[Senate Report 118-46]
[From the U.S. Government Publishing Office]


                                                         Calendar No. 112

118th Congress   }                                            { Report
 1st Session     }                SENATE                      { 118-46
                                                                 
_______________________________________________________________________

                                     

                                                       
 
                    REPORTING EFFICIENTLY TO PROPER

            OFFICIALS IN RESPONSE TO TERRORISM (REPORT) ACT

                               __________

                              R E P O R T

                                 of the

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 945

 TO PROVIDE FOR JOINT REPORTS BY RELEVANT FEDERAL AGENCIES TO CONGRESS 
        REGARDING INCIDENTS OF TERRORISM, AND FOR OTHER PURPOSES




                 June 22, 2023.--Ordered to be printed
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

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

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
         Christopher J. Mulkins, Director of Homeland Security
             Moran Banal, Senior Professional Staff Member
           William E. Henderson III, Minority Staff Director
              Christina N. Salazar, Minority Chief Counsel
          Kendal B. Tigner, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk



                                                       Calendar No. 112
                                                       
118th Congress }                                               { Report
                            SENATE
 1st Session   }                                               {118-46

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




  REPORTING EFFICIENTLY TO PROPER OFFICIALS IN RESPONSE TO TERRORISM 
                              (REPORT) ACT

                                _______
                                

                 June 22, 2023.--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. 945]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 945), 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 
amendments 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 of the Bill, as Reported.............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............6

                         I. PURPOSE AND SUMMARY

    S. 945, the Reporting Efficiently to Proper Officials in 
Response to Terrorism Act of 2023 (REPORT Act) would require 
agencies to submit to Congress an unclassified report on each 
act of terrorism that occurs in the United States within a year 
of concluding the investigation into the act, which may be 
accompanied by a classified annex. The bill would require 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 homeland and 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 be posted. 
Reports of individual acts of terrorism may be combined into 
quarterly reports for Congress. The DHS Secretary, Attorney 
General, FBI Director, or NCTC Director can withhold specific 
information if that official determines the information could 
jeopardize an ongoing investigation or prosecution. In such 
instances, that official must notify Congress of the 
determination and must still report to Congress within a year 
on the act of terrorism. 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 March 1, 2021, the Committee approved S. 515, the Reporting 
Efficiently to Proper Officials in Response to Terrorism Act of 2021. 
That bill is substantially similar to S. 945. Accordingly, this 
committee report is in many respects similar to the committee report 
for S. 517. See S. Rept. No. 117-31. On Nov. 6, 2019, the Committee 
approved S. 2513, the Reporting Efficiently to Proper Officials in 
Response to Terrorism Act of 2019. S. 2513 is substantially similar to 
S. 945. Accordingly, this committee report is in many respects also 
similar to the committee report for S. 2513. See S. Rept. No. 116-175.
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              II. BACKGROUND AND NEED FOR THE LEGISLATION

    This legislation would require agencies to conduct after-
action reviews of terrorist incidents to help policymakers 
develop evidence-based terrorism prevention policies and 
procedures. The required reports would help identify weaknesses 
in our current system of terrorism prevention and response and 
provide recommendations for patching gaps. Collaboration and 
cooperation between government entities is essential 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 Senate Committee on 
Homeland Security and Governmental Affairs 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) (S. Hrg. 114-592) (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, 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.\4\ Further illustrating the disparities in 
reporting timelines, DOJ took nine months after the 2015 San 
Bernardino attack to report on law enforcement lessons 
learned.\5\
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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); 
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).
    \5\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.\6\ 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.\7\ The completed review was published in December 2017, 
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\ 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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    \6\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); 
City of Orlando, Critical Incident Review of Orlando Public Safety 
Response to Pulse Tragedy (Dec. 18, 2017) (http://
www.cityoforlando.net/police/pulsereview/).
    \7\Department 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\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/).
    \9\Department 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. 945 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. 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 of information, the ability to 
include a classified annex to protect important information, 
and the ability to withhold specific information to protect 
ongoing investigations or prosecutions.
    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.\10\ 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.\11\ In the event the 
unclassified report does require dissemination controls, this 
legislation also requires a summary to be posted on a publicly 
accessible website. Every effort should be made to include as 
much information in the public summary and unclassified report 
with as few dissemination controls as possible. Both the public 
report and classified annex are required to be made available 
to any Member of Congress upon request.
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    \10\Controlled Unclassified Information, 32 CFR Sec.  2002.1.
    \11\House Committee on Oversight and Government 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. 945, the 
Reporting Efficiently to Proper Officials in Response to 
Terrorism Act of 2023, on March 22, 2023 with original 
cosponsor Senator Mike Lee (R-UT). The bill was referred to the 
Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 945 at a business meeting on 
March 29, 2023. At the business meeting, Senator Hassan offered 
an amendment to the bill, which included language to ensure 
that every member of Congress would have access to both the 
public report provided to Congress as well as the classified 
annex. It also included a savings clause to clarify that the 
National Counterterrorism Center does not have investigative or 
prosecutorial powers. Senator Paul offered a second degree 
amendment to require that no additional funds be used to carry 
out the bill. The second degree amendment was not adopted by 
voice vote, with Senators Peters, Hassan, Sinema, Rosen, 
Padilla, Ossoff, Blumenthal, Paul, Lankford, Romney, Scott, and 
Hawley present. The Committee adopted the Hassan amendment by 
voice vote, with Senators Peters, Hassan, Sinema, Rosen, 
Padilla, Ossoff, Blumenthal, Paul, Lankford, Romney, Scott, and 
Hawley present. The bill, as amended by the Hassan amendment, 
was ordered reported favorably by roll call vote of 12 yeas and 
0 nays, with Senators Peters, Hassan, Sinema, Rosen, Padilla, 
Ossoff, Blumenthal, Paul, Lankford, Romney, Scott, and Hawley 
voting in the affirmative, and with Senators Carper, Johnson, 
and Marshall voting yea by proxy, for the record only.

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

Section 1. Short titles

    This section establishes the short title of the bill as the 
``Reporting Efficiently to Proper Officials in Response to 
Terrorism Act of 2023'' 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 as 
part of a quarterly report. It requires that reports be made 
available on a publicly available website and states that the 
unclassified report and classified annex must be made available 
to any Member of Congress upon request.
    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, 
and any recommendations to improve homeland or national 
security.
    Subsection (c) creates an exception to the reporting 
requirement for certain ongoing investigations and 
prosecutions. The exception allows the government entity to 
waive the requirement to report certain information if the DHS 
Secretary, Attorney General, FBI Director, or NCTC Director 
determines that information could jeopardize an ongoing 
investigation or prosecution. If this determination is made, 
the principal who made the decision must notify Congress of the 
determination. The determination does not affect the 
responsibility to submit the report and any other information 
not subject to the determination.
    Subsection (d) defines ``act of terrorism'' and 
``appropriate congressional committees.''
    Subsection (e) sunsets the reporting requirement after five 
years from the date of the bill's enactment.
    Subsection (f) clarifies that the Act does not provide the 
NCTC with prosecutorial or investigatory authority.

                   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



    S. 945 would require any federal agency that investigates 
an act of terrorism to submit an unclassified report to the 
Congress within one year of completing such an investigation, 
identifying weaknesses and recommending measures to improve 
national security. The bill would require the investigating 
agency to collaborate with the Department of Homeland Security, 
Department of Justice, and other federal agencies as 
appropriate to create the required report.
    Using information about similar investigations, CBO expects 
that few reports would be required each year and estimates that 
the total cost of preparing them would be less than $500,000 
over the 2023-2028 period. Such spending would be subject to 
the availability of appropriated funds.
    The CBO staff contact for this estimate is Jeremy Crimm. 
The estimate was reviewed by Chad Chirico, Deputy Director of 
Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

       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.