9/11 Commission Recommendations: Implementation Status

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9/11 Commission Recommendations:

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December 4, 2006

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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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9/11 Commission Recommendations: Implementation Status

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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9/11 Commission Recommendations: Implementation Status

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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9/11 Commission Recommendations: Implementation Status

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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9/11 Commission Recommendations: Implementation Status

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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9/11 Commission Recommendations: Implementation Status

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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9/11 Commission Recommendations: Implementation Status

•

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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9/11 Commission Recommendations: Implementation Status

•

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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9/11 Commission Recommendations: Implementation Status

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

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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