[Senate Report 107-150]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 369
107th Congress                                                   Report
 2d Session                                                     107-150


                                                       Calendar No. 369



                              R E P O R T

                                 of the


                          UNITED STATES SENATE

                             together with

                            ADDITIONAL VIEWS

                              to accompany

                                S. 1867


     May 14 (legislative day, May 9), 2002.--Ordered to be printed


99-010                     WASHINGTON : 2002


               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois          SUSAN M. COLLINS, Maine
MAX CLELAND, Georgia                 THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware           ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri              JIM BUNNING, Kentucky
MARK DAYTON, Minnesota               PETER G. FITZGERALD, Illinois
           Joyce A. Rechtschaffen, Staff Director and Counsel
                        Kevin J. Landy, Counsel
              Richard A. Hertling, Minority Staff Director
          Jayson P. Roehl, Minority Professional Staff Member
                     Darla D. Cassell, Chief Clerk
                                                       Calendar No. 369
107th Congress                                                   Report
 2d Session                                                     107-150




     May 14 (legislative day, May 9), 2002.--Ordered to be printed


 Mr. Lieberman, from the Committee on Governmental Affairs, submitted 
                             the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1867]

    The Committee on Governmental Affairs, to whom was referred 
the bill (S. 1867) to establish the National Commission on 
Terrorist Attacks Upon the United States, and for other 
purposes, reports favorably thereon with amendments and 
recommends that the bill as amended do pass.


  I. Purpose and Summary..............................................1
 II. Background and Need for Legislation..............................3
III. Legislative History.............................................13
 IV. Section-by-Section Analysis.....................................17
  V. Regulatory Impact...............................................22
 VI. CBO Cost Estimate...............................................22
VII. Additional Views................................................25
VIII.Changes to Existing Law.........................................27

                         I. Purpose and Summary

    On March 21, 2002, the Committee on Governmental Affairs 
voted to report S. 1867, ``a bill to establish the National 
Commission on Terrorist Attacks Upon the United States,'' as 
amended. S. 1867 is a bipartisan bill to establish an 
independent commission to investigate the facts and 
circumstances of the terrorist attacks of September 11, 2001, 
to report on its findings, and to make recommendations as to 
how to prevent future terrorist attacks.
    As stated by Senator Lieberman the day the bill was 

          Like many of my constituents, I too want to know how 
        September 11 happened, why it happened, and what 
        corrective measures can be taken to prevent it from 
        ever occurring again. The American people deserve 
        answers to these very legitimate questions about how 
        the terrorists succeeded in achieving their brutal 
        objectives, and in so doing, forever changing the way 
        in which we Americans lead our lives. * * *
          The overriding purpose of the inquiry must be a 
        learning exercise, to understand what happened without 
        preconceptions about its ultimate findings.\1\

    \1\ Remarks of Sen. Joseph Lieberman of Connecticut, Congressional 
Record, December 20, 2001, at S. 13951.

    Senator McCain, the lead cosponsor, further explained:

          To prevent future tragedies, we need to know how 
        September 11th could have happened, and explore what we 
        can do to be sure America never again suffers such an 
        attack on her soil. * * *
          As we did after Pearl Harbor and the Kennedy 
        assassination, we need a blue-ribbon team of 
        distinguished Americans from all walks of life to 
        thoroughly investigate all evidence surrounding the 
        attacks, including how prepared we were and how well we 
        responded to this unprecedented assault.
          It will require digging deep into the resources of 
        the full range of government agencies. It will demand 
        objective judgment into what went wrong, what we did 
        right, and what else we need to do to deter and defeat 
        depraved assaults against innocent lives in the 
    \2\ Remarks of Senator John McCain of Arizona, Congressional 
Record, December 20, at S 13953.

    The commission created by the legislation will have a broad 
mandate to examine and report upon the facts and circumstances 
relating to the September 11, 2001 terrorist attacks occurring 
at the World Trade Center and at the Pentagon. The scope of the 
investigation is not limited to the operations of the federal 
government, and the commission will have discretion regarding 
how to focus its efforts. The bill lists several possible areas 
of inquiry: intelligence agencies; law enforcement agencies; 
diplomacy; immigration, non-immigrant visas, and border 
control; the flow of assets to terrorist organizations; and 
commercial aviation. The commission will submit to the 
President and Congress an initial report within six months of 
its first meeting and a final report, with findings and 
recommendations, a year after its first report.
    The commission is composed of 14 members--four appointed by 
the President and 10 appointed by Congress. The Speaker of the 
House and the Senate Majority Leader, in consultation with the 
minority leaders, each appoint five members of the commission; 
they must pick from a pool of candidates designated by the 
chair, in consultation with the ranking member, of five 
specified committees each of the House and the Senate (armed 
services, commerce, judiciary, intelligence, and foreign 
affairs). The President selects the chair of the commission, 
not more than seven members of the panel may be from the same 
political party, and those appointed may not be an officer or 
employee of federal, state, or local government. The commission 
is authorized to hold hearings, to exercise subpoena power, and 
to secure information directly from executive branch entities. 
Commission members and relevant staff will be given security 
clearances to allow access to classified information bearing 
upon the commission's discharge of its duties. Existing law 
allows a commission to close its meetings to protect 
classified, law enforcement, and other types of information; 
the bill as amended further specifies that meetings may also be 
closed to prevent the disclosure of other information likely to 
harm national security. For the commission to discharge its 
duties, $3 million would be authorized, to remain available 
until expended.

                II. Background and Need for Legislation

  Overview--the 9/11 tragedy, the need for answers and recommendations

    On September 11, 2001, terrorists attacked the United 
States with a coordinated series of aircraft hijackings and 
suicide crashes into populated buildings. American Airlines 
Flight 11 from Boston to Los Angeles was hijacked and diverted 
to New York City where it crashed into the North Tower of the 
World Trade Center. United Airlines Flight 175 from Boston to 
Los Angeles was hijacked and diverted to New York City where it 
crashed into the South Tower of the World Trade Center. 
American Airlines Flight 93 from Newark to San Francisco was 
hijacked and crashed 80 miles southeast of Pittsburgh, 
Pennsylvania, apparently while heading toward a target in 
Washington, D.C. American Airlines Flight 77 from Washington, 
D.C. to Los Angeles was hijacked and crashed into the Pentagon 
complex in Arlington, Virginia.
    The attacks of September caused more than three thousand 
fatalities. The numbers of dead or missing in New York have 
recently been estimated by New York agencies at 2,823, 
including 147 dead on two hijacked planes. At the Pentagon, 
there were 189 fatalities, including 64 fatalities on American 
Airlines Flight 77. There were 45 killed on United Airlines 
Flight 93, which crashed in Pennsylvania. By way of comparison, 
this total exceeds the number of casualties suffered by the 
United States on any day of fighting going back to the Civil 
War battle of Antietam, in 1862, and is almost as great as the 
number of Americans killed during the entire Revolutionary War. 
The losses sustained from the September 11 attacks were greater 
than any other foreign attack on United States soil. Of course, 
there is no comparison between battlefield losses and civilian 
casualties inflicted by a terrorist attack.
    In the aftermath of the terrorists attack, Americans 
immediately began asking questions: Why was this plan so 
successful in achieving its evil goals? Were opportunities 
missed to prevent the destruction? What additional steps should 
be taken now to prevent any future attacks? These and similar 
questions have occupied the public, the media, American policy 
makers, and government agencies. Policymakers in Congress and 
the executive branch, facing a range of policy options, must 
act quickly to authorize and implement new responses to the 
terrorist threat.
    Inquiries related to the terrorist attacks of September 11 
serve a variety of functions. Law enforcement and intelligence 
agencies are trying to bring the attack's surviving 
perpetrators and accomplices to justice; simultaneously, they 
are seeking information to prevent future attacks that 
terrorists may be currently planning. More broadly, 
policymakers are seeking to develop strategies and provide 
resources to prevent future attacks and improve the nation's 
responses to attacks; agencies may be conducting internal 
reviews to bolster those efforts, and Congressional committees 
have been holding both closed and open hearings to review 
particular aspects of the issue. Finally, many in the public 
and in government have called for a public accounting of how 
the attacks occurred--so responsible parties are held 
accountable if appropriate, and to provide some sense of 
closure to families of victims and to a grief-stricken nation.
    S. 1867 is a bipartisan initiative to help answer the many 
remaining questions in a constructive, methodical, and non-
partisan way. The commission would complement investigations 
being undertaken by Congress and the Executive Branch. Its 
reports could include non-classified and classified versions, 
to address the public's desire for more information and to 
convey to policymakers recommendations for addressing ongoing 

               Background--past commissions and inquiries

    There are a range of precedents for the establishment of a 
national commission to investigate the September 11 attacks, as 
envisioned in S. 1867. At various times in recent memory, 
temporary national commissions, composed of impartial and 
knowledgeable individuals, have been created to examine events 
inflicting alarm, pain, and sorrow on the American populace. 
Sometimes the mandates for such panels have been legislated by 
Congress; at other times they have been established with a 
presidential directive. They include commissions headed by 
Associate Justice Owen Roberts to investigate the Pearl Harbor 
attack, by Chief Justice Earl Warren to examine the 
assassination of President John F. Kennedy, by Illinois 
Governor Otto Kerner to probe urban riots, and by Dr. Milton 
Eisenhower to investigate the causes and prevention of violence 
in American society. Commissions have also been created to 
assess some of the nation's most sensitive and serious national 
security questions, examples being the National Commission on 
Terrorism, the Commission to Assess the Organization of the 
Federal Government to Combat the Proliferation of Weapons of 
Mass Destruction, the Commission on National Security/21st 
Century (also known as the Hart-Rudman Commission), and the 
Commission to Assess the Ballistic Missile Threat to the United 
States (also known as the Rumsfeld Commission). Investigative 
panels have also been convened by cabinet level officials in 
the aftermath of terrorist attacks against U.S. military forces 
or diplomatic facilities. These investigations have reviewed 
the attacks both to determine whether particular individuals 
were at fault and to evaluate our vulnerability to future 
terrorist attacks.
    Typically, temporary national commissions are tasked with 
gathering information and assessing it to provide Congress, the 
President, and the American people with findings, conclusions, 
and recommendations regarding the matters they have been called 
upon to scrutinize. Information may be gathered through 
hearings, field investigations, compulsory process, interviews, 
affidavits, and other forms of collection. Commission staff and 
special consultants, trained in legal, scientific, and other 
analytical capabilities, assist the commission members with 
assessing the information that has been obtained and preparing 
findings, conclusions, and the preparation of recommendations. 
As this process continues, commission members deliberate over 
the conduct of the panel's work and seek to build consensus for 
its end products. Ultimately, the offerings of the commission 
gain public acceptance from a combination of factors: the 
prestige of the commission members, a strong consensus of 
support for the commission's final report by its members, the 
transparency and thoroughness of the commission's inquiry, and 
the logic and research underlying the panel's findings, 
conclusions, and recommendations.
    Such commissions are an instrument for conducting a 
comprehensive, but not an exclusive, examination of events. 
Commissions usually work cooperatively with others 
investigating some of the same matters. This may mean 
proactively sharing information or assuring that the 
commission's staff do not compromise law enforcement, judicial, 
or other proceedings paralleling the commission's inquiry. 
While a commission conducts a comprehensive examination of 
events, congressional oversight committees and subcommittees 
may probe related issues within their respective jurisdictions.

Pearl Harbor investigations

    In the aftermath of the December 7, 1941, attack on United 
States military installations at Pearl Harbor in the Hawaiian 
Islands, four major panels were established to conduct 
investigations of that event. The first of these entities was 
created on December 18, 1941, by E.O. 8983, ``to ascertain and 
report the acts relating to the attack.'' The President's 
chartering order named Supreme Court Associate Justice Owen J. 
Roberts as chair and two retired Navy admirals and two retired 
Army generals as members of the panel. After interviewing 127 
witnesses in Washington and Hawaii, the commission concluded 
its work on January 23, 1942, when it presented its report of 
findings--placing responsibility for the disaster with the 
senior Army and Navy commanders in Hawaii--to the President.
    The Roberts Commission was followed by three additional 
inquiries. On June 13, 1944, the President signed S.J. Res. 
133, directing the Secretary of War and the Secretary of the 
Navy ``to proceed forthwith with an investigation into the 
facts surrounding the [Pearl Harbor] catastrophe.'' The Army 
Pearl Harbor Board was in continuous session from July 24, 
1944, to October 20, 1944, conducting a fact-finding 
investigation; the board heard a total of 151 witnesses. It 
assessed responsibility over a wider spectrum than did the 
Roberts report, and placed its findings in the context of 
United States relations with Japan before December 7, 1941. The 
Navy Court of Inquiry on the Pearl Harbor attack convened on 
July 24, 1944 and concluded its inquiry on October 19, 1944. An 
additional investigation ordered by the Navy was conducted 
during May 2, 1945, to July 12, 1945. The Navy's inquiry 
concentrated on the guilt or innocence of the interested 
parties and did not analyze as comprehensively the background 
of the attack or assess the responsibilities of Washington 
    With S. Con. Res. 27 of September 11, 1945, Congress 
mandated the Joint Committee on the Investigation of the Pearl 
Harbor Attack to ``make a full and complete investigation of 
the facts relating to the events and circumstances leading up 
to and following the attack made by Japanese armed forces upon 
Pearl Harbor.'' Chaired by Senator Alben W. Barkley (D-KY), the 
panel was composed of five Senators and five Representatives, 
three Democrats and two Republicans in each case. It held 
hearings between November 11, 1945, and May 31, 1946, and 
reviewed the work of the Roberts Commission and Army and Navy 
panels investigating the Pearl Harbor attack. The bipartisan 
majority report of the committee, supported by eight members of 
the panel, blamed the American performance at Pearl Harbor on 
the national defense system.

Kennedy assassination investigation

    The thirty-fifth President of the United States, John 
Fitzgerald Kennedy, was shot on November 22, 1963, while riding 
in a motorcade through downtown Dallas, TX. President Kennedy 
was fatally wounded; Texas Governor John Connally, riding in 
the same open automobile with the President, Mrs. Kennedy, and 
his own wife, was injured. Lyndon Johnson took the presidential 
oath that afternoon. One week later, on November 29, the new 
President issued E.O. 11130 creating ``a Commission to 
ascertain, evaluate and report upon the facts relating to the 
assassination of the late President John F. Kennedy and the 
subsequent violent death of the man charged with the 
assassination.'' The order explicitly named Supreme Court Chief 
Justice Earl Warren as the chair of the panel with Senator 
Richard B. Russell (D-GA), Senator John Sherman Cooper (R-KY), 
Representative Hale Boggs (D-LA), Representative Gerald R. Ford 
(R-MI), and two distinguished public servants, Allen W. Dulles 
and John J. McCloy, as members. A White House announcement on 
the creation of the commission indicated that the full 
cooperation of all federal agencies was expected.
    To assist the panel in its investigation, Congress, by 
joint resolution, vested it with subpoena power on December 13, 
1963. By this time, the Warren Commission had already convened, 
holding its first meeting on December 5. During the month and 
into early January, the commission, by its own account, 
``received an increasing volume of reports from Federal and 
State investigative agencies.'' Among the most detailed and 
comprehensive were those of the Federal Bureau of Investigation 
and the U.S. Secret Service.

          Beginning November 22, 1963, the Federal Bureau of 
        Investigation conducted approximately 25,000 interviews 
        and reinterviews of persons having information of 
        possible relevance to the investigation and by 
        September 11, 1964, submitted over 2,300 reports 
        totaling approximately 25,400 pages to the Commission. 
        During the same period the Secret Service conducted 
        approximately 1,550 interviews and submitted 800 
        reports totaling some 4,600 pages.

    In addition to reviewing relevant documentation, the Warren 
Commission, beginning on February 3, 1964, received the 
testimony of 552 witnesses. ``Of this number,'' the panel 
subsequently reported, ``94 appeared before members of the 
Commission; 395 were questioned by members of the Commission's 
legal staff; 61 supplied sworn affidavits; and 2 gave 
statements.'' Unless an open hearing was requested by a 
witness, these proceedings were closed to the public, with the 
result that the testimony of one witness was taken in a public 
hearing on two occasions. Presenting its report and 26 volumes 
of appendices to President Johnson on September 24, 1964, the 
Warren Commission made an exhaustive investigation and found no 
evidence of conspiracy in the assassination of President 

Commissions reviewing national security issues

    A number of recent commissions have demonstrated an ability 
to probe highly sensitive national security issues and issue 
reports demonstrating a consensus among their members. Several 
of the reports, such as those of the National Commission on 
Terrorism and the Hart-Rudman Commission, appear prescient when 
read in light of the attacks of September 11. Reports can also 
have a significant impact on policy makers, as did the Rumsfeld 
Commission, which reported that the threat posed by the 
proliferation of ballistic missile technology was much greater 
than had been previously believed.
    The National Commission on Terrorism was chartered by 
provisions of the Omnibus Appropriations Act for FY1999 to 
review counter-terrorism policies regarding the prevention and 
punishment of international acts of terrorism directed at the 
United States. The ten-member panel was composed of former 
diplomats, international relations experts, international trade 
and finance experts, a retired army general officer, a former 
Director of Central Intelligence, and a former member of the 
House. Reporting in June 2000, the commission recommended 
immediate reinvigoration of the collection of intelligence 
about terrorists' plans, the use of all available legal avenues 
to disrupt and prosecute terrorist activities and private 
sources of support, and greater efforts to ensure that federal, 
state, and local officials are prepared for attacks that may 
result in mass casualties. In brief, the commission conducted a 
comprehensive assessment that provided an understanding of the 
strengths and weaknesses of the U.S. counter-terrorism system. 
Although legislative efforts to enact the commission's major 
recommendations began immediately, the tragedy of the September 
11 attacks has provided new momentum towards implementing 
    The Commission on National Security/21st Century was 
established by the Secretary of Defense in September 1999 to 
conduct a comprehensive review of the early 21st century global 
security environment; develop a comprehensive overview of 
American strategic interests and objectives for the security 
environment the nation likely will encounter in the 21st 
century; delineate a national security strategy appropriate to 
that environment and the nation's character; identify a range 
of alternatives to implement the national security strategy; 
and develop a detailed plan to implement the alternatives. Co-
chaired by former Senators Gary Hart and Warren Rudman, the 14-
member panel accomplished its mission with the issuance of 
three sequenced reports, the final one offered in mid-February 
2001. The commission's reports envisioned an emerging security 
environment in which terrorists and rogue nations would acquire 
weapons of mass destruction and ``mass disruption'': 
``Americans will likely die on American soil,'' the commission 
warned, ``possibly in large numbers.''
    The Commission to Assess the Organization of the Federal 
Government to Combat the Proliferation of Weapons of Mass 
Destruction was mandated by the Intelligence Authorization Act 
for FY1997. To carry out its charge to conduct a thorough study 
of the organization of the federal government with respect to 
combating the proliferation of weapons of mass destruction, the 
commission reviewed the efforts of individual agencies, 
evaluated the mechanisms by which the interagency process 
develops policy alternatives and reaches decisions on 
government-wide policies and programs to combat proliferation, 
and scrutinized the management of resource allocation. Among 
its findings, the Commission highlighted the grave danger that 
weapons of mass destruction would fall into the hands of 
terrorist groups, and recommended a number of changes in the 
way the government addresses the issue.
    As these commissions illustrate, the reports of such 
panels, including those dealing with sensitive information, are 
usually expected to be public documents. However, in view of 
the subject matter of a commission, its reliance upon 
classified information to prepare its report, and the 
specificity of recommendations regarding a sensitive policy 
area, strategy, or practice, some protection may need to be 
exercised. A report might be issued publicly with non-public 
annexes; a report might be issued in public and confidential 
versions; a report might be issued publicly with unacknowledged 
confidential communiques to congressional leaders, the 
President, or executive branch officials; or a summary of a 
secret report might be issued publicly.

Inquiries into terrorist attacks--lessons learned: Beirut to U.S.S. 

    In the last two decades, investigative panels were convened 
in the aftermath of terrorist attacks against a U.S. Marine 
barracks at Beirut International Airport in Lebanon (1983), a 
U.S. Air Force billeting facility at Khobar Towers in Saudi 
Arabia (1996), U.S. Embassies in Nairobi, Kenya and Dar es 
Salaam, Tanzania (1998), and a U.S. Navy destroyer (the U.S.S. 
Cole) in the port of Aden, Yemen (2000). All four commissions 
were convened by cabinet level officials, three by the 
Secretary of Defense and one (the Kenya-Tanzania panel) by the 
Secretary of State. All four were headed by retired military 
officers of four star rank or retired diplomats of 
ambassadorial rank. Other members included U.S. officials, both 
retired and active, and in some cases private citizens with 
particular expertise.
    Although these inquiries were not Congressionally 
chartered, in several respects they represent a precedent for 
the national commission that will be created under S. 1867. 
Most importantly, the convening of investigative panels in 
these cases is a recognition of the value of immediately 
reviewing terrorist attacks. The panels were seen as providing 
vital information about possible vulnerabilities to terrorism 
which could be corrected. The investigative panels were 
established to operate without governmental interference or 
pressure, and they were led by distinguished retired officers 
and officials. Finally, the panels and their sponsoring 
agencies released the investigations' findings and conclusions.
            DOD Commission on Beirut International Airport Terrorist 
                    Act (Long Commission)
    On October 23, 1983, a truck bomb explosion detonated by a 
suicide bomber destroyed a U.S. Marine barracks at Beirut 
International Airport in Lebanon, killing 241 and injuring 78 
U.S. Armed Forces personnel. The Marines were part of a 
multinational force originally sent to Beirut to supervise an 
orderly evacuation of Palestinian guerrillas after the Israeli 
invasion of Lebanon in 1982. U.S. force contingents had the 
added mission of bolstering a pro-Western Lebanese government. 
The State Department now suspects that the suicide bomber 
belonged to Hizballah, an extremist pro-Iranian Shi'ite Muslim 
group seeking to overthrow the Lebanese government or alter its 
policies and to expel western military forces.
    On November 7, 1983, Secretary of Defense Caspar Weinberger 
established a five member commission under retired Navy Admiral 
Robert L. J. Long ``to conduct a thorough and independent 
inquiry into all of the facts and circumstances'' surrounding 
the attack. Specifically, the commission was directed to 
examine rules of engagement and security measures in force at 
the time of the attack; to assess the adequacy of security 
measures adopted after the attack; and to report findings and 
make recommendations. The commission's report, which it 
submitted to the Secretary of Defense on December 20, 1983, is 
unclassified, and it was released by the White House on 
December 29, 1983. Many of the interviews conducted by the 
commission contained classified information which presumably 
exists in back-up files. Also, because some of the information 
it obtained was time sensitive, the commission forwarded two 
interim memoranda, respectively, to the Secretary of Defense 
and the Chairman of the Joint Chiefs of Staff. These memoranda 
dealt mainly with urgent security measures.
    In drawing its conclusions, the commission critiqued a wide 
range of topics, including inconsistencies in the military 
mission, lack of a single set of rules of engagement, problems 
in the operational chain of command, lack of timely 
intelligence, inadequate security measures, and some 
deficiencies in medical planning. At the same time, it praised 
the quick responses of many individuals, especially in 
emergency evacuation and medical care. Of note, the commission 
concluded that the U.S. force in Lebanon was not trained, 
organized, staffed, or supported to deal with the current 
terrorist threat and added that ``much needs to be done to 
prepare U.S. military forces to defend against and counter 
            Downing Assessment Task Force (Khobar Towers Task Force)
    On June 25, 1996, a truck bomb estimated to contain between 
3,000 and 8,000 pounds of explosives destroyed the Khobar 
Towers apartment complex near Dhahran, Saudi Arabia, killing 19 
U.S. Air Force personnel and injuring over 500. At the time, 
Khobar Towers housed U.S. Air Force personnel supporting allied 
overflights over southern Iraq (Operation Southern Watch). On 
June 28, 1996, Secretary of Defense William J. Perry appointed 
retired Army General Wayne A. Downing ``to conduct an 
assessment of the facts and circumstances surrounding the 
Khobar Towers bombing.'' The panel director, General Downing, 
assembled a task force composed of active and retired military 
personnel, Defense Department civilians, and representatives 
from other U.S. Government agencies including the Departments 
of State and Energy and the FBI. Members of the panel were 
qualified in various specialties and disciplines including 
intelligence, counterintelligence, terrorism, force protection, 
physical and operational security, explosives, programming and 
budgeting, command relationships, training and medical matters, 
and Middle East studies.
    The Downing Task Force conducted its investigation in two 
phases: (1) research and analysis of reports prepared after 
previous terrorist acts in the region (including the Long 
Commission) together with other pertinent documentation; and 
(2) personal interviews, supplemented by on-site assessments. 
General Downing submitted the report of the Task Force to the 
Secretary of Defense on August 30, 1996. The bulk of the report 
was released; however, six of its findings were deleted in 
whole or in part from the published version because of their 
security classification. The report of the Task Force contains 
26 findings and 79 related recommendations. The report grouped 
these into general conclusions, including a comprehensive 
approach to force protection is required, division of 
responsibility between the Departments of State and Defense 
does not provide U.S. forces adequate protection, and the 
intelligence community provided warning of the potential for a 
terrorist attack.
            Accountability Review Boards on the Embassy Bombings (Crowe 
    Near simultaneous vehicular bombings of the U.S. Embassies 
in Nairobi, Kenya and Dar es Salaam, Tanzania on August 7, 
1998, killed 213 persons including 12 U.S. Government employees 
and family members and injured more than 5,000 others. On 
October 5, 1998, Secretary of State Madeleine Albright convened 
two Accountability Review Boards to review the circumstances of 
the August 7 bombings in Kenya and Tanzania, respectively. The 
boards were charged with examining whether the incidents were 
security related; whether security systems and procedures were 
adequate and implemented properly; the impact of intelligence 
and information availability; whether any U.S. Government 
civilian employees or military personnel breached their duties 
in connection with the bombings; and any other circumstances 
that might affect security management of U.S. missions abroad. 
Because of the similarity of their missions, the two boards 
were combined under a single chairman and submitted a combined 
    Members of the Accountability Review Boards were selected 
by Secretary of State Madeleine Albright and Director of 
Central Intelligence George Tenet. Retired Admiral William J. 
Crowe, Jr. was named chairman for both Boards. Each of the two 
component Boards, the Nairobi Board and the Dar es Salaam 
Board, consisted of five members, including four ambassadors 
(three of them retired) and other representatives of the public 
and private sectors. The Boards also drew on the expertise of 
outside specialists, particularly in the fields of terrorism 
and national security. The Boards completed an extensive review 
of available information in Washington, and conducted further 
reviews in Nairobi and Dar es Salaam, respectively. Board 
members interviewed over 110 persons from the Department of 
State, the military services, and the two U.S. embassies 
targeted by the attacks. In addition, Board members were 
briefed by representatives of the Department of Justice, FBI, 
CIA, and the National Security Agency.
    The Accountability Review Boards produced a single report 
consisting of a combined executive overview and two individual 
reports dealing with the attacks in Nairobi and Dar es Salaam, 
respectively. The report, which was submitted to Secretary of 
State Albright on January 8, 1999, was released as an 
unclassified document following some deletions from the 
classified version on grounds of security. In its executive 
overview, the report of the Accountability Review Boards 
contains 21 recommendations to improve security systems and 
procedures at U.S. missions abroad and three more 
recommendations to enhance the flow of needed intelligence. The 
Boards did not find that any U.S. officials breached their 
duties in connection with the bombings, but did determine that 
there was a collective failure by several Administrations and 
Congresses over the past decade to reduce the vulnerability of 
U.S. diplomatic missions.
            DOD U.S.S. Cole Commission
    On October 12, 2000, a small boat laden with explosives 
rammed the U.S. Navy guided missile destroyer Cole, which was 
refueling in the port of Aden, Yemen, killing 17 sailors and 
injuring 39. On October 19, 2000, Secretary of Defense William 
S. Cohen appointed two senior U.S. military officers (one 
retired and one about to retire) to lead a review of the 
lessons learned from the attack. Their panel, generally known 
as the Cole Commission, was directed to review applicable 
Defense Department policies and procedures and address force 
protection matters, rules of engagement, logistical support 
intelligence and counter-intelligence efforts, and any other 
pertinent topics. The Cole Commission's review was to be 
conducted separately but in coordination with an FBI 
investigation designed to identify the perpetrators of the 
attack and with internal Navy reviews of the preparations by 
the Cole for the Aden refueling stop.
    The co-chairmen submitted their report to the Secretary of 
Defense on January 9, 2001. An unclassified version of the 
report, consisting of the executive summary, was released at 
that time; other parts of the report were classified. The 
report found significant shortcomings in security throughout 
the region and recommended improvements in training and 
intelligence designed to deter future terrorist attacks. With 
regard to training, for example, the Commission concluded that 
U.S. military forces need to develop rigorous anti-terrorism 
and force protection training programs and integrate them into 
unit-level training plans and pre-deployment exercises. With 
regard to intelligence, the Commission concluded that the 
Defense Department does not allocate sufficient resources, 
analysis, and collection efforts to combating terrorism.

 congressional hearings and investigations related to the september 11 

    Since the September 11 terrorist attacks, a number of 
Congressional committees have held hearings examining the 
terrorist threat from different perspectives. These have 
included hearings into border security and visa reform, 
aviation security, protection of critical infrastructure, 
bioterrorism, tracing terrorist funds, and the international 
implications of the war on terrorism. There has also been one 
Congressional inquiry launched specifically to examine the 
activities of the intelligence agencies with respect to the 
September 11 terrorist attacks. In each case, the committees 
are probing areas within their jurisdictions and areas of 
expertise. Congress has not established a special inquiry or 
panel to conduct a comprehensive examination of the September 
11 terrorist attacks.
    On February 14, 2002, the chairs and ranking members of the 
Senate Select Committee on Intelligence and the House Permanent 
Select Committee on Intelligence announced that the committees 
would conduct a joint inquiry into the intelligence community's 
activities before, during, and since the September 11, 2001 
terrorist attacks. In a statement issued that day, the Senate 
Chairman, Senator Bob Graham, indicated that the purpose of the 
inquiry would be ``to identify any systemic shortcomings in our 
intelligence community and fix these problems as soon as 
possible.'' House Chairman Porter Goss concurred in Senator 
Graham's comments and added that the two committees would seek 
``to determine whether previous concerns regarding the 
Intelligence Community's capabilities are viable.'' And Senate 
Vice Chairman Richard Shelby stated that ``[t]he purpose of 
this joint investigation is to explain why the Intelligence 
Community failed to warn us of the attacks on September 11.''
    On March 7, 2002, the House of Representatives passed a 
resolution providing additional funding for the Permanent 
Select Committee on Intelligence to conduct its inquiry. 
Several speakers again emphasized that the joint inquiry was to 
focus on the activities of the intelligence community. 
Representative Bob Ney, Chairman of the Committee on House 
Administration, in bringing the resolution before the House, 
explained that the chief purposes of the joint inquiry were 
``ascertaining why the intelligence community did not learn of 
the conspiracy to launch the September 11 attacks in advance 
and to identify what, if anything, might be done to better 
position the intelligence community to warn of and prevent 
future terrorist attacks and other threats in the 21st 
Century.'' \3\ Representative Nancy Pelosi, Ranking Democrat of 
the House Permanent Select Committee on Intelligence, defined 
the limits of the inquiry:
    \3\ Remarks of Rep. Bob Ney of New Jersey, Congressional Record, 
March 7, 2002, at H 768.

          The performance of the intelligence agencies is an 
        essential part of the September 11 story, and it is the 
        responsibility of the House and Senate intelligence 
        committees to thoroughly assess that performance * * *
          It should be made clear that, although we intend for 
        this inquiry to be comprehensive as far as the 
        intelligence agencies are concerned, it will not be 
        exhaustive of all the issues surrounding the September 
        11 attacks. Other committees may want to examine 
        matters within their jurisdiction and, at some point, 
        it may be appropriate to consider the creation of an 
        entity outside of Congress to take an across the board 
        look at all the components of the September 11 
    \4\ Remarks of Rep. Nancy Pelosi of California, Congressional 
Record, March 7, 2002, at H 769.

                        III. Legislative History

    S. 1867 was introduced on December 20, 2001, by Senators 
Lieberman and McCain, and referred to the Committee on 
Governmental Affairs. The bill was subsequently co-sponsored by 
Senators Dorgan, Cleland and Miller. Senator Torricelli, who 
had introduced similar legislation, co-sponsored S. 1867 after 
an amendment at mark-up reconciled the two approaches. Senator 
Grassley, an original co-sponsor of Senator Torricelli's 
legislation, also co-sponsored S. 1867 after the mark-up.

                           COMMITTEE HEARING

    On February 7, 2002, the committee held a hearing on S. 
1867. The Committee heard testimony from the following four 
          Norman Augustine, Chairman of the Executive 
        Committee, and former Chief Executive Officer, Lockheed 
        Martin Corporation; former Commissioner, United States 
        Commission on National Security;
          Professor Richard K. Betts, Director, Institute of 
        War and Peace Studies, Columbia University; former 
        Commissioner, National Commission on Terrorism;
          The Honorable Dave McCurdy, President, Electronic 
        Industries Alliance; former Commissioner, Commission to 
        Assess the Organization of the Federal Government to 
        Combat the Proliferation of Weapons of Mass 
        Destruction; and former U.S. Representative and Chair 
        of the House Intelligence Committee; and
          Maurice Sonnenberg, Senior International Adviser, 
        Bear, Stearns & Co., Inc.; former Vice Chair, National 
        Commission on Terrorism.
    In addition the Committee received a statement submitted by 
Dr. James Schlesinger, former Commissioner, United States 
Commission on National Security. Dr. Schlesinger has served as 
Director of the Central Intelligence Agency, Secretary of 
Defense, and Secretary of Energy under three Presidential 
    All of the witnesses supported the establishment of a 
national commission along the lines described in S. 1867 to 
investigate the terrorist attacks of September 11. The 
witnesses discussed important unanswered questions related to 
the attacks, questions that require further investigation and 
analysis so that the nation would be better able to defend 
itself against terrorism in the future. The witnesses also 
discussed why an independent national commission would serve a 
unique function in the analysis of the terrorist attacks. 
Finally, witnesses recommended a few changes to the bill's 

Unanswered questions

    The witnesses discussed a number of unanswered questions 
that surround the circumstances of the September 11 attacks. 
These questions related to the underlying facts and to the need 
to use that information to enhance our defenses against future 
terrorism. For example, Congressman McCurdy listed a series of 
important issues that need to be addressed, including the 
responsibility and accountability at each level of the chain of 
command, organizational impediments to effective gathering and 
dissemination of intelligence, coordination between agencies, 
and standards for security in the airline industry. Congressman 
McCurdy noted that nothing must interfere with the war against 
terrorism, but added:

          Nevertheless, the requirements of this ongoing war 
        must be balanced with the right of Americans to know 
        why our intelligence, defense and law enforcement 
        agencies were unable to prevent the attacks. Without 
        question, now is not the time to point fingers or look 
        for scapegoats. But we must understand the causes, 
        identify the weaknesses, and correct the lapses that 
        allowed this catastrophe to occur. The American people 
        deserve a forthright and complete accounting of the 
        circumstances of that day. Above all, we must do all we 
        can to ensure that such an attack never happens again.

    Professor Betts discussed the unanswered questions 
surrounding the attacks, as well as the role an independent 
commission would play in addressing these issues:

          It is painfully obvious that a lot went wrong before 
        September 11 in how the U.S. government coped with the 
        potential for catastrophic terrorist attacks. The 
        intelligence system did not get sufficient warning of 
        the plot; the border control and immigration systems 
        did not keep out or keep track of dangerous visitors; 
        security arrangements for air travel failed to 
        intercept the hijackers or keep them from gaining 
        control of the planes; and more. Because of the 
        classification of information and, perhaps, some plain 
        confusion, we do not yet have a full and integrated 
        picture of exactly what went wrong. There will be many 
        rumors and half-truths leaking out to explain why the 
        warning process failed, how organizational structures 
        were unprepared, and so forth. There is great need for 
        an official post-mortem that brings the full story out 
        in a thorough, careful, balanced, and non-partisan 
          The main benefit of a national commission to examine 
        the tragedy of the September 11 attacks would be 
        political credibility. A commission of the sort 
        described in S. 1867 would be ideally constituted to 
        provide a detailed and sober investigation that the 
        public could have confidence is as objective as humanly 
        possible. In the next few years there will inevitably 
        be many exercises attempting to explain the events and 
        to lay blame for failure to prevent them. It is 
        important to have one serious effort that has high 
        credibility in terms of two important criteria: access 
        to all relevant information, and disinterest in scoring 
        political points. A commission with adequate authority 
        and with members of the sort envisioned in Section 3(c) 
        of the bill would be well positioned to accomplish this 

    Similarly, Dr. James Schlesinger wrote in his submitted 
statement that ``[t]he country needs an authoritative review 
regarding how our own attitudes, habits, laws, and 
organizations may have contributed to the stunning 
effectiveness of the terrorist attacks.'' Dr. Schlesinger's 
statement focused on intelligence, airport security, and 
immigration, among other areas, that need to be addressed: 
``The purpose of a National Commission would be systematically 
and comprehensively to address such questions--and to give a 
complete public accounting of the events leading up to 9-11.''

The role of a commission

    Congressman McCurdy testified that an independent 
commission would have to complement, rather than compete with, 
the investigations of the numerous Congressional committees 
that might have relevant oversight jurisdiction. And he also 
testified that commissions play a role different than that of 
an investigating committee:

          [A] commission has the advantage of being 
        independent, singularly focused and able to work 
        outside the glare of the media. * * *
          In my experience, commissions work because they are 
        not constrained by arbitrary jurisdiction or turf-wars 
        and thus have the ability to step back and take a more 
        holistic view. In this instance, a commission can 
        objectively collect facts, evaluate the evidence and 
        review the mission and effectiveness of the federal, 
        state, local and private organizations charged with our 
        safety. Commissions are valuable because they are 
        generally non-partisan and, when effectively chaired, 
        seek consensus based recommendations and solutions. 
        Operating an effective commission on the September 11 
        attacks will not be an easy task, but there already has 
        been much valuable forensic work performed by the 
        intelligence community, law enforcement and the media 
        to build upon.

    Professor Betts agreed that the commission should 
complement other inquiries:

          Neither presidential nor congressional commissions 
        ever completely settle the questions with which they 
        are tasked. That is because questions important enough 
        to provoke creation of a prestigious commission are 
        necessarily so important that all centers of political 
        power have to get their own oars in on them. That is as 
        it should be in a democracy. Moreover, other efforts, 
        particularly congressional investigations, can do 
        things that a commission cannot do effectively. On a 
        matter as crucial as September 11, some redundancy in 
        investigation is not only unavoidable, it is useful.

    And Mr. Augustine testified that the commission would be 
most valuable ``if those involved in the Commission's work are 
able to take a forward-looking perspective coupled with a broad 
view of lessons to be learned which can impact our future 

Recommended changes

    Several of the hearing witnesses also suggested 
modifications to S. 1867. For example, several witnesses 
discussed the importance of ensuring that commission meetings 
could be closed to the public when necessary. Senator Lieberman 
noted that existing law allowed commission meetings to be 
closed to the public whenever the meetings would disclose 
classified material, or information compiled for a criminal 
investigation. The Federal Advisory Committee Act covered the 
commissions on which the witnesses had served, and, as 
Congressman McCurdy and Mr. Sonnenberg noted, had not precluded 
their commissions from closing all of their meetings to the 
public. Nevertheless, Mr. Augustine suggested that the 
legislation provide extra flexibility in case the commission 
wished to discuss unclassified issues that would nevertheless 
be sensitive; for example, the commission might wish to 
``hypothesize future threats and discuss them, to discuss 
vulnerabilities that we have.'' Other witnesses agreed that 
holding public meetings might in some cases inhibit frank 
discussion. Mr. Sonnenberg and Professor Betts suggested that 
public hearings might be more appropriate in the latter stages 
of the commission's investigation.
    Professor Betts also questioned whether the original 
legislation, as drafted, included the most appropriate 
appointment process for achieving a balanced commission 
membership. As introduced, S. 1867 provided that the 10 
commission members selected by Congress would be named by ten 
designated House and Senate committee chairmen. Professor Betts 
noted the importance, as required by the bill, of ``balanced 
representation not only of parties, but of experience and 
professional backgrounds, and that all members be genuinely 
accomplished leaders in their fields.'' Professor Betts 
testified that such a balance would be more likely if there 
were greater concentration of the appointing power; he 
suggested amending the bill to give the final appointment 
authority to the House and Senate leadership.

                           Committee Mark-up

    The Committee met on March 21, 2002, to consider S. 1867. 
An amendment offered by Senators Lieberman, Torricelli and 
McCain was adopted by voice vote. In part, the changes were 
made to reconcile differences between S. 1867 and similar 
legislation introduced by Senator Torricelli, S. 1837. After 
the mark-up, Senator Torricelli co-sponsored S. 1867. Other 
changes resulted from suggestions made by witnesses who 
testified before the Committee, and by others. The amendment 
incorporated four substantive changes to the bill's text.
    Composition of the Commission.--As introduced, S. 1867 
provided that the 10 commission members selected by Congress 
would be named by ten designated House and Senate committee 
chairmen, in consultation with the ranking members of the 
committees. S. 1837 provided that members of the commission 
would be selected by the Congressional leadership. Under the 
amendment, ten designated Congressional committee chairmen, in 
consultation with the ranking members, will each nominate three 
candidates for the commission. The leadership from the House 
and Senate, in consultation with the minority leaders, will 
each appoint five commission members from the nominated 
candidates. This change allows the Congressional leadership to 
ensure that the commission will have the necessary balance, 
while still preserving a role for committees with relevant 
    Mandate of the Commission.--The commission will have 
discretion as to how to focus its investigation, but the 
amendment specifically listed several possible areas of 
inquiry: intelligence agencies; law enforcement agencies; 
diplomacy; immigration, non-immigrant visas, and border 
control; the flow of assets to terrorist organizations; and 
commercial aviation. The amendment also makes clear that the 
commission's investigation need not be limited to the actions 
and policies of the federal government; it can also review 
facts and circumstances related to the private sector and state 
and local governments.
    Enforcement of Subpoenas.--The amendment provided an 
additional means of enforcing subpoenas. As introduced, S. 1867 
authorized the commission to pursue a criminal contempt of 
Congress citation under 2 U.S.C. 192 and 194 (2000). Because 
that mechanism may not be adequate or appropriate in most 
circumstances, the amendment provided an alternative course of 
action: bringing a civil action in a United States District 
    Closed Meetings.--The amendment included a provision 
allowing commission meetings to be closed to prevent the 
disclosure of matters that could endanger national security. 
The new language was added in response to concerns that matters 
potentially useful to terrorists, but not covered by the 
exceptions to the Federal Advisory Committee Act, would not be 
shielded from disclosure.
    On the same date the Committee ordered the bill reported, 
as amended, by voice vote, with no members present dissenting. 
Senators present were Levin, Akaka, Cleland, Thompson, Stevens, 
Voinovich, Cochran, Bennett and Lieberman.

                    IV. Section-by-Section Analysis

                Section 1.--Establishment of Commission

    Section 1 establishes the National Commission on Terrorist 
Attacks Upon the United States as an independent commission.

                          Section 2.--Purposes

    Section 2 states the purposes of the commission. They are 
to examine and report upon the facts and causes relating to the 
terrorist attacks of September 11, 2001; ascertain, evaluate, 
and report on the evidence developed by all relevant 
governmental agencies regarding the facts and circumstances 
surrounding the attacks; make a full and complete accounting of 
the circumstances surrounding the attacks, and the extent of 
the United States' preparedness for, and response to, the 
attacks; and report to the President and Congress on its 
findings, conclusions, and recommendations for corrective 
measures that can be taken to prevent acts of terrorism.

               Section 3.--Composition of the Commission

    Section 3 specifies that the commission shall have 14 
members. Four of the members shall be appointed by the 
President, one of whom shall be designated the chair. The 
remaining ten appointments are allocated to the Congressional 
leadership. No more than seven members of the commission may be 
affiliated with any one political party. Commission members may 
not be an officer or employee of the federal government or any 
state or local government. Vacancies in the commission are 
filled in the same manner as the original appointment.
    The Speaker of the House and the Senate Majority leader 
will make their selections from a pool of candidates created by 
committee chairmen. In the Senate, the chairs of five 
committees (Armed Services; Commerce, Science, and 
Transportation; Judiciary; Intelligence; and Foreign 
Relations), in consultation with the respective ranking 
members, shall each nominate three candidates for the 
commission. The Senate majority leader, in consultation with 
the minority leader, will then appoint five members for the 
commission from among the fifteen candidates. Similarly, the 
Speaker of the House, in consultation with the minority leader, 
will appoint five members from among fifteen candidates 
nominated by five designated committee chairs and ranking 
members. The Committee intends that the consultation between 
committee chairs and ranking members, between the Senate 
majority leader and minority leader, and between the Speaker of 
the House and House minority leader, shall be meaningful.
    The ten House and Senate committees involved in the 
nomination process were included because aspects of their 
jurisdictions are relevant to questions the commission may be 
investigating. The committee leaders are therefore in a good 
position to suggest candidates who could make valuable 
contributions. Other committees also have relevant 
jurisdiction, and the list of committees in the bill is not 
intended to suggest that the commission limit its inquiry to 
subject matters covered by the named committees.
    As stated in Section 3(c), individuals appointed to the 
commission should be prominent United States citizens, with 
national recognition and significant depth of experience in 
such professions as governmental service, law enforcement, the 
armed services, legal practice, public administration, 
intelligence gathering, commerce, including aviation matters, 
and foreign affairs. It is the intent of the Committee that the 
findings of the commission will receive greater credibility and 
broader acceptance as a result of the prestige, expertise, and 
independence of its members.
    Section 3(c) also provides that the commission may begin to 
operate if, 60 days after enactment of the legislation, 8 or 
more members of the commission have been appointed. The 
appointed members may hire necessary staff and, if necessary, 
select a temporary chairperson.
    As provided in Section 3(d), after its initial meeting the 
commission shall meet upon the call of the chairperson or a 
majority of the commission's members. Eight members shall 
constitute a quorum, and a vacancy shall not affect the 
commission's powers.


    Section 4 sets forth the functions of the commission. The 
commission will investigate facts and circumstances relating to 
the terrorist attacks. It will evaluate and analyze what it has 
learned. Finally, the commission will issue two reports, 
containing its findings, conclusions, and recommendations.
    The first subsection describes the parameters of the 
commission's investigation. The committee intends that the 
commission has the discretion to focus its investigation within 
the parameters listed in section 4, as it may not be possible 
or desirable to fully explore all avenues. Most broadly, the 
commission is directed in section 4(1)(A) to investigate 
relevant facts and circumstances relating to the terrorist 
attacks of September 11, 2001, including the bearing and 
significance of any relevant legislation, Executive order, 
regulation, plan, practice, or procedure on the occurrence of 
these events. The commission is given the discretion to 
determine which facts are relevant and should be investigated, 
and which policies and actions of the federal government are 
relevant. The committee generally intends that the commission's 
investigation of the terrorist attacks will shed light on how 
and why the terrorist attacks succeeded, and what steps were 
taken to mitigate the damage once the attacks occurred. This 
may include a broad examination of the nation's efforts to 
detect, prevent and respond to terrorist attacks.
    Section 4(1)(B) lists specific areas the commission may 
investigate. These include intelligence agencies; law 
enforcement agencies; diplomacy; immigration, nonimmigrant 
visas, and border control; the flow of assets to terrorist 
organizations; commercial aviation; and other areas of the 
public and private sectors deemed relevant by the commission. 
This list of issues represents possible areas of inquiry. It 
also makes clear that the commission's investigation need not 
be limited to the actions and policies of the federal 
government; it can also review facts and circumstances related 
to the private sector and state and local governments. For 
example, the commission may wish to investigate the actions, 
policies, and procedures of private sector entities with 
respect to ensuring the safety of commercial aviation.
    Section 4(2) directs the commission to identify, review, 
and evaluate the lessons learned from the terrorist attacks of 
September 11. Specifically, the commission should review the 
structure, coordination, management policies, and procedures of 
the federal government, and, if appropriate, State and local 
governments and nongovernmental entities, relative to 
detecting, preventing, and responding to terrorism. Here, the 
commission has the opportunity to assess the adequacy of 
existing arrangements to counter terrorist threats.
    Section 4(3) directs the commission to submit to the 
President and Congress reports containing such findings, 
conclusions, and recommendations as the commission shall 
determine, including proposing organization, coordination, 
planning, and management arrangements, procedures, rules, and 


    Section 5(a) provides the commission with the power to hold 
hearings and meetings, and take testimony under oath, as it 
deems advisable. The commission is authorized to require, by 
subpoena if necessary, the attendance and testimony of 
witnesses at hearings and the production of books, records 
correspondence, memoranda, papers, and documents as it deems 
advisable. Subpoenas may be issued by the chairman of the 
commission, the chairperson of any subcommittee created by the 
commission, or any member designated by a majority of the 
    Subpoenas may be enforced, at the discretion of the 
commission, by means of either of two alternative, but not 
mutually exclusive, courses of action. The first allows the 
commission to bring a civil action applying to a United States 
district court for an order requiring a person who has refused 
to obey a duly issued subpoena to appear at any designated 
place to testify or to produce documentary or other evidence. A 
failure to obey the court's order may be punished as a contempt 
of that court and result in a fine or incarceration until the 
order is obeyed, or both. Alternatively, the commission is 
authorized to pursue a criminal contempt of Congress citation 
under 2 U.S.C. 192 and 194 (2000). Under those provisions, a 
person who has been subpoenaed to testify or produce documents 
before the House or Senate and who fails to do so, or who 
appears but refuses to respond to questions, is guilty of a 
misdemeanor punishable by a fine of up to $100,000 and 
imprisonment for up to one year. A contempt citation must be 
approved by the full House or Senate after a report to it 
detailing the contumacy (or by the presiding officer if 
Congress is not in session). After a contempt has been 
certified by the President of the Senate or the Speaker of the 
House, it is the ``duty'' of the United States attorney ``to 
bring the matter before the grand jury for its action.''
    In exercising its discretion with regard to which course of 
action to take to enforce a subpoena, the commission may decide 
that it is important to secure testimony or the production of 
documents expeditiously and that a civil enforcement action is 
quicker and more effective in achieving these purposes. In 
light of the short reporting deadlines imposed by the bill, it 
is anticipated that most enforcement actions will be undertaken 
by the civil process. In other cases, the commission may decide 
it is important to punish the individual or entity who has 
refused to comply with a commission demand and thereby deter 
violations by others. Moreover, at the end of the commission's 
investigation, a criminal contempt citation may be referred to 
the Department of Justice by the commission through the 
statutory criminal contempt process if the commission deems it 
appropriate, even if civil contempt has previously been sought. 
Such a prosecution for criminal contempt would present no 
double jeopardy problem. In re Chapman, 156 U.S. 211 (1895); 
Yates v. United States, 355 U.S. 66 (1957); United States v. 
Rollerson, 449 F. 2d 1000 (D.C. Cir. 1974).
    Section 5(b) describes the circumstances under which the 
commission may hold closed meetings. Because the commission 
will be governed by the Federal Advisory Committee Act (5 
U.S.C. App.), commission meetings would ordinarily be open to 
the public. Under subsection 10(d) of the Federal Advisory 
Committee Act, meetings could be closed when the President 
determines that the meetings would be likely to disclose 
information falling into one of ten categories listed in 
subsection (c) of section 552b of title 5. These categories of 
information, described in the Freedom of Information Act, 
include classified materials, investigatory records compiled 
for law enforcement purposes, and personal information the 
disclosure of which would constitute an unwarranted invasion of 
personal privacy.
    Section 5(b)(2) provides an additional authority by which 
the commission may close meetings or portions of meetings. It 
provides that the Federal Advisory Committee Act will not apply 
to any portion of a commission meeting if the President 
determines that such portion or portions of that meeting is 
likely to disclose matters that could endanger national 
security. In such an instance, the President and the commission 
shall be required to follow the procedures required under 
section 10(d) of the Federal Advisory Committee Act. Under 
Section 10(d) of that Act, the President's determination would 
be made in writing, and contain the reasons for the 
determination. If such a determination was made, the commission 
would issue a report at least annually setting forth a summary 
of its activities and such related matters as would be 
informative to the public consistent with the policy of title 5 
U.S.C. section 552(b).
    Section 5(d) requires federal departments, agencies, and 
other federal entities, to the extent authorized by law, to 
furnish information directly to the commission upon a duly 
authorized request. Receiving information directly from 
executive agencies will be a vital tool for the commission, 
which itself will have limited resources; cooperation between 
the commission and executive agencies will therefore be 
    Section 5 also provides that the commission may enter into 
contracts. The General Services Administration shall provide 
the commission support and services on a reimbursable basis. 
Other departments and agencies are authorized to support the 
commission. The commission may accept gifts or donations, and 
use the United States mails in the same manner as departments 
and agencies.


    Under section 6(a), the chairperson of the commission is 
authorized to appoint a staff director and other necessary 
staff, and to fix their compensation, without regard to the 
provisions of title 5, United States Code, governing 
appointments in the competitive service, and without regard to 
the provisions of chapter 51 and subchapter III of chapter 53 
of title 5, relating to classification and General Schedule pay 
rates. Pay for commission employees may not exceed the 
equivalent of that payable for a position at level V of the 
Executive Schedule under section 5316 of title 5, United States 
Code. Employees of the commission are to be considered 
employees under section 2105 of title 5, United States Code, 
for purposes of chapters 63 (leave), 81 (compensation for work 
injuries), 83 (retirement), 84 (federal employees' retirement 
system), 85 (unemployment compensation), 87 (life insurance), 
89 (health insurance), and 90 (long-term care insurance).
    Section 6 also provides that federal government employees 
may be detailed to the commission without reimbursement from 
the commission, and that the commission is authorized to 
procure the services of experts and consultants in accordance 
with section 3109 of title 5, United States Code, at rates not 
to exceed the daily rate paid a person occupying a position at 
level IV of the Executive Schedule under section 5315 of title 
5, United States Code.


    Section 7 provides that members of the commission may be 
compensated at rates not to exceed the daily equivalent of the 
annual rate of basic pay in effect for a position at level IV 
of the Executive Schedule under section 5315 of title 5, United 
States Code, for each day during which that member is engaged 
in the actual performance of the duties of the commission. 
Members of the commission shall also be allowed travel 
expenses, including per diem in lieu of subsistence, in the 
same manner as persons employed intermittently in the 
Government service are allowed expenses under section 5703(b) 
of title 5, United States Code.

    Section 8.--Security Clearances for Commission Members and Staff

    Section 8 provides that the appropriate executive 
departments and agencies shall cooperate with the commission in 
expeditiously providing to the commission members and staff 
appropriate security clearances in a manner consistent with 
existing procedures and requirements.

           Section 9.--Reports of the Commission; Termination

    Section 9 provides that the commission shall submit to the 
President and Congress two reports containing those findings, 
conclusions, and recommendations for corrective measures that 
have been agreed to by a majority of commission members. The 
first report shall be submitted not later than 6 months after 
the date of the first meeting of the commission. The second 
report shall be submitted one year after the submission of the 
first report.
    Section 9 also provides that the commission, and all the 
authorities provided under it under the legislation, shall 
terminate 60 days after the second report has been submitted. 
The commission may use this 60-day period to conclude its 
activities, including providing testimony to committees of 
Congress concerning its reports and disseminating the second 

              Section 10.--Authorization of Appropriations

    Section 10 provides that $3,000,000 shall be authorized to 
be appropriated to the commission to carry out its duties, to 
remain available until expended.

                          V. Regulatory Impact

    Paragraph 11(b)(1) of the Standing Rules of the Senate 
requires that each report accompanying a bill evaluate ``the 
regulatory impact which would be incurred in carrying out this 
    The enactment of this legislation will not have significant 
regulatory impact.

                         VI. CBO Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee was provided the 
following cost estimate of the cost of S. 1867, as prepared by 
the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 3, 2002.
Hon. Joseph Lieberman,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1867, a bill to 
establish the National Commission on Terrorist Attacks Upon the 
United States, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts for this 
estimate are Matthew Pickford (for federal costs), Susan Sieg 
Tompkins (for state and local costs), and Paige Piper/Bach (for 
the private-sector impact).
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).

S. 1867--A bill to establish the National Commission on Terrorist 
        Attacks Upon the United States, and for other purposes

    S. 1867 would establish the National Commission on 
Terrorist Attacks Upon the United States. The commission would 
be made up of 14 members appointed by the President and the 
Congress, and charged with analyzing the terrorist attacks of 
September 11, 2001. It would evaluate the evidence developed by 
government agencies regarding the attacks, detail the 
circumstances surrounding the attacks, and report its findings 
to the President and the Congress, including recommendations 
for corrective measures to prevent future acts of terrorism. 
The commission would prepare an initial report within six 
months of its first meeting and a final report a year later. S. 
1867 would authorize the appropriation of $3 million for the 
commission to carry out its duties.
    CBO estimates that implementing S. 1867 would cost about $3 
million over the 2002-2004 period, subject to the availability 
of appropriated funds. Because S. 1867 would authorize the 
commission to accept and spend gifts, which could affect both 
governmental receipts and direct spending, pay-as-you-go 
procedures would apply. CBO estimates that any effect on 
receipts or direct spending would be insignificant.
    S. 1867 would require state, local, or tribal governments 
and entities in the private sector, if subpoenaed, to provide 
testimony and evidence related to matters the commission 
determines to be advisable. Such a requirement would be both an 
intergovernmental and private-sector mandate under the Unfunded 
Mandates Reform Act (UMRA). CBO expects that the commission 
would likely exercise its subpoena power sparingly and that the 
costs to comply with a subpoena would not be significant. Thus, 
CBO estimates that the intergovernmental and private-sector 
cost of the mandate would be below the relevant thresholds 
established by UMRA ($58 million for intergovernmental mandates 
and $115 million for private-sector mandates in 2002, adjusted 
annually for inflation).
    The CBO staff contacts for this estimates are Matthew 
Pickford (for federal costs), Susan Sieg Tompkins (for state 
and local costs), and Paige Piper/Bach (for the private-sector 
impact). This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.


    On March 21, 2002, the Committee on Governmental Affairs 
voted to report S. 1867 as amended. I voted to report S. 1867 
favorably out of the Committee because the bill addresses an 
important issue that the full Senate should have an opportunity 
to consider. The Senate should have the opportunity to evaluate 
and assess the need for an independent commission to review the 
terrorist attacks of September 11. I remain concerned, however, 
about the undefined nature of the mandate of the Commission 
that would be created under the S. 1867.
    The bill would establish a National Commission on Terrorist 
Attacks Upon the United States, which would be given wide 
latitude to investigate any matter relating to the terrorist 
attacks of September 11, including any legislation, policy, 
regulation, plan, practice, or procedure that had a bearing on 
the events that occurred that day. While the legislation does 
suggest potential specific areas for investigation, S. 1867 
vests in the Commission full discretion in determining the 
direction of its inquiry. The legislation also makes clear that 
the Commission's inquiry need not be limited to the actions and 
policies of the federal government; it can also review facts 
and circumstances related to the private sector and state and 
local governments.
    I would have preferred that the Governmental Affairs 
Committee develop a legislative proposal to create a Commission 
to focus solely on the intelligence problems that contributed 
to the events of September 11. The intelligence community had 
both numerous warnings and several prior examples of a 
terrorist attack against symbols of America. Like the rest of 
the federal government, intelligence agencies may have been 
lulled into a false sense of security following its successes 
during the millennium celebrations. Moreover, the intelligence 
community appears to have gravely underestimated the growing 
capabilities of international terrorist networks, despite 
several significant successes such as the bombings of the U.S. 
embassies in Kenya and Tanzania and the bombing of the U.S.S. 
Cole. Moreover, according to public sources, there appear to 
have been warnings received from foreign intelligence services 
since the arrest of Ramzi Yussef, of the possibility of 
suicidal attacks using passenger aircraft.
    Further eroding the effectiveness of the intelligence 
community were the policy decisions made with regard to 
intelligence functions over the last decade. Combined with cuts 
in resources and increases in costs due to modernization, these 
policy decisions may have limited the ability of the 
intelligence community to gather critical information. For 
instance, the regulations for securing the services of 
informants possibly hindered the intelligence community's 
ability to acquire new, vital human intelligence assets.
    I believe an outside investigation could reveal systemic 
problems in the collection, analysis, or dissemination of 
intelligence, or other systemic problems within the 
intelligence community or with its relationship to other 
government entities that contributed to its failure to detect 
and prevent the attacks of September 11. The investigation 
could also provide helpful recommendations for improvement and 
reform that may need to be undertaken in order to prevent 
another such catastrophe.
    Another area that I believe deserves review by an 
independent commission of experts is the foreign policy 
decisions that may have contributed to the events leading to 
the terrorist attacks of September 11. From my view, our 
national policy failed in two principal ways. First, United 
States policy and responses towards state sponsors of terrorism 
have been inadequate. Although our government routinely 
publishes lists of state sponsors of terror and imposes 
economic sanctions on these countries, these measures were not 
taken seriously. In fact, many of our allies scoffed at our 
efforts by continuing to maintain close diplomatic and economic 
ties with state sponsors of terror. Even today, six months 
after the attacks on September 11, many of our European allies 
continue to maintain relations with states such as Iran and 
Syria, which remain on our list of state sponsors of terrorism.
    Second, the United States did not effectively leverage its 
resources to track down and destroy international terror 
networks. Many terrorists moved freely from country to country 
under assumed identities without detection. Indeed, many of the 
terrorists that participated in the attacks on September 11 had 
arrived in the United States without the detection by either 
the FBI or any other domestic security agency. Furthermore, 
many of these terrorists networks received funding from private 
charities that raised money in support of some militant cause. 
Some of this money was even raised in the United States. Our 
policy toward the fund-raising activities of these terrorist 
networks was flawed and proved to be wholly insufficient.
    By creating a commission with so broad a mandate, the 
legislation attempts to study and evaluate too many subjects. 
The effect will be a report that merely skims the surface of 
many significant issues. It would be far better for Congress to 
create one or more commissions with limited scope to get deeply 
into the heart of any subject that needs to be studied for its 
contributions to September 11. I fear this legislation will not 
significantly assist our national evaluation of the causes that 
helped lead to the terrorist attacks and the failures and gaps 
in our policies and government institutions that may have 
contributed to the success of those attacks.

                                                     Fred Thompson.

                     VIII. Changes to Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that the 
legislation is a free standing bill that will make no changes 
to any existing law.