Index

96-242

108TH CONGRESS

REPT. 108-724

HOUSE OF REPRESENTATIVES

2d Session

Part 5

--9/11 RECOMMENDATIONS IMPLEMENTATION ACT

OCTOBER 5, 2004- Ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary, submitted the following

R E P O R T

together with

DISSENTING AND ADDITIONAL DISSENTING VIEWS

[To accompany H.R. 10]

[Including cost estimate of the Congressional Budget Office]

SECTION 1. SHORT TITLE.

SEC. 2. TABLE OF CONTENTS.

TITLE I--REFORM OF THE INTELLIGENCE COMMUNITY
Sec. 1001. Short title.
Subtitle A--Establishment of National Intelligence Director
Sec. 1011. Reorganization and improvement of management of intelligence community.
Sec. 1012. Revised definition of national intelligence.
Sec. 1013. Joint procedures for operational coordination between Department of Defense and Central Intelligence Agency.
Sec. 1014. Role of National Intelligence Director in appointment of certain officials responsible for intelligence-related activities.
Sec. 1015. Initial appointment of the National Intelligence Director.
Sec. 1016. Executive schedule matters.
Subtitle B--National Counterterrorism Center and Civil Liberties Protections
Sec. 1021. National Counterterrorism Center.
Sec. 1022. Civil Liberties Protection Officer.
Subtitle C--Joint Intelligence Community Council
Sec. 1031. Joint Intelligence Community Council.
Subtitle D--Improvement of Human Intelligence (HUMINT)
Sec. 1041. Human intelligence as an increasingly critical component of the intelligence community.
Sec. 1042. Improvement of human intelligence capacity.
Subtitle E--Improvement of Education for the Intelligence Community
Sec. 1051. Modification of obligated service requirements under National Security Education Program.
Sec. 1052. Improvements to the National Flagship Language Initiative.
Sec. 1053. Establishment of scholarship program for English language studies for heritage community citizens of the United States within the National Security Education Program.
Sec. 1054. Sense of Congress with respect to language and education for the intelligence community; reports.
Sec. 1055. Advancement of foreign languages critical to the intelligence community.
Sec. 1056. Pilot project for Civilian Linguist Reserve Corps.
Sec. 1057. Codification of establishment of the National Virtual Translation Center.
Sec. 1058. Report on recruitment and retention of qualified instructors of the Defense Language Institute.
Subtitle F--Additional Improvements of Intelligence Activities
Sec. 1061. Permanent extension of Central Intelligence Agency Voluntary Separation Incentive Program.
Sec. 1062. National Security Agency Emerging Technologies Panel.
Subtitle G--Conforming and Other Amendments
Sec. 1071. Conforming amendments relating to roles of National Intelligence Director and Director of the Central Intelligence Agency.
Sec. 1072. Other conforming amendments
Sec. 1073. Elements of intelligence community under National Security Act of 1947.
Sec. 1074. Redesignation of National Foreign Intelligence Program as National Intelligence Program.
Sec. 1075. Repeal of superseded authorities.
Sec. 1076. Clerical amendments to National Security Act of 1947.
Sec. 1077. Conforming amendments relating to prohibiting dual service of the Director of the Central Intelligence Agency.
Sec. 1078. Access to Inspector General protections.
Sec. 1079. General references.
Sec. 1080. Application of other laws.
Subtitle H--Transfer, Termination, Transition and Other Provisions
Sec. 1091. Transfer of community management staff.
Sec. 1092. Transfer of terrorist threat integration center.
Sec. 1093. Termination of positions of Assistant Directors of Central Intelligence.
Sec. 1094. Implementation plan.
Sec. 1095. Transitional authorities.
Sec. 1096. Effective dates.
TITLE II--TERRORISM PREVENTION AND PROSECUTION
Subtitle A--Individual Terrorists as Agents of Foreign Powers
Sec. 2001. Presumption that certain non-United States persons engaging in international terrorism are agents of foreign powers for purposes of the Foreign Intelligence Surveillance Act of 1978.
Subtitle B--Stop Terrorist and Military Hoaxes Act of 2004
Sec. 2021. Short title.
Sec. 2022. Hoaxes and recovery costs.
Sec. 2023. Obstruction of justice and false statements in terrorism cases.
Sec. 2024. Clarification of definition.
Subtitle C--Material Support to Terrorism Prohibition Enhancement Act of 2004
Sec. 2041. Short title.
Sec. 2042. Receiving military-type training from a foreign terrorist organization.
Sec. 2043. Providing material support to terrorism.
Sec. 2044. Financing of terrorism.
Subtitle D--Weapons of Mass Destruction Prohibition Improvement Act of 2004
Sec. 2051. Short title.
Sec. 2052. Weapons of mass destruction.
Sec. 2053. Participation in nuclear and weapons of mass destruction threats to the United States.
Sec. 2054. Proliferation of weapons of mass destruction.
Sec. 2055. Sense of Congress regarding international counterproliferation efforts.
Sec. 2056. Removal of potential nuclear weapons materials from vulnerable sites worldwide.
Subtitle E--Money Laundering and Terrorist Financing
Chapter 1--Funding to Combat Financial Crimes Including Terrorist Financing
Sec. 2101. Additional authorization for FinCEN.
Sec. 2102. Money laundering and financial crimes strategy reauthorization.
Chapter 2--Enforcement Tools to Combat Financial Crimes Including Terrorist Financing
Subchapter A--Money laundering abatement and financial antiterrorism technical corrections
Sec. 2111. Short title.
Sec. 2112. Technical corrections to Public Law 107-56.
Sec. 2113. Technical corrections to other provisions of law.
Sec. 2114. Repeal of review.
Sec. 2115. Effective date.
Subchapter B--Additional enforcement tools
Sec. 2121. Bureau of Engraving and Printing security printing.
Sec. 2122. Conduct in aid of counterfeiting.
Subtitle F--Criminal History Background Checks
Sec. 2141. Short title.
Sec. 2142. Criminal history background checks.
Sec. 2143. Protect Act.
Sec. 2144. Reviews of criminal records of applicants for private security officer employment.
Sec. 2145. Task force on clearinghouse for IAFIS criminal history records.
Subtitle G--Protection of United States Aviation System from Terrorist Attacks
Sec. 2171. Provision for the use of biometric or other technology.
Sec. 2172. Transportation security strategic planning.
Sec. 2173. Next generation airline passenger prescreening.
Sec. 2174. Deployment and use of explosive detection equipment at airport screening checkpoints.
Sec. 2175. Pilot program to evaluate use of blast-resistant cargo and baggage containers.
Sec. 2176. Air cargo screening technology.
Sec. 2177. Airport checkpoint screening explosive detection.
Sec. 2178. Next generation security checkpoint.
Sec. 2179. Penalty for failure to secure cockpit door.
Sec. 2180. Federal air marshal anonymity.
Sec. 2181. Federal law enforcement counterterrorism training.
Sec. 2182. Federal flight deck officer weapon carriage pilot program.
Sec. 2183. Registered traveler program.
Sec. 2184. Wireless communication.
Sec. 2185. Secondary flight deck barriers.
Sec. 2186. Extension.
Sec. 2187. Perimeter Security.
Sec. 2188. Extremely hazardous materials transportation security.
Sec. 2189. Definitions.
Subtitle H--Other Matters
Sec. 2191. Grand jury information sharing.
Sec. 2192. Interoperable law enforcement and intelligence data system.
Sec. 2193. Improvement of intelligence capabilities of the Federal Bureau of Investigation.
Sec. 2194. Nuclear facility threats.
Sec. 2195. Authorization and Change of COPS Program to single Grant Program.
Subtitle I--Police Badges
Sec. 2201. Short title.
Sec. 2202. Police badges.
TITLE III--BORDER SECURITY AND TERRORIST TRAVEL
Subtitle A--Immigration Reform in the National Interest
Chapter 1--General Provisions
Sec. 3001. Eliminating the `Western Hemisphere' exception for citizens.
Sec. 3002. Modification of waiver authority with respect to documentation requirements for nationals of foreign contiguous territories and adjacent islands.
Sec. 3003. Increase in full-time border patrol agents.
Sec. 3004. Increase in full-time immigration and customs enforcement investigators.
Sec. 3005. Alien identification standards.
Sec. 3006. Expedited removal.
Sec. 3007. Preventing terrorists from obtaining asylum.
Sec. 3008. Revocation of visas and other travel documentation.
Sec. 3009. Judicial review of orders of removal.
Chapter 2--Deportation of Terrorists and Supporters of Terrorism
Sec. 3031. Expanded inapplicability of restriction on removal.
Sec. 3032. Exception to restriction on removal for terrorists and criminals.
Sec. 3033. Additional removal authorities.
Chapter 3--Preventing Commercial Alien Smuggling
Sec. 3041. Bringing in and harboring certain aliens.
Subtitle B--Identity Management Security
Chapter 1--Improved Security for Drivers' Licenses and Personal Identification Cards
Sec. 3051. Definitions.
Sec. 3052. Minimum document requirements and issuance standards for Federal recognition.
Sec. 3053. Linking of databases.
Sec. 3054. Trafficking in authentication features for use in false identification documents.
Sec. 3055. Grants to States.
Sec. 3056. Authority.
Chapter 2--Improved Security for Birth Certificates
Sec. 3061. Definitions.
Sec. 3062. Applicability of minimum standards to local governments.
Sec. 3063. Minimum standards for Federal recognition.
Sec. 3064. Establishment of electronic birth and death registration systems.
Sec. 3065. Electronic verification of vital events.
Sec. 3066. Grants to States.
Sec. 3067. Authority.
Chapter 3--Measures To Enhance Privacy and Integrity of Social Security Account Numbers
Sec. 3071. Prohibition of the display of social security account numbers on driver's licenses or motor vehicle registrations.
Sec. 3072. Independent verification of birth records provided in support of applications for social security account numbers.
Sec. 3073. Enumeration at birth.
Sec. 3074. Study relating to use of photographic identification in connection with applications for benefits, social security account numbers, and social security cards.
Sec. 3075. Restrictions on issuance of multiple replacement social security cards.
Sec. 3076. Study relating to modification of the social security account numbering system to show work authorization status.
Subtitle C--Targeting Terrorist Travel
Sec. 3081. Studies on machine-readable passports and travel history database.
Sec. 3082. Expanded preinspection at foreign airports.
Sec. 3083. Immigration security initiative.
Sec. 3084. Responsibilities and functions of consular officers.
Sec. 3085. Increase in penalties for fraud and related activity.
Sec. 3086. Criminal penalty for false claim to citizenship.
Sec. 3087. Antiterrorism assistance training of the Department of State.
Sec. 3088. International agreements to track and curtail terrorist travel through the use of fraudulently obtained documents.
Sec. 3089. International standards for translation of names into the Roman alphabet for international travel documents and name-based watchlist systems.
Sec. 3090. Biometric entry and exit data system.
Sec. 3091. Biometric entry-exit screening system.
Sec. 3092. Enhanced responsibilities of the Coordinator for Counterterrorism.
Sec. 3093. Establishment of Office of Visa and Passport Security in the Department of State.
Subtitle D--Terrorist Travel
Sec. 3101. Information sharing and coordination.
Sec. 3102. Terrorist travel program.
Sec. 3103. Training program.
Sec. 3104. Technology acquisition and dissemination plan.
Subtitle E--Maritime Security Requirements
Sec. 3111. Deadlines for implementation of maritime security requirements.
TITLE IV--INTERNATIONAL COOPERATION AND COORDINATION
Subtitle A--Attack Terrorists and Their Organizations
Chapter 1--Provisions Relating to Terrorist Sanctuaries
Sec. 4001. United States policy on terrorist sanctuaries.
Sec. 4002. Reports on terrorist sanctuaries.
Sec. 4003. Amendments to existing law to include terrorist sanctuaries.
Chapter 2--Other Provisions
Sec. 4011. Appointments to fill vacancies in Arms Control and Nonproliferation Advisory Board.
Sec. 4012. Review of United States policy on proliferation of weapons of mass destruction and control of strategic weapons.
Sec. 4013. International agreements to interdict acts of international terrorism.
Sec. 4014. Effective Coalition approach toward detention and humane treatment of captured terrorists.
Sec. 4015. Sense of Congress and report regarding counter-drug efforts in Afghanistan.
Subtitle B--Prevent the Continued Growth of Terrorism
Chapter 1--United States Public Diplomacy
Sec. 4021. Annual review and assessment of public diplomacy strategy.
Sec. 4022. Public diplomacy training.
Sec. 4023. Promoting direct exchanges with Muslim countries.
Sec. 4024. Public diplomacy required for promotion in Foreign Service.
Chapter 2--United States Multilateral Diplomacy
Sec. 4031. Purpose.
Sec. 4032. Support and expansion of democracy caucus.
Sec. 4033. Leadership and membership of international organizations.
Sec. 4034. Increased training in multilateral diplomacy.
Sec. 4035. Implementation and establishment of Office on Multilateral Negotiations.
Chapter 3--Other Provisions
Sec. 4041. Pilot program to provide grants to American-sponsored schools in predominantly Muslim countries to provide scholarships.
Sec. 4042. Enhancing free and independent media.
Sec. 4043. Combating biased or false foreign media coverage of the United States.
Sec. 4044. Report on broadcast outreach strategy.
Sec. 4045. Office relocation.
Sec. 4046. Strengthening the Community of Democracies for Muslim countries.
Subtitle C--Reform of Designation of Foreign Terrorist Organizations
Sec. 4051. Designation of foreign terrorist organizations.
Sec. 4052. Inclusion in annual Department of State country reports on terrorism of information on terrorist groups that seek weapons of mass destruction and groups that have been designated as foreign terrorist organizations.
Subtitle D--Afghanistan Freedom Support Act Amendments of 2004
Sec. 4061. Short title.
Sec. 4062. Coordination of assistance for Afghanistan.
Sec. 4063. General provisions relating to the Afghanistan Freedom Support Act of 2002.
Sec. 4064. Rule of law and related issues.
Sec. 4065. Monitoring of assistance.
Sec. 4066. United States policy to support disarmament of private militias and to support expansion of international peacekeeping and security operations in Afghanistan.
Sec. 4067. Efforts to expand international peacekeeping and security operations in Afghanistan.
Sec. 4068. Provisions relating to counternarcotics efforts in Afghanistan.
Sec. 4069. Additional amendments to the Afghanistan Freedom Support Act of 2002.
Sec. 4070. Repeal.
Subtitle E--Provisions Relating to Saudi Arabia and Pakistan
Sec. 4081. New United States strategy for relationship with Saudi Arabia.
Sec. 4082. United States commitment to the future of Pakistan.
Sec. 4083. Extension of Pakistan waivers.
Subtitle F--Oversight Provisions
Sec. 4091. Case-Zablocki Act requirements.
Subtitle G--Additional Protections of United States Aviation System from Terrorist Attacks
Sec. 4101. International agreements to allow maximum deployment of Federal flight deck officers.
Sec. 4102. Federal air marshal training.
Sec. 4103. Man-portable air defense systems (MANPADS).
Subtitle H--Improving International Standards and Cooperation to Fight Terrorist Financing
Sec. 4111. Sense of the Congress regarding success in multilateral organizations.
Sec. 4112. Expanded reporting requirement for the Secretary of the Treasury.
Sec. 4113. International Terrorist Finance Coordinating Council.
Sec. 4114. Definitions.
TITLE V--GOVERNMENT RESTRUCTURING
Subtitle A--Faster and Smarter Funding for First Responders
Sec. 5001. Short title.
Sec. 5002. Findings.
Sec. 5003. Faster and smarter funding for first responders.
Sec. 5004. Modification of homeland security advisory system.
Sec. 5005. Coordination of industry efforts.
Sec. 5006. Superseded provision.
Sec. 5007. Sense of Congress regarding interoperable communications.
Sec. 5008. Sense of Congress regarding citizen corps councils.
Sec. 5009. Study regarding nationwide emergency notification system.
Sec. 5010. Required coordination.
Subtitle B--Government Reorganization Authority
Sec. 5021. Authorization of intelligence community reorganization plans.
Sec. 5022. Authority to enter into contracts and issue Federal loan guarantees.
Subtitle C--Restructuring Relating to the Department of Homeland Security and Congressional Oversight
Sec. 5025. Responsibilities of Counternarcotics Office.
Sec. 5026. Use of counternarcotics enforcement activities in certain employee performance appraisals.
Sec. 5027. Sense of the House of Representatives on addressing homeland security for the American people.
Subtitle D--Improvements to Information Security
Sec. 5031. Amendments to Clinger-Cohen provisions to enhance agency planning for information security needs.
Subtitle E--Personnel Management Improvements
Chapter 1--Appointments Process Reform
Sec. 5041. Appointments to national security positions.
Sec. 5042. Presidential inaugural transitions.
Sec. 5043. Public financial disclosure for the intelligence community.
Sec. 5044. Reduction of positions requiring appointment with Senate confirmation.
Sec. 5045. Effective dates.
Chapter 2--Federal Bureau of Investigation Revitalization
Sec. 5051. Mandatory separation age.
Sec. 5052. Retention and relocation bonuses.
Sec. 5053. Federal Bureau of Investigation Reserve Service.
Sec. 5054. Critical positions in the Federal Bureau of Investigation intelligence directorate.
Chapter 3--Management Authority
Sec. 5061. Management authority.
Subtitle F--Security Clearance Modernization
Sec. 5071. Definitions.
Sec. 5072. Security clearance and investigative programs oversight and administration.
Sec. 5073. Reciprocity of security clearance and access determinations.
Sec. 5074. Establishment of national database .
Sec. 5075. Use of available technology in clearance investigations.
Sec. 5076. Reduction in length of personnel security clearance process.
Sec. 5077. Security clearances for presidential transition.
Sec. 5078. Reports.
Subtitle G--Emergency Financial Preparedness
Sec. 5081. Delegation authority of the Secretary of the Treasury.
Sec. 5082. Extension of emergency order authority of the securities and exchange commission.
Sec. 5083. Parallel authority of the Secretary of the Treasury with respect to government securities.
Subtitle H--Other Matters
Chapter 1--Privacy Matters
Sec. 5091. Requirement that agency rulemaking take into consideration impacts on individual privacy.
Sec. 5092. Chief privacy officers for agencies with law enforcement or anti-terrorism functions.
Sec. 5093. Data-mining report.
Sec. 5094. Privacy and civil liberties oversight board.
Chapter 2--Mutual Aid and Litigation Management
Sec. 5101. Short title.
Sec. 5102. Mutual aid authorized.
Sec. 5103. Litigation management agreements.
Sec. 5104. Additional provisions.
Sec. 5105. Definitions.
Chapter 3--Miscellaneous Matters
Sec. 5131. Enhancement of public safety communications interoperability.
Sec. 5132. Sense of Congress regarding the incident command system.
Sec. 5133. Sense of Congress regarding United States Northern Command plans and strategies.

TITLE I--REFORM OF THE INTELLIGENCE COMMUNITY

SEC. 1001. SHORT TITLE.

Subtitle A--Establishment of National Intelligence Director

SEC. 1011. REORGANIZATION AND IMPROVEMENT OF MANAGEMENT OF INTELLIGENCE COMMUNITY.

`NATIONAL INTELLIGENCE DIRECTOR

`RESPONSIBILITIES AND AUTHORITIES OF THE NATIONAL INTELLIGENCE DIRECTOR

`OFFICE OF THE NATIONAL INTELLIGENCE DIRECTOR

`CENTRAL INTELLIGENCE AGENCY

`DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY

SEC. 1012. REVISED DEFINITION OF NATIONAL INTELLIGENCE.

SEC. 1013. JOINT PROCEDURES FOR OPERATIONAL COORDINATION BETWEEN DEPARTMENT OF DEFENSE AND CENTRAL INTELLIGENCE AGENCY.

SEC. 1014. ROLE OF NATIONAL INTELLIGENCE DIRECTOR IN APPOINTMENT OF CERTAIN OFFICIALS RESPONSIBLE FOR INTELLIGENCE-RELATED ACTIVITIES.

SEC. 1015. INITIAL APPOINTMENT OF THE NATIONAL INTELLIGENCE DIRECTOR.

SEC. 1016. EXECUTIVE SCHEDULE MATTERS.

Subtitle B--National Counterterrorism Center and Civil Liberties Protections

SEC. 1021. NATIONAL COUNTERTERRORISM CENTER.

`NATIONAL COUNTERTERRORISM CENTER

`Sec. 119. National Counterterrorism Center.'.

SEC. 1022. CIVIL LIBERTIES PROTECTION OFFICER.

Subtitle C--Joint Intelligence Community Council

SEC. 1031. JOINT INTELLIGENCE COMMUNITY COUNCIL.

Subtitle D--Improvement of Human Intelligence (HUMINT)

SEC. 1041. HUMAN INTELLIGENCE AS AN INCREASINGLY CRITICAL COMPONENT OF THE INTELLIGENCE COMMUNITY.

SEC. 1042. IMPROVEMENT OF HUMAN INTELLIGENCE CAPACITY.

Subtitle E--Improvement of Education for the Intelligence Community

SEC. 1051. MODIFICATION OF OBLIGATED SERVICE REQUIREMENTS UNDER NATIONAL SECURITY EDUCATION PROGRAM.

SEC. 1052. IMPROVEMENTS TO THE NATIONAL FLAGSHIP LANGUAGE INITIATIVE.

SEC. 1053. ESTABLISHMENT OF SCHOLARSHIP PROGRAM FOR ENGLISH LANGUAGE STUDIES FOR HERITAGE COMMUNITY CITIZENS OF THE UNITED STATES WITHIN THE NATIONAL SECURITY EDUCATION PROGRAM.

`SEC. 812. FUNDING FOR SCHOLARSHIP PROGRAM FOR CERTAIN HERITAGE COMMUNITY RESIDENTS.

SEC. 1054. SENSE OF CONGRESS WITH RESPECT TO LANGUAGE AND EDUCATION FOR THE INTELLIGENCE COMMUNITY; REPORTS.

SEC. 1055. ADVANCEMENT OF FOREIGN LANGUAGES CRITICAL TO THE INTELLIGENCE COMMUNITY.

`Subtitle A--Science and Technology';

`Subtitle B--Foreign Languages Program

`PROGRAM ON ADVANCEMENT OF FOREIGN LANGUAGES CRITICAL TO THE INTELLIGENCE COMMUNITY

`EDUCATION PARTNERSHIPS

`VOLUNTARY SERVICES

`REGULATIONS

`DEFINITIONS

`Subtitle C--Additional Education Provisions

`ASSIGNMENT OF INTELLIGENCE COMMUNITY PERSONNEL AS LANGUAGE STUDENTS

`Subtitle A--Science and Technology
`Sec. 1001. Scholarships and work-study for pursuit of graduate degrees in science and technology.
`Subtitle B--Foreign Languages Program
`Sec. 1011. Program on advancement of foreign languages critical to the intelligence community.
`Sec. 1012. Education partnerships.
`Sec. 1013. Voluntary services.
`Sec. 1014. Regulations.
`Sec. 1015. Definitions.
`Subtitle C--Additional Education Provisions
`Sec. 1021. Assignment of intelligence community personnel as language students.'.

SEC. 1056. PILOT PROJECT FOR CIVILIAN LINGUIST RESERVE CORPS.

SEC. 1057. CODIFICATION OF ESTABLISHMENT OF THE NATIONAL VIRTUAL TRANSLATION CENTER.

`NATIONAL VIRTUAL TRANSLATION CENTER

`Sec. 120. National Virtual Translation Center.'.

SEC. 1058. REPORT ON RECRUITMENT AND RETENTION OF QUALIFIED INSTRUCTORS OF THE DEFENSE LANGUAGE INSTITUTE.

Subtitle F--Additional Improvements of Intelligence Activities

SEC. 1061. PERMANENT EXTENSION OF CENTRAL INTELLIGENCE AGENCY VOLUNTARY SEPARATION INCENTIVE PROGRAM.

SEC. 1062. NATIONAL SECURITY AGENCY EMERGING TECHNOLOGIES PANEL.

Subtitle G--Conforming and Other Amendments

SEC. 1071. CONFORMING AMENDMENTS RELATING TO ROLES OF NATIONAL INTELLIGENCE DIRECTOR AND DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY.

`ADDITIONAL ANNUAL REPORTS FROM THE NATIONAL INTELLIGENCE DIRECTOR'.

SEC. 1072. OTHER CONFORMING AMENDMENTS

SEC. 1073. ELEMENTS OF INTELLIGENCE COMMUNITY UNDER NATIONAL SECURITY ACT OF 1947.

SEC. 1074. REDESIGNATION OF NATIONAL FOREIGN INTELLIGENCE PROGRAM AS NATIONAL INTELLIGENCE PROGRAM.

SEC. 1075. REPEAL OF SUPERSEDED AUTHORITIES.

SEC. 1076. CLERICAL AMENDMENTS TO NATIONAL SECURITY ACT OF 1947.

`Sec. 102. National Intelligence Director.
`Sec. 102A. Responsibilities and authorities of National Intelligence Director.
`Sec. 103. Office of the National Intelligence Director.
`Sec. 104. Central Intelligence Agency.
`Sec. 104A. Director of the Central Intelligence Agency.'; and

`Sec. 114. Additional annual reports from the National Intelligence Director.';

`Sec. 506. Specificity of National Intelligence Program budget amounts for counterterrorism, counterproliferation, counternarcotics, and counterintelligence'.

SEC. 1077. CONFORMING AMENDMENTS RELATING TO PROHIBITING DUAL SERVICE OF THE DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY.

SEC. 1078. ACCESS TO INSPECTOR GENERAL PROTECTIONS.

SEC. 1079. GENERAL REFERENCES.

SEC. 1080. APPLICATION OF OTHER LAWS.

Subtitle H--Transfer, Termination, Transition and Other Provisions

SEC. 1091. TRANSFER OF COMMUNITY MANAGEMENT STAFF.

SEC. 1092. TRANSFER OF TERRORIST THREAT INTEGRATION CENTER.

SEC. 1093. TERMINATION OF POSITIONS OF ASSISTANT DIRECTORS OF CENTRAL INTELLIGENCE.

SEC. 1094. IMPLEMENTATION PLAN.

SEC. 1095. TRANSITIONAL AUTHORITIES.

SEC. 1096. EFFECTIVE DATES.

TITLE II--TERRORISM PREVENTION AND PROSECUTION

Subtitle A--Individual Terrorists as Agents of Foreign Powers

SEC. 2001. PRESUMPTION THAT CERTAIN NON-UNITED STATES PERSONS ENGAGING IN INTERNATIONAL TERRORISM ARE AGENTS OF FOREIGN POWERS FOR PURPOSES OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

`PRESUMPTION OF TREATMENT OF CERTAIN NON-UNITED STATES PERSONS ENGAGED IN INTERNATIONAL TERRORISM AS AGENTS OF FOREIGN POWERS

`Sec. 101A. Presumption of treatment of certain non-United States persons engaged in international terrorism as agents of foreign powers.'.

Subtitle B--Stop Terrorist and Military Hoaxes Act of 2004

SEC. 2021. SHORT TITLE.

SEC. 2022. HOAXES AND RECOVERY COSTS.

`Sec. 1038. False information and hoaxes

`1038. False information and hoaxes.'.

SEC. 2023. OBSTRUCTION OF JUSTICE AND FALSE STATEMENTS IN TERRORISM CASES.

SEC. 2024. CLARIFICATION OF DEFINITION.

Subtitle C--Material Support to Terrorism Prohibition Enhancement Act of 2004

SEC. 2041. SHORT TITLE.

SEC. 2042. RECEIVING MILITARY-TYPE TRAINING FROM A FOREIGN TERRORIST ORGANIZATION.

`Sec. 2339D. Receiving military-type training from a foreign terrorist organization

SEC. 2043. PROVIDING MATERIAL SUPPORT TO TERRORISM.

SEC. 2044. FINANCING OF TERRORISM.

Subtitle D--Weapons of Mass Destruction Prohibition Improvement Act of 2004

SEC. 2051. SHORT TITLE.

SEC. 2052. WEAPONS OF MASS DESTRUCTION.

SEC. 2053. PARTICIPATION IN NUCLEAR AND WEAPONS OF MASS DESTRUCTION THREATS TO THE UNITED STATES.

`832. Participation in nuclear and weapons of mass destruction threats to the United States.';

`Sec. 832. Participation in nuclear and weapons of mass destruction threats to the United States

SEC. 2054. PROLIFERATION OF WEAPONS OF MASS DESTRUCTION.

SEC. 2055. SENSE OF CONGRESS REGARDING INTERNATIONAL COUNTERPROLIFERATION EFFORTS.

SEC. 2056. REMOVAL OF POTENTIAL NUCLEAR WEAPONS MATERIALS FROM VULNERABLE SITES WORLDWIDE.

Subtitle E--Money Laundering and Terrorist Financing

CHAPTER 1--FUNDING TO COMBAT FINANCIAL CRIMES INCLUDING TERRORIST FINANCING

SEC. 2101. ADDITIONAL AUTHORIZATION FOR FINCEN.

SEC. 2102. MONEY LAUNDERING AND FINANCIAL CRIMES STRATEGY REAUTHORIZATION.


--------------------------------
--------------------------------
`Fiscal year 2004   $15,000,000 
 Fiscal year 2005 $15,000,000'. 
--------------------------------

CHAPTER 2--ENFORCEMENT TOOLS TO COMBAT FINANCIAL CRIMES INCLUDING TERRORIST FINANCING

SUBCHAPTER A--MONEY LAUNDERING ABATEMENT AND FINANCIAL ANTITERRORISM TECHNICAL CORRECTIONS

SEC. 2111. SHORT TITLE.

SEC. 2112. TECHNICAL CORRECTIONS TO PUBLIC LAW 107-56.

`TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND FINANCIAL ANTITERRORISM ACT OF 2001'.

`TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND FINANCIAL ANTITERRORISM ACT OF 2001'.

SEC. 2113. TECHNICAL CORRECTIONS TO OTHER PROVISIONS OF LAW.

`Sec. 5318A Special measures for jurisdictions, financial institutions, international transactions, or types of accounts of primary money laundering concern'.

`5318A. Special measures for jurisdictions, financial institutions, international transactions, or types of accounts of primary money laundering concern.'.

SEC. 2114. REPEAL OF REVIEW.

SEC. 2115. EFFECTIVE DATE.

SUBCHAPTER B--ADDITIONAL ENFORCEMENT TOOLS

SEC. 2121. BUREAU OF ENGRAVING AND PRINTING SECURITY PRINTING.

SEC. 2122. CONDUCT IN AID OF COUNTERFEITING.

Subtitle F--Criminal History Background Checks

SEC. 2141. SHORT TITLE.

SEC. 2142. CRIMINAL HISTORY BACKGROUND CHECKS.

SEC. 2143. PROTECT ACT.

SEC. 2144. REVIEWS OF CRIMINAL RECORDS OF APPLICANTS FOR PRIVATE SECURITY OFFICER EMPLOYMENT.

(aa) convicted of a felony, an offense involving dishonesty or a false statement if the conviction occurred during the previous 10 years, or an offense involving the use or attempted use of physical force against the person of another if the conviction occurred during the previous 10 years; or

(bb) charged with a criminal felony for which there has been no resolution during the preceding 365 days; or

SEC. 2145. TASK FORCE ON CLEARINGHOUSE FOR IAFIS CRIMINAL HISTORY RECORDS.

Subtitle G--Protection of United States Aviation System From Terrorist Attacks

SEC. 2171. PROVISION FOR THE USE OF BIOMETRIC OR OTHER TECHNOLOGY.

SEC. 2172. TRANSPORTATION SECURITY STRATEGIC PLANNING.

SEC. 2173. NEXT GENERATION AIRLINE PASSENGER PRESCREENING.

SEC. 2174. DEPLOYMENT AND USE OF EXPLOSIVE DETECTION EQUIPMENT AT AIRPORT SCREENING CHECKPOINTS.

SEC. 2175. PILOT PROGRAM TO EVALUATE USE OF BLAST-RESISTANT CARGO AND BAGGAGE CONTAINERS.

SEC. 2176. AIR CARGO SCREENING TECHNOLOGY.

SEC. 2177. AIRPORT CHECKPOINT SCREENING EXPLOSIVE DETECTION.

SEC. 2178. NEXT GENERATION SECURITY CHECKPOINT.

SEC. 2179. PENALTY FOR FAILURE TO SECURE COCKPIT DOOR.

SEC. 2180. FEDERAL AIR MARSHAL ANONYMITY.

SEC. 2181. FEDERAL LAW ENFORCEMENT COUNTERTERRORISM TRAINING.

SEC. 2182. FEDERAL FLIGHT DECK OFFICER WEAPON CARRIAGE PILOT PROGRAM.

SEC. 2183. REGISTERED TRAVELER PROGRAM.

SEC. 2184. WIRELESS COMMUNICATION.

SEC. 2185. SECONDARY FLIGHT DECK BARRIERS.

SEC. 2186. EXTENSION.

SEC. 2187. PERIMETER SECURITY.

SEC. 2188. EXTREMELY HAZARDOUS MATERIALS TRANSPORTATION SECURITY.

SEC. 2189. DEFINITIONS.

Subtitle H--Other Matters

SEC. 2191. GRAND JURY INFORMATION SHARING.

SEC. 2192. INTEROPERABLE LAW ENFORCEMENT AND INTELLIGENCE DATA SYSTEM.

SEC. 2193. IMPROVEMENT OF INTELLIGENCE CAPABILITIES OF THE FEDERAL BUREAU OF INVESTIGATION.

SEC. 2194. NUCLEAR FACILITY THREATS.

SEC. 2195. AUTHORIZATION AND CHANGE OF COPS PROGRAM TO SINGLE GRANT PROGRAM.

Subtitle I--Police Badges

SEC. 2201. SHORT TITLE.

SEC. 2202. POLICE BADGES.

TITLE III--BORDER SECURITY AND TERRORIST TRAVEL

Subtitle A--Immigration Reform in the National Interest

CHAPTER 1--GENERAL PROVISIONS

SEC. 3001. ELIMINATING THE `WESTERN HEMISPHERE' EXCEPTION FOR CITIZENS.

SEC. 3002. MODIFICATION OF WAIVER AUTHORITY WITH RESPECT TO DOCUMENTATION REQUIREMENTS FOR NATIONALS OF FOREIGN CONTIGUOUS TERRITORIES AND ADJACENT ISLANDS.

SEC. 3003. INCREASE IN FULL-TIME BORDER PATROL AGENTS.

SEC. 3004. INCREASE IN FULL-TIME IMMIGRATION AND CUSTOMS ENFORCEMENT INVESTIGATORS.

SEC. 3005. ALIEN IDENTIFICATION STANDARDS.

SEC. 3006. EXPEDITED REMOVAL.

SEC. 3007. PREVENTING TERRORISTS FROM OBTAINING ASYLUM.

SEC. 3008. REVOCATION OF VISAS AND OTHER TRAVEL DOCUMENTATION.

SEC. 3009. JUDICIAL REVIEW OF ORDERS OF REMOVAL.

CHAPTER 2--DEPORTATION OF TERRORISTS AND SUPPORTERS OF TERRORISM

SEC. 3031. EXPANDED INAPPLICABILITY OF RESTRICTION ON REMOVAL.

SEC. 3032. EXCEPTION TO RESTRICTION ON REMOVAL FOR TERRORISTS AND CRIMINALS.

SEC. 3033. ADDITIONAL REMOVAL AUTHORITIES.

CHAPTER 3--PREVENTING COMMERCIAL ALIEN SMUGGLING

SEC. 3041. BRINGING IN AND HARBORING CERTAIN ALIENS.

Subtitle B--Identity Management Security

CHAPTER 1--IMPROVED SECURITY FOR DRIVERS' LICENSES AND PERSONAL IDENTIFICATION CARDS

SEC. 3051. DEFINITIONS.

SEC. 3052. MINIMUM DOCUMENT REQUIREMENTS AND ISSUANCE STANDARDS FOR FEDERAL RECOGNITION.

SEC. 3053. LINKING OF DATABASES.

SEC. 3054. TRAFFICKING IN AUTHENTICATION FEATURES FOR USE IN FALSE IDENTIFICATION DOCUMENTS.

SEC. 3055. GRANTS TO STATES.

SEC. 3056. AUTHORITY.

CHAPTER 2--IMPROVED SECURITY FOR BIRTH CERTIFICATES

SEC. 3061. DEFINITIONS.

SEC. 3062. APPLICABILITY OF MINIMUM STANDARDS TO LOCAL GOVERNMENTS.

SEC. 3063. MINIMUM STANDARDS FOR FEDERAL RECOGNITION.

SEC. 3064. ESTABLISHMENT OF ELECTRONIC BIRTH AND DEATH REGISTRATION SYSTEMS.

SEC. 3065. ELECTRONIC VERIFICATION OF VITAL EVENTS.

SEC. 3066. GRANTS TO STATES.

SEC. 3067. AUTHORITY.

CHAPTER 3--MEASURES TO ENHANCE PRIVACY AND INTEGRITY OF SOCIAL SECURITY ACCOUNT NUMBERS

SEC. 3071. PROHIBITION OF THE DISPLAY OF SOCIAL SECURITY ACCOUNT NUMBERS ON DRIVER'S LICENSES OR MOTOR VEHICLE REGISTRATIONS.

SEC. 3072. INDEPENDENT VERIFICATION OF BIRTH RECORDS PROVIDED IN SUPPORT OF APPLICATIONS FOR SOCIAL SECURITY ACCOUNT NUMBERS.

SEC. 3073. ENUMERATION AT BIRTH.

SEC. 3074. STUDY RELATING TO USE OF PHOTOGRAPHIC IDENTIFICATION IN CONNECTION WITH APPLICATIONS FOR BENEFITS, SOCIAL SECURITY ACCOUNT NUMBERS, AND SOCIAL SECURITY CARDS.

SEC. 3075. RESTRICTIONS ON ISSUANCE OF MULTIPLE REPLACEMENT SOCIAL SECURITY CARDS.

SEC. 3076. STUDY RELATING TO MODIFICATION OF THE SOCIAL SECURITY ACCOUNT NUMBERING SYSTEM TO SHOW WORK AUTHORIZATION STATUS.

Subtitle C--Targeting Terrorist Travel

SEC. 3081. STUDIES ON MACHINE-READABLE PASSPORTS AND TRAVEL HISTORY DATABASE.

SEC. 3082. EXPANDED PREINSPECTION AT FOREIGN AIRPORTS.

SEC. 3083. IMMIGRATION SECURITY INITIATIVE.

SEC. 3084. RESPONSIBILITIES AND FUNCTIONS OF CONSULAR OFFICERS.

SEC. 3085. INCREASE IN PENALTIES FOR FRAUD AND RELATED ACTIVITY.

SEC. 3086. CRIMINAL PENALTY FOR FALSE CLAIM TO CITIZENSHIP.

SEC. 3087. ANTITERRORISM ASSISTANCE TRAINING OF THE DEPARTMENT OF STATE.

SEC. 3088. INTERNATIONAL AGREEMENTS TO TRACK AND CURTAIL TERRORIST TRAVEL THROUGH THE USE OF FRAUDULENTLY OBTAINED DOCUMENTS.

SEC. 3089. INTERNATIONAL STANDARDS FOR TRANSLATION OF NAMES INTO THE ROMAN ALPHABET FOR INTERNATIONAL TRAVEL DOCUMENTS AND NAME-BASED WATCHLIST SYSTEMS.

SEC. 3090. BIOMETRIC ENTRY AND EXIT DATA SYSTEM.

SEC. 3091. BIOMETRIC ENTRY-EXIT SCREENING SYSTEM.

SEC. 3092. ENHANCED RESPONSIBILITIES OF THE COORDINATOR FOR COUNTERTERRORISM.

SEC. 3093. ESTABLISHMENT OF OFFICE OF VISA AND PASSPORT SECURITY IN THE DEPARTMENT OF STATE.

Subtitle D--Terrorist Travel

SEC. 3101. INFORMATION SHARING AND COORDINATION.

SEC. 3102. TERRORIST TRAVEL PROGRAM.

SEC. 3103. TRAINING PROGRAM.

SEC. 3104. TECHNOLOGY ACQUISITION AND DISSEMINATION PLAN.

Subtitle E--Maritime Security Requirements

SEC. 3111. DEADLINES FOR IMPLEMENTATION OF MARITIME SECURITY REQUIREMENTS.

TITLE IV--INTERNATIONAL COOPERATION AND COORDINATION

Subtitle A--Attack Terrorists and Their Organizations

CHAPTER 1--PROVISIONS RELATING TO TERRORIST SANCTUARIES

SEC. 4001. UNITED STATES POLICY ON TERRORIST SANCTUARIES.

SEC. 4002. REPORTS ON TERRORIST SANCTUARIES.

SEC. 4003. AMENDMENTS TO EXISTING LAW TO INCLUDE TERRORIST SANCTUARIES.

CHAPTER 2--OTHER PROVISIONS

SEC. 4011. APPOINTMENTS TO FILL VACANCIES IN ARMS CONTROL AND NONPROLIFERATION ADVISORY BOARD.

SEC. 4012. REVIEW OF UNITED STATES POLICY ON PROLIFERATION OF WEAPONS OF MASS DESTRUCTION AND CONTROL OF STRATEGIC WEAPONS.

SEC. 4013. INTERNATIONAL AGREEMENTS TO INTERDICT ACTS OF INTERNATIONAL TERRORISM.

`(aa) should be in full compliance with United Nations Security Council Resolution 1373 (September 28, 2001), other appropriate international agreements relating to antiterrorism measures, and such other appropriate criteria relating to antiterrorism measures;

`(bb) should sign and adhere to a `Counterterrorism Pledge' and a list of `Interdiction Principles', to be determined by the parties to the agreement;

`(cc) should identify assets and agree to multilateral efforts that maximizes the country's strengths and resources to address and interdict acts of international terrorism or the financing of such acts;

`(dd) should agree to joint training exercises among the other parties to the agreement; and

`(ee) should agree to the negotiation and implementation of other relevant international agreements and consensus-based international standards; and

`(aa) to identify regions throughout the world that are emerging terrorist threats;

`(bb) to establish terrorism interdiction centers in such regions and other regions, as appropriate;

`(cc) to deploy terrorism prevention teams to such regions, including United States-led teams; and

`(dd) to integrate intelligence, military, and law enforcement personnel from countries that are parties to the agreement in order to work directly with the regional centers described in item (bb) and regional teams described in item (cc).'.

SEC. 4014. EFFECTIVE COALITION APPROACH TOWARD DETENTION AND HUMANE TREATMENT OF CAPTURED TERRORISTS.

SEC. 4015. SENSE OF CONGRESS AND REPORT REGARDING COUNTER-DRUG EFFORTS IN AFGHANISTAN.

Subtitle B--Prevent the Continued Growth of Terrorism

CHAPTER 1--UNITED STATES PUBLIC DIPLOMACY

SEC. 4021. ANNUAL REVIEW AND ASSESSMENT OF PUBLIC DIPLOMACY STRATEGY.

SEC. 4022. PUBLIC DIPLOMACY TRAINING.

SEC. 4023. PROMOTING DIRECT EXCHANGES WITH MUSLIM COUNTRIES.

SEC. 4024. PUBLIC DIPLOMACY REQUIRED FOR PROMOTION IN FOREIGN SERVICE.

CHAPTER 2--UNITED STATES MULTILATERAL DIPLOMACY

SEC. 4031. PURPOSE.

SEC. 4032. SUPPORT AND EXPANSION OF DEMOCRACY CAUCUS.

SEC. 4033. LEADERSHIP AND MEMBERSHIP OF INTERNATIONAL ORGANIZATIONS.

SEC. 4034. INCREASED TRAINING IN MULTILATERAL DIPLOMACY.

SEC. 4035. IMPLEMENTATION AND ESTABLISHMENT OF OFFICE ON MULTILATERAL NEGOTIATIONS.

CHAPTER 3--OTHER PROVISIONS

SEC. 4041. PILOT PROGRAM TO PROVIDE GRANTS TO AMERICAN-SPONSORED SCHOOLS IN PREDOMINANTLY MUSLIM COUNTRIES TO PROVIDE SCHOLARSHIPS.

SEC. 4042. ENHANCING FREE AND INDEPENDENT MEDIA.

SEC. 4043. COMBATING BIASED OR FALSE FOREIGN MEDIA COVERAGE OF THE UNITED STATES.

SEC. 4044. REPORT ON BROADCAST OUTREACH STRATEGY.

SEC. 4045. OFFICE RELOCATION.

SEC. 4046. STRENGTHENING THE COMMUNITY OF DEMOCRACIES FOR MUSLIM COUNTRIES.

Subtitle C--Reform of Designation of Foreign Terrorist Organizations

SEC. 4051. DESIGNATION OF FOREIGN TERRORIST ORGANIZATIONS.

SEC. 4052. INCLUSION IN ANNUAL DEPARTMENT OF STATE COUNTRY REPORTS ON TERRORISM OF INFORMATION ON TERRORIST GROUPS THAT SEEK WEAPONS OF MASS DESTRUCTION AND GROUPS THAT HAVE BEEN DESIGNATED AS FOREIGN TERRORIST ORGANIZATIONS.

Subtitle D--Afghanistan Freedom Support Act Amendments of 2004

SEC. 4061. SHORT TITLE.

SEC. 4062. COORDINATION OF ASSISTANCE FOR AFGHANISTAN.

SEC. 4063. GENERAL PROVISIONS RELATING TO THE AFGHANISTAN FREEDOM SUPPORT ACT OF 2002.

`SEC. 304 FORMULATION OF LONG-TERM STRATEGY FOR AFGHANISTAN.

`Sec. 304. Formulation of long-term strategy for Afghanistan.'.

SEC. 4064. RULE OF LAW AND RELATED ISSUES.

SEC. 4065. MONITORING OF ASSISTANCE.

SEC. 4066. UNITED STATES POLICY TO SUPPORT DISARMAMENT OF PRIVATE MILITIAS AND TO SUPPORT EXPANSION OF INTERNATIONAL PEACEKEEPING AND SECURITY OPERATIONS IN AFGHANISTAN.

SEC. 4067. EFFORTS TO EXPAND INTERNATIONAL PEACEKEEPING AND SECURITY OPERATIONS IN AFGHANISTAN.

SEC. 4068. PROVISIONS RELATING TO COUNTERNARCOTICS EFFORTS IN AFGHANISTAN.

`TITLE III--PROVISIONS RELATING TO COUNTERNARCOTICS EFFORTS IN AFGHANISTAN

`SEC. 301. ASSISTANCE FOR COUNTERNARCOTICS EFFORTS.

`TITLE III--PROVISIONS RELATING TO COUNTERNARCOTICS EFFORTS IN AFGHANISTAN
`Sec. 301. Assistance for counternarcotics efforts.'.

SEC. 4069. ADDITIONAL AMENDMENTS TO THE AFGHANISTAN FREEDOM SUPPORT ACT OF 2002.

SEC. 4070. REPEAL.

Subtitle E--Provisions Relating to Saudi Arabia and Pakistan

SEC. 4081. NEW UNITED STATES STRATEGY FOR RELATIONSHIP WITH SAUDI ARABIA.

SEC. 4082. UNITED STATES COMMITMENT TO THE FUTURE OF PAKISTAN.

SEC. 4083. EXTENSION OF PAKISTAN WAIVERS.

Subtitle F--Oversight Provisions

SEC. 4091. CASE-ZABLOCKI ACT REQUIREMENTS.

Subtitle G--Additional Protections of United States Aviation System from Terrorist Attacks

SEC. 4101. INTERNATIONAL AGREEMENTS TO ALLOW MAXIMUM DEPLOYMENT OF FEDERAL FLIGHT DECK OFFICERS.

SEC. 4102. FEDERAL AIR MARSHAL TRAINING.

SEC. 4103. MAN-PORTABLE AIR DEFENSE SYSTEMS (MANPADS).

Subtitle H--Improving International Standards and Cooperation to Fight Terrorist Financing

SEC. 4111. SENSE OF THE CONGRESS REGARDING SUCCESS IN MULTILATERAL ORGANIZATIONS.

SEC. 4112. EXPANDED REPORTING REQUIREMENT FOR THE SECRETARY OF THE TREASURY.

SEC. 4113. INTERNATIONAL TERRORIST FINANCE COORDINATING COUNCIL.

SEC. 4114. DEFINITIONS.

TITLE V--GOVERNMENT RESTRUCTURING

Subtitle A--Faster and Smarter Funding for First Responders

SEC. 5001. SHORT TITLE.

SEC. 5002. FINDINGS.

SEC. 5003. FASTER AND SMARTER FUNDING FOR FIRST RESPONDERS.

`TITLE XVIII--FUNDING FOR FIRST RESPONDERS
`Sec. 1801. Definitions.
`Sec. 1802. Faster and smarter funding for first responders.
`Sec. 1803. Essential capabilities for first responders.
`Sec. 1804. Task Force on Essential Capabilities for First Responders.
`Sec. 1805. Covered grant eligibility and criteria.
`Sec. 1806. Use of funds and accountability requirements.
`Sec. 1807. National standards for first responder equipment and training.'; and

`TITLE XVIII--FUNDING FOR FIRST RESPONDERS

`SEC. 1801. DEFINITIONS.

`SEC. 1802. FASTER AND SMARTER FUNDING FOR FIRST RESPONDERS.

`SEC. 1803. ESSENTIAL CAPABILITIES FOR FIRST RESPONDERS.

`SEC. 1804. TASK FORCE ON ESSENTIAL CAPABILITIES FOR FIRST RESPONDERS.

`SEC. 1805. COVERED GRANT ELIGIBILITY AND CRITERIA.

`SEC. 1806. USE OF FUNDS AND ACCOUNTABILITY REQUIREMENTS.

`SEC. 1807. NATIONAL STANDARDS FOR FIRST RESPONDER EQUIPMENT AND TRAINING.

SEC. 5004. MODIFICATION OF HOMELAND SECURITY ADVISORY SYSTEM.

`SEC. 203. HOMELAND SECURITY ADVISORY SYSTEM.

`203. Homeland Security Advisory System.'.

SEC. 5005. COORDINATION OF INDUSTRY EFFORTS.

SEC. 5006. SUPERSEDED PROVISION.

SEC. 5007. SENSE OF CONGRESS REGARDING INTEROPERABLE COMMUNICATIONS.

SEC. 5008. SENSE OF CONGRESS REGARDING CITIZEN CORPS COUNCILS.

SEC. 5009. STUDY REGARDING NATIONWIDE EMERGENCY NOTIFICATION SYSTEM.

SEC. 5010. REQUIRED COORDINATION.

Subtitle B--Government Reorganization Authority

SEC. 5021. AUTHORIZATION OF INTELLIGENCE COMMUNITY REORGANIZATION PLANS.

`Sec. 905. Limitation on authority.

`Sec. 913. Application of chapter

`913. Application of chapter.'.

SEC. 5022. AUTHORITY TO ENTER INTO CONTRACTS AND ISSUE FEDERAL LOAN GUARANTEES.

`TITLE XIX--PROTECTION OF CITIZENS AT HIGH-RISK NONPROFIT ORGANIZATIONS

`SEC. 1901. DEFINITIONS.

`SEC. 1902. AUTHORITY TO ENTER INTO CONTRACTS AND ISSUE FEDERAL LOAN GUARANTEES.

`SEC. 1903. ELIGIBILITY CRITERIA.

`SEC. 1904. USE OF LOAN GUARANTEES.

`SEC. 1905. NONPROFIT ORGANIZATION APPLICATIONS.

`SEC. 1906. REVIEW BY STATE HOMELAND SECURITY AUTHORITIES.

`SEC. 1907. SECURITY ENHANCEMENT AND TECHNICAL ASSISTANCE CONTRACTS AND LOAN GUARANTEES.

`SEC. 1908. LOCAL LAW ENFORCEMENT ASSISTANCE GRANTS.

`SEC. 1909. OFFICE OF COMMUNITY RELATIONS AND CIVIC AFFAIRS.

`SEC. 1910. AUTHORIZATION OF APPROPRIATIONS AND LOAN GUARANTEES.

`TITLE XIX--PROTECTION OF CITIZENS AT HIGH-RISK NONPROFIT ORGANIZATIONS

Subtitle C--Restructuring Relating to the Department of Homeland Security and Congressional Oversight

SEC. 5025. RESPONSIBILITIES OF COUNTERNARCOTICS OFFICE.

`SEC. 878. OFFICE OF COUNTERNARCOTICS ENFORCEMENT.

SEC. 5026. USE OF COUNTERNARCOTICS ENFORCEMENT ACTIVITIES IN CERTAIN EMPLOYEE PERFORMANCE APPRAISALS.

`SEC. 843. USE OF COUNTERNARCOTICS ENFORCEMENT ACTIVITIES IN CERTAIN EMPLOYEE PERFORMANCE APPRAISALS.

`Sec. 843. Use of counternarcotics enforcement activities in certain employee performance appraisals.'.

SEC. 5027. SENSE OF THE HOUSE OF REPRESENTATIVES ON ADDRESSING HOMELAND SECURITY FOR THE AMERICAN PEOPLE.

Subtitle D--Improvements to Information Security

SEC. 5031. AMENDMENTS TO CLINGER-COHEN PROVISIONS TO ENHANCE AGENCY PLANNING FOR INFORMATION SECURITY NEEDS.

Subtitle E--Personnel Management Improvements

CHAPTER 1--APPOINTMENTS PROCESS REFORM

SEC. 5041. APPOINTMENTS TO NATIONAL SECURITY POSITIONS.

SEC. 5042. PRESIDENTIAL INAUGURAL TRANSITIONS.

SEC. 5043. PUBLIC FINANCIAL DISCLOSURE FOR THE INTELLIGENCE COMMUNITY.

`TITLE III--INTELLIGENCE PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS

`SEC. 301. PERSONS REQUIRED TO FILE.

`SEC. 302. CONTENTS OF REPORTS.

`SEC. 303. FILING OF REPORTS.

`SEC. 304. FAILURE TO FILE OR FILING FALSE REPORTS.

`SEC. 305. CUSTODY OF AND PUBLIC ACCESS TO REPORTS.

`SEC. 306. REVIEW OF REPORTS.

`SEC. 307. CONFIDENTIAL REPORTS AND OTHER ADDITIONAL REQUIREMENTS.

`SEC. 308. AUTHORITY OF COMPTROLLER GENERAL.

`SEC. 309. DEFINITIONS.

`SEC. 310. NOTICE OF ACTIONS TAKEN TO COMPLY WITH ETHICS AGREEMENTS.

`SEC. 311. ADMINISTRATION OF PROVISIONS.

SEC. 5044. REDUCTION OF POSITIONS REQUIRING APPOINTMENT WITH SENATE CONFIRMATION.

SEC. 5045. EFFECTIVE DATES.

CHAPTER 2--FEDERAL BUREAU OF INVESTIGATION REVITALIZATION

SEC. 5051. MANDATORY SEPARATION AGE.

SEC. 5052. RETENTION AND RELOCATION BONUSES.

`Sec. 5759. Retention and relocation bonuses for the Federal Bureau of Investigation

`5759. Retention and relocation bonuses for the Federal Bureau of Investigation.'.

SEC. 5053. FEDERAL BUREAU OF INVESTIGATION RESERVE SERVICE.

`SUBCHAPTER VII--RETENTION OF RETIRED SPECIALIZED EMPLOYEES AT THE FEDERAL BUREAU OF INVESTIGATION

`Sec. 3598. Federal Bureau of Investigation Reserve Service

`SUBCHAPTER VII--RETENTION OF RETIRED SPECIALIZED EMPLOYEES AT THE FEDERAL BUREAU OF INVESTIGATION
`3598. Federal Bureau of Investigation Reserve Service.'.

SEC. 5054. CRITICAL POSITIONS IN THE FEDERAL BUREAU OF INVESTIGATION INTELLIGENCE DIRECTORATE.

CHAPTER 3--MANAGEMENT AUTHORITY

SEC. 5061. MANAGEMENT AUTHORITY.

Subtitle F--Security Clearance Modernization

SEC. 5071. DEFINITIONS.

SEC. 5072. SECURITY CLEARANCE AND INVESTIGATIVE PROGRAMS OVERSIGHT AND ADMINISTRATION.

SEC. 5073. RECIPROCITY OF SECURITY CLEARANCE AND ACCESS DETERMINATIONS.

SEC. 5074. ESTABLISHMENT OF NATIONAL DATABASE .

SEC. 5075. USE OF AVAILABLE TECHNOLOGY IN CLEARANCE INVESTIGATIONS.

SEC. 5076. REDUCTION IN LENGTH OF PERSONNEL SECURITY CLEARANCE PROCESS.

SEC. 5077. SECURITY CLEARANCES FOR PRESIDENTIAL TRANSITION.

SEC. 5078. REPORTS.

Subtitle G--Emergency Financial Preparedness

SEC. 5081. DELEGATION AUTHORITY OF THE SECRETARY OF THE TREASURY.

SEC. 5082. EXTENSION OF EMERGENCY ORDER AUTHORITY OF THE SECURITIES AND EXCHANGE COMMISSION.

SEC. 5083. PARALLEL AUTHORITY OF THE SECRETARY OF THE TREASURY WITH RESPECT TO GOVERNMENT SECURITIES.

Subtitle H--Other Matters

CHAPTER 1--PRIVACY MATTERS

SEC. 5091. REQUIREMENT THAT AGENCY RULEMAKING TAKE INTO CONSIDERATION IMPACTS ON INDIVIDUAL PRIVACY.

`Sec. 553a. Privacy impact assessment in rulemaking

553a. Privacy impact assessment in rulemaking.'.

SEC. 5092. CHIEF PRIVACY OFFICERS FOR AGENCIES WITH LAW ENFORCEMENT OR ANTI-TERRORISM FUNCTIONS.

SEC. 5093. DATA-MINING REPORT.

SEC. 5094. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.

CHAPTER 2--MUTUAL AID AND LITIGATION MANAGEMENT

SEC. 5101. SHORT TITLE.

SEC. 5102. MUTUAL AID AUTHORIZED.

SEC. 5103. LITIGATION MANAGEMENT AGREEMENTS.

SEC. 5104. ADDITIONAL PROVISIONS.

SEC. 5105. DEFINITIONS.

CHAPTER 3--MISCELLANEOUS MATTERS

SEC. 5131. ENHANCEMENT OF PUBLIC SAFETY COMMUNICATIONS INTEROPERABILITY.

SEC. 5132. SENSE OF CONGRESS REGARDING THE INCIDENT COMMAND SYSTEM.

SEC. 5133. SENSE OF CONGRESS REGARDING UNITED STATES NORTHERN COMMAND PLANS AND STRATEGIES.

PURPOSE AND SUMMARY

The terrorist attacks of September 11, 2001 took the lives of more than 3,000 Americans and represented the most catastrophic terrorist attack on the United States in its history. The terrorists exploited deficiencies in America's law enforcement, immigration, and intelligence agencies which limited the dissemination of information that might have protected the nation against the attack. In the wake of the attacks, the Committee has conducted 39 hearings and markups to examine proposals to remedy legislative, procedural, and structural vulnerabilities to terrorism in our nation's immigration system. The Committee has also conducted 46 hearings and markups to strengthen federal law enforcement and antiterrorism efforts, and it has taken firm steps to ensure that security efforts do not transgress cherished civil liberties. Furthermore, the Committee has conducted rigorous oversight of antiterrorism reform efforts at the Department of Justice, and acted with bipartisan dispatch to enact antiterrorism legislation including the USA PATRIOT Act and the Homeland Security Act.

On November 27, 2002, President Bush signed legislation creating the National Commission on Terrorist Attacks Upon the United States (`9/11 Commission' or `Commission'). The Commission's principal responsibility was to examine and report on the facts and causes relating to the terrorist attacks of September 11, 2001, and to suggest measures to better secure the nation. On July 22, 2004, the Commission delivered its unanimous recommendations to Congress. During August and September, 2004, a variety of congressional committees held hearings on the recommendations. On September 29, 2004, Speaker Hastert introduced H.R. 10, the `9/11 Recommendations Implementation Act,' to provide legislative substance to the Commission's recommendations.

The legislation consists of five titles entitled: Reform of the Intelligence Community; Terrorism Prevention and Prosecution; Border Security and Terrorist Travel; International Cooperation and Coordination; and Government Restructuring. Several provisions within the legislation fall within the jurisdiction of the Committee on the Judiciary.

The creation of a National Intelligence Director and the establishment of a National Counterterrorism Center in Title I of H.R. 10 are key reforms that will help ensure that the wall of separation dividing intelligence and law enforcement is never again exploited to revisit terrorist attacks upon the United States. Section 1112 codifies ongoing efforts of the Federal Bureau of Investigation to assess and prevent terrorists attacks before they occur.

In Title II, Sec. 2001, 2021-2024, 2041-2044, and 2051-2053 contain important provisions that enhance penalties for terrorism hoaxes, increase penalties for supporting, financing, or cooperating with terrorist organizations, and expand the scope of laws that prohibit the shipment or use of weapons of mass destruction. Sections 2101 and 2102 provide additional funding to combat terrorist financing, and 2171-2173 enhance the use of biometric technology to reduce terrorist threats against air travel.

Title III of the legislation contains important provisions to enhance border security and reduce opportunities for terrorists to enter and stay in the United States. Section 3001 implements a Commission recommendation requiring Americans returning from travel in the Western Hemisphere to possess passports. Section 3002 requires Canadians seeking entry into the United States to present a passport or other secure identification. Section 3003 authorizes 2,000 new Border Patrol agents for each of the next five years. Section 3004 authorizes 800 additional ICE investigators for each of the next five years. Section 3005 reduces the risk of identify and document fraud, and Sec. 3006-3009 and 3031-33 provide for the expedited removal of illegal aliens, limit asylum abuse by terrorists, and streamline the removal of terrorists and other criminal aliens. Nearly every one of these provisions reflect Commission recommendations. Many of them arise from legislation proposed by the Judiciary Committee.

The legislation contains key provisions that safeguard the civil liberties of all Americans. Specifically, Sec. 1022 establishes a civil liberties protection officer to ensure that civil liberties and privacy protections are incorporated in the policies implemented by the National Intelligence Director. Modeled on legislation originally introduced by Constitution Subcommittee Chairman Chabot, 5091 requires federal agencies to prepare a privacy impact analysis for proposed and final rules during the rulemaking process. Finally, 5092 directs the head of each Federal agency with law enforcement or antiterrorism functions to appoint a chief privacy officer to protect against privacy abuses.

In short, H.R. 10 reflects a careful, thoughtful, and principled response to the 9/11 Commission's bipartisan Report and staff report, and it provides additional tools and resources needed to fight and win the war on terror.

BACKGROUND AND NEED FOR THE LEGISLATION

THE EVENTS OF SEPTEMBER 11, 2001 AND THE CONGRESSIONAL RESPONSE

Summary of Key Legislation Enacted Into Law Following the Attacks of September 11, 2001

The terrorist attacks on the World Trade Center and the Pentagon took more than 3,000 lives, caused approximately $100 billion in economic losses, triggered U.S. military intervention in Afghanistan to topple the Taliban regime, and led to passage of a historic overhaul of federal law enforcement policies and priorities culminating in the enactment of the USA PATRIOT

Act. 1

[Footnote] These events also led to House passage of legislation to tighten security at America's airports, 2

[Footnote] reform the airport security screening process, 3

[Footnote] abolish the Immigration and Naturalization Service, 4

[Footnote] improve wireless 911 emergency response services, 5

[Footnote] improve oil and gas pipeline safety research, 6

[Footnote] enhance border security, 7

[Footnote] and establish the Department of Homeland Security. 8

[Footnote] Other antiterrorism legislation Congress enacted in the wake of these attacks includes: the Enhanced Border Security and Visa Reform Act, 9

[Footnote] the Antiterrorism Explosives Act, 10

[Footnote] the Terrorist Bombing Convention Implementation Act, 11

[Footnote] the Terrorism Risk Insurance Act, 12

[Footnote] and the Homeland Security Information Act. 13

[Footnote]

[Footnote 1: Pub. L. No. 107-56, 115 Stat 272 (codified as amended in scattered sections of 18 U.S.C.) (2001).]

[Footnote 2: `Air Transportation Safety and System Stabilization Act,' Pub. L. No. 107-42, 115 Stat. 230 (2001).]

[Footnote 3: `Aviation and Transportation Security Act,' Pub. L. No. 107-56, 115 Stat 597 (codified as amended in 49 U.S.C.) (2001).]

[Footnote 4: H.R. 3231, the `Barbara Jordan Immigration Reform and Accountability Act,' 107th Congress (2002), (passed the House of Representatives, April 25, 2002).]

[Footnote 5: H.R. 2898, The `E-911 Implementation Act of 2003,' 108th Congress (2003), (passed the House of Representatives, October 14, 2003).]

[Footnote 6: Pub. L. No. 107-355, 116 Stat 2985 (codified as amended in 49 U.S.C.) (2002).]

[Footnote 7: `Enhanced Border Security and Visa Entry Reform Act of 2002,' Pub. L. No. 107-173, 116 Stat 543 (2002).]

[Footnote 8: Pub. L. No. 107-296, 116 Stat 2135 (codified as amended in 6 U.S.C.) (2002).]

[Footnote 9: Pub. L. No. 107-173, 116 Stat 42 (codified as amended in 8 U.S.C.) (2002).]

[Footnote 10: H.R. 4864, the `Anti-Terrorism Explosives Act,' 107th Congress (2002), enacted as part of the Homeland Security Act.]

[Footnote 11: Pub. L. No. 107-197, 116 Stat 72 (codified as amended in 18 U.S.C.) (2002).]

[Footnote 12: Pub. L. No. 107-297, 116 Stat 2322 (codified as amended in 15 U.S.C.) (2002).]

[Footnote 13: H.R. 4930, the `Homeland Security Information Sharing and Analysis Enhancement Act of 2004,' 108th Congress (2004), enacted as part of the Homeland Security Act.]

Principal Hearings Before the Committee on the Judiciary Responding to the Terrorist Attacks of September 11, 2001

In addition to these legislative initiatives, the House Committee on the Judiciary has conducted nearly 100 hearings to better protect the American people against terrorist attacks since September 11, 2001. Many of these hearings examined legislative initiatives contained in H.R. 10.

Strengthening Border Security to Reduce the Risk of Terrorist Attacks

The Subcommittee on Immigration, Border Security, and Claims has focused special attention on the legislative, procedural, and technological vulnerabilities in our nation's immigration system to identify and remedy them. Since the attacks, the Subcommittee has conducted thirty-nine hearings on immigration matters. Among the most critical of these are hearings entitled: `Pushing the Border Out on Alien Smuggling: New Tools and Intelligence Initiatives'; `US-VISIT: A Down Payment on Homeland Security'; `Funding for Immigration in the President's 2005 Budget'; `War on Terrorism: Immigration Enforcement Since September 11, 2001'; `Department of Homeland Security Transition: Bureau of Immigration and Customs Enforcement'; `Immigrant Student Tracking: Implementation and Proposed Modification'; `The Immigration and Naturalization Service's Interactions with Hesham Mohamed Ali Hedayet'; `The Role of Immigration in the Department of Homeland Security'; `The Risk to Homeland Security From Identity Fraud and Identity Theft'; `The INS's March 2002 Notification of Approval of Change of Status for Pilot Training for Terrorist Hijackers Mohammed Atta and Marwan Al-Shehhi'; `the Implications of Transnational Terrorism for the Visa Waiver Program'; and `Using Information Technology to Secure America's Borders.' Before 9/11, the Subcommittee also focused on terrorist infiltration into the United States, including an oversight hearing on `Terrorist Threats to the United States.'

Restructuring Federal Law Enforcement and Enhancing Criminal Penalties to Reduce the Risk of Terrorist Attacks

Since 9/11, the Subcommittee on Crime, Terrorism, and Homeland Security has held thirty-four hearings on law enforcement matters. Among the most important of these are hearings entitled: `Law Enforcement Efforts Within the Department of Homeland Security;' `Homeland Security--the Balance Between Crisis and Consequence Management through Training and Assistance (Review of Legislative Proposals)'; `Terrorism and War-Time Hoaxes'; `The Proposal to Create a Department of Homeland Security'; `The Risk to Homeland Security From Identity Fraud and Identity Theft'; the `Antiterrorism Explosives Act of 2002'; the `Homeland Security Information Sharing Act'; the `Cyber Security Enhancement Act'; `Implementation Legislation for the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism'; and the `Anti-Hoax Terrorism Act of 2001.' The Subcommittee on Courts, the Internet, and Intellectual Property also conducted a hearing to examine links between organized crime, terrorism, and intellectual property theft.

In addition to these hearings, the Crime Subcommittee, in the spirit of cooperation, has held a joint hearing with the Select Committee on Homeland Security on the Terrorism Threat Integration Center (`TTIC'); jointly sent letters with post-hearing questions to the relevant

agencies on the implementation of TTIC, and conducted a joint hearing on the integration of terrorism watchlists at the Terrorism Screening Center.

The Committee on the Judiciary has also conducted oversight through other means. It has sent two major oversight letters to the Attorney General on the implementation of the USA PATRIOT Act. These letters were aimed at ensuring that the Department of Justice maintains a proper balance between security and civil liberties in implementing the Act. The Committee has also closely monitored the activities of the Department of Homeland Security (`DHS') recently sending letters to the Directors of Immigration Customs Enforcement (`ICE') and the Federal Protective Service regarding their law enforcement missions at the Department of Homeland Security.

In addition, the Committee has requested several General Accounting Office (`GAO') reports in this area including: `Combating Terrorism: Funding Data Reported to Congress Should be Improved'; `Social Security Administration: Disclosure Policy for Law Enforcement Allows Information Sharing, But SSA Needs to Ensure Consistent Application'; and `Firearms Control: Federal Agencies Have Firearms Controls, But Could Strengthen Controls in Key Areas'.

In the law enforcement and law enforcement training area, the Crime Subcommittee held a joint hearing with a subcommittee of the Select Committee on Homeland Security on consolidating terrorist watch lists. The Subcommittee held a hearing and markup on H.R. 2934, a bill to expand the death penalty to additional acts of terrorism. The full committee reported that bill on June 23, 2004. The Subcommittee held a hearing on H.R. 3179, a bill to enhance law enforcement powers in stopping terrorism. The Subcommittee has been working closely with the Select Committee on Homeland Security on H.R. 3266, a bill to improve grants to first responders, which the full committee reported On June 16, 2004. Finally, the Committee is working closely with the Select Committee on yet to be introduced legislation to reauthorize the Department of Homeland Security.

Privacy, Civil Liberties, and the Conduct of the War on Terrorism

The Committee on the Judiciary has conducted a number of hearings to ensure that civil liberties are preserved in the nation's war against terrorism. The USA Patriot Act contained several sunset provisions, many of which are set to expire next year. In addition, the full committee has conducted rigorous oversight of DOJ's efforts against terrorism and its implementation of the USA Patriot Act. The Subcommittee on Commercial and Administrative Law and the Subcommittee on the Constitution conducted a hearing entitled `Civil Liberties in the Hands of the Government Post-September 11, 2001: Recommendations of the 9/11 Commission and the U.S. Department of Defense Technology and Privacy Advisory Committee.' A similar joint hearing examined `The Defense of Privacy Act' and Privacy in the Hands of the Government.' In addition, the Subcommittee on the Constitution held a hearing entitled `Anti-Terrorism Investigations and the Fourth Amendment After September 11: Where and When Can the Government Go to Prevent Terrorist Attacks?' Finally, the Commercial and Administrative Law held a hearing entitled: `Administrative Law, Adjudicatory Issues, and Privacy Ramifications of Creating a Department of Homeland Security.'

National Commission on Terrorist Attacks Upon the United States

Mission and Members of the Commission

On November 27, 2002, President George W. Bush signed legislation creating the National Commission on Terrorist Attacks Upon the United States. 14

[Footnote] The Commission's principal responsibility was to `examine and report upon the facts and causes relating to the terrorist attacks of September 11, 2001,' with respect to intelligence and law enforcement agencies, diplomacy, immigration and border control, the flow of assets to terrorist organizations, commercial aviation, and the role of congressional oversight and resource allocation, among other matters, and to suggest `corrective measures that can be taken to prevent acts of terrorism.' 15

[Footnote]

[Footnote 14: Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, Title VI, 116 Stat. 2383, 2408-13 (2002).]

[Footnote 15: Id. at Sec. 602(1), (5), 604.]

Members of the Commission included: Thomas Kean (Chair), Republican, former Governor of New Jersey; Lee H. Hamilton (Vice Chair), Democrat, former U.S. Representative from the 9th District of Indiana; Richard Ben-Veniste, Democrat, attorney, former chief of the Watergate Task Force of the Watergate Special Prosecutor's Office; Fred F. Fielding, Republican, attorney, former Counsel to President Reagan; Jamie Gorelick, Democrat, former Deputy Attorney General in the Clinton Administration; Slade Gorton, Republican, former Senator from Washington; Bob Kerrey, Democrat, former Senator from Nebraska; John F. Lehman, Republican, former Secretary of the Navy in the Reagan Administration; Timothy J. Roemer, Democrat, former U.S. Representative from the 3rd District of Indiana; James R. Thompson, Republican, former Governor of Illinois.

Over the course of its approximately 20-month existence, the Commission reviewed more than 2.5 million pages of documents and interviewed more than 1,200 individuals in ten

countries. It held 19 days of hearings and received public testimony from 160 witnesses. 16

[Footnote] Present and former government officials testified before the Commission, including: Colin Powell, United States Secretary of State; Richard Armitage, Deputy Secretary of State; Madeleine Albright, former Secretary of State; Donald H. Rumsfeld, Secretary of Defense; Paul Wolfowitz, Deputy Secretary of Defense; William Cohen, former Secretary of Defense; Condoleezza Rice, National Security Advisor to the President; Sandy Berger, former National Security Advisor; Richard Clarke, former counterterrorism official for Presidents George H.W. Bush, Bill Clinton, and George W. Bush; Vice President Dick Cheney; former President Bill Clinton, and former Vice President Al Gore.

[Footnote 16: 9/11 Commission Report, supra note 12, at xv.]

Report of the Commission

Pursuant to its statutory mandate, the Commission submitted its final report and unanimous recommendations to Congress and the President on July 22, 2004. 17

[Footnote] The 567-page report provides a detailed chronicle of the events leading up to the September 11th attacks. The paperback version of the report has since become a `national bestseller, a first for such a commission report.' 18

[Footnote] As part of its analysis of these events, the Commission identified `fault lines within our government--between foreign and domestic intelligence, and between and within agencies.' 19

[Footnote] The Commission also cited `pervasive problems of managing and sharing information across a large and unwieldy government that had been built in a different era to confront different dangers.' 20

[Footnote]

[Footnote 17: Press Release, 9/11 Commission, 9/11 Commission Releases Unanimous Final Report--Calls for Quick Action on Recommendations to Prevent Future Attacks (July 22, 2004), at http://www.9-11commission.gov/press/prX2004-07-22.pdf.]

[Footnote 18: Jim VandeHei, 9/11 Panel Roiling Campaign Platforms, Wash. Post, Aug. 9, 2004, at A1.]

[Footnote 19: 9/11 Commission Report, supra note 12, at xvi.]

[Footnote 20: Id.]

H.R. 10, THE `9/11 RECOMMENDATIONS IMPLEMENTATION ACT'

On September 29, 2004, Speaker Hastert introduced H.R. 10, the `9/11 Recommendations Implementation Act' which reflects the bipartisan recommendations of the Commission. The legislation consists of five titles: Reform of the Intelligence Community; Terrorism Prevention and Prosecution; Border Security and Terrorist Travel; International Cooperation and Coordination; and Government Restructuring.

SUMMARY OF PRINCIPAL PROVISIONS OF H.R. 10 WITHIN THE JURISDICTION OF THE COMMITTEE ON THE JUDICIARY 21

[Footnote]

[Footnote 21: This section contains a summary of principal provisions of H.R. 10 within the jurisdiction of the Committee; it does not comprise an exhaustive list of provisions of H.R. 10 within the jurisdiction of the Committee.]

TITLE I--REFORM OF THE INTELLIGENCE COMMUNITY

Section 1011. Reorganization and improvement of management of intelligence community

Section 1011 replaces sections 102 through 104 of Title I of the National Security Act of 1947 (50 U.S.C. 402 et. seq.) with new sections 102, 102A, 103, 103A, 104 and 104A. New section 102 replaces the Director of Central Intelligence (`DCI') with a National Intelligence Director (`NID') as recommended by the Commission. The NID will be appointed by the President and confirmed by the Senate, and will serve as the head of the intelligence community. The NID may not simultaneously serve as the DCI or as the head of any other element of the intelligence community. This section also establishes a clear chain of command to ensure that while the NID will manage and oversee the Intelligence Community, the NID will do this through the heads of the Departments containing the elements of the intelligence community. The Committee supports the language requiring the NID to work through the heads of the Departments to ensure accountability and responsibility through a clear chain of command.

New Sec. 102A sets out the responsibilities and authorities of the NID. This section provides that the NID shall have access to all national intelligence and intelligence related to the national security, except as otherwise provided by law or guidelines agreed upon by the Attorney General and the NID. The NID will develop and present the annual budget for the National Intelligence Program (`NIP'). The NID must report to the Committees on Judiciary, Intelligence, and Armed Services on any transfer of personnel relative to the Committees' jurisdiction. Additionally, this section requires the NID to ensure that the Intelligence Community through the Host Departments that contain the elements of the Intelligence Community comply with the Constitution and the laws of the United States. At the Committee's recommendation, H.R. 10 contains a provision clarifying that nothing in this Act shall be construed as affecting the role of the Department of Justice or the Attorney General with respect to applications under the Foreign Intelligence Surveillance Act of 1978.

New Sec. 103 establishes the Office of the NID to assist the Director in the performance of his or her duties. This section establishes specific responsibilities for a number of Deputies and Associates to assist the NID. The Associate National Intelligence Director for Domestic Security is to ensure that the intelligence needs of the Department of Justice and other relevant executive branch agencies are met. At the same time, the language restricts this position from disseminating domestic or homeland security information to State and local government officials and the private sector.

New 104 establishes that the DCI shall assist the NID. These responsibilities include:

(1) collecting intelligence through human sources and by other appropriate means, except that the DCI shall have no police, subpoena, or law enforcement powers or internal security functions; and (2) providing overall direction for the collection of national intelligence overseas or outside of the United States through human sources by elements of the intelligence community authorized to undertake such collection and, in coordination with other agencies of the Government which are authorized to undertake such collection, ensuring that the most effective use is made of resources and that the risks to the United States and those involved in such collection are minimized. The Manager's Amendment reported by the Committee inserted the qualifying phrase `overseas or outside the United States' to clarify that the CIA's collection authority is not domestic. The Committee also supported the continued limitation that the CIA shall not have police, subpoena, or other law enforcement powers.

Section 1012. Revised definition of national intelligence

This section defines `national intelligence' and `intelligence related to national security' to refer to all intelligence, regardless of source, and to include information collected both domestically and overseas, that involves threats to the United States, its people, property or interests; the development or use of weapons of mass destruction; or any other matter bearing on the national or homeland security of the Untied States.

Section 1014. Role of the National Intelligence Director in appointment of certain officials responsible for intelligence-related activities

This section amends Sec. 106 of the National Security Act to authorize the NID to recommend to the President individuals for appointment as the Deputy NID and the DCI. The section also allows the NID to concur with the Secretary of Defense in the selection of the head of the National Security Agency, National Reconnaissance Office, and the National Geospatial-Intelligence Agency. The NID shall consult, under this section on the selection for the positions of the Defense Intelligence Agency, Assistant Secretary of State for Intelligence and Research, Director of the Office of Intelligence of the Department of Energy, Director of the Office of Counterintelligence of the Department of Energy, Assistant Secretary for Intelligence and Analysis of the Department of Treasury, Executive Assistant Director for the Intelligence of the Federal Bureau of Investigation (`FBI') or successor, Undersecretary of Homeland Security for Information Analysis and Infrastructure Protection, and the Deputy Assistant Commandant of the Coast Guard for Intelligence. Due to an ongoing restructuring at the FBI, the Committee added the phrase `or that officer's successor' to cover any new intelligence office at the FBI.

The bill also establishes the new National Counterterrorism Center and provides authority to establish other national intelligence centers (`NICs'). The NID shall also have authority to select appointees for some intelligence positions and consult with Congress in the selection of others. (Sec. 1001-1016).

Section 1021. National Counterterrorism Center

The Commission's Report `recommend[ed] the establishment of a National Counterterrorism Center, built on the foundation of the existing Terrorist Threat Integration Center (`TTIC'). Breaking the older mold of national government organization, this NCTC should be a center for joint operational planning and joint intelligence, staffed by personnel from the various agencies. The head of the NCTC should have authority to evaluate the performance of the people assigned to the Center.' Commission Report at 403. Section 1021 establishes the National Counterterrorism Center (`NCTC'), which will be the primary organization for analyzing and integrating all intelligence possessed or acquired by the U.S- except for intelligence pertaining exclusively to domestic counterterrorism. The NCTC will also support the Department of Justice, Department of Homeland Security, and other agencies in fulfillment of their responsibilities to disseminate terrorism information consistent with the law and guidelines agreed to by the Attorney General and the NID. The Committee added the reference to the AG guidelines in the Manager's Amendment.

Section 1022. Civil Liberties Protection Officer

Section 1022 requires the NID to appoint a Civil Liberties Protection Officer (`CLPO') who would be responsible for ensuring that civil liberties and privacy protections are appropriately incorporated in the policies and procedures developed and implemented by the Office of the NID (`ONID'). In addition, the CLPO must: (1) oversee compliance by the ONID and the NID with the Constitution and all laws, regulations, executive orders and implementing guidelines relating to civil liberties and privacy; (2) review and assess complaints and other information indicating possible civil liberties or privacy abuses; (3) ensure that the utilization of technologies sustain privacy protections regarding the use, collection, and disclosure of personal information; (4) ensure that personal information contained in a system of records (as defined in the Privacy Act) is handled in full compliance with the Act's fair information practices; (5) conduct privacy impact assessments when appropriate or required by law; and (6) perform such other duties as prescribed by the NID or required by law. Section 1022 authorizes the CLPO to refer complaints of civil liberties or privacy abuse to the appropriate Office of Inspector General responsible for the intelligence community department or agency to investigate. This provision reflects the following Commission recommendation: `At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.' (Commission Report at 395).

Section 1031. Joint Intelligence Community Council

This section establishes the Joint Intelligence Community Council which will provide advice to the NID from the various heads of the Departments that contain elements of the Intelligence Community, including the Attorney General.

TITLE II--TERRORISM PREVENTION AND PROSECUTION

Section 2001. Individual Terrorists as Agents of Foreign Powers

The Commission suggests on page 54 of its Report that terrorism can be conducted by those who are acting alone and not depending on al Qaeda or other terrorist organizations as a source of funding but as a source of inspiration. The Report found that the premise behind the government's efforts here--that terrorist operations need a financial support network--may itself be outdated. The effort to find, track, and stop terrorist money presumes that it is being sent from a central source or group of identifiable sources. Some terrorist operations do not rely on outside sources of money, and cells may now be self-funding, either through legitimate employment or through low-level criminal activity. Terrorist groups only remotely affiliated with al Qaeda pose a significant threat of mass casualty attacks. Our terrorist-financing efforts can do little to stop them, as there is no `central command' from which the money flowed, as in the 9/11 attacks.

Section 2001 of the bill as introduced addresses the lone terrorist acting on inspiration rather than affiliation. When the Foreign Intelligence Surveillance Act (`FISA') was enacted in the 1970s, terrorists usually were members of distinct, hierarchical terror groups. Today, the `lone wolfs' often are not formal members of any group. Instead, they are part of a loosely organized movement, such as Jihad Against America, and act alone. FISA authority should be updated to reflect this new threat. This section amends 50 U.S.C. Sec. 1801(b)(1) by adding new subparagraph C. Section 1801(b)(1) defines `Agent of a foreign power' for any person other than a United States person, who:

The definition is used to determine the target of a surveillance under FISA. Section 4 adds new subparagraph C to the definition, which states `engages in international terrorism or activities in preparation therefor.' This new definition reaches unaffiliated individuals who engage in international terrorism, i.e. `lone wolf' terrorists. Specifically, the language expands the FISA definition of `agent of a foreign power' to include a presumption that all non-U.S. persons who engage in international terrorism meet the definition of an agent of a foreign power.

This section as introduced does not change the requirement for a judicial finding of probable cause that the target is an agent of a foreign power. (See Sec. 1805(a)(3) and (b)) The new definition requires that for a non-U.S. person to be found to be an agent of a foreign power that person must be engaged in international terrorism. Thus, under the probable cause requirement currently in law and the new definition in this section--before a judge can issue a FISA order for surveillance--there must be a showing of probable cause that the person is engaged or preparing to engage in international terrorism.

At markup, the Committee adopted by voice vote a Berman amendment that substantially changed this section. The Berman amendment adds a new section to the Foreign Intelligence Surveillance Act of 1978. It allows the court to assume that a non-U.S. person who is engaged in terrorism is an agent of a foreign power under the Act.

Sections 2021-2024. Stop Terrorist and Military Hoaxes Act of 2004

The Commission Report found that `hard choices must be made in allocating limited resources,' and that `terrorists should perceive that potential targets are defended' (See Commission Report at 391). Further, the Commission found that `throughout the government, nothing has been harder for officials * * * than to set priorities, making hard choices in allocating limited resources' (See Commission Report at 395). In furtherance of this finding, this subtitle creates criminal and civil penalties for whoever engages in any conduct, with intent to convey false or misleading information, that concerns an activity which would constitute such crimes as those relating to: Explosives; firearms; destruction of vessels; terrorism; sabotage of nuclear facilities; aircraft piracy; a dangerous weapon to assault flight crew members and attendants; explosives on an aircraft; homicide or attempted homicide or damaging or destroying facilities. The subtitle also prohibits making a false statement with intent to convey false or misleading information about the death, injury, capture, or disappearance of a member of the U.S. armed forces during a war or armed conflict in which the United States is engaged. Additionally, the bill increases penalties from not more than 5 years to not more than 10 years for making false statements, and obstructing justice, if the subject matter relates to international or domestic terrorism.

Sections 2041-2044. Material Support to Terrorism Prohibition Enhancement Act of 2004

The Commission Report noted on page 68 that as early as December 1993, a team of al Qaeda operatives had begun casing targets in Nairobi for future attacks. It was led by Ali Mohamed, a former Egyptian army officer who had moved to the United States in the mid-1980s, enlisted in the U.S. Army, and became an instructor at Fort Bragg. He had provided guidance and training to extremists at the Farouq mosque in Brooklyn, including some who were subsequently convicted in the February 1993 attack on the World Trade Center. Additionally, as the report states on page 365, terrorism financing is a part of providing material support to terrorists. Material support may also consist of training.

Section 2042 establishes a new crime of material support for terrorism for knowingly receiving military training from a foreign terrorist organization. The section requires that any person charged under this section must have knowledge that the organization is a terrorist organization. It also defines the term `military-type training.' The section provides for extraterritorial federal jurisdiction over an offense under this section.

Section 2043. Providing Material Support to Terrorism

The 9/11 Commission Report noted on pages 365-66 that `a complex international terrorist operation aimed at launching a catastrophic attack cannot be mounted by just anyone in any place. Such operations appear to require (among others):

The Commission on page 215 noted that it was `unlikely' that two of the 9/11 hijackers, `Hazmi and Mihdhar--neither of whom, in contrast to the Hamburg group, had any prior exposure to life in the West--would have come to the United States without arranging to receive assistance from one or more individuals informed in advance of their arrival.' It further noted, that `our inability to ascertain the activities of Hazmi and Mihdhar during their first two weeks in the United States may reflect al Qaeda tradecraft designed to protect the identity of anyone who may have assisted them during that period.' Without this material support structure in place, the two hijackers would have unlikely been able to sustain an existence without raising suspicions or feeling lost in an unfamiliar environment.

Section 2043 expands the crime of material support to terrorists to include any act of international or domestic terrorism and require that any person charged under this section must have knowledge that the organization is a terrorist organization. It also more clearly defines the term material support.

Section 2044. Financing of Terrorism

This section amends 18 USC 2339C so that those who raise funds for terrorism can be prosecuted prior to the funds being transmitted to terrorist organizations.

Sections 2051-2053. Weapons of Mass Destruction Prohibition Improvement Act of 2004

The Commission Report states `that al Qaeda has tried to acquire or make weapons of mass destruction for at least ten years. There is no doubt the United States would be a prime target. Preventing the proliferation of these weapons warrants a maximum effort--by strengthening counter proliferation efforts, * * *' (See Commission Report at 381) Section 2052 amends 18 U.S.C. Sec. 2332a(a)(2), which makes it a crime for a person to use a weapon of mass destruction (other than a chemical weapon) against any person within the U.S., and the result of such use affects interstate and foreign commerce. This legislation would expand the coverage of the target to include property. The bill would also expand Federal jurisdiction by covering the use of mail or any facility of interstate or foreign commerce for the attack, by the property being used for interstate or foreign commerce, and when the perpetrator travels or causes another to travel in interstate or foreign commerce in furtherance of the offense. This section would also expand coverage to include the use of a chemical weapon.

Section 2101-2102. Money Laundering and Terrorist Financing

The Commission Report found that: `vigorous efforts to track terrorist financing must remain front and center in U.S. counterterrorism efforts. The government has recognized that information about terrorist money helps us to understand their networks, search them out, and disrupt their operations. These efforts have worked. The death or capture of several important facilitators has decreased the amount of money available to al Qaeda and has increased its costs and difficulty in raising and moving that money. Captures have additionally provided a windfall of intelligence.' (See Commission Report at 382)

This section authorizes funding for the Department of Treasury's Financial Crimes Enforcement Network (`FinCEN'). It provides funding for the following: (1) key technological improvements in FinCEN systems providing authorized law enforcement agencies with Web-based access to FinCEN data; (2) expedited filing of suspicious activity reports with the ability to immediately alert financial institutions about suspicious activities; (3) provision of information

sharing technologies to improve the Government's ability to exploit the information in the FinCEN databases; and (4) provision of training in the use of technologies available to detect and prevent financial crimes and terrorism.

Sections 2141-2146. Criminal History Background Checks

The Commission Report states that `secure identification should begin in the United States * * * at many entry points to vulnerable facilities * * * sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.' (See Commission Report at 390) The Report also states that `the private sector controls 85 percent of the critical infrastructure in the nation * * * the `first' first responders will almost certainly be civilians' (See Commission Report at 398) In furtherance of these findings, this subtitle addresses the issue of criminal history records as they relate to background investigations.

This subtitle requires the Attorney General to initiate, establish, and maintain a system for providing employers with criminal history information if the information is requested as part of an employee background check that is authorized by the State where the employee works or where the employer has its principal place of business. This subtitle also gives the Attorney General flexibility, based on real time terror concerns, to mandate criminal history record checks for certain types of employment that involve positions vital to the nation's infrastructure or key resources. This subtitle also establishes a mechanism for private security officer employers to request criminal history records as part of a background investigation and establishes a task force to examine the creation of a clearinghouse to facilitate criminal record request exchanges involving applicants for security officer employment.

This section would allow a standardized approach to the numerous requests from groups that want or need access to these records. A piecemeal approach has evolved as the various bills that authorize these go to different committees for consideration and, when passed, end up in different sections of the code. Some of the groups that have legislation enacted for their individual industries include: banking, parimutuel wagering, securities, aviation, hazardous materials transportation, nuclear energy, Indian gambiing, nursing and home health care, and public housing.

There are several other industries and groups that are seeking authority to request a check of these records as part of their applicant screening process. This section sets up a standard process with uniform procedures, definitions, fee structures where practical, and reasonable safeguards to protect privacy and employee rights. A reporting requirement under this section seeks to identify all statutory requirements that already require the Department of Justice to perform some type of record check, the type of information requested, and any variances that exist in terms, definitions, and fees charged. The amendment offered by Mrs. Blackburn, which was adopted, makes this a pilot study and establishes specific criteria to be addressed in the report that is required, including the effectiveness of using commercially available data bases as part of criminal history information checks. The Committee intends that this study last for 180 days.

Section 2143 amends Public Law 108-21 extending from 18 months to 30 months, the duration of existing pilot programs for volunteer groups to obtain national and state criminal history background checks.

Section 2144 was added by the Blackburn amendment. It is the text of S.1743, the `Private Security Officer Employment Authorization Act,' which passed the Senate by unanimous consent at the end of 2003, and was the topic of a legislative hearing on March 30th, 2004, before the Subcommittee on Crime, Terrorism, and Homeland Security. This section makes findings as to the important role that private security officers play and stresses the importance of thoroughly screening and training officers. This section establishes a mechanism for authorized employers of security guards to request criminal history background checks using existing State identification bureaus. The criteria for disqualification mirror existing state criteria and where a state has no criteria for such employment, this section provides general disqualifiers. A state may decline to participate in the program established by this section.

Section 2145, created by the Blackburn amendment, establishes a task force to examine the establishment of a national clearinghouse to process criminal history record requests from employers providing private security guard services. The Committee intends that the clearinghouse described in Sec. 2145 shall only process criminal history record requests pertaining to employees or prospective employees of the private security guard service making the request pursuant to that section.

Section 2191. Grand jury information sharing

The Commission recommended on page 417 of its report that `Information procedures should provide incentives for sharing, to restore a better balance between security and shared knowledge. On page 355, the report listed several examples of failures of information sharing before the September 11th attacks. In January 2001: the CIA did not inform the FBI that a source had identified Khallad, or Tawfiq bin Attash, a major figure in the October 2000 bombing of the USS Cole, as having attended the meeting in Kuala Lumpur with Khalid al Mihdhar. In May 2001: a CIA official did not notify the FBI about Mihd-har's U.S. visa, Hazmi's U.S. travel, or Khallad's having attended the Kuala Lumpur meeting. In June 2001: FBI and CIA officials did not ensure that all relevant information regarding the Kuala Lumpur

meeting was shared with the Cole investigators at the June 11 meeting. In August 2001: the FBI did not recognize the significance of the information regarding Mihdhar and Hazmi's possible arrival in the United States and thus did not take adequate action to share information, assign resources, and give sufficient priority to the search. Also in August 2001: FBI headquarters did not recognize the significance of the information regarding Moussaoui's training and beliefs and thus did not take adequate action to share information.

Along with the 9/11 attacks, the growth of transnational threats against the United States has increased the need for intelligence and law enforcement agencies to cooperate and share intelligence and law enforcement information. Executive Order 12333 (1981) states: `Timely and accurate information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available.'

Section 895 of the USA PATRIOT Act was an effort to allow sharing of grand jury information in limited circumstanes. It was subsequently affected by a rule change by the Supreme Court. According to the Historical Notes of the Federal Criminal Code and Rules on page 51, `Section 895 of Pub. L. No. 107-296, which purported to amend subdivision (e) of this rule, failed to take into account the amendment of this rule by Order of the Supreme Court of the United States dated April 29, 2002, effective December 1, 2002, and was therefore incapable of execution.' This section makes the technical changes to address the rule change and ensure that the intent of Congress is carried through to improve information sharing.

Section 2192. Interoperable Law Enforcement and Intelligence Data System

The Commission Report described both the immensity of government information, but also how the U.S. government has a weak system for processing and using what it has. In no place is there greater resistance to information sharing and to any kind of interconnectivity among data systems than within the Intelligence Community. For example, the Report states that `undistributed NSA information * * * would have helped identify Nawaf al Hazmi in January 2000.' (See Commission Report at 417) The problem is that, three years later, the intelligence agencies stubbornly maintain the set of parallel information system smokestacks that have existed for decades.

The Commission also proposed that `information be shared horizontally, across new networks that transcend individual agencies, `and explained that the `current system is structured on an old mainframe, or hub-and-spoke, concept. In this older approach, each agency has its own database. Agency users send information to the database and then can retrieve it from the database.' (See Commission Report at 418) It proposed instead a `decentralized network model,' the concept behind much of the information revolution also shares data horizontally. Agencies would still have their own databases, but those databases would be searchable across agency lines. In this system, secrets are protected through the design of the network and an `information rights management' approach that controls access to the data, not access to the whole network'. (See Commission Report at 418) The Commission recommended that `The president should lead the government-wide effort to bring the major national security institutions into the information revolution * * * [he] should coordinate the resolution of the legal, policy, and technical issues across agencies to create a `trusted information network.' (See Commission Report at 418)

Section 2192 provides a clear direction to the NID to end that approach and clear deadlines for accomplishing a horizontal system. It takes a system that Congress already authorized for the successors to the INS in the Enhanced Border Security Act of 2001--which has not been implemented--and moves it to the National Intelligence Center. Specifically, this provision establishes requirements for the NID to establish an interim system for horizontal information exchange within the intelligence community to become operational immediately. This is to be followed by a fully functional interoperable system to `truly' establish interoperable data and information exchange within a trusted information network by 2007. Due to the complexity of this endeavor, as well as the urgency for completion of both the interim system and the full system, a special authority is granted to hire people capable of establishing both systems. Requirements for the systems align with the Commission's recommended `need to share' intelligence with intelligence officers, law enforcement and operational counterterror personnel, consular officers, and DHS border security officers.

Section 2193. The Improvement of Intelligence Capabilities of the Federal Bureau of Investigation

This section codifies the recommendations of the Commission as they relate to the FBI's intelligence capabilities. These recommendations are largely reforms that have already been implemented, or are about to be implemented, at the FBI. In its Report, the Commission recommends that the FBI's shift to preventing terrorism must survive the tenure of the current Director. This section avoids past shortcomings by the Bureau in its efforts to transform itself to address transnational security concern.

TITLE III--BORDER SECURITY AND TERRORIST TRAVEL

SUBTITLE A. IMMIGRATION REFORM IN THE NATIONAL INTEREST

Section 3001. Verification of Returning Citizens

Regulations implementing the Immigration and Nationality Act (`INA') allow U.S. citizens to reenter the U.S. from countries in the Western Hemisphere (other than Cuba) without passports. 22

[Footnote] The risks of this so-called `Western Hemisphere exception' have become all too obvious. A May 2003 hearing by the Subcommittee on Immigration, Border Security, and Claims examined D.C. sniper John Muhammad's smuggling activities between the Caribbean and the United States and revealed significant weaknesses in the admission process resulting from the exception. Muhammad was able to make his living by providing false American identification documents such as driver's licenses and birth certificates to aliens seeking to impersonate U.S. citizens and get through U.S. ports-of-entry. The GAO performed two investigations of this process, one for the Senate Finance Committee in January 2003, and another for the Immigration Subcommittee in May 2003. 23

[Footnote] In January, GAO agents crossed into the U.S. by presenting counterfeit state identification documents with false names (or no documents at all) from Canada, Mexico, and Jamaica. After briefing DHS on what it had done, and using the same documents, inspectors re-entered from Barbados unimpeded in May.

[Footnote 22: See Sec. 215(b) of the INA.]

[Footnote 23: See John Allen Muhammad, Document Fraud, and the Western Hemisphere Passport Exception: Hearing Before the Subcomm. On Immigration, Border Security and Claims of the House Comm. on the Judiciary, 108th Cong., at 31 (testimony of Robert Cramer, Managing Director, Office of Special Investigations, U.S. General Accounting Office)(2003).]

It is no wonder that the Commission found that `Americans should not be exempt from carrying biometric passports or otherwise enabling their identities to be securely verified when they enter the United States * * * .' 24

[Footnote] Section 3001 would require that by October 2006, all U.S. citizens returning from Western Hemisphere countries other than Canada and Mexico must present U.S. passports. In the interim, U.S. citizens would have to present a document designated by the Secretary of DHS. For U.S. citizens returning from Canada and Mexico, the Secretary of DHS would have to designate documents that are sufficiently secure.

[Footnote 24: Commission Report at 388.]

Section 3002. Documents Required by Aliens from Contiguous Countries

Foreign visitors usually need passports or U.S. visas or border crossing cards to enter the U.S. However, the INA allows the Administration to waive this requirement for nationals of contiguous countries--which it has done for Canadians. 25

[Footnote] Therefore, U.S. inspectors at northern ports-of-entry can allow persons identifying themselves as Canadians and not looking `suspicious' to enter the U.S. without having to show any documents whatsoever. Non-Canadians entering the U.S. without any documents by claiming to be Canadian and Canadians on terrorist watchlists not being identified at the border because they do not have to provide documents are obvious security concerns.

[Footnote 25: See INA Sec. 212(d)(4)(B).]

There have been a disturbing number of cases of terrorists trying to enter the U.S. from Canada. Most notoriously, on December 14, 1999, the U.S. Customs Service arrested Algerian Ahmed Ressam at Port Angeles, Washington. Ressam was on his way to carry out the `Millenium Plot' and detonate a bomb at Los Angeles's international airport. He was found with nitroglycerin and other bomb-making equipment in his car. A former counter-terrorism chief for the CIA stated that his interception was `pure luck.'

The National Post of Canada reported in June 2002 that:

New allegations that a man behind the deadly bombing of a Tunisian synagogue belonged to a Montreal-based al-Qaeda cell show that Canada must do more to combat violent extremists, critics charged. * * * Nizar Ben Muhammed Nasr Nawar, 24, was under surveillance by Canadian intelligence agents for weeks but managed to slip away to his native country and set off a bomb that killed 19 people, including 12 German tourists. There is no word on whether Nawar, who told his family he was going to study at a Montreal school for travel agents, was part of a wave of 1,300 young Tunisian men who came to Canada in 1999 and 2000 on a student exchange. More than 100 of them have since disappeared without a trace. 26

[Footnote]

[Footnote 26: Tom Blackwell, Bombing Link Brings Call for Crackdown: Synagogue Killer Slipped through Net While in Canada, National Post, June 10, 2002, at A4.]

Unfortunately, it has been clear for some time that Canadian immigration policy poses a risk to U.S. national security. The Boston Globe reported in February 2002 that:

[Canada] has emerged as an important fund-raising and staging ground for Al Qaeda soldiers. * * * For Al Qaeda, the Canadian center of choice is Montreal * * * although terrorist plotters and long-term `sleepers' have also made nests in Toronto and Vancouver, the country's two other major urban areas, according to terrorist specialists and investigators. `Montreal is a world-class hub of Islamist terrorist activity,' said David Harris, former chief of strategic planning at the Canadian Security and Intelligence Service, the nation's spy service. * * * Noting the city's proximity to the United States and its large Muslim population, into which an Islamic militant bent on concealment can easily blend, Harris * * * said: `For a group that thinks of the US as the Great Satan, what better staging city for reconnaissance and operations?' * * * [I]ntelligence officials, anti-terrorist agents, federal police, and diplomats confirmed in recent interviews and background briefings that Al Qaeda and other terrorist groups have a significant presence in Canada. * * * Of most concern is the strong possibility that undetected Al Qaeda sleeper cells exist in Canada, awaiting the signal to attack American targets. * * * [S]cores of suspected Al Qaeda loyalists * * * have exploited Canada's liberal immigration standards and notoriously lax refugee rules to establish safe havens in the country that * * * still offers the easiest international access to the United States. * * * [C]ritics say the Chretien government is ignoring the most basic reason why Canada has become a sanctuary for international terrorists--immigration policies that bring more than 250,000 new people a year into the country with very little screening and loose rules that allow even suspected terrorists to reside for years in the country (collecting welfare, national health benefits, and housing allowances) simply by claiming to be refugees. 27

[Footnote]

[Footnote 27: Colin Nickerson, U.S. Wary of `Time Bombs' Waiting to Strike from North, Boston Globe, February 4, 2002, at A12.]

The 9/11 Commission found that `Americans should not be exempt from carrying biometric passports or otherwise enabling their identities to be securely verified when they enter the United States, nor should Canadians or Mexicans. * * *' 28

[Footnote] The bill would require that by the beginning of 2007, aliens claiming to be Canadian who seek to enter the U.S. must present a passport or other secure identification.

[Footnote 28: Commission Report at 388 (emphasis added).]

Section 3003. Strengthening the Border Patrol

The 9/11 Commission found that `[i]t is elemental to border security to know who is coming into the country. * * * We must * * * be able to monitor and respond to entrances between our ports of entry. * * * The challenge for national security in an age of terrorism is to prevent

the * * * people who may pose overwhelming risks from entering * * * the U.S. undetected.' 29

[Footnote] The Commission's staff report on `9/11 and Terrorist Travel' found that `[t]here is also evidence that terrorists used human smugglers to sneak across borders.' 30

[Footnote]

[Footnote 29: Id. at 383, 390.]

[Footnote 30: 9/11 and Terrorist Travel: Staff Report of the National Commission on Terrorist Attacks Upon the United States at 59 (2004).]

The Commission and its staff were right. Because it is easy for aliens to illegally cross our borders, it is also relatively easy for terrorists to enter. Periodic reports of large numbers of Middle Eastern nationals crossing the southern border were verified by the recent release of Border Patrol data showing that from last October through this June, 44,614 non-Mexican aliens were caught trying to cross the northern or southern borders--including eight from Afghanistan, six from Algeria, 13 from Egypt, 20 from Indonesia, 10 from Iran, 55 from Israel, 122 from Pakistan, six from Saudi Arabia, six from Syria, 22 from Turkey, and two from Yemen. A South African woman alleged to be on a terrorist watch list recently indicated that she had crossed the border illegally from Mexico.

By the mid 1990s, our southwest border was in a state of crisis. The transit routes most heavily used for illegal aliens were in the San Diego corridor. It had become a sieve where illegal aliens from Mexico entered en masse and unhindered. The Border Patrol in El Paso, Texas, then developed `Operation Hold the Line' and placed agents directly on the border. This deterrent dramatically reduced illegal crossings, cutting crime in border communities and winning the praise of the public. The INS adopted the Hold-the-Line strategy in San Diego under the moniker of `Operation Gatekeeper', and it came to believe that Gatekeeper was one of its most successful border control initiatives ever, bringing law and order to the San Diego border.

Despite the successes of Hold-the-Line and Gatekeeper, overall illegal entries across our borders have not decreased because there are not enough agents to duplicate the strategy across the southwest border. Illegal aliens now resort to difficult but lightly patrolled routes across rugged terrain in California and Arizona. Professor Frank Bean of the University of Texas found that approximately 16,000 Border Patrol agents would be required to duplicate the Hold-the-Line strategy across the entire southwestern border. This is the number of agents America needs to control our southwestern border. Given the need to also bolster resources along the northern border, Border Patrol strength should optimally be at least doubled from its current level of about 11,000. The bill therefore authorizes an increase in the Border Patrol of 2,000 agents a year for each of the next five years.

Section 3004. Increase in Immigration Enforcement Investigators

The Commission's staff found repeatedly that the lack of enforcement of our immigration laws in the interior of the U.S. facilitated terrorism. The staff reported that `abuse of the immigration system and a lack of interior immigration enforcement were unwittingly working together to support terrorist activity.' 31

[Footnote] Further, `[t]he first problem encountered by those concerned about terrorists was an almost complete lack of enforcement resources. [No one] ever provided the support needed for INS enforcement agents to find, detain, and remove illegal aliens, including those with terrorist associations.' 32

[Footnote]

[Footnote 31: Id. at 46.]

[Footnote 32: Id. at 95.]

Even if we were to completely seal our borders, that would not be enough to control illegal immigration. Between one-third and one-half of the resident illegal alien population came to the U.S. legally on temporary visas and simply never left. Interior enforcement is a crucial component of immigration law enforcement. In addition to tracking down illegal aliens (including those who do make it past the border), interior investigators also play a crucial role in the location and deportation of criminal aliens and aliens who skip out on deportation orders. But the Commission's staff found that `[t]he budget for interior enforcement remained static in the face of an overwhelming number of immigrants outside the legal framework' and that `[t]he INS's difficulty in locating absconders is consistent with the difficulty generally faced [in locating] aliens inside our country.' 33

[Footnote]

[Footnote 33: Id. at 143 and 156.]

ICE only has about 2,000 investigators nationwide, a number that all agree is woefully inadequate to protect the borders against terrorist infiltration. Enforcement of employer sanctions has all but been abandoned. Arrests on job sites have declined from over 8,000 in 1992 to 451 in 2002, and final orders levying fines on employers for immigration law violations fell from over 1,000 in 1992 to 13 in 2002. Until we eliminate the `job magnet' we will never successfully control illegal immigration.

There are some 400,000 alien `absconders,' aliens who have been ordered removed from the U.S. and who have ignored those orders and remained in the country. Of those, 80,000 have criminal records. Although ICE has deployed 18 Fugitive Operations teams to arrest those aliens, the teams cannot accomplish the task on their own. A recent report stated that the San Diego team `with more than 550 apprehensions ranks near the top of the 22 cities where Homeland Security agents have caught fugitives since October 2003.' If each team were to arrest 600 aliens per year, it would take more than 37 years to apprehend the outstanding absconders, even if no other aliens were to evade removal. It would take more than seven years

for these teams to arrest just the criminal absconders.

The bill would increase the number of ICE investigators enforcing our immigration laws by 800 a year for each of the next five years. One half of the new investigators would be dedicated to enforcing employer sanctions and removing illegal aliens from the workplace. Section 3005. Prevention of Improper Use of Foreign Identification Documents.

The Commission noted that `[i]n their travels, terrorists use * * * identity fraud.' 34

[Footnote] It wrote that `[a] fundamental problem * * * is the lack of standardized information in `feeder' documents used in identifying individuals [and that f]raud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.' 35

[Footnote] The Commission went on to say that `[o]nce inside the country, [aliens] may seek another form of identification and try to enter a government or private facility.' 36

[Footnote] It found that `today, a terrorist can defeat the link to electronic records by tossing away an old passport and slightly altering the name in the new one.' 37

[Footnote] The staff of the Commission found that `[terrorists] relied on a wide variety of fraudulent documents * * *.' 38

[Footnote]

[Footnote 34: 9/11 Commission Report at 384.]

[Footnote 35: Id. at 386, 390.]

[Footnote 36: Id. at 385.]

[Footnote 37: Id. at 389.]

[Footnote 38: 9/11 and Terrorist Travel at 46.]

Since early 2002, the Mexican government has been promoting its consular identification card, called the `matricula consular,' for acceptance in the United States. Acceptance of the cards encourages illegal immigration to the United States. The only aliens in the U.S. who need additional identification documents, other than passports and U.S.-government issued documents, are those illegally here.

Also, as the then-Assistant Director of the FBI's Office of Intelligence, Steve McCraw, told the Immigration Subcommittee in June 2003, the matricula consular is vulnerable to fraud because the issuance standards are low, the Mexican government does not monitor the cards' issuance, and it is also vulnerable to forgery. 39

[Footnote] Mr. McCraw concluded that domestic acceptance of matricula cards in the United States poses a law enforcement and national security risk. 40

[Footnote] He stated that the criminal threat stems from the fact that matriculas `can be a perfect breeder document for establishing a false identity,' which can facilitate a wide range of crimes, including money laundering. 41

[Footnote] He told of individuals who were arrested with multiple matriculas, each with the same photo but different names, some of whom had matching driver's licenses. 42

[Footnote] He concluded that the terrorist threat posed by these cards that is the `most worrisome' to the FBI: `[t]he ability of foreign nationals to use [consular cards] to create a well-documented, but fictitious, identity in the United States provides an opportunity for terrorists to move freely within the United States without triggering name-based watch lists that are disseminated to local police officers.' 43

[Footnote] Nor is the danger posed by those documents only as `breeder documents' for other documentation--notwithstanding their vulnerability to fraud and abuse, consular ID cards can be presented to board an airliner.

[Footnote 39: See Consular Identification Cards: Hearing Before the Subcomm. On Immigration, Border Security and Claims of the House Comm. on the Judiciary, 108th Cong., at 109-12 (2003).]

[Footnote 40: Id. at 112.]

[Footnote 41: Id. at 111.]

[Footnote 42: Id.]

[Footnote 43: Id. at 112.]

The bill would bar all federal employees from accepting identification cards presented by aliens other than a document issued by the Attorney General or the Secretary of Homeland Security under the authority of the immigration laws, or an unexpired foreign passport. Section 3006. Expedited Removal for Illegal Aliens.

By the mid-1990s, tens of thousands of aliens were arriving at U.S. airports each year without valid documents and making meritless asylum claims, knowing that they would be released into the community pending asylum hearings because of a lack of detention space. Few were ever heard from again. In response, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (`IIRIRA') created the mechanism of `expedited removal.' 44

[Footnote] Under expedited removal, a DHS officer at a port-of-entry can immediately return an alien lacking proper documents to the country of origin unless the alien asks for asylum and can establish a `credible fear' of persecution. By fiscal year 2003, the INS was making over 43,000 expedited removals per year and our airports were no longer being deluged.

[Footnote 44: See INA 235(b).]

IIRIRA provided the Administration with the authority to use expedited removal in the case of any alien who had entered the U.S. illegally and had not been present here for two years. 45

[Footnote] Until recently, the INS and DHS never made use of this power, a fact that amazed the staff of the 9/11 Commission. The staff stated that:

[Footnote 45: See INA 235(b)(1)(A)(iii).]

Despite th[e success of expedited removal at our airports], the INS never expanded expedited removal to include persons attempting to enter illegally across the expansive physical borders between ports of entry. As a result, it was not used against Gazi Ibrahim Abu Mezer, who was able to stay in the United States despite being apprehended three times for illegal entries along the Canadian border. He later became known as the `Brooklyn Bomber' for his plan to blow up the Atlantic Avenue subway in Brooklyn. 46

[Footnote]

[Footnote 46: 9/11 and Terrorist Travel at 97 (footnotes omitted).]

Recently, the Administration has taken a tentative step towards using expedited removal along the southern border because of the large numbers of non-Mexican aliens who have been caught by the Border Patrol and then released into the United States because of a lack of detention space.

Aliens who have crossed the border illegally should be subject to expedited exclusion. These aliens, if they have been in the U.S. less than ten years, have no right to seek cancellation of removal. Unless they are making a claim of asylum and can show a credible fear of persecution, there is no reason not to subject them to expedited removal. Otherwise, the present `revolving door' will continue to spin. We will catch illegal aliens and promptly release them, hoping they will appear for their immigration court hearing months hence. DOJ's Inspector General found that the INS was only able to remove 13% of nondetained aliens with final orders of removal, and only 6% of nondetained aliens from state sponsors of terrorism who had final removal orders. 47

[Footnote]

[Footnote 47: U.S. Department of Justice Office of the Inspector General, Evaluation and Inspections Division, The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders (I-2003-004) at i, ii (2003).]

The bill would require DHS to use expedited removal in the case of all aliens who have entered the U.S. illegally and have not been present here for five years. Given changes to the INA that Congress made in 1996 that amended the entry doctrine and ended the distinctions between exclusion and deportation hearings, it is questionable whether aliens who entered illegally would have any due process rights beyond the minimal rights of an arriving alien seeking admission to the U.S. Assuming that those aliens do, however, the procedures specified in section 3006 would satisfy due process. That these procedures do not require immigration court consideration does not violate due process, nor do they necessarily make the risk of an erroneous deprivation of removal any more likely than would immigration court procedures.

In evaluating whether procedures in any case satisfy due process, the court must consider the interest at stake for the alien, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures. 48

[Footnote] The aliens affected by this section have an interest in not being removed. Those aliens' interests are limited, however, by the paucity of their ties to the United States. In particular, the only aliens who would be impacted by this provision are those who have so few ties (and have been here less than five years) that they are entitled to no immigration benefits.

[Footnote 48: See Landon v. Plascencia, 459 U.S. 21, 34 (1982).]

No precedent suggests that to satisfy due process, an alien must be placed into removal proceedings before an immigration judge under 240 of the INA, as opposed to having the opportunity to explain to an immigration officer within DHS that he or she is not inadmissible under one of the grounds for expedited removal. As the Supreme Court held in one of the seminal cases in immigration law:

This court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in `due process of law' as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends--not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. 49

[Footnote]

[Footnote 49: Yamatayo v. Fisher, 189 U.S. 86, 100-01 (1903) (emphasis added).]

In fact, until the (regulatory) creation of the Executive Office for Immigration Review in 1983, immigration judges were a part of the former INS, the agency charged with the alien's removal. In implementing the expedited removal provisions in IIRIRA, INS recognized the interests of aliens facing removal, and drafted its procedures to protect those interests. 50

[Footnote] Those procedures effectively ensure that aliens are not erroneously removed thereunder: `All officers should be especially careful to exercise objectivity and professionalism when refusing admission to aliens under this [expedited removal] provision. Because of the sensitivity of the program and the potential consequences of a summary removal, you must take special care to ensure that the basic rights of all aliens are preserved * * *. Since a removal order under this process is subject to very limited review, you must be absolutely certain that all required procedures have been adhered to and that the alien has understood the proceedings against him or her. * * * All officers should be aware of precedent decisions and policies relating to the relevant grounds of inadmissibility. * * * [I]t is important that * * * any expedited removal be justifiable and non-arbitrary. 51

[Footnote] The Committee believes that the procedures adopted under this provision will have similar protections. 52

[Footnote]

[Footnote 50: See generally AILA v. Reno, 18 F. Supp.2d 38, 43-44 (D.D.C. 1998).]

[Footnote 51: Id. at 43 (quoting the INS Inspector's Field Manual, ch. 17.15(a), (b)).]

[Footnote 52: The alien's rights in expedited removal would be further protected by the alien's access to seek review in habeas proceedings. See INA Sec. 242(e).]

The government's interest in the efficient enforcement of the immigration laws, on the other hand, is weighty, particularly given the findings of the Commission and its report. As the Commission found: `had the immigration system set a higher bar for determining whether individuals are who or what they claim to be--and ensuring routine consequences for violations--it could potentially have excluded, removed, or come into further contact with several hijackers who did not appear to meet the terms for admitting short-term visitors.' 53

[Footnote] Further, as the Supreme Court has found, `it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.' 54

[Footnote] Given these facts, the procedures described in the bill satisfy the due process for aliens who entered the U.S. illegally (such aliens having extremely limited due process rights). Section 3007. Limit Asylum Abuse by Terrorists.

[Footnote 53: Commission Rewport at 384; see also id. at 390 (`It is elemental to bordere security to know who is coming into our country. We must also be able to * * * respond to entrances between our ports of entry.').]

[Footnote 54: Plascencia, 459 U.S. at 34.]

Terrorists are not supposed to receive asylum, 55

[Footnote] but many have tried. The Commission's staff report on `9/11 and Terrorist Travel' found that `a number of terrorists * * * abused the asylum system' 56

[Footnote] and that `[o]nce terrorists had entered the U.S., their next challenges was to find a way to remain here. Their primary method was immigration fraud * * * [concoct]ing bogus political asylum stories when they arrived * * *.' 57

[Footnote]

[Footnote 55: See INA Sec. 208(b)(2)(A)(v).]

[Footnote 56: 9/11 and Terrorist Travel at 99.]

[Footnote 57: Id. at 47.]

Unfortunately, examples abound. In 1993, Mir Aimal Kansi murdered two CIA employees at CIA headquarters and Ramzi Yousef masterminded the first World Trade Center attack while free after applying for asylum. In the same year, Sheik Umar Abd ar-Rahman plotted to bomb New York City landmarks after he applied for asylum. Just weeks ago, Shahawar Matin Siraj was arrested in New York City for plotting to bomb a subway station. Siraj was free after applying for asylum.

Asylum fraud is endemic. The staff of the 9/11 Commission found that `the asylum system did not detect or deter fraudulent applicants.' 58

[Footnote] `Snakeheads' and other alien smugglers have succeeded in providing the aliens they are smuggling into the U.S. with extensive coaching and `cheat sheets' on what claims to make to get asylum. Successful ploys are quickly duplicated. The Commission staff found that `the asylum system did not detect or deter fraudulent applicants.' 59

[Footnote]

[Footnote 58: Id. at 86.]

[Footnote 59: Id.]

As a result, the number of aliens--mostly illegal aliens seeking any way to avoid deportation--who have applied for and have been granted asylum has skyrocketed in recent years. From 1990 to 2003, the number of aliens granted asylum by asylum officers has increased by 173% and the number of aliens granted asylum by immigration judges increased by 377%. The percentage of cases approved by asylum officers has increased by 93%, and the percentage approved by immigration judges has increased by 61%. When both asylum officers and immigration judges are taken into account, well over half of all asylum applications are now being approved. The total number of aliens granted asylum hit almost 37,000 in 2002 and almost 29,000 in 2003, a 240 percent increase from 1990 to 2003.

Ninth Circuit precedent makes it difficult for immigration judges to deny fraudulent asylum applications by terrorists or simply by scam artists. In recent decisions, the Ninth Circuit has failed to give deference to the adverse credibility determinations of immigration judges in asylum cases. It is well accepted that the initial trier of fact is in the best position to assess the credibility of a witness who appears before him. The Supreme Court has held that `[t]o reverse the BIA finding, [the reviewing court] must find that the evidence not only supports the conclusion, but compels it.' 60

[Footnote] Despite these rules, however, the Ninth Circuit has adopted a body of circuit law that relieves the applicant of his burden of proof in asylum cases and allows the court to substitute its own views about contested record evidence for reasonable determinations of immigration judges or the BIA: `the majority resolves every ambiguity in favor of [the asylum applicant], whereas [the correct] standard of review requires us to resolve every ambiguity in favor of the decision-maker below.' 61

[Footnote]

[Footnote 60: INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).]

[Footnote 61: Cardenas v. INS, No. 01-70557, 2002 WL 1286076, at *6 (9th Cir. June 12, 2002) (Graber, J. dissenting).]

The court essentially prevents immigration judges from making adverse credibility determinations by limiting to the point of a nullity the factors (such as inconsistencies and demeanor observations) that the immigration judge can consider in finding an alien incredible. 62

[Footnote] For example, it has held that an immigration judge could not take into account, when determining whether an alien's allegations of police beatings were credible, the alien's inconsistent testimony about when and where he was beaten. 63

[Footnote] It has ruled that the BIA could not draw inferences from the `disjointed[ness] and `incoherence' of the applicant's testimony, speculating that those features of the testimony `were possibly the result of mistranslation or miscommunication.' 64

[Footnote] It ignores the rule that `[i]f a witness lies on any point, now matter how irrelevant it may at first appear * * * the witness's credibility is tenuous at best, and the entire testimony can be discredited.' 65

[Footnote] It ruled that an applicant's failure to mention family-planning issues in his 1995 asylum application, and his statement in 1995 that he was unmarried, failed to cast doubt upon respondent's testimony in the second asylum proceeding that he was married and his wife was pregnant when he fled China in 1995, and that he fled because he was being pursued by family-planning officials. 66

[Footnote] It treats each inconsistency or gap in an applicants evidence as an isolated defect, rather than considering them cumulatively. 67

[Footnote]

[Footnote 62: See e.g., Singh v. INS, 292 F.3d 1017 (9th Cir. 2002); Bandari v. INS, 227 F.3d 1160 (9th Cir. 2000); Shah v. INS, 220 F.3d 1062 (9th Cir. 2000); Abovian v. INS, 219 F.3d 972 (9th Cir. 2000), reh'g denied, 257 F.3d 971 (9th Cir. 2001).]

[Footnote 63: See Bandari, 227 F.3d at 1165-66.]

[Footnote 64: See Abovian, 219 F.3d at 979 (quoting Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999) (internal quotation marks omitted)).]

[Footnote 65: See, e.g., Jeffrey Kestler, Questioning Techniques and Tactics Sec. 1.22 (3d ed. 1999).]

[Footnote 66: See INS v. Yi Quan Chen, 266 F.3d 1094 (9th Cir. 2001).]

[Footnote 67: See id.]

Other Courts of Appeals adhere to more reasonable rules, for example that an asylum applicant has to provide `convincing reasons' for inconsistency in his evidence, 68

[Footnote] that the court should review the collective significance of inconsistencies, 69

[Footnote] and that an asylum applicant's not remembering the details of his father's kidnaping was `the very stuff of legitimate impeachment.' 70

[Footnote] Given that government attorneys are barred from asking the foreign government about the facts regarding the asylum claimants, 71

[Footnote] about the only evidence available to the government on which to deny an asylum application is the perceived credibility of the applicant. If a criminal jury can sentence a criminal defendant to life imprisonment or execution based on adverse credibility determinations, certainly an immigration judge can deny an alien asylum on this basis.

[Footnote 68: See Mansour v. INS, 230 F.3d 902, 906 (7th Cir. 2000).]

[Footnote 69: See Chun v. INS, 40 F.3d 76, 78-79 (5th Cir. 1994).]

[Footnote 70: See Bojorques-Villanueva v. INS, 194 F.3d 14, 17 (1st Cir. 1999).]

[Footnote 71: See 8 C.F.R. Sec. 208.6.]

In 1988, the Ninth Circuit created a disturbing precedent that has made it easier for suspected terrorists to apply for and receive asylum. It held that punishment inflicted on account of perceived membership in an armed group may constitute persecution on account of the political opinion of that armed group, a doctrine known as `imputed political opinion.' 72

[Footnote] Thus, aliens who have been arrested in the United States for suspicion of affiliation with terrorist organizations argue that the foreign government believes that they are members of a terrorist organization. Some have received asylum because of a fear of persecution if returned because of an affiliation with these groups. 73

[Footnote] Of course, the court has to rule that the foreign government `mistakenly' believes the asylum applicant is a terrorist because terrorists are barred from receiving asylum. As a member of the Board of Immigration Appeals has found:

[Footnote 72: See Blanco-Lopez v. INS, 858 F. 2d 531 (9th Cir. 1988).]

[Footnote 73: See, e.g., Singh v. Ilchert, 63 F. 3d 1501 (9th Cir. 1995).]

It would appear that the Ninth Circuit holds the entirely novel view that the violent overthrow of a democratically elected government is a `political opinion' like any other and that no government may object to its expression. If a guerilla organization arose in this country aimed at the violent overthrow of the Federal Government through a program of murder of government and law enforcement officials and federal judges, it would appear that governmental suppression of this organization would be an act of persecution in the Ninth Circuit. After all, if that court could find that [a government] `persecuted [the asylum applicant] because it believed him to be a guerrilla,' then it is clear that `being' a guerrilla is somehow a form of `political opinion,' regardless of the actual objectives of the guerrillas and their methods. If this is so, then that court could not logically object to the murder of federal judges by `guerrillas' who are only acting out their `political opinion,' whether it be a form of Marxism or `Aryan supremacy' * * * [I]f * * * `being' a guerrilla is the acting out of a political opinions that policemen should be killed * * * then so is the view that Jews should be killed because they are believed to control the world, or that federal judges should be murdered because they are considered an instrument of repression of Caucasian Christians. * * * `Being' a guerrilla is not a form of political opinion. `Being' a guerilla means being engaged in acts of violence and illegality. I know of no legal principle or form of logic that states that `being' engaged in such acts automatically transforms the `political opinions' that drive those acts into a form of political opinions protected by United States law. * * * One faces the remarkable possibility under [the Ninth Circuit doctrine] that the more egregious the act and the greater the outrage, the higher the probability of being granted asylum, on the ground that claimed police mistreatment will be on `account of political opinion,' not human failings, vengeance, or anger provoked by the extremist's acts. 74

[Footnote]

[Footnote 74: Matter of R-, 20 I. & N. 621, 636-37 (1992) (M. Heilman, concurring).]

This section would overturn this precedent of the Ninth Circuit. It would reassert that the burden of proof in an asylum case is on the applicant and that the testimony of the applicant may be sufficient to sustain such burden without corroboration, but only if it is credible, is persuasive, and refers to specific facts that demonstrate that the applicant is a refugee. Where it is reasonable that an applicant would present corroborating evidence, such evidence must be provided unless a reasonable explanation is given as to why such information is not provided. No court shall reverse a determination made by an immigration judge or BIA with respect to the availability of corroborating evidence unless the court finds that a reasonable adjudicator is compelled to conclude that such corroborating evidence is unavailable.

This section also provides a non-exhaustive list of factors that an immigration judge can consider in assessing credibility, such as the demeanor, candor, or responsiveness of the applicant or witness, the consistency between the applicant's or witness's written and oral statements, whether or not under oath, made at any time to any officer, agent, or employee of the United States, the internal consistency of each such statement, the consistency of such statements with the country conditions in the country from which the applicant claims asylum, as presented by the Department of State, and any inaccuracies or falsehoods in such statements. Finally, aliens who allege they will be persecuted because of terrorist ties will not longer be presumed to fear persecution on account of political opinion. Rather, the section requires such that such applicant establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be the central motive for their claimed persecution.

Section 3008. Revocation of Visas

The INA allows the State Department to revoke visas after they have been issued. 75

[Footnote] Revocation is problematic, however, when the alien has entered the U.S. by the time the visa has been revoked because there is no provision that allows DHS to remove an alien whose visa has been revoked. If DHS has information that establishes that the alien is otherwise removable (such as for a crime, or illness), it will place the alien in removal proceedings on those grounds. However, DHS bears the burden of proof in deportation proceedings, and if the agency cannot prove that the alien is deportable, it must allow the alien to remain until the alien's period of authorized admission ends.

[Footnote 75: See INA Sec. 221(i).]

This policy is a particular problem in terrorism cases because information linking an alien to terrorism is often classified, and classified information cannot be used to prove deportability. In October 2002, GAO reported that the State Department had revoked 105 visas that had been erroneously issued to aliens about whom there were questions about possible terror ties before their background checks had been completed. The GAO found that immigration agents did not attempt to track down those aliens whose visas had been revoked because of the difficulty in removing those aliens from the United States. 76

[Footnote] The bill would respond to this problem by allowing the government to deport a nonimmigrant alien whose visa has been revoked. The section will prevent an alien whose visa has been revoked to challenge the underlying revocation in court, where the government might again be placed in a position of either exposing its sources or permitting a potentially dangerous alien to remain in the U.S.

[Footnote 76: See U.S. General Accounting Office, Border Security: New Policies and Procedures Are Needed to Fill Gaps in the Visa Revocation Process (GAO-03-798) at 5 (2003).]

The bill also addresses a similar loophole that would prevent DHS from revoking a nonimmigrant visa petition that has been granted for an alien in the U.S., even before that alien has received the visa. Currently, DHS cannot revoke a petition even if it appears that the alien may not be eligible for the visa, even if the petition was fraudulent and submitted by an alien terrorist. The bill would delete archaic language that was added to the INA decades ago, when travel to the U.S. was long and laborious, and when adjustment of status, a legal fiction by which aliens in the U.S. are treated as if they had reentered in a new legal status, was rare.

Section 3009. Streamlined Removal Process

The staff of the 9/11 Commission wrote that:

In many cases, the act of filing for an immigration benefit sufficed to permit the alien to remain in the country until the petition was adjudicated. Terrorists were free to conduct surveillance, coordinate operations, obtain and receive funding, go to school and learn English, make contacts in the U.S., acquire necessary materials, and execute an attack [and that] immigration cases against suspected terrorists were often mired for years in bureaucratic struggles over alien rights and the adequacy of evidence. 77

[Footnote]

[Footnote 77: 9/11 and Terrorist Travel at 98, 143.]

In 1996, Congress attempted to streamline the judicial review of immigration orders entered against aliens who have committed serious crimes in the U.S. IIRIRA sought to eliminate judicial review of immigration orders for most criminals, recognizing that criminal aliens had received a full measure of due process in their criminal cases and immigration proceedings, and that additional review typically only delayed their inevitable removal as criminals were statutorily barred from most forms of immigration relief. 78

[Footnote] IIRIRA also limited the judicial review of discretionary relief issues for all aliens, on the basis that the law committed such matters to the judgment of the Attorney General.

[Footnote 78: See 306 of Pub L. No. 104-208.]

Because the 1996 reforms lacked express language precluding district court review, however, the Supreme Court has read the provision to give aliens judicial review possibilities other than, or in addition to, the review 79

[Footnote] specified in the immigration laws. As Justice Scalia stated in dissent:

[Footnote 79: See INS v. St. Cyr, 533 U.S. 289 (2001).]

The Court has therefore succeeded in perverting a statutory scheme designed to expedite the removal of criminal aliens into one that now affords them more opportunities for (and layers of) judicial review (and hence more opportunities for delay) than are afforded non-criminal aliens--and more than were afforded criminal aliens prior to the enactment of IIRIRA. This outcome speaks for itself; no Congress ever imagined it. 80

[Footnote]

[Footnote 80: Id. at 335 (Scalia, J., dissenting).]

Consistent with the settled principle that petitions for review should be the `sole and exclusive' means of judicial review for aliens challenging their removal, the bill streamlines immigration review while protecting an alien's right to review by an independent judiciary. For criminal aliens and aliens who are not permanent residents, review would be only in the circuit court and the scope of review would be limited to: (1) whether the individual is an alien; (2)

whether he is deportable under the INA; (3) whether he was ordered removed under the INA; and (4) whether he meets the criteria for withholding of removal or Torture Convention protection. For non-criminal lawful permanent resident aliens, review would be only in the circuit court and would be available for all non-discretionary determinations. This assures that every alien may obtain review of his or her final order of removal in the courts of appeals. Under this provision, criminal aliens would have the opportunity for circuit court review of constitutional claims and pure questions of law. These provisions are fully consistent with both the Supreme Court's decision in St. Cyr and settled jurisprudence regarding the availability of habeas corpus. These reforms will ensure that aliens will have a day in court, but that criminals will not be able to delay their lawful removal from the United States.

Sections 3031-32. No Bar to Removal for Terrorists and Criminal Aliens

Legislation implementing the Convention Against Torture was enacted in 1998. 81

[Footnote] The Convention ensures that human rights violators and others engaged in torture are brought to justice and details the process for extradition, detention, criminal prosecution, and victim compensation. The Convention also prohibits the return of an alien to a country where there are substantial grounds for believing that he or she would be in danger of being tortured. When the Senate passed the implementing legislation, it stated that `to the maximum extent consistent with the obligations of the United States under the Convention * * * the [INS] regulations * * * shall exclude from the protection of such regulations aliens described in section 241(b)(3)(B) of the Immigration and Nationality Act.' What kinds of aliens are so described? Aliens who have engaged in Nazi persecution or genocide, aliens who have engaged in terrorist activity, aliens who have been convicted of particularly serious crimes and are thus a danger to the community of the U.S., aliens who committed serious crimes outside the U.S., and aliens who there are reasonable grounds to believe are a danger to the security of the U.S. This makes perfect sense. After all, the same aliens are barred under the INA from receiving asylum. 82

[Footnote] The Justice Department, however, clearly disobeyed Congress's instructions in writing the regulations creating relief from deportation under the Convention. 83

[Footnote] The regulations did not exclude such dangerous individuals from relief from deportation.

[Footnote 81: See the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G., Sec. 2242 (1998).]

[Footnote 82: See INA Sec. 208(b)(2).]

[Footnote 83: See 8 C.F.R. Sec. 208.16-18.]

The Immigration Subcommittee conducted a hearing in July 2003 on the effect of the INS regulations. 84

[Footnote] From March 1999 through August 2002, immigration judges granted hundreds of criminal aliens relief from deportation under the Convention. 85

[Footnote] This included two murderers that we know of, one who killed a spectator at a Gambian soccer game and one who was implicated in a mob-related quintuple homicide in Uzbekistan.

[Footnote 84: See Immigration Relief Under the Convention Against Torture for Serious Criminals and Human Rights Violators: Hearing Before the Subcomm. On Immigration, Border Security and Claims of the House Comm. on the Judiciary, 108th Cong. (2003).]

[Footnote 85: See letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice, to Chairman F. James Sensenbrenner, Jr. (July 7, 2003).]

The danger posed by the requirement that these aliens be allowed to remain in the U.S. was increased exponentially by the 2001 Supreme Court decision of Zadvydas v. Davis, 86

[Footnote] in which the Court made clear that it would strike down as unconstitutional the indefinite detention by DHS of aliens with removal orders whose countries will not take them back, except in the most narrow of circumstances. 87

[Footnote] Based on this decision, DOJ decided that it had no choice but to release back onto the streets those criminal aliens who had received protection under the Convention. By the time of the hearing in July of 2003, approximately 500 criminal aliens who had received relief under the Convention had been released into American communities 88

[Footnote] --including the murderer from Uzbekistan. The Gambian murderer might also have been released, but he decided to return home to Gambia voluntarily.

[Footnote 86: 533 U.S. 678 (2001).]

[Footnote 87: `We have upheld preventive detention based on dangerousness only when limited to specially dangerous individuals * * *. Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.' Id. at 690-91, 696 (emphasis added).]

[Footnote 88: See Immigration Relief Under the Convention Against Torture at 2 (statement of John Hostettler, Chairman of the Subcommittee on Immigration, Border Security and Claims).]

The Committee discovered at the hearing that even a Nazi war criminal had sought to avoid deportation through the Convention. 89

[Footnote] Terrorists have received relief from removal under the Convention Against Torture, including an alien involved in the assassination of Anwar Sadat. 90

[Footnote] Days ago, a suspected al Qaeda operative made claim under the Convention to forestall deportation. 91

[Footnote] Osama Bin Laden himself could probably frustrate deportation by making a Convention claim--since the more heinous a person's actions, the more likely that he might be subject to torture in his home country.

[Footnote 89: See id. at 15 (statement of Eli Rosenbaum, Director, Office of Special Investigations, U.S. Department of Justice).]

[Footnote 90: See Soliman v. U.S., 296 F. 3d 1237 (11th Cir. 2002).]

[Footnote 91: See Stephen Dyer, Inmate Fights to Stay in U.S., York Beacon Journal, Sept. 22, 2004.]

The bill would make the Convention regulations adhere to the intent of Congress. 1Aliens who have engaged in Nazi persecution or genocide, terrorist aliens, aliens who have been convicted of particularly serious crimes and are thus a danger to the community of the

U.S., aliens who committed serious crimes outside the U.S., and aliens for whom there are reasonable grounds to believe are a danger to the security of the U.S. would not be allowed to frustrate their deportations and be released onto the streets of our communities.

Section 3033. Removal of Aliens

At the present time, an arriving alien turned back at the border is removed to the country from which he came to the U.S., or to his country of citizenship or nationality. 92

[Footnote] Aliens deported after admission are allowed to designate a country of removal, but the Attorney General can disregard the designation if that country refuses to accept the alien or if removal would be prejudicial to the U.S.

[Footnote 92: See INA Sec. 241.]

The current removal provisions have been used by certain aliens to block DHS from removing them to countries that have no governments to formally accept them. In particular, DHS is prevented by court order from sending aliens back to Somalia. 93

[Footnote] Under the court's ruling, DHS may not remove any criminal alien back to Somalia, regardless of the severity of the offense or the danger that the alien poses. More importantly, however, DHS cannot remove any terrorist aliens to that country. In December 2001, Secretary of State Colin Powell stated that `some bin Laden followers are holed up [in Somalia], taking advantage of the absence of a functioning government,' and Joint Chiefs Chairman Richard Myers also stated that month that the U.S. has `strong indications Somalia is linked to Osama Bin Laden.' 94

[Footnote] A further indication of the terror threat posed by Somalia is that Al-Ittihad, which President Bush named in his September 23, 2001, executive order blocking property of, and prohibiting transactions with, terrorist groups, operates in the country. 95

[Footnote] Moreover, a rule that aliens cannot be returned to countries that have no government to accept them will encourage illegal immigration from those countries, and will encourage other aliens to fraudulently say that they are nationals of one of those countries, to avoid removal.

[Footnote 93: See e.g., Ali v. Ashcroft, 346 F. 3d 873 (9th Cir. 2003).]

[Footnote 94: Ted Dagne, Congressional Research Service Report for Congress: Africa and the War on Terrorism at 13 (2002).]

[Footnote 95: See id.]

The section would move the authority for designating a country of removal to the Secretary of DHS, and give the Secretary more power to remove an alien to a specific country. It would also allow the Secretary to remove an alien to a country of which the alien is a citizen or national unless the country prevents the alien from entering. This would give the Secretary the flexibility not to return an alien to a place where the alien would be free to engage in terrorist activities.

Section 3041. Bringing in and Harboring Certain Aliens

The Commission staff reported `[t]here is also evidence that terrorists used human smugglers to sneak across borders.' 96

[Footnote] The bill would increase criminal penalties for alien smuggling and require the Secretary of DHS to develop and implement an outreach program to educate the public in the U.S. and abroad about the penalties for illegally bringing in and harboring aliens.

[Footnote 96: 9/11 and Terrorist Travel at 59.]

Section 3081. Studies on Worldwide Machine-Readable Passports and Worldwide Travel History Database

The Commission recommended that `[t]he Department of Homeland Security, properly supported by the Congress, should complete, as quickly as possible a biometric entry-exit screening system, including a single system for speeding qualified travelers.' 97

[Footnote]

[Footnote 97: 9/11 Commission Report at 389.]

This section requires the Department of State's Office of Visa and Passport Control and the GAO each to conduct a study on the feasibility, cost, and benefits of: (1) requiring all passports to be machine-readable, tamper-resistant and with biometric identifiers; and (2) the creation of a database containing a record of all entry and exit information so that border and consular officials may ascertain the travel history of the visitor or a prospective entrant. This requirement would allow consular officers and immigration inspectors to ascertain the travel history of any U.S. citizen or foreign visitor seeking to enter the U.S., even if that entrant has a new passport.

Section 3082. Expanded Pre-inspection at Foreign Airports

In addition to recommending that DHS complete a biometric entry-exit screening system, the Commission stated that:

The U.S. government cannot meet its own obligations to the American people to prevent the entry of terrorists without a major effort to collaborate with other governments. We should do more to exchange terrorist information with trusted allies, and raise U.S. and global border security standards for travel and border crossing over the medium and long term through extensive international cooperation. 98

[Footnote]

[Footnote 98: Id. at 390.]

Currently, DHS inspects passengers who are traveling to the U.S. at 14 foreign airports instead of inspecting them at ports of entry in the U.S. The bill would expand this program to include up to an additional 25 airports. In addition, the current selection criteria for pre-inspection locations are based on reducing the number of aliens who arrive to the U.S. who are

inadmissible. Section 3082 states that the selection criteria should also include the objective of preventing the entry of potential terrorists. The additional locations should be operational by January 1, 2008.

Section 3083. Immigration Security Initiative

The Immigration Security Initiative is a DHS operated program that assists airline personnel at foreign airports in identifying fraudulent travel documents. The program's objective is to identify passengers, including potential terrorists, who seek to enter the U.S. using fraudulent documents, prior to these passengers being allowed to board flights for the U.S. Currently, the program is in place in only two foreign airports. This section expands the program to at least 50 foreign airports by December 31, 2006.

Section 3084. Responsibilities and Functions of Consular Officers

This section improves the operation of U.S. consular offices in preventing the entry of terrorists. First, it increases the number of consular officers by 150 per year for fiscal years 2006 through 2009. Second, it places limitations on the use of foreign nationals to screen nonimmigrant visa applicants by stating that all applications shall be reviewed and adjudicated by a U.S. consular officer. Third, it requires that the training program for consular officers include training in detecting fraudulent documents and working directly with DHS immigration inspectors at ports of entry. This requirement is needed because consular officers currently do not train directly with immigration inspectors to learn all of the elements of our screening system as part of their training regimen. Lastly, this section requires the Secretary of State to place antifraud specialists in the one hundred posts that have the greatest frequency of presentation of fraudulent documents.

Section 3085. Increase in Penalties for Fraud and Related Activity

This section amends 18 U.S.C. Sec. 1028 to increase penalties for the possession and transfer of fraudulent government identification documents, including fraudulent U.S., state, and foreign government documents. The Commission recommended: `The Department of Homeland Security, properly supported by the Congress, should complete, as quickly as possible a biometric entry-exit screening system, including a single system for speeding qualified travelers.' Commission Report at 389. `The U.S. government cannot meet its own obligations to the American people to prevent the entry of terrorists without a major effort to collaborate with other governments. We should do more to exchange terrorist information with trusted allies, and raise U.S. and global border security standards for travel and border crossing over the medium and long term through extensive international cooperation' Id. at 390.

Section 3086. Criminal Penalty for False Claim to Citizenship

This section would make it a violation of law to make a false claim of citizenship in order to enter or remain in the United States. This also follows the Commission's recommendation regarding a biometric entry-exit screening system.

Section 3090. Biometric Entry and Exit Data System

As noted above, the Commission recommended a biometric entry-exit screening system.' 99

[Footnote] This section calls on the Secretary of DHS to develop a plan to accelerate the full implementation of the requirement of an automated entry and exit data system at U.S. ports of entry. The section also calls for the Secretary of DHS to implement a plan to expedite the processing of registered travelers at ports of entry.

[Footnote 99: Id. at 389.]

TITLE V--GOVERNMENT RESTRUCTURING

Sections 5001-5010. Faster and Smarter Funding for First Responders

This section implements the Commission's recommendations regarding first responder funding. Specifically, Sec. 5001-10 fully incorporate H.R. 3266, the `Faster and Smarter Funding for First Responders Act,' which follows the Commission's recommendations concerning the delivery of Federal homeland security assistance to state and local governments. The Commission recommended that: `Homeland Security assistance should be based strictly on an assessment of risks and vulnerabilities.'

This section recognizes the need to address our greatest risks and vulnerabilities first, and then work down from there. This section does so in several important respects. First, it requires DHS to allocate homeland security assistance funds to states or regions based upon the degree to which such an allocation would lessen the threat to, vulnerability of, and consequences for persons and critical infrastructure. Second, it reduces the current state minimum and restructures the allocation process. Under the current system, none of the funds available under the State Homeland Security Grant Program are allocated on the basis of risk. Instead, each state first receives a base amount equal to 0.75 percent of the total, and then an additional amount based solely on population. Under this section, in contrast, DHS must first allocate all funds based on risk, and then provide, if necessary, additional funds to those States, territories, or certain Indian tribes that have not met a significantly reduced minimum threshold of funding. Under this scheme, 99% of the money will be allocated strictly on the basis of risk.

In 2001, the Committee on the Judiciary, through the enactment of the U.S.A. PATRIOT Act, authorized the Office for Domestic Preparedness in DOJ to provide State grants that enhance the capability of State and local jurisdictions to prepare for and respond to terrorist acts. The Committee on the Judiciary changed the name of this office to the Office of

Domestic Preparedness in Public Law 107-273, the `21st Century Department of Justice Appropriations Authorization Act,' and further authorized the ODP. The ODP was transferred from the Department of Justice to the Department of Homeland Security in H.R. 5005, the `Homeland Security Act,' which became Public Law 107-296 on November 25, 2002.

Section 5051-5054. Federal Bureau of Investigation Revitalization

The Commission found that the FBI has made significant progress in improving its intelligence capabilities but recognized that the FBI Director himself recognizes that there is much to do. The Commission made a specific recommendation that embodies the vision of FBI Director Mueller regarding the needs to broaden recruitment efforts, retain experience, and to facilitate a trend towards specialization rather than the Bureau's historical model of generalization. `A specialized and integrated national security workforce should be established at the FBI consisting of agents, analysts, linguists, and surveillance specialists who are recruited, trained, rewarded, and retained to ensure the development of a culture imbued with a deep expertise in intelligence and national security' 9/11 Commission Report at 425-426. This section implements by giving the Director a variety of tools to retain employees with special skills.

Section 5091. Requirement that Agency Rulemaking Take Into Consideration Impacts on Individual Privacy

This section requires the President to consider the privacy impact of federal regulations. It reflects the following Commission recommendation: `As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared.' Commission Report at 394. Section 5091 requires a federal agency to prepare a privacy impact analysis for proposed and final rules and to include this analysis in the notice for public comment issued in conjunction with the publication of such rules. This requirement is similar to other analyses that agencies currently conduct, such as those required by the Regulatory Flexibility Act and the E-Government Act of 2002. While Sec. 5091 makes no substantive demands on federal agencies with respect to privacy, it is intended to ensure that federal agencies safeguard personally identifiable information by requiring these agencies to consider the privacy implications presented by the collection, use, dissemination, and protection of such information. Section 5091 consists of the text of H.R. 338, the `Federal Agency Protection of Privacy Act,' a noncontroversial, bipartisan bill that passed by voice vote in the last Congress.

Section 5092. Chief Privacy Officers for Agencies with Law Enforcement or Anti-terrorism Functions

Section 5092 directs the head of each Federal agency with law enforcement or anti-terrorism functions to appoint a chief privacy officer with primary responsibility within that agency for privacy policy. The provision requires the chief privacy officer to ensure that personally identifiable information is protected and to file annual reports with Congress on the agency's activities that affect privacy, including complaints of privacy violations. Section 5092 is largely premised on legislation establishing the first statutorily mandated privacy officer, which was included in the Homeland Security Act of 2002, Pub. L. No. 107-296, Sec. 222, 116 Stat. 2135, 2155 (2002), and pending bipartisan legislation reauthorizing DOJ, H.R. 3036, 108th Cong. 305 (2004). Section 5092 reflects the Commission's recommendation on privacy noted above.

Sections 5101-5105, Mutual Aid and Litigation Management Authorization Act of 2004

The Commission Report included the recommendation that `Congress should pass legislation to remedy the long-standing indemnification and liability impediments to the provision of public safety mutual aid * * * where applicable throughout the nation' Commission Report at 397. Sections 5101-5105 reflect this recommendation.

These mutual aid provisions allow states, if they so choose, to enter into mutual aid agreements to provide mutual aid in response to emergencies. They allow party states' first responders to carry with them into other states the liability regime of their home states. The mutual aid provisions also provide that the workers' compensation and death benefits of first responders who answer calls in other party states, and the home state rules that govern them, also follow them into other states. These sections also provide that whenever any person holds a certificate issued by a responding party that evidences the meeting of professional standards, such person shall be deemed so certified by the requesting party to provide assistance under the mutual agreement. The litigation management provisions allows states to enter into `litigation management agreements' in which they could agree that, in the event first responders from several states respond to a terrorist attack in another state, they could exercise certain options and agree on the liability regime that would apply in that circumstance to claims brought against first responders and arising out of terrorist attacks, including putting any such claims in federal court, a ban on punitive damages, and a collateral source offset rule.

Sections 5041-5045, Appointments Process Reform

The Commission recommendations include the recommendation to `minimize as much as possible the disruption of national security policymaking during the change of administrations by accelerating the process for national security appointments' Commission Report at 422. This section responds to this recommendation in three ways. First, Sec. 5041

would reduce the number of national security positions that are subject to Senate confirmation. National Security Positions are defined as positions `concerned with the protection of the Nation from foreign aggression, terrorism, or espionage * * * that require regular use of, or access to, classified information.' This will include some positions at DOJ and the FBI.

Those National Security Positions that are classified at Executive Levels IV and V (5 USC 5315 or 5316) would be appointed by the President directly, without Senate confirmation. This would include, among others, the assistant attorneys general at DOJ. Those National Security Positions that are classified at Executive Levels II and III (5 USC 5313 or 5314) are still appointed by the President and subject to Senate confirmation. However, if the Senate does not vote on confirmation within 30 days after the president submits the nomination, the appointment shall be made by the president alone. Positions covered by this provision include, among others, the deputy attorney general, the solicitor general, and the director of the FBI. In addition to these national security appointments, agencies are required under Sec. 5044 to submit a plan for reducing the number of presidential appointments that require Senate confirmation.

Second, Sec. 5042 extends the length of time that a newly inaugurated President can appoint an acting officer to fulfill the duties of a job performed by someone whose confirmation is required by the Senate. It also removes certain qualifications in current law relating to those acting officers, provided that the office they are filling is one of 20 `specified national security positions.'

Finally, Sec. 5043 streamlines the financial reporting process for intelligence personnel. It substantially reduces the amount of detail that appointees must provide regarding their sources of income, assets and liability. For example, this section reduces the number of income reporting categories from eleven to five. It also streamlines income reporting for spouses and dependants. It is believed that these reductions still provide the level of detail necessary for the Office of Government Ethics to determine whether conflicts of interest exist.

AMENDMENTS ADOPTED IN COMMITTEE

The Committee adopted several amendments to H.R. 10 that are included within its overall amendment in the nature of a substitute.

A manager's amendment offered by Chairman Sensenbrenner and adopted by voice vote makes various technical and other changes to the legislation. As introduced, H.R. 10 provided the CIA with overall direction for the collection of national intelligence through human sources. The amendment preserves and reiterates the congressional prohibition on domestic human intelligence activities undertaken by the CIA. CIA direction and coordination of FBI human intelligence within the U.S. is inconsistent with the long-standing 1947 National Security Act ban on CIA law enforcement powers and internal security functions. The amendment also requires the Secretary of DHS to consult with the Attorney General regarding various new security procedures for airports and aviation contained in the bill and requires that reports on the use of these procedures be provided to the Judiciary Committee.

The Sensenbrenner amendment further requires the Assistant Secretary for ICE and the Director of Federal Air Marshal Service of DHS, in coordination with the Assistant Secretary of Homeland Security, ensure that Transportation Security Administration screeners and Federal Air Marshals receive training in identifying fraudulent identification documents, including fraudulent or expired visas and passports, and allows such training to be made available to other federal law enforcement agencies and local law enforcement agencies located in border states. The Committee reported by voice vote a second degree amendment to the Sensenbrenner amendment offered by Mr. Scott to strike sense of Congress language relating to the Transportation Security Administration examining passenger records for violent criminals and out standing warrants.

The Committee adopted by voice vote an amendment offered by Mr. Schiff that seeks to prevent the proliferation of weapons of mass destruction by expanding, improving and increasing funding for current non-proliferation programs including the Proliferation Security Initiative, programs for Cooperative Threat Reduction, and other non proliferation programs. The President is directed to submit to Congress no later than 180 days after the date of the enactment of this Act a non-proliferation strategy.

The Committee adopted by voice vote an amendment offered by Mr. Nadler to require the Secretary of DHS, in consultation with the Attorney General and appropriate federal, state, and local government agencies, as well as security experts and other interested persons, to issue regulations concerning the shipment of extremely hazardous materials not later than 180 days after the enactment of the legislation.

The Committee adopted by voice vote an amendment by Mr. Schiff that provides that whoever develops, possesses, or attempts or conspires to develop or possess radiological weapons be imprisoned for any term or for life. The amendment specifies that if persons or property of the U.S. or a national of the U.S. are threatened with these weapons in the U.S. or abroad they are also subject to a prison term for any term of years or for life; if death is a result of this violation, then the punishment may be death.

The Committee adopted by voice vote an amendment offered by Mr. Delahunt that requires the head of each department or agency of the federal government that is engaged in any activity to use or develop data mining technology to submit a public report to Congress on all such activities of the department or agency under the jurisdiction of that official. This

amendment establishes criteria for the content of the report and requires that it be submitted within 90 days after enactment of this legislation and requires that it be updated each year.

The Committee adopted by voice vote an amendment by Mr. Schiff that provides that the U.S. work with the international community to develop an international legal regime to enable the interdiction of nuclear material and technology.

The Committee adopted by voice vote an amendment by Mr. Weiner that reauthorizes the COPS program as a single grant program with several purposes including to hire officers to perform intelligence, antiterrorism, or homeland security duties exclusively. This language is similar to language that the Committee adopted and the House passed as part of H.R. 3036, the DOJ reauthorization bill.

The Committee adopted by voice vote an amendment offered by Ms. Lofgren to establish an Integrated Biometric Entry-Exit Screening System with respect to the biometric entry/exit data system. It ensures that this biometric database is accessible to all persons processing immigration benefits, including visa applications with the Department of State, immigration-related filings with the Department of Labor, cases pending before the Exeuctive Office for Immigration Review, and matters pending or under investigation before DHS.

The Committee adopted by voice vote an amendment offered by Mr. Schiff expressing the sense of Congress that removing potential nuclear weapons materials from vulnerable sites around the world reduces the risk of terrorist attack and delineating several actions to reduce the threat of terrorist acquisition of nuclear materials. The amendment further requires, no later than 30 days after the submission of the President's FY 2006 budget, a report to Congress that lists where highly-enriched uranium or separated plutonium is located worldwide, a strategic plan to reduce the threat of this material falling into terrorist hands, an estimate of the funds required to secure these materials, and recommendations concerning the need for further legislation or international agreements to secure these nuclear sites.

The Committee adopted by voice vote an amendment offered by Mr. Nadler to authorize the Secretary of DHS to provide $100 million in security assistance to 501(c)(3) organizations that demonstrate they are at high risk of a terrorist attack based upon: Specific threats of international terrorist organizations; prior attacks against similarly situated organizations by international terrorists; the vulnerability of the specific site; the symbolic value of the site as a highly recognized American institution; or the role of the institution in responding to terrorist attacks. After the funds have been expended for the highest risk institutions, federal loan guarantees would be available to make loans available on favorable terms. Funds would be administered by a new office in the Department dedicated to working with high-risk non-profits.

The Committee adopted by voice vote an amendment offered by Mr. Weiner that would permit an applicant to use first responder grants to pay for personnel engaged in counterterrorism and intelligence activities, regardless of the date such persons were hired. This allows reimbursement for personnel costs to be retroactive. The Committee also adopted by voice vote an amendment offered by Mr. Weiner to provide reimbursement for overtime and other fixed costs incurred for homeland security purposes after September 11, 2001.

The Committee adopted by voice vote an amendment offered by Ms. Blackburn that establishes a pilot study to examine specific topics to be addressed in a report from the Attorney General, to identify current procedures already in place, and to make recommendations for consolidation and standardization of employee criminal background checks. The amendment requires the study to consider the utilization of commercial databases, state databases, any feasibility studies, and privacy rights and other employee protections. The amendment also adds to the bill the text of S.1743, the `Private Security Officer Employment Authorization Act' which passed the Senate by unanimous consent at the end of 2003.

The Committee adopted by voice vote an amendment by Mr. Berman that adds a new section to the Foreign Intelligence Surveillance Act of 1978. It allows the court to assume that a non-U.S. person who is engaged in terrorism is an agent of a foreign power under the Act.

The Committee adopted by voice vote an amendment offered by Mr. Schiff that amends the Racketeer Influenced and Corrupt Organization Act by adding crimes having to do with weapons of mass destruction to the list of specified unlawful activities that serve as predicates for the money laundering statute.

The Committee adopted by voice vote an amendment by Ms. Jackson Lee to increase criminal penalties for alien smuggling, provide visas to smuggled aliens who cooperate with law enforcement officials, provide rewards to such aliens, and require the Secretary of DHS to develop an outreach program to educate the public about the penalties for alien smuggling. The Committee adopted by voice vote a second degree amendment offered by Mr. Hostettler to limit the provisions to the increase in criminal penalties and the establishment of the outreach program.

An amendment offered by Chairman Sensenbrenner to establish a Privacy and Civil Liberties Oversight Board to provide advice and counsel on policy development and implementation as it pertains to privacy and civil liberties implications of executive branch actions, proposed legislation, regulations, and policies related to efforts to protect the nation from terrorism passed the Committee by a recorded vote of 19-15. The Chairman's amendment was a complete substitute for an amendment offered by Mr. Watt that would have provided for

a similar Board with broad administrative subpoena power and provided nearly unlimited authority to analyze all aspects of the nation's war on terrorism.

The Committee adopted by voice vote an amendment offered by Mr. Weiner that eliminates defenses in the current fake badge law.

HEARINGS

The Committee on the Judiciary held two hearings to specifically consider the recommendations of the 9/11 Commission. On August 20, 2004, the Subcommittee on Commercial and Administrative Law and the Subcommittee on the Constitution held a joint hearing entitled: `Privacy and Civil Liberties in the Hands of the Government Post-September 11, 2001: Recommendations of the 9/11 Commission and the U.S. Department of Defense Technology and Privacy Advisory Committee.' The following witnesses testified: Lee Hamilton, Vice Chair, 9/11 Commission; Slade Gorton, Commissioner, 9/11 Commission; John Marsh, Jr., Member, Technology and Privacy Advisory Committee; and Nuala O'Connor Kelly, Privacy Officer, Department of Homeland Security.

On August 23, 2004, the Subcommittee on Crime, Terrorism, and Homeland Security held a hearing entitled: `Oversight Hearing on Recommendations of the 9/11 Commission.' The following witnesses testified: Christopher Kojm, Deputy Executive Director, National Commission on Terrorist Attacks Upon the United States; John S. Pistole, Executive Assistant Director, Counterterrorism Division, Federal Bureau of Investigation; John O. Brennan, Director, Terrorist Threat Integration Center; and Gregory T. Nojeim, Associate Director, American Civil Liberties Union.

COMMITTEE CONSIDERATION

On September 30, 2004, the Committee met in open session and ordered favorably reported the bill H.R. 10, with an amendment, by a recorded vote of 19 to 12, a quorum being present.

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the House of Representatives, the Committee notes that the following roll call votes occurred during the Committee's consideration of H.R. 10.

Rollcall No. 1: Subject: Nadler Amendment (Minimum Amounts) to H.R. 10. By a rollcall vote of 15 yeas to 18 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                            X         
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                     X              
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                                     
MR. FORBES                          X         
MR. KING                                      
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                     X              
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                   X              
MR. WEXLER                     X              
MS. BALDWIN                         X         
MR. WEINER                     X              
MR. SCHIFF                     X              
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         15   18         
----------------------------------------------

Rollcall No. 2: Subject: Jackson Lee Amendment (Verification of Documents) to H.R. 10. By a rollcall vote of 15 yeas to 20 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                            X         
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                     X              
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                   X              
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                     X              
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         15   20         
----------------------------------------------

Rollcall No. 3: Subject: Berman/Delahunt Amendment (Limitation on Closed Immigration Hearings) to H.R. 10. By a rollcall vote of 15 yeas to 20 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                            X         
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                     X              
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                   X              
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                     X              
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         15   20         
----------------------------------------------

Rollcall No. 4: Subject: Conyers Amendment in the nature of a substitute to H.R. 10. By a rollcall vote of 15 yeas to 20 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                            X         
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                     X              
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                   X              
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                     X              
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         15   20         
----------------------------------------------

Rollcall No. 5: Subject: Nadler amendment (Whistle Blower) to H.R. 10. By a rollcall vote of 15 yeas to 20 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                            X         
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                     X              
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                   X              
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                     X              
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         15   20         
----------------------------------------------

Rollcall No. 6: Subject: Jackson Lee amendment (Restriction on Airline Screening for Terrorists and Criminals) to H.R. 10. By a rollcall vote of 12 yeas, 17 nays, and 1 pass, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                                  
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                                     
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                     X              
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                                  
MR. WEXLER                                    
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                               PASS 
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         12   17  1 PASS 
----------------------------------------------

Rollcall No. 7: Subject: Jackson Lee amendment (Convention Against Torture) to H.R. 10. By a rollcall vote of 12 yeas, 18 nays, and 1 pass, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                                     
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                     X              
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                                  
MR. WEXLER                                    
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                               PASS 
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         12   18  1 pass 
----------------------------------------------

Rollcall No. 8: Subject: Sensenbrenner amendment to the Watt amendment (Privacy and Civil Liberties Oversight Board) to H.R. 10. By a rollcall vote of 19 yeas, to 15 nays, the amendment was agreed to.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                      X              
MR. SMITH                      X              
MR. GALLEGLY                   X              
MR. GOODLATTE                  X              
MR. CHABOT                     X              
MR. JENKINS                    X              
MR. CANNON                                    
MR. BACHUS                     X              
MR. HOSTETTLER                 X              
MR. GREEN                      X              
MR. KELLER                     X              
MS. HART                       X              
MR. FLAKE                      X              
MR. PENCE                      X              
MR. FORBES                     X              
MR. KING                       X              
MR. CARTER                     X              
MR. FEENEY                     X              
MRS. BLACKBURN                 X              
MR. CONYERS                         X         
MR. BERMAN                          X         
MR. BOUCHER                                   
MR. NADLER                          X         
MR. SCOTT                           X         
MR. WATT                            X         
MS. LOFGREN                         X         
MS. JACKSON LEE                     X         
MS. WATERS                          X         
MR. MEEHAN                          X         
MR. DELAHUNT                        X         
MR. WEXLER                          X         
MS. BALDWIN                         X         
MR. WEINER                          X         
MR. SCHIFF                          X         
MS. SANCHEZ                         X         
MR. SENSENBRENNER, CHAIRMAN    X              
TOTAL                         19   15         
----------------------------------------------

Rollcall No. 9: Subject: Sanchez amendment (ID Security) to H.R. 10. By a rollcall vote of 12 yeas, 19 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                                    
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                                  
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                                    
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         12   19         
----------------------------------------------

Rollcall No. 10: Subject: Weiner amendment (Covered Grants) to H.R. 10. By a rollcall vote of 12 yeas, 19 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                                    
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                                  
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                                    
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         12   19         
----------------------------------------------

Rollcall No. 11: Subject: Watt amendment (intentional misconduct) to H.R. 10. By a rollcall vote of 12 yeas, 19 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                                    
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                                  
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                                    
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         12   19         
----------------------------------------------

Rollcall No. 12: Subject: Scott amendment (Litigation Management agreements) to H.R. 10. By a roll call vote of 12 yeas, 19 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                                    
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                      X              
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                                  
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                                    
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         12   19         
----------------------------------------------

Rollcall No. 13: Subject: Jackson Lee amendment (Criminal History Information Checks) to H.R. 10. By a rollcall vote of 12 yeas, 19 nays, the amendment was defeated.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                           X         
MR. SMITH                           X         
MR. GALLEGLY                        X         
MR. GOODLATTE                       X         
MR. CHABOT                          X         
MR. JENKINS                         X         
MR. CANNON                                    
MR. BACHUS                          X         
MR. HOSTETTLER                      X         
MR. GREEN                           X         
MR. KELLER                          X         
MS. HART                            X         
MR. FLAKE                           X         
MR. PENCE                           X         
MR. FORBES                          X         
MR. KING                            X         
MR. CARTER                          X         
MR. FEENEY                          X         
MRS. BLACKBURN                      X         
MR. CONYERS                    X              
MR. BERMAN                                    
MR. BOUCHER                                   
MR. NADLER                     X              
MR. SCOTT                           X         
MR. WATT                       X              
MS. LOFGREN                    X              
MS. JACKSON LEE                X              
MS. WATERS                     X              
MR. MEEHAN                     X              
MR. DELAHUNT                                  
MR. WEXLER                     X              
MS. BALDWIN                    X              
MR. WEINER                     X              
MR. SCHIFF                                    
MS. SANCHEZ                    X              
MR. SENSENBRENNER, CHAIRMAN         X         
TOTAL                         11   20         
----------------------------------------------

Rollcall No. 14: Subject: Motion to report H.R. 10, as amended. By a rollcall vote of 19 yeas to 12 nays, the motion was agreed to.


----------------------------------------------
                            Ayes Nays Present 
----------------------------------------------
MR. HYDE                                      
MR. COBLE                      X              
MR. SMITH                      X              
MR. GALLEGLY                   X              
MR. GOODLATTE                  X              
MR. CHABOT                     X              
MR. JENKINS                    X              
MR. CANNON                                    
MR. BACHUS                     X              
MR. HOSTETTLER                 X              
MR. GREEN                      X              
MR. KELLER                     X              
MS. HART                       X              
MR. FLAKE                      X              
MR. PENCE                      X              
MR. FORBES                     X              
MR. KING                       X              
MR. CARTER                     X              
MR. FEENEY                     X              
MRS. BLACKBURN                                
MR. CONYERS                         X         
MR. BERMAN                                    
MR. BOUCHER                                   
MR. NADLER                          X         
MR. SCOTT                           X         
MR. WATT                            X         
MS. LOFGREN                         X         
MS. JACKSON LEE                     X         
MS. WATERS                          X         
MR. MEEHAN                          X         
MR. DELAHUNT                                  
MR. WEXLER                          X         
MS. BALDWIN                         X         
MR. WEINER                          X         
MR. SCHIFF                     X              
MS. SANCHEZ                    s    X         
MR. SENSENBRENNER, CHAIRMAN    X              
TOTAL                         19   12         
----------------------------------------------

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures.

CONGRESSIONAL BUDGET OFFICE OF COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill, H.R. 10, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974:

October 5, 2004.

Hon. F. JAMES SENSENBRENNER, Jr.,
Chairman Committee on the Judiciary,
House of Representatives, Washinton, DC

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 10, the 9/11 Recommendations Implementation Act.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Mark Grabowicz.

Sincerely,

Douglas Holtz-Eakin,

Director.

Enclosure.

H.R. 10--9/11 Recommendations Implementation Act

Summary. H.R. 10 would affect the intelligence community, terrorism prevention and prosecution, and border security, as well as international cooperation and coordination. Title I would establish an Office of the National Intelligence Director (NID) to manage and oversee intelligence activities of the U.S. government, including foreign intelligence and counterintelligence activities. The legislation would transfer some existing intelligence organizations to that office and would establish a National Counterterrorism Center and one or more national intelligence centers within the Office of the NID. Title II would authorize funding for law enforcement, counterterrorism activities, and programs related to aviation safety. Title III would increase the number of agents performing border security and immigration functions, improve the security of identity documents such as driver's licenses, and increase the number of consular officers within the Department of State. Title IV would authorize funds for a number of international cooperation programs. Finally, title V would reauthorize and restructure several homeland security programs.

CBO estimates that implementing H.R. 10 would cost about $800 million in 2005 and $17.5 billion over the 2005-2009 period, assuming appropriation of the specified and estimated amounts. That total does not include possible additional costs associated with implementing provisions dealing with the creation of an interoperable data system for exchanging law enforcement and intelligence data or the establishment of a Federal Bureau of Investigation (FBI) reserve service because CBO does not have sufficient information to estimate those costs at this time. With regard to the FBI reserve service, CBO cannot predict when a national emergency would occur, but expects that costs for the proposed reserve service would likely be insignificant in most years.

The bill also contains provisions that would decrease direct spending. In particular, it would establish a fund within the Department of Homeland Security (DHS) to enhance efforts to detect explosives at security checkpoints in airports; authorize the collection and spending of $30 million a year of fees from airline passengers in 2005 and 2006 for that purpose; allow the Director of the FBI to waive the mandatory retirement requirement for agents until age 65; and extend indefinitely the authority of the Central Intelligence Agency (CIA) to offer incentive payments to employees who voluntarily retire or resign. CBO estimates that enacting those provisions would decrease direct spending by about $25 million in 2005, $4 million over the 2005-2009 period, and $2 million over the 2005-2014 period. The estimate of direct spending does not include the effects of extending the authority of the CIA to offer incentive payments to employees who voluntarily retire or resign because the data needed to prepare such an estimate are classified. Enacting H.R. 10 would not affect receipts.

H.R. 10 contains several intergovernmental mandates as defined in the Unfunded Mandates Reform Act (UMRA). CBO estimates that those mandates, in aggregate, would impose costs on state, local, and tribal governments totaling more than $600 million over fiscal years 2005 through 2009. CBO estimates that the costs in at least one of those years would exceed the threshold established in UMRA ($60 million in 2004, adjusted annually for inflation). The bill would authorize appropriations for grants to states to cover such costs.

H.R. 10 would impose private-sector mandates as defined in UMRA on shippers of hazardous materials and licensees of nuclear facilities. Because the impact of two of the mandates would depend on future actions of the Department of Homeland Security and the Nuclear Regulatory Commission (NRC) for which information currently is not available, CBO cannot determine whether the costs to the private sector would exceed the annual threshold for private-sector mandates ($120 million in 2004, adjusted annually for inflation).

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 10 is summarized in Table 1. The costs of this legislation fall within budget functions 050 (national defense), 400 (transportation), 450 (community and regional development), 550 (health), 750 (administration of justice), and 800 (general government).

Basis of Estimate: Most of H.R. 10's effects on the federal budget would be subject to appropriation of amounts necessary to implement the bill. For this estimate, CBO assumes that the bill will be enacted by the end of the calendar year, that all such amounts will be appropriated near the start of each fiscal year, and that outlays will follow historical patterns for similar activities.

TABLE 1. BUDGETARY IMPACT OF H.R. 10, THE 9/11 RECOMMENDATIONS IMPLEMENTATION ACT, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY
-----------------------------------------------------------------------------------------------------------------
                                                By Fiscal Year, in Millions of Dollars--                         
                                                                                    2005  2006  2007  2008  2009 
-----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION 1                                                                   
Estimated Authorization Level                                                      2,311 6,223 2,559 4,700 5,264 
Estimated Outlays                                                                    798 4,950 3,004 4,062 4,670 
CHANGES IN DIRECT SPENDING 2                                                                                     
Estimated Budget Authority                                                             *     *     *     *     * 
Estimated Outlays                                                                    -25   -12    19    10     5 
-----------------------------------------------------------------------------------------------------------------

Spending Subject to Appropriation

H.R. 10 contains provisions that would affect the intelligence community, terrorism prevention and prosecution, and border security, as well as international cooperation and coordination. Table 2 presents CBO's estimates of the cost of those provisions. In total, we estimate that implementing H.R. 10 would cost $17.5 billion over the 2005-2009 period, assuming appropriation of the specified and estimated amounts. That total does not include the possible additional costs associated with implementing provisions dealing with the creation of an interoperable data system for exchanging law enforcement and intelligence data or the establishment of an FBI reserve service because CBO does not have sufficient information to estimate those costs at this time. With regard to the FBI reserve service, CBO cannot predict when a national emergency would occur, but expects that costs for the proposed reserve service would likely be insignificant in most years.

TABLE 2. ESTIMATED CHANGES IN SPENDING SUBJECT TO APPROPRIATION UNDER H.R. 10 AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY
------------------------------------------------------------------------------------------------------------------------------
                                                             By fiscal year, in millions of dollars--                         
                                                                                                 2005  2006  2007  2008  2009 
------------------------------------------------------------------------------------------------------------------------------
Reform the Intelligence Community:                                                                                            
Estimated Authorization Level                                                                      40   235    75    90    70 
Estimated Outlays                                                                                  30    60   110   145   140 
Combating Financial Crimes:                                                                                                   
Authorization Level                                                                                51     0     0     0     0 
Estimated Outlays                                                                                  36    15     0     0     0 
Aviation Security:                                                                                                            
Estimated Authorization Level                                                                     528 4,343   330     0     0 
Estimated Outlays                                                                                 238 3,666   957   340     0 
Improve Intelligence Capabilities of the FBI:                                                                                 
Estimated Authorization Level                                                                       4     5     6     7     8 
Estimated Outlays                                                                                   3     5     6     8     8 
Security for Nuclear Facilities:                                                                                              
Estimated Authorization Level                                                                       1     2     2     2     2 
Estimated Outlays                                                                                  -2     4     2     2     2 
Community-Oriented Policing Services:                                                                                         
Authorization Level                                                                             1,008 1,027 1,047     0     0 
Estimated Outlays                                                                                  22   528    40   671   364 
Increase the Number of Border Patrol and Immigration Agents:                                                                  
Estimated Authorization Level                                                                       0   174   526   981 1,451 
Estimated Outlays                                                                                   0   165   509   958 1,427 
Grants to Improve Security of Driver's Licenses:                                                                              
Estimated Authorization Level                                                                      80    30    30    10    10 
Estimated Outlays                                                                                  80    30    30    10    10 
New Standards for Issuance of Birth and Death Certificates:                                                                   
Estimated Authorization Level                                                                     330    20    30    40    50 
Estimated Outlays                                                                                  70   150   160    35    45 
Expand Immigration Services at Foreign Airports:                                                                              
Authorization Level                                                                                49    88   137     0     0 
Estimated Outlays                                                                                  39    80   127    28     0 
Increase the Number of Consular Officers:                                                                                     
Estimated Authorization Level                                                                       0    33    62    93   125 
Estimated Outlays                                                                                   0    27    54    84   115 
Reform International Cooperation and Coordination:                                                                            
Estimated Authorization Level                                                                      17    17    17     7     7 
Estimated Outlays                                                                                   7    15    17    15     9 
First-Responder Grants:                                                                                                       
Estimated Authorization Level                                                                       0     0     0 3,314 3,381 
Estimate Outlays                                                                                    0     0     0 1,491 2,350 
Security for Nonprofit Organizations:                                                                                         
Estimated Authorization Level                                                                     168   168   168     0     0 
Estimated Outlays                                                                                  45   128   168   123    40 
Counternarcotics Office:                                                                                                      
Estimated Authorization Level                                                                       6     6     6     6     6 
Estimated Outlays                                                                                   4     6     6     6     6 
Security Clearance Modernization:                                                                                             
Estimated Authorization Level                                                                      23    68   116   143   147 
Estimated Outlays                                                                                  21    64   111   140   147 
Public Safety Communications Interoperability:                                                                                
Estimated Authorization Level                                                                       6     6     6     6     6 
Estimated Outlays                                                                                   5     6     6     6     6 
Total Changes 1 :                                                                                                             
Estimated Authorization Level                                                                   2,311 6,223 2,559 4,700 5,264 
Estimated Outlays                                                                                 798 4,950 3,004 4,062 4,670 
------------------------------------------------------------------------------------------------------------------------------

Reform the Intelligence Community. Title I would reform the intelligence community by establishing the position of National Intelligence Director and an Office of the National Intelligence Director to manage and oversee intelligence activities of the U.S. government,

including foreign intelligence and counterintelligence activities. The legislation also would transfer some existing organizations, specifically the Office of the Deputy Director of Central Intelligence for Community Management and the Terrorist Threat Integration Center (TTIC), to that office and would establish a National Counterterrorism Center and one or more national intelligence centers within the Office of the NID. The bill would expand language training within the intelligence community and authorize additional scholarships for new recruits. Finally, the legislation would establish a civilian linguist reserve corps.

CBO estimates that implementing title I and other provisions relating to the intelligence community would cost about $490 million over the 2005-2009 period (see Table 3). These costs are in addition to those that would be incurred under current law by the Office of the Deputy Director of Central Intelligence for Community Management and the Terrorist Threat Integration Center. The estimated costs include expenses to establish, house, and administer the new Office of the National Intelligence Director and implement other specified programs, such as improving training programs and establishing a scholarship program.

TABLE 3. ESTIMATED CHANGES IN SPENDING SUBJECT TO APPROPRIATION FOR REFORMING THE INTELLIGENCE COMMUNITY UNDER H.R. 10 AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY
----------------------------------------------------------------------------------------------------------------------
                                                         By fiscal year, in millions of dollars--                     
                                                                                             2005 2006 2007 2008 2009 
----------------------------------------------------------------------------------------------------------------------
Create the Office of the National Intelligence Director:                                                              
Estimated Authorization Level                                                                  15  210   50   80   60 
Estimated Outlays                                                                              10   35   80  135  130 
Other Program Authorizations:                                                                                         
Estimated Authorization Level                                                                  25   25   25   10   10 
Estimated Outlays                                                                              20   25   25   10   10 
Total Changes:                                                                                                        
Estimated Authorization Level                                                                  40  235   75   90   70 
Estimated Outlays                                                                              30   60  110  145  140 
----------------------------------------------------------------------------------------------------------------------

Create the Office of the National Intelligence Director. CBO estimates that establishing, housing, and administering the Office of the NID would cost about $390 million over the 2005-2009 period.

The bill would transfer the Office of the Deputy Director of Central Intelligence for Community Management (identified as the Intelligence Community Management Account within the budget) and the TTIC to the Office of the NID.

The Intelligence Community Management Account (ICMA) was established by Congressional direction to provide resources that directly support the Director of the Central Intelligence Agency and the intelligence community as a whole in coordinating cross-program activities. Because part of its budget is classified, CBO does not know the overall size of this organization. Unclassified budgets for the ICMA indicate that the office has a staff of about 300 people who develop the National Foreign Intelligence Program budget, oversee research and development activities, and develop intelligence plans and requirements, but the Congress also authorizes and appropriates funds for additional staff in the classified portion of the intelligence budget.

Similarly, CBO has no budget information on the TTIC, but public information released by the White House indicates that the center opened in May 2003 with a staff of about 60 people working alongside the counterterrorism offices of the Federal Bureau of Investigation and the CIA. That same information indicates that the Administration expects to eventually staff the TTIC with between 200 and 300 people to serve as the hub for all intelligence regarding terrorist threats.

CBO expects that the NID would require staff to perform its authorized functions in addition to the staff transferred from the ICMA and the planned staff for the TTIC. Because much of the detailed information regarding the organization, staffing levels, and budgets of the intelligence community are classified at a level above clearances held by CBO employees, CBO has used information about staff requirements from similar organizations within the Department of Defense (DoD), the Department of Homeland Security, and other federal agencies to attempt to estimate the number of additional staff that might be needed by the NID. Based on that analysis, CBO estimates that the NID might need to hire around 300 new staff, including appointees such as principal and deputy directors, key managers such as a general counsel, a civil liberties protection officer, personnel to perform administrative functions such as policy development and budget and finance activities, and personnel for the National Counterterrorism Center and one or more national intelligence centers. CBO expects that many of these new hires would be staff transferred from other organizations within the intelligence community but that those other organizations would eventually fill many of the vacated positions within their organizations over about a four year period following enactment of this legislation.

Based on information about the staffing levels and costs for the administrative offices of the Department of Defense, the Department of Homeland Security, and other agencies, CBO

estimates that the personnel and related expenses to provide centralized leadership, coordination, and support and analytical services for the Office of the National Intelligence Director would eventually cost around $45 million annually, but that costs would be much lower in the first few years as positions are filled. CBO estimates that such costs would be minimal in the first year and total about $130 million over the 2005-2009 period.

Section 1094 would express the sense of the Congress that the permanent location of the NID headquarters be at a location other than the George Bush Center for Intelligence in Langley, Virginia. For this estimate, CBO assumes that the Director's office and associated staff would occupy the space currently used by the Intelligence Community Management staff until fiscal year 2007. Starting in 2007, CBO assumes that the office would move to new office space in a building owned by the General Services Administration (GSA) until a new building can be built for its use. CBO estimates that initially GSA would need to renovate and furnish office space for the NID staff. (After 2009, CBO expects that these positions would be relocated to the new permanent NID headquarters.) CBO estimates that the GSA rental payments would reach about $20 million a year and total about $40 million over the 2007-2009 period. Additional costs to purchase computers, network equipment, and supplies in the first few years following the relocation into the GSA-owned building also would be significant. CBO estimates that those costs would total $30 million over the 2007-2009 period.

CBO assumes that GSA would construct a new building on land already owned by the federal government to serve as the headquarters for the Office of the NID. Based on information provided by GSA about recent federal office building projects, CBO estimates that planning and design of the new headquarters would cost $15 million over the 2005-2006 period, and that constructing the facility to house NID employees would cost about $175 million over the 2006-2009 period. (An additional $20 million in spending would occur in 2010 to complete construction of the new building.) CBO assumes that the headquarters would be located on property already owned by the federal government in the Washington, D.C. area. If GSA had to buy land for the building site, costs would be higher. CBO assumes that construction of the new facility would not start until sometime in late 2006 and would be completed after 2009. Therefore, CBO estimates that no costs associated with furnishing, equipping, and maintaining the new space would be incurred during the 2005-2009 period nor would there be costs to relocate NID staff from the interim offices to the new headquarters over that period.

Other Program Authorizations. Title I also would authorize the President and the NID to initiate or enhance several programs within the intelligence community. Based on information from the Administration and on the costs of other similar efforts, CBO estimates that those efforts would cost about $20 million in 2005 and total around $90 million over the 2005-2009 period, subject to appropriation of the specified and estimated amounts.

Combating Financial Crimes. Sections 2101 and 2102 would authorize the appropriation of $51 million for fiscal year 2005 for the Financial Crimes Enforcement Center to improve its computer systems and to assist states and localities in combating financial crimes. CBO estimates that this provision would result in outlays of $36 million in 2005 and $15 million in 2006, assuming appropriation of the specified amount.

Aviation Security. Title II would authorize the appropriation of the funds necessary to continue aviation security programs in 2006 and to deploy explosive-detection equipment at airport check points. Based on information from DHS and current funding levels, CBO estimates that title II would authorize the appropriation of about $5.2 billion over the 2005-2007 period for aviation security programs administered by DHS. We estimate that most of that amount--roughly $4 billion--would be authorized to be appropriated in fiscal year 2006 for ongoing programs administered by the Transportation Security Administration (TSA) and for the federal air marshals. (That estimate is net of almost $2 billion in offsetting collections from passenger and air-carrier fees that we assume will continue to be collected by DHS in 2006 to partly offset the cost of aviation security programs in that year.) This estimate also includes almost $1 billion over the 2005-2007 period for installing explosive-detection equipment at airport screening checkpoints and $70 million in 2005 for programs to better control access to airports, improve passenger screening, and train federal law enforcement officials in certain counterterrorism measures. In addition, title II would specifically authorize the appropriation of $95 million in 2005 for security projects at airports and $2 million for a pilot program to test technology to reduce the threat of explosions of baggage and cargo on commercial flights. Assuming appropriation of the specified and estimated amounts, CBO estimates that implementing all of these provisions would cost $238 million in 2005 and $5.2 billion over the 2005-2009 period.

Improve the Intelligence Capabilities of the FBI. Section 2193 would direct the FBI to continue to improve the intelligence capabilities of the bureau and to develop and maintain a national intelligence workforce within the FBI. Today, the FBI spends about $30 million on counterterrorism training. Since 2002, more than 1,500 agents have been added to the bureau's staff to meet its counterterrorism mission, an increase of about 20 percent. In addition, since the events of September 11, 2001, the FBI has partnered with other intelligence agencies to provide training in counterterrorism and counterintelligence to its staff, and it plans to increase that training in the future. CBO assumes that implementation of this bill would require the agency to conduct more extensive training than is currently planned. Based on information from the bureau, we estimate that this additional training would cost $3 million in 2005 and almost $30 million over the 2005-2009 period, assuming appropriation of the necessary amounts.

Interoperable Law Enforcement and Intelligence Data System. Under the Enhanced Border Security and Visa Entry Reform Act of 2002 (Public Law 107-173), the Administration is required to integrate all law enforcement data into an interoperable electronic data system known as the Chimera system. However, the act did not establish a firm date by which the Administration must deploy a fully operational Chimera system. Section 2192 would transfer the responsibility for this activity to the NID. The provision would direct the NID to design a state-of-the-art Chimera system with both biometric identification and linguistic capabilities satisfying the best technology standards, and to deliver a fully operational system by September 11, 2007, for use by the intelligence community, federal law enforcement agencies, and counterterrorism personnel to collect and share information. Although CBO believes that establishing a firm deadline for the operational system would likely result in increased discretionary spending in the near term, CBO does not have sufficient information to estimate that increase at this time. Absent information as to whether this transfer would result in changes to the system, CBO also cannot estimate whether any long-term costs would result from this transfer.

Security for Nuclear Facilities. Section 2194 of the bill would require the Nuclear Regulatory Commission (NRC) to study several types of threats to the nation's nuclear facilities, update the rules regarding the types of threats nuclear facilities should be able to deflect, and undertake force-on-force exercises regularly to maintain nuclear facilities' readiness to defend against attacks. Although the bill would authorize $3 million for such purposes, based on information from the NRC, CBO estimates that the provision would have a gross cost of $7 million in 2005 and $22 million over the 2005-2009 period. However, the NRC has the authority to offset a substantial portion of its annual appropriation with fees charged to the facilities it regulates. Accounting for such collections, CBO estimates that implementing those provisions would result in a net cost of $9 million over the 2005-2009 period.

Community-Oriented Policing Services (COPS). Section 2195 would authorize the appropriation of just over $1 billion for each of fiscal years 2005 through 2007 for the Community-Oriented Policing Services (COPS) program. Assuming appropriation of the specified amounts, CBO estimates this provision would cost about $2.5 billion over the 2005-2009 period.

Increase the Number of Border Patrol and Immigration Agents. Sections 3003 and 3004 would direct DHS to increase the number of border patrol agents by 2,000 per year and the

number of investigators of immigration violations by 800 each year over the 2006-2010 period. Implementing this provision would increase the number of federal agents by 14,000 by 2010. Assuming appropriation of the necessary amounts, CBO estimates that this provision would cost $165 million in fiscal year 2006 and $3.1 billion over the 2006-2009 period.

Grants to Improve the Security of Driver's Licenses. Section 3055 would authorize the appropriation of such sums as necessary for fiscal years 2005 through 2009 for DHS to make grants to states to cover the costs of improving the security of driver's licenses as required by the bill. Based on information from states and from the American Association of Motor Vehicle Administrators (AAMVA), CBO estimates that implementing this provision would cost $80 million in 2005 and $160 million over the 2005-2009 period, assuming appropriation of the necessary amounts.

New Standards for Issuance of Birth and Death Certificates. Sections 3062 and 3063 would require new federal standards governing the issuance and management of birth certificates recognized by the federal government. Section 3064 would require the establishment of a uniform electronic birth and death registration system, and section 3065 would extend that system to allow electronic verification of vital records.

Maintaining birth and death records has long been a function of state governments. The Secretary of Health and Human Services, acting through the Centers for Disease Control and Prevention (CDC), currently works with states to compile birth and death data for epidemiological studies. H.R. 10 would authorize the Secretary to expand that cooperation to the formal linking of birth and death records for purposes of preventing fraud and other government uses. The bill also would authorize the appropriation of such sums as may be necessary for these activities, including grants to states to comply with these new requirements.

Based on information from the CDC and the National Association for Public Health Statistics and Information Systems, CBO estimates that implementing the new security standards and building the electronic system of vital records would cost $460 million over the 2005-2009 period, assuming appropriation of the necessary amounts. That cost would be for grants to states to meet the new federal requirements. Of these amounts, $70 million in 2005 and $330 million over the 2005-2009 period would cover start-up costs, including digitalizing old birth and death certificates, building electronic systems for reporting deaths in some states, upgrading security arrangements, and acquiring computer infrastructure. CBO estimates that operating the new system for vital records over the 2006-2009 period would cost $130 million. We expect that the system would be fully operational in 2009, at which point annual operating costs would total $50 million.

Expand Immigration Services at Foreign Airports. Sections 3082 and 3083 would authorize the appropriation of $49 million for 2005, $88 million for 2006, and $137 million for 2007 for DHS to expand preinspection services and immigration security at foreign airports. CBO estimates that implementing this provision would cost $274 million over the 2005-2009 period, assuming appropriation of the specified amounts.

Increase the Number of Consular Officers. Section 3084 would authorize the Secretary of State to increase the number of consular officers by 150 each year over the number allotted in the previous year during the 2006-2009 period. It also would authorize the Secretary to provide additional training to consular officers in the detection of fraudulent documents presented by applicants for admission into the United States. Based on the average cost of training and stationing consular officers overseas, CBO estimates that implementing the provision would cost $27 million in 2006 and $280 million over the 2006-2009 period.

Reform International Cooperation and Coordination. Title IV would require the President to produce numerous reports, express the sense of the Congress on many issues, and urge the President to seek agreements with other countries to improve cooperation in the global fight against terrorist organizations. The title also would authorize some additional spending. Subtitle D, the Afghanistan Freedom Support Act Amendments of 2004, would authorize additional rule-of-law, disarmament, and counternarcotics activities in Afghanistan by the U.S. Department of State, but would not increase the overall authorization of appropriations above the $425 million authorized for each of fiscal years 2005 and 2006 in current law.

Title IV contains three indefinite authorizations of appropriations and other provisions that CBO estimates would cost $7 million in 2005 and $63 million over the 2005-2009 period, assuming appropriation of the necessary amounts. In the cases where the same provision has been included in other bills at specified authorization levels, CBO used that authorization level for this estimate. CBO assumes that spending for these programs will follow the historical pattern of similar programs.

enhance free and independent media worldwide. H.R. 1950, the Foreign Relations Authorization Act, Fiscal Years 2004 and 2005, as reported by the House Committee on International Relations on May 16, 2003, would have authorized $15 million for such grants. CBO assumes the amount would be provided in three equal installments over the three-year period.

First-Responder Grants. Subtitle A of title V would authorize funding for grants to state and local governments for staff and equipment to respond to acts of terrorism and natural disasters. It would authorize the Secretary of the Department of Homeland Security to change the criteria used to distribute funding for four existing first-responder grant programs--the State Homeland Security, the Urban Area Security Initiative, the Law Enforcement Terrorism Prevention, and the Citizen Corps grant programs. Assuming appropriation of the necessary funds, CBO estimates that implementing this subtitle would cost $3.8 billion over the 2008-2009 period.

Almost $10 billion has been appropriated for first-responder grants since fiscal year 2003, including about $3 billion in fiscal year 2004. The Office of Domestic Preparedness (within DHS) derives its primary authority to distribute grants to states and localities to prepare and respond to terrorism from the USA Patriot Act (Public Law 107-56). That law authorized the appropriation of such sums as necessary for first-responder grants through fiscal year 2007. This subtitle would supersede this authority for first-responder grants in the Patriot Act and continue the authorization to appropriate such sums as necessary after 2007.

For this estimate, CBO assumes that the amount in CBO's baseline--$3.3 billion--would be appropriated for first-responder grants in 2008 and that 2009 funding levels for first-responder grants would continue at that level, adjusted for anticipated inflation.

Security for Nonprofit Organizations. Section 5022 would authorize the appropriation of $100 million for 2005 and such sums as are necessary in 2006 and 2007 for DHS to contract with appropriate companies to improve security at those 501(c)3 nonprofit organizations that are determined to be most vulnerable to potential terrorist attacks. In addition, the bill would establish a new loan guarantee program for all nonprofit organizations that might need additional security enhancements to protect them from terrorist attacks. CBO estimates that this program would cost about $40 million over the 2005-2009 period. H.R. 10 also would authorize the appropriation of $50 million for 2005 and such sums as are necessary for 2006 and 2007 for grants to local law enforcement agencies to offset costs associated with increased security in areas with a high concentration of nonprofit organizations. Finally, the bill would authorize the appropriation of $5 million in 2005 and such sums as necessary in 2006 and 2007 for a new Office of Community Relations and Civic Affairs to administer the new security program for nonprofit organizations among other duties. Assuming appropriation of the necessary amounts, CBO estimates that implementing those provisions would cost $504 million over the 2005-2009 period.

Counternarcotics Office. Section 5021 would authorize the appropriation of $6 million in fiscal year 2005 to strengthen the authority of the Counternarcotics Officer at DHS. Under the bill, the Office of Counternarcotics Enforcement would be responsible for coordinating policies and federal operations aimed at preventing the entry of illegal drugs into the United States. DHS currently has a Counternarcotics Officer within the Chief of Staff's office. According to that office, the Counternarcotics Office is working with limited authority to coordinate the agency's anti-drug effort. Assuming the appropriation of the necessary amounts to continue this effort over the next five years, CBO estimates that implementing this provision would cost $28 million over the 2005-2009 period.

FBI Reserve Service. Section 5053 would allow the FBI to establish a reserve service consisting of former employees of the FBI who would be eligible for temporary reemployment during a period of national emergency. Under the bill, the total number of personnel in this reserve service could not exceed 500 individuals. Members of the reserve service would receive reimbursement for transportation and per diem expenses when participating in any training, and members who are retired federal employees would be allowed to collect both pay and retirement benefits during their period of reemployment. CBO cannot predict when a national emergency might occur, so no costs are included in this estimate for activating the proposed FBI Reserve Service. In most years, CBO expects that the cost associated with the reserve service would be insignificant--mostly covering limited

training time, per diem, and transportation expenses. In an emergency, if all members of the reserve corps were reemployed for six months, the costs would total about $25 million.

Security Clearance Modernization. Beginning five years after enactment of this bill, section 5076 would require the Office of Personnel Management (OPM) to achieve a 60-day turnaround period for all security clearances requested by federal agencies. Currently, OPM anticipates that by the fall of 2005 the typical turnaround period for security clearances will be approximately 120 days. Based on information from OPM, CBO expects that approximately 1,700 new investigators would have to be hired over the next three years to meet the 60-day standard. With an average annual cost of about $80,000 per investigator, and assuming the appropriation of the necessary amounts, CBO estimates that this provision would cost $483 million over the 2005-2009 period.

Interoperability of Public Safety Communications. Section 5131 would establish a program within DHS to provide assistance and training to enhance the interoperability of public safety communication among federal, state, and local governments in high-risk jurisdictions. DHS currently conducts activities to enhance communications; however, according to that office, it is working with limited funds and legal authority. Based on information from DHS, CBO estimates that implementing this section would cost $29 million over the 2005-2009 period.

Direct Spending

The bill contains provisions that would decrease direct spending (see Table 4). CBO estimates that enacting those provisions would decrease direct spending by about $25 million in 2005, $4 million over the 2005-2009 period, and $2 million over the 2005-2014 period. The estimate of direct spending does not include spending associated with extending the authority of the CIA to offer incentive payments to employees who voluntarily retire or resign because the data needed to prepare such an estimate are classified.

TABLE 4. CHANGES IN DIRECT SPENDING UNDER H.R. 10 AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY 1 
-----------------------------------------------------------------------------------------------------------------
                           By fiscal year, in millions of dollars--                                              
                                                               2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 
-----------------------------------------------------------------------------------------------------------------
Estimated Budget Authority                                        *    *    *    *    *    *    *    *    *    * 
Estimated Outlays                                               -25  -12   19   10    5    3    *    *    *    * 
-----------------------------------------------------------------------------------------------------------------

Authority to Offer Incentive Payments to Employees of the CIA Who Voluntarily Resign or Retire. Section 1061 would extend indefinitely the authority of the CIA to offer incentive payments to employees who voluntarily retire or resign. Under current law, this authority would expire on September 30, 2005. This section also would eliminate the requirement that the CIA make a deposit to the Civil Service Retirement and Disability Fund equal to 15 percent of final pay for each employee who accepts an incentive payment. Extending authority to offer incentive payments to these employees could increase outlays from the Civil Service Retirement System in the near term, although those amounts would be offset by reduced retirement payments in later years. CBO cannot provide an estimate of the direct spending effects because the data needed for such an estimate are classified.

Aviation Security. Section 2177 would establish a fund within DHS to enhance efforts to detect explosives at security checkpoints in airports. The bill would authorize the collection and spending of $30 million a year of fees from airline passengers in 2005 and 2006.

The cost of the new program would be offset by fee collections authorized under the bill. TSA already collects a $2.50 fee from airline passengers each time they board an aircraft (with a maximum of $5.00 per one-way trip). Under current law, such fees may be collected only to the extent provided for in advance in appropriations acts, and income from those fees is recorded as an offset to appropriated spending. H.R. 10 would require TSA to collect up to $30 million a year from passengers without appropriation action. Under H.R. 10, we estimate that the agency would collect that amount each year. Because H.R. 10 would cause such fees to be used to finance the activities related to explosives detection at airport checkpoints, such fees would not be available to reduce the costs of other TSA spending. In other words, the collections under H.R. 10 would lead to a reduction in the amount of fees recorded as offsets to appropriated spending--essentially changing some discretionary offsetting collections into mandatory offsetting receipts.

Based on historical spending patterns for similar activities, CBO estimates that fees collected under this provision would exceed the amounts actually spent for explosives detection for the next few years. Hence, we estimate that enacting section 2177 would reduce net direct spending by $37 million in 2005 and 2006, but would increase net direct spending in later years and have no net impact on the budget over the 2005-2014 period.

Increased Fines for New Federal Crimes. Several sections in title II would establish new federal crimes for offenses relating to the commission of terrorist acts. Because those prosecuted and convicted under the bill could be subject to fines, the federal government might collect additional fines if the legislation is enacted. Criminal fines are deposited as receipts in the Crime Victims Fund and later spent. CBO expects any additional revenues and direct spending under the bill would be negligible because of the small number of cases involved.

Authority to Waive Separation Age Requirement for FBI Agents. Section 5051 would provide the FBI with the ability to allow agents to remain at the agency beyond the age of 60. Under current law, FBI agents are required to retire at age 57, although the agency's director may waive that requirement until the agent turns 60. This section would allow the director to waive the mandatory retirement requirement until age 65. This authority would last though the end of 2009, at which time the waiver authority would revert to current law. Information provided by the FBI indicates that the agency issues waivers to between 25 and 75 employees annually. By expanding the current waiver authority, CBO expects the bill would cause some FBI employees to retire later than they otherwise would have. We anticipate this would cause retirement annuities to fall in the near term, and to increase after the expanded waiver authority expires in 2009. CBO estimates this section would reduce direct spending for retirement benefits by less than $500,000 in 2005 and by a total of $2 million over the 2005-2014 period.

Estimated impact on state, local, and tribal governments: H.R. 10 contains several intergovernmental mandates as defined in UMRA. The major mandates would require state, local, and tribal governments to significantly change the way they process and issue driver's licenses, identification cards, and birth and death certificates. The costs to state, local, and tribal governments would depend on federal regulations that are yet to be developed. However, based on information from state agencies, CBO estimates that, in aggregate, the intergovernmental mandates in the bill would impose costs on state, local, and tribal governments totaling more than $600 million over fiscal years 2005 through 2009. CBO estimates that the costs in at least one of those years would exceed the threshold established in UMRA ($60 million in 2004, adjusted annually for inflation). The bill would authorize appropriations for grants to states to cover such costs.

Intergovernmental Mandates with Significant Costs

Driver's Licenses. H.R. 10 would effectively require state agencies that issue driver's licenses to comply with new standards for producing, verifying, and ensuring the security of driver's licenses and identification cards. Those provisions would be effective three years after the bill's enactment. CBO considers these standards to be mandates because any driver's licenses issued after that time would be invalid for federal identification purposes unless they met those requirements.

Based on information from AAMVA and other groups representing state and local governments, CBO expects that states would face significant additional costs to administer the new system. Specifically, state licensing agencies would be required to verify, with the issuing agency, each document presented as proof of identification and residency. Agencies such as the Social Security Administration currently charge a fee for each verification, and assuming that other agencies would charge similar fees, states would incur ongoing costs as well as one-time costs to upgrade computer systems to meet those requirements. States also would face significant costs to upgrade computer systems to digitize and store electronic copies of all source documents and to create and maintain the Driver's License Agreement, an interstate database to share driver information. Finally, certain states that do not currently require background checks for certain employees would face additional costs to complete those checks.

CBO assumes that states would begin to establish procedures for complying with those standards in 2005, the year following the bill's enactment; we estimate that they would incur additional costs totaling $80 million during that first year and another $80 million over fiscal years 2006 through 2009.

Issuance and Verification of Vital Statistics Information. H.R. 10 would impose several intergovernmental mandates with significant costs on state, local, and tribal agencies that issue birth and death certificates. Those agencies would effectively be required to print birth certificates on safety paper to establish a central database of vital information and to ensure that certain employees have security clearances. Those provisions also would be effective three years after the bill's enactment. Certificates issued after that would be invalid for certain purposes unless they met those requirements. We estimate that state, local, and tribal governments would face additional costs to comply with those requirements totaling more than $70 million in 2005 and almost $400 million over fiscal years 2006 through 2009. Most of those costs would be for upgrading computer software and hardware and for staff time to convert existing paper records into electronic records. Those are mostly one-time costs that would be incurred over the five-year period.

Security Assistance to Certain Nonprofit Organizations. This bill also would require state agencies responsible for homeland security to coordinate a program to provide security assistance to certain nonprofit organizations. The bill would authorize to be appropriated $100 million in fiscal years 2005 through 2007 to fund those grants, but no funds would be authorized to cover the costs states would incur for administering the program. According to representatives from state government, the administrative costs for similar assistance programs tend to equal about 3 percent to 5 percent of the monetary value of the assistance provided. Based on that information, CBO estimates that the cost for state governments to coordinate this program would total no more than $5 million annually.

Mandates with No Significant Costs

The bill also contains several other intergovern-mental mandates, but CBO expects that they would probably not impose significant additional costs on state, local, or tribal governments. Specifically, the bill would:

Estimated Impact on the Private Sector: H.R. 10 would impose private-sector mandates as defined in UMRA on shippers of hazardous materials and licensees of nuclear facilities. Because the impact of two of the mandates would depend on future actions of the Department of Homeland Security and the NRC for which information currently is not available, CBO cannot determine whether the costs to the private sector would exceed the annual threshold for private-sector mandates ($120 million in 2004, adjusted annually for inflation).

The bill would require the Secretary of Homeland Security to issue regulations to increase the security of the shipment of extremely hazardous materials as defined in the bill. The bill would also require the NRC to issue regulations to ensure that its licensees address security threats to be identified by the NRC. At this time, there is no basis for predicting the scope of those future regulations. Therefore, CBO cannot estimate the cost of those mandates.

In addition, the bill would prohibit shippers of extremely hazardous materials from discharging or discriminating against any employee who provides information or assists in an investigation regarding a violation of any law related to the security of shipments of extremely hazardous materials. Such a prohibition would constitute a private-sector mandate under UMRA. Under current law, employees are protected if they report any safety issues. Because compliance with these broader whistle-blower protections would involve only a small adjustment in administrative procedures, CBO estimates that those shippers would incur only minimal additional costs.

Previous CBO estimates: On October 4, 2004, CBO transmitted cost estimates for H.R. 10 as ordered reported by the House Permanent Select Committee on Intelligence on September 29, 2004, and as ordered reported by the House Committee on Armed Services on September 29, 2004. On October 5, 2005, CBO also transmitted cost estimates for H.R. 10 as reported by the House Committee on Financial Services on October 5, 2004, and as ordered reported by the House Committee on Government Reform on September 29, 2004. The legislation approved by the House Committee on the Judiciary authorizes funding for the security of nuclear facilities, and nonprofit organizations, and for the COPS program. Differences in the estimated costs reflect differences among the three bills.

On September 24, 2004, CBO transmitted a cost estimate for S. 2840, the National Intelligence Reform Act of 2004, as reported by the Senate Committee on Governmental Affairs. Both bills would create a new Office of the National Intelligence Director and reform certain aspects of the intelligence community. H.R. 10 also would reform terrorism prevention and prosecution, border security, and international cooperation and coordination activities--areas not addressed by S. 2840. Differences in the estimated costs reflect differences between the two bills.

Estimate prepared by: Federal Costs: Intelligence Programs: Raymond J. Hall; Homeland Security: Megan Carroll and Julie Middleton; Justice: Mark Grabowicz; Vital Records: J. Timothy Gronniger; International Programs: Joseph C. Whitehill; and General Government: Matthew Pickford. Impact on State, Local, and Tribal Governments: Melissa Merrell. Impact on the Private Sector: Chad Goldberg and Jean Talarico.

Estimate approved by: Robert A. Sunshine, Assistant Director for Budget Analysis.

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, H.R. 10 reduces the risk of terrorist attack against the United States by implementing many of the bipartisan recommendations of the National Commission to Investigate Terrorist Attacks Upon the United States.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of Representatives, the Committee finds the authority for this legislation in article I, Sec. 8 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the portions of the bill as reported by the Committee on the Judiciary that fall within its jurisdiction. 100

[Footnote] The Committee understands that a section by section analysis of the entire bill will be included in the report of the Permanent Select Committee on Intelligence.

[Footnote 100: This section contains a summary of the principal provisions of H.R. 10 within the jurisdiction of the Committee; it does not comprise an exhaustive list of provisions of H.R. 10 within the jurisdiction of the Committee.]

TITLE I--REFORM OF THE INTELLIGENCE COMMUNITY

Section 1001. Short title

This section names this title the `National Intelligence Improvement Act of 2004.'

Section 1011. Reorganization and improvement of management of the intelligence community

This section Act replaces Sec. 102-04 of Title I of the National Security Act with the following new 102, 102A, 103, 103A, 104 and 104A. New 102 replaces the DCI with a National Intelligence Director (`NID'). The NID will be Presidentially appointed and Senate confirmed and serve as the head of the intelligence community. It prohibits the NID from simultaneously serving as the Director of the Central Intelligence Agency or as the head of any other element of the intelligence community.

New Sec. 102A sets out the responsibilities and authorities of the NID. This section provides that the NID shall have access to all national intelligence and intelligence related to the national security, except as otherwise provided by law or guidelines agreed upon by the Attorney General and the NID. The NID will develop and present the annual budget for the National Intelligence Program (NIP). The NID must report to the Committees on Judiciary, Intelligence, and Armed Services a report of any transfer of personnel relative to the Committees' jurisdiction.

New Sec. 103 establishes the Office of the NID to assist the Director in the performance of his or her duties. This section establishes specific responsibilities for a number of Deputies and Associates to assist the NID.

New Sec. 104 establishes that the DCI shall assist the NID. His responsibilities include to: (1) collect intelligence through human sources and by other appropriate means, except that the DCI shall have no police, subpoena, or law enforcement powers or internal security functions; and (2) provide overall direction for the collection of national intelligence overseas or outside of the United States through human sources by elements of the intelligence community authorized to undertake such collection and, in coordination with other agencies of the Government which are authorized to undertake such collection, ensure that the most effective use is made of resources and that the risks to the United States and those involved in such collection are minimized. The manager's amendment reported by the Committee inserted the qualifying phrase `overseas or outside the United States' to clarify that the CIA's collection authority is not domestic. The Committee also supported the continued limitation that the CIA shall not have police, subpoena or other law enforcement powers.

Section 1012. Revised definition of national intelligence

This section defines national intelligence and intelligence related to national security to refer to all intelligence, regardless of source and including information collected both domestically and overseas that involves threats to the U.S., its people, property or interest; the development or use of weapons of mass destruction; or any other matter bearing on the U.S. national or homeland security.

Section 1014. Role of the National Intelligence Director in appointment of certain officials responsible for intelligence-related activities

This section amends Sec. 106 of the National Security Act to authorize the NID to recommend to the President individuals for appointment as the Deputy NID and the Director of the CIA. The section also allows the NID to concur with the Secretary of Defense in the selection of the head of the National Security Agency, National Reconnaissance Office, and the National Geospatial-Intelligence Agency. The NID shall consult, under this section on the selection for the