[Senate Report 115-210]
[From the U.S. Government Publishing Office]
Calendar No. 336
115th Congress } { Report
SENATE
2d Session } { 115-210
______________________________________________________________________
REPORTING EFFICIENTLY TO PROPER
OFFICIALS IN RESPONSE TO TERRORISM ACT OF 2017
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1884
TO PROVIDE FOR JOINT REPORTS BY RELEVANT FEDERAL
AGENCIES TO CONGRESS REGARDING INCIDENTS OF TERRORISM, AND FOR OTHER
PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
February 26, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2018
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota KAMALA D. HARRIS, California
STEVE DAINES, Montana DOUG JONES, Alabama
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Elizabeth E. McWhorter, Senior Professional Staff Member
Margaret E. Daum, Minority Staff Director
Stacia M. Cardille, Minority Chief Counsel
Charles A. Moskowitz, Minority Senior Legislative Counsel
Julie G. Klein, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 336
115th Congress } { Report
SENATE
2d Session } { 115-210
======================================================================
REPORTING EFFICIENTLY TO PROPER OFFICIALS IN RESPONSE TO TERRORISM ACT
OF 2017
_______
February 26, 2018.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 1884]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1884) to provide
for joint reports by relevant Federal agencies to Congress
regarding incidents of terrorism, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................5
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............7
I. PURPOSE AND SUMMARY
The purpose of S. 1884, the Reporting Efficiently to Proper
Officials in Response to Terrorism Act of 2017, or REPORT Act,
is to require that an unclassified report on each act of
terrorism that occurs in the United States be provided to
Congress not later than one year after a Federal investigation
of such act concludes. The Federal agency investigating the act
of terrorism shall coordinate with the Department of Homeland
Security (DHS), the Department of Justice (DOJ), the Federal
Bureau of Investigation (FBI), and as appropriate, the National
Counterterrorism Center (NCTC) on such a report. The report
must include the facts of the act of terrorism, identification
of national security gaps that require redress to prevent
similar future acts of terrorism, and recommendations for new
measures law enforcement could implement or changes in law that
could strengthen homeland security and prevent future acts of
terrorism. A public summary of the report must also accompany
the more detailed report for Congress. This reporting
requirement can be waived by the DHS Secretary, the Attorney
General, the FBI Director, or the NCTC Director if that
individual determines that the report could jeopardize an
ongoing investigation or prosecution. In such instances,
Congress must be notified of the waiver before the reporting
requirement deadline.
II. BACKGROUND AND THE NEED FOR LEGISLATION
After-action reviews of terrorist incidents help
policymakers develop evidence-based terrorism prevention
policies and procedures. Reviews of the September 11th attacks,
for example, found ``excessive secrecy interfered with the
detection and prevention of the attacks.''\1\ In 2016, first
responders testified to the Committee during a hearing titled
Frontline Response to Terrorism in America that ``the
information gap still remains,'' which leaves important
partners with an incomplete representation of the threat.\2\
Also during the hearing, former Boston Police Commissioner
Edward Davis suggested that the Federal Government conduct a
regular audit of ``the transfer of information'' that occurs
before terrorist attacks.\3\
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\1\Overclassification and Pseudo-classification: The Impact on
Information Sharing: Hearing Before the Subcomm. On Intelligence,
Information Sharing, and Terrorism Risk Assessment, H. Comm. On
Homeland Sec., 110th Cong., at 3 (Mar. 22, 2007) (https://www.gpo.gov/
fdsys/pkg/CHRG-110hhrg35279/pdf/CHRG-110hhrg35279.pdf).
\2\Frontline Response to Terrorism in America: Hearing Before the
S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016)
(testimony of Mark S. Ghilarducci, Director, California Office of
Emergency Services and the Governor's Homeland Security Advisor)
[hereinafter Frontline Hearing].
\3\Frontline Hearing, supra note 2, (testimony of Edward F. Davis
III, Former Commissioner, Boston Police Department).
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Although agencies typically provide public reports after an
act of terrorism, decisions to conduct such reports are ad hoc
and the timing of their release is not standardized. Agency
reporting timelines after a terrorism incident vary: two months
after Nidal Hasan killed thirteen people at Fort Hood, the
Department of Defense published an independent review;\4\ it
took a year after the 2013 Boston Bombing for the Intelligence
Community Inspectors General (ICIG) to report on the pre-attack
performance of intelligence and information sharing
entities;\5\ it took nine months after the 2015 San Bernardino
attack for the DOJ to report on law enforcement lessons
learned; and it took 18 months after the Orlando Pulse
Nightclub shooting in June 2016 for the DOJ to publish its
review.\6\
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\4\Dep't of Def., Indep. Review Related to Fort Hood, Protecting
the Force: Lessons from Fort Hood (2010), available at https://
www.defense.gov/Portals/1/Documents/pubs/DOD-ProtectingTheForce-
Web_Security_HR_13Jan10.pdf.
\5\The Inspectors Gen. of the Intelligence Cmty., Cent.
Intelligence Agency, Dep't of Justice, and Dep't of Homeland Sec.,
Unclassified Summary of Information Handling and Sharing Prior to the
April 15, 2013 Boston Marathon Bombings (2014), available at https://
oig.justice.gov/reports/2014/s1404.pdf.
\6\Rick Braziel, Frank Straub, George Watson & Rod Hoops, Bringing
Calm to Chaos: A critical incident review of the San Bernardi no public
safety response to the December 2, 2015, terrorist shooting incident at
the Inland Regional Center (2016), https://www.justice.gov/usao-cdca/
file/891996/download.
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The Federal Government's investigation into the Orlando
Pulse Nightclub shooting in June 2016 is illustrative of an
increasing focus on response rather than prevention. The DOJ
announced an investigation into the police response one month
after the attack.\7\ The completed review was published only
recently, 18 months after the incident occurred.\8\ The report
focused on the response of the Orlando police department and
suggested changes in police protocol and improvements in
counterterrorism training for local law enforcement.\9\ In
addition, Chairman Johnson requested ``a thorough, independent
review'' of the FBI's decision to remove the shooter, Omar
Mateen, from the Terrorist Screening Database.\10\ In response,
the DOJ Inspector General began an audit of broader FBI
management, policies, and processes relevant to homegrown
violent extremist threats, including how the FBI identifies and
assesses these threats.\11\ The Committee is still awaiting the
results of that audit.
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\7\Press Release, Dep't of Justice, Department of Justice to
Conduct After-Action Review of Police Response to Orlando Nightclub
Mass Shooting (July 15, 2016), https://www.justice.gov/opa/pr/
department-justice-conduct-after-action-review-police-response-orlando-
nightclub-mass.
\8\Press Release, Dep't of Justice Office of Community Oriented
Policing Services, Department of Justice Releases Incident Review of
the Orlando Public Safety Response to the Attack on the Pulse Nightclub
(December 18, 2017), https://cops.usdoj.gov/default.asp?Item=2952.
\9\Dep't of Justice Office of Community Oriented Policing Services,
Rescue, Response, and Resilience: A Critical Incident Review of the
Orlando Public Safety Response to the Attack on the Pulse Nightclub
(December 18, 2017), https://ric-zai-inc.com/
ric.php?page=detail&id=COPS-W0857; see also Frank Straub, Jennifer
Zeunik & Ben Gorban, Lessons Learned from the Police Response to the
San Bernardino and Orlando Terrorist Attacks, CTC Sentinel (Volume 10,
Issue 5), Combatting Terrorism Center at West Point (May 2017), https:/
/ctc.usma.edu/wp-content/uploads/2017/05/CTC-Sentinel_Vol10Iss517.pdf.
\10\Press Release, United States Senator Ron Johnson, Chairman
Johnson Seeks Independent Review of Why Orlando Terrorist Was Taken Off
Terror Watchlist (July 27, 2016), https://www.hsgac.senate.gov/media/
majority-media/chairman-johnson-seeks-independent-review-of-why-
orlando-terrorist-was-taken-off-terror-watchlist.
\11\Letter from The Honorable Michael Horowitz, Inspector General,
Dep't of Justice, to The Honorable Ron Johnson, Chairman, Committee on
Homeland Sec. & Governmental Affairs, U.S. Senate (February 22, 2017).
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Additionally, after-action reviews should identify or make
recommendations to address national security gaps, including
actions that can be taken to prevent future attacks. Some past
reviews have focused on improved response, but have not
included recommendations to improve the DHS stated mission of
terrorism prevention. In the case of the ICIG review of the
Boston Bombing to assess the pre-attack performance of
intelligence and information sharing entities, the Committee's
analysis of the ICIG review found no ``recommendations about
how DHS's grant funding or intelligence and information sharing
programs could have played a role in preventing the
bombing.''\12\ A DHS report about the same attack, and released
in the same month as the ICIG report, focused on the good
preparation of first responders but similarly made no
recommendations for how the Department could have prevented the
attack.\13\
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\12\Tom Coburn, A Review of the Department of Homeland Security's
Missions and Performance 22 (2015), https://www.hsgac.senate.gov/
download/?id=B92B8382-DBCE-403C-A08A-727F89C2BC9B.
\13\Id. at 20.
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S. 1884 requires the primary Government agency
investigating an act of terrorism to collaborate with the
Secretary of DHS, the Attorney General, the Director of the
FBI, and, as appropriate, the Director of NCTC to submit a
public report to Congress within one year after such
investigation concludes. The Committee understands that Federal
investigators must carefully sift through a significant amount
of information, often information that is sensitive or
classified and which could affect an ongoing prosecution. This
lengthy process is necessary and must be balanced against the
need for both Congress and the public to know the details of
these incidents in a timely manner. The one-year waiting period
in S. 1884 acknowledges the importance of protecting the
details of an ongoing investigation.
S. 1884 exempts Federal investigators from this reporting
requirement if disclosure could disrupt an ongoing case. This
exemption should be used sparingly and every effort should be
made to produce the required information.
The reports required by S. 1884 should include facts about
the act of terrorism and identify any relevant gaps in national
security. These facts include any domestic or international
terrorism movement or foreign terrorist organization implicated
by evidence uncovered in the investigation or by homeland
security information. Facts about the perpetrator may include
any biographical or criminal information relevant to the act of
terrorism and the report should identify any relevant
government programs that may have ineffectively vetted for or
reported potential indicator behaviors of terrorist threats.
The Committee recognizes that inspectors general may be best-
placed to make recommendations to improve the efficiency and
effectiveness of any such government programs. Agencies may
defer to inspectors general to submit reports on these issues,
since it is not the intent of this legislation to burden
Federal investigators with responsibilities that detract from
their mission of preventing terrorism.
This legislation also balances the need for transparency
with the need for Federal authorities to protect classified
information. The bill requires an unclassified report that can
be complemented by a classified annex. The unclassified report
should be deliverable as a separate document from such annex
and available in unclassified office space, meaning it should
not contain markings that would limit dissemination. Even
transparency efforts to inform the public by requiring an
unclassified report can be undermined by the inclusion of
controlled unclassified information, which requires
safeguarding or dissemination controls.\14\ Dissemination
controls are designed to protect sensitive information. They
can also deter sharing with partners who would benefit from
transparency and inhibit legitimate public deliberation on
counterterrorism policy.\15\ In the event the unclassified
report does require dissemination controls, this legislation
also requires a public summary. Every effort should be made to
include as much information in the public summary and
unclassified report with as few dissemination controls as
possible.
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\14\Controlled Unclassified Information, 32 C.F.R. Sec. 2002.1
(2017).
\15\Frontline Hearing, supra note 2; see also Examining the Costs
of Overclassification on Transparency and Security: Hearing Before the
H. Comm. on Oversight and Gov't Reform, 114th Cong. (2016) (testimony
of Scott Amey, General Counsel, Project On Government Oversight); The
Constitution Project's Liberty and Security Committee, supra note 1.
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III. LEGISLATIVE HISTORY
Senators Claire McCaskill (D-MO) and Mike Lee (R-UT)
introduced S. 1884 on September 28, 2017. The bill was referred
to the Committee on Homeland Security and Governmental Affairs.
The Committee considered S. 1884 at a business meeting on
October 4, 2017. Chairman Ron Johnson offered an amendment that
clarified that the primary agency investigating the act of
terrorism is the lead agency responsible for coordinating with
other agencies to produce the joint unclassified report on that
act of terrorism. The amendment also clarified that
responsibility for notifying Congress if an agency believes the
reporting requirement jeopardizes an investigation or
prosecution falls on the primary agency in charge of such
investigation or prosecution. The Chairman's amendment gave
agencies the option to combine several reports into quarterly
reports and clarified that a summary for public distribution
must be provided to inform the public about homeland threats.
The Committee adopted the amendment and ordered the bill, as
amended, reported favorably, both by voice vote. Senators
present for both the vote on the amendment and the vote on the
bill were: Johnson, Lankford, Daines, McCaskill, Tester,
Heitkamp, Hassan, and Harris.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section provides the bill's short title, the ``REPORT
Act.''
Section 2. Duty to report
This section imposes a Congressional reporting requirement
on the primary Government agency investigating an act of
terrorism that occurs in the United States. It requires that
the report to Congress is unclassified and coordinated with the
DHS Secretary, the Attorney General, the FBI Director, and as
appropriate the NCTC Director.
Subsection (a) establishes the requirement, a deadline for
submitting such reports to Congress, and allows reports on
several individual acts of terrorism to be combined into
quarterly reports. It specifies the report should be
unclassified, and can be accompanied by a classified annex.
Subsection (b) requires the report to include the facts of
the act of terrorism, security vulnerabilities identified after
the investigation, and recommendations for changes to policy
and law enforcement practices that could help prevent future
acts of terrorism. A public summary of the report shall also be
included in the report.
Subsection (c) acknowledges that related investigations and
prosecutions may be jeopardized by this reporting requirement.
The Government agency responsible for an investigation or
prosecution that could be jeopardized can waive the reporting
requirement by notifying Congress before the deadline
established in subsection (a).
Subsection (d) defines ``act of terrorism.''
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 12, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1884, the Reporting
Efficiently to Proper Officials in Response to Terrorism Act of
2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 1884--Reporting Efficiently to Proper Officials in Response to
Terrorism Act of 2017
S. 1884 would require the primary government agency
investigating an act of terrorism that occurs in the United
States to report to the Congress not later than one year after
completing the investigation. That agency would have to
collaborate with the Department of Homeland Security and other
federal bodies as appropriate. The report would identify
weaknesses in national security and recommend additional
measures to improve homeland security and prevent terrorist
acts.
In recent years there have been few incidents of domestic
terrorism, so CBO expects that implementing S. 1884 would
require a small number of reports each year, on average. Based
on the cost of similar activities, CBO estimates that providing
the reports would cost less than $500,000 annually; such
spending would be subject to the availability of appropriated
funds.
Enacting the legislation would not affect direct spending
or revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 1884 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 1884 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
On May 30, 2017, CBO transmitted a cost estimate for H.R.
625, the Reporting Efficiently to Proper Officials in Response
to Terrorism Act of 2017, as ordered reported by the House
Committee on Homeland Security on May 3, 2017. The two bills
are similar and CBO's estimates of the budgetary effects are
the same.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
Because this legislation would not repeal or amend any
provision of current law, it would make no changes in existing
law within the meaning of clauses (a) and (b) of paragraph 12
of rule XXVI of the Standing Rules of the Senate.
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