating three (District
of Columbia, Legislative Branch, and VA-HUD). A few weeks later the Senate Appropriations
Committee created 12 subcommittees. The panel retained its District of Columbia and Legislative
Branch subcommittees, but, like the House, it eliminated its VA-HUD subcommittee and
transferred its jurisdiction to other Appropriations subcommittees. One goal of revamping the
organizational structure of the two Appropriations Committees is to minimize the need for endof-year appropriations measures.
The recommendation in S.Res. 445 for an Appropriations Subcommittee on Intelligence was not
acted upon by the Committee on Appropriations during the 109th Congress. The Resolution stated
that the proposed Intelligence subcommittee “shall have jurisdiction over funding for intelligence
matters, as determined by the Senate Committee on Appropriations.” A Senate Appropriations
member indicated that it would be difficult to create a subcommittee with a classified budget. The
9/11 Commission recommended public disclosure of the nation’s budget for intelligence, which
has not been agreed to by the Congress.3
Improving Transitions Between Administrations4
Commission Concerns and Recommendations
The 9/11 Commission Report5 included a general recommendation that appointments to key
national security positions at the time of presidential transitions occur more quickly. The goal of
the 9/11 Commission’s recommended changes was to “minimize as much as possible the
disruption of national security policymaking” and maintain national security continuity when a
new President comes into office. The recommendation addressed the commission’s concern about
the length of time a new Administration takes to install key national security personnel. The
commission noted, in particular, the abbreviated transition period resulting from the delayed
resolution of the 2000 presidential race. The report stated, “Given that a presidential election in
the United States brings wholesale change in personnel, this loss of time hampered the new
administration in identifying, recruiting, clearing, and obtaining Senate confirmation of key
appointees.”6 As a result, the commission reported, “the new administration did not have its
3
For further information generally, see CRS Report RS21955, S.Res. 445: Senate Committee Reorganization for
Homeland Security and Intelligence Matters, by (name redacted) and (name redacted). For historical
background on the public disclosure issue, see CRS Report 94-261, Intelligence Spending: Public Disclosure Issues, by
(name redacted) and (name redacted).
4
Prepared by (name redacted), Analyst in American National Government, and (name redacted), Specialist in
American National Government, Government and Finance Division.
5
U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (Washington:
GPO, 2004), p. 422.
6
9/11 Commission Report, p. 198.
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deputy cabinet officers in place until the spring of 2001, and the critical subcabinet officials were
not confirmed until the summer—if then. In other words, the new administration—like others
before it—did not have its team on the job until at least six months after it took office.”7
In line with its overall recommendation, the commission called for seven specific changes, six of
which are related to presidential appointments and transitions. Two of these proposed changes are
related to the national security clearance process during transitions. First, the commission
recommended starting the security clearance process for prospective appointees to national
security positions immediately after the presidential election. It also proposed that, prior to the
election, each presidential candidate provide to the FBI “the names of selected members” of his
or her prospective transition team to facilitate quicker security clearances following the election.
Three additional recommendations would modify the nomination and Senate consideration
processes for certain national security positions. First, the report proposed that all nominations to
positions on the “national security team”8 be submitted to the Senate by the President-elect no
later than the date of his or her inauguration. Furthermore, the commission called for the Senate
to “adopt special rules requiring hearings and votes to confirm or reject national security
nominees within 30 days of their submission.” The final recommended change to the appointment
process would be the elimination of advice and consent requirements for any “national security
team” members below Level III of the Executive Schedule.
The commission also suggested that, beginning immediately after the election, the transition
include a prompt and thorough written national security information exchange between the
outgoing and incoming Administrations.
In addition to these six changes, the commission called for centralization of the security clearance
process in one agency, including providing and maintaining security clearances and ensuring
uniform standards.9
Congressional Responses
Enacted Provisions
The Intelligence Reform and Terrorism Prevention Act of 2004 (hereafter the “Intelligence
Reform Act”)10 included several provisions that responded to commission concerns and
recommendations. The legislation amended the Presidential Transition Act of 1963 to (1)
recommend submission by the President-elect to the agency with national security clearance
functions of the “names of candidates for high level national security positions through the level
of undersecretary” of agencies and departments, as soon as possible after the presidential election;
(2) require the responsible agency or agencies to carry out background investigations of these
candidates for high-level national security positions “as expeditiously as possible ... before the
date of the inauguration”; and (3) authorize “relevant outgoing executive branch officials” to
prepare a “detailed classified, compartmented summary ... of specific operational threats to
7
9/11 Commission Report, p. 422.
The phrase “national security team” was not defined in the report.
9
9/11 Commission Report, p. 422.
10
P.L. 108-458, 118 Stat. 3638.
8
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national security; major military or covert operations; and pending decisions on possible uses of
military force,” which would be provided to the President-elect and Vice President-elect as soon
as possible after the general election. 11
Just as the Intelligence Reform Act seeks to facilitate more rapid security clearances for top
national security position candidates, it also does so for transition team members. It allows
each major party presidential candidate to submit, before the general election, security
clearance requests for “prospective transition team members who will have a need for
access to classified information” in the course of their work. The law directs that resulting
investigations and eligibility determinations be completed, as much as possible, by the day
after the general election. 12
The Intelligence Reform Act also expresses “the sense of the Senate” about a timetable for
submission and consideration of high-level national security nominations during transitions.
Under this timetable, nominations to such positions should be submitted by the President-elect to
the Senate by Inauguration Day, and Senate consideration of all such nominations should be
completed within 30 days of submission.13 Because most presidential appointees are subject to a
limited “vetting” process and not a full-scale security clearance investigation and adjudication,
these changes may have a significant impact on the duration and difficulty of the confirmation
process. A personnel security clearance investigation, for instance, is normally more exhaustive
and longer than the usual “vetting” process for potential nominees. A background investigation
for access to the highest clearance level—Top Secret with access to Sensitive Compartmented
Information—may take a year. That is because the process requires a full field investigation,
including interviews with former colleagues and employers, neighbors, friends, and
acquaintances, along with checks of databases from law enforcement entities, financial services,
and, to a degree, medical services.
The Intelligence Reform Act also made government-wide changes to the national security
clearance process that are designed to consolidate and streamline this function. Concerns have
long existed over the substantial backlog, delays, and time consumed in initial background
investigations and subsequent re-investigations associated with gaining access to classified
national security information. These problems have been exacerbated by the increased number of
personnel requiring access to classified information and the growth of materials being classified
or being classified at higher levels; both of these changes, in turn, have been driven by the
expanding programs in national and homeland security. Other reasons for seeking improvements
in the clearance process, especially the background investigations, are (1) the lack of reciprocity
among agencies, so that one federal agency may not accept the findings of investigations
previously conducted for another federal agency; and (2) questions about the capacity of existing
agencies to handle the increased workload (or overload) in light of its size and recent growth. 14
11
P.L. 108-458, Sec. 7601(a).
P.L. 108-458, Sec. 7601(c).
13
P.L. 108-458, Sec. 7601(b).
14
U.S. House Committee on Government Reform, What’s the Hold Up? A Review of Security Clearance Backlog and
Reciprocity Issues Plaguing Today’s Government and Private Sector Workforce, hearings, 108th Congress, 2nd sess.
(Washington: GPO, 2004). At the same time, the Department of Defense transferred the background investigation
function and related personnel to the Office of Personnel Management, which now handles about 90% of all federal
background investigations.
12
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The Intelligence Reform Act required the President to designate a single executive entity to
oversee and develop uniform standards and policies for access to classified information and to
designate other investigative agencies, if appropriate, for national security and efficiency
purposes.15 The statute further stipulated that reciprocity should be the rule among agencies for
clearances at the same level and the legislation established a national database to track clearances.
The head of the entity charged with overseeing the process is to evaluate and report to Congress
on the use of available technology in clearance investigations and adjudications, as well as to
consult with Congress and adjudicative agencies in developing a plan, within five years, to reduce
the length of the clearance process.
The first step along this new path was undertaken during the 109th Congress, with the Office of
Personnel Management (OPM) designated as the lead agency in conducting security clearance
background checks under the guidance and oversight of the Deputy Director of OMB. Certain
deadlines and a reciprocity requirement among agencies have also been established to speed up
the process and make it less costly and more efficient. Setting this in motion was an executive
order issued by President George W. Bush, designed to strengthen and speed up processes to
determine eligibility for access to classified national security information.16 In the order, the
President called upon the Director of the Office of Management and Budget (OMB) to develop
the policy for meeting the following goals: “To the extent consistent with safeguarding the
security of the United States and protecting classified national security information from
unauthorized disclosure, agency functions relating to determining eligibility for access to
classified national security information shall be appropriately uniform, centralized, efficient,
effective, timely, and reciprocal.”17
The Intelligence Reform Act also contained appointment process-related provisions18 that were
not specifically recommended by the 9/11 Commission. These included provisions that (1)
require a report from the Office of Government Ethics (OGE) regarding potential improvements
15
P.L. 108-458, Title III, Sec. 3001(c).
Executive Order 13381, “Strengthening Processes Relating to Determining Eligibility for Access to Classified
National Security Information,” issued by President George W. Bush, June 27, 2005, 70 Federal Register 37953,
June 30, 2005.
17
Ibid., Sec. 1. In developing the plan, the OMB Deputy Director was required to consult with the heads of the
Departments of State, Defense, Justice, Energy, and Homeland Security, as well as the Director of the Office of
Personnel Management (OPM) and the Director of National Intelligence (DNI). The OMB Director issued guidelines
and instructions to the heads of agencies to ensure such goals. A separate section covers Sensitive Compartmented
Information, that information generated by way of intelligence sources and methods, and special access programs
pertaining to intelligence activities, including special activities or covert operations. The Deputy Director for
Management at OMB has been delegated responsibility for carrying out the order. Along with this, specialized areas of
responsibility have been assigned to the Directors of OPM and of National Intelligence as well as to the Assistant to the
President for National Security Affairs. The particulars of the plan and its production are covered in several executive
reports, testimony before Congress, and a Government Accountability Office (GAO) report. See U.S. Office of
Management and Budget, Report on the Status of Executive Branch Efforts to Improve the Security Clearance Process
Required under Title III of P.L. 108-458 (Washington: OMB, 2006), and Plan for Improving the Personnel Security
Clearance Process (Washington: OMB, 2005); and Kathy L. Dillaman, Associate Director, Federal Investigative
Services Division, OPM, testimony on Human Capital Issues and Security Clearance Procedures, before the
Subcommittee on Management, Integration, and Oversight, House Committee on Homeland Security, May 18, 2006.
GAO, however, has found continuing weaknesses in this area; see U.S. Government Accountability Office, DOD
Personnel Clearances: Additional OMB Actions Are Needed to Improve the Security Clearance Process, GAO-061070 (Washington: GAO, 2006).
18
P.L. 108-458, Sec. 8403.
16
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to the financial disclosure process for executive branch employees;19 (2) direct the Office of
Personnel Management (OPM) to transmit an electronic record “on Presidentially appointed
positions,” with specified contents, to each major party presidential candidate soon after his or her
nomination, and to make such a record available to any other presidential candidate after this; (3)
direct each agency head to submit an advice and consent position reduction plan, with specified
contents, to the President, the Senate Committee on Governmental Affairs (as of the 109th
Congress, the Senate Committee on Homeland Security and Governmental Affairs), and the
House Committee on Government Reform;20 and (4) require the Director of OGE, in consultation
with the Attorney General, to “conduct a comprehensive review of conflict of interest laws
relating to Federal employment,” with specified contents and recipients.21
Although the Intelligence Reform Act addressed each of the recommendations in this section of
the 9/11 Report, its provisions were generally not identical to the commission’s recommended
actions. For example, whereas the commission recommended that the “Senate should not require
confirmation of [national security] executive appointees below Executive Level 3,” the statute
requires agencies to submit advice and consent position reduction plans to the President and
congressional committees.
Related Potential Congressional Concerns for the 110th
The presidential transition process changes called for by the 9/11 Commission and provided for in
the Intelligence Reform Act are arguably more critical to national security continuity at the time
of a transition between Presidents than between the first and second terms of a two-term
President. Nonetheless, some top-level national security positions changed hands at the beginning
of the second George W. Bush Administration, and Congress may elect to conduct oversight,
during the 110th Congress, on the implementation of the modifications to the presidential
transition process. Congress might also elect to conduct oversight regarding provisions that would
be implemented during the run-up to the 2008 presidential election.
Changes to the national security clearance process under the Intelligence Reform Act extend
beyond the presidential transition and presidential appointment processes. Some changes are
designed to modernize the national security clearance process, by adding new formal
requirements (e.g., for reciprocity among agencies) and by consolidating the process under a
single entity, the Office of Personnel Management, with guidance and supervision under the
Deputy Director of the Office of Management and Budget. The implementation of these and other
new developments might become the subjects of congressional oversight, to determine whether
the changes are proceeding as expected, whether their goals are being met, whether legislative
intent is being followed, what the implementation costs are, and what other modifications might
be necessary.
19
OGE submitted this report on March 17, 2005. It is available at http://www.usoge.gov/pages/forms_pubs_otherdocs/
fpo_files/reports_plans/rpogc_fin_dis_03_05.pdf.
20
At the end of the 109th Congress, staffers for both of the congressional committees indicated that only a few agencies
had submitted the required PAS position reduction plans.
21
OGE submitted this report in Jan. 2006. It is available at http://www.usoge.gov/pages/forms_pubs_otherdocs/
fpo_files/reports_plans/rpt_title18.pdf.
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Several provisions of the law reflect ongoing concern among some Members of Congress about
the length and complexity of the presidential appointment process. The last several Congresses
have seen efforts to develop consensus, inter alia, on streamlining executive branch financial
disclosure requirements; reducing the number of positions requiring Senate confirmation for
appointment; and simplifying conflict of interest laws and decriminalizing conflict of interest.
With the submission of reports to Congress concerning these topics, required by the Intelligence
Reform Act, discussions regarding possible changes may be renewed during the 110th Congress.
Congress might elect to revisit provisions contained in earlier versions of the intelligence
legislation that were not included in the enacted law. These include proposed changes to
provisions of the Federal Vacancies Reform Act of 1998 that would make it easier for the
President to make long-term temporary appointments to advice and consent positions during
presidential transitions. 22
Other appointments-related issues could be of interest in the 110th Congress. For example, it is
possible that the Senate may attempt to change its floor procedures concerning nominations. In
addition, issues related to recess appointments may come to the fore. At times, for instance, the
President’s use of his recess appointment power has been seen as circumventing the Senate
confirmation process and has proven controversial.
Afghanistan and Terrorism23
Commission Concerns and Recommendations
The 9/11 Commission Report (p. 370) praised the U.S. efforts in Afghanistan to that date, but
emphasized the need for a sustained, long-term commitment by the United States and the
international community to Afghanistan’s stability and security, 24 in order to prevent Afghanistan
from “again becom[ing] a sanctuary for international crime and terrorism.” The Commission was
far-reaching in its recommendations, calling for greater peacekeeping participation by
international forces, particularly NATO; stepped up counter-narcotics activities, disarmament of
regional militias, and efforts to promote rule of law; and follow through on funding pledges with
increased flexibility in allocating money for relief and reconstruction.25
Most of the recommendations had already formed major pillars of Administration policy on postTaliban Afghanistan, and these efforts accelerated after the release of the 9/11 report. Key
milestones in the U.S. stabilization effort were the October 9, 2004 presidential election, in which
interim leader Hamid Karzai was elected, and the September 18, 2005 elections for a 249 seat
lower house of parliament, and subsequent selections to a 102-seat upper house.
22
23
See 108th Cong., H.R. 10, § 5042.
Prepared by (name redacted), Specialist in Middle Eastern Affairs, Foreign Affairs, Defense, and Trade Division.
24
For further information on U.S. efforts to stabilize Afghanistan, see CRS Report RL30588, Afghanistan: PostTaliban Governance, Security, and U.S. Policy, by (name redacted).
25
See The 9/11 Commission Report, Section 12.2, Recommendation No. 3.
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The Commission recommendation for increased NATO participation in Afghanistan
peacekeeping has, by most accounts, been implemented. As of October 5, 2005, NATO now has
overall control of peacekeeping operations throughout Afghanistan, including the volatile and
violent south and east of the country. NATO’s force in Afghanistan now numbers about 31,000,
including about 11,250 U.S. forces. NATO countries run 13 of the 25 total “provincial
reconstruction teams” (PRTs)—regional civilian-military enclaves intended to promote security
and reconstruction.
The United States, Afghanistan, and the international community have also had significant
success over the past few years in disarming regional militiamen—a “disarmament,
demobilization, and reintegration program (DDR), run jointly by the United Nations, Japan, and
the United States, resulted in the disarmament of 63,000 private militiamen by the June 2005
close-out of the program, according to U.S. and U.N. officials. A follow-on program, called
Disarmament of Illegal Armed Groups (DIAG) is currently in the process of attempting to
disband several hundred illegal militia groups around Afghanistan, although progress is said to
be slow.
Counter-narcotics programs, on the other hand, have not been as successful. U.N. officials
estimate that a record opium poppy crop was produced in Afghanistan during the 2005-2006
season that supplied 92% of the world’s illicit opium and reversed a slight reduction that occurred
from 2004-2005. U.S., Afghan, and international officials have cited the cultivation and
trafficking as a serious strategic threat to U.S.-led efforts to stabilize and reconstruct Afghanistan.
Congressional Responses
The 108th and 109th Congresses have acted to implement at least some of the Commission’s
recommendations. The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)
contained a subtitle called “The Afghanistan Freedom Support Act Amendments of 2004.” The
subtitle mandated the appointment of a U.S. coordinator of policy on Afghanistan in order to
streamline and instill greater flexibility and inter-agency cooperation in the administration of U.S.
programs in Afghanistan. The subtitle also required additional Administration reports to Congress
on progress in reconstruction. In addition, the subtitle contained “sense of Congress” provisions
recommending more rapid disarmament of private militias; expansion of the NATO-led
peacekeeping force; and new initiatives to combat narcotics trafficking. The subtitle did not
specify dollar amounts for U.S. aid to Afghanistan for FY2005 and FY2006, authorizing instead
“such sums as may be necessary for each of the fiscal years 2005 and 2006.”
In appropriations legislation, the 108th and 109th Congresses have sought to address the need for
reconstruction funds. For FY2005, a total of $4.3 billion was appropriated for programs in
Afghanistan, from a regular foreign aid appropriation (P.L. 108-447) and a supplemental (P.L.
109-13). Of those funds, about $1.6 billion was earmarked to equip and train the Afghan
National Army (ANA) and Afghan National Policy (ANP). Slightly less was appropriated for
FY2006—a total of about $3.05 billion in a regular appropriation (P.L. 109-102) and a
supplemental (P.L. 109-234). The FY2006 funds include a total of about $2 billion to train and
equip the ANA and the ANP. As noted above, building up the ANA is a key recommendation of
the September 11 Commission so that the central government can extend its writ and services
throughout Afghanistan.
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Future Considerations
For FY2007, some funding for Afghanistan awaits congressional action. The Administration
requested $1.1 billion for civilian reconstruction programs, including counter-narcotics, and
congressional action on these funds has not been completed to date, although both House and
Senate versions fund roughly the total amounts requested. The FY2007 Defense appropriation
(P.L. 109-289) provides $1.5 billion to train and equip the ANA and ANP and provides $100
million for Defense Department counter-narcotics support activities for Afghanistan. Some
experts believe that the upsurge in Taliban opposition violence during 2006 is a product of
popular frustration at the slow pace of reconstruction, particularly in southern Afghanistan, and
several experts believe the remedy for this is accelerated reconstruction.
Pakistan and Terrorism26
Commission Concerns and Recommendations
The 9/11 Commission Report emphasizes that the mounting of large-scale international terrorist
attacks appears to require sanctuaries in which terrorist groups can plan and operate with
impunity. In addition to identifying Pakistan as a principal transit country for the 9/11 hijackers
and naming the western regions of the country as one of six “actual or potential terrorist
sanctuaries” worldwide, the report warns that Pakistan’s “vast unpoliced regions” remain
attractive to extremist groups. The first recommendation of the Commissioners is identification
and prioritization of terrorist sanctuaries and the development of a realistic strategy for denying
them to terrorists.
In its country-specific discussion, The 9/11 Commission Report further claims that—even after
acknowledging problems in U.S.-Pakistan relations and President Musharraf’s role in them—
“Musharraf’s government is the best hope for stability in Pakistan and Afghanistan.” It
recommends that the United States make a long-term commitment to provide comprehensive
support for Islamabad so long as Pakistan itself is committed to combating extremism and to a
policy of “enlightened moderation.” Specifically, the Commission urges sustaining U.S.
assistance to Pakistan at “current scale” with programs that extend from military aid to support
for better education.27 A November 2005 follow-on report by Commissioners gave a “C” grade to
U.S. efforts to support Pakistan’s anti-extremism policies and warned that the country “remains a
sanctuary and training ground for terrorists.”
26
Prepared by (name redacted), Specialist in Asian Affairs, Foreign Affairs, Defense, and Trade Division. See also
CRS Report RL33498, Pakistan-U.S. Relations, CRS Report RL32259, Terrorism in South Asia, CRS Report
RL32615, Pakistan’s Domestic Political Developments, and CRS Report RS22009, Education Reform in Pakistan, all
by (name redacted); and CRS Report RL32745, Pakistan’s Nuclear Proliferation Activities and the
Recommendations of the 9/11 Commission: U.S. Policy Constraints and Options, by (name redacted), (name re
dacted), and (name redacted).
27
See Sections 12.1 and 12.2 (p. 361-374) of The 9/11 Commission Report. The concept of “enlightened moderation,”
as expounded by Musharraf himself, is a direct response to a growing world perception that Islam is linked to
fundamentalism, and thus to extremism, and thus to terrorism. It is a strategy meant to both shun the militancy that is
rooted in “political injustice, denial, and deprivation,” and to bring “socioeconomic uplift” in the Muslim world.
Musharraf has called upon Muslims to “adopt a path of moderation and a conciliatory approach to fight the common
belief that Islam is a religion of militancy in conflict with modernization, democracy, and secularism” (Pervez
Musharraf, “A Plea for Enlightened Moderation,” Washington Post, June 1, 2004).
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The issue of a long-term U.S. commitment to supporting Pakistan is key for many analysts, as
past experiences have engendered Pakistani skepticism regarding the strategic (as opposed to
tactical) reliability of the United States as an ally. Many Bush Administration officials, Members
of Congress, and independent analysts remain concerned about the continued existence in
Pakistan of terrorist groups and their supporters, evidence that Pakistan has been the source of
significant “onward” proliferation of nuclear weapons materials and technologies to third parties,
and continuing human rights abuses, including perceived nondemocratic practices, by the
military-dominated government in Islamabad.
Congressional Responses
In passing the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), the 108th
Congress broadly endorsed the Pakistan-specific 9/11 Commission recommendations. Section
7103 of the bill, entitled “United States Commitment to the Future of Pakistan,” called for U.S.
aid to Pakistan to be sustained at a minimum of FY2005 levels and required the President to
report to Congress a description of a long-term U.S. strategy to engage with and support Pakistan.
It further extended the President’s authority to waive coup-related sanctions on Pakistan through
FY2006, allowing continued U.S. military and economic assistance to Pakistan despite the 1999
overthrow of an elected government in Islamabad.
Foreign Assistance
In June 2003, President Bush vowed to work with Congress on establishing a five-year, $3 billion
aid package for Pakistan. Annual installments of $600 million each began in FY2005 and are split
evenly between military and economic aid. The Foreign Operations FY2005 Appropriations bill
(P.L. 108-447) established a new base program of $300 million for military assistance for
Pakistan. When additional funds for development assistance, law enforcement, and other
programs are included, the aid allocation for FY2005 was about $688 million. Significant
increases in economic support, along with relief funding in response to Pakistan’s devastating
October 2005 earthquake, may bring the FY2006 total to around $874 million. The Bush
Administration’s FY2007 request calls for another $739 million in aid to Pakistan, although the
House Appropriations Committee (H.Rept. 109-486) recommended reducing that amount by $150
million (ostensibly for domestic budgetary reasons unrelated to Pakistan-U.S. relations). In
S.Rept. 109-277, the Senate Appropriations Committee called for redirecting some of the
requested FY2007 U.S. economic aid to Pakistan toward development and democracy promotion
programs there (House and Senate committees have issued separate concerns about “the slow
pace of the democratic development of Pakistan”).
In the five years since September 2001, Pakistan has received nearly $1.5 billion in direct U.S.
security-related assistance (Foreign Military Financing totaling $970 million plus about $516
million for other programs). Congress has taken no action to block major U.S. arms sales to
Pakistan during this period, including the multi-billion dollar sale of F-16 combat aircraft
currently in process.28 Programs overseen by USAID in Pakistan include those aimed at
28
Other major government-to-government arms sales and grants in recent years have included C-130 military transport
aircraft, P-3C Orion maritime patrol aircraft, AH-1F Cobra attack helicopters, F-16 combat aircraft, surveillance radars,
air traffic control systems, military radio systems, Harpoon anti-ship missiles, Phalanx guns, and TOW anti-armor
missiles. Other pending sales include Sidewinder air-to-air missiles and self-propelled howitzers.
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strengthening that country’s democratic institutions and civil society, reforming the education
sector, alleviating poverty, improving health, and bolstering macroeconomic stability while
stimulating economic growth. Such efforts have been funded with some $2 billion since
September 2001 (Economic Support Funds of nearly $1.7 billion plus $288 million for other
programs). Congress also has eased Islamabad’s foreign debt burden by authorizing Pakistan
to use $388 million in economic support to cancel about $1.5 billion in concessional debt to the
U.S. government.
Coalition Support Funds
In addition to the foreign assistance discussed above, Congress has appropriated billions of
dollars to reimburse Islamabad for its support of U.S.-led counterterrorism operations (Pakistan
has since 2002 been undertaking military operations along its border with Afghanistan). As of
December 2006, a total of $6.65 billion had been appropriated for FY2002-FY2007 Defense
Department spending for coalition support payments to “Pakistan, Jordan, and other key
cooperating nations.” Pentagon documents indicate that disbursements to Islamabad—averaging
about $66 million per month—account for the majority of these funds. This amount is roughly
equal to one-fifth of Pakistan’s total military expenditures. The Defense Department
Appropriations Act, 2007 (P.L. 109-289) allows that up to $900 million in Pentagon funds be
used for FY2007 reimbursements.
Saudi Arabia and Terrorism29
Commission Concerns and Recommendations
The September 11, 2001 attacks kindled criticism within the United States of alleged official
Saudi involvement in terrorism or of Saudi laxity in acting against terrorist groups. Some critics
believe that Saudi domestic and foreign policies have created a climate that may have contributed
to terrorist acts by Islamic radicals. Critics, for example, have cited reports that the Saudi
government permitted or encouraged fund raising by allegedly charitable institutions with links to
Al-Qaeda. Saudi leaders maintain that they are working to suppress terrorism, which they say is
aimed even more at the Saudi regime than at the United States. The U.S. State Department
acknowledges a more proactive Saudi stance against terrorist groups since terrorist attacks on
Saudi Arabia in 2003.
In its July 2004 report, the 9/11 Commission described Saudi Arabia as having been “a
problematic ally in combating Islamic extremism.” The report took note of long-standing
cooperative relations between the U.S. and Saudi governments and acknowledged the integral
role of charitable donations in the Islamic religion. At the same time, the report noted a lack of
oversight mechanisms to monitor charitable spending in Saudi Arabia, misunderstandings
between the United States and Saudi Arabia at the popular level, and recent reform measures
adopted by the Saudi Government. In its recommendations, the Commission states that the United
States and Saudi Arabia must confront openly the problems in their relationship and “determine if
they can build a relationship that both sides are prepared to publicly defend—a relationship about
29
Prepared by (name redacted), Specialist in Middle East Affairs, and (name redacted), Analyst in Middle
East Affairs, Foreign Affairs, Defense, and Trade Division.
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more than oil.” The report went on to urge a “shared commitment” to political and economic
reform” in Saudi Arabia and a “shared interest in greater tolerance and cultural respect,” as a
means of fighting violent extremists.30 In late 2005, U.S. and Saudi officials initiated a “strategic
dialogue” to expand cooperation in six key areas: counterterrorism, military affairs, energy,
business, education and human development, and consular affairs.
Congressional Responses
Provisions Enacted
Relevant sections of the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108458) capture many of the concerns reflected in the 9/11 Commission report regarding Saudi
Arabia. Section 7105(a) contains findings which review problems in the bilateral relationship but
note improvements in counter-terrorism cooperation between the two countries since mid-2003.
Section 7105(b) expresses the sense of Congress that “there should be a more robust dialogue
between the people and Government of the United States and the people and Government of
Saudi Arabia.” Section 7120(b) required the President to submit to Congress within 180 days a
strategy for collaboration with Saudi Arabia, as part of a larger report on U.S. government
activities to implement the provisions of this act. The strategy paper was to include steps to
institutionalize U.S.-Saudi relationships, intelligence and security cooperation, ways to increase
Saudi contributions to peace and stability in the Middle East, political and economic reform, ways
to promote tolerance and diversity in Saudi Arabia, and ways to diminish support from Saudi
sources to extremist groups. The Administration transmitted the classified report to designated
congressional committees on September 7, 2005.31
Though not directly addressed as an issue in the 9/11 Commission Report, some Members of
Congress have criticized the U.S. military assistance program of $20-25,000 per year under the
International Military Education and Training (IMET) program because of what they perceive to
be the failure of Saudi authorities to suppress terrorist activity and incitement. House amendments
to the Foreign Operations Appropriations Acts for FY2005 (incorporated as Division D of the
FY2005 Consolidated Appropriations Act, P.L. 108-447, December 8, 2004) and FY2006 [P.L.
109-102] banned U.S. aid to Saudi Arabia. However, Senate versions of both bills did not include
such bans, and presidential national security waiver authority was included in the final versions of
both pieces of legislation. President Bush exercised his waiver authority in FY2005, but did not
issue a waiver for FY2006 funds because, according to State Department officials, FY2006 funds
appropriated for use in Saudi Arabia were not obligated. On June 9, 2006, the House adopted
H.Amdt. 997 to the Foreign Operations Appropriations Act for FY2007 (H.R. 5522) by 312-97
(Roll no. 244); the amendment prohibits U.S. assistance to Saudi Arabia and contains no
presidential waiver provision. H.R. 5522 passed the House on June 9; the Senate has not passed
its version as of November 20.
30
For additional information, see CRS Report RL33533, Saudi Arabia: Background and U.S. Relations and CRS
Report RL32499, Saudi Arabia: Terrorist Financing Issues, both by (name redacted).
31
House Committee on International Relations, Survey of Activities, Week of September 6, 2005: Letter Transmitting
Report—September 7, 2005, CLASSIFIED, Department of State, pursuant to Sec. 7120 of the Intelligence Reform and
Terrorism Prevention Act, 2004 (P.L. 108-458); Ex. Comm. 3684.
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Related Options Also Considered
Congressional concerns continue during the 109th Congress over the role of Saudi Arabia in the
war against terrorism, with particular emphasis on encouraging Saudi leaders to heighten their
efforts against terrorist financing. H.R. 2037/S. 1171, the Saudi Arabia Accountability Act of
2005, is similar to the Saudi Arabia Accountability Act proposed but not enacted in the 108th
Congress (H.R. 3643/S. 1888). Like the earlier bills, the 109th proposal would prohibit export or
issuance of an export license to Saudi Arabia for any U.S. defense articles or defense services on
the U.S. munitions list or dual use items and would restrict travel of Saudi diplomats in the
United States. S. 12, the Targeting Terrorists More Effectively Act of 2005, introduced on
January 24, 2005, contains sections on Saudi Arabia including:
•
A statement of U.S. policy to work with the Saudi government to curtail terrorist
financing through a variety of methods.
•
Findings that Saudi Arabia has an uneven record in fighting terrorism, especially
with regard to terrorist financing, support for radical madrasas (schools), and
lack of political outlets for its citizens; and that the Saudi government must
undertake political and economic reforms.
•
A requirement for the President to submit a report to designated congressional
committees containing a long-term strategy for U.S.-Saudi engagement and for
effective prevention of terrorist financing.32
H.R. 2037, S. 1171, and S. 12 remained in committee and had not passed as of
November 30, 2006.
Terrorism: Its Global Dimensions33
(Denying Sanctuary and Building a Coalition)
Commission Concerns and Recommendations
The 9/11 Commission Report emphasizes the global nature of the terrorist threat. It is portrayed
as a threat that is motivated by religion. It is a threat consisting of a stateless network of terrorists.
This threat with global dimensions is also characterized as a radical ideological movement in the
Islamic world, inspired in part by al Qaeda. The Commission advocates attacking terrorist
organizations as a strategy and tactic for responding to the threat. It recommends that the United
States identify and prioritize terrorist sanctuaries, working with allies, and developing a realistic
strategy to keep terrorists insecure and on the run. As specific examples, it refers to Pakistan,
Afghanistan, and Saudi Arabia, but also identifies broader regions: the Arabian Peninsula; Horn
of Africa; Southeast Asia; West Africa; and European cities. The National Strategy for Combating
Terrorism, released by the Bush Administration in September 2006, places strong emphasis on
closing down terrorist sanctuaries.
32
Section 7120 of the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)—required
the President to submit a strategy as part of a larger reporting requirement within 180 rather than 90 days, as
explained above.
33
Prepared by Raphael Perl, Specialist in International Affairs, Foreign Affairs, Defense, and Trade Division.
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A second Commission recommendation relating to the global dimensions of terrorism centers on
turning a national strategy into a coalition strategy. To this end, the Commission recommends that
the United States engage other nations in developing a comprehensive coalition strategy against
Islamist terrorism. Included here are joint strategies for targeting terrorist travel and a common
strategy to deal with sanctuaries.
The National Strategy for Combating Terrorism, released by the Bush Administration in
September 2006, also places strong emphasis on promoting international cooperation in the
global fight against terrorism.
Congressional Responses
Legislation Enacted
Many congressional decisions related to measures designed to respond to the global terrorist
threat are expected to be manifested through the appropriations process. Title VII, of the
Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458, section 7102, mirrors
Commission recommendations by expressing a Sense of the Congress that it should be the policy
of the United States to identify terrorist sanctuaries, work with allies, and develop a strategy to
prevent terrorists from using foreign countries as sanctuaries. It also requires a report from the
President to Congress on terrorist sanctuaries and what is being done to eliminate them. H.R.
4942, (109th Congress, Second Session), the Promoting Antiterrorism Capabilities through
International Cooperation Act, would establish an office within DHS to promote international
anti-terrorism cooperation.
Policy Concerns Not Addressed or Postponed
The issue of creating a coalition is arguably, a matter best suited for diplomats and not legislators.
Notwithstanding, an office within DHS charged with promoting anti-terror cooperation could
arguably do much to enhance such cooperation. However, the need for such cooperation, as
envisioned by the 9/11 Commission, goes well beyond the jurisdictional domain of DHS. In this
regard, creation of a joint congressional/executive branch commission to look at the overall issue
of promoting international anti-terror cooperation—similar in structure to the National
Commission on terrorism may warrant consideration.
Arguably also, physical sanctuaries are declining in overall importance to terrorist groups which
are becoming increasingly decentralized both geographically and in terms of organizational
hierarchy. This might warrant congressional consideration of the pro’s and con’s of including the
issue of use by terrorists of virtual sanctuaries in any required reports to Congress on the issue of
terrorist sanctuaries.
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Islam and U.S. Policy34
Commission Concerns and Recommendations
Since the September 11, 2001, terrorist attacks, many experts have stated that the fight against
terrorism cannot be won using force alone; it must be accompanied by long term policies that
address development and reform issues in Arab and Muslim-majority countries and by a
sophisticated public diplomacy effort that seeks to counter anti-American views commonly found
in these countries. The 9/11 Commission Report’s recommendations on tempering extremism in
the Middle East and elsewhere echoed these sentiments. According to the report, “A
comprehensive U.S. strategy to counter terrorism should include economic policies that
encourage development, more open societies, and opportunities for people to improve the lives of
their families and to enhance prospects for their children’s future.”
The 9/11 Commission Report also stressed that while U.S. public diplomacy, trade and cultural
exchange, and international assistance programs are necessary, ultimately, it is our policies in the
region that fuel anger and resentment. According to the report, “Right or wrong, it is simply a fact
that American policy regarding the Israeli-Palestinian conflict and American actions in Iraq are
dominant staples of popular commentary across the Arab and Muslim world.” Increasingly, public
debate over how best to win the “struggle of ideas” in the Arab and Muslim world has shifted
away from the “means” (policy instruments) and toward the “ends” (overall direction of U.S.
policy). Critics charge that U.S. efforts to highlight its outreach and assistance to Muslim
societies has been overtaken by the negative Arab and Muslim reaction to alleged human rights
abuses at Abu Ghraib, and Guantanamo Bay. Furthermore, many Arabs and Muslims feel that the
United States continues to place its strategic regional interests above those of human rights and
democracy by insufficiently protesting alleged abuses committed by friendly regional
governments under the guise of the war on terror.
Congressional Responses
Due to the complexity and broad scope of directives laid out by the 9/11 Commission Report, it
has been difficult for the U.S. government, including Congress, to address all of the various
policy problems and solutions to the challenge of Islamic extremism. P.L. 108-458, the
Intelligence Reform and Terrorism Prevention Act of 2004, is one piece of legislation that
addresses many of the 9/11 Commission Reports recommendations. However, P.L. 108-458 only
authorized the expansion of existing programs; it did not appropriate new funds. For example,
P.L. 108-458 authorized the following steps to expand U.S. public diplomacy efforts with the
Muslim world and promote reform and democracy throughout the “broader Middle East:”
•
34
(section 7112) authorized a substantial expansion of U.S. exchange, scholarship,
and library programs that benefit people in the Muslim world.
Prepared by (name redacted), Middle East Policy Analyst, Foreign Affairs, Defense, and Trade Division.
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•
(section 7112) authorized the creation of a pilot program to make grants to
United States-sponsored elementary and secondary schools in countries with
predominantly Muslim populations for the purpose of providing full or partial
merit-based scholarships to students from lower-income and middle-income
families of such countries to attend such schools.
•
(section 7113) authorized the establishment of an International Youth
Opportunity Fund to provide financial assistance for the improvement of public
education in the Middle East and other countries of strategic interest with
predominantly Muslim populations.
•
(section 7115) authorized the Middle East Partnership Initiative (MEPI), an
economic assistance program designed to promote reform and democracy in the
Arab world. MEPI, which Congress had not previously authorized, has received
$284 million since its creation in FY2002.
For fiscal years 2005-2006 and possibly for fiscal year 2007, Congress has used the
appropriations process to expand funding for various government sponsored activities such as
cultural exchange, democracy promotion in the Arab world, international broadcasting in Arabic
and Farsi, and development assistance for education and health. H.R. 5522, the FY2007 Foreign
Operations Appropriations bill (passed the House but not the Senate), provides $75 million for
MEPI, of which $9 million is for scholarship programs for students from countries with
significant Muslim populations at not-for-profit institutions of basic and higher education in the
Middle East. H.R. 5522 also recommends $20 million for the promotion of democracy in
countries located outside the Middle East region with significant Muslim populations, such as
Indonesia. The Senate version of H.R. 5522 also recommends $750,000 for the Center for Middle
Eastern-Western Dialogue, an organization whose mission is to provide a forum for ongoing
interaction and dialogue between citizens of the United States and Muslim-majority countries on
key issues of mutual concern.
Policy Concerns Not Addressed
Radical Islam in Europe
Some critics assert that although poverty-reduction measures and the promotion of liberal reforms
are desperately needed in many Arab and Muslim-majority countries, they are not a panacea and
that many international terrorists, including some of Al Qaeda’s top planners, were Westerneducated and middle class residents of European countries. Some terrorism experts suggest that
fundamentalist ideologies enjoy the most receptivity among Arab and Muslim migrant
communities in Western countries, which face psychological dislocation and alienation in a new
and unfamiliar environment.35
35
For more information, see CRS Report RL33166, Muslims in Europe: Integration in Selected Countries, coordinated
by (name redacted).
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Islam in Politics
By calling for political reform and liberalization in the Muslim world, policymakers run the risk
of empowering religious opposition parties that may seek to permanently enshrine Islamic
religious law in a country’s political and social system. Critics of U.S. foreign policy to combat
extremism argue that based on their experience with Iran during its 1979 revolution and the
subsequent influence of Islamist militant groups elsewhere in the region, the United States and
other Western powers are wary of Islamist groups taking power (as Hamas did in 2006) and that
Western support for secular autocratic regimes further enhances the credibility of opposition
Islamist groups and some radical organizations. Political conditions vary across the Middle East
and some Islamic groups are more moderate than others.
Terrorism: U.S. Policy Instruments36
Commission Concerns and Recommendations
The report of the 9/11 Commission underlined the importance for the United States of using the
full range of policy instruments at its disposal to attack terrorists and their organizations and
prevent the continued growth of Islamic terrorism. These policy instruments include not only
intelligence, law enforcement, military force (treated elsewhere), but also diplomacy, bilateral
support and economic assistance to front-line and failing states, support for democracy and good
governance, international education and exchanges, and public diplomacy to engage the struggle
of ideas and define and defend U.S. ideals and values (see below).
The Commission called on the United States to offer an example of moral leadership in the world,
commit to treating people humanely, abide by the rule of law, and be generous and caring to its
neighbors. It argued that the United States must stand for a better future in countries whose
governments are repressive, even if they are friendly towards the United States.
Congressional Responses
The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) addressed a
number of themes in the 9/11 Commission Report. In Sec. 7101, Congress found that long-term
success in the war on terrorism would require the use of all elements of national power, in
addition to military action, intelligence, covert operations, law enforcement, and homeland
defense, also including economic policy, foreign aid, and public diplomacy. The Act stated that
the United States must give economic and diplomatic instruments as high a priority as military
capabilities. This implied the need for increased funding for foreign affairs programs.
In Sec. 7115, it was the sense of Congress that U.S. strategy to counter terrorism should include
economic policies that encourage development, open societies, and opportunities for people. The
Act further states that U.S. policy should include lowering of trade barriers for poor countries, as
well as promote economic reform and rule of law, especially in Muslim countries.
36
Prepared by (name redacted), Specialist in International Relations, Foreign Affairs, Defense, and Trade Division.
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More concrete Congressional action related to these recommendations was not contained in P.L.
108-458. The Administration’s and Congress’ response to these recommendations was reflected to
some degree in subsequent foreign relations authorizations and the FY2006 and FY2007 State
Department and Foreign Operations Appropriations legislation. While the FY2007 appropriations
have not yet been enacted, both the President’s request and the relevant bills in the House
and Senate reflect some of the priorities contained in the recommendations. Funding for
diplomacy and foreign aid have been more closely tied to strategic requirements of the war on
terrorism. Foreign aid to the “front-line states” in the war has been increased. More generally,
economic assistance has been directed to reducing poverty, creating jobs, and improving
education as an antidote to terrorist recruitment in impoverished areas. Resources have also been
increased for improving America’s image through public diplomacy and international
broadcasting, as well as for cultural and educational exchange programs. In the FY2007
appropriations the Administration has requested funding to implement its “transformational
diplomacy” and “transformational development” initiatives, aimed at revamping U.S. diplomacy
and foreign aid policy for the 21st Century.
Public Diplomacy, Education and Exchange Programs37
Commission Concerns and Recommendations
Noting that terrorism is a result of resentment by some Muslims because of American
engagement in the Muslim world, the 9/11 Commission asserted that public diplomacy is a
key tool in the war on terrorism in helping to change attitudes about America. The Commission
recommended that the United States, through the use of public diplomacy, convey respect for
human dignity, assist in providing education for their children, and offer hope for economic
opportunity. The Commission recommended that America more aggressively promote its
values and advertise the aid given by the citizens of the United States. The Commission
specifically recommended increasing funding for such public diplomacy activities as
international broadcasting, exchanges, and overseas library programs, targeting these activities
toward the youth.
Congressional Response
The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) contained several
measures intended to increase U.S. government public diplomacy activities as recommended by
the 9/11 Commission. Sense of Congress provisions affirmed that the U.S. government should
offer an example of values and respect for human dignity and should work with other
governments to provide human dignity, economic opportunity, and tolerance. Furthermore, the
United States should promote the ideas of individual freedom, educational opportunity, political
participation and tolerance for opposing points of view.
37
Prepared by (name redacted), Specialist in Foreign Policy and Trade, Foreign Affairs, Defense, and Trade Division.
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Other provisions:
•
stated that it is United States policy to promote free media and journalistic
integrity overseas through public diplomacy programs and required establishing
a media network with grants provided to the National Endowment for
Democracy (NED) and authorizes such sums as may be necessary to establish
the media network.
•
required the Secretary of State to make public diplomacy an integral component
in U.S. foreign policy and coordinate public diplomacy activities with all
agencies as well as the Broadcasting Board of Governors.
•
urged the Secretary of State to recruit, hire, train and promote Foreign
Service Officers with an emphasis on public diplomacy and foreign languages
of Muslim populations.
•
declared that the President and Secretary of State should use the weight of the
United States to promote public diplomacy in multilateral organizations and shall
provide public diplomacy training for Foreign and Civil Service personnel who
represent the United States in multilateral organizations.
For the Consolidated Appropriations Act of FY2005 (P.L. 108-447), conferees noted that
alarming public opinion polls and media content continue to reveal profound anti-American
sentiments and direct the Department of State to submit reports outlining the criteria for
measuring performance of expanded public diplomacy efforts. This Act expanded funding for
international information programs, cultural exchanges and international broadcasting,
particularly in Muslim populations.
The 109th Congress made some gains in meeting the public diplomacy recommendations of the
9/11 Commission largely through the appropriations process. The Foreign Operations, Export
Financing, and Related Programs Appropriation, FY2006 (P.L. 109-102) established a new
account entitled Democracy Fund. This account is intended to increase effectiveness and
oversight of programs that promote democracy, governance, human rights, independent media,
and the rule of law globally. Within this new account amounting to $95 million for FY2006 is
additional funding for the National Endowment for Democracy (NED), as well as other programs
and countries.
Within the State Department appropriation for FY2006 (P.L. 109-108) Congress increased
funding for already-established public diplomacy programs, including educational and cultural
exchanges, international broadcasting, and regular appropriations for the NED. Additional
funding for public diplomacy programs, specifically U.S. broadcasting into Iran, was included in
the FY2006 supplemental (P.L. 109-234).
The 109th Congress also considered, but did not pass, Foreign Relations Authorization legislation
(H.R. 2601/S. 600) which included measures to authorize grants be extended to the Middle East
Broadcasting Networks (MBN), subject to specified limitations and restrictions, such as the
Broadcasting Board of Governors (BBG) taking full responsibility for the direction taken by
the MBN.
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Terrorist Financing38
Commission Concerns and Recommendations
The report of the National Commission on Terrorist Attacks Upon the United States (the 9-11
Commission report) sought to refocus the policy debate concerning terrorist financing. The
Commission recommended that the Bush Administration shift its focus from seizing terrorist
funds to tracking terrorist financial networks in order to gain actionable counter-terrorism
intelligence. 39 The Commission also emphasized terrorist organizations’ increasing shift to
informal methods of money transfer such as hawala or hundi.40
These recommendation have led to an ongoing discussion over the sources and methods used to
collect financial intelligence. For example, Congress has investigated efforts by the Department
of the Treasury to track international transfers of funds to and from terrorists by accessing
information held by the Society for Worldwide Interbank Financial Telecommunication
(SWIFT).41 SWIFT is a Brussels-based entity that serves as a major hub for international
communications among banks and other financial institutions.
Given the experience of the five years since 9/11, legislators and executive branch officials have
determined that combating terrorist financing requires effective coordination of many different
federal government activities including intelligence gathering, financial regulation, law
enforcement, and building international coalitions. Improving the interagency coordination of
U.S. counter-terrorist financing efforts remains one of the largest challenges for the U.S.
government. According to a 2006 Government Accountability Office report, “the U.S.
government lacks an integrated strategy to coordinate the delivery of counter-terrorism financing
training and technical assistance to countries it deems vulnerable to terrorist financing.”42 The
report recommends, among other things, that the Secretaries of State and the Treasury implement
an integrated strategic plan and a Memorandum of Agreement for the delivery of training and
technical assistance.
In an effort to focus U.S. counter-terrorist financing efforts, in March 2004, the Department of the
Treasury created the Office of Terrorism and Financial Intelligence (TFI). TFI was designed to
integrate several offices within Treasury: the Office of Terrorist Financing and Financial Crime
(TF/FC), the Office of Foreign Assets Control (OFAC), the Financial Crimes Enforcement
Network (FinCEN), the Office of Intelligence and Analysis (OIA), and the Treasury Executive
38
Prepared by (name redacted), Analyst in International Trade and Finance, Foreign Affairs, Defense and Trade.
According to Commission Chairman Thomas Kean, “Right now we have been spending a lot of energy in the
government trying to dry up sources of funding ... , obviously if you can dry up money, you dry it up, but we believe
one thing we didn’t do effectively is follow the money. That’s what we have to do.” Quoted in Laura Sullivan, “U.S.
Split on Tracing, Freezing Terror Funds,” Baltimore Sun, Aug. 2, 2004.
40
See Nikos Passos, “Hawala and Other Informal Value Transfer Systems: How to Regulate Them?” available at
http://usinfo.state.gov/eap/Archive_Index/
Hawala_and_Other_Informal_Value_Transfer_Systems_How_to_Regulate_Them.html
41
CRS Report RS22469, Treasury’s Terrorist Finance Program’s Access to Information Held by the Society for
Worldwide Interbank Financial Telecommunication (SWIFT), by (name redacted) and (name redacted).
42
Terrorist Financing: Better Strategic Planning Needed to Coordinate U.S. Efforts to Deliver Counter-Terrorism
Financing Training and Technical Assistance Abroad, United States Government Accountability Office, October 2005,
GAO 06-19.
39
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Office for Asset Forfeiture (TEOAF). In addition to an Under Secretary, four new senior level
positions were created: Assistant and Deputy Assistant Secretaries for Terrorist Financing and
Assistant and Deputy Assistant Secretaries for Intelligence and Analysis.
Congressional Responses
Several sections of the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)
address terrorist financing. The Act made technical corrections to the International Money
Laundering Abatement and Anti-Terrorist Financing Act, Title III of the USA PATRIOT Act (P.L.
107-56) (Sec. 6202); authorized the Treasury to produce currency, postage stamps, and other
security documents for foreign governments subject to certain conditions (Sec. 6301); and
reauthorized funds for the biannual money laundering and financial crimes strategy report, the
most recent of which was released in 2003 (Sec. 6102).43 As of November 2006, the expected
2005 national money laundering and financial crimes strategy report has not been released.
The Act authorized funding to improve FinCEN (Sec. 6101). The Act authorized $19 million for
improvements related to FinCEN’s telecommunications and analytic capacity and authorized
$16.5 million for the development of FinCEN’s Bank Secrecy Act (BSA) Direct program. In June
2004, Treasury established the BSA Direct Retrieval and Sharing program (BSA R&S). This
program was designed to make it easier for law enforcement to access and analyze BSA data and
to improve overall data management. Treasury had trouble implementing the BSA R&S program
due to problems with its main contractor, Electronic Data Systems. On July 13, 2006, FinCEN
halted the program. 44 Robert Werner, FinCEN Director, testified on September 12, 2006 that
FinCEN is initiating a “re-planning effort” for the retrieval and sharing component of BSA
Direct. No expected completion date has been announced. 45
The Act required the Secretary of the Treasury to prescribe regulations requiring selected
financial institutions to report to FinCEN certain cross-border electronic transmittals of funds
(wire-transfers) (Sec. 6302). New regulations must be promulgated by December 2007. Treasury
is currently determining the feasibility and impact of these additional reporting requirements.46
The Act required the President to submit to Congress a report evaluating and making
recommendations on: (1) the effectiveness of efforts and methods to track terrorist financing;
(2) ways to improve governmental cooperation; (3) ways to improve the performance of financial
institutions; (4) the adequacy of agency coordination and ways to improve that coordination;
and (5) recommendations for changes in law and additional resources required to improve this
effort (Section 6303). This report was due in September 2005 and has not yet been submitted
to Congress.47
43
“2003 National Money Laundering Strategy Report,” Department of the Treasury, available at
http://www.ustreas.gov/offices/enforcement/publications/ml2003.pdf.
44
FinCEN Halts BSA Direct Retrieval and Sharing Project, Treasury Press Release, July 13, 2006, available at
http://www.fincen.gov/bsa_direct_nr.html.
45
Statement of Robert W. Werner, Director, Financial Crimes Enforcement Network United States Department Of The
Treasury before The Senate Banking Committee, September 12, 2006, available at http://www.ustreas.gov/press/
releases/hp101.htm.
46
FinCEN seeks industry input on feasibility of collection of cross-border wire transfer data, Treasury Press Release,
March 10, 2006, available at http://www.fincen.gov/fincennewsrelease03102006.html.
47
Phone discussion with Treasury Legislative Affairs, November 29, 2006.
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The Act requires the Secretary of the Treasury to work with the International Monetary Fund
(IMF) to combat terrorist financing and to testify before Congress on the status of implementation
of international anti-money laundering and counter-terrorist financing standards by the IMF and
other multilateral agencies (Sec. 7703). The IMF is actively involved in establishing anti-money
laundering standards and continues to review the anti-money laundering frameworks of IMF
member countries.48
The Secretary of the Treasury is also required to continue to convene the interagency United
States Government Financial Action Task Force (FATF) working group to review and develop
U.S. and international anti-money laundering standards (Sec. 7704).49 The U.S. government is
actively involved in FATF operations and has promoted the adoption of international anti-terrorist
financing best practices through engagement with and support of a number of FATF-style
regional bodies, such as the Middle East and North Africa (MENA) FATF. In March 2006, the
Treasury Department established a U.S.-MENA Private Sector Dialogue. A similar dialogue with
the Latin American financial community is underway and Treasury is planning to hold an antimoney laundering conference in Latin America in early 2007.50
U.S. Military Forces and the War on Terrorism51
Commission Concerns and Recommendations
Recommendation 32 of the 9/11 Commission Report states that “the lead responsibility for
directing and executing paramilitary operations, whether clandestine or covert, should shift to
the Defense Department. There it should be consolidated with the capabilities for training,
direction, and execution of such operations already being developed in the Special Operations
Command.” (Page 415).
The 9-11 Commission’s apparent concern appeared to be both performance and cost-based. The
report states that the CIA did not sufficiently invest in developing a robust capability to conduct
paramilitary operations with U.S. personnel prior to 9/11, and instead relied on improperly trained
proxies (foreign personnel under contract) resulting in an unsatisfactory outcome. The report also
states that the United States does not have the money or people to build “two separate capabilities
for carrying out secret military operations,” and suggests that we should “concentrate
responsibility and necessary legal authorities in one entity.”
48
“IMF Executive Board Reviews the Quality and Consistency of Assessment Reports for Anti-Money Laundering and
Combating the Financing of Terrorism and the Effectiveness of Coordination,” International Monetary Fund Public
Information Notice (PIN) No. 06/72.
49
The Financial Action Task Force is an inter-governmental body whose purpose is the development and promotion of
national and international policies to combat money laundering and terrorist financing. For more information on the
Financial Action Task Force, see Financial Action Task Force Annual Report 2005-2006,available at http://www.fatfgafi.org/dataoecd/38/56/37041969.pdf and CRS Report RS21904, The Financial Action Task Force: An Overview, by
(name redacted).
50
Testimony of Daniel Glaser, Deputy Assistant Secretary for Terrorist Financing and Financial Crimes before the
Senate Committee on Banking, Housing, and Urban Affairs, September 12, 2006, available at
http://banking.senate.gov/_files/glaser.pdf.
51
Prepared by (name redacted), Specialist in National Defense, Foreign Affairs, Defense, and Trade Division.
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Congressional Responses
Relevant Provisions Enacted by Congress
Section 1013 of P.L. 108-458 requires the National Intelligence Director, in consultation with the
Secretary of Defense and the Director of the Central Intelligence Agency to develop joint
procedures to improve the coordination and deconfliction in the planning, execution, and
sustainment of operations involving DOD and the CIA. It also requires information exchange
between the Secretary of Defense and Director CIA, so that senior operational officials have
knowledge of the existence of all ongoing operations. When appropriate, it requires mutual
agreement on tactical and strategic objectives.
Policy Concerns Not Addressed
P.L. 108-458 did not address the recommended shift of responsibility for paramilitary operations
from the CIA to DOD. Some speculated that this particular issue was too complex and
contentious to be included in intelligence reform legislation and that it required further study and
analysis. Others suggested that there was no need to shift responsibilities, only to improve
coordination and planning between the CIA and DOD which Section 1013 addresses.
Options Considered by the 109th Congress
The 109th Congress did not address this issue legislatively. On November 23, 2004, President
Bush issued a letter requiring the Secretary of Defense and the Director of Central Intelligence to
review matters relating to Recommendation 32 and submit their advice to him by February 23,
2005. This review directed the examination of all aspects including legal, funding, operational,
and supporting infrastructure. A preliminary Pentagon study reportedly concluded that DOD
should not take over the paramilitary responsibility from the CIA. 52 In unclassified testimony to
the Senate Select Committee on Intelligence in February 2005, the Director of the CIA testified
that the CIA and DOD disagreed with the 9-11 Committee’s recommendation. 53 In June of 2005 it
was reported that the Secretary of Defense and the Director of the Central Intelligence Agency
responded to the President, stating that “neither the CIA nor DOD endorses the commission’s
recommendation on shifting the paramilitary mission or operations.”54 The Administration
apparently accepted DOD’s and the CIA’s recommendation and reportedly rejected the 9-11
Commission’s recommendation to shift the responsibility for paramilitary operations to DOD. 55
52
Ann Scott Tyson, “Study Urges CIA Not to Cede Paramilitary Functions to Pentagon,” Washington Post, Feb. 5,
2005, p. 8.
53
Transcripts, Senate Select Committee on Intelligence, Subject: National Security Threats to the United States,
Federal New Service, February 16, 2005, p. 29.
54
John J. Lumpkin, “Rumsfeld, Goss Oppose DOD Assumption of CIA Paramilitary Covert Operations,” Army Times,
June 29, 2005.
55
Douglas Jehl, “White House is Said to Reject Panel’s Call for a Greater Pentagon Role in Covert Operations,” New
York Times, June 28, 2005.
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Weapons of Mass Destruction: Proliferation Security
and Threat Reduction56
Commission Concerns and Recommendations
In view of intelligence assessments that al-Qaeda has been seeking to acquire weapons of mass
destruction for several years, the 9/11 Commission concluded that WMD nonproliferation efforts
should be expanded and provided additional resources. Specifically, the Commission
recommended: (1) the development of an international legal regime “with universal jurisdiction”
to interdict, capture, and prosecute those trafficking in WMD and related technology; (2) the
expansion of the Proliferation Security Initiative (PSI) to include Russia, China, and all NATO
countries; (3) the expansion of the Cooperative Threat Reduction (CTR) program and the
provision of additional financial resources.
Congressional Responses
There has been no congressional initiative regarding the establishment of an international WMD
anti-smuggling regime, aside from the continued full funding of the Proliferation Security
Initiative (PSI).57 The Administration has secured the passage of United Nations Resolution 1540
which requires member states to criminalize proliferation, establish export controls over WMDrelated technology, and secure WMD-related materiel. The resolution does not provide for
enforcement, nor address the establishment of any international anti-smuggling regime.
Members of the 109th Congress introduced several bills and resolutions that called for
strengthening and expanding the PSI: S.Con.Res. 36, H.Con.Res. 133, S.Con.Res. 40, H.R. 422,
H.R. 665, H.R. 5017/S. 3456, and S. 2566. None, however, was brought to the floor of either
chamber. Geographic expansion remains a key issue—particularly how to engage China and
India, as well as states in important regions like the Arabian Peninsula. The 110th Congress may
consider how intelligence resources are handled. Is intelligence sufficient and are there
intelligence-sharing requirements with non-NATO allies? Also, how is PSI coordinated with other
federal interdiction-related programs (e.g., export control assistance)? One potential complication
for congressional oversight of PSI is the absence of a way to measure PSI’s success, relative to
past efforts.
The Cooperative Threat Reduction (CTR) program (also known as Nunn-Lugar), which is
administered by DOD’s Threat Reduction Agency, continues to receive congressional funding
support. In the FY2004 National Defense Authorization Act (P.L. 108-176, Sec. 1308), Congress
authorized the Bush Administration to spend $50 million of unobligated funds from the
Cooperative Threat Reduction Program in states outside the former Soviet Union. As of
56
Prepared by (name redacted) and (name redacted), Specialists in National Defense, Foreign Affairs, Defense, and
Trade Division.
57
The PSI is an agreement among some nations to cooperate in the detection and interdiction of illicit WMD-related
materiel shipments. Currently, sixteen nations are PSI participants. See also CRS Report RS21881, Proliferation
Security Initiative (PSI), by (name redacted).
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September 2006, the Administration had spent such funds only in Albania ($38.5 million) for the
purpose of eliminating chemical weapons stockpiles.
The 109th Congress considered the following legislation that could restrict the provision of CTR
assistance to some countries. The State Department’s annual foreign operations appropriations
bill, the Foreign Operations, Export Financing, and Related Programs Appropriations Act,
includes provisions that prohibit assistance to certain countries. Section 507 of the FY2006
foreign operations appropriations bill (P.L. 109-102) states that no funds will be “obligated or
expended to finance directly any assistance or reparations to Cuba, Libya, North Korea, Iran, or
Syria.” The FY2007 bill passed in the House (H.R. 5522) and awaiting passage in the Senate
includes the same provision. The Iran Freedom Support Act, introduced in both the House and the
Senate (H.R. 282/S. 333), could make supplying CTR assistance to Iran more difficult. The IranLibya Sanction Act (P.L. 104-172) has been extended through September 2011, pursuant to the
Iran Freedom Support Act (P.L. 109-293). Sudan has been severely limited from receiving U.S.
assistance since 1997 by a combination of executive order and U.S. law. These include Executive
Order 13067, Section 520 of the Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 2006 (P.L. 109-102), the Comprehensive Peace in Sudan Act of 2004 (P.L.
108-497) and The Sudan Peace Act (P.L. 107-245). The 109th also considered legislation that
could affect third party states, or any state that could potentially receive CTR assistance, to the
extent such states are considered for these initiatives. For example, Section 542 of the FY2006
foreign operations bill (P.L. 109-102) prohibited assistance to countries that provide lethal
military equipment to State Sponsors of Terrorism. Other examples include P.L. 109-267 which
extended the Iran-Libya Sanctions Act, the Iran Nonproliferation Amendments Act (P.L. 109112), which added Syria to that Act, and the North Korea Nonproliferation Act of 2006 (S. 3728),
which added North Korea to the Iran—Syria Nonproliferation Act.58
Border Security and Immigration59
Terrorist Travel
Commission Concerns and Recommendations
The 9/11 Commission issued several recommendations that directly pertain to immigration law
and policy. These recommendations focused primarily on targeting terrorist travel through an
intelligence and security strategy based on reliable identification systems and effective, integrated
information-sharing, including the expansion and consolidation of the border-screening systems.
More specifically, the 9/11 Commission concluded that targeting travel is at least as powerful a
weapon against terrorists as targeting their money, and recommended that the United States
combine intelligence, operations, and law enforcement in a strategy to intercept terrorists, find
terrorist travel facilitators, and constrain terrorist mobility.
58
See also, CRS Report RL32359, Globalizing Cooperative Threat Reduction: A Survey of Options, by
(name redacted).
59
Prepared by (name redacted), Specialist in Immigration Policy, Domestic Social Policy Division.
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Congressional Response60
The Intelligence Reform and Terrorism Prevention Act (ITRPA) of 2004 (P.L. 108-458) included
several provisions aimed at targeting terrorist travel. The Act calls for the accelerated deployment
of the biometric entry and exit system to process or contain certain data on aliens and their
physical characteristics (see discussion below).61 It required an in-person consular interview of
most applicants for nonimmigrant visas between the ages of 14 and 79, and also required an alien
applying for a nonimmigrant visa to completely and accurately respond to any request for
information contained in his or her application.62 The Act also expanded the pre-inspection
program that places U.S. immigration inspectors at foreign airports, increasing the number of
foreign airports where travelers would be pre-inspected before departure to the United States.
Moreover, it required individuals entering the United States (including U.S. citizens and visitors
from Canada and other Western Hemisphere countries) to bear a passport or other documents
sufficient to denote citizenship and identity.
The Act required improvements in technology and training to assist consular and immigration
officers in detecting and combating terrorist travel. It (1) established the Human Smuggling and
Trafficking Center, which included an interagency program devoted to countering terrorist travel;
(2) required the Secretary of Homeland Security, in consultation with the Director of the National
Counter Terrorism Center, to establish a program to oversee DHS’s responsibilities with respect
to terrorist travel; and (3) established a Visa and Passport Security Program within the Bureau of
Diplomatic Security at the Department of State.
In the 109th Congress, the REAL ID Act of 2005 (P.L. 109-13, Division B), among other things,
required DHS to: conduct a study on U.S. border security vulnerabilities; establish a pilot
program to test ground surveillance technologies on the northern and southern borders to enhance
U.S. border security; and implement a plan to improve communications systems and informationsharing between federal, state, local, and tribal agencies on matters relating to border security.
DHS was also required to submit reports to Congress regarding its implementation of these
requirements. 63 The Secure Fence Act (P.L. 109-367) required DHS to deploy double-layer
fencing to 850 miles of the U.S. international border with Mexico. 64
60
For further analysis, see CRS Report RL32616, 9/11 Commission: Legislative Action Concerning U.S. Immigration
Law and Policy in the 108th Congress, by (name redacted) and (name redacted).
61
For background and analysis, see CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology
(US-VISIT) Program, by Lisa M. Seghetti and (name redacted).
62
For background and analysis, see CRS Report RL31512, Visa Issuances: Policy, Issues, and Legislation, by (name
redacted).
63
For further discussion, see CRS Report RL33125, Immigration Legislation and Issues in the 109th Congress, by
(name redacted) et al. For a legal analysis of the REAL ID Act, see CRS Report RL32754,Immigration: Analysis of the
Major Provisions of the REAL ID Act of 2005, by (name redacted), (name redacted), and (name redacted).
64
For more information on border fencing, see CRS Report RL33659, Border Security: Barriers Along the U.S.
International Border, by (name redacted), Yule Kim, and (name redacted).
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Terrorist Screening and Watch Lists65
Commission Concerns and Recommendations
The 9/11 Commission concluded that the U.S. intelligence and law enforcement community
missed several vital opportunities to watch-list and screen several conspirators involved in the
9/11 terrorist attacks.66 In addition, the Commission recommended that U.S. border security
systems be integrated with other systems to expand the network of screening points to include the
nation’s transportation system and access to vital facilities.67 Despite problems with high-profile
misidentifications,68 the Commission also recommended that the controversial “No-Fly” and
“Automatic Selectee” lists maintained by the DHS’s Transportation Security Administration be
improved without delay.69
Congressional Response
In the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), Congress
included several watch list related airline passenger prescreening provisions that require that
airline passengers, among others, be prescreened against the consolidated terrorist watch list
database. Another provision requires the Administration to report to Congress on (1) the criteria
used to place persons on terrorism-related watch lists, and (2) the privacy and civil liberty
implications of the further use of the “No Fly” and “Automatic Selectee” lists. These and other
aviation security provisions are described below under “Transportation Security.”
Related Administrative Response
Under Homeland Security Presidential Directive 6 (HSPD-6),70 the Bush Administration elevated
and expanded terrorist identification and watch-list functions by establishing a consolidated
terrorist watch list database.71 Undergirding these screening processes is a consolidated Terrorist
Screening Database (TSDB), which under HSPD-6 has been established and maintained by the
Terrorist Screening Center (TSC)—a multi-agency effort administered by the Federal Bureau of
Investigation (FBI). Among other things, the TSC provides support to:
65
Prepared by (name redacted), Specialist in Domestic Security, Domestic Social Policy Division.
66
National Commission on Terrorist Attacks upon the United States, “Three 9/11 Hijackers: Identification,
Watchlisting, and Tracking,” Staff Statement no. 2, (Washington, 2004), p. 1.
67
National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, p. 387.
68
Sara Kehaulani Goo, “Committee Chairman Runs Into Watch-List Problem: Name Similarity Led to Questioning at
Anchorage and Seattle Airports, Alaska Congressman Says,” Washington Post, Sept. 30, 2004, p. A17, and “Hundreds
Report Watch-List Trials: Some Ended Hassles at Airports by Making Slight Change to Name,” Washington Post, Aug.
21, 2004, p. A08.
69
According to the FBI, the “No Fly” and “Automatic Selectee” lists have been consolidated in the TSDB and the
lookout records on those lists are being expanded and improved. U.S. Department of Justice, Federal Bureau of
Investigation, Criminal Justice Information Services (CJIS) Division, “Terrorist Screening Center Consolidates Data
for Law Enforcement Needs,” The CJIS LINK, vol. 7, No. 4, October 2004, pp. 1-2.
70
The TSC was established under HSPD-6. See, The White House, Homeland Security Presidential Directive/HSPD-6,
Subject: Integration and Use of Screening Information (Washington, Sept. 16, 2003). Available at
http://www.whitehouse.gov/news/releases/2003/09/20030916-5.html.
71
For further information, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under
Homeland Security Presidential Directive 6, by (name redacted).
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•
the Department of State’s Bureau of Consular Affairs by issuing terrorism-related
security advisory opinions for visa issuance purposes;
•
the Department of Homeland Security’s (DHS’s) Customs and Border Protection
in evaluating potential matches between terrorist lookout records and persons
entering the United States at international ports of entry; and
•
nearly 750,000 state and local law enforcement officers to whom limited TSDB
lookout records have been made available through the National Crime
Information Center.
In April 2006, the DHS Privacy Office issued a report assessing the impact of the “No Fly” and
“Automatic Selectee” lists on privacy and civil liberties.72 The report cited concerns about the
quality of the information of those lists, as well as the underlying intelligence.73 The report also
noted allegations about profiling on the basis of race, religion, or national origin, but reported that
it could not substantiate those allegations.74
In regard to the criteria used to place individuals on terrorist watch lists, it is unknown whether
the Administration reported to Congress on this matter. Nevertheless, the Privacy Office report
stressed that those criteria could not be made public without: (1) comprising intelligence and
security, or (2) allowing persons wishing to avoid detection to subvert those lists.75
In addition, in late September 2006, the Government Accountability Office (GAO) released a
report on efforts to reduce the adverse effects of terrorist watch list screening, outlining measures
that DHS and the TSC had taken to reduce and alleviate misidentifications. 76 It also noted that
while the total number of misidentifications is unknown, their frequency, which is estimated to be
in the tens-of-thousands, remains a serious concern.77
72
U.S. Department of Homeland Security, DHS Privacy Office Report on Assessing the Impact of the Automatic
Selectee and No Fly Lists on Privacy and Civil Liberties as Required Under Section 4012(b) of the Intelligence Reform
and Terrorism Prevention Act of 2004, April 27, 2006, 22 pp.
73
Ibid., p. 8.
74
Ibid., p. 9.
75
Ibid.
76
U.S. Government Accountability Office, Terrorism Watch List Screening: Efforts to Help Reduce Adverse Effects on
the Public, GAO-06-1031, Sept. 2006, p. 55.
77
Ibid., p. 12.
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Biometric Screening System and Data Systems Integration78
Commission Concerns and Recommendations
The 9/11 Commission called for the expeditious implementation of “a biometric entry-exit
screening system, including a single system for speeding qualified travelers.” With respects to
biometrics, the 9/11 Commission noted the following: “Biometrics have been introduced into an
antiquated computer environment” and that “replacement of these systems and improved
biometric systems will be required.” The 9/11 Commission also recommended the integration of
the various border screening systems with the US-VISIT system, including frequent traveler
programs such as NEXUS and the Secure Electronic Network for Travelers’ Rapid Inspections
(SENTRI).79
Congressional Responses80
In an effort to implement the 9/11 Commission recommendations, Congress passed the
Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458). Previously, Congress
passed legislation that mandated DHS to implement entry and exit controls and integrate
immigration-related databases and data systems.
Congress first mandated that the former Immigration and Naturalization Service (INS) implement
an automated entry and exit data system that would track the arrival and departure of every alien
in §110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA;
P.L. 104-208).81 Several provisions in the Enhanced Border Security and Visa Entry Reform Act
(Border Security Act; P.L. 107-173) and the Intelligence Reform and Terrorism Prevention Act of
2004, however, required the immediate implementation of an automated entry and exit data
system and called for enhancements in its development, including a requirement that biometric
identifiers be used in all visas and other travel documents and that the entry and exit data system
be interoperable with other law enforcement and national security databases. Congress, however,
first required the entry and exit data system be interoperable with other law enforcement systems
in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (PATRIOT Act; P.L. 107-56). The PATRIOT Act was also the first
time Congress required the development and certification of a technology standard that has the
capacity to verify the identity of persons applying for a visa or seeking to enter the United States.
78
79
Prepared by (name redacted), Analyst in Domestic Security, Domestic Social Policy Division.
Ibid, pp. 388-389.
80
For further information on the U.S. VISIT program and immigration-related border security measures passed by
Congress, see CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, by
Lisa M. Seghetti and (name redacted); and CRS Report RL31727, Border Security: Immigration Issues in the 108th
Congress, by Lisa M. Seghetti.
81
Subsequent legislation amended §110 of IIRIRA by either changing the scope of categories of aliens who would be
subjected to entry and exit controls, or delayed implementation of the system. See the INS Data Management
Improvement Act (DMIA; P.L. 106-215); the Visa Waiver Permanent Program Act (VWPPA; P.L. 106-396).
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The Intelligence Reform and Terrorism Prevention Act of 2004 called for the Secretary of DHS
(Secretary) to develop a plan to accelerate the full implementation of an automated biometric
entry and exit data system and to submit a report to Congress on the plan by July 17, 2005. The
Act required the entry and exit data system to collect “biometric exit data for all categories of
individuals who are required to provide biometric entry data.”
The Act also required the integration of all databases and data systems that process or contain
information on aliens by December 2006. The Act required the integrated data system to be an
interoperable component of the entry and exit data system. The Act further required the Secretary
to fully implement the interoperable electronic data system as specified in the Border Security
Act. In addition to the integration of the entry and exit data system with other databases and data
systems, the Act required the Secretary to develop and implement a plan to expedite the
processing of registered travelers through a single registered traveler program that can be
integrated into the broader automated biometric entry and exit data system.
Standards for Identification Documents82
Commission Concerns and Recommendations
The 9/11 Commission recommended that standards should be set “for the issuance of birth
certificates and sources of identification, such as drivers licenses.” The 9/11 Commission noted
that fraudulent documents are “ ... no longer just a problem of theft,” and that ports of entry are
“the last opportunity to ensure that people are who they are ... ” Additionally, the 9/11
Commission recommended the elimination of the “Western Hemisphere Exception,” whereby
U.S. citizens returning from countries in the Western Hemisphere, and some citizens from
designated Western Hemisphere nations, are not required to show a passport when entering the
United States (but they are required to demonstrate citizenship). In doing so, the 9/11
Commission advocated for ensuring that all individuals presenting themselves for entry into the
United States present biometric passports or other identification allowing their identities to be
securely verified.
Congressional Response
In the 108th Congress, the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108458) required the establishment of new standards aimed at ensuring the integrity for federal use of
birth certificates, state-issued driver’s licenses and identification cards, and social security cards.
States may receive grants to assist them in implementing the proposed birth certificate and
driver’s license standards.83 In the 109th Congress, the REAL ID Act of 2005 (P.L. 109-13,
Division B) addressed this issue more directly, and while the Act does not directly impose
federal standards with respect to states’ issuance of driver’s licenses and personal identification
cards, states nevertheless appear to need to adopt such standards and modify any conflicting
82
Prepared by (name redacted), Specialist in Immigration Policy, and (name redacted), Analyst in Domestic
Security, Domestic Social Policy Division.
83
For further discussion, see CRS Report RL32722, Intelligence Reform and Terrorism Prevention Act of 2004:
National Standards for Driver’s Licenses, Social Security Cards, and Birth Certificates, by (name redacted).
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laws or regulations in order for such documents to be recognized by federal agencies for
official purposes.84
The Intelligence Reform and Terrorism Prevention Act of 2004 also addressed the “Western
Hemisphere Exception” by requiring individuals entering the United States (including U.S.
citizens and visitors from Canada and other Western Hemisphere countries) to bear a passport or
other documents sufficient to denote citizenship and identity as of January 1, 2008. In the 109th
Congress, the fiscal year (FY) 2007 DHS Appropriations Act (P.L. 109-295) extended this
deadline to the earlier of two dates: June 1, 2009; or no later than three months after the Secretary
of Homeland Security and the Secretary of State certify that a series of implementation
requirements have been met. 85
Other Immigration Concerns86
Commission Concerns
Reforming the enforcement of immigration law is an underlying theme of the recommendations
made by the 9/11 Commission. The 9/11 Commission concluded that the key officials responsible
for determining alien admissions (consular officers abroad and immigration inspectors in the
United States) were not considered full partners in counterterrorism efforts prior to September 11,
2001, and as a result, opportunities to intercept the September 11 terrorists were missed.87
They further recommended that the U.S. border security system be integrated into a larger
network of screening points that includes our transportation system and access to vital facilities,
such as nuclear reactors. In addition, they maintained that the Department of Homeland
Security, with proper support from Congress, should complete a biometric entry-exit screening
system, including a single system for speeding qualified travelers, as quickly as possible. They
also expressed the view that the U.S. government cannot meet its own obligations to the
American people to prevent the entry of terrorists without a major effort to collaborate with
other governments. 88
Congressional Response
The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) included many
immigration-related provisions aimed at addressing broad immigration enforcement concerns
raised by the 9/11 Commission. The major features of these immigration-related provisions are
summarized below. 89
84
For a legal analysis of the REAL ID Act, see CRS Report RL32754, Immigration: Analysis of the Major Provisions
of the REAL ID Act of 2005, by (name redacted), (name redacted), and (name redacted).
85
For further discussion, see CRS Report RL33125, Immigration Legislation and Issues in the 109th Congress, by
(name redacted) et al.
86
Prepared by (name redacted), Specialist in Immigration Policy, Domestic Social Policy Division.
87
U.S. National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, Executive
Summary, p. 14, July 2004 (hereafter The 9/11 Commission Report).
88
For a discussion of these recommendations, see The 9/11 Commission Report, Chapter 12.4, pp. 383-389, July 2004.
89
For further analysis, see CRS Report RL32616, 9/11 Commission: Legislative Action Concerning U.S. Immigration
Law and Policy in the 108th Congress, by (name redacted) and (name redacted).
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9/11 Commission Recommendations: Implementation Status
Grounds for Alien Exclusion, Removal, and Relief from Removal
The Intelligence Reform and Terrorism Prevention Act made any alien deportable who has
received military training from or on behalf of an organization that, at the time of training, was a
designated terrorist organization. It also made the revocation of a nonimmigrant visa by the State
Department grounds for removal. The visa revocation, however, is reviewable in a removal
proceeding in cases where visa revocation provides the sole ground for removal. The Act made
inadmissible and deportable any alien who (1) has ordered, incited, assisted, or participated in
conduct that would be considered genocide under U.S. law; (2) committed or participated in an
act of torture or an extrajudicial killing; or (3) while serving as a foreign official, was responsible
for or directly carried out, at any time, particularly severe violations of religious freedom. The Act
also required the Government Accountability Office to conduct a study evaluating the degree that
weaknesses in the current U.S. asylum system have been or could be exploited by aliens involved
in terrorist-related activity.
Allocation of Additional Resources to Improve Enforcement
The Act authorized the Secretary of State to increase the number of consular officers by 150 per
year from FY2006 through FY2009 above the number of such positions for which funds were
allotted for the preceding fiscal year. It also increased the numbers of border patrol agents by not
less than 2,000, in each year FY2006 through FY2010, and required a number of agents equaling
at least 20% of each year’s increase in agents to be assigned to the northern border. The Act also
increased the number of ICE investigators by not less than 800 in each year FY2006 through
FY2010, and required an increase in the number of beds available for immigration detention and
removal operations by not less than 8,000 over the same period. Further, the Act established a
pilot program to test advanced technologies to improve border security between ports of entry
along the northern border of the United States. It also required the Secretary of Homeland
Security to submit to the President and Congress a plan for the systematic surveillance of the
southwest border of the United States by remotely piloted aircraft, and to implement such plan as
a pilot program.
In the 109th Congress, the REAL ID Act required DHS to develop a pilot program to increase the
use of ground-surveillance technologies, including video cameras, sensors, and motion-detection
technology, to monitor the northern and southwestern borders. The Secure Fence Act (P.L. 109367) required DHS to deploy double-layer fencing to 850 miles of the U.S. international border
with Mexico.90
Penalties for Immigration-Related Fraud and Alien Smuggling
The Intelligence Reform and Terrorism Prevention Act increased criminal penalties for alien
smuggling in certain circumstances and required the Secretary of Homeland Security to develop
an outreach program in the United States and overseas to educate the public about the penalties
for illegally bringing in and harboring aliens.
90
For more information on border fencing, see CRS Report RL33659, Border Security: Barriers Along the U.S.
International Border, by (name redacted), Yule Kim, and (name redacted).
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Transportation Security
Aviation Security91
Commission Concerns and Recommendations92
The 9/11 Commission expressed concerns over air cargo security, the security of general aviation
aircraft, screening of airline passengers and baggage, and access controls at airports. The 9/11
Commission made several specific recommendations to address these concerns.
The 9/11 Commission recommended that improved passenger prescreening not be further delayed
by the long-running argument about a successor to the existing computer assisted passenger
prescreening (CAPPS) program run by the airlines.93 The 9/11 Commission recommended that
the Transportation Security Administration (TSA) take over the function of prescreening
passenger names using the larger set of watchlists maintained by the federal government and that
the airlines should be compelled to provide the data needed to test and implement this new
prescreening system.
The 9/11 Commission also recommended that the TSA and the Congress give priority attention to
improving checkpoint screening for detecting explosives on passengers. It recommended that the
TSA also conduct a human factors study to examine screener performance, and establish
objectives for screeners and screening checkpoints.
The Commission expressed continued concerns over the screening of checked baggage and
cargo. It indicated that the TSA should expedite the installation of advanced in-line baggage
screening systems that are integrated with airport baggage processing systems. The Commission
noted that, because the aviation industry will derive substantial benefits from this deployment, it
should pay a fair share of the associated costs, although the commission did not provide
specifics regarding recommended allocation of contributions to pay for in-line explosive
detection systems integration.
The Commission recommended that the TSA intensify efforts to identify, track, and screen
potentially dangerous cargo in aviation as well as in maritime operations. Additionally, the
Commission specifically recommended the deployment of at least one hardened cargo container
on every passenger aircraft that also hauls cargo to carry any suspicious shipments.
In addition to these recommendations directly addressing aviation security, the 9/11 Commission
also urged establishing risk-based priorities for protecting transportation assets in all modes. It
recommended that the TSA select the most practical and cost effective approaches for defending
transportation assets and formalize a plan for implementing, budgeting, and funding this effort.
91
Prepared by (name redacted), Specialist in Aviation Safety, Security, and Technology, Resources, Science, and
Industry Division.
92
For more information see CRS Report RL32541, Aviation Security-Related Findings and Recommendations of the
9/11 Commission, by (name redacted).
93
In addition to CAPPS, current prescreening procedures involve checking passenger name records against “automaticselectee” and “no-fly” lists provided to the airlines by the Transportation Security Administration (TSA).
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The 9/11 Commission noted that the plan should assign roles to federal, state, and local
authorities, as well as to private stakeholders.
Congressional Response
The 108th Congress passed two major pieces of legislation containing numerous provisions
pertaining to aviation security: Vision 100—Century of Aviation Reauthorization Act (P.L. 108176) and the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).
Vision 100—Century of Aviation Reauthorization Act
Before the 9/11 Commission had completed its report, several aviation security-related provisions
were included in Vision 100—Century of Aviation Reauthorization Act (P.L. 108-176) which was
enacted on December 12, 2003. Vision 100:
•
established a redress process for pilots, mechanics or other licensed aviation
professionals whose certification is denied, suspended, or revoked on the grounds
that they pose a risk to aviation security. Vision 100 also requires the Federal
Aviation Administration to provide a justification to Congress when establishing
an Air Defense Identification Zone (ADIZ) around cities where pilots are
required to use special communications and operating procedures to enable air
traffic controllers to identify potential security threats.
•
modified existing requirements for security training of airline flight and cabin
crew members. Under these provisions, the airlines are responsible for providing
mandatory basic training in security for crews, while the TSA was to develop and
provide a voluntary advanced self-defense training program for crew members.
•
required the Department of Homeland Security to study and report to Congress
on the effectiveness of the aviation security system, including the air marshal
program, hardening of cockpit doors, and security screening of passengers,
checked baggage, and cargo. The report was to include recommendations,
including legislative recommendations, for improving the effectiveness of
aviation security.
•
created the Aviation Security Capital Fund. The Act authorizes up to $500 million
per year through FY2007 to be appropriated to this fund and requires that the first
$250 million in aviation security fee collections be deposited in this fund each
year through FY2007. The Act also provided the Under Secretary for Border and
Transportation Security with the authority to issue grants to airports for projects
to integrate baggage explosive detection systems with baggage conveyer
systems; reconfigure terminal baggage areas as needed to install explosive
detection systems; deploy explosive detection systems behind the ticket counter,
in baggage sorting areas, or in line with baggage handling systems; and for other
aviation security-related capital improvement projects. Vision 100 set the federal
share of costs for such projects at 90% for large and medium hub airports, and at
95% for all other airports and set guidelines for the allocation of Aviation
Security Capital Fund monies for these projects. However, appropriations
language (see, for example, P.L. 109-295) has limited the federal share to 75%
for large and medium hubs, and 90% for all other airports.
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•
required the implementation of security programs for air charter operators who
use aircraft weighing more than 12,500 pounds maximum takeoff weight.
•
required the Government Accountability Office (GAO) to review the proposed
CAPPS II passenger prescreening system and prevented the TSA from fully
implementing this program until the Under Secretary for Border and
Transportation Security certified that a variety of enumerated issues pertaining to
civil liberties, privacy, data protection, system security, system performance, and
system oversight had been adequately addressed. The TSA has since scrapped the
CAPPS II program and is developing an alterative prescreening system called
“Secure Flight.”
•
authorized flight crew members of all-cargo airlines to voluntarily participate in
the Federal Flight Deck Officer Program that trains and deputizes armed pilots to
guard aircraft cockpits against hostile attacks. Vision 100 also expanded the
program to include other flight crew members, such as flight engineers, in
addition to pilots.
•
requires the promulgation of regulations to ensure the security of foreign and
domestic aircraft repair stations. The Act also requires the TSA, in coordination
with the FAA, to complete a security review and audit of foreign repair stations
that work on air carrier aircraft and components.
•
modified the background check requirements for foreign pilots seeking flight
training in the United States. The Act transferred the duties of conducting these
background checks from the Department of Justice to the DHS. The provisions
require flight schools or instructors to provide notification and identification
information for individuals seeking training in smaller aircraft, weighing less
than 12,500 pounds, and require background checks be completed before training
can be initiated in larger aircraft. The legislation authorizes fee collections to
offset the costs of conducting these background checks. 94
The Intelligence Reform and Terrorism Prevention Act of 2004
The Intelligence Reform and Terrorism Prevention Act (P.L. 108-458) contains numerous
provisions related to aviation security, many directly addressing the concerns and
recommendations of the 9/11 Commission. The Act:
•
requires the Department of Homeland Security to develop, prepare, implement,
and update as needed, a National Strategy for Transportation Security as well as
modal-specific security plans including a plan for aviation security. The modal
security plan for aviation is to include a threat matrix outlining each threat to the
United States civil aviation system and the corresponding layers of security in
place to address these threats and a plan for mitigation and reconstitution of the
aviation system in the event of a terrorist attack.
94
For further discussion, see CRS Report RL32498, Vision 100: Historical Review of the Century of Aviation
Reauthorization Act (P.L. 108-176), by (name redacted), (name redacted), and (name redacted).
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•
requires the TSA to issue guidance for the use of biometrics in airport access
control systems and establish biometric credential and authentication procedures
to identify law enforcement officers authorized to carry firearms aboard
passenger aircraft. The Act authorizes $20 million, in addition to any other
authorized amounts, for research and development of biometric technologies for
aviation security. The Act also authorizes $1 million to establish a center of
excellence in biometric technologies.
•
required the TSA to begin system testing of an advanced passenger prescreening
system by January 1, 2005. Although the Act does not provide a deadline for the
completion of testing the prescreening system, it requires the TSA to begin to
assume the role of passenger prescreening and checking passenger names against
watch lists no later than 180 days after completing that testing. The Act requires
the TSA to establish redress and remedy procedures for passengers who are
delayed or denied boarding because of being falsely identified or targeted by the
system, and requires the TSA to ensure that the number of such false positives is
minimized. The Act also requires the TSA to establish an oversight board and
implement safeguards to ensure the security and integrity of the system and
address and resolve any privacy concerns. The Act also requires that the DHS
prescreening of international flights to or from the United States be conducted
prior to departure.
•
requires that individuals seeking FAA certificates, such as pilots and mechanics,
as well as individuals requesting unescorted access to airport secure areas and air
operations areas be screened against the consolidated and integrated terrorist
watch list. The Act also requires the TSA to establish a process where air
charter and leasing companies can voluntarily submit information regarding
prospective customers seeking to use aircraft weighing more than 12,500 pounds
for prescreening.
•
requires the Security Privacy Officer of the Department of Homeland Security to
report on the impact of the automatic selectee and no fly lists on privacy and civil
liberties and the Director of National Intelligence, in consultation with the
Secretary of Homeland Security, the Secretary of State, and the Attorney General,
to report on the criteria and standards applied in placing the names of individuals
on the consolidated screening watch list.
•
directs the DHS to give high priority to developing, testing, improving, and
deploying airport checkpoint screening technologies to detect nonmetallic,
chemical, biological, and radiological weapons, and explosives on passenger and
carry-on items and requires the DHS to create a strategic plan for the deployment
and use of explosive detection equipment at airport screening checkpoints. The
Act requires the TSA to initiate a pilot program to test advanced airport
checkpoint screening systems at five or more airports by March 31, 2005 and
authorizes $150 million per year in FY2005 and FY2006 to carry out this pilot.
The Act also requires the TSA to carry out and report on a human factors study to
better understand problems with screener performance and take such action as
may be necessary to improve the job performance of airport screening personnel.
•
requires the Federal Air Marshal Service to continue operational initiatives to
protect the anonymity of Federal air marshals. The Act also provides for training
law enforcement officers authorized to carry firearms on passenger aircraft in
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inflight counterterrorism and weapons handling procedures and in the
identification of fraudulent identification documents such as passports and visas.
The Act also encourages the President to pursue international agreements to
allow the maximum deployment of Federal air marshals on international flights,
and authorizes the DHS to provide air marshal training to foreign law
enforcement personnel.
•
authorizes the TSA to take necessary action to expedite the installation and use of
in-line baggage screening equipment at airports. The Act further requires the TSA
to establish a schedule to expedite this activity and study cost-sharing options
among federal, state, and local governments, and the private sector for integrating
in-line baggage screening systems. The Act increases the authorization for the
aviation security capital fund by authorizing up to $400 million per year through
FY2007, in addition to the initial $250 million deposited from aviation security
fee collections set forth in Vision 100.
•
directs the TSA to study the application of readily available wireless
communication technologies to enable cabin crew members to discreetly notify
the pilot in the case of a security breach or safety issue occurring in the cabin.
•
requires the FAA to begin issuing tamper resistant pilot licences with a
photograph of the bearer. The license is to be capable of accommodating a digital
photograph, a biometric, or any other unique identifier considered necessary for
identification purposes.
•
requires the TSA to develop and report to Congress on standards for determining
appropriate screener staffing levels at airports that provide necessary levels of
security and keep passenger wait times to a minimum. The DHS is also to study
the feasibility of integrating operations of the screening workforce and other
aviation security-related DHS functions to coordinate these activities and
increase their efficiency and effectiveness. The Act also authorizes the
expenditure of $100 million for research and development of improved explosive
detection systems and directs the TSA to develop a plan and guidelines for
implementing these systems.
•
required the TSA to prohibit airline passengers from carrying butane lighters and
any other objects considered by the TSA to be inappropriate carry-on items.
•
directs the President to urgently pursue international treaties to limit the
availability, transfer, and proliferation of Man-portable Air Defense Systems
(MANPADS), such as shoulder-fired missiles, worldwide. The Act further directs
the President to continue to pursue international arrangements for the destruction
of excess, obsolete, and illicit MANPADS stockpiles worldwide. The Act
requires the President to report on diplomatic efforts to address MANPADS nonproliferation and requires the Secretary of State to provide the Congress with
annual briefings on the status of these efforts. The Act also requires the FAA to
establish a process for expedited certification of airworthiness and safety for
missile defense systems that can be mounted on commercial aircraft. The Act
also requires the DHS to provide a report within one year assessing the
vulnerability of aircraft to MANPADS attacks and plans for securing airports and
aircraft from this threat.
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•
requires that a pilot program be established to evaluate the use of blast-resistant
cargo containers. The Act authorizes $2 million to carry out this pilot program.
The Act also authorizes $200 million each year through FY2007 for improved air
cargo and airport security related to the transportation of cargo on both passenger
aircraft and all-cargo aircraft, and $100 million per year through FY2007 for the
research, development, and deployment of technologies to better identify, track,
and screen air cargo. The Act establishes a grant program to encourage the
development of advanced air cargo security technology. The Act also requires the
TSA to issue a final rule regarding its proposed regulations for the security of
cargo operations for both passenger and all-cargo aircraft. Finally, the Act
requires the DHS, in coordination with the Department of Defense and the FAA,
to report on the threats posed by international cargo shipments bound for the
United States and provide an analysis of the potential for establishing secure
facilities along established international aviation routes for the purposes of
diverting and securing aircraft believed to pose a security threat.
In addition to the air-cargo security provisions in the Intelligence Reform and Terrorism
Prevention Act of 2004, the Department of Homeland Security Appropriations Act, 2005 (P.L.
108-334, Sec. 513) directs the DHS to research, develop, and procure certified systems to
inspect and screen air cargo on passenger aircraft at the earliest date possible and amend
security directives and procedures to, at a minimum, triple the percentage of cargo inspected on
passenger aircraft.
Policy Concerns Not Addressed In Enacted Legislation
Since several major provisions pertaining to aviation security were enacted during the 108th
Congress—many directly reflecting the concerns and recommendations of the 9/11
Commission—there are few policy concerns that have not been addressed to some degree. During
the 109th Congress, aviation security legislation directly addressing 9/11 Commission findings
and recommendations were not taken up. However, two areas where some may consider that
policy concerns have not been adequately addressed through legislation include general aviation
security and air cargo security procedures and oversight.
The 9/11 Commission made brief reference to concerns over the security of general aviation
operations, however it did not make any formal recommendations to address this concern. During
the 108th Congress, legislation on the security of general aviation operations focused on airport
and airspace restrictions and examining ways to alleviate what some believed to be unnecessary
constraints on certain operations. For example, a provision in Vision 100 required the DHS to
develop and implement a security plan allowing general aviation flights to resume at Ronald
Reagan Washington National Airport but set no timetable for carrying out this provision. The
TSA has now implemented regulations allowing certain general aviation flights, adhering to
extensive operational requirements, to operate to and from Ronald Reagan Washington National
Airport. In appropriations language, however, temporary flight restrictions over stadiums and
other venues during major outdoor sports events were kept in full force and made permanent.
Arguably, the legislation pertaining to general aviation security enacted to date has been viewed
by many as not being as cohesive and comprehensive as legislation addressing other aviation
security concerns.
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Some may also argue that comprehensive legislation pertaining to air cargo security operations
and oversight and expansion of the known-shipper program have not been adequately addressed.
Specifically, comprehensive measures that had been passed by the Senate in the 108th Congress
(see S. 165, 108th Congress) were stripped from the final version of the Intelligence Reform and
Terrorism Prevention Act of 2004 (P.L. 108-458) and replaced by language directing the TSA to
issue final rulemaking addressing these issues. This was presumably done because the TSA’s
regulatory proposals largely reflected the intent of the proposed legislation. However, because
Congress did not formally enact several of these specific provisions pertaining to air cargo
security operations and oversight, the 110th Congress may be particularly interested in oversight
of the TSA’s implementation of its air cargo security rules and its air cargo strategic plan to
ensure that they meet desired objectives.
Port and Maritime Security95
Commission Concerns and Recommendations
The 9/11 Commission was not as specific in making recommendations for non-aviation modes
of transportation as it was for aviation. 96 However, one conclusion of the 9/11 Commission is
that transportation security resources are not being “allocated to the greatest risks in a cost
effective way... Opportunities to do harm are as great, or greater, in maritime or surface
transportation [than in aviation].”97 The 9/11 Commission also reported that deployment of
scanning technologies designed to screen containers that can be transported by plane, ship, truck,
or rail is still years away.98
Under “Strategies for Aviation and Transportation Security,” the 9/11 Commission recommended
that the federal government identify and evaluate the transportation assets that need to be
protected, set risk-based priorities for defending them, select the most practical and cost-effective
ways of doing so, and then develop a plan, budget, and funding to implement the effort. The
Commission recommended that the plan assign roles and missions to the relevant authorities
(federal, state, regional, and local) and to private stakeholders. The Commission further noted that
perfection is unattainable but that terrorists should perceive that potential targets are defended in
order to deter them. It also recommended that Congress set specific dates for the completion of
these plans.
Congressional Response
Since September 11, 2001, Congress has enacted two major port and maritime security acts. The
Maritime Transportation Security Act of 2002 (MTSA, P.L. 107-295), which was passed by
Congress on November 25, 2002, requires ports and vessels to take certain security measures to
safeguard their operations and puts the U.S. Coast Guard in charge of enforcing these security
95
Prepared by (name redacted), Specialist in Transportation, Resources, Science, and Industry Division.
Another commission, The Interagency Commission on Crime and Security in U.S. Seaports, that was established by
the Clinton Administration in April 1999 and which reported their findings in the fall of 2000, made 20 specific
recommendations for improving port security, most of which have been acted upon since September 11, 2001. This
commission’s report is available at http://www.securitymanagement.com/library/seaport1200.pdf.
97
The 9/11 Commission Report, p. 391.
98
Ibid., pp. 391-92.
96
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measures. The SAFE Ports Act (P.L. 109-347), which was passed by Congress on September 30,
2006, requires shippers to take certain security measures to safeguard their cargo from terrorist
infiltration and puts U.S. Customs and Border Protection (CBP) in charge of ensuring
compliance. Sections 70102 and 70103 of MTSA requires the DHS to prepare a National
Maritime Transportation Security Plan and vulnerability assessments of individual marine
facilities and vessels. However, these two sections of MTSA did not impose deadlines on DHS in
carrying out the prescribed security planning activities. Section 4072 of IRTPA (P.L. 108-458)
imposed a deadline of April 1, 2005 for completion of the National Maritime Transportation
Security Plan and a deadline of December 31, 2004 for the completion of marine facility and
vessel vulnerability assessments. The Administration completed its National Strategy for
Maritime Security in September 200599 and completed a National Strategy for Transportation
Security in August 2006.100
The Coast Guard and Maritime Transportation Act of 2004 (P.L. 108-293) was signed into law on
August 9, 2004. Title VIII of the Act contains a number of provisions related to maritime security,
many of which add specificity to provisions in MTSA. Among other things, the Act requires the
DHS to submit a plan to Congress implementing a maritime intelligence system (section 803); it
requires the DHS to submit a plan for a maritime security grant program, including
recommendations on how funds should be allocated (section 804); it requires the DOT to
investigate and examine sensors that are able to track marine containers throughout their supply
chain and detect hazardous and radioactive materials within the containers (section 808); it
requires the DHS to report on the costs of vessel and container inspections, and a plan for
implementing secure systems of transportation, including the need for and feasibility to inspect
and monitor intermodal shipping containers within the United States (section 809).
The SAFE Ports Act requires DHS to set up a pilot program at three overseas ports to test the
feasibility of scanning all containers bound for the United States at those ports before they are
loaded onto a ship. Currently, under the Container Security Initiative (CSI), which is operational
at 50 overseas ports accounting for approximately 90% of transatlantic and transpacific
containerized cargo, U.S. CBP reviews cargo manifest information at these 50 loading ports to
target certain high-risk or unknown-risk containers for closer inspection. 101 At U.S. ports, CBP
has thus far deployed 267 Radiation Portal Monitors (RPMs) to scan containers before they leave
the port for their final inland U.S. destination.102 By the end of 2006, CBP expects 75% of
containers will be scanned by RPMs and has a goal of scanning 98% by the end of 2008.103 The
SAFE Ports Act authorizes the CSI program and requires DHS to scan all containers for radiation
entering the 22 busiest U.S. ports by the end of 2007. In addition, the Act also authorizes the
Domestic Nuclear Detection Office within DHS whose primary mission is to further advance
and deploy nuclear detection technology. The SAFE Ports Act also modifies the port security
grant program from awarding grants in a “fair and equitable” manner to awarding grants based
solely on risk.
99
See http://www.whitehouse.gov/homeland/maritime-security.html#annex.
This document is designated as “Sensitive Security Information.”
101
U.S. CBP, CSI Fact Sheet, September 28, 2006.
102
DHS, Fact Sheet: Protecting the Homeland Post September 11, September 11, 2006.
103
Ibid.
100
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Surface Transportation Security104
Commission Concerns and Recommendations
The 9/11 Commission expressed concern that transportation security resources may not be
allocated to the greatest risks in a cost-effective way. They noted the government did not have a
strategic plan that analyzed assets, risks, and costs and benefits of security measures for the
entire transportation system, nor was there a specific security plan for each transportation mode.
The Commission recommended that such a strategic plan be prepared to: identify the assets that
need protection; set risk-based priorities for defending them; select the most cost-effective
ways of protecting those assets; then develop a plan, budget, and funding to implement this
strategy, assigning roles and missions to federal, state, regional and local governments and
private stakeholders.
Status of Implementation of the Recommendations
The 108th Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L.
108-458), which includes a provision directing the Department of Homeland Security to create a
National Strategy for Transportation Security (NSTS). The Act directed that the NSTS
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