[Senate Report 116-175]
[From the U.S. Government Publishing Office]

                                                              Calendar No. 329

116th Congress   }                                            {  Report
1st Session      }                                            {   116-175





                              R E P O R T

                                 of the


                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2513


               December 16, 2019.--Ordered to be printed

 99-010                WASHINGTON : 2019

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada

                Gabrielle D'Adamo Singer, Staff Director
                   Joseph C. Folio III, Chief Counsel
                Margaret E. Frankel, Research Assistant
             Nicholas O. Ramirez, U.S. Coast Guard Detailee
               David M. Weinberg, Minority Staff Director
               Zachary I. Schram, Minority Chief Counsel
                    Roy S. Awabdeh, Minority Counsel
                     Laura W. Kilbride, Chief Clerk

                                                       Calendar No. 329
116th Congress  }                                              {   Report
 1st Session    }                                              {  116-175




               December 16, 2019.--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. 2513]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2513) 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.


  I. Purpose and Summary..............................................1
 II. Background and the Need for Legislation..........................2
III. Legislative History..............................................5
 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. 2513, the Reporting Efficiently to Proper 
Officials in Response to Terrorism Act of 2019, 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 the 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 
    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. The 
reporting requirements established in this bill expire five 
years from the date of the bill's enactment.\1\
    \1\On October 4, 2017, the Committee approved S. 1884, Reporting 
Efficiently to Proper Officials in Response to Terrorism Act of 2017. 
That bill is substantially similar to S. 2513. Accordingly, this 
Committee Report is in large part a reproduction of Chairman Johnson's 
Committee Report for S. 1884.


    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.''\2\ 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.\3\ 
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.\4\
    \2\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/
    \3\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].
    \4\Frontline Hearing, supra note 2, (testimony of Edward F. Davis 
III, Former Commissioner, Boston Police Department).
    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;\5\ 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;\6\ 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 
    \5\Dep't of Def., Indep. Review Related to Fort Hood, Protecting 
the Force: Lessons from Fort Hood (2010), available at https://
    \6\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://
    \7\Rick Braziel, Frank Straub, George Watson & Rod Hoops, Bringing 
Calm to Chaos: A critical incident review of the San Bernardino public 
safety response to the December 2, 2015, terrorist shooting incident at 
the Inland Regional Center (2016), https://www.justice.gov/usao-cdca/
    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.\8\ The completed review was published only 
recently, 18 months after the incident occurred.\9\ 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.\10\ In 
addition, Chairman Ron Johnson requested ``a thorough, 
independent review'' of the FBI's decision to remove the 
shooter, Omar Mateen, from the Terrorist Screening 
Database.\11\ 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.\12\ The 
Committee is still awaiting the results of that audit.
    \8\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/
    \9\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 
(Dec. 18, 2017), https://cops.usdoj.gov/default.asp?Item=2952.
    \10\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 (Dec. 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:/
    \11\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/
    \12\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 (Feb. 22, 2017).
    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.''\13\ 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 
    \13\Tom Coburn, A Review of the Department of Homeland Security's 
Missions and Performance 22 (2015), https://www.hsgac.senate.gov/
    \14\Id. at 20.
    S. 2513 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. 2513 acknowledges the importance of protecting the 
details of an ongoing investigation.
    S. 2513 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. 2513 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.\15\ 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.\16\ 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 
    \15\Controlled Unclassified Information, 32 C.F.R. Sec. 2002.1 
    \16\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 3.

                        III. LEGISLATIVE HISTORY

    Senators Margaret Wood Hassan (D-NH) and Mike Lee (R-UT) 
introduced S. 2513 on September 19, 2019. The bill was referred 
to the Senate Committee on Homeland Security and Governmental 
    The Committee considered S. 2513 at a business meeting on 
November 6, 2019. Senator Rick Scott (R-FL) offered an 
amendment sunsetting the reporting requirements five years from 
the date of the bill's enactment. The Committee adopted the 
amendment and ordered the bill reported favorably en bloc by 
voice vote as amended by Scott Amendment 1. Senators present 
for both the vote on the amendment and the vote on the bill 
were: Johnson, Portman, Paul, Lankford, Romney, Scott, Enzi, 
Hawley, Peters, Carper, Hassan, Sinema, and Rosen.


Section 1. Short title

    This section provides the bill's short title, the ``REPORT 

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.''
    Subsection (e) sunsets the reporting requirement after five 
years from the date of the bill's enactment.


    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.


                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 20, 2019.
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. 2513, the REPORT 
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
                                         Phillip L. Swagel,


    S. 2513 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 its investigation. That agency would collaborate on 
the report with the Department of Homeland Security and other 
federal agencies as appropriate. The report would identify 
weaknesses in national security and recommend additional 
measures to improve homeland security and prevent acts of 
    CBO expects that implementing S. 2513 would require a small 
number of reports each year and that most of the information 
needed for those reports would be readily available as a result 
of the investigations that would have occurred under current 
law. Thus, CBO estimates that preparing the reports would cost 
less than $500,000 each year; such spending would be subject to 
the availability of appropriated funds.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.


    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.