[Senate Report 117-31]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 106
117th Congress       }                           {              Report
                                 SENATE
 1st Session         }                           {              117-31
_______________________________________________________________________


                    REPORTING EFFICIENTLY TO PROPER

             OFFICIALS IN RESPONSE TO TERRORISM ACT OF 2021

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 517

            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]
		


                 July 26, 2021.--Ordered to be printed
        
        		
        		       __________
                    
                    
                   U.S. GOVERNMENT PUBLISHING OFFICE
        
19-010			  WASHINGTON : 2021        
        
        
        
        
        
        
        
        
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
        
        

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
         Christopher J. Mulkins, Director of Homeland Security
                Benjamin J. Schubert, Research Assistant
                Pamela Thiessen, Minority Staff Director
  Andrew C. Dockham, Minority Chief Counsel and Deputy Staff Director
        Shani M. Rosenstock, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk

                                                      Calendar No. 106
117th Congress       }                           {             Report
                                 SENATE
 1st Session         }                           {             117-31

======================================================================



 
REPORTING EFFICIENTLY TO PROPER OFFICIALS IN RESPONSE TO TERRORISM ACT 
                                OF 2021

                                _______
                                

                 July 26, 2021.--Ordered to be printed

                                _______
                                

 Mr. Peters, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 517]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 517), 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 without 
amendment and recommends that the bill 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 of the Bill, as Reported.............4
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. PURPOSE AND SUMMARY

    The purpose of S. 517, the Reporting Efficiently to Proper 
Officials in Response to Terrorism Act of 2021, or REPORT Act, 
is to require agencies to submit to Congress an unclassified 
report on each act of terrorism that occurs in the United 
States within a year of the conclusion of the investigation 
into the act. The legislation requires the federal agency 
investigating the act of terrorism to coordinate with the 
Department of Homeland Security (DHS), the Department of 
Justice (DOJ), the Federal Bureau of Investigation (FBI), and, 
as needed, the National Counterterrorism Center (NCTC). The 
report must include the facts of the act of terrorism, 
identified national security gaps that require correction to 
prevent similar future acts of terrorism, and recommendations 
for new measures that could strengthen homeland security. A 
public summary of the report must also accompany the more 
detailed report for Congress. The DHS Secretary, Attorney 
General, FBI Director, or NCTC Director can waive this 
reporting requirement if that individual determines the report 
could jeopardize an ongoing investigation or prosecution. In 
such instances, that individual must notify Congress of the 
waiver before the reporting requirement deadline. The reporting 
requirement established in this bill expires five years from 
the date of the bill's enactment.\1\
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    \1\On Nov. 6, 2019, the Committee approved S. 2513, Reporting 
Efficiently to Proper Officials in Response to Terrorism Act of 2019. 
That bill is substantially similar to S. 517. Accordingly, this 
committee report is in many respects similar to the committee report 
for S. 2513, S. Rept. No. 116-175.
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              II. BACKGROUND AND NEED FOR THE LEGISLATION

    This legislation requires agencies to conduct after-action 
reviews of terrorist incidents to help policymakers develop 
evidence-based terrorism prevention policies and procedures. 
The reports required by this bill will help identify weaknesses 
in our current security network and provide recommendations for 
patching gaps. Collaboration and cooperation between government 
entities is incredibly important when there is a threat to 
national security. For example, testimony before the House 
Committee on Homeland Security concerning the attacks on 
September 11, 2001 found that ``excessive secrecy interfered 
with the detection and prevention of the attacks.''\2\ 
Moreover, in a 2016 hearing before the Committee concerning 
frontline responses to terrorism, one government official 
testified that ``there remains an overall lack of a 
comprehensive `unity of effort' in our information sharing 
environment,'' and this challenge affects ``information sharing 
and communications across all levels [of government].''\3\
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    \2\Subcommittee on Intelligence, Information Sharing, and Terrorism 
Risk Assessment, House Committee on Homeland Security, Testimony of 
Meredith Fuchs, General Counsel, the National Security Archive, George 
Washington University, Hearing on Overclassification and Pseudo-
classification: The Impact on Information Sharing, 110th Congress, at 
14 (Mar. 22, 2007) (https://www.gpo.gov/fdsys/pkg/CHRG-110hhrg35279/
pdf/CHRG-110hhrg35279.pdf).
    \3\Senate Committee on Homeland Security and Governmental Affairs, 
Testimony of Mark S. Ghilarducci, Director, California Office of 
Emergency Services and the Governor's Homeland Security Advisor, 
Hearing on Frontline Response to Terrorism in America, 114th Congress, 
at 4 (Feb. 2, 2016) (https://www.hsgac.senate.gov/imo/media/doc/
Testimony-Ghilarducci-2016-02-02.pdf).
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    Although some agencies conduct internal reviews after an 
act of terrorism, these reviews are not mandatory or uniform, 
and reports are released on varying timelines. In the meantime, 
potential security weaknesses may persist while they remain 
unidentified. For example, when Nidal Hasan killed thirteen 
people at Fort Hood in 2009, the Department of Defense 
published an independent review in two months,\4\ while the 
Intelligence Community Inspector General (ICIG) took a year 
after the 2013 Boston Marathon bombing to release a report on 
the pre-attack performance of intelligence and information 
sharing entities.\5\ Further illustrating the disparities in 
reporting timelines, DOJ took nine months after the 2015 San 
Bernardino attack to report on law enforcement lessons 
learned.\6\
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    \4\Department of Defense Independent Review, Protecting the Force: 
Lessons from Fort Hood (Jan. 2010) (https://www.researchgate.net/
publication/264082810_Protecting_the_Force_Lessons_from_Fort_Hood).
    \5\The Inspectors General of the Intelligence Community, Central 
Intelligence Agency, Department of Justice, and Department of Homeland 
Security, Unclassified Summary of Information Handling and Sharing 
Prior to the April 15, 2013 Boston Marathon Bombings (Apr. 10, 2014) 
(https://oig.justice.gov/reports/2014/s1404.pdf).
    \6\Braziel, Rick, Frank Straub, George Watson, and 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/file/891996/download); A review of the San 
Bernardino Public Safety Response to 2015 Terrorist Shooting Incident, 
Crisis Response (Sep. 23, 2016) (https://crisis-response.com/Articles/
593526/A_review_of.aspx).
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    While many reviews took under a year to complete, DOJ took 
18 months to release a review of the Orlando Pulse Nightclub 
attack in June of 2016.\7\ The Federal Government's 
investigation into the attack 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 in December 2017, 
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\ A reporting requirement 
after the conclusion of the investigation into an act of 
terrorism would guarantee that important lessons learned are 
disclosed in a timely manner.
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    \7\Straub, Frank, Jack Cambria, Jane Castor, Ben Gorban, Brett 
Meade, David Waltemeyer, and Jennifer Zeunik, Rescue, Response, and 
Resilience: A Critical Incident Review of the Orlando Public Safety 
Response to the Attack on the Pulse Nightclub (2017) (https://
www.policefoundation.org/wp-content/uploads/2017/12/Orlando-Pulse.pdf); 
Press Release, City of Orlando, Critical Incident Review of Orlando 
Public Safety Response to Pulse Tragedy (Dec. 18, 2017) (http://
www.cityoforlando.net/police/pulsereview/).
    \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/
department-justice-conduct-after-action-review-police-response-orlando-
nightclub-mass).
    \9\Federal Report Sheds New Light on OPD's Pulse Response, 
ClickOnOrlando.com (Dec. 18, 2017) (clickorlando.com/news/2017/12/18/
federal-report-sheds-new-light-on-opds-pulse-response/).
    \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://www.policefoundation.org/wp-content/
uploads/2017/12/Orlando-Pulse.pdf); 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_Vol10Iss515.pdf).
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    S. 517 requires the primary government agency investigating 
an act of terrorism to collaborate with the Secretary of 
Homeland Security, 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 these 
investigations require careful and extensive work, which can 
include classified information or information affecting ongoing 
investigations or prosecutions. In consideration of these 
circumstances, this legislation includes a one year waiting 
period to allow for careful consideration of disclosure 
information, the ability to include a classified annex to 
protect important information, and a waiver option to protect 
ongoing investigations or prosecutions.
    The reports required by S. 517 should include facts about 
the act, an explanation of any relevant gaps in national 
security, and recommendations to improve homeland security. 
These facts include any domestic or international terrorism 
movement or foreign terrorist organizations implicated by 
evidence uncovered in the investigation or by homeland security 
information. Facts should also include information such as the 
perpetrator's biographical data, whether the perpetrator is 
connected to a domestic or foreign terrorist movement, and 
whether any government program ineffectively vetted the 
perpetrator.
    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.\11\ Dissemination 
controls are designed to protect sensitive information. They 
can, however, also deter sharing with partners who would 
benefit from transparency and inhibit legitimate public 
deliberation on counterterrorism policy.\12\ 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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    \11\Controlled Unclassified Information, 32 CFR Sec. 2002.1.
    \12\House Committee on Oversight and Reform, Testimony of Scott 
Amey, General Counsel, Project on Government Oversight, Hearing on 
Examining the Costs of Overclassification on Transparency and Security, 
114th Cong. (Dec. 7, 2016) (https://oversight.house.gov/legislation/
hearings/full-committee-hearing-examining-the-costs-of-
overclassification-on).
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                        III. LEGISLATIVE HISTORY

    Senator Margaret Wood Hassan (D-NH) introduced S. 517 on 
March 1, 2021. Senator Mike Lee (R-UT) joined as a cosponsor on 
March 15, 2021. The bill was referred to the Senate Committee 
on Homeland Security and Governmental Affairs. The Committee 
considered S. 517 at a business meeting on March 17, 2021. The 
Committee ordered the bill reported favorably without amendment 
en bloc by voice vote. Senators present for the vote on the 
bill were: Peters, Rosen, Padilla, Portman, Johnson, Lankford, 
Romney, Scott, and Hawley.

        IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short titles

    This section provides that the bill may be cited as 
``Reporting Efficiently to Proper Officials in Response to 
Terrorism Act of 2021'' or the ``REPORT Act.''

Section 2. Duty to report

    Subsection (a) establishes the duty to report on acts of 
terrorism within a year of the completion of the investigation 
into the act. It requires the primary investigating entity to 
collaborate with DHS, DOJ, FBI, and, as needed, NCTC. This 
section requires that the reports be unclassified, but allows a 
classified annex; it also allows the report to be submitted 
with the entity's quarterly report.
    Subsection (b) details the required content of the reports. 
These reports must include a statement of the facts of the 
terrorist act, an explanation of any national security gaps, 
any recommendations to improve homeland security, and a summary 
of the report for public distribution.
    Subsection (c) creates an exception to the reporting 
requirement for certain ongoing investigations and 
prosecutions. The exception allows the government entity to 
waive the reporting requirement if the DHS Secretary, Attorney 
General, FBI Director, or NCTC Director determines that the 
report could jeopardize an ongoing investigation or 
prosecution. If this determination is made, the principal who 
made the decision must notify Congress of the waiver within the 
1-year reporting requirement.
    Subsection (d) defines ``act of terrorism.''
    Subsection (e) sunsets the reporting requirement after five 
years from the date of the bill's enactment.

                   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, April 15, 2021.
Hon. Gary C. Peters,
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. 517, the REPORT Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lindsay 
Wylie.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    
    	    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    S. 517 would require any federal agency that investigates 
an act of terrorism committed in the United States to report to 
the Congress within one year of completing an investigation, 
identifying weaknesses and recommending measures to improve 
national security. The bill would direct the investigating 
agency to collaborate with the Department of Homeland Security 
and other federal agencies as appropriate.
    Using information about similar investigations, CBO expects 
that few reports would be necessary each year and estimates 
that preparing all reports would cost less than $500,000 
annually; such spending would be subject to the availability of 
appropriated funds.
    The CBO staff contact for this estimate is Lindsay Wylie. 
The estimate was reviewed by Leo Lex, Deputy Director of Budget 
Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    This legislation would make no change in existing law, 
within the meaning of clauses (a) and (b) of subparagraph 12 of 
rule XXVI of the Standing Rules of the Senate, because this 
legislation would not repeal or amend any provision of current 
law.

                                  
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