H.R. 10 (9/11 Recommendations Implementation Act) and S. 2845 (National Intelligence Reform Act of 2004): A Comparative Analysis

CRS Report for Congress
H.R. 10 (9/11 Recommendations Implementation Act)
and S. 2845 (National Intelligence Reform Act of 2004):
A Comparative Analysis
Updated October 21, 2004
Roger S. White, Coordinator
Office for Research


Congressional Research Service ˜ The Library of Congress

H.R. 10 (9/11 Recommendations Implementation Act)
and S. 2845 (National Intelligence Reform Act of 2004):
A Comparative Analysis
Summary
This comparative analysis of H.R. 10 (9/11 Recommendations Implementation
Act) and S. 2845 (National Intelligence Reform Act of 2004) is an assessment of
major similarities and differences between the two bills as passed by the House
(October 8, 2004) and Senate (October 6, 2004) and under conference consideration.
References to the two bills are to engrossed versions. The presentation is
organized to follow the basic construct of the House bill, because its coverage
remained more stable through the legislative process to date. For purposes of clarity,
we refer to the House-passed bill as H.R. 10.
This assessment was prepared under a stringent time-frame. Analysis of this
complex and far-reaching legislation was complicated by the absence of clean final
bills as passed by either chamber during much of the preparation of this product.
This report now reflects the substance and the structure of the engrossed bills.
CRS experts are available to follow up on any additional needs, including
clarification of content or of legislative references; each section of the analysis
includes contact information for the CRS analyst or attorney who prepared it.
CRS also provides online access to research products that directly address a
number of issues that are the focus of or are raised by H.R. 10 and S. 2845. These
products are available under the CRS homepage heading “Terrorism & the 9/11
Commission” (see [http://www.crs.gov]).



Contents
In troduction ......................................................1
Title I: Reform of the Intelligence Community..........................2
Overview ....................................................2
Establishment of a National Intelligence Director — Authority..........2
House Provisions..........................................2
Senate Provisions..........................................2
Establishment of National Intelligence Director—Management and Budget2
Establishment of the NID and General NID Responsibilities........3
NID Budget Responsibilities.................................3
Budget Execution..........................................4
NID Budget Authorities.....................................4
Budget Reprogramming.....................................4
Funds and Personnel Transfers...............................4
Agency Head Objection to Fund and Personnel Transfers..........5
Personnel Transfer Procedures................................5
FBI Funds and Personnel Transfers............................5
Direct Appropriation.......................................5
Hire and Fire Authority.....................................5
NID Analysis and Tasking...................................6
Limitation on the NID’s Authority Regarding FISA...............6
NID Acquisition Authority..................................6
Establishment of National Intelligence Director — Joint Procedures..7
The National Counterterrorism Center — Establishment...............7
Overview ................................................7
Establishment of a Center...................................7
Structure — Directorates....................................8
Director of National Counterterrorism Center....................8
Primary Missions..........................................9
Duties and Responsibilities of Director.........................9
Limitation ................................................9
Independence of the National Counterterrorism Center............9
Resolution of Disputes.....................................10
Reports Required.........................................10
The National Counterterrorism Center and Civil Liberties Protections...10
Overview ...............................................10
House Provisions.........................................11
Senate Provisions.........................................11
Comments ..............................................12
Joint Intelligence Community Council............................13
Improvement of Human Intelligence (HUMINT)....................13
Improvement of Education for the Intelligence Community............14
Overview ...............................................14
National Security Education Program Service Requirements.......14
National Flagship Language Initiative.........................15
Scholarship Program for Language Heritage Community Residents.15
Sense of Congress........................................15
Foreign Language Program.................................16



National Virtual Translation Center...........................17
Recruitment and Retention of Defense Language Institute (DLI)
Instructors ..........................................17
Additional Improvements of Intelligence Activities..................17
Conforming and Other Amendments — Titles......................18
Conforming and Other Amendments — Responsibilities..............19
Transfer, Termination, Transition and Other Provisions...............20
Other Matters ...............................................21
Title II: Terrorism Prevention and Prosecution.........................22
Individual Terrorists as Agents of Foreign Powers...................22
Overview ...............................................22
House Bill..............................................22
Senate Bill..............................................22
Terrorist and Military Hoaxes ...................................22
Overview ...............................................22
House Provisions.........................................22
Comments ..............................................23
Material Support to Terrorism Prohibition Enactment Act.............23
House Provisions.........................................23
Comments ..............................................23
Weapons of Mass Destruction Prohibition Improvement Act ..........23
House Provisions.........................................23
Comments ..............................................23
Money Laundering and Terrorist Financing........................24
Overview ...............................................24
House Provisions.........................................24
Senate Provisions.........................................24
Criminal History Background Checks.............................25
House Provisions.........................................25
Senate Provisions.........................................25
Comments ..............................................25
Protection of United States Aviation System........................25
Overview ...............................................25
House Provisions.........................................26
Senate Provisions.........................................29
Comments ..............................................32
Other Matters................................................33
Mechanisms for Improved Terrorist-Related Information Sharing...33
Interoperable Law Enforcement and Intelligence Data System
(Chimera) ...........................................34
Improvement of FBI’s Intelligence Capabilities.................34
Structure — Establishment of an Intelligence Directorate.....35
National Security Workforce............................35
Intelligence Program Performance Measurements...........36
Budget Issues........................................36
Field Issues..........................................36
Police Badges................................................37
House Provisions.........................................37
Comment ...............................................37
Railroad Carriers and Mass Transportation Protection Act.............37



Comment ...............................................37
Weapons of Mass Destruction — Terrorist Access Prevention..........37
House Provisions.........................................38
Comment ...............................................38
Terrorist Penalties Enhancement Act..............................38
House Provisions.........................................38
Pretrial Detention and Postrelease Supervision of Terrorists...........38
House Provisions.........................................38
Title III: Border Security and Terrorist Travel..........................39
Immigration Reform..........................................39
Overview ...............................................39
Document Requirements Relating to International Travel and
Immigration Identification..............................39
Additional Allocation of Personnel Enforcing Immigration Laws
at or Within the U.S. Border and Detention Space...........40
Expanding Grounds for Alien Exclusion and Removal, and
Limiting Relief from Removal...........................40
Preventing Alien Smuggling................................42
Identity Management Security...................................42
Improved Security for Drivers’ Licenses and Personal Identification
Cards ..............................................42
Improved Security for Birth Certificates.......................43
Measures to Enhance Privacy and Integrity of Social Security
Account Numbers....................................43
Targeting Terrorist Travel — Border Controls......................44
Overview ...............................................44
Visa Processing and Issuances...............................44
Inspections at Foreign Airports..............................45
Criminalizing False Claim to Citizenship......................46
Biometric Entry/Exit Data System............................46
Analysis, Studies, Plans, and Agreements......................47
Terrorist Travel..............................................48
House Bill..............................................48
Senate Bill..............................................48
Maritime Security Requirements.................................49
Overview ...............................................49
House Provisions.........................................49
Senate Provisions.........................................49
Comments ..............................................50
Treatment of Aliens Who Commit Acts of Torture, Extrajudicial Killings,
or Other Atrocities Abroad.................................50
Overview ...............................................50
House Bill..............................................50
Senate Bill..............................................51
Security Barriers..............................................51
House Bill..............................................51
Senate Bill..............................................51
Title IV: International Cooperation and Coordination....................52
Attack Terrorists and their Organizations..........................52



House Provisions.........................................52
Senate Provisions.........................................52
Comments ..............................................52
Other Provisions (WMD Nonproliferation).........................52
Overview ...............................................52
House Provisions.........................................53
Senate Provisions.........................................53
Comments ..............................................53
Prevent the Continued Growth of Terrorism........................53
Overview ...............................................53
House Provisions.........................................53
Senate Provisions.........................................54
Comments ..............................................54
Reform of Designation of Foreign Terrorist Organizations (FTOs)......55
Overview ...............................................55
House Provisions.........................................55
Comments ..............................................55
Afghanistan Freedom Support...................................56
Overview ...............................................56
House Provisions.........................................56
Senate Provisions.........................................57
Relations with Saudi Arabia and Pakistan..........................58
Saudi Arabia.............................................58
Pakistan ................................................59
Oversight Provisions..........................................60
Overview ...............................................60
House Provisions.........................................60
Senate Provisions.........................................60
Comments ..............................................60
Additional Protections of United States Aviation System from
Terrorist Attacks.........................................61
Overview ...............................................61
House Provisions.........................................61
Senate Provisions.........................................62
Comments ..............................................62
Additional Protections of United States Aviation System from
Terrorist Attacks — Man-Portable Air Defense Systems
(MANPADS) ........................................63
Improving International Standards and Cooperation to Target
Terrorist Financing........................................64
Overview ...............................................64
House Provisions.........................................64
Senate Provisions.........................................64
Title V: Government Restructuring..................................65
Improving Funding for First Responders...........................65
Overview ...............................................65
House Provisions.........................................65
Senate Provisions.........................................65
Comments ..............................................66
Digital TV Conversion.........................................66



House Provisions.........................................66
Senate Provisions.........................................67
Comments ..............................................67
Government Reorganization Authority............................67
Restructuring Relating to the Department of Homeland Security
and Congressional Oversight................................68
Overview ...............................................68
House Provisions.........................................68
Senate Provisions.........................................69
Comments ..............................................69
Improvements to Information Security............................69
Overview ...............................................69
House Provisions.........................................70
Senate Provisions.........................................70
Comments ..............................................70
Personnel Management Improvements............................70
Personal Financial Disclosure...............................70
Agency Plans Required....................................70
Section 5042 (Vacancies Act Exceptions)......................71
Confirmation ............................................72
Security Clearance Modernization................................73
Overview ...............................................73
House Provisions.........................................74
Senate Provisions.........................................74
Comments ..............................................75
Emergency Financial Preparedness...............................75
Overview ...............................................75
House Provisions.........................................75
Senate Provisions.........................................76
Comments ..............................................76
Other Matters — Mutual Aid....................................76
Overview ...............................................76
House Provisions.........................................77
Senate Provisions.........................................77
Comments ..............................................77
Interoperable Communications and Warning Systems................78
Interoperable Communications..............................78
Warning Systems.........................................79
Senate Provisions Not in H.R. 10....................................81
National Preparedness.........................................81
Senate Provisions.........................................81
House Provisions.........................................81
Review of Components of National Intelligence Program.............82
Senate Bill..............................................82
House Bill..............................................82
Quality of Analysis Issues......................................82
Senate Provisions.........................................82
House Provisions.........................................83
Amendment 3841, Amendment 3837.............................83
Amendment 3841.........................................83



Transmittal of Record, to Presidential Candidates, Relating to
Presidentially Appointed Positions...........................83
Senate Provision.........................................83
House Provision..........................................83



H.R. 10 (9/11 Recommendations
Implementation Act) and S. 2845
(National Intelligence Reform Act of 2004):
A Comparative Analysis
Introduction
This comparative analysis of H.R. 10 (9/11 Recommendations Implementation
Act) and S. 2845 (National Intelligence Reform Act of 2004) is an assessment of
major similarities and differences between the two bills as passed by the House
(October 8, 2004) and Senate (October 6, 2004) and under conference consideration.
References to the two bills are to engrossed versions. The presentation is
organized to follow the basic construct of the House bill, because its coverage
remained more stable through the legislative process to date. For purposes of clarity,
we refer to the House-passed bill as H.R. 10.
This assessment was prepared under a stringent time-frame. Analysis of this
complex and far-reaching legislation was complicated by the absence of clean final
bills as passed by either chamber during much of the preparation of this product.
This report now reflects the substance and the structure of the engrossed bills.
CRS experts are available to follow up on any additional needs, including
clarification of content or of legislative references; each section of the analysis
includes contact information for the CRS analyst or attorney who prepared it.
CRS also provides online access to research products that directly address a
number of issues that are the focus of or are raised by H.R. 10 and S. 2845. These
products are available under the CRS home page heading “Terrorism & the 9/11
Commission” (see [http://www.crs.gov]).



Title I: Reform of the Intelligence Community
Overview
Provisions under Subtitle A, H.R. 10 establish the position of National
Intelligence Director to serve as the head of the Intelligence Community and the
principal intelligence advisor to the President. Also redefines national intelligence
to include all intelligence, regardless of source, to include information gathered
within and outside the United States that involves threats to the United States, the
development, proliferation, and use of weapons of mass destruction, and any matter
bearing on U.S. national and homeland security. Provisions under Subtitle A also
establish the requirement for the Department of Defense and the Central Intelligence
Agency to develop coordination procedures for use in the conduct of operations.
Also defines the role that the National Intelligence Director plays in appointing
certain intelligence-related officials. This provision also permits the President to
appoint the serving Director of Central Intelligence initially to the position of
National Intelligence Director upon enactment of the Act.
Establishment of a National Intelligence Director —
Authority
Elizabeth B. Bazan, Legislative Attorney, CRS American Law Division, 7-7202
House Provisions. Section 1011 of the House bill as passed (S. 2845
EAH/H.R. 10) creates a new Section 102A to the National Security Act of 1947,
setting out the responsibilities of a newly created National Intelligence Director
(NID). Under Section 1011(a) of the House passed bill, new Section 102A(f)(7) of
the National Security Act would provide that “nothing in this title shall be construed
as affecting the role of the Department of Justice or the Attorney General with respect
to applications under [FISA].” There is no parallel provision in the Senate passed S.

2845.


Senate Provisions. Under Section 112(a)(7) of S. 2845 as it passed the
Senate, the newly created National Intelligence Director (NID) would be given
responsibility to establish requirements and priorities for foreign intelligence
information to be collected under FISA, and to provide assistance to the Attorney
General to ensure that information derived from electronic surveillance or physical
searches under FISA is disseminated so that it may be used efficiently and effectively
for foreign intelligence purposes. Section 112(a)(7) further provides that the NID
would have no authority to direct, manage, or undertake electronic surveillance or
physical search operations under FISA unless otherwise authorized under statute or
executive order.
Establishment of National Intelligence Director —
Management and Budget
Prepared by Alfred Cumming, Specialist in Intelligence and National Security, CRS
Foreign Affairs, Defense, and Trade Division, 7-7739
Both H.R. 10 and S. 2845 would replace the current position of Director of
Central Intelligence with a National Intelligence Director (NID) who would oversee



national intelligence centers on specific subjects of interest — including a National
Counterterrorism Center (NCTC) — across the United States government; manage
the national intelligence program; oversee the agencies that contribute to it; and have
some degree of hiring, firing, and budgetary authority over the Intelligence
Community’s 15 agencies.
The principal difference between the two bills is the amount of budget authority
each accords the NID, with the Senate’s version seemingly providing more authority
according to some observers. Under S. 2845, the NID would determine the annual
budget for intelligence and intelligence-related activities by providing budget
guidance to heads of IC agencies containing one or more NIP-funded programs,
projects or activities. It also provides that the NID develop and present to the
President the annual NIP budget after consulting with IC heads, overseeing NIP-
funded programs, and provide budget guidance to those IC elements not containing
NIP-funded programs.
Under H.R. 10, on the other hand, the NID would merely develop and present
to the President the annual budget for intelligence and intelligence-related activities,
and in doing so, provide budget guidance to heads of IC agencies containing NIP-
funded programs.
The Senate bill also authorizes the NID to manage and oversee NIP budget
execution, reprogramming, and funds and personnel transfers, whereas the House’s
version calls on the NID to ensure the effective execution of the annual NIP budget.
Establishment of the NID and General NID Responsibilities. H.R. 10,
Section 1011, establishes within the Executive Branch (but not located within the
Executive Office of the President) a Presidentially-appointed, Senate-confirmed NID
who shall serve as head of the IC; the President’s principal intelligence advisor; and,
through the heads of the departments containing elements of the IC, and the Central
Intelligence Agency (CIA), manage and oversee the execution of the National
Intelligence Program (NIP) and direct the NIP. The individual serving as the NID is
prohibited from serving as the CIA director or as the head of any other IC element
(Section 1011(a)).
S. 2845 establishes within the Executive Branch a presidentially appointed,
Senate-confirmed NID who shall serve as head of the IC; the President’s principal
intelligence advisor; head of the National Intelligence Authority; and direct and
oversee the National Intelligence Program. The individual serving as the NID is
prohibited from serving in any capacity in other IC element, except to do so in an
acting capacity (Section 102).
NID Budget Responsibilities. According to H.R. 10, Section 1011, the NID
shall develop and present to the President the annual budget for intelligence and
intelligence-related activities. In doing so, the NID shall provide budget guidance to
heads of IC agencies containing NIP-funded programs. The NID shall participate
in the development by the Secretary of Defense of the annual budgets for the Joint
Military Intelligence Program and Tactical Intelligence and Related Activities. The
NID shall provide budget guidance to those IC elements not containing NIP-funded
programs.



According to S. 2845, Section 112, the NID shall determine the annual budget
for intelligence and intelligence-related activities by providing budget guidance to
heads of IC agencies containing one or more NIP-funded programs, projects, or
activities. The NID also shall develop and present to the President the annual NIP
budget after consulting with IC heads overseeing NIP-funded programs. The NID
shall provide budget guidance to those IC elements not containing NIP-funded
programs. The NID shall participate in the development by the Secretary of
Defense of non-NIP annual military program budgets.
Budget Execution. Accord to H.R. 10, Section 1011, the NID shall ensure
the effective execution of the annual budget for intelligence and intelligence-related
activities and shall facilitate the management and execution of NIP funds.
According to S. 2845, Section 112(a)(2), the NID shall manage and oversee
NIP budget execution, reprogramming, and funds and personnel transfers.
NID Budget Authorities. According to H.R. 10, Section 1011, the NID shall
provide budget guidance to IC elements comprising the NIP; participate in the
development by the Secretary of Defense of the annual Joint Military Intelligence
Program (JMIP) and Tactical Intelligence and Related Activities (TIARA) budgets;
and provide budget guidance to non-NIP, IC elements.
According to S. 2845, Section 113, the NID shall coordinate, prepare, and
present to the President the annual NIP budget. In doing so, the NID shall approve,
prior to submission to the President, any portion of a NIP budget prepared outside
the NID’s office. The NID shall approve any budget of an IC agency or element
containing a portion of NIP funding prior to submission to the President. The NID
shall provide budget guidance to non-NIP IC elements.
Budget Reprogramming. According to H.R. 10, Section 1011, NIP funds
may not be reprogrammed or transferred without the NID’s prior approval, except
in accordance with NID-issued procedures. The Secretary of Defense shall consult
with the NID before transferring or reprogramming JMIP funds.
According to S. 2845, Section 113(f), NIP funds may not be reprogrammed
or transferred without the NID’s prior approval, except in accordance with NID-
issued procedures. The NID, before reprogramming NIP funds, shall consult with
the agency head having jurisdiction over the NIP-funded element.
Funds and Personnel Transfers. According to H.R. 10, Section 1011, the
NID, with OMB approval, may transfer NIP funds within the NIP, subject to the
provisions of annual appropriations acts; may transfer IC personnel for up to a year,
in accordance with procedures developed with affected department heads. Fund and
personnel transfers may be made only if activity to which transfer is being made is
of a higher intelligence priority; the need is based upon unforseen requirements; the
transfer does not involve a transfer of funds to the CIA’s Reserve for Contingencies;
in the case of funds transfer, is less than $1 million, and less than 5% of amounts
available to the affected agency under the NIP, and the transfer does not terminate a
program.



According to S. 2845, Section 113(g), the NID, with OMB approval, may
transfer or reprogram NIP funds between NIP programs; approve or disapprove the
transfer or reprogramming of non-NIP funds to the NIP; transfer NIP-funded
personnel from one IC element to another, in accordance with NID-developed
procedures; transfer non NIP-funded personnel from one IC element to another IC
element, in accordance with mutually agreed upon procedures between the NID and
affected agency heads. Fund and personnel transfers may be made only if activity to
which the transfer is being made is of higher intelligence priority; does not involve
transfer of funds to the Reserve for Contingencies; does not involve transferring
uniformed services personnel for periods exceeding three years; and does not exceed
applicable ceilings established in law for such transfers.
Agency Head Objection to Fund and Personnel Transfers. According
to H.R. 10, Section 1011, funds transfer may be made without regard to the $1
million and 5 percent limitations provided NID gains agency head concurrence.
S. 2845 has no comparable provision.
Personnel Transfer Procedures. According to H.R. 10, Section 1011, the
NID is required to develop, with affected agency heads, personnel transfer procedures
that would govern IC personnel transfers.
According to S. 2845, Section 113(g), the NID would develop personnel transfer
procedures for transfers taking place within NIP-funded programs; the NID and
affected agency heads would develop personnel transfer procedures for personnel
transfers involving non-NIP funded programs.
FBI Funds and Personnel Transfers. According to H.R. 10, Section
1011, the NID is authorized to transfer funds/personnel to and from the FBI’s Office
of Intelligence.
According to S. 2845, Section 113(g), the NID is authorized to transfer
funds/personnel to and from the FBI’s Office of Intelligence.
Direct Appropriation. According to H.R. 10, Section 1011, the Office of
Management and Budget shall apportion all NIP funding to the NID.
According to S. 2845, Section 113(d), NIP funds shall be appropriated to the
National Intelligence Authority and be under the NID’s direct jurisdiction.
Hire and Fire Authority. CIA Director: According to H.R. 10, Section 1014,
the NID shall recommend to the President, individuals for nomination to serve as
Deputy NID and CIA Director.
According to S. 2845, Section 118(a), the NID shall recommend to the President
an individual for nomination to serve as Director of the Central Intelligence Agency,
in the event of a vacancy.
Presidential Appointments (i.e., Directors of the National Security Agency
(NSA), National Reconnaissance Office (NRO), and National Geospatial-Intelligence



Agency (NGA)) and Other Appointments: According to H.R. 10, Section 1011, the
Secretary of Defense shall obtain NID concurrence in appointing or recommending
nominees for the director of NSA, NRO and NGA. If the NID does not concur, the
vacancy may not be filled or recommendation made to the President regarding a
Presidential appointment (as the case may be).
Department heads with jurisdiction over other IC intelligence positions (i.e., the
Director of the Defense Intelligence Agency; the Assistant Secretary of State for
Intelligence and Research; the Director of the Office of Counterintelligence of the
Department of Energy; the Assistant Secretary for Intelligence and Analysis of the
Department of Energy; the Executive Assistant Director for Intelligence of the
Federal Bureau of Investigation; the Under Secretary of Homeland Security for
Information Analysis and Infrastructure Protection; and the Deputy Assistant
Commandant of the Coast Guard for Intelligence) shall consult with the NID before
making such appointments.
According to S. 2845, Section 117(a), if the appointment to such position (to
include NSA, NRO and NGA Directors) is made by the President, any
recommendation to nominate or appoint an individual to such position shall be
accompanied by a NID recommendation. If the appointment to such position is
made by the department head containing such agency, organization, or element, the
CIA Director, or a subordinate official of such department of the CIA, no individual
may be appointed to such position without the NID’s concurrence.
NID Analysis and Tasking. According to H.R. 10, Section 1011, the NID
shall manage and direct the tasking of collection, analysis, production and
disseminations of national intelligence.
According to S. 2845, Section 112(a)(4), the NID shall issue and manage
collection and analysis tasking.
Limitation on the NID’s Authority Regarding FISA. H.R. 10, Section
1011, states that nothing in the title “shall be construed as affecting the role of the
Department of Justice or the Attorney General with respect to applications under the
Foreign Intelligence Surveillance Act of 1978.”
S. 2845 contains no comparable provision.
NID Acquisition Authority. H.R. 10, Section 1011, states that the NID may
exercise the acquisition authorities conferred to the Director of Central Intelligence
under the Central Intelligence Agency of 1949.
S. 2845, Section 162, states that the NID shall require the development and
implementation of a program management plan that includes cost, schedule, and
performance goals and program milestone criteria, and that the NID will serve as
exclusive milestone authority, except with respect to Department of the Defense
programs, where he shall serve as milestone decision authority jointly with the
Secretary of Defense or the Secretary’s designee.



Establishment of National Intelligence Director — Joint Procedures.
Prepared by Andrew Feickert, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7673
H.R. 10, Section 1013. Joint procedures for operational coordination
between Department of Defense and Central Intelligence Agency.
House Provisions. Section 1013: This provision requires the National
Intelligence Director, 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
both DOD and the CIA. Requires information exchange at the initiation of planning
such operations between the Secretary of Defense and Director, CIA so that senior
operational officials have knowledge of the existence of all ongoing operations.
Requires, when appropriate, mutual agreement on tactical and strategic objectives
when the DOD and the CIA are conducting operations in the same geographical
region. No later than 180 days after the enactment of the act, the National Intelligence
Director will submit to congressional defense and intelligence committees, a report
describing the procedures established and the status of their implementation.
Senate Provisions. No comparable provisions.
Comments. S. 2845 has no comparable provisions. H.R. 10 Section 1013 is
related to 9/11 Commission Recommendation, 32 which calls for shifting the
responsibility for directing and executing paramilitary operations from the CIA to
DOD. H.R. 10, Section 1013 does not assign lead responsibility for paramilitary
operations to DOD or the CIA.
The National Counterterrorism Center — Establishment
Prepared by Todd Masse, Specialist in Domestic Intelligence and Counterterrorism,
CRS Domestic Social Policy Division, 7-2393
Overview. H.R. 10 (Title I, subtitle B, section 1021), the “9/11
Recommendations Implementation Act” and S. 2845 (Title I, Subtitle D, section
143), the “National Intelligence Reform Act of 2004,” would establish a National
Counterterrorism Center (NCTC). These legislative proposals, the 9/11
Commission’s recommendation with respect to an NCTC, and Executive Order
13354 — National Counterterrorism Center, signed August 27, 2004, are compared
in CRS Report RL32558, updated October 6, 2004. The bills compared in CRS
Report RL32558 are, however, as introduced. This product updates RL32558 to
include the accepted amendments to H.R. 10 and S. 2845 with respect to the National
Counterterrorism Center.
Establishment of a Center. Both H.R. 10 and S. 2845 establish an NCTC.
Section 1021 of the House bill places an NCTC within the Office of the National
Intelligence Director (NID). Section 143 of the Senate bill places an NCTC within
the National Intelligence Authority. The primary difference between these two is the
location of the function.



Structure — Directorates. Intelligence: From a structural standpoint, H.R.
10, section 1021, establishes two directorates — one each for Intelligence and
Strategic Planning. S. 2845, Section 143, also establishes two directorates - one each
for Intelligence and Planning. Both bills call for the Directorate of Intelligence to
have primary responsibility for analysis of terrorism and terrorist organizations from
all sources of intelligence. Both bills transfer authority over the existing Terrorist
Threat Integration Center (TTIC) to the Directorate of Intelligence to accomplish this
analytical mission.
One difference between these two bills with respect to the Directorate of
Intelligence is that S. 2845, Section 143, proposes that the Directorate also conduct
“net assessments,” a comparison of terrorist intentions and capabilities with assessed
national vulnerabilities and countermeasures. H.R. 10, Section 1021 does not have
a similar provision.
Planning: H.R. 10 establishes a Directorate of Strategic Planning to provide “...
strategic guidance and plans for counterterrorism operations conducted by the U.S.
Government.” S. 2845, Section 143, establishes a Directorate of Planning which,
among other functions, would “... monitor the implementation ...”of counterterrorism
operations assigned to departments and agencies.
One difference between these two bills with respect to the planning is that S.
2845, Section 143, appears to provide more authority to the Directorate of Planning
with respect to assigning responsibilities for counterterrorism operations to
departments and agencies, as well as monitoring the implementation of these
assignments.
Director of National Counterterrorism Center. Under H.R. 10, Section
1021, the NCTC Director is appointed by and reports to the NID. The Director of the
NCTC serves as principal adviser to the NID on intelligence operations relating to
counterterrorism, provides strategic guidance regarding the integration of
counterterrorism intelligence and operations across agency boundaries, and advises
the NID on the extent to which counterterrorism program recommendations and
budget proposals of departments and agencies conform with priorities established by
the President. Under S. 2845, Section 143, the NCTC Director is appointed by the
President by and with the advice and consent of the Senate. The NCTC Director
serves as the principal adviser to the President and NID on joint counterterrorism
operations; provides unified strategic direction for civilian and military
counterterrorism efforts; concurs in, or advises the President on selections of
personnel to head the following intelligence entities: (1) Director of Central
Intelligence’s (DCI) Counterterrorism Center, (2) Assistant Director, FBI
Counterterrorism Division, (3) Department of State’s Coordinator for
Counterterrorism, and (4) other operating entities. Under S. 2845, Section 143, the
NCTC Director reports to the NID on budget and programs of NCTC and activities
of the NCTC’s Directorate of Intelligence. The NCTC Director reports to NID and
the President with respect to planning and progress of joint counterterrorism options.
The differences here are: (1) confirmation of the NCTC Director, (2) personnel
authorities of the NCTC Director, and (3) reporting relationships with respect to
certain NCTC Director functions.



Primary Missions. Under H.R. 10, Section 1021, the NCTC has primary
responsibility for analysis and integration of all United States government
intelligence pertaining to terrorism and counterterrorism, “... excepting intelligence
pertaining to exclusively domestic counterterrorism.” The proposed NCTC “...
supports operational responsibilities assigned to other agencies by ensuring they have
access to intelligence they need.” It also conducts strategic operational planning.
Under S. 2845, Section 143, the primary mission of the NCTC is to develop and
unify strategy for civilian and military counterterrorism efforts; integrate
counterterrorism intelligence, inside and outside United States; develop interagency
(more than one department) counterterrorism plans; ensure that collection of
counterterrorism intelligence and conduct of counterterrorism operations is informed
by analysis of all — source intelligence.
One difference appears to be that the mission under H.R. 10, Section 1021, does
not allow the NCTC to assign operational responsibilities to other departments and
agencies. It also does not appear that S. 2845, Section 143, has any prohibition of
intelligence relating to domestic counterterrorism being provided to the NCTC’s
Directorate of Intelligence for analysis.
Duties and Responsibilities of Director. Under H.R. 10, Section 1021,
the duties and responsibilities of the NCTC Director involve serving as principal
advisor to the National Intelligence Director on “intelligence operations relating to
counterterrorism ..., providing strategic guidance and plans for civilian and military
counterterrorism efforts,” and advising the NID on budget proposals of the
departments and agencies. Under S. 2845, Section 143, the NCTC Director serves
as principal adviser to the “... President and the National Intelligence Director on
interagency counterterrorism planning and activities,” and has certain personnel
authorities insofar as the incumbent would “... concur in, or advise the President
on...” selection of certain counterterrorism officials in the Intelligence Community.
The differences here are: (1) reporting relationships, and (2) personnel
authorities of the Director NCTC.
Limitation. Under H.R. 10, Section 1021, the NCTC “... may not direct the
execution of counterterrorism operations....” S. 2845, Section 143, also stipulates
that the Directorate of Planning “... may not direct the execution of operations
assigned under paragraph (3).”
There are no differences on this limitation.
Independence of the National Counterterrorism Center. Title II,
subtitle C, Section 223, of S. 2845 (engrossed) requires that “... no officer,
department, agency or element of the executive branch shall have any authority to
require the Director of the National Counterterrorism Center to: (1) receive
permission to testify before Congress, or (2) submit testimony, legislative
recommendations, or comments to any officer or agency of the United States for
approval, comments, or review prior to submission of such recommendations ... to
Congress, if such recommendations, testimony, or comments include a statement
indicating that the views expressed therein are those of the agency submitting them
and do not necessarily represent the views of the Administration....”



There is no corresponding measure on this matter in H.R. 10 (engrossed).
Resolution of Disputes. Under H.R. 10, Section 1021, the NID resolves
disagreements between the Director of NCTC and agency heads with respect to
counterterrorism assignments, plans, or responsibilities. Agency heads may appeal
the NID’s decision to the President. Under S. 2845, Section 143, disputes with
respect to counterterrorism plans and operations are brought to NID who may either
accede or notify the President of the necessity to resolve any disagreement.
One difference with respect to this issue appears to be the option of the agency
heads under H.R. 10, Section 1021, to appeal an NID decision to the President. This
provision was not specified in S. 2845, Section 143.
Reports Required. Under H.R. 10, Section 1021, there do not appear to be
any reporting requirements with respect to the NCTC. Under S. 2845, Section 143,
a report is required. S. 2845, as amended, stipulates: “Not later than one year after
the date of the establishment of the National Counterterrorism Center ... the National
Intelligence Director shall submit to Congress a report evaluating the effectiveness
of the Center in achieving its primary missions....”
The National Counterterrorism Center and
Civil Liberties Protections
Prepared by Harold Relyea, Specialist in American National Government, CRS
Government and Finance Division, 7-8679
Overview. The final report of the 9/11 Commission recommended that “there
should be a board within the executive branch to oversee adherence to the guidelines
we recommend and the commitment the government makes to defend our civil
liberties.”1 This recommendation is the third and final one made in a section of the
report captioned “The Protection of Civil Liberties.” In the other two, the
commission recommended that (1) the President, in the course of determining the
guidelines for information sharing among government agencies and by them with the
private sector, “should safeguard the privacy of individuals about whom information
is shared”; and (2) the “burden of proof for retaining a particular governmental power
should be on the executive, to explain (a) that the power actually materially enhances
security and (b) that there is adequate supervision of the executive’s use of the
powers to ensure protection of civil liberties. If the power is granted,” the report
added, “there must be adequate guidelines and oversight to properly confine its use.”2
Read together, these recommendations call for a board to oversee adherence to
presidential guidelines on information sharing that safeguard the privacy of
individuals about whom information is shared, and adherence to guidelines on the
executive’s continued use of powers that materially enhance security. The report
offered no additional commentary on the composition, structure, or operations of the
recommended board. Such a board, however, had been proposed in December 2003


1 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report (Washington: GPO, 2004), p. 395.
2 Ibid., pp. 394-395.

in the fifth and final report of the Advisory Panel to Assess Domestic Response
Capabilities for Terrorism Involving Weapons of Mass Destruction, chaired by
former Virginia Governor James S. Gilmore III.3
House Provisions. Section 1022 of H.R. 10 establishes, within the office of
the NID, a Civil Liberties Protection Officer, who is appointed by the NID, and,
among other duties, is responsible for (1) ensuring that civil liberties and privacy
protection are appropriately incorporated in the policies and procedures developed
for, and implemented by, the office of the NID and the elements of the intelligence
community within the National Intelligence Program; (2) overseeing compliance by
the office of the NID with constitutional, statutory, regulatory, administrative, and
other requirements relating to civil liberties and privacy; and (3) investigating
complaints and possible abuses of civil liberties and privacy by the office of the NID.
Section 5092 of the bill also establishes within each federal agency with law
enforcement or anti-terrorism functions a chief privacy officer, who is designated by
the head of the agency, and, among other duties, is responsible for ensuring that
technologies applications sustain, and do not erode, privacy protections for personal
information; ensuring compliance with Privacy Act fair information use practices;
conducting privacy impact assessments of proposed rules of the agency; and
preparing and submitting an annual report to Congress on activities of the agency that
affect privacy. Concerning privacy impact assessments, Section 5091 of the bill
requires that agency rulemaking involving internal revenue laws of the United States
and pertaining to the collection, maintenance, use, or disclosure of personally
identifiable information for 10 or more individuals take into consideration impacts
on individual privacy through the preparation and provision for public comment of
an initial, and subsequent final, privacy impact assessment. Agencies are also
required to conduct, in accordance with an annual plan, a periodic review of their
rules having a significant privacy impact on individuals, and must annually publish
a list of such rules to be so reviewed. For any rule for which a privacy impact
assessment is required, an individual who is adversely affected or aggrieved by final
agency action is entitled to judicial review of agency compliance with impact
assessment provisions.
Senate Provisions. Section 211 of the Senate bill establishes, within the
Executive Office of the President, a Privacy and Civil Liberties Oversight Board,
composed of a chair and four additional members, who are appointed by the
President with Senate approval and serve six-year terms. The board, among other
duties, is responsible for reviewing proposed legislation, regulations, and policies
related to efforts to protect against terrorism; reviewing the implementation of such
legislation, regulations, and policies; advising the President and other executive
branch officials to ensure that privacy and civil liberties interests are appropriately
considered in the development and implementation of such legislation, regulations,
and policies; and continually reviewing the regulations, policies, and procedures of
the departments and agencies, and their implementation, to ensure that privacy and
civil liberties are protected. Section 212 of the bill requires the Attorney General,


3 U.S. Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving
Weapons of Mass Destruction, V. Forging America’s New Normalcy: Securing Our
Homeland, Preserving Our Liberty (Arlington, VA: Rand Corporation, 2003), pp. 22-23.

Secretaries of Defense, Health and Human Services, Homeland Security, State, and
the Treasury, NID, Director of the Central Intelligence Agency, and the head of any
other executive department, agency, or element of the executive branch so specified
by the Privacy and Civil Liberties Oversight Board to designate not less than one
senior officer as a Privacy and Civil Liberties Officer (unless such official already
exists). Such officers, among other duties, are responsible for raising privacy and
civil liberties interests when agency leaders are proposing or implementing laws,
regulations, policies, or guidelines related to efforts to protect against terrorism;
periodically investigating and reviewing agency actions, policies, procedures,
guidelines, and related laws and their implementation to ensure adequate
consideration of privacy and civil liberties; ensuring that adequate procedures exist
to receive, investigate, respond to, and redress complaints alleging privacy or civil
liberties violations; and considering, when providing advice on proposals to retain
or enhance a particular governmental power, whether it has been explained that the
power actually materially enhances security, its use is adequately supervised to
ensure protection of privacy and civil liberties, and its use is properly confined by
adequate guidelines and oversight.
Among the responsibilities specified for the NID in Section 112 is ensuring
compliance by elements of the intelligence community with the Constitution and all
laws, regulations, executive orders, and implementing guidelines of the United States
applicable to intelligence and intelligence related activities of the federal government,
including the provisions of the Constitution and all laws, regulations, executive
orders, and implementing guidelines of the United States applicable to the protection
of the privacy and civil liberties of U.S. persons. In Section 206(c), when directing
the President to establish a trusted information network and secure information
sharing environment, the bill specifies that the President shall do so in a manner
consistent with national security and the protection of privacy and civil liberties; use
policy guidelines and technologies that, among other considerations, support
incorporating protections for individuals’ privacy and civil liberties; and, in
consultation with the Privacy and Civil Liberties Oversight Board, issue guidelines
that protect privacy and civil liberties in the development and use of the environment.
Comments. Among the major differences between the House and Senate bills
are the former’s reliance upon a Civil Liberties Protection Officer and the latter’s
reliance upon a Privacy and Civil Liberties Oversight Board as primary advisory and
oversight instruments for privacy and civil liberties concerns. The House bill would
establish privacy officers within federal agencies having law enforcement or anti-
terrorism functions; the Senate bill would do the same, but such officials would have
responsibilities concerning both privacy and civil liberties interests. The privacy
officers mandated by the House bill would assist with agency compliance with the
bill’s requirement for privacy impact assessments; the Senate bill makes no provision
for such assessments. The Senate bill assigns to the NID and the President particular
responsibilities for privacy and civil liberties interests which are not found in the
House bill.



Joint Intelligence Community Council
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7607
H.R. 10 (Section 1031) would establish a Joint Intelligence Community Council
(JICC) to “provide advice to the National Intelligence Director as appropriate.” The
JICC would consist of the NID, the Secretaries of State, Treasury, Defense, Energy,
Homeland Security, the Attorney General, and other officials of the Executive Branch
as the President may designate. H.R. 10 provides that the JICC shall provide advice
to the NID “as appropriate,” but requires that the NID “shall consult with” the JICC
in developing guidance for the development of the annual intelligence budget.
S. 2845 (Section 202) also provides for the establishment of a JICC with the
same membership as proposed by the House version. The Senate version, however,
provides in somewhat greater detail that the JICC shall assist the NID in “developing
and implementing a joint, unified national intelligence effort: by advising the NID
on establishing budgets, financial management, and on ensuring the timely execution
of programs, policies, and directives established or developed” by the NID. S. 2845
requires that the NID convene regular meetings of the JICC and includes provisions
for JICC members to submit separate views to the President and to Congress.
Improvement of Human Intelligence (HUMINT)
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7607
H.R. 10, Section 1041, expresses the sense of Congress that human intelligence
(humint) officers have performed “admirably and honorably in the face of great
personal dangers,” that U.S. humint capabilities have not received “the necessary and
commensurate priorities,” that humint is increasingly important, that an increased
emphasis on, and resources applied to humint must be among the top priorities of the
NID. The House version calls for a report from the NID to Congress on humint
improvement within six months of enactment with a plan to implement changes to
increase the capacity of humint across the intelligence community.
S. 2845 includes Section 301 which assigns responsibilities to the Director of
the CIA including a requirement for a report to Congress within 180 days, and
annually thereafter, describing a strategy for improving CIA’s humint capabilities and
addressing recruitment, training, equipping, and deployment of humint personnel;
achieving a proper balance between unilateral operations and liaison operations,
developing language capabilities; and the sound financial management of CIA’s
Directorate of Operations. The numbers and types of personnel to implement the
developed strategy are to be identified and a plan for recruiting, training, equipping,
and deploying such personnel, along with cost estimates is to be included.



Improvement of Education for the Intelligence Community
Prepared by Jeffrey J. Kuenzi, Analyst in Social Legislation, CRS Domestic Social
Policy Division, 7-8645
Overview. As part of the war on terrorism, it is widely recognized that the
U.S. government has a substantial and growing need for personnel with knowledge
of foreign languages and especially languages that may be spoken in limited and
remote areas of the world. In 2002, the federal government employed about a
thousand translators and interpreters in four agencies responsible for security-related
functions. In addition, these agencies employ nearly 20,000 staff in positions that
require some foreign language proficiency. Yet there is a widespread consensus that
requirements for foreign language qualified personnel are not currently being met.
The 9/11 Commission report makes several references to this deficiency and suggests
corrective action to address it. Title I, Subtitle E of H.R. 10, entitled “Improvement
of Education for the Intelligence Community,” includes provisions to (1) modify the
service requirement of the National Security Education Program (NSEP); increase
funding and award recipients for the NSEP’s National Flagship Language Initiative;
(2) initiate three new programs — a scholarship program for heritage community
residents, a Foreign Language Program to create partnerships between agencies in the
intelligence community and Institutions of Higher Education, and a Civilian Linguist
Reserve Corps made up of U.S. citizens with advanced language proficiency; (3)
codify the National Virtual Translation Center; and (4) charges the Secretary of
Defense with investigating methods to improve the recruitment and retention of
qualified foreign language instructors. S. 2845 has no similarly detailed provisions
but would charge the Director of the FBI with carrying out a program to enhance the
Bureau’s capacity to recruit and retain individuals with language skills and would
charge the Director of the CIA with developing and maintaining an effective
language program within the agency.
National Security Education Program Service Requirements. H.R.

10 contains a provision to modify the obligated service requirements under NSEP.


S. 2845 does not include such provisions.
House Provisions. H.R. 10, Title I, Subtitle E, Section 1051 replaces most
of the current language on the service requirement of the NSEP (Subsection (b)(2))
with a new Subsection (j) of Section 802 of the David L. Boren National Security
Education Act of 1991 (50 U.S.C. 1902). Subsection (j) provides a new definition
for a “specified national security position” to refer to “a position of a department or
agency of the United States that the Secretary [of Defense] certifies is appropriate.”
Current language in subsection (b)(2) requires that the Secretary consult with the
NSEP Board of Directors and also report to Congress the list of qualifying positions
and agencies. Current language also includes provisions which allow recipients to
fulfill the service requirement through “work in the field of higher education in a
discipline relating to the foreign country, foreign language, area study,
counterproliferation study, or international field of study for which the scholarship
or was awarded” if the recipient could demonstrate to the Secretary that no national
security position was available. Section 1051 also specifies that fulfillment of the
service requirement must begin no later than two years after participation in the
NSEP. Finally, this section charges the Secretary with writing regulations which
“establish standards that recipients of scholarship and fellowship assistance under the



[NSEP] ... are required to demonstrate in order to satisfy the requirement of a good
faith effort to gain employment” in a specified national security position.
Senate Provisions. Does not contain provisions similar to those described
above.
National Flagship Language Initiative. H.R. 10 contains a provision to
increase funding for the National Flagship Language Initiative and increase the
number of Institutions of Higher Education participating in the program. S. 2845
does not include such provisions.
House Provisions. For fiscal years 2003 and 2004, H.R. 10 Title I, Subtitle
E, Section 1052 would authorize $10 million for the NSEP National Flagship
Language Initiative and would authorize $12 million for fiscal year 2005 and each
subsequent fiscal year. Additional language would require federal employees who
participate in Flagship training programs to remain in service during the period of
their training and continue service after training for a period equal to two years for
every year of participation. This provision also states that, “The head of an element
of the intelligence community may release an employee, in whole or in part, from the
obligation to reimburse the United States” for a scholarship or fellowship granted
under the Flagship Initiative. Finally, Section 1052 charges the Secretary of Defense
with increasing the number of Institutions of Higher Education that receive Flagship
grants and allows grantees to “support students who pursue total immersion foreign
language studies overseas.”
Senate Provisions. Does not contain provisions similar to those described
above.
Scholarship Program for Language Heritage Community Residents.
H.R. 10 contains provisions that would establish a scholarship program for English
language studies for heritage community citizens of the United States within the
NSEP. S. 2845 does not include such provisions.
House Provisions. H.R. 10, Title I, Subtitle E, Section 1053 would create
a new program under the NSEP to provide college scholarships to U.S. citizens who
“are native speakers (commonly referred to as heritage community residents) of a
foreign language that is critical to the national security interests of the United States
... and are not proficient at a professional level in the English language with respect
to reading, writing, and interpersonal skills.” Participating students would use these
scholarships to pursue English language studies at a U.S. Institution of Higher
Education, and would be required to fulfill the same service requirement as other
NSEP participants. Beginning in fiscal year 2005 and each subsequent fiscal year,
$4 million would be authorized for this scholarship program.
Senate Provisions. Does not contain provisions similar to those described
above.
Sense of Congress. H.R. 10 would express the sense of Congress that a
senior official should assist the National Director of Intelligence in improving
language and education for the intelligence community. S. 2845 would charge the



Director of the FBI with carrying out a program to enhance the Bureau’s capacity to
recruit and retain individuals with language skills, and would charge the Director of
the CIA with developing and maintaining an effective language program within the
agency.
House Provisions. H.R. 10, Title I, Subtitle E, Section 1054 asserts that
“there should be within the Office of the National Intelligence Director a senior
official responsible to assist the National Intelligence Director in carrying out the
Director’s responsibilities for establishing policies and procedure for foreign
language education and training of the intelligence community.” This official would
identify languages critical to U.S. intelligence; establish policy, standards, and
priorities for language training; oversee and coordinate such training; and monitor the
allocation of resources for such training. Finally, section 1054 would require the
Director to submit three reports to Congress no later than one year after enactment
— the first would identify effective pedagogy for language learning; the second
would identify language heritage communities in the U.S.; and the third would
identify the cost and effectiveness of establishing a student loan repayment program
for recruiting and retaining employees in the intelligence community.
Senate Provisions. S. 2845, Section 203(c)(5) would charge the Director of
the FBI with carrying out a program to enhance the Bureau’s capacity to recruit and
retain individuals with language skills, and Section 301(b)(2) would charge the
Director of the CIA with developing and maintaining an effective language program
within the agency.
Foreign Language Program. H.R. 10 contains provisions that would create
a new program for the advancement of foreign languages critical to the intelligence
community. S. 2845 does not include such provisions.
House Provisions. H.R. 10, Title I, Subtitle E, Section 1055 would establish
a new Foreign Language Program involving partnerships between departments or
agencies in the intelligence community and U.S. Institutions of Higher Education.
Under this program the head of an element of the intelligence community may
provide the following assistance to an Institution of Higher Education: loan of
equipment and instructional materials, transfer of surplus property, provision of
personnel, involvement of faculty and students of the Institution of Higher Education
in research projects, provision of academic credit for such involvement, provision of
academic and career advice, and provision of cash awards and other “appropriate”
“items.” The head of an element of the intelligence community may also accept the
volunteer service of any “dedicated personnel (as defined in section 1015(3))” in
support of the Foreign Language Program. The section further addresses issues
related to the requirements, limitations, recruitment, training, status, and
reimbursement of these volunteers.
Senate Provisions. Does not contain provisions similar to those described
above.
Civilian Linguist Reserve Corps. H.R. 10 contains provisions to explore
the feasibility of establishing a Corps of individuals with advanced language skills.
S. 2845 does not include such provisions.



House Provisions. H.R. 10, Title I, Subtitle E, Section 1056 would charge
the Director of Intelligence to conduct a three-year pilot project to establish a Civilian
Linguist Reserve Corps composed of U.S. citizens with advanced language
proficiency. The Director is to put out a call for a study to identify the languages
critical to national security and identify U.S. citizens with advanced language skills
who could be recruited to the Corps. The Director would be required to report the
findings of the project to Congress no later than six months after its completion and
authorized to spend such sums as necessary on the project.
Senate Provisions. Does not contain provisions similar to those described
above.
National Virtual Translation Center. H.R. 10 contains provisions that
would codify the National Virtual Translation Center. S. 2845 does not include such
provisions.
House Provisions. H.R. 10, Title I, Subtitle E, Section 1057 amends the
National Security Act of 1947 to add a new Section 120 that would codify a current
“element of the intelligence community that is known as the National Virtual
Translation Center.”
Senate Provisions. Does not contain provisions similar to those described
above.
Recruitment and Retention of Defense Language Institute (DLI)
Instructors. H.R. 10 contains provisions that would require the Secretary of
Defense to study the recruitment and retention of DLI instructors and report the
findings to appropriate congressional committees. S. 2845 does not include such
provisions.
House Provisions. H.R. 10, Title I, Subtitle E, Section 1058 charges the
Secretary of Defense with conducting “a study on methods to improve the
recruitment and retention of qualified foreign language instructors at the Foreign
Language Center of the Defense Language Institute.” The Secretary is to submit a
report on this study no later that one year after enactment to the Select Committee on
Intelligence, the Committee on Armed Services of the Senate, the Permanent Select
Committee on Intelligence and the Committee on Armed Services of the House of
R epresent at i v es.
Senate Provisions. Does not contain provisions similar to those described
above.
Additional Improvements of Intelligence Activities
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7607
H.R. 10, Section 1061, provides permanent authority for separation pay to be
offered to encourage voluntary separation of CIA employees by retirement or
resignation. Authority to offer separation pay has been authorized in legislation since
FY1993 to encourage separations due to downsizing, reorganization, transfer of



function, or other actions but only for specified periods; this legislation would
provide permanent authority.
S. 2845 has no similar provision.
H.R. 10, Section 1062, would establish an Emerging Technologies Panel at the
National Security Agency (NSA); it would be a standing panel appointed by and
reporting directly to the NSA Director. The panel would be responsible for studying,
assessing, and advising the NSA Director on research, development and application
of existing science and technology advances, especially encryption. The Federal
Advisory Committee Act would not apply to this panel.
S. 2845 has no similar provision.
H.R. 10, Section 1063, provides that the NID, in cooperation with the
Secretaries of Defense and Energy should seek to ensure that each Defense
Department service laboratory and each Energy Department national laboratory assist
the NID in all aspects of technical intelligence and make available to the Intelligence
Community their capabilities to improve the technological capabilities of the
intelligence agencies.
S. 2845 has no similar provision.
H.R. 10, Section 1064, provides that the NID shall establish guidelines to ensure
that all suspected terrorist communications are translated and delivered in a manner
consistent with timelines contained in FBI regulations. The NID is also to ensure that
terrorist communications are not deleted or discarded before they are translated.
S. 2845 has no similar provision.
H.R. 10, Section 1065, states the sense of Congress that the NID should
establish an intelligence center to coordinate the collection, analysis, production, and
dissemination of open source intelligence. The NID is asked to report to Congress
by June 30, 2005 whether such a center has been established and, if not, a description
of how the Intelligence Community will use and effectively integrate open source
intelligence.
S. 2845, Section 112, requires the NID to establish and maintain within the
Intelligence Community an effective and efficient open source information collection
capability.
Conforming and Other Amendments — Titles
Prepared by Elizabeth B. Bazan, Legislative Attorney, CRS American Law Division,
7-7202
Section 1071(e) of the House bill as passed would replace “Director of Central
Intelligence” with “National Intelligence Director” in each place where it appears in
Foreign Intelligence Surveillance Act, giving the new NID all of the responsibilities
and authorities under Foreign Intelligence Surveillance Act currently held by the
DCI. Sec. 302(e) of the Senate-passed S. 2845 is a parallel provision.



Conforming and Other Amendments — Responsibilities
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Divison, 7-7607
H.R. 10, Section 1071, is a series of conforming amendments to replace the
Director of Central Intelligence with the National Intelligence Director particularly
in sections where reference is made to responsibilities extending throughout the
Intelligence Community.
S. 2875, Section 302, contains similar provisions.
H.R. 10, Section 1072, is a series of other amendments that adjust various,
chiefly administrative, statutes to reflect the roles of the NID and the separate
Director of the CIA as established in this legislation.
S. 2875, Section 303, contains similar provisions.
H.R. 10, Section 1073, amends the definition of the Intelligence Community as
set forth in 50 USC 401a to include the Office of the NID.
S. 2875, Section 305, contains similar provisions.
H.R. 10, Section 1074, redesignates the National Foreign Intelligence Program
as the National Intelligence Program.
S. 2875, Section 306, contains similar provisions, but also deletes the current
statutory definition of the National Foreign Intelligence Program (50 USC 401a(6)).
H.R. 10, Section 1075, repeals current provisions regarding appointments of
agency heads and collection tasking authority that are superseded by other provisions
in this legislation relating to the NID’s responsibilities.
S. 2875, Section 308, contains similar provisions.
H.R. 10, Section 1076, makes clerical amendments to the National Security Act
of 147 to reflect changes made by this Act.
S. 2845, Section 311, contains similar provisions.
H.R. 10, Section 1077, contains conforming amendments to the prohibition of
dual service of the Director of the CIA included earlier in Section 1011.
S. 2845, Section 102(c), includes similar provisions.
H.R. 10, Section 1078, extends the authorities of the CIA Inspector General to
the Office of the NID.
S. 2845 has no similar provision.



H.R. 10, Section 1079, provides that any reference to the Director of Central
Intelligence (DCI) or the Director of the CIA in the Director’s capacity as head of the
Intelligence Community in law, regulation, document, paper or other record “shall
be deemed” to be a reference to the National Intelligence Director. Any reference to
the DCI or CIA Director in the Director’s capacity as head of the CIA “shall be
deemed” to be a reference to the Director of the CIA. Any reference to the
Community Management Staff “shall be deemed” to be a reference to the staff of the
Office of the NID.
S. 2845, Section 339, contains similar provisions.
H.R. 10, Section 1080, includes provisions precluding the service of personnel
in the Office of the NID in political campaigns and authorizes deletion of information
about foreign gifts when publication could affect U.S. intelligence interests. It also
includes the Office of the NID among agencies not having to file public reports in
accordance with the Ethics in Government Act.
S. 2845, Section 164, contains similar provisions.
Transfer, Termination, Transition and Other Provisions
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7607
H.R. 10, Section 1091, transfers the Community Management Staff to the Office
of the NID on the date of enactment.
S. 2845, Section 321, contains similar provisions.
H.R. 10, Section 1092, transfers the Terrorist Threat Integration Center (TTIC)
to the National Counterterrorism Center on the date of enactment.
S. 2845, Section 323, contains similar provisions.
H.R. 10, Section 1093, terminates three positions — the Assistant Directors of
Central Intelligence for Collection, Analysis and Production, and Administration.
S. 2845, Section 324, terminates the three positions as well as the position of
Deputy Director of Central Intelligence for Community Management. (H.R. 10,
Section 1015, provides that any reference to the Deputy Director of Central
Intelligence for Community Management “shall be deemed” a reference to the
Deputy NID for Community Management.)
H.R. 10, Section 1094, requires the President to submit a plan to Congress for
implementing provisions of this title and expresses the sense of Congress that the
Office of the NID should be at a location other than the George Bush Center for
Intelligence in Langley, Virginia. (Section 1096 provides that the report shall be
submitted not later than 180 days after enactment.)



S. 2845, Section 334, contains provisions requiring the NID to submit a report
to Congress on progress made in the implementation of the Act within one year. S.

2845 contains no provision regarding the locations of the Office of the NID.


H.R. 10, Section 1095, permits any executive agency to provides services or
detail personnel to the NID on a reimbursable basis.
S. 2845 contains no similar provisions.
H.R. 10, Section 1096, provides that this title and amendments made by this title
shall take effect on the date of enactment; not later than 60 days after enactment, the
NID shall first appoint individuals to positions within the Office of the NID. Not
later than 180 days after enactment, the President shall transmit the implementation
plan required by Section 1094; within a year the NID shall prescribe regulations,
policies, and procedures required by this legislation.
S. 2845, Section 341, provides that the Act and amendments made different
dates under certain circumstances earlier date if Congress is notified and notice is
published in the Federal Register.
Other Matters
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7607
H.R. 10, Section 1101, directs the Secretary of Defense to undertake a study of
the promotion selection rates and selection rates for attendance at professional
military education schools for intelligence officers of the Armed Forces and make
recommendations to Congress for changes necessary to ensure equitable treatment
of military intelligence officers no later than April 1, 2005.
S. 2845 has no similar provisions.



Title II: Terrorism Prevention and Prosecution
Individual Terrorists as Agents of Foreign Powers
Prepared by Elizabeth B. Bazan, Legislative Attorney, CRS American Law Division,
7-7202
Overview. Under current law, terrorists who do not have a connection to an
international terrorist group, foreign nation, or foreign group do not fit within the
Foreign Intelligence Surveillance Act (FISA) definition of either “foreign power” or
“agent of a foreign power.” As a result, the U.S. government could not gather
foreign intelligence information about such terrorists through the use of electronic
surveillance, physical searches, or pen registers or trap and trace devices as part of
a FISA investigation. Nor could FISA be used to assist in a criminal investigation
of such “lone wolf” terrorists where a significant foreign intelligence purpose for the
investigation also existed.
House Bill. Section 2001 of the House bill as passed would amend the
definition of “agent of a foreign power” under Section 101(b)(1) of FISA, 50 U.S.C.
§1801(b)(1), so that any non-United States person who “engages in international
terrorism or activities in preparation therefor” would be considered an agent of a
foreign power, without requiring the Government to demonstrate a connection to an
international terrorist organization, foreign nation or foreign group. This change
would be subject to the sunset provisions in Section 224 of the USA PATRIOT Act,
P.L. 107-56; it would sunset on December 31, 2005, except with respect to any
foreign intelligence investigation begun before that date or any criminal offense or
potential offense that began or occurred before that date.
Senate Bill. The Senate-passed version of S. 2845 contains no such provision,
although the Senate has passed a similar provision in S. 113; in S. 2386; and in H.R.
4845, the Intelligence Authorization Act for FY2005, as amended by the Senate to
incorporate the language of S. 2386.
Terrorist and Military Hoaxes
Prepared by Charles Doyle, Senior Specialist, CRS American Law Division, 7-6968
Overview. The 9/11 Commission’s final report made no recommendation
concerning hoaxes, and the Senate bill contains no counterpart. The House Judiciary
Committee has reported similar provisions, separately, H.Rept. 108-505.
House Provisions. H.R. 10, §§2021-2024. H.R. 10 establishes criminal and
civil liability for various false statements concerning the pending commission of
certain violent crimes. Offenders are subject to imprisonment for not more than five
years in most instances, to imprisonment for not more than 25 years if serious injury
results, and to death or imprisonment for life if death results. In cases of
international or domestic terrorism, the bill raises the penalty for false statements to
federal authorities and for obstructing administrative or congressional proceedings
to imprisonment for not more than 10 years.



Comments. Existing law already proscribes the misconduct addressed in the
bill; its purpose is to increase punishment when the response results in injuries or
death or when terrorism-related proceedings are frustrated. The triggering phrase
“international or domestic terrorism” has proven controversial in the USA PATRIOT
Act context.
Material Support to Terrorism Prohibition Enactment Act
Prepared by Charles Doyle, Senior Specialist, CRS American Law Division, 7-6968
The 9/11 Commission’s final report recommended “vigorous efforts to track
terrorist financing.” H.R. 10, which has no counterpart in the Senate bill, speaks to
financial as well as other forms of terrorist assistance.
House Provisions. H.R. 10, §§2041-2044. H.R. 10 amends current criminal
provisions relating to material support of terrorism and terrorist organizations to
enlarge the jurisdictional circumstances under which the support is outlawed, to
outlaw support for international or domestic terrorism (in addition to specific
predicate crimes now listed), and to explicitly prohibit military training received from
or for the benefit of terrorists.
Comments. The bill addresses the vagueness problems that have sometimes
complicated material support prosecutions. It also authorizes U.S. prosecution of
material support to a designated terrorist organization regardless of where or by
whom the support was provided as long as the U.S. is able to bring the offender to
this country.
Weapons of Mass Destruction Prohibition Improvement Act
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
The 9/11 Commission’s final report noted al Qaeda’s efforts to acquire weapons
of mass destruction and recommended strengthening counterproliferation efforts in
the international arena. The House bill expands the proscription against efforts to
acquire or produce weapons of mass destruction. There are no comparable
provisions in the Senate bill.
House Provisions. H.R. 10, §§2051-2053. The House expands the
jurisdictional foundations of the generic “weapons of mass destruction” prohibition
to more closely proximate the jurisdictional footings in the individual criminal laws
relating to biological weapons, chemical weapons, nuclear materials and explosives.
It condemns participation in the development of weapons of mass destruction and the
use or possession of radiological weapons. It also adds the biological, chemical and
nuclear proscriptions to the racketeering predicate offense list.
Comments. The dual purpose of the provisions seems to be to criminalize
assistance in the development of weapons of mass destruction by those on the
periphery and to emphasize the significance of existing prohibitions by duplication.
The relationship of these provisions to those of Subtitle K (prevention of terrorist
access to destructive weapons) is unclear.



Money Laundering and Terrorist Financing
Martin A. Weiss, Analyst in International Trade and Finance, CRS Foreign Affairs,
Defense, and Trade Division, 7-5407
Overview. The 9/11 Commission recommends a shift in the U.S. strategy to
combat terrorist financing from one focused on freezing assets to one of exploiting
terrorist financing networks for intelligence. The Commission also emphasizes
terrorist organizations’ increasing shift to informal methods of money transfer such
as hawala or hundi. Provisions included in both the House and Senate legislation
address these recommendations and observations, as well as other issues related to
terrorist financing.
House Provisions. H.R. 10 makes technical corrections to Title III of the
USA PATRIOT Act (Section 2112) and includes provisions that would require the
Treasury Department to develop a national money laundering strategy (Section
2102); grants the Securities and Exchange Commission (SEC) emergency authority
to respond to extraordinary market disturbances; boost the authority of the Financial
Crimes Enforcement Network (FinCEN) (Section 2101), the U.S. Government’s
financial intelligence unit; and equates the possession of counterfeiting tools with the
intent to use them with the actual act of counterfeiting. The Treasury Department
would also be authorized to print the currency, postage stamps, and other security
documents of other nations (Section 2121). This provision was proposed earlier this
year as part of H.R. 3786.
The House Financial Services Committee also added a provision to crack down
on illegal internet gambling by barring financial institutions from processing certain
internet gambling transactions that occur via credit cards, wire transfers, or other
bank instruments (H.R. 2143). Earlier this year, the Federal Bureau of Investigation
testified that Internet gambling is vulnerable for use in terrorist financing schemes.
The Committee also sought to increase the authority of FinCEN and the Securities
and Exchange Commission (SEC). FinCEN would be authorized an additional $35.5
million to improve technology and the SEC would be given emergency authority for
up to 90 days to alter, supplement, suspend, or impose requirements or restrictions
with respect to any matter or action subject to regulation by the Commission or a
self-regulatory organization under the securities laws, as provided for in a 2003
House-passed bill (H.R. 657).
Senate Provisions. S.Amdt. 3867 added provisions relating to terrorist
financing to S. 2845 that were contained in the proposed McCain/Lieberman 9/11
legislation (S. 2774). This amendment would require the President to submit to
Congress within 180 days 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 1115). The Administration would be required
to submit an annual report on the allocation of funding within the Treasury’s Office
of Foreign Asset Control (OFAC) (S.Amdt. 3768). S. 2845 would also implement
post-employment restrictions for certain bank and thrift examiners.



Criminal History Background Checks
Charles Doyle, Senior Specialist in American Public Law, CRS American Law
Division, 7-6968
The 9/11 Commission’s final report made no recommendation concerning
criminal history background checks, although as the Senate amendment points out
it did say that “private sector preparedness is not a luxury; it is a cost of doing
business in the post-9/11 world. It is ignored at a tremendous potential cost in lives,
money and national security.”
House Provisions. H.R. 10, §§2141-2146. H.R. 10 instructs the Attorney
General to establish a pilot program under which employers will be able secure
criminal history background checks on prospective employees, and to report the
results to Congress with recommendations. It also establishes a procedure under
which private security guard employers may request criminal history background
checks on their employees through state officials. States may opt out legislatively or
in some instances through executive action, which may minimize constitutional
concerns. The bill also directs the Attorney General to assemble a task force to study
the creation of a national clearinghouse to process requests for background checks
on private security guards.
Senate Provisions. S. 2845, Section 1116. The Senate provisions are
substantively identical to those of section 2144 in H.R. 10. S. 2845 appears to have
no other provisions comparable to those of portions of Subtitle IIF in H.R. 10.
Comments. Existing law authorizes the Attorney General, with the assistance
of the states, to maintain a system of criminal identification and criminal history
records, which Congress has made available for criminal background checks for
applicants for employment in nursing homes and home health care agencies, and on
a pilot basis for volunteers who work with children.
Protection of United States Aviation System
Prepared by Bart Elias, Specialist in Aviation Security, Safety, and Technology
Policy, CRS Resources, Science, and Industry Division, 7-7771
Overview. The House and Senate bills contain numerous provisions designed
to enhance aviation security. In both bills there are specific provisions that address
the aviation security-related provisions of the 9/11 Commission. The House bill
directly addresses the 9/11 Commission recommendation regarding enhancing
passenger prescreening and making it a government-run function that exploits the
integrated and consolidated terrorist watch lists. The Senate bill does not address this
recommendation directly, but contains several provisions that would allow air charter
and aircraft rental companies to prescreen certain customers. Both the House and the
Senate bills contain provisions that directly address the 9/11 Commission
recommendation regarding detection of explosives on airline passengers. While the
Senate bill contains language addressing the 9/11 Commission recommendation to
expedite deployment of in-line baggage screening systems, the House bill does not.
While an earlier House bill (H.R. 5121) from which the aviation security provisions
in H.R. 10 were derived did contain language to increase funding for in-line baggage



screening, this language was not included in H.R. 10. Both the House and the Senate
bills contain provisions addressing the 9/11 Commission recommendation calling for
the Transportation Security Administration (TSA) to intensify its efforts to identify,
screen, and track air cargo shipments and both bills contain provisions to study the
feasibility of the 9/11 Commission recommendation to deploy hardened cargo
containers on passenger aircraft. The House bill specifically addresses the 9/11
Commission recommendation regarding strategic planning for transportation security,
whereas the Senate bill does not. The House and Senate bills each contain numerous
additional provisions for enhancing aviation security that were not addressed by the
9/11 Commission. The specific aviation-security related provisions of both bills are
discussed in further detail below.
House Provisions. The House bill contains numerous provisions that
address all 9/11 Commission recommendations regarding aviation security, except
for the recommendation for the TSA to expedite deployment of in-line baggage
screening systems. The House bill also contains numerous miscellaneous provisions
to enhance aviation security that were not addressed by the 9/11 Commission.
The House bill (Section 2171) would direct TSA to issue guidance for the use
of biometrics in airport access control systems and to establish a uniform travel
credential for law enforcement officers that incorporates biometrics. The 9/11
Commission report mentioned biometrics technology in the context of secure travel
documents but not specifically with respect to aviation security.
The House bill contains a provision (Section 2172) that would require the
Department of Homeland Security (DHS) to prepare and update a transportation
security plan and specific security plans for each transportation mode including
aviation. The House bill specifies that the modal security plan for aviation should,
at a minimum: set risk-based priorities; select the most practical and cost-effective
methods for protecting aviation assets; assessing roles and missions to federal, state,
regional, and local authorities, and aviation stakeholders; establish a mitigation and
recovery plan in the event of a terrorist attack; and establish a threat matrix
identifying specific security layers implemented to protect against each identified
threat. This directly addresses the recommendation of the 9/11 Commission to
establish risk-based priorities for protecting transportation assets and based on this
prioritization, select the most practical and cost effective plans and budgets for
implementing means to defend transportation assets. The Commission further
recommended that these plans should assign appropriate roles to federal, state, and
local authorities, as well as to transportation industry stakeholders.
The House bill would require the TSA to begin testing of the next generation
passenger prescreening system, referred to by the Administration as Secure Flight,
by November 1, 2004 (see Section 2173). The bill further requires that the system
be fully deployed, giving TSA direct responsibility for comparing passenger name
records with lists of individuals that are to receive secondary screening or those that
are to be denied boarding, within 180 days after the completion of system testing.
The bill requires that the prescreening system ultimately rely on data contained
within the larger integrated and consolidated terrorist watch list. This provision
addresses the 9/11 Commission recommendation that the TSA expeditiously assume
responsibility for passenger prescreening using the larger set of watch lists



maintained by the federal government. The bill also requires airlines to begin
providing passenger data for system implementation within 60 days of the
completion of system testing. Implementation of passenger prescreening has been
stymied by airlines’ legal concerns regarding the provision of data, which led the
9/11 Commission to recommend that airlines be required to supply the information
needed to test and implement passenger prescreening.
The House bill also incorporates a floor amendment, offered by Representative
Mica, that would require prescreening of passengers on international flights to and
from the United States against the consolidated and integrated terrorist watch list
within 60 days after enactment. Administration plans are for the Bureau of Customs
and Border Protection (CBP) to retain responsibility for comparing passenger names
against terrorist watch lists on international flights, while the TSA will conduct
prescreening on domestic flights. At present, passenger data on international flights
to the United States is often not received by CBP until the flight has already departed.
The House bill contains a provision that would require the TSA to carry out a
pilot program to evaluate the use of blast-resistant containers for carrying baggage
and cargo on passenger airliners. The measure would authorize $2 million to carry
out the pilot program and provides financial assistance to cover increased costs to air
carriers as incentives to volunteer for the pilot program. The House bill would
require the TSA to submit a report detailing the results of this pilot program within
one year of enactment. This measure addresses the 9/11 Commission
recommendation to deploy at least one hardened cargo container on every passenger
aircraft that also hauls cargo to carry any suspicious cargo, but does not mandate such
action beyond the pilot program evaluation of this recommendation.
The House bill contains a provision (Section 2176) that would require the TSA
to develop technology to better identify, track, and screen air cargo. The 9/11
Commission noted that major vulnerabilities continue to exist in air cargo and
recommended that the TSA intensify efforts to identify, track, and appropriately
screen potentially dangerous cargo in both aviation and maritime transportation
modes.
The 9/11 Commission recommended that the TSA and the Congress give
priority to improving the ability of screening checkpoints to detect explosives on
passengers. The 9/11 Commission recommended that, as a start, each individual
selected for special screening should be screened for explosives. The House bill
(Section 2174) would direct TSA to develop and deploy technology that can detect
explosives and nonmetallic weapons on airline passengers or in their carry-on
baggage. An existing TSA pilot program is evaluating portals and other technology
for passenger explosives detection in several airports, but the technologies currently
being evaluated do not detect either nonmetallic weapons or biological and
radiological material. The House bill (Section 2174) also requires TSA to give
Congress a strategic plan for deploying and using explosives detection equipment at
airport screening checkpoints. Section 2177 of the House bill would establish a new
“Checkpoint Screening Security Fund” that would be funded by aviation security fees
at a level of $30 million per year in FY2005 and FY2006.



Section 2173 of the House bill would require the TSA to initiate a pilot program
to test, integrate, and deploy next generation checkpoint screening technology at five
or more airports. The provision also would require that human factors studies be
conducted to improve screener performance as part of this program. This section
addresses the 9/11 Commission recommendation that the TSA and Congress give
priority to improving the ability to screen passengers for explosives and the
recommendation that TSA conduct a human factors study to understand problems in
screener performance and establish performance objectives for screeners and
screening checkpoints.
The House bill also contains a provision (Section 2179) that would establish a
civil penalty of up to $25,000 for each violation of requirements to keep the cockpit
door secured during operation of a passenger aircraft. This provision also makes
technical changes to enforcement of security-related civil offenses to place the
authority for imposing fines and penalties for cockpit door violations and attempts
to carry concealed dangerous weapons on board aircraft with the DHS instead of with
the Department of Transportation (DOT).
A provision in the House bill (Section 2181) would require continued
development and implementation of procedures to protect the identity of Federal Air
Marshals by November 1, 2004. This provision was not recommended by the 9/11
Commission. However, media reports have indicated that air marshal identity may
be compromised due to check-in procedures that take place in public view as well as
dress code requirements that may be counter to maintaining a covert, undercover
presence among airline passengers.
A provision of the House bill (Section 2181) would provide for training on in-
flight counterterrorism procedures and tactics to be made available to federal law
enforcement officers who fly while on duty. These officers are permitted to carry
firearms in the aircraft cabin and could be a security asset in a hijacking or other
security situation. However, these officers currently receive no formal specialized
training on in-flight security and law enforcement. This measure is separate from
ongoing efforts to cross-train customs and immigration officers to be federal air
marshals thus providing a “surge” capacity to deploy additional air marshals during
periods of heightened threat against aviation assets.
Section 2182 of the House bill would require TSA to implement a pilot program
allowing Federal Flight Deck Officer (FFDO) program participants — deputized
armed pilots — to carry their firearms on their persons when transiting to and from
their cockpit assignments. Current procedures require armed pilots to keep their
firearms secured in a locked box when outside of the cockpit and prohibit carriage
of the weapon in the aircraft cabin when the pilot is being transported to or from
his/her flight assignment.
Section 2183 of the House bill would require the TSA to expedite
implementation of the registered traveler program, which is currently being tested in
cooperation with airlines using volunteer frequent fliers at five major airports. The
program allows passengers to voluntarily provide background information and
biometric data so that their identity can be validated and vetted against terrorist watch
lists. Program participants can then be exempted from additional screening



requirements beyond the initial physical screening conducted at checkpoints. It is
hoped that widespread implementation of this program can assist the TSA in
allocating its limited resources by focusing secondary screening efforts more
specifically on passengers who are of high risk or unknown risk, by more readily
identifying passengers who are considered a low risk to aviation security.
Section 2814 of the House bill would require the TSA, in coordination with the
Federal Aviation Administration (FAA), to study the viability of providing wireless
technologies or other methods of discrete communications between the aircraft cabin
and the cockpit for use in cases of security or safety concerns in the cabin. Despite
language in the Homeland Security Act of 2002 (P.L. 107-296) that amended the
Aviation and Transportation Security Act (ATSA; P.L. 107-71) to require that air
carriers provide flight attendants with a discreet, hands-free, wireless method of
communicating with the pilots, such technologies have not yet been deployed for this
purpose. This provision specifically directs the TSA to consider readily available
technologies in the study and to report on their findings within 180 days of
enactment.
A provision (Section 2185) of the House bill would require the TSA to submit
a report within six months of enactment regarding the costs and benefits and its
recommendations regarding the use of secondary flight deck barriers. While
secondary flight deck barriers are not currently required, United Airlines has received
TSA and FAA approval to begin installing a secondary barrier on some of its aircraft.
The purpose of such a barrier is to provide a cockpit security during times when the
hardened cockpit door is opened, such as for flight crew meal service or flight crew
access to the aircraft lavatory.
Section 2186 of the House bill would extend authorization for appropriations
of such sums as may be necessary for aviation security for one year, expiring at the
end of FY2006. Under ATSA, authorization for aviation security-related activities
is set to expire at the end of FY2005.
Finally, Section 2187 of the House bill would require the TSA to submit a report
to Congress on airport perimeter security within 180 days of enactment. The report
is to examine the feasibility of access control technologies and procedures, including
the use of biometrics or other identification methods, best practices for perimeter
access control techniques, and an assessment of the feasibility of screening all
individuals entering airport secured areas and strengthening background checks for
secured access areas.
Senate Provisions. Like the House bill, the Senate bill considers many of
the 9/11 Commission recommendations. However, the Senate bill contains no
provisions addressing the 9/11 Commission recommendation pertaining to the
deployment of hardened cargo containers on passenger aircraft. The Senate bill (S.
2845, Section 612) would authorize funding for the TSA to conduct research and
development on applications of biometrics to aviation security.
The Senate bill contains provisions (Sections 602-604) that would require the
DHS to establish procedures within one year of enactment under which charter
operators or companies that rent aircraft weighing more than 12,500 pounds may



provide the names of customers to the TSA for comparison against a comprehensive,
consolidated database of known or suspected terrorists and their associates. After
one year of experience with this system, the DHS is to provide a report detailing the
feasibility, costs, and benefits of expanding this program to include customers who
charter or rent aircraft weighing less than 12,500 pounds. These measures do not
specifically address the 9/11 Commission recommendation regarding implementation
of a new passenger prescreening system, because that recommendation specifically
targeted the prescreening of airline passengers and did not consider or recommend
expanding such a program to other aviation activities. However, the Senate bill
contains separate provisions (Section 401(c) and Section 1120(b)) that address the
airline passenger prescreening recommendation by requiring the DHS to report on
the criteria for and standards for the accuracy in adding names to the consolidated
terrorist watch lists and implement procedures for removing names erroneously
placed on lists that are used to deny passengers boarding or subject them to additional
screening measures.
Regarding the 9/11 Commission recommendation to improve measures to detect
explosives on passengers, the Senate bill (Sections 608 and 1034) directs DHS to
improve the capability of passenger screening checkpoints to detect explosives;
requires that until all passengers can be screened for explosives, any individuals
selected for additional screening shall be screened for explosives; authorizes funding
for R&D on technology for detecting explosives and biological and radiological
material; and directs TSA to establish a pilot program to evaluate portal screening
systems and similar equipment at up to 10 airports. The Senate bill also requires
DHS to give Congress a status report and assessment of additional needs regarding
checkpoint explosives detection (Section 617) and a report on how it will achieve the
objective of screening all passengers for explosives (Section 1034). Also, the Senate
bill (Section 612) authorizes an additional $20 million for research and development
of biometric technology applications for aviation security and authorizes $1 million
to establish centers of excellence in biometrics.
With regard to the 9/11 Commission recommendation to expedite in-line
baggage screening systems at airports, a recommendation on which the House bill
was silent, the Senate bill would authorize $150 million each year in fiscal years

2005-2007 to fund airport security projects that have received letters of intent (LOIs)


and allow LOI reimbursements to span over a period not to exceed 10 years. LOIs are
vehicles to commit future federal funding to airports for projects related to
integrating baggage screening equipment into baggage handling systems. The Senate
bill also contains provisions (Section 608) that would: require the DHS to establish
a schedule to replace explosive trace detection systems with in-line explosive
detection system equipment as soon a practicable where appropriate; authorizes an
additional $100 million for research and development of next-generation Explosive
Detection System (EDS) equipment; and require the DHS to develop a plan and
guidelines for implementing improved EDS equipment.
The Senate bill contains extensive provisions (Title V) addressing the 9/11
Commission recommendation for the TSA to intensify efforts to identify, screen, and
track air cargo. Specifically, the Senate bill would require the screening, inspection,
or implementation of other means to ensure the security of cargo transported in
passenger and all-cargo aircraft. It would also require the DHS to develop a strategic



plan for air cargo security. The Senate bill also mandates a pilot program for
evaluating cargo screening measures. Under these provisions, the Senate bill requires
implementation of a system for regular inspections of air cargo shipping facilities and
allows the DHS to increase the number of inspectors to carry out these inspections.
The Senate bill would require the creation of an industry-wide known-shipper
database pilot program and would require the DHS to conduct random audits and
inspections of security at freight forwarder (indirect air carrier) facilities and ensure
compliance with security standards. The measure would also require the DHS to
implement a security program for all-cargo operators covering: security of the cargo
operations and acceptance areas; access to aircraft; and security of cargo shipments.
Under this program, background checks would be required for all employees
accessing the air operations area, and flight crews and persons carried aboard all-
cargo aircraft would be screened.
Another provision of the Senate bill (Section 606) would authorize an additional
$200 million each year in fiscal years 2005-2007 for improving cargo security on
passenger and all-cargo aircraft, establish a grant program for next-generation air
cargo security technology and authorize $100 million each year in fiscal years 2005-
2007 for this purpose. The Senate bill (Section 607) would also require the DHS, in
consultation with the DOT, to develop and implement a plan for cargo security for
passenger and all-cargo operations based on the recommendations of the Cargo
Security Working Group of the Aviation Security Advisory Committee, a stakeholder
advisory group to TSA. This measure would also require the TSA to promulgate
regulations to evaluate freight forwarders (indirect air carriers) and ground handling
agents, including background checks and terrorist watch list checks of employees of
these organizations. The provisions would require the TSA to evaluate the increased
used of canine teams to inspect air cargo including targeted inspections of high risk
items, and double the amount of air cargo screened or inspected within 1 year of
enactment as compared to levels at the end of FY2004. This section would also
require the TSA, in coordination with the FAA, to require all-cargo aircraft to use a
barrier, such as a hardened cockpit door, to prevent unauthorized access to the flight
deck from a cargo compartment and would mandate the physical screening of all
persons and their effects transported on all-cargo aircraft within one year of
enactment. Finally, this section would require searches of all-cargo aircraft at the
beginning of each day and that all-cargo aircraft be secured or sealed or access stairs
removed when unattended.
The Senate bill also contains provisions designed to enhance the identification
of flight crews and passengers. First, Section 601 would permit the DHS to
implement a program using identification verification technologies, such as biometric
scanners, for screening passengers. Second, Section 601 would require the FAA to
develop tamper-resistant pilot credentials with photographs and other unique
identifiers, such as biometrics, to validate the authenticity of the credential. The bill
authorizes $50 million in FY2005 for creating the licensing system and authorizes
the use of designees to carry out the task of issuing these new pilots licenses to
aviators.
The Senate bill contains a provision (Section 605) that would require the DHS
to develop standards for screener staffing addressing security needs and minimizing



passenger delays at airports. The Senate bill contains numerous miscellaneous
provisions that would:
!Require the DHS to report on the potential for cross-training of
individuals who serve as air marshals and any need for contingency
funding of air marshal operations and authorizes an additional $83
million in FY2005-FY2007 for air marshal deployment (Section

609);


!Require the DHS, in consultation with the DOT to report on the
system to address claims related to baggage loss, damage, or theft
attributable to baggage security measures and make
recommendations to improve airline involvement in the baggage
screening and handling process (Section 610);
!Require the DHS to report on its efforts to implement
recommendations in GAO Report GAO-03-760 on homeland
security information sharing. (Section 611)
!Authorize $100 million for airport perimeter security measures
(Section 613);
!Require air carriers to offer bereavement fares to the public that, to
the greatest extent possible, should be provided at the lowest fare
offered by a carrier for a requested flight (Section 614);
!Require the TSA to review and revise its list of prohibited items and
explicitly prohibits butane lighters to be carried by airline passengers
(Section 615);
!Require the DHS to provide a classified report on the number and
composition of the Federal Air Marshal Service (FAMS), the
percentage of flights covered by FAMS, and attrition rate for FAMS
(Section 618);
!Require the DHS to designate individuals whom air marshals should
be required to identify themselves to and prohibit any procedures,
rules, regulations, or guidelines from exposing the identity of an air
marshal to anyone other than those designated (Section 619);
!Require funding assistance, subject to the availability of funds, for
installing security cameras to deter theft from checked baggage that
occurs in areas not open to public view and authorize appropriations
of such sums as may be necessary for this purpose (Section 620);
and
!Require the DHS to report on current telecommunications and
information technology equipment and capabilities at TSA sites and
provide an assessment of current and future telecommunications and
information technology needs at these sites (Section 1110).
Comments. Both the House and the Senate bills contain numerous provisions,
many of which directly address 9/11 Commission recommendations and others which
address other aviation security concerns not addressed in the 9/11 Commission
report. The two bills are similar in regard to the manner in which they address some
9/11 Commission recommendations. In particular, with regard to detecting
explosives on passengers, the two bills contain many similar provisions. On other
issues, the two bills differ significantly in their emphasis. For example, the House
provisions on passenger prescreening lay out specific provisions to address the 9/11



Commissions concerns, whereas the focus of the Senate bill is to expand
prescreening into other areas of aviation, like charter operations, which was not
considered by the 9/11 Commission. On the other hand, with regard to air cargo
security, the provisions in Senate bill are significantly more prescriptive and more
focused on procedures to secure air cargo as compared to the House provision, which
focuses very broadly on the development of technology to meet the 9/11 Commission
recommendation of improving air cargo identification, tracking and screening. While
the House bill contains specific provisions to address the 9/11 Commission
recommendation to establish a strategic plan for aviation and transportation security,
the Senate bill does not address this issue. The Senate bill also does not specifically
address human factors issues at screening checkpoints, an issue of concern for the
9/11 Commission. However the House bill does contain a provision addressing this
recommendation by including studies of human factors to improve screener
performance in its provision for assessing next generation checkpoint screening
equipment.
Both the House and the Senate bills contain numerous provisions addressing
aviation security issues that were not addressed in 9/11 Commission
recommendations. Both bills contain provisions to mitigate the threat of shoulder-
fired missiles (MANPADS). However, while the House bill focuses more on
international efforts to control the proliferation of these weapons, the Senate bill
focuses more on the assessment of ongoing efforts to secure airports and evaluate the
feasibility of using aircraft-based anti-missile systems. Both bills discuss methods
to better conceal the identity of air marshals, but the Senate bill focuses more on
means to enhance the presence of air marshals on U.S. flights, while the House bill
focuses on provisions to train foreign air marshals for deployment on foreign airliners
operating to and from the United States. In sum, the two bills differ significantly
with regard to their aviation security provisions, however, these differing provisions
appear to be largely complementary rather than competing or in conflict in their
language.
Other Matters
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
Mechanisms for Improved Terrorist-Related Information Sharing.
The 9/11 Commission’s final report stressed the importance of mechanisms for
improved terrorist-related information sharing within the Government. Congress has
already expanded access to such information unearthed in the context of federal
grand jury investigations. The Senate bill has no provisions similar to the House
bill’s grand jury expanded access section.
House Provisions. H.R. 10, §2191. H.R. 10 amends the grand jury secrecy
rule to permit disclosure of grand jury material to foreign officials under
circumstances comparable to those under which it is now available to state, local and
tribal officials.
Comment. It remains to be seen how the courts will respond to the use of the
grand jury as an intelligence gathering device for foreign officials.



Interoperable Law Enforcement and Intelligence Data System
(Chimera). Prepared by William Krouse, Analyst in Social Legislation, CRS
Domestic Social Policy Division, 7-2225
Summary. The 9/11 Commission recommended establishing a procedures for
the Intelligence Community that would provide incentives for information sharing
and restoring a better balance between security and shared knowledge. The
Commission also called upon the President to lead a government-wide effort to
overcome legal, policy, and technical issues to create a “trusted information network”
to share vital intelligence among agencies charged with domestic security.
House Provisions. Section 2192 of H.R. 10 would amend the Enhanced
Border Security and Visa Reform Act of 2002 (P.L. 107-173; 116 Stat. 548) to
establish new deadlines for an interoperable law enforcement and intelligence data
system — also known as the “Chimera system — that would permit automated data
exchange, by connecting the data systems operated independently by the intelligence
community and the proposed National Counterterrorism Center. This provision
would require the National Intelligence Director to establish an interim system within
one year of enactment, and a fully functional system that incorporates the best
available biometric identification and linguistic capabilities by September 11, 2007
within the National Counterterrorism Center. The purpose of this system would be
to provide intelligence officers, federal law enforcement officers, counterterrorism
officials, and consular officers with the best available information to identify
terrorists, and organizations and individuals that support terrorism.
Senate Provisions. In regard to interoperable data systems, S.Amdt. 3807
to S. 2845 offered by Senators McCain and Lieberman includes language that would
also amend P.L. 107-173. This language — included under the section dealing with
a “Biometric Entry and Exit Data System” — would require the Secretary of
Homeland Security to implement an interoperable electronic data system within 2
years of enactment that would provide federal law enforcement agencies and the
intelligence community with the relevant information to determine whether an alien
is (1) eligible for a visa, (2) admissible to the United States, or (3) deportable from
the United States.
Comments. There is significant divergence in the House and Senate
provisions. The House provision envisions an interoperable computer-based system
that could be considered a “trusted information network,” as recommended by the
9/11 Commission; while the Senate provision envisions a biometric entry/exit control
system that would be integrated with other immigration computer systems and
databases that include data pertinent to determining an alien’s legal status.
Improvement of FBI’s Intelligence Capabilities. Prepared by Todd
Masse, Specialist in Domestic Intelligence and Counterterrorism, CRS Domestic
Social Policy Division, 7-2393
The major provisions of this title, in both H.R. 10, section 2193, and S. 2845,
section 203-205, relate to the establishment within the Federal Bureau of
Investigation (FBI) of an Intelligence Directorate and a professional intelligence
workforce. Like the 9/11 Commission’s finding that the FBI develop “...an



institutional culture imbued with a deep expertise in intelligence and national
security,” both bills recommend that the FBI institutionalize its ability to prevent,
pre-empt and disrupt terrorist threats.
Structure — Establishment of an Intelligence Directorate. H.R. 10,
Section 2193, would codify within the FBI the existence of an “Intelligence
Directorate” which would be responsible for: (1) the oversight of FBI field
intelligence operations, (2) FBI human source development, (3) FBI collection
against nationally-determined intelligence requirements, (4) language services, (5)
strategic analysis, (6) intelligence program and budget management, and (7) the
intelligence workforce. S. 2845, section 205, as amended, also would codify a
Directorate of Intelligence within the FBI. Under this proposal, the existing Office
of Intelligence at the FBI would be re-designated as the Directorate of Intelligence.
The Directorate of Intelligence would be responsible for: (1) supervising all the
national intelligence programs at the FBI, (2) oversight of the FBI’s field intelligence
operations, (3) coordinating human source development and intelligence collection
by the FBI against nationally determined intelligence requirements, (4) strategic
analysis, (5) the intelligence workforce, and (6) intelligence budget and program
management.
The differences between these two provisions are: (1) degree of specificity, e.g.,
S. 2845, section 206, specifies that the existing Office of Intelligence is re-designated
as the Directorate of Intelligence, while H.R. 10, section 2193, does not.
National Security Workforce. H.R. 10, Section 2193, provides for the
establishment of a “...specialized, integrated intelligence cadre composed of Special
Agents, analysts, linguists, and surveillance specialists in a manner which creates and
sustains within the FBI a workforce with substantial expertise in, and commitment
to, the intelligence mission of the FBI.” S. 2845, section 203, recommends the FBI
continue efforts to develop and maintain within the Bureau a national security
workforce. Under the Senate bill, the workforce should consist of agents, analysts,
linguists, and surveillance specialists — recruited, trained, and rewarded in a manner
which ensures the existence within the FBI of an institutional culture with substantial
expertise in the intelligence and national security missions of the FBI. These
proposals are fairly consistent.
In regards to personnel recruitment, H.R. 10, section 2193, provides that the FBI
enhance its ability to recruit individuals with educational and professional
backgrounds in intelligence, international relations, language, technology, and other
skills relevant to the intelligence mission of the FBI. S. 2845, section 203, provides
that the FBI recruit and retain individuals with backgrounds in intelligence,
international relations, language, technology, and other skills relevant to the
intelligence and national security missions of the FBI. These are essentially identical
proposals.
With respect to intelligence training and intelligence officer certification, H.R.
10, section 2193, requires: (1) establishing intelligence cadre requirements for
training; career development and certification; recruitment, hiring and selection
practices that attract highly qualified individuals; integrating field intelligence teams;
and senior level field management; (2) all Special Agents and analysts employed by



the FBI receive “...basic training in both criminal justice matters and intelligence
matters....”; (3) establishing intelligence officer certification requirements; and (4)
“...requirements for training courses and assignments to other intelligence, national
security, or homeland security components....” in order to advance to senior
operational management positions in the FBI. S. 2845, section 203, provides: (1)
each agent employed by the FBI receive basic training in both criminal justice
matters and national security matters, and (2) each senior manager of the FBI shall
be a certified intelligence officer.
In regards to intelligence career paths, H.R. 10, section 2193, recommends that:
(1) early in their career all Special Agents be given an opportunity to have
“meaningful assignments” in criminal justice and intelligence matters; (2) Special
Agents who specialize in intelligence matters be “...afforded the opportunity to work
on intelligence matters over the remainder of their career with the FBI...;” (3) FBI
analysts be afforded with “...training and career opportunities commensurate with the
training and career opportunities afforded analysts in other departments of the
intelligence community.” S. 2845, section 205, has very similar, if not identical,
language with respect to this issue. One unique element of S. 2845, section 205, is
the proposed establishment of an FBI “Intelligence Career Service.” This would
allow the FBI, in consultation with the Office of Personnel Management, to
“...establish positions for intelligence analysts without regard to chapter 51 of title 5,
United States Code.
There is a high degree of consistency between H.R. 10, section 2193, and S.
2845, section 205, with respect to the establishment within the FBI of a national
security workforce. However, while title V (sections 5051 - 5054) of H.R. 10
addresses certain personnel and pay issues associated with the FBI, it does not
specifically include relief from the pay provisions of title 5, U.S. Code for FBI
intelligence analysts (GS-132 series). With respect to intelligence officer
certification, S. 2845, section 204, defines the senior FBI operational officials who
would be required to be certified as “..each Operational Manager at the Section Chief
and Assistant Special Agent in Charge (ASAC) level and above....” H.R. 10, section
2193, proposes that intelligence officer certification be required for advancement to
“...senior operational management positions within the FBI....”
Intelligence Program Performance Measurements. H.R. 10 requires
the production of intelligence that is responsive to national intelligence requirements
and priorities, including measures of the degree to which FBI headquarters and each
FBI field component is collecting and providing such intelligence (emphasis added).
S. 2845, Section 203, does not include similar language.
Budget Issues. H.R. 10, section 2193, and S. 2845, section 203, have nearly
identical language requiring that the FBI modify the structure of its budget to reflect
the FBI’s four main programs — Intelligence, Counterterrorism and
Counterintelligence, Criminal enterprise/Federal crimes, and Criminal justice
services.
Field Issues. H.R. 10 provides that each FBI field office have an official at
the level of Assistant Special Agent in Charge or higher with responsibility for the
FBI field intelligence component, and calls for the expansion of special



compartmented information facilities (secure space) in FBI field offices, as
necessary. Both bills call for the integration of analysts, agents, linguists, and
surveillance personnel in the field.
Police Badges
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
The 9/11 Commission’s final report recommended that “secure identification
should begin in the United States.” The Senate bill is silent on the question of police
badges.
House Provisions.. H.R. 10, §§2201-2202. Existing federal law outlaws
unauthorized possession of police badges or counterfeit badges that have been
transported in commerce. The House bill eliminates the decorative and general
recreational exceptions to the federal prohibition.
Comment.. Exceptions for theatrical and collection purposes would remain
in place.
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
Railroad Carriers and Mass Transportation Protection Act
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
Neither the 9/11 Commission’s final report nor the Senate bill appear to have
addressed this matter.
House Provisions. H.R. 10, §§2301-2302. H.R. 10 merges the section
which outlaws wrecking trains with that which outlaws terrorist attacks on mass
transit.
Comment. The bill adopts uniformly the more generous jurisdiction and more
serious penalties from whichever section now features them.
Weapons of Mass Destruction —
Terrorist Access Prevention
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
The 9/11 Commission’s final report noted al Qaeda’s efforts to acquire weapons
of mass destruction and recommended strengthening counterproliferation efforts in
the international arena. The House bill expands the proscription against effort to
acquire or produce weapons of mass destruction. There are no comparable
provisions in the Senate bill.



House Provisions. H.R. 10, §§2401-2411. Subtitle K consists of eight
substantive sections. Four new crimes that increase the penalties and jurisdictional
reach of existing bans relating to the production, traffic in, and use as weapons of
anti-aircraft missiles, atomic weapons, radiological dispersal devices, and smallpox
virus. All four crimes are punishable by death or life imprisonment if death results
from the commission of the offense; by imprisonment for life if the offense involves
the use, attempted use, conspiracy to use, or threat to use such weapons; and by
imprisonment for not less than 30 years in all other cases. For all four crimes, there
is federal jurisdiction over the offense when it occurs in or affects interstate or
foreign commerce, when it is committed by or against an American overseas, or
when it is committed against federal property no matter where the property is located.
The subtitle then adds each of these four new crimes to the wiretapping and money
laundering predicate offense list, to the list of federal crimes of terrorism, and to the
export license screening list.
Comment. Existing law criminalizes much of the same conduct, but in many
instances punishes it more leniently. The impact of inclusion of the new crimes on
the various predicate and screening lists is confined to the relatively limited instances
where the misconduct is not already a crime. The relationship between subtitle K and
subtitle D (weapons of mass destruction prohibition improvement) is not clear.
Terrorist Penalties Enhancement Act
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
Neither the 9/11 Commission’s final report nor the Senate bill mention capital
punishment. Similar provisions have been reported by the House Judiciary
Committee, H.Rept. 108-588 (2004).
House Provisions. H.R. 10, §§2501-2503. The House bill provides capital
punishment as a sanction for those existing death-causing terrorist offenses that do
not already carry the death penalty. It also denies convicted terrorists the benefits of
certain federal programs and makes commission of a terrorist offense an aggravating
factor for capital punishment purposes. Finally, it makes the 1994 capital
punishment procedures retroactively available to cases of air piracy committed after
establishment of earlier, now-repealed air piracy capital punishment procedures.
Pretrial Detention and Postrelease Supervision of Terrorists
Prepared by Charles Doyle, Senior Specialist in American Public Law, CRS
American Law Division, 7-6968
Neither the 9/11 Commission’s final report nor the Senate bill speak of
preventive detention or supervision of terrorists following imprisonment.
House Provisions. H.R. 10, §§2601-2603. H.R. 10 adds federal crimes of
terrorism to the list of federal crimes that may warrant pretrial detention and
authorizes the life-long supervision of convicted terrorists following their release
from prison regardless of whether their crime involved a risk injury (as is now
required for life-long supervision).



Title III: Border Security and Terrorist Travel
Immigration Reform
Prepared by Michael John Garcia, Legislative Attorney, CRS American Law
Division, 7-3873,
and Ruth Ellen Wasem, Specialist in Social Legislation, CRS Domestic Social Policy
Division, 7-7342
Overview. The 9/11 Commission’s immigration-related recommendations
focused primarily on targeting terrorist travel through an intelligence and security
strategy based on reliable identification systems and effective, integrated
information-sharing. As Congress has considered these recommendations, however,
possible legislative responses have broadened to include changes in the substantive
law governing immigration and how that law is enforced, both at the border and in
the interior of the United States. Subtitle A, Title III of H.R. 10, entitled
“Immigration Reform in the National Interest,” includes provisions on a variety of
immigration-related subjects, ranging from making certain immigration and travel-
related document requirements more stringent, to increasing the allocation of
personnel devoted to enforcing immigration laws at the border and inside the United
States, to expanding the scope of terror-related activity making an alien inadmissible
or deportable. S. 2845 generally lacks such provisions. [For additional background,
see CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion of Aliens;
CRS Report RL32276, The U.N. Convention Against Torture: Overview of U.S.
Implementation Policy Concerning the Removal of Aliens; and CRS Report
RL32621, U.S. Immigration Policy on Asylum Seekers.]
Document Requirements Relating to International Travel and
Immigration Identification. H.R 10 and S. 2845 contain a number of provisions
relating to improving the security of identification documents. H.R. 10 also includes
certain measures in the context of “immigration reform” that would make certain
document requirements relating to international travel and immigration identification
more stringent, especially as it pertains to documentary requirements currently
waived in § 214(d)(4) of INA. S. 2845 does not have identical provisions, but does
address similar concerns.
House Bill. H.R. 10 would make certain documentary requirements relating
to the entry and exit of persons from the United States more stringent. One provision
would limit the President’s ability to waive general statutory requirements requiring
U.S. citizens traveling abroad or attempting to enter the United States to bear a valid
U.S. passport, so that such a waiver could only be exercised with respect to U.S.
citizens traveling to or from foreign contiguous territories who were also bearing
identification documents designated by DHS as (1) reliable proof of U.S. citizenship,
and (2) of a type that may not be issued to an unlawfully present alien within the
United States [H.R. 10, § 3001]. Another provision would limit the authority to
waive identification document requirements of foreign nationals entering from
foreign contiguous territories or adjacent islands, so that such waivers could be
issued on the basis of reciprocity and only to those aliens who were carrying
identification documents deemed to be secure by the Secretary of Homeland Security
[H.R. 10, § 3002].



Additionally, H.R. 10 would require that for purposes of establishing his or her
identity to any federal employee, an alien present in the United States may only
present either (1) any document issued by the Attorney General or Secretary of
Homeland Security under the authority of an immigration law, or (2) an unexpired,
lawfully issued foreign passport [H.R. 10, § 3006].
Senate Bill. S. 2845 would require the Secretary of State, in consultation with
DHS, expeditiously to develop and implement a plan for the use of biometric
passports. This plan would require U.S. citizens and foreign nationals from
contiguous territories or adjacent islands (i.e., aliens currently waived in § 214(d)(4)
of INA) to present biometric passports, or some other type of secure biometric travel
document, for travel into the United States. [S. 2845, Section 1024]
Additional Allocation of Personnel Enforcing Immigration Laws at
or Within the U.S. Border and Detention Space. H.R. 10 and S. 2845 both
provide for the additional allocation of resources to ensure the enforcement of
immigration laws. Both bills include provisions to increase the number of personnel
enforcing immigration laws at or within the U.S. border, and H.R. 10 also provides
for an increase in bed space at immigration detention centers.
House Bill. H.R. 10 would also require the Secretary of Homeland Security
to increase the number of personnel enforcing immigration laws at or within the U.S.
border. H.R. 10 would require the Secretary of Homeland Security to increase the
number of full-time active-duty border patrol agents by not less than 2,000 above the
number of positions for which funds were allotted for the preceding fiscal year, for
each year FY2006-FY2010 [H.R. 10, § 3003]. H.R. 10 would also require an
increase in the number of positions for full-time active-duty investigators of
immigration law violations by not less than 800 above the number of positions for
which funds were allotted for the preceding fiscal year, for each year FY2006-
FY2010 [H.R. 10, § 3004]. H.R. 10 would also direct the Secretary of Homeland
Security to increase Detention and Removal Operations (DRO) bed space for
FY2006 and FY2007 by 2,500 beds each year [H.R. 10, § 3005].
Senate Bill. S. 2845 would require the Secretary of Homeland Security to
increase the number of full-time active-duty border patrol agents by not less than
1,000 above the number of positions for which funds were allotted for the preceding
fiscal year, for each year FY2006-FY2010 [S. 2845, Section 702]. It further specifies
that at least 20 percent of such agents must be assigned to the northern border of the
United States. Like H.R. 10, S. 2845 would require an increase in the number of
positions for full-time active-duty investigators of immigration law violations by not
less than 800 above the number of positions for which funds were allotted for the
preceding fiscal year, for each year FY2006-FY2010 [S. 2845, Section 703]. S. 2845
does not include a provision for an increase in DRO detention bed space.
Expanding Grounds for Alien Exclusion and Removal, and Limiting
Relief from Removal. A primary area of difference between H.R. 10 and S. 2845
concerns grounds for alien exclusion, removal, and relief from removal, as only H.R.

10 deals extensively with these areas.



House Bill. H.R. 10 would expand the grounds for alien exclusion and
removal, particularly as such grounds relate to terrorist activity. It would expand the
terror-related grounds for inadmissibility and deportability to include additional
activities, such as receiving military-type training by or on behalf of a terrorist
organization [H.R. 10, §§ 3034-35]. It would also deny such aliens relief from
removal to a particular country on account of a well-founded fear of persecution
[H.R. 10, § 3031], though such aliens could still have their removal withheld or
deferred if they were more likely than not to face torture if removed, pursuant to
regulations implementing the U.N. Convention Against Torture. H.R. 10 would also
establish more stringent standards for asylum applicants accused by their home
countries of being involved in terrorist or guerrilla-related activities (applicants who
may not necessarily be inadmissible or deportable on terror-related grounds), by
requiring such applicants to demonstrate that their race, religion, nationality,
membership in a particular social group, or political opinion was or will be a central
reason for their persecution if removed [H.R. 10, § 3008].
H.R. 10 would also affect the ability of certain other classes of aliens to enter
or remain in the United States. Aliens who have committed, ordered, assisted,
incited, or otherwise participated in genocide, acts of torture or extrajudicial killings
abroad, as well as aliens who have committed particularly severe violations of
religious freedom while serving as foreign government officials, would be designated
as inadmissible and deportable [H.R. 10, §§ 3121-22]. Further, H.R. 10 would
significantly expand the class of aliens arriving in the United States subject to
expedited removal without further hearing or review, by increasing from two years
to five years the prior continuous U.S. physical presence required for exemption from
such removal (such aliens could still seek asylum, however) [H.R. 10, § 3007].
H.R. 10 would amend the INA to add revocation of visas to the grounds of
deportation, making the alien subject to the visa revocation immediately removable.
It would clarify that the Secretary of Homeland Security, not the Attorney General,
also has authority to revoke approval of visa petitions [H.R. 10, § 3009].
H.R. 10 would also eliminate habeas review and other non-direct judicial review
for certain removal or visa revocation decisions, and clarify that in all immigration
provisions restricting judicial review, such restrictions include habeas and other
non-direct review, but that such restrictions do not preclude federal appellate court
consideration of constitutional claims or other purely legal issues raised in
accordance with current statutory procedures [H.R. 10, §§ 3009-10].
H.R. 10 would also provide the Secretary of Homeland Security with increased
discretion as to the detention and removal of certain aliens. H.R. 10 provides that an
alien may be removed to his country of citizenship, residence, or birth, unless (1) the
country physically prevents the alien from entering the country, or (2) the alien’s
removal to the country would be prejudicial to the United States [H.R. 10, § 3033].
If an alien’s removal to a particular country would be prejudicial, the Secretary of
Homeland Security is given broad discretion as to where to transfer an alien [H.R.
10, § 3033]. The Secretary of Homeland Security is also provided with the authority
to indefinitely detain aliens ordered removed (pending removal) who are deemed to
be a danger to the community or national security of the United States, subject to
review every six months by the Secretary [H.R. 10, § 3032].



Senate Bill. S. 2845 does not contain any similar provisions relating to the
exclusion and removal of aliens.
Preventing Alien Smuggling. H.R. 10 would amend section 274 of the
Immigration and Nationality Act (INA), which criminalizes conduct relating to the
smuggling of aliens. S. 2845 does not contain a similar provision.
House Bill. H.R. 10 would raise the criminal penalty for acts prohibited by
INA section 274 if (1) the offense was part of an ongoing commercial organization
or enterprise; (2) the aliens were transported in groups of 10 or more; (3) the aliens
were transported in a manner that endangered their lives; or (4) the aliens presented
a life-threatening health risk to people in the United States [H.R. 10, § 3041].
Senate Bill. S. 2845 does not contain a similar provision.
Identity Management Security
Prepared by Todd Tatelman, Legislative Attorney, CRS American Law Division, 7-
4697
Improved Security for Drivers’ Licenses and Personal Identification
Cards. The 9/11 Commission’s final report recommended that “the federal
government should set standards for the issuance of birth certificates, and sources of
identification, such as drivers’ licenses.” Specifically noting the rising problem of
identification fraud, the Commission concluded that “sources of identification are the
last opportunity to ensure that people are who they say they are and to check whether
they are terrorists.”
House Provisions, H.R. 10 §§3051-3060. The House language establishes
minimum document requirements, verification and issuance standards for acceptance
by a federal agency. The House bill includes a requirement that drivers’ licenses or
identification cards contain specific information, features designed to prevent
tampering, and have common machine-readable technology. States would be
required to verify with the issuing agency the issuance, validity and completeness of
any presented documents, as well as verify an individual’s legal presence in the
United States. In addition, to have these documents accepted by federal agencies
states would be required to adopt procedures and practices to ensure that they meet
the requirements of this section. The House bill also authorizes that grant funding be
made available to the states. To be eligible for these grants, however, the state must
agree to participate in an interstate compact regarding the electronic sharing of driver
license data.
Senate Provisions, S. 2845 Section 1027. The Senate language would
require the Secretary of Transportation, in consultation with the Secretary of
Homeland Security, to establish minimum documentation, verification, processing
and security standards for drivers’ licenses or personal identification cards for
acceptance by federal agencies. In addition, the regulations are to require states to
confiscate a driver’s license or personal identification card if any component or
security feature is compromised. Finally, the regulations are required to contain
procedures designed to protect the privacy and civil rights of applicants for drivers’
licenses and identification cards.



Comments. While both versions of the bill attempt to address the problem of
identification fraud identified by the 9/11 Commission, it appears that the House of
Representatives has opted to legislate specific requirements leaving little room for
agency discretion. The Senate, on the other hand, has chosen to mandate regulation,
but has provided federal agencies broader discretionary authority to address the
various concerns identified in the statutory language.
Improved Security for Birth Certificates.
House Provisions, H.R. 10 §§3061-3067. Similar to the drivers’ license
provisions, the House bill establishes minimum document, issuance, and verification
standards for federal recognition. In addition, the House bill will also require states
to establish minimum building security standards for both state and local vital records
offices, implement other security and privacy protection measures, and create a
common database and exchange protocol for electronic birth and death registration
systems. The House bill also authorizes that grant funding be made available to the
states.
Senate Provisions, S. 2845, Section 1026. The Senate has chosen to
direct the Secretary of Health and Human Services to issue regulations establishing
minimum standards for birth certificates to be accepted by federal agencies for
official purposes. The regulations are to include features designed to prevent
tampering, counterfeiting, or other unauthorized duplications for fraudulent purposes.
In addition, the regulations are required to establish requirements for both proof and
verification of identity, and may not require that a single national design be utilized.
Comments. Similar to the drivers’ license provisions, the House has opted
to legislate specific requirements leaving little room for agency discretion, while the
Senate has mandated regulation, but has provided federal agencies with broader
discretionary authority.
Measures to Enhance Privacy and Integrity of Social Security
Account Numbers.
House Provisions, H.R. 10 §§3071-3076. The House bill essentially
addresses this issue in three ways. First, the bill specifically prohibits the states or
their political subdivisions from displaying, electronically or otherwise, a social
security number, (or any derivative of such number) on any driver’s license or motor
vehicle registration, or on any other document issued by states to an individual for
identification. Second, the bill requires the Commissioner of Social Security to
promulgate a number of regulations with respect to the system for issuing social
security numbers. Finally, the bill contains a number of provisions requiring the
submission to Congress of reports and recommendations.
Senate Provisions, S. 2845, Section 1028. Like the House bill, the
Senate bill requires the Commissioner of Social Security to issue regulations
restricting the issuance of multiple replacement cards to minimize fraud and
requiring independent verification of all records provided by applicants for social
security numbers other than enumeration at birth. However, unlike the House bill,
the Senate requires the Commissioner to add death, fraud, and work authorization



indicators to the social security number verification system, and provides for the
establishment of an interagency task force to further improve the security of social
security cards and numbers. In addition, the Senate bill does not appear to contain
any of the reporting or recommendations provisions included in the House bill.
Targeting Terrorist Travel — Border Controls
Prepared by Blas Nuñez-Neto, Analyst in Social Legislation, CRS Domestic Social
Policy Division, 7-0622,
Ruth Ellen Wasem, Specialist in Social Legislation, CRS Domestic Social Policy
Division, 7-7342,
Stephen Vina, Legislative Attorney, CRS American Law Division, 7-8079, and
Lisa M. Seghetti, Analyst in Social Legislation, Domestic Social Policy Division, 7-
4669
Overview. Actions to identify and intercept terrorists who are attempting to
enter or leave the United States are a key component of the 9/11 Commission’s
recommendations. In 1996, Congress required the development of an automated
entry and exit data system to track the arrival and departure of aliens, but such a
system has yet to be fully implemented. Following the 9/11 terrorist attacks,
Congress enacted additional measures, including the USA PATRIOT Act (P.L.

107-56) and the Enhanced Border Security and Visa Reform Act of 2002 (P.L.


107-173), to encourage the more expeditious development of an automated entry and
exit data system, and to further require that biometric identifiers be used in passports,
visas, and other travel documents to improve their security. The 9/11 Commission
report called for expeditious implementation of the US-VISIT program and
recommended consolidating border screening systems, including frequent traveler
programs, with the US-VISIT system. At the same time (1996) Congress enacted
provisions for an automated entry and exit data system, it also required the
implementation of a pre-inspection program at selected locations overseas under
which immigration officers inspect aliens before their final departure to the United
States, and authorized assistance to air carriers at selected foreign airports to help in
the detection of fraudulent documents. A number of proposals have been made to
improve the accurate monitoring of persons entering and exiting the United States.
[For further discussion of these topics, see CRS Report RL32399, Border Security:
Inspections Practices, Policies, and Issues; CRS Report RL32234, U.S. Visitor and
Immigrant Status Indicator Technology Program (US-VISIT); and CRS Report
RL31512, Visa Issuances: Policy, Issues, and Legislation.]
Visa Processing and Issuances. Both bills would increase the number of
consular officers by 150 over the preceding year, annually FY2006 through FY2009.
Both bills also have provisions aimed at improving the security of the visa issuance
process by providing consular officers and immigration inspectors greater training
in detecting terrorist indicators, terrorist travel patterns and fraudulent documents
[H.R. 10, Setion 3084, S 2845, Section 701].
House Bill. H.R. 10 would clarify that all nonimmigrant visa applications are
reviewed and adjudicated by a consular officer [H.R. 10, § 3084] and would establish
an Office of Visa and Passport Security within the State Department to develop a
strategic plan to disrupt the operations of individuals and organizations engaged in
travel document fraud, and would station anti-fraud specialists at consular posts



overseas. This strategic plan would emphasize individuals and organizations that may
have links to domestic terrorist organizations or foreign terrorist organizations as
defined by INA. This office also would analyze methods used by terrorists to travel
internationally, particularly the use of false or altered travel documents to illegally
enter foreign countries and the United States, and advise the Bureau of Consular
Affairs on changes to the visa issuance process that could combat such methods,
including the introduction of new technologies. [H.R. 10, § 3092].
Senate Bill. S. 2845 (Section 1024) would require the Secretary of State to
suspend the “transit without visa” program until the Secretary, in consultation with
DHS, ensures that a security plan for the transit passage areas are completely
implemented . S. 2845 would narrow the authority to waive the personal interview
for nonimmigrant visas to children under age 12, persons 65 years or older, diplomats
and representatives of international organizations, aliens who are renewing a visa
they obtained within the prior 12 months, and individual cases for whom a waiver is
warranted for national interest or unusual circumstances (as determined by the
Secretary of State) [S. 2845, Section 801]. S. 2845 would require that each Visa
Waiver Program (VWP) country, as a condition of being in the VWP, have a
program to issue tamper-resident, machine readable visa documents that incorporate
biometric identifiers which are compatible with the biometric identifiers used in the
US-VISIT program [S. 2845, Section 1117].
Inspections at Foreign Airports. A difference between the House and
Senate bills concerns the expansion of the pre-inspections program and the
Immigration Security Initiative at foreign airports.
House Bill. H.R. 10 would direct the Secretary of DHS, in consultation with
the Secretary of State, to expand the preinspection program at foreign airports from
five airports to at least 15 and up to 25 airports by January 1, 2008, and submit a
report on the progress of the expansion by June 30, 2006. The bill would also change
the language regarding the criteria on where pre-inspections stations should be
located by adding “number of inadmissible aliens, especially aliens who are potential
terrorists.” It would also authorize appropriations to implement this subsection.
[H.R. 10, § 3082]
H.R. 10 would direct the Secretary of DHS to expand the Immigration Security
Initiative (ISI), which places Bureau of Customs and Border Protection (CBP) agents
at foreign airports to prevent people identified as national security threats from
entering the country. The act calls for at least 50 airports to participate in program
by December 31, 2006 and authorizes appropriations. [H.R. 10, § 3083]
Senate Bill. S. 2845 would similarly direct the Secretary of DHS, in
consultation with the Secretary of State, to expand the pre-inspection program at
foreign airports to at least 25 airports by January 1, 2008. The bill would require the
additional preinspections site to be in addition to those established prior to September

30, 1996. [S. 2845, Section 1025]


S. 2845 does not include a provision relating to the Immigration Security
Initiative.



Criminalizing False Claim to Citizenship. Criminalizing of false claims
to United States Citizenship is another difference between the House and Senate
bills.
House Bill. H.R. 10 would criminalize false claim to citizenship in order to
enter or remain in the United States by modifying the United States Code to make
false claims liable to a fine and a maximum prison sentence of five years [H.R. 10,
§ 3086].
Senate Bill. S. 2845 includes no provisions relating to criminalizing false
claims to citizenship.
Biometric Entry/Exit Data System. H.R. 10 appears to provide
significantly more detail on training requirements; information accessibility,
accuracy, and standardization; and corrective actions for erroneous information: S.
2845 calls on the Secretary to establish guidelines on assuring accurate information
and to create an appeals process regarding data contained in covered databases. S.
2845 appears to place additional requirements on the Secretary’s report to Congress
and the Secretary’s review of the registered traveler program. S. 2845 requires that
both the Secretary of DHS and the heads of agencies that have databases linked to the
entry and exit system establish guidelines for collecting and removing data, instead
of having the Secretary of DHS establish all guidelines, as H.R. 10 would. S. 2845
also requires the collection of biometric exit data for all individuals required to
provide biometric information at entry, regardless of the port of entry used. H.R. 10
does not appear to have a similar provision.
House Bill. H.R. 10 would require the Secretary of DHS to develop a plan to
accelerate the full implementation of an automated biometric entry and exit data
system (US-VISIT) and to submit a report to Congress on the plan. The bill would
require the Secretary to integrate the system with databases maintained by the U.S.
Citizenship and Immigration Service and certain other immigration benefits
information maintained by other federal agencies. The bill also would require the
Secretary to establish rules and guidelines for collecting and removing data in system
and databases linked to it. H.R. 10 contains further provisions on the use,
standardization, and accuracy of, and access to, information in the system. Other
provisions address training officers who are to use the system and establishing a
community outreach program. H.R. 10 would require DHS to create a centralized
process through which the public can correct erroneous system information. H.R. 10
would require 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.
[H.R. 10 § 3090]
Senate Bill. Through Senate Amendment 3807, S. 2845 would require the
Secretary of DHS to implement a plan for an automated biometric entry and exit data
system, and report to Congress, in substantially the same fashion as H.R. 10 would,
but there are certain differences, some of which are noted below. S. 2845 would
require the Secretary to fully integrate all databases of selected DHS, DOJ, and DOS
agencies that process information on aliens. S. 2845 also would require the creation
of a registered traveler program much like the one in H.R. 10 and, like H.R. 10,



require that it be integrated into the automated biometric entry and exit system. The
Senate bill, however, sets explicit criteria so as to include as many participants as
practicable in the registered traveler program. [S. 2845, Section 1022-1023]
Analysis, Studies, Plans, and Agreements. Analysis and studies of
terrorist travel as well as technologies useful in tracking terrorists are features of the
both bills. In addition, they have planning requirements for technologies and
documentary requirements aimed at terrorist travel.
House Bill. H.R. 10 also would require the Comptroller General, the Secretary
of State, and the Secretary of Homeland Security (each no later than May 31, 2005)
to submit two studies. The studies shall examine the feasibility, cost, potential
benefits, and relative importance to tracking and apprehending terrorists of: (1)
requiring all foreign nationals to present machine-readable, tamper resistant passports
that incorporate biometric and document authentication identifiers; and (2) creating
a database containing information on the lifetime travel history of each foreign
national or U.S. citizen who seeks to enter the United States, so that border and
consular officers may determine a person’s travel history by means other than a
passport. The studies should also make recommendations on incentives that could
be offered to foreign nations to participate in the initiatives. [H.R. 10 § 3081]
H.R. 10 would call on the President to lead efforts to track terrorists by
supporting the drafting, adoption and implementation of international agreements to
track and stop international travel by terrorists and criminals who use lost, stolen, or
falsified documents. These agreements should include a system to share information
on lost, stolen, and fraudulent passports, a real-time verification system to validate
passports and travel documents with the issuing authorities, and the criminalization
by countries of travel document fraud. The section also authorizes the United States
to provide technical assistance to other nations to help them meet their obligations
under this agreement. [H.R. 10 § 3088]
H.R. 10 would require the Secretary to submit a series of reports to Congress,
including a report that details activities undertaken to develop the biometric entry and
exit data system; a joint report with the Secretary of State on matters such as current
infrastructure and staff at the relevant sites, the plan for enhanced database review
at entry, and the number of suspected terrorists and criminal intercepted utilizing the
biometric entry and exit data system, among other things; a report on the status of
implementing the integrated databases and data systems as defined under current law;
and an individual and joint (with other relevant agency heads) status report on
compliance with this section [H.R. 10 § 3090].
H.R. 10 includes a sense of Congress that the United States should seek to enter
into an international agreement to modernize and improve the standards for the
translation of names into the Roman alphabet. [H.R. 10 § 3089]
Senate Bill. S. 2845 would require the Secretary of DHS, in consultation with
the Secretary of State, to submit a plan within 180 days on front line counter-terrorist
travel technology and training for use by all border, immigration and consular
officials. The plan is required to include the feasibility of using authentication
technologies to screen every passport or entry document, a timetable need to acquire



and deploy the authentication technologies, and a training program (developed with
State) for border, immigration, and consular officials. [S. 2845, Section 1021]
Terrorist Travel
Prepared by Blas Nuñez-Neto, Analyst in Social Legislation, CRS Domestic Social
Policy Division, 7-0622,
and Ruth Ellen Wasem, Specialist in Social Legislation, CRS Domestic Social
Policy, 7-7342
The coordination and dissemination of terrorist travel intelligence and
operational information between the various federal agencies to better detect and
interdict terrorists attempting to enter into the United States is an important theme of
this legislative effort to implement the 9/11 Commission recommendations. Both
bills include provisions concerning the collection and dissemination of information,
the deployment of document authentication technology, and the training of front-line
staff on terrorist travel techniques. While the Senate and House versions are
relatively similar, the Senate bill goes into more detail about the processes and
agencies involved in detecting terrorist travel, including placing emphasis on the
interagency Human Smuggling and Trafficking Center, and granting security
clearances to consular and immigration officials.
House Bill. H.R. 10 would establish a terrorist travel program in the
Department of Homeland Security (DHS) to analyze and utilize information and
intelligence regarding terrorist travel tactics, patterns, trends, and practices; and
disseminate that information to all front-line DHS personnel who are at ports of entry
or between ports of entry, to immigration benefits offices, and, in coordination with
the Secretary of State, to appropriate individuals at United States embassies and
consulates. [H.R. 10, § 3101] DHS would also be directed to formulate a plan within
180 days of enactment to ensure that technologies that facilitate document
authentication are deployed to all POE, consulates, and immigration benefit offices.
All technologies acquired and deployed for this purpose should be interoperable with
the systems currently in place. [H.R. 10, § 3104] The House-passed bill also would
require the Secretary of DHS to review and evaluate the training currently provided
to DHS personnel and, in consultation with the Secretary of State, relevant DOS
personnel with respect to travel and identity documents, and techniques, patterns, and
trends associated with terrorist travel. [H.R. 10, § 3102] The Secretary of DHS is also
required to develop and implement a revised training program for border,
immigration, and consular officials in order to teach such officials how to effectively
detect, intercept, and disrupt terrorist travel. [H.R. 10, § 3103]
Senate Bill. S. 2845 would require DHS to submit a strategy for combining
terrorist travel intelligence, operations, and law enforcement into a cohesive effort
to detect and intercept terrorists. The bill would require that strategy be developed
in coordination with all federal agencies involved and address the collection,
analysis, and dissemination of terrorist travel information as well as the operational
and training requirements. The bill would require that the new procedures be
integrated with all current efforts underway at POE, consular offices, and related law
enforcement activities. The amendment would also provide more resources for the
interagency Human Smuggling and Trafficking Center, would provide each consular,
POE, and immigrations benefit office with a counter-terrorist travel expert, and



would grant security clearances to the appropriate consular and immigration officers.
[S. 2845, Section 1021]
Maritime Security Requirements
Prepared by John Frittelli, Specialist in Transportation, CRS Resources, Science, and
Industry Division, 7-7033
Overview. 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 with a significant chance of
failure. The Commission recommended that Congress set specific dates for the
completion of these plans. The 9/11 Commission’s recommendation for improving
transportation security is essentially consistent with Sections 70102 and 70103 of the
Maritime Transportation Security Act of 2002 (MTSA, P.L. 105-295), which was
passed by Congress on November 25, 2002. However, these two sections of MTSA
did not impose deadlines on DHS in carrying out the prescribed security planning
activities.
House Provisions. Section 3111 of H.R. 10 would impose a deadline of
December 31, 2004 for DHS to carry out the security planning activities called for
in sections 70102 and 70103 of MTSA. Specifically, it would require DHS to
prepare a national maritime transportation security plan to deter and respond to a
transportation security incident and for DHS to conduct a detailed vulnerability
assessment of the port facilities and vessels that may pose a high risk of being
involved in a transportation security incident. Section 3111 of H.R. 10 would impose
the same deadline for DHS to prescribe regulations to prevent an individual from
entering a secure area of a seaport or a vessel unless that individual held a
transportation worker security card or was accompanied by someone who did hold
a card. The development of a transportation worker security card was called for in
section 70105 of MTSA.
Senate Provisions. Like H.R. 10, S. 2845 would impose deadlines on DHS
to complete certain maritime security activities. Section 1032 of S. 2845 would
implement the 9/11 Commission’s recommendation for all modes of transportation,
including maritime transportation and would require the DHS, in consultation with
DOT, to develop and implement a national strategy for transportation security by
April 1, 2005. The strategy would identify assets that need protection, set risk-based
priorities and realistic deadlines for protecting those assets, identify the most
practical and cost-effective means of defending those assets, assign security roles to
federal, state, and local governments, and establish mechanisms to encourage private
sector cooperation and participation. Section 1114 of S. 2845 would impose
additional deadlines on DHS for implementing various provisions in MTSA. It
would impose a 90 day deadline after enactment of S. 2845 for a status report on the
National Maritime Transportation Security Plan, a deployment plan for the national



transportation security card, a status report on negotiations to establish international
standards for seafarer identification, a status report on developing performance
standards for security seals and locks on shipping containers, a status report on a
program to evaluate and certify secure systems of international intermodal
transportation, as well as other status reports on other security plans and reports
required by MTSA. Finally, Section 401 would establish a “watch list” for
passengers and crews on cruise ships and S.Amdt. 3813 would add liquefied natural
gas marine terminals to DHS’s list of energy facilities requiring risk assessments and
protective measures.
Comments. Both H.R. 10 and S. 2845 impose an urgency on DHS’s efforts
in strengthening maritime security and thus impose deadlines on the agency in
planning and carrying out certain maritime security activities that were called for in
MTSA. In addition to the difference in deadline dates, the bills differ in that H.R. 10
is specific to maritime transportation whereas Section 1032 of S. 2845 refers to all
modes of transportation in developing a national strategy. Also, with regard to
imposing deadlines for the DHS on certain maritime security activities that were
called for in MTSA, the deadline imposed in H.R. 10 is for completing those
activities while the deadlines imposed in Section 11114 of S. 2845 are largely for a
status report by DHS on those activities. Most of the deadlines in H.R. 10 and S.
2845 are for the DHS to submit a report or plan. The Under Secretary for Border and
Transportation Security, Asa Hutchinson, in prepared testimony for a hearing by the
Senate Committee on Commerce on August 16, 2004 stated that a national
transportation security plan as called for by the 9/11 Commission was well underway
and would be completed by TSA before the end of 2004. A more difficult deadline
for DHS may be the December 31, 2004 House deadline for TSA to prescribe
regulations for implementing the Transportation Worker Identification Card (TWIC).
These cards are intended to limit access to sensitive areas within transportation
facilities. TSA is currently testing a prototype of the card at several freight facilities.
An unresolved issue is what might disqualify a transportation worker from acquiring
a card. In reviewing background checks, section 70105 of MTSA gives the Secretary
of DHS a certain amount of leeway in evaluating whether a worker is a terrorism
security risk.
Treatment of Aliens Who Commit Acts of Torture,
Extrajudicial Killings, or Other Atrocities Abroad
Prepared by Michael Garcia, Legislative Attorney, CRS American Law Division, 7-
3873
Overview. Subtitle F, Title III of H.R. 10, entitled “Treatment of Aliens Who
Commit Acts of Torture, Extrajudicial Killings, or Other Atrocities Abroad”
concerns the exclusion and removal of certain aliens involved in certain crimes
prohibited under international humanitarian law. S. 2845 does not address this
subject.
House Bill. H.R. 10 would amend the grounds for alien inadmissibility and
deportability to include (1) the ordering, incitement, assistance, or participation in
conduct outside the United States that would, if committed in the United States or by
a U.S. national, constitute genocide as defined by U.S. law and (2) the commission,



ordering, incitement, assistance, or participation in acts of torture or extrajudicial
killings as defined by U.S. law. These amendments would apply to offenses
committed before, on, or after the enactment of H.R. 10. However, aliens who have
participated in torture or extrajudicial killings who are applying for temporary
admission to the United States pursuant to a nonimmigrant visa could have their
inadmissibility waived by the discretion of the Attorney General. Additionally,
foreign government officials who have at any time committed particularly severe
violations of religious freedom, as defined by 22 U.S.C. § 2402, would also be
designated as inadmissible and deportable.
H.R. 10 would also make participation in genocide, assistance in Nazi
persecution, or participation in torture or extrajudicial killings automatic grounds
precluding the offending alien from being found to possess good moral character —
a necessary requirement for naturalization. Aliens who, while serving as a foreign
government official, committed particularly severe violations of religious freedom
would also be precluded from being found to possess good moral character.
H.R. 10 would also require the Attorney General to establish within the
Department of Justice an Office of Special Investigations with authority to
investigate and prosecute any alien who participated in genocide, Nazi-related
persecution, torture, or extrajudicial killings.
Senate Bill. S. 2845 does not contain provisions similar to those described
above.
Security Barriers
Prepared by Blas Nunez-Neto, Analyst in Social Legislation, CRS Domestic Social
Policy Division, 7-0622
This section expands a fence that runs along the Southwest border with Mexico
in California and waives certain environmental and cultural regulations.
House Bill. The House bill extends by 14 miles a portion of fence along the
Southwest border with Mexico in California in a region popularly known as
Smuggler’s Gulch. The bill provides the exact measurements for the fence, and
makes its construction exempt from a wide range of Federal environmental,
conservation, and cultural requirements including the Native American Graves
Protection and Repatriation Act.
Senate Bill. There is no comparable section in the Senate bill.



Title IV: International Cooperation
and Coordination
Attack Terrorists and their Organizations
Prepared by Raphael Perl, Specialist in International Affairs, CRS Foreign Affairs,
Defense, and Trade Division, 7-7664
Overview. Attacking terrorists, terrorist sanctuaries, and terrorist organizations
is a core recommendation of the 9/11 Commission.
House Provisions. Title IV, Subtitle A of H.R. 10 contains three sections
which address the issue of terrorist sanctuaries. They are:
Section 4001 which requires (1) identification and prioritization of countries
that are terrorist sanctuaries; (2) assessment of resources provided these
countries; (3) development of a coordinated strategy to respond to such
sanctuary use; and, (4) both bilateral and multilateral response efforts.
Section 4002 which requires a report to Congress on the implementation of the
measures contained in Section 4001.
Section 4003 which extends the sanctions provisions of Section 6 (j) of the
Export Administration Act (primarily dealing with sales of military and dual
technology) to countries with territory being used as terrorist sanctuaries. This
puts into effect a certification process to exempt from sanctions countries that
are cooperating to deal with the sanctuary problem.
Senate Provisions. Sections 4001 and 4002 of H.R. 10 are mirrored in
Sections 4001 and 4002 of S. 2845. Section 4003 of H.R. 10 does not appear in S.

2845.


Comments. Section 4003 of H.R. 10 puts countries on notice that they must
cooperate or face sanctions. It does not contain a “national interests” waiver. Such
a waiver would address the issue of allies who may not be adequately cooperating
with the United States, but whose support, nevertheless, may be perceived as
necessary for overall U.S. security interests. Neither bill places any textual
qualification on the standard of “cooperating,” such as “fully, reasonably, adequately,
or in light of other legitimate national security concerns of the government in
question.”
Other Provisions (WMD Nonproliferation)
Steve Bowman, Specialist in National Defense, CRS Foreign Affairs, Defense, and
Trade Division, 7-7613
Overview. These provisions are related to the recommendation of the 9/11
Commission to strengthen nonproliferation efforts regarding weapons of mass
destruction.



House Provisions. Title IV, Subtitle A, Chapter 2, Sec. 4011-12 direct the
Arms Control and Nonproliferation Advisory Board vacancies be filled in
consultation with the House International Relations Committee and the Senate
Foreign Relations Committee. It further requires the Board to review current WMD
nonproliferation and strategic arms control policies, and existing reporting
requirements.
Senate Provisions. S. 2845 contains no similar provision.
Comments. Neither bill specifically addresses the two programs which the
9/11 Commission Report recommended strengthening: the Proliferation Security
Initiative and the Cooperative Threat Reduction program.
Prevent the Continued Growth of Terrorism
Prepared by Susan Epstein, Specialist in Foreign Policy and Trade, CRS Foreign
Affairs, Defense, and Trade Division, 7-6678
Overview. The 9/11 Commission Report expresses deep concerns about the
United States government’s lack of dialogue with the Arab and Muslim populations
of the world. The report states that “The United States has to help defeat an
ideology, not just a group of people... .” Therefore the report recommends expanding
and targeting dialogue with Muslim populations, clearly communicating America’s
optimism, values, and opportunities as a way to dissuade terrorists faster than the
madrassas and radical clerics can recruit them. Exchanges, broadcasting, education
reforms and multilateral approaches are some of measures included in the House and
Senate legislation.
House Provisions. Subtitle B of H.R. 10 expands U.S. government bilateral
and multilateral activities that may help in the struggle of ideas, dampening the anger
and deterring terrorist recruitment in the long run. Section 4021 requires the
Secretary of State no later than March 15 of every year to submit to Congress an
assessment, worldwide and by region, of the impact of public diplomacy on target
audiences. In addition, the Secretary is required to submit, in coordination with the
budget, a plan identifying necessary resources for achieving the stated public
diplomacy goals.
Bilateral activities in the House bill have largely to do with public diplomacy.
For example, Section 4022 states that the State Department should recruit and train
U.S. Foreign Service Officers in public diplomacy. Section 4023 states the sense of
Congress that the United States should significantly increase exchanges with Muslim
countries. And, Section 4024 requires that, effective January 1, 2009, in order for a
member of the Senior Foreign Service to be promoted, he/she must have served in
at least one position related to public diplomacy.
Multilateral provisions in H.R. 10 require the President to expand the work of
the Democracy Caucus within the U.N. and establish a rotational leadership to
provide member countries the opportunity to serve as the designated president of the
Caucus. Section 4033, among other things, requires the President of the United
States, where appropriate, to use the influence of the United States to reform the
criteria in U.N. bodies and other multilateral organizations to exclude countries that



violate principles of the specific organization. This section also requires a report to
Congress from the Secretary within 15 days after a country is selected for
membership or leadership in an international organization. Section 4034 requires the
Secretary of State to train Foreign Service Officers on multilateral diplomacy for
participation in international organizations and multilateral negotiations and provides
additional training for certain civil service employees. Finally, Section 4035
authorizes the Secretary of State to establish an Office on Multilateral Negotiations,
headed by an appointed “Special Representative.”
Other measures in the House bill include a pilot program to provide grants to
American-sponsored schools for scholarships in predominately Muslim countries
(Section 4041), enhancing free and independent media worldwide through
government grants to the National Endowment for Democracy (NED) (Section

4042), combating biased or false media coverage of the United States (Section 4043),


reporting on what strategy is used for broadcast outreach (Section 4044), and
strengthening the Community for Democracies for Muslim countries through such
programs as the Middle East Partnership Initiative (MEPI) and the Broader Middle
East and North Africa Initiative (Section 4046).
Senate Provisions. In the Senate bill — S. 2845, Section 1006 expresses a
sense of Congress that the United States should offer moral leadership in the world
and cooperate with Islamic countries to foster respect for human dignity as well as
work to defeat terrorism. The Senate bill, as amended, authorizes funds for
international broadcasting to promote American values (Section 1008), authorizes
expansion of educational and cultural exchanges with Arab and Muslim countries
(Section 1009), and establishes an International Youth Opportunity Fund to provide
financial assistance for improving public education in the Middle East (Section

1010).


Other measures to prevent the continued growth of terrorism are in the Senate
bill, but do not involve public diplomacy, such as Section 1011 using economic
policies to combat terrorism, Section 1013, establishing an international coalition
strategy for fighting terrorism, and Section 1014, policy reporting requirements, and
training on the treatment of prisoners.
Comments. Five Senate provisions are somewhat related to measures in the
House bill. For example, like the House bill the Senate bill has a reporting
requirement for public diplomacy goals and strategies. However, the Senate bill
Section 1017 (5) requires the President, rather than the Secretary of State, to submit
to Congress a one time report (180 days after enactment of this Act, rather than every
March 15th) that, like the House measure, would describe specific goals and
strategies, recommendations and financial estimates related to the struggle of ideas
within the Islamic world.
A second Senate measure that is similar to the House has to do with expansion
of exchange programs with Muslim countries. Whereas the House measure is a
“Sense of Congress,” the Senate provision, Section 1009 authorizes the President to
substantially expand exchanges, scholarships, and library programs in Arab and
Muslim populations and authorizes such sums as may be necessary for this expansion
for FY2005 through FY2009.



The third similarity of the Senate bill to H.R. 10 has to do with education reform
in Muslim countries. However, while H.R. 10, Section 4041 authorizes the Secretary
of State to implement a pilot program to provide scholarships to elementary and
secondary school children to attend American-sponsored schools, Section 1010
requires the President to establish and fund an International Youth Opportunity Fund
to provide financial assistance to improve public education in the Middle East. The
Senate measure provides such sums as may be necessary from FY2005 through
FY2009; no funds are authorized in the House version.
Fourth, Section 1008 (comparable to H.R. 10, Section 4043) expresses a sense
of Congress that the United States must do more to defend and promote its values
through international broadcasting, particularly in the Muslim world. The Senate
measure, unlike the House version, authorizes appropriations for FY2005 through
FY2009 for carrying out the increased broadcasting activities.
Finally, whereas the House bill provides a sense of Congress and a report on
MEPI, among other things in Section 4046, the Senate provision, Section 1012
authorizes appropriations for the Middle East Partnership Initiative for FY2005
through FY2009.
Reform of Designation of Foreign Terrorist Organizations
(FTOs)
Prepared by Raphael Perl, Specialist in International Affairs, CRS Foreign Affairs,
Defense, and Trade Division, 7-7664
Overview. Overall, the 9/11 Commission’s report speaks in terms of the need
to identify the enemy. Heading 12.2 of the Commission’s recommendations is
entitled Attack Terrorists and their Organizations.
House Provisions. Title IV, Subtitle C of H.R. 10 contains two sections
which address the issue of terrorist organizations. They are:
Section 4051 which makes changes to procedures for responding to challenges of
designation of foreign terrorist organizations (FTO’s) by the Secretary of State;
requires also that the status of an organization on the list be reviewed at least every
six years, and that the results of the review be published in the Federal Register.
Section 4052 which requires that the State Department’s annual Patterns of Global
Terrorism report include information on terrorist groups developing — or that have
tried to develop — weapons of mass destruction during the past five years and that
the report provide information on states providing WMD material or support to
terrorist groups.
Senate Provisions. Section 4051 of H.R. 10 is mirrored in Section 4051 of S. 2845.
Section 4052 of H.R. 10 is mirrored in Section 4052 of S. 2845.
Comments. Section 4051 To the degree that the enemy utilizes identifiable
organizational structures, knowing which structures these are and subjecting them to
sanctions is consistent with the strategy set forth. To the extent that the United States



and its allies agree which organizations support or engage in terrorism, the FTO
process is related to the 9/11 Commission recommendation which argues for
developing a common coalition approach. A potential problem of a strategy that
places major emphasis on identifying formal organizational structures is that,
increasingly, terrorist organizations become “ad hoc” in nature, change, and “morph.”
Section 4051 clarifies procedures for designating FTO’s — and for challenging
such designations — to reflect a number of Federal Court decisions in which such
issues were raised.
Afghanistan Freedom Support
Prepared by Christopher Blanchard, Analyst in Middle Eastern Affairs, CRS Foreign
Affairs, Defense, and Trade Division, 7-0428
Overview. The 9/11 Commission recommends that the United States and the
international community make a long-term commitment to a secure and stable
Afghanistan, in order to give the government of Afghanistan (GOA) a reasonable
opportunity to improve the life of the Afghan people and to prevent Afghanistan from
again becoming a sanctuary for international crime and terrorism. The Commission
also recommends that the United States and the international community help the
GOA extend its authority over the country, with a strategy and nation-by-nation
commitments to achieve their objectives. The 9/11 Commission’s final report calls
for an international effort to restore the rule of law and contain rampant crime and
narcotics trafficking in Afghanistan. Both H.R. 10 and S. 2845 seek to implement
these recommendations in different ways.
House Provisions. H.R. 10, Subtitle D (Sec. 4061-4070, the “Afghanistan
Freedom Support Act Amendments of 2004”), amends the Afghanistan Freedom
Support Act of 2002 (P.L. 107-327, AFSA) and specifically addresses
counternarcotics efforts in Afghanistan. The amendments define specific elements
of U.S. policy, require the President and executive agencies to create specific
positions and take specific actions, and create a number of reporting requirements.
!Section 4066, prioritizes “immediate steps” to actively support the
disarmament, demobilization, and reintegration of armed soldiers,
particularly child soldiers, into Afghan society and to support the
expansion of international peacekeeping and security operations
across the country. The bill also amends and expands authorization
for rule of law and cultural preservation assistance (Sec. 4064).
H.R. 10, Sec. 4070 further repeals section 620(d) of the Foreign
Assistance Act of 1961 which prohibits the provision of assistance
to Afghanistan without Presidential certification.
! Section 4067, requires the President to encourage and enable other
countries to actively participate in expanded international
peacekeeping and security operations in Afghanistan, especially
through the provision of military personnel for extended periods of
time. The bill also requires the President to designate a State
Department coordinator for U.S. policy toward Afghanistan with the
rank and status of ambassador (Section 4062(b)).



!H.R. 10 also creates a number of reporting requirements for the
President and specific executive agencies, including a five-year
strategy for Afghanistan that includes specific and measurable goals,
timeframes, resource needs, implementation plans, defined
responsibilities, and descriptions of challenging factors (Section
4063(c)). Reports are also required that address prior and future
U.S. assistance to Afghanistan, obligations and expenditures,
progress on the implementation of U.S. disarmament policy,
counternarcotics programs, and efforts to solicit greater international
financial and military involvement in Afghanistan (Sec. 4063(c-d),
Sec. 4065, 4066(a), and Sec. 4067).
On counternarcotics, Section 4068, states the sense of Congress that the
President should make substantial reduction of drug production and trafficking in
Afghanistan a priority in the global war on terrorism and the U.S. should undertake
additional efforts to reduce illegal drug trafficking and related activites that provide
support for terrorist organizations. H.R. 10 authorizes and encourages the President
to implement specific initiatives to assist in the eradication of poppy cultivation and
the disruption of heroin production in Afghanistan, including promoting alternatives
to poppy cultivation, enhancing the ability of farmers to market legitimate
agricultural goods, providing assistance and payments for special counternarcotics
police and support units, training the Afghan National Army in counternarcotics
activities, and creating infrastructure for narcotics prosecutions.
Senate Provisions. Like H.R. 10, S. 2845 defines specific elements of U.S.
policy toward Afghanistan; however, S. 2845 and H.R. 10 differ in specificity and
required action in some cases. Whereas H.R. 10 amends the AFSA of 2002, for
example, S. 2845 expresses the sense of Congress that Congress should, in
consultation with the President, update and revise the AFSA in the future, as
appropriate (Section 1004(b)(2)). Unlike H.R. 10, S. 2845 authorizes such sums as
deemed necessary for eight specific assistance programs in FY2005-FY2009,
including counternarcotics (Section 1004(c)(1)). H.R. 10 does not authorize specific
amounts of assistance. Like H.R. 10, S. 2845 requires the President to submit a 5-
year Afghan strategy report to Congress 180 days after the bill’s enactment (Section
1017(3)(A)). As a component of a broader required report, S. 2845 requires a specific
section on Afghanistan to describe the amounts of aid devoted to a set of ten specific
strategic and assistance objectives, progress made toward those objectives, and
projections of future resources necessary to meet any shortfalls (Section 1017(3)(A-
B)).
S. 2845 expresses the sense of Congress that the United States should work with
other nations, including through the use of its voice and vote in international
organizations, to obtain long-term security, political, and financial commitments and
fulfillment of pledges to the GOA to accomplish the objectives of the AFSA of 2002
(Section 1004(b)(1)(A-B)). S. 2845 also calls for increases in the staffing and
assistance provision levels of Department of State and the United States Agency for
International Development programs in Afghanistan (Section 1004(b)(1)(C)).



Relations with Saudi Arabia and Pakistan
Saudi Arabia. Prepared by Alfred Prados, Specialist in Middle Eastern
Affairs, CRS Foreign Affairs, Defense, and Trade Division, 7-7626
Overview. In its final report, the National Commission on Terrorist Attacks
Upon the United States (the 9/11 Commission) described Saudi Arabia as having
been a “problematical ally in combating Islamic extremism.” The report takes note
of long-standing cooperative relations between the U.S. and Saudi governments,
growing misunderstandings at the popular level in recent years, and U.S. criticisms
in the aftermath of 9/11 that Saudi officials could do more to fight terrorism. The
report acknowledges increased efforts in that regard since mid-2003 and noted that
Saudi Arabia is now locked in conflict with Al-Qaeda. One of the key
recommendations in the 9/11 report addresses the U.S.-Saudi relationship:
The problems in the U.S.-Saudi relationship must be confronted, openly. The
United States and Saudi Arabia must determine if they can build a relationship
that political leaders on both sides are prepared to publicly defend — a
relationship about more than oil. It should include a shared commitment to
political and economic reform, as Saudis make common cause with the outside
world.
Both the House and Senate bills draw on various parts of the Commission’s report
in their statements expressing the sense of Congress and in their recommendations
regarding Saudi Arabia.
House Provisions. Section 4081 of the House-passed bill (H.R. 10) is
entitled “New United States Strategy for Relationship with Saudi Arabia.” It sets an
initial policy framework by expressing the sense of Congress that the U.S.-Saudi
relationship should include a more robust dialogue between the people and
governments of the two countries to provide for reevaluation of and improvements
to the bilateral relationship. It contains a reporting provision, under which the
President is required to submit to two specified congressional committees within one
year a strategy for collaboration with the people and government of Saudi Arabia on
subjects of mutual interest. According to H.R. 10, Section 4081(b), the strategy is
to include a framework for security cooperation against terrorism with emphasis on
combating terrorist financing; a framework for political and economic reform in
Saudi Arabia; an examination of steps to reverse the trend toward extremism in Saudi
Arabia; and a framework for promoting greater tolerance and respect for cultural and
religious diversity. The last three components of the required strategy report apply
to both Saudi Arabia and the Middle East as a whole. This report may contain a
classified annex.
Senate Provisions. Provisions of the Senate passed bill, S. 2845, relating
to Saudi Arabia are similar in many ways to the House passed bill; however, unlike
the House passed bill, the Senate passed bill contains a separate sub-paragraph
dealing with findings and a longer statement of the sense of Congress (Section 1005).
Findings are specifically described as “Consistent with the report of the National
Commission on Terrorist Attacks Upon the United States” (the 9/11 Report) and
summarize the course of the U.S.-Saudi relationship including both positive and



negative aspects. The sub-paragraph dealing with the sense of Congress includes key
recommendations from the 9/11 Report dealing with the U.S.-Saudi relationship and
a commitment to fight violent extremists.
Like the House passed bill, the Senate passed bill contains a reporting
requirement (Section 1017(b)(4)). As part of a broader report dealing with terrorism
in the Middle East and south Asia and various aspects of diplomacy, the President
is required to submit to Congress a description of a U.S. strategy for expanding
collaboration with Saudi Arabia. Unlike the House passed bill, the Senate passed bill
does not identify specific committees to whom the report is to be submitted, and sets
a deadline of 180 days rather than one year for submission of the report; moreover,
the Senate passed bill does not provide for a classified annex. Unlike the House
passed bill, the strategy called for in the Senate passed bill includes ways and means
of advancing Saudi Arabia’s contribution to the Middle East peace process. The
strategy called for in the Senate passed bill does not directly mention terrorist
financing, as does the House passed bill; however, the strategy called for in the
Senate passed bill is to include ways to help the Saudi Government prevent its
nationals from funding and supporting extremist groups. Also unlike the House
passed bill, the strategy under the Senate passed bill calls on the President to consider
undertaking a periodic, formal, and visible dialogue between U.S. Government
officials and their Saudi counterparts to address challenges to their relationship and
identify areas for cooperation (Section 1017(b)(4)). Both bills include a discussion
of political and economic reform in Saudi Arabia and the broader Middle East in
their respective strategies.
Pakistan. Prepared by Alan Kronstadt, Analyst in Asian Affairs, CRS Foreign
Affairs, Defense, and Trade Division, 7-5415
Overview. The 9/11 Commission Report contains a specific recommendation
for U.S. policy toward Pakistan, calling for a long-term U.S. commitment to provide
comprehensive support for Islamabad so long as Pakistan’s government remains
committed to combating terrorism and to a policy of “enlightened moderation.” Both
the House and Senate bills included provisions on Pakistan that support this goal.
House Provisions. In H.R. 10, Title IV, Subtitle E, Sec. 4082 (“United
States Commitment to the Future of Pakistan”), the House calls for a long-term
commitment “to ensure a promising, stable, and secure future for Pakistan.” It calls
for U.S. assistance to Pakistan to concentrate on democratization, economic
modernization, nonproliferation, and, especially, education reform, and would require
the President to transmit to Congress within 180 days of enactment a “detailed
proposed strategy” for long-term engagement with that country. Sec. 4083 of the act
(“Extension of Pakistan Waivers”) would extend the President’s waiver authority on
coup-related sanctions on Pakistan through FY2006.
Senate Provisions. In S. 2845, Title X, Subtitle A, Section 1003 (“Role of
Pakistan in Countering Terrorism”), the Senate calls for a long-term U.S.
commitment to “fostering a stable and secure future in Pakistan,” to include U.S.
assistance sustained at a minimum of FY2005 levels requested by the President.
Particular areas of emphasis are education reform and democracy promotion in
Pakistan. Section 1017(2) (“Report to Congress”) would require the President to



transmit to Congress within 180 days of enactment a description of U.S. efforts to
support Pakistan and encourage moderation there, including examinations of and
recommendations for funding levels for educational, military, and financial support,
as well as an examination of the desirability of establishing a Pakistan Education
Fund.
Comments. Both the House and the Senate approved legislation that would
commit the United States to long-term and comprehensive support for the
government of Pakistan in an effort to ensure a “stable and secure future” for that
country. Both place particular stress on support for education reform in Pakistan.
However, the Senate bill includes a reporting requirement on education reform and
also sets a FY2005 baseline for amounts of U.S. assistance to Pakistan. The House
version requires the President to provide a “detailed proposed strategy” for U.S.
engagement with Pakistan, while the Senate would only require a descriptive report.
Finally, the Senate version contains no language on waiver extension.
Oversight Provisions
Prepared by Marjorie Ann Browne, Specialist in International Relations, CRS
Foreign Affairs, Defense, and Trade Division, 7-7695
Overview. The Case-Zablocki Act, 1 U.S.C. 112b, enacted in 1972, requires
the Secretary of State to transmit to Congress copies of all U.S. international
agreements other than treaties within 60 days after entry into force. This Act was
amended in 1977 and 1978, to ensure its full implementation. The initial section, 1
U.S.C. 112a, originated in 1950 in its current form and requires publication of all
treaties and international agreements in force for the United States. Congress
amended it in 1994 to identify categories of agreements that would not be published.
House Provisions. Section 4091 of Title IV amends both 1 U.S.C. 112a and
112b. Section 112a is amended to require the Secretary of State to publish in slip
form or otherwise make publicly available through the State Department Internet
website each treaty or agreement proposed to be published no later than 180 days
after the date when the treaty or agreement “enters into force.” The House amended
Section 112b to require the Secretary of State to submit to Congress annually a report
containing an index of all international agreements the United States has signed or
otherwise executed during the preceding calendar year, including all agreements that
have not been published or will not be published. This annual report may be
submitted in classified form. These amendments also specify that international
arrangements shall be considered international agreements for the purposes of this
Act, that shall be effective 60 days after enactment and shall apply during FY2005,

2006, and 2007.


Senate Provisions. Contains no comparable language.
Comments. The amendment to Section 112a responds to persistent and long-
time delays in the publication of in force treaties and international agreements. The
State Department has during the past year started to list, with links to the texts, on its
Freedom of Information Act website, U.S. international agreements that have entered
into force since March 1998. The section 112b amendments respond to the continued



need in Congress for full and up-to-date information on the international agreements
concluded by the executive branch, including those that will not be published.
Additional Protections of United States Aviation System
from Terrorist Attacks
Prepared by Bart Elias, Specialist in Aviation Security, Safety, and Technology
Policy, CRS Resources, Science, and Industry Division, 7-7771
Overview. Several additional provisions regarding aviation security rely upon
international cooperation and coordination. International cooperation and
coordination on aviation security matters was not addressed in the 9/11 Commission
recommendations. The House bill contains three provisions addressing international
efforts to mitigate terrorist attacks against aviation assets. These provisions include
measures that would urge the President to enter into international agreements
permitting armed pilots on foreign flights and pursue international agreements to
limit the proliferation of shoulder-fired missiles that pose a threat to civil aircraft.
The House bill also contains a provision that would establish a program for training
foreign air marshals at U.S. DHS facilities. The Senate bill contains a provision not
included in the House bill that would require DHS to report on procedures to
mitigates risks in foreign air cargo bound for the United States.
House Provisions. The House bill contains three specific sections regarding
international efforts to improve aviation security.
First, a provision of the House bill (Sec. 4101) encourages the President to
aggressively pursue international agreements allowing armed pilots on flights to
international destinations. Foreign laws and regulations may prevent armed pilots
from carrying their weapons on flights to certain international destinations and this
provision encourages the administration to enter international agreements that would
expand the number for foreign destinations where federal flight deck officers are
permitted to fly.
A second provision of the House bill (Sec. 4102) would allow the Bureau of
Immigration and Customs Enforcement, after consultation with the Department of
State, to provide air marshal training to law enforcement personnel of foreign
countries. Under this provision, foreign officers sent to the United States for air
marshal training must be vetted against the consolidated and integrated terrorist
watch lists and may be charged reasonable fees to offset the costs of their training.
An emergency amendment to aviation security regulations, issued in December 2003,
requires that foreign air carriers place armed, trained, government law enforcement
officers on designated flights to and from the United States when directed to do so
by DHS. In light of this requirement, the qualifications and training of foreign
officers assigned to such duties has raised concerns among some that a poorly trained
armed officer may in fact pose a security risk rather than acting as a deterrent against
terrorist attacks.
Finally, Section 4103 of the House bill contains language intended to mitigate
the threat of terrorist attacks using shoulder-fired missiles — referred to as
Man-Portable Air Defense Systems (MANPADS) — against aviation assets. A core



element of this language would require the President and the administration to
urgently pursue and enter into international agreements to limit the availability,
transfer, and proliferation of MANPADS through export controls and destruction of
excess, obsolete, and illicit stockpiles of these weapons. These provisions are in line
with Administration participation in ongoing international efforts to control
MANPADS. MANPADS controls were incorporated into the Wassenaar
Arrangement on export controls for conventional weapons and dual-use technologies
in 2003. The United States is a signatory to this arrangement. Also, the United
States has led a G-8 initiative to accelerate destruction of excess and obsolete
MANPADS; strengthen controls on the transfer of MANPADS productions
technology; and develop a methodology for assessing airport vulnerability and
effective countermeasures to mitigate the threat posed by MANPADS.
The provisions in Section 4103 of the House bill also require the Federal
Aviation Administration (FAA) to establish a process for expeditiously certifying the
airworthiness and safety of counter-MANPADS systems for installation on passenger
aircraft that are currently being developed and evaluated under a DHS program. A
provision in this section also requires the DHS to report on its plans to secure airports
and protect arriving and departing aircraft from MANPADS attacks. The report is
to include: the status of airport vulnerability assessments; intelligence data sharing
efforts on MANPADS threats; plans for responding to intelligence suggesting a high
threat level of MANPADS attack within the United States; and the feasibility and
effectiveness of implementing public education and neighborhood watch programs.
Senate Provisions. The provisions of the Senate bill (Section 616) regarding
protection of aircraft from MANPADS does not specifically address international
agreements, and in this regard the Senate provision on this issue differs significantly
from the House bill. However, similar to the House bill, the Senate bill requires the
DHS to submit a report on the MANPADS threat detailing: terrorist access to
MANPADS; efforts to protect commercial aircraft from MANPADS; and an
assessment of the feasability of equipping commercial airliners with counter-
MANPADS systems.
The Senate bill contains no provisions regarding international agreements
permitting armed pilots or the training of foreign armed air marshals at U.S. facilities.
However, the Senate bill does include a provision not considered in the House bill
that would require the DHS, in consultation with the FAA and the Department of
Defense, to report on current procedures to address explosive, incendiary, chemical,
biological, or nuclear threats on all-cargo aircraft in-bound to the United States. The
report, which is due within 180 days after enactment, is to include an analysis of the
potential for establishing secure facilities along established international air routes
for diverting and securing suspect all-cargo aircraft (Section 1108).
Comments. Both the House and the Senate bill contain limited language
dealing with international cooperation and coordination to protect aviation against
terrorist threats. The House bill focuses on international agreements to train foreign
air marshals and deploy armed pilots on U.S. carriers aircraft that fly overseas as well
as international efforts to control the proliferation of shoulder-fired missiles. The
Senate bill provision instead focuses on examining procedures to safeguard
international cargo shipments on both passenger and all-cargo flights.



Additional Protections of United States Aviation System from
Terrorist Attacks — Man-Portable Air Defense Systems (MANPADS).
Prepared by Christopher Bolkcom, Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-2577, and Andrew Feickert, Specialist in
Missile Proliferation, CRS Foreign Affairs, Defense, and Trade Division, 7-7673
Overview. The House provision calls for efforts to limit the availability and
transfer of Man-Portable Air Defense Systems (MANPADS) and the destruction of
excess, obsolete or illicit MANPADS worldwide. In addition, this provision calls for
the expeditious certification of missile defense systems for commercial aircraft and
the conduct of a MANPADS Vulnerability Assessment by the Department of
Homeland Security (DHS).
House Provisions. Section 4103: This provision calls for the pursuit of
further diplomatic and cooperative efforts (including bilateral and multilateral
treaties) to limit availability, transfer, and proliferation of MANPADS. Section 4103
calls for a continuation of current efforts to assure the destruction of excess, obsolete,
and illicit stocks of MANPADS worldwide. Section 4103 also calls for the
establishment of agreements with foreign countries requiring MANPADS export
licenses and prohibiting re-export or retransfer of MANPADS and associated
components to a third party, organization, or foreign government without written
consent of the government that approved the original transfer. The provision requires
DHS to establish a process for conducting airworthiness and safety certification of
missile defense systems used on commercial aircraft no later than the completion of
Phase II of DHS’s Counter-MANPADS Development and Demonstration Program.
It also requires the Federal Aviation Administration (FAA) annually to report to
specified congressional committees on each airworthiness certification issued by
DHS. Section 4103 requires DHS to report to specified congressional committees on
DHS plans to secure airports and arriving and departing aircraft from MANPADS
attacks.
Senate Provisions. S. 2845 has no comparable provisions.
Comments. H.R. 10 Section 4103 is related to 9/11 Commission
Recommendation 19, which calls for the U.S. government to identify and evaluate
the transportation assets that need to be protected and select the most practical and
cost effective ways of defending them. H.R. 10 Section 4103 mirrors H.R. 4056,
“Commercial Aviation MANPADS Defense Act of 2004,” which was introduced by
Aviation Subcommittee Chairman John Mica, Aviation Subcommittee Ranking
Member Peter DeFazio, and Representative Steve Israel on March 30, 2004. Section
4103 calls for the continuation of ongoing U.S. State Department efforts to reduce
the number of MANPADS that could conceivably fall into the hands of terrorists.
The State Department, operating through the Small Arms and Light Weapons
Destruction Program is working with countries where there is a combination of
excess MANPADS, poor control, and a risk of proliferation to terrorist groups or
other undesirable groups, to destroy excess stocks and develop security and
accountability measures. As of September 30, 2004, the State Department reported
almost 8,000 MANPADS destroyed in nine countries in Africa and Eastern Europe
and commitments from other countries to destroy another 2,500 missiles.



H.R. 10, Subtitle J: Prevention of Terrorist Access to Destructive Weapons Act
of 2004, Section 2213, Missile Systems Designed to Destroy Aircraft, criminalizes
the production, construction, acquisition, transfer, import, export, and use of missile
systems designed to destroy aircraft by individuals. The act establishes stiff criminal
penalties for those who violate it, including life imprisonment or the death penalty
if the violation results in the death of another person.
Improving International Standards and Cooperation to
Target Terrorist Financing
Prepared by Martin Weiss, Analyst in International Trade and Finance, CRS Foreign
Affairs, Defense, and Trade Division, 7-5407
Overview. Effectively combating terrorist financing requires effective
coordination of many different elements of national power including intelligence
gathering, financial regulation, law enforcement, and building international
coalitions. The Financial Action Task Force (FATF) has been the primary
international organization for improving international standards and promoting
cooperation among countries.
House Provisions. H.R. 10 states the Sense of Congress that the Secretary
of the Treasury should direct U.S. Executive Directors at the international financial
institutions and other multilateral financial policymaking bodies to use the full voice
and vote of the United States to urge the institutions and bodies to fund the
implementation of FATF financial standards and promote economic development in
the Middle East (Sec. 4111). In addition, H.R. 10 would require the Secretary of the
Treasury to establish and convene an inter-agency council, the International Terrorist
Finance Coordinating Council (Sec. 4113). H.R. 10 would expand reporting
requirements for the Secretary of the Treasury to include an assessment of the
progress made by the International Terrorist Finance Coordinating Council; the
progress made by the United States in negotiations with the international financial
institutions and other multilateral policymaking bodies in setting international anti-
terrorist financing standards and the extent to which the institutions and bodies are
contributing to the fight against the financing of terrorist activities (Sec. 4112).
Senate Provisions. S. 2845, Section 1115, requires a report on U.S.
effectiveness at combating terrorist financing that would include a discussion of
ways to improve multilateral and international government cooperation, and describe
the adequacy of U.S. agency coordination related to participating in international
cooperative efforts.



Title V: Government Restructuring
Improving Funding for First Responders
Prepared by Shawn Reese, Analyst in American National Government and
Emergency Management Authorities, CRS Government and Finance Division, 7-
0635
Overview. The 9/11 Commission recommends that state and local homeland
security assistance should be “based strictly on an assessment of risks and
vulnerabilities.” The Commission went on to say that homeland security assistance
“should supplement state and local resources based on risks and vulnerabilities that
merit additional support.” (The 9/11 Commission Report, p. 396.) S. 2845 and H.R.
10 propose to change the current formula used in distributing first responder grant
funding to states and localities. Both bills would include threat and risk criteria in the
distribution of grant funds.
House Provisions. H.R. 10 (Title V, Subtitle A, sec. 5003) would require
the Secretary of Homeland Security to establish a task force responsible for
identifying first responder capabilities essential to preventing and responding to
terrorist attacks. Additionally, the Secretary would establish a First Responder
Grants Board that would evaluate and prioritize state homeland security assistance
applications based on the application’s enhancement of first responder essential
capabilities. H.R. 10 would also guarantee states a minimum of 0.25% of total
appropriations for homeland security assistance. States with international borders
and coastlines would be deemed as high risk and allocated a guaranteed minimum
of 0.45%.
Senate Provisions. S. 2845 (Title X, Subtitle E, Section 1054) would
establish a new homeland security assistance program, entitled the Threat Based
Homeland Security Grant Program (TBHSGP), that would include the State
Homeland Security Grant Program (SHSGP), Law Enforcement Terrorism
Prevention Program (LETPP), and the Urban Area Security Initiative (UASI). UASI
would receive 25% of the amount appropriated for the TBHSGP, with the remaining
75% going to SHSGP activities. Additionally, S. 2845 would allocate 38.6% of
SHSGP to be distributed to states. Each state would receive 0.75% (of that 38.6%)
or a per capita share (as defined by the 2002 census population estimate), whichever
is greater.
UASI funding would be allocated to major metropolitan areas based on such
criteria as population density, high threat related to critical infrastructure, and other
threat variables identified by the DHS Secretary. The remaining SHSGP funding
(following the allocation of state minimums) would be allocated based on similar
criteria. The bill also proposes to establish a second homeland security assistance
fund — the Large High-Threat State Fund (LHTSF) — that would be appropriated
at 10.8% of the amount appropriated to TBHSGP to provide additional funding to
states that chose the per capita funding, if 38.6% of SHSGP were not sufficient. If
Congress chose not to fund the LHTSF, the guaranteed state minimum and per capita
amount allocated to states would be proportionally reduced.



Comments. Neither H.R. 10 or S. 2845 propose to fund state and local
homeland security assistance strictly on threat and risk. Both bills propose a
guaranteed minimum to each state, though both bills do propose to provide some
homeland security assistance funding based on threat.
Digital TV Conversion
Linda K. Moore, Analyst in Telecommunications Policy, CRS Resources, Science,
and Industry Division, 7-5853
Overview. The 9/11 Commission report specifically recommended that
Congress should support pending legislation releasing spectrum for public safety.
This refers to H.R. 1425 (Harman), a bill to “provide for the expedited and increased
assignment of spectrum for public safety purposes.” The intent of the bill is to free
up spectrum designated for public safety use that is currently occupied by television
broadcast stations. Public safety benefits from the timely availability of the promised
channels would include enhanced interoperability in radio communications. These
channels are being held until such time as the transition to digital television (DTV)
has reached levels of market penetration prescribed by Congress in the Balanced
Budget Act of 1997. When the specified level of market penetration has been
reached, broadcasters are to cease analog broadcasting and the channels used for this
purpose are to be released. There is, however, no deadline for the release and many
have opined that the transition process could take many years to complete. The
current policy debate in Congress regarding the conversion to digital television
focuses on whether to attempt an expedited transition to DTV with the release by a
date certain of all encumbered channels; or to require the timely availability of
channels designated for public safety only, addressing the larger issue of complete
DTV conversion with separate legislation.
House Provisions. H.R. 10 was amended (Sec. 5011) to provide a sense of
Congress that all analog broadcast channels should be vacated by December 31,
2006, for public safety and commercial uses. The amendment states that this can be
achieved by eliminating the exemption that requires a full 85% market penetration
of DTV and/or signal converters, one of the provisions originally established by
Congress as a criterion for allowing a delay. Most experts believe that it is this
provision that is allowing the indefinite delay of the release of the spectrum. Many
advocate the release of all the affected channels at once and support this approach for
many reasons, including, notably, fairness (so that all TV broadcasters would be
treated equally and none would be placed at a disadvantage by having to pay the costs
of transition in advance of competitors); availability of spectrum for new commercial
applications, including broadband wireless; availability of additional spectrum for
public safety use beyond what has already been allocated; and substantial revenue for
the U.S. Treasury from spectrum auctions. Critics of a mandated hard deadline are
concerned with the choice of date — many preferring a date of 2009 or later in order
to allow more time for market forces to guide the transition — and with the
protection of consumers who rely on over-the-air broadcasts, to cite two frequently
mentioned considerations. Some advocates of a swift and complete transition to
DTV have argued that consumer needs could be met through a program that would
subsidize the purchase of set-top boxes that would convert digital signal to analog.



Senate Provisions. The issue of freeing spectrum was incorporated in S.

2845 with an amendment that, in its original language, replicated S. 2820 (McCain).


This amendment became Sections 1061 to 1073 of the Senate bill, Title F. Regarding
the release of spectrum, Senator McCain would have required the full release of
encumbered spectrum by date certain. As finally amended and agreed, however, only
those channels required for public safety would be freed, although the FCC would
have the authority to clear other channels, as needed, to prevent interference. This
language appears in Section 1063. Other sections cover matters related to the
conversion to DTV (1067-1070). Several sections cover interoperability (see
“Interoperable Communications and Warning Systems,” below). Section 1064 would
require a study and report to Congress on the advisability of providing additional
channels to public safety.
Comments. Section 5011 of the House bill and Section 1063 of the Senate
bill offer two major viewpoints on how to approach the release of spectrum for public
safety. The findings in Section 5011 closely parallel the arguments made by Senator
McCain on the Senate floor in favor of clearing all channels, as provided in S. 2820.
The Senate, voted, however, to adopt language that dealt primarily with providing
spectrum for public safety, similar to H.R. 1425, the bill on which the 9/11
Commission based its recommendation. Furthermore, the Senate version provides
for necessary changes by amending the Communications Act; the House bill supports
what it identifies as a preferred course of action but does not legislate any changes
in existing statutes. The purpose of Section 1064, dealing with a study regarding
providing additional spectrum for public safety, is not addressed in the House bill.
Within the public safety community there is substantial concern that additional
spectrum, contiguous to existing assigned channels, must be provided in order to
support full interoperability and emerging technologies.
Government Reorganization Authority
Prepared by Morton Rosenberg, Specialist in American Public Law, CRS American
Law Division, 7-7480
Both H.R. 10 and S. 2845 contain provisions authorizing future reorganizations
of the intelligence community. The approaches taken differ substantially.
Section 5021 of H.R. 10 would reauthorize the President’s authority under 5
U.S.C. 901-912, which expired on December 31, 1984, to submit proposed
reorganization plans for fast-track congressional consideration and approval, with
certain modifications. Under the 1984 law, a plan could transfer the whole or part
of an agency, or the whole or part of the functions of an agency, to the jurisdiction
and control of another agency, and it could abolish all or part of the functions of an
agency, “except that no enforcement or statutory program shall be abolished by the
plan.” A plan could not create a new executive department; abolish or transfer an
executive department or independent regulatory agency, or all the functions thereof;
consolidate two or more executive departments or independent regulatory agencies,
or all the functions of such entities; continue an agency or a function beyond the
period it was authorized by law; authorize an agency to exercise a function not
expressly authorized by law at the time the plan is proposed; or create a new agency
that is not a component or part of an existing executive department or independent
agency. A plan also could not deal with more than one logically consistent subject



matter, and, as with all previous versions of statutory reorganization authority, the
authorization expired within a defined limited period.
Section 5021 would amend Section 905 to allow only submission of
reorganization plans for 11 named intelligence community units as well as elements
of any other department or agency that may be designated either by the President
alone, or jointly by the NID and the head of the department or agency concerned, as
an element of the intelligence community. Section 903(a)(2) would be amended to
allow for the abolition of all or part of the functions of a covered entity without the
formerly included limitation that “no enforcement junction or statutory program shall
be abolished by the plan.” Section 903 would also be amended to allow a plan to
propose creation of a new agency. Also, the grant of reorganization authority would
be permanent, rather than subject to periodic congressional reauthorization.
Section 333 of S. 2845 does not renew the existing reorganization statute, but
rather provides that the NID, with the approval of the President, and after
consultation with affected intelligence community elements, would be allowed to
“allocate or reallocate functions among the officers of the National Intelligence
Program, and may establish, consolidate, alter, or discontinue organizational units
within the Program, but only after providing notice of such action to Congress, which
shall include an explanation of the rationale for the action.” This authority would not
“extend to any action inconsistent with law,” and could only be undertaken with the
approval of each of the congressional intelligence committees and the Senate
Governmental Affairs and House Government Reform Committees. These latter
congressional approval requirements would appear to be legislative vetoes proscribed
by the Supreme Court in INS v. Chadha, 462 U.S. 919 (1983).
Restructuring Relating to the Department of
Homeland Security and Congressional Oversight
Prepared by Nye Stevens, Deputy Assistant Director and Specialist in American
National Government, CRS Government and Finance Division, 7-0208
Overview. The 9/ll Commission identified “unity of effort” in congressional
oversight of homeland security and intelligence as a primary thrust of its
recommendations. It also noted that the Department of Homeland Security needed
to regularly monitor threats to the nation’s transportation, communications, financial,
and other infrastructure institutions in order to develop plans and exercise
mechanisms to enhance preparedness. H.R. 10 contains several organizational
provisions that would direct the Department’s attention to particular areas of
vulnerability, and a sense of the House provision urging attention to organization ofth
the House relating to homeland security in the 109 Congress. The Senate bill does
not include these matters.
House Provisions. Title V(c) contains several provisions relating to the
organizational structure of the Department of Homeland Security. The provisions
would
!establish an office of counternarcotics enforcement in the
Department, and provide accountability mechanisms, including



reports to Congress (Sec. 5025) and inclusion of counternarcotics
enforcement in relevant individual performance appraisals (Sec.

5026);


!create an Assistant Secretary for Cybersecurity, who would have
primary responsibility within the Department over the National
Communications System (Sec.5028);
!directing the Secretary to ensure and to report to Congress that law
enforcement and intelligence information is effectively shared with
those in the Department responsible for security-related screening of
individuals and entities interacting with U.S. border and
transportation systems (Section 5029); and
!create an Under Secretary for the Private Sector and Tourism to
assess and coordinate policies of the Department that affect the
private sector, including the tourism industry (Section 5030).
The House bill also contains a sense of the House provision (Section 5027) that
discusses the activities and recommendations of the Select Committee on Homeland
Security, the Appropriations Committee, and various rules changes related to
continuity of Congress in an emergency. It expresses the sense of the House that the
Rules Committee should act on these various recommendations at the start of the

109th Congress.


Senate Provisions. The Senate bill does not contain comparable
organizational provisions relating either to the Department or congressional
jurisdictions. However, on October 9, 2004, the Senate passed S.Res. 445, making
a number of committee organizational and jurisdictional changes to become effectiveth
at the beginning of the 109 Congress, including renaming the Committee on
Governmental Affairs as the Committee on Homeland Security and Governmental
Affairs.
Comments. Congress wants to ensure that the Department of Homeland
Security is attuned to emerging threats to the nation’s infrastructure, and that its
attention goes well beyond the pre-existing jobs of the entities that were brought into
the new department. Two ways that Congress can focus the attention of an executive
department on specific areas of concern are to provide for a statutory position to be
filled by an individual Congress can call to account, and to require regular reports on
activities and progress toward solving particular problems.
Improvements to Information Security
Prepared by Jeffrey Seifert, Analyst in Information Science and Technology, CRS
Resources, Science, and Industry Division 7-7081
Overview. A recurrent theme throughout the 9/11 Commission Report is that
the role of information in facilitating intelligence and homeland security objectives
cannot be understated. Specifically, the 9/11 Commission Report recommendations
emphasize the importance of good information acquisition and analysis techniques,
as well as the ability to share information among relevant entities. Although the 9/11
Commission Report does not explicitly discuss information security issues, there is
an implicit understanding that information security must be considered when
designing and implementing an information sharing system. To that end, both H.R.



10 and S. 2845 include provisions designed to strengthen agency planning for
information security needs.
House Provisions. Setion 5031 would amend the Clinger-Cohen Act (P.L.

104-106) by inserting either a word (i.e., “security” or “secure”) or a phrase (i.e.,


“including information security risks” or “investments in information technology
[including information security needs]”) in five different places in the information
technology management law. Although the Clinger-Cohen Act already includes
some references to information security, these changes are intended to more
explicitly emphasize that information security concerns must be taken into account
as part of the information technology capital planning and investment control
responsibilities carried out by the Office of Management and Budget (OMB) and
individual agencies.
Senate Provisions. Section 1101 in S. 2845 as engrossed by the Senate is
identical to Section 5031 in H.R. 10, as engrossed by the House.
Comments. These provisions are identical to those in H.R. 4570, which was
introduced on June 15, 2004 by Representative Putnam and referred to the
Committee on Government Reform.
Personnel Management Improvements
Prepared by Jack Maskell, Legislative Attorney, CRS American Law Division, 7-
6972
Personal Financial Disclosure. Section 5043 of H.R. 10 amends the
Ethics in Government Act of 1978 [EGA] to change financial disclosure
requirements for certain officers and employees who would be employed in or under
the Office of National Intelligence Director, or an element of the intelligence
community. The public disclosures required of such personnel are similar to those
required under the EGA, although the de minimis thresholds for requiring the
disclosure of certain items are raised under the bill, the number of “categories of
values” for disclosure of reported items are reduced and the values in each category
correspondingly expanded, and certain exceptions from disclosure of past income
from clients are expanded. Some of these changes are along the lines of those
proposed by the Office of Government Ethics for “streamlining” the disclosure
requirements of presidential appointees (see, S. 1811, 107th Congress, S.Rept. 107-
152). The Senate bill (S. 2845) would not provide for such changes in the public
financial disclosure requirements, but rather directs the Office of Government Ethics
to evaluate and report on recommendations for improving the financial disclosure
system and the federal conflict of interest laws in general, and provides for a review
of the presidential appointment process with an eye to reducing the number of
positions requiring Senate confirmation.
Agency Plans Required. Prepared by Henry Hogue, Analyst in American
National Government, CRS Government and Finance Division, 7-0642
Overview. Legislation was introduced in both the 107th and 108th Congresses
to reduce the number of Senate-confirmed appointments to executive branch
positions. For example, the Presidential Appointments Improvement Act of 2001 (S.



1811) was first introduced during the 107th Congress. Among other things, the bill
would have required each agency to submit, within 180 days of enactment, a plan
providing for the “reduction of — (A) the number of positions within that agency that
require an appointment by the President, by and with the advice and consent of the
Senate; and (B) the number of levels of such positions within that agency” ( S. 1811
(107th Cong.), Sec. 6(b)(2)). The bill was not acted upon by the full Senate. Similar
legislation was introduced in the Senate (S. 765) and the House (H.R. 1603) during
the 108th Congress.
House Provision. Section 5044 of H.R. 10 would direct agency heads to
submit to the President, the Senate Governmental Affairs Committee, and the House
Government Reform Committee, plans for the reduction in the number and levels of
presidentially appointed positions requiring the advice and consent of the Senate.
The provision is very similar to S. 765, Section 6 and H.R. 1603, Section 6.
Senate Provision. S. 2845, Section 1102(c) is very similar to H.R. 10,
Section 5044.
Comments. The two versions of the legislation, H.R. 10,, and S. 2845, have
very similar provisions in this area.
Section 5042 (Vacancies Act Exceptions). Prepared by Henry Hogue,
Analyst in American National Government, CRS Government and Finance Division,
7-0642
Overview. The 9/11 Commission Report included a recommendation (#38)
that appointments to key national security positions at the time of presidential
transitions occur more quickly. The 9/11 Commission called for seven specific
remedial changes: initiation of the security clearance process for prospective
appointees to national security positions immediately after the presidential election;
pre-election identification, by each presidential candidate, of potential members of
his transition team to allow for timely security clearance; centralization of the
security clearance process in one agency; pre-inaugural submission, to the Senate, of
nominations by the President-elect to positions on the “national security team;”
expedited Senate consideration of these nominations; elimination of advice and
consent requirements for any “national security team” members below Level III of
the Executive Schedule; and prompt and thorough written national security
information exchange between the outgoing and incoming administrations.
House Provision. Section 5042 of H.R. 10 would rewrite the presidential
inaugural transition section (5 U.S.C. 3349a) of the “Federal Vacancies Reform Act
of 1998” (“Vacancies Act”; codified at 5 U.S.C. 3345-3349d). It would allow
incumbent or newly elected Presidents, following an inauguration, to make certain
types of temporary appointments to certain advice and consent positions without two
restrictions in the Vacancies Act that would otherwise apply.
Senate Provision. S. 2845 has no provision related to this issue.
Comments. Although the changes to the President’s temporary appointment
authority proposed by Section 5042 might have the effect of filling certain positions



more quickly immediately following inaugurations, it was not among the specific
changes called for by the Commission.
The Vacancies Act allows the President to make temporary appointments,
without the advice and consent of the Senate, to positions that would otherwise
require such advice and consent (PAS positions). At present, the presidential
inaugural transition section of the act allows a newly inaugurated President to make
such appointments for longer terms than would otherwise be allowed by the act. The
rewritten presidential transition section would continue to permit this practice for
newly inaugurated Presidents.
The rewritten section would also add a provision that would apply to both
incumbent and newly inaugurated Presidents. It would remove, for “national security
positions” during inaugural periods, certain limitations related to one temporary
appointment method. The Vacancies Act presently provides three methods for
temporarily filling vacant PAS positions. One method allows the President to direct
an officer or employee of an agency where a PAS position vacancy exists to
temporarily perform the functions and duties of that office. The law requires that
such a person (1) must have been at the agency for not less than 90 of the preceding
365 days and (2) must have been paid at a rate equal to or greater than a position at
GS-15 of the General Schedule. Section 5042 would remove these two requirements
for “any vacancy in any specified national security position that exists during the 60-
day period beginning on inauguration day.” With regard to this provision, the
legislation would define “specified national security position[s]” as “not more than
20 positions requiring Senate confirmation, not to include more than three heads of
Executive Departments, which are designated by the President on or after an
inauguration day as positions for which the duties involve substantial responsibility
for national security.”
Confirmation. Prepared by Betsy Palmer, Analyst in American National
Government-Congress, CRS Government and Finance Division, 7-0381
Overview. The 9-11 Commission recommended that the Senate change its
process for confirming members of the National Security Team, to ensure there is a
smooth and quick transition between presidential administrations when it comes to
those responsible for national security policy. To facilitate a better process, the 9/11
Commission recommended that “The Senate, in return, should adopt special rules
requiring hearings and votes to confirm or reject national security nominees within
30 days of their submission.”4 The 9/11 Commission’s report did not say how to
implement or enforce this recommendation. The 9/11 Commission also
recommended that the requirement that the Senate provide advice and consent on
some nominations be abolished.
House Provisions. Section 5041 of the House amendment to S. 2845 would
require that the Office of Personnel Management create a list of all national security
positions which require Senate confirmation within 60 days after enactment. For the
top positions, such as the Secretary of Defense, who are Level 1 employees on the


4 The 9/11 Commission Report, p. 422.

Executive Schedule, the House bill would not change the current Senate
confirmation process. The President would choose a nominee and submit their name
to the Senate for its advice and consent. The nominee would then have to be
confirmed by the Senate.
The House-passed version of S. 2845, however, would change the Senate
confirmation process for other national security nominees. For Executive Schedule
Level II employees within the National Security Team, such as the Deputy Attorney
General, and Executive Level III employees, such as an Under Secretary of State, the
House amendment would require that the Senate act within 30 days of receiving a
nomination, or the nomination would go into effect without Senate action. The
House amendment does not contain any details about how the Senate might
implement such a 30-day deadline. An analysis of the Bush and Clinton
Administrations showed that the majority of national security nominees were
confirmed within 30 days (see CRS Report RL32551, 9/11 Commission
Recommendations: The Senate Confirmation Process for Presidential Nominees,
which also contains analysis of the potential impact of a 30-day deadline for Senate
consideration of some nominations.).
For Level IV and Level V national security employees who currently require
Senate confirmation, the House amendment would remove that requirement and
allow them to be appointed at the discretion of the President.
Senate Provisions. As passed by the Senate, S. 2845 was amended to
include a provision that calls for quick action on nominees but would not commit the
Senate to deadlines. Instead, the bill at Section 1081(b) includes a “sense of the
Senate” resolution stating that “the Senate committees to which these nominations
are referred should, to the fullest extent possible, complete their consideration of
these nominations, and, if such nominations are reported by the committees, the full
Senate should vote to confirm or reject these nominations within 30 days of their
submission.” This is, essentially, an affirmation of the current confirmation process.
Comments. The House-passed version of the bill would make major changes
in the Senate’s confirmation process. Dozens of positions that now require Senate
confirmation, such as assistant secretaries of Defense, would no longer be subject to
Senate approval. This could result in somewhat uneven application of the advice and
consent function. An assistant secretary of Labor, for example, would be required
to obtain the assent of the Senate while top National Security appointees would not.
The House-passed provisions would remove the Senate’s advice and consent role for
an additional set of nominees, if the Senate did not have an up or down vote within
30 days of receiving the nomination. The group this provision would cover includes
the Director of Central Intelligence and the Secretaries of the Air Force, Army and
Navy.
Security Clearance Modernization
Prepared by Fred Kaiser, Specialist in American National Government, Government
and Finance Division, 7-8682
Overview. Proposals have existed for many years about expediting and
otherwise improving the security clearance process, that is, determining a federal



employee’s or applicant’s eligibility for access to classified national security
information. The 9/11 Commission recognized this in presenting two of its 41
recommendations, which suggest modernizing the clearance process, among other
matters. The Commission proposed: “Information procedures should provide
incentives for sharing, to restore a better balance between security and shared
knowledge”; and “The president should lead the government-wide effort to bring the
national security institutions into the information revolution. He should coordinate
the resolution of the legal, policy, and technical issues across agencies to create a
“‘trusted information network.’”
House Provisions. Sections 5071-5078 of H.R. 10, are designed to
modernize the security clearance process. The provisions would standardize the
process across federal agencies, set uniform requirements for the clearance levels,
and expedite background investigations. New, clarified, or enhanced powers to
accomplish these goals include authority that would allow the establishment of
government-wide criteria and standards for financial disclosure, administration of
polygraphs, and security clearance questionnaires, as well as a national database
regarding security clearances.
The House bill details other proposed changes. It specifies offices which would
be responsible for certain types or levels of clearances, provides specifically for
reciprocity among agencies in accepting background investigations conducted for
other agencies, and sets a time-limit for conducting a clearance (a total of 60 days,
consisting of 40 days for the investigation and 20 for the adjudication). H.R. 10 also
calls for increased or improved use of existing tools and technology in conducting
investigations, provides for interim clearances in certain situations, on-going
monitoring of clearance holders using a new “regularly recurring verification”
process. This process could be used as a basis for terminating a security clearance
and in periodic reinvestigations to address emerging threats. In addition, the new
“regularly recurring verification” could replace periodic reinvestigations, if the
National Intelligence Director (NID) certifies it.
Section 5077 would change the national security clearance process during
presidential transitions. It would require the President-elect to submit to the NID the
names of candidates for high-level national security positions (at or above the under
secretary level) as soon as possible after a general election. The NID would be
responsible for the “expeditious completion” of background investigations for such
individuals before the inauguration. A similar process would be required for
prospective transition team members needing clearance, with completion required,
“to the fullest extent practicable,” by the day after the general election.
Senate Provisions. S. 2845 (Sec. 116) responds to the need to improve the
clearance process, by calling upon the President, in consultation with the National
Intelligence Director, to establish uniform standards for access to classified
information; ensure the consistent implementation of such requirements throughout
the government; ensure that an individual who is granted or continued eligibility for
access by one agency is treated as eligible for access at the same level elsewhere in
the government; establish uniform standards for polygraph examinations, financial
disclosure, and security clearance questionnaires; and ensure that the proposed
national database meets the needs of the intelligence community. The bill also



provides for the President to select one federal agency which would be responsible
for conducting all security clearances investigations throughout the government for
employees and contractors and maintain all security clearances of such employees or
contract personnel.
S. 2845 would also amend the Presidential Transition Act of 1963, including
provisions to recommend submission by the President-elect to the agency with
national security clearance functions of “names of candidates for high level national
security positions through the level of undersecretary” as soon as possible after the
presidential election; and to require the appropriate agency to carry out background
investigations of these candidates for high-level national security positions “as
expeditiously as possible ... before the date of the inauguration.” It would similarly
facilitate this process for those prospective transition team members needing
clearance, with completion required, “to the fullest extent practicable,” by the day
after the general election.
Comments. The House and Senate bills offer similar solutions to similar
problems. Improvements in expediting the security clearance process, setting
uniform standards, and requiring reciprocity are common elements. Both, moreover,
call for setting government-wide criteria and standards for financial disclosure,
administration of polygraphs, and security clearance questionnaires as well as
requirements for a national database regarding security clearances. The two versions
differ, however, in their specificity (with H.R. 10 being more extensive and detailed
than S. 2845) and their specifics. The House bill, for instance, adds provisions
designating an official in charge of program oversight and administration, clearing
applicants for a presidential transition team and for high-ranking positions in a new
administration, and instituting a new “regularly recurring verification” requirement.
It would also centralize background investigations in a single agency.
Emergency Financial Preparedness
Prepared by William Jackson, Specialist in Financial Institutions, CRS Government
and Finance Division, 7-7834
Overview. The House Financial Services Committee markup of H.R. 10 added
several financial preparedness/security provisions to the measure, which the 9/11
Commission had not recommended. The resulting Committee language included the
following, among other things, in its Report dated October 1, 2004. These
amendments would strengthen financial institutions from within, against natural and
unnatural (terrorist) disasters in their operations. Senate-passed S. 2845 generally
follows the Commission’s focus on intelligence and security matters, including
infrastructure protection for financial institutions.
House Provisions. House-passed H.R. 10, Title V, Subtitle G:
— Section 5082 expresses the sense of Congress that the Treasury, in
consultation with other agencies, furnish resources and report efforts to educate
consumers and employees of the financial services industry about domestic
counter-terrorist financing activities.



— Sections 5084-5086, titled “Emergency Securities Response Act of 2004.”
Enables the Securities and Exchange Commission (SEC) to issue orders and
take other emergency actions to address extraordinary private securities market
disturbances. Gives the Treasury authority parallel to the SEC for government
securities market disturbances.
— Section 5087 requires the Federal Reserve, the Office of the Comptroller of
the Currency, and the SEC to report on private sector financial business
continuity plans, including more financial services entities than are under
existing regulatory guidance. The agencies published their regulation in the
Federal Register in 2003, as the Interagency Paper on Sound Practices to
Strengthen the Resilience of the U.S. Financial System.
— Section 5088 expresses the sense of Congress that insurance and credit
rating companies consider businesses’ compliance with private sector disaster
and emergency preparedness standards in assessing insurability and
creditworthiness, to encourage private sector investment in disaster and
emergency preparedness.
— Section 5089 requires the Treasury to report on its efforts to encourage
public/private partnerships to protect critical financial infrastructures.
Senate Provisions. Senate-passed H.R. 2845, Title X, Subtitle D, Section
1045 includes a sense of the Congress provision for insurance and credit rating
companies as above. Its Section1046 requires the Department of Homeland Security
to address and report on financial institutions, among other sectors, in critical
infrastructure and readiness assessments.
Comments. The House had passed the freestanding SEC/Treasury emergency
preparedness language, known as the Emergency Securities Response Act of 2003,
as H.R. 657 on February 20, 2003. The Senate did not take it up. H.R. 10 would
encourage financial businesses smaller than the largest “wholesale” transacting and
clearing entities, the only firms now covered by the Interagency Paper, to undertake
emergency preparedness, largely through existing financial coordination and
regulatory arrangements. The Senate measure would place a significant amount of
preparedness responsibility with the Department of Homeland Security, including
establishment of a program to promote private sector preparedness initiatives
(Section 1044). The insurance and credit rating provision of both resembles concerns
over lending and insuring in areas subject to flooding and the like, where planning
against the consequences of disasters is important for project financing.
Other Matters — Mutual Aid
Prepared by Keith Bea, Specialist in American National Government, CRS
Government and Finance Division, 7-8672
Overview. For decades state and local governments have relied upon mutual
aid agreements to obtain assistance from other units of government to prepare for and
respond to catastrophes that overwhelm their resources. The importance of such
initiatives was emphasized in 1996 when Congress enacted P.L. 104-321. This
statute signified congressional approval of the Emergency Management Assistance



Compact (EMAC), which the Southern Governors Association initiated after
Hurricane Andrew devastated south Florida in 1992. Mutual aid agreements,
including EMAC, set forth the procedures and conditions under which emergency
assistance is provided to requesting states. While the mutual aid agreements have
improved emergency management capabilities, the 9/11 Commission and others have
expressed concern that existing mutual aid agreements do not adequately address
certain emergency preparedness and response needs. The 9/11 Commission
specifically found that congressional action was required to resolve liability and
indemnification “impediments” in the National Capital Region (NCR).
House Provisions. H.R. 10, Section 5102, would authorize local, state or
federal officials to negotiate mutual aid agreements for emergency assistance and to
facilitate participation in training exercises consistent with state laws. Officials
responding to an event or training in an exercise in a host state would remain liable
under their own state laws and would be covered by the death benefit and workers
compensation provisions of their home state. Litigation must be brought in the state
courts of the responders or in U.S. District Courts within the responders’ state; suits
against federal officials may only be considered in a U.S. District Court. Section
5103 provides that authorized representatives may enter into litigation management
agreements that would provide for a federal cause of action for claims against
Emergency Response Providers. This federal cause of action would apply the
substantive law either of the state in which the acts of terrorism occurred, or of the
state determined by the choice of law principles agreed to in the litigation
management agreement. However, state law would not apply if it were inconsistent
with or preempted by federal law. Section 5103 of the bill also prohibits punitive
damages and does not protect persons or entities that commit or support terrorism
acts. Section 5106 requires that the Secretary inventory, catalog, and evaluate
existing compacts.
Senate Provisions. As amended on the floor of the Senate, S. 2845 Section
1042 would authorize state and local government officials in the National Capital
Region (NCR), and federal officials, to enter into mutual aid agreements for
emergency response, preparing for or recovering from an emergency, or training for
such activities. The District of Columbia would be authorized to purchase liability
and indemnification insurance or self insure against claims. Responding parties are
subject to liability laws of their own state, and legal actions may be brought only
under the laws of the responder’s state, or federal law as appropriate. The bill
provides for a good faith exception and requires that workers compensation as well
as death benefits be provided according to the laws of the responders’ states.
Comments. Considerable differences exist between the mutual aid provisions
in the two bills. While H.R. 10 provides authority for mutual aid agreements across
the nation and establishes a national standard for claims against responders, S. 2845
focuses solely on the National Capitol Region. Both bills provide that the laws of the
responders’ “home” state are to be followed in resolving litigation. While H.R. 10
does not specifically address mutual aid agreements for the NCR, Section 5010 does
indirectly address the issue — it requires that DHS study the definition of National
Capitol Region and consider its geographic boundaries.



Interoperable Communications and Warning Systems
Prepared by Linda K. Moore, Analyst in Telecommunications Policy, CRS
Resources, Science, and Industry Division, 7-5853
Interoperable Communications. Interoperability, also referred to as
compatibility or connectivity, refers to the capability for different systems to readily
contact each other. Facilitating interoperability has been a policy concern of public
safety officials for a number of years. Since September 11, 2001 — when
communications failures added to the horror of the day — achieving interoperability
for public safety communications has become an important national policy concern
for Congress. Support of communications interoperability, or connectivity, is also
recommended by the 9/11 Commission, through the selective establishment and
funding of signal corps units in high-risk urban areas. Because there are many policy
considerations related to interoperable communications, the issue is addressed in
several places throughout both the House and Senate bills. The discussion here
addresses those sections that deal primarily with governance and the development of
infrastructure for communications interoperability.
House Bill. Section 5006 of H.R. 10 provides a sense of Congress regarding
the desirability of continuing programs that support interoperable systems and radios
and that standards for these should meet prevailing, voluntary consensus standards.
Section 5131 specifies ways in which interoperability might be achieved. It also
would provide a statutory definition of interoperability. Section 5131 would establish
a new, unnamed program to enhance public safety interoperable communications at
all levels of government. This program would have some of the functions currently
planned for Office of Interoperability and Compatibility, created October 1, 2004, by
the Department of Homeland Security (DHS). These include coordination with other
federal agencies and provision of training and technical assistance to state and local
public safety agencies. Other program responsibilities reflect the bill’s definition of
interoperability, to include the establishment of a comprehensive national approach
to achieving public safety interoperable communications and encouragement for the
development and use of open architectures. The program would also accelerate the
development of national voluntary consensus standards. The bill further would create
the statutory authority for the Office of Interoperability and Compatibility, specifying
the functions of such an office. Functions would be limited to the management of the
SAFECOM program and of an expedited effort to assure interoperable
communications in high-risk urban areas. SAFECOM is an umbrella program for
interoperability that is part of the Science and Technology Directorate of DHS. Other
provisions of Section 5131 would provide consulting for interoperable
communications in high-risk jurisdictions and would allow for multi-year
commitments for interoperability grants. To receive funding, states would be
required to submit detailed plans to DHS.
Senate Bill.Sections 1065 and 1066 of S. 2845 would provide statutory
authority for SAFECOM, and authorize funding for program development. In
addition to providing for coordination of all federal programs dealing with
interoperability, a key provision of the bill would require SAFECOM to provide
research and development for a communications system architecture that would
enhance the potential for a coordinated response to a national emergency. Eligibility
for funding would include a requirement that applicants provide assurance that any



equipment or system purchased with grant funds would be compatible with the
communications architecture that SAFECOM is required to develop, as well as any
program standards. In Section 1043, the Senate bill would require the Secretary of
the Department of Homeland Security, among others, to encourage the establishment
of effective emergency communications capabilities in high-risk urban areas.
Comments. Although there are numerous differences in the key provisions
regarding interoperability (Section 1065 of the Senate bill and Section 5131 of the
House bill) a significant difference is in the placement of authority. The Senate bill
would strengthen SAFECOM in its role as lead program for interoperability within
the federal government. The House bill would circumscribe SAFECOM, limiting its
functions. A new program would be authorized with responsibilities that are more
encompassing than those of the Senate bill. The 9/11 Commission report speaks of
the creation of a signal corps to assure connectivity in some areas. Section 5131
would provide for the development of communications capability that has some
characteristics of a signal corps.
Warning Systems. The 9/11 Commission report discusses the effectiveness
of emergency alerts at the World Trade Center on September 11, 2001, and
recommends in its analysis that there be better coordination of communications
between first responders and emergency (911) call centers in order to reach the
civilian population. This type of coordination has typically been addressed by the
public safety community primarily within the context of the development of an
effective all-hazards warning system that is able to reach all levels of the civilian
population and authorities concerned with any aspect of public safety.
House Bill. Requirements for a study about the use of telecommunications
networks as part of an all-hazards warning system are included in H.R. 10 in Section
5009. The goals of the study would be to consider the practicality of establishing a
telecommunications-based warning system that would also provide information on
safety measures that might be taken in response to the warning. The legislative
proposal specifies that technologies to consider would be telephone, wireless
communications, and other existing communications networks. Section 5135 would
establish a pilot study to test innovative warning systems, specifically one that is
based on an AMBER Alert Communications network. AMBER Alerts are used to
broadcast information about missing or abducted children using a variety of media,
including the internet and the existing Emergency Alert System. A recent
technological innovation provides a Web portal that uses a dedicated server and
software to format messages for a variety of media. It also is able to target specific
groups of recipients. The ability to identify certain groups is often referred to as
creating a virtual community.
Senate Bill. There are no provisions regarding warning systems for civilians
in the Senate bill.
Comments. In a homeland security context, the ability to establish and
contact a virtual community can save lives. If some of the new warning systems
technologies, in conjunction with emergency response procedures, had been available
in the New York City area on the morning of September 11, a large number of people
in the World Trade Center could have known within minutes what was going on and



might have received an early order to evacuate the buildings. Cell phones, pagers, e-
mail, and telephone systems would have sent out the warning. At the same time,
electronic signs on the major roads, tunnels, and bridges leading to Manhattan would
have flashed signs telling motorists to turn around, etc. Although there has been
much discussion and some progress at the federal level in upgrading warning
systems, most experts in this area see a significant gap between what new technology
can provide and what is currently in place.



Senate Provisions Not in H.R. 10
National Preparedness
Prepared by John Moteff, Specialist in Science and Technology, CRS Resources,
Science, and Industry Division, 7-1435
Senate Provisions. S. 2845, Section 1045 (Title X, Subtitle D) is entitled
Critical Infrastructure and Readiness Assessments. This section requires the
Secretary of Homeland Security to:
“(A) identify those elements of the United States’ transportation, energy,
communications, financial, and other institutions that need to be protected;
(B) develop plans to protect that infrastructure; and
(C) exercise mechanisms to enhance preparedness.”
It requires the Secretary to report to Congress 180 days after enactment of the
bill and annually, thereafter, on —
“(1)...the progress in completing vulnerability and risk assessments of the
nation’s critical infrastructure;
(2) the adequacy of the Government’s plans to protect such infrastructure;
and
(3) the readiness of the Government to respond to threats against the
United States.”
The first part of this section corresponds directly with the 9/11 Commission’s
language used to introduce its final recommendation. The Commission’s final
recommendation stated that “the Department of Homeland Security should regularly
assess the types of threats the country faces to determine (a) the adequacy of the
government’s plans — and progress against those plans — to protect America’s
critical infrastructure, and (b) the readiness of the government to respond to the
threats....” The second part of the Senate’s language roughly corresponds to the
Commission’s language. However, the emphasis in the Commission’s language is
to “regularly assess the type of threats” and to use this regular reassessment to
determine the adequacy and progress of government’s plans to protect critical
infrastructure. The Senate language calls for something a little different: a report on
the progress of vulnerability and risk assessments and the adequacy of government
plans to protect critical infrastructure. Vulnerability and risk assessments can be
considered as input to the government’s effort to plan for critical infrastructure
protection, but not the plan itself. The Senate language does not mention a regular
assessment of the types of threat. Finally, the Senate language goes beyond the 9/11
Commission’s recommendation and requires a report, with deadlines.
House Provisions. The House bill does not have a similar provision. Its
language regarding a transportation security plan (Title II, Subtitle G, Section 2172)
is similar, but relates only to the transportation infrastructure.



Review of Components of National Intelligence Program
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7607
Senate Bill. S. 2845, Section 338, provides that the National Intelligence
Program (notwithstanding the earlier definition in Section 2) shall consist of all
“programs, projects, and activities” that are part of the National Foreign Intelligence
Program (NFIP) upon the date of enactment; the NID and the Secretary of Defense,
however, are to review Joint Military Intelligence Programs and Tactical Intelligence
(JMIP) and Related Activities (TIARA) and certain other Defense Intelligence
Agency/DOD programs. Upon completion of the review, the NID shall submit to the
President recommendations regarding programs, projects, and activities, if any, to be
included in the National Intelligence Program along with comments by the Secretary
of Defense. This review would assess whether JMIP/TIARA programs in agencies
(especially, the National Security Agency, the National Reconnaissance Office, and
the National Geospatial-Intelligence Agency) that will be under the authority of the
NID should be transferred into the National Intelligence Program (which the NID
will manage), remain in their present agencies under management of the Secretary
of Defense, or be transferred out of their present agencies to other locations in the
Defense Department. Floor debate on this provision centered on weighing the
importance of strengthening the control of national intelligence agencies by the NID
versus the importance of ensuring that programs directly related to supporting
military operations remain responsive of the Secretary of Defense.
House Bill. H.R. 10 has no comparable provision.
Quality of Analysis Issues
Prepared by Richard Best, Specialist in National Defense, CRS Foreign Affairs,
Defense, and Trade Division, 7-7607
Senate Provisions. Several sections of S. 2845 prescribe responsibilities to
ensure that intelligence information is, as mandated in Section 222, “timely,
objective, independent of political considerations, and has not been shaped to serve
policy goals.” Section 142 establishes an Ombudsman of the National Intelligence
Authority whose office is to include an Analytic Review Unit that will conduct
detailed evaluations of intelligence analysis by various agencies. The evaluations are
to be forwarded to agency heads and to congressional committees. The Analytic
Review Unit is to make recommendations for awards, commendations, additional
training, or disciplinary or other actions.
Section 145 of S. 2845 would establish an Office of Alternative Analysis within
the National Intelligence Authority. This office would subject each National
Intelligence Estimate (NIE) and potentially other analytical products, prior to
completion, to “a thorough examination of all facts, assumptions, analytic methods,
and judgments utilized in or underlying any analysis, estimation, plan, evaluation, or
recommendation contained in such estimate.” Each NIE or other product evaluated
shall include an appendix containing the findings of the Office of Alternative
Analysis. The results of each evaluation shall also be submitted to congressional
intelligence committees.



Section 207 of S. 2845 expresses the sense of Congress that the NID should
consider the advisability of establishing an alternative analysis capability for each
element of the intelligence community. The NID is to submit a report within one year
describing actions taken to establish this capability.
House Provisions. H.R. 10 has no comparable provisions.
Amendment 3841, Amendment 3837
Prepared by Blas Nuñez-Neto, Analyst in Social Legislation, CRS Domestic Social
Policy Division, 7-0622
Amendment 3841. S. 2845, Section 1122, would require DHS to present a
plan within 6 months of the enactment for the systematic surveillance of the
Southwest border by remotely piloted aircraft. The Secretary is directed to implement
the submitted plan as a pilot program as soon as sufficient funds are appropriated and
available.
Amendment 3837. S. 2845, Title IX, Sections 901-905, would authorize
DHS to carry out a pilot program to test advanced technology, such as sensors,
cameras, and unmanned aerial vehicles, between ports of entry (POE) along the
Northern border. The Secretary is authorized to work with whatever private and
public agencies are necessary to procure and use the advanced technologies, and is
directed to report no later than one year after enactment of the act on the pilot
program.
Transmittal of Record, to Presidential Candidates, Relating
to Presidentially Appointed Positions
Prepared by Henry Hogue, Analyst in American Government, CRS Government and
Finance Division, 7-0642
Senate Provision. S. 2845, Section 1102(b), would direct the Office of
Personnel Management (OPM) to transmit an electronic record “on Presidentially
appointed positions,” with specified content, to a major party presidential candidate
soon after his or her nomination, and to subsequently make such a record available
to any other presidential candidate.
House Provision. H.R. 10 has no provision related to this issue.