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 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.

Section 1021. National Counterterrorism Center

Section 1021 establishes the National Counterterrorism Center, 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 DOJ, DHS, and other agencies in fulfillment of their responsibilities to

disseminate terrorism information consistent with the law and guidelines agreed to by the AG and the NID. The Committee added the reference 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. 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.

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

This section now embodies the Berman amendment adopted at Committee which 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.

These sections incorporate the Stop Terrorist and Military Hoaxes Act of 2004. These sections create 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. They also prohibit 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

Section 2042 adds 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 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

These sections would amend 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. They would expand the coverage of the target to include property. They would also expand when Federal jurisdiction is affected 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.

Sections 2101-2102. Money laundering and terrorist financing

These sections authorize funding for the Department of Treasury's Financial Crimes Enforcement Network (FinCEN). The section 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.

Section 2122 Conduct in aid of counterfeiting

This section equates the possession of anti-counterfeiting technology or components,

with the intent that it be used in a counterfeiting scheme with the actual act of counterfeiting.

Sections 2141-2142. Criminal history background checks

These sections address the issue of criminal history records as they relate to background investigations. Section 2142 authorizes the Attorney General to 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 their principal place of business. These sections also give 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 section would allow for 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 criminal history record checks these go to different committees for consideration and if passed, end up in different sections of the code.

The purpose of this section is to set 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. It is the intention of the Committee that this study last for 180 days.

Section 2143. Protect Act

This section amends Public Law No. 108-21, by extending the duration of pilot programs for volunteer groups to obtain national and State criminal history background checks from 18 months to 30 months.

Section 2144. Reviews of criminal records of applicants for private security officer employment

This section 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. 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. Criteria for disqualification mirrors that of 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. Task force on clearinghouse for IAFIS criminal history records

This section, 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. It is the Committee's intent that the clearinghouse described in section 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 2181. Federal law enforcement in-flight counterterrorism training

This section directs ICE and the Federal Air Marshal Service (in coordination with the Transportation Security Administration) to make available appropriate in-flight counterterrorism procedures and tactics training to Federal law enforcement officers who fly while on duty.

Section 2182 Federal Flight Deck Officer Weapon Carriage Pilot Program

This section creates a Federal Flight Deck Officer (`FFDO') Weapon Carriage Pilot Program that will allow pilots participating in the FFDO program to transport their firearms on their persons. After one year, the section requires the TSA to evaluate the safety record of the pilot program. It also directs that only if the safety level obtained under the pilot program is comparable to the safety level determined under existing methods of pilots carrying firearms on aircraft, should the TSA allow all pilots participating in the FFDO Program the option of carrying their firearm on their person (subject to such TSA requirements determined appropriate).

Section 2183. Registered Traveler Program

This section directs TSA to expedite implementation of the registered traveler program.

Section 2191. Grand jury information sharing

Section 895 of Public L. No. 107-296, enacted on October 26, 2001, 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 this rule change and ensures that the intent of Congress to improve information sharing is carried through.

Section 2192. Interoperable Law Enforcement and Intelligence Data System

Section 2192 enhances interoperability among law enforcement and intelligence agencies and provides clear direction to the NID to facilitate the implementation of a horizontal

system to enhance information sharing.

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 FBI intelligence capabilities. These recommendations form the basis of reforms that have already been implemented or are about to be implemented at the FBI.

TITLE III--BORDER SECURITY AND TERRORIST TRAVEL

Section 3001. Verification of returning citizens

The section would require that by October 2006 all U.S. citizens returning from the Western Hemisphere 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 Homeland Security. For U.S. citizens returning from Canada and Mexico, the Secretary of Homeland Security would have to designate documents that are sufficiently secure.

Section 3002. Documents required by aliens from contiguous countries

The section 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.

Section 3003. Strengthening the Border Patrol

The section would authorize an increase of 2,000 agents in the Border Control agents a year for each of the next five years.

Section 3004. More immigration investigators

The section would increase the number of ICE investigators enforcing the immigration laws by 800 per 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. At least three of these new investigators each year must be assigned to each state.

Section 3005. Prevention of improper use of foreign identification

The section would bar all federal employees from accepting identification cards presented by aliens other than documents issued by the Attorney General or the Secretary of Homeland Security under the authority of the immigration laws, or unexpired foreign passports.

Section 3006. Expedited removal for illegal aliens

The section 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.

Section 3007. Limit asylum abuse by terrorists

The section would clarify that the burden of proof is on the applicant in an asylum case. The testimony of the applicant may be sufficient to sustain such burden without corroboration, but only if it is credible, 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.

The section would provide a nonexhaustive 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, the section would overturn the doctrine of imputed political opinions by requiring that an asylum applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be the central motive for persecuting the applicant.

Section 3008. Revocation of visas

The section would allow the government to deport a nonimmigrant alien whose visa has been revoked. It would also allow DHS to revoke a nonimmigrant visa petition that has been granted for an alien in the U.S.

Section 3009. Streamlined removal process

The section would modify the judicial review of removal orders available to aliens as follows: 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 Immigration Naturalization Act (`INA'), (3) whether he was ordered to be 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 only be in the circuit court and would be available for all non-discretionary determinations.

Sections 3031-3032. No bar to removal for terrorists and criminal aliens

These sections would modify the regulations implementing the Convention Against Torture by providing that aliens 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 there are reasonable grounds to believe are a danger to the security of the U.S., would not be eligible for relief from removal.

Section 3033. Removal of aliens

This 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.

Section 3041. Bringing in and harboring certain aliens

This section would increase criminal penalties for alien smuggling and have the Secretary of DHS 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.

Section 3052. Minimum document requirements and issuance standards for Federal recognition

This section requires that, for a state driver's license or identification card to be acceptable for federal purposes, States must certify to the Secretary of DHS, within 3 years, that they have met specified standards for data elements, source documents, and security. This section prohibits States from providing a driver's license to an applicant holding a driver's license issued by another State without confirmation from the other State that the individual is terminating or has terminated the driver's license

Section 3054. Trafficking in authentication features for use in false identification documents

This section amends Title 18 to make it a federal crime to traffic in or use security features designed to prevent tampering, counterfeiting, or duplication of identity documents.

Section 3081. Studies on worldwide machine-readable passports and worldwide travel history database

The section would require the Department of State's Office of Visa and Passport Control and the GAO to each conduct a study on the feasibility, cost and benefits (in terms of tracking terrorist travel and apprehending potential terrorists) 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 United States, even if that entrant has a new passport.

Section 3082. Expanded pre-inspection at foreign airports

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 section 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 United States who are inadmissible. The section would provide 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. Currently, the program is in place in only two foreign airports. The section expands the program to at least 50 foreign airports by December 31, 2006.

Section 3084. Responsibilities and functions of consular officers

This section would increase the number of consular officers by 150 per year for fiscal years 2006 to 2009, place 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, require that the training program for consular officers include training in detecting fraudulent documents and working directly with DHS immigration inspectors at ports of entry, and require the Secretary of State to place anti-fraud 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 28 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.

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.

Section 3088. International agreements to track and curtail terrorist travel through the use of fraudulently obtained documents

This section requires the President to lead efforts to reach international agreements to track and stop international travel by terrorists through the use of lost, stolen or falsified documents. The international agreements should include the establishment of a system to share information on lost, stolen and fraudulent passports and the sharing of this information by governments with officials at ports of entry. In addition, this section calls on the U.S. to continue to support efforts at the International Civil Aviation Association to strengthen the security features of passports and other travel documents.

Section 3090. Biometric entry and exit data system

This section requires 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 and to implement a plan to expedite the processing of registered travelers at ports of entry.

Section 3091. Enhanced responsibilities of the Coordinator for Counterterrorism

This section states that it shall be the policy of the U.S. to make combating terrorist travel and those who assist them a top priority for U.S. counter-terrorism policy. It also adds additional responsibilities to the Coordinator for Counter-terrorism at the State

Department (S/CT) so that the issues of terrorist travel and facilitation are added to the portfolio of responsibilities under S/CT.

Section 3092. Establishment of Office of Visa and Passport Security in the Department of State

This section would establish an Office of Visa and Passport Security within the Department of State. It would require the development of a strategic plan in coordination with DHS to target and disrupt individuals and organizations involved in document fraud, raising the profile of these types of crimes and their links to terrorism.

Section 3104. Technology acquisition and dissemination plan

This provision requires DHS to ensure the sharing of terrorist travel intelligence and other information within the many DHS elements and between DHS and other elements of the IC; it also requires DHS to establish a program focused on terrorist travel analysis, training, and technology deployment for front-line border and consular personnel.

TITLE V--GOVERNMENT RESTRUCTURING

Sections 5001-5010. Faster and smarter funding for first responders

This section requires DHS to allocate homeland security assistance funds to States or regions based upon the degree to which they 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 these sections, 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.

Section 5021. Government reorganization authority

The Committee added Section 5021, which is based on H.R. 4108, the `High Risk Nonprofit Security Enhancement Act of 2004.' This section would authorize the Secretary of Homeland Security to provide $100 million in security assistance to 501(c)(3) organizations that demonstrate they are at a 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.

Sections 5041-5045. Appointments process reform

This section seeks to improve the Presidential appointment process and allow a newly elected President to submit nominations to the Senate for Presidential appointments to National Security-related positions as expeditiously as possible. The Presidential appointments process is unnecessarily long, burdensome and complex.

Sections 5051-5054. Federal Bureau of Investigation revitalization

The Commission recommended that the FBI needed to develop a specialized workforce with deep expertise in intelligence and national security. Section 5051 adds 5 years to the mandatory retirement age for certain employees. Section 5052 allows for retention and relocation bonuses to be paid to employees with unique skills or qualifications that would leave the service but for such bonus. Section 5053 creates a `reserve service' that would call upon retired employees with specializations that would create a `surge capacity' during times of emergency. Section 5054 would give the FBI flexibility with pay issues in staffing critical positions the new Intelligence Directorate.

Section 5091. Requirement that agency rulemaking take into consideration impacts on individual privacy

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.

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 5093. Data mining

This section 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.

Section 5094. Privacy and civil liberties oversight board

Section 5094 establishes an Independent Privacy and Civil Liberties Oversight Board in the Executive Branch of the Federal Government. The purpose of the Board is to: (1) analyze and review actions the Executive Branch takes to protect the Nation from terrorism as such actions pertain to privacy or civil liberties; and (2) ensure that privacy and civil liberties

concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism. Specifically, the Board must review the privacy and civil liberties implications of legislation, regulations, and related matters and advise the Executive Branch regarding the need to ensure that privacy and civil liberties are appropriately considered in their development and implementation. With respect to providing advice on proposals to retain or enhance a particular governmental power, the Board must consider whether the executive department or agency has explained how the power actually materially enhances security and if there is adequate supervision of the Executive Branch's use of the power to ensure protection of privacy and civil liberties. The provision specifies the Board's oversight responsibilities with respect to information sharing activities of Federal agencies.

The Board is comprised of a chairman and four members, all of whom are appointed by the President, by and with the advice and consent of the Senate. Not more than three members of the Board may be of the same political party. Board members are to be selected solely on the basis of their professional qualifications, achievements, public stature, and relevant experience, without regard to political affiliation, and have extensive experience in the areas of privacy and civil rights and liberties. A Board member may not, while serving on the Board, be an elected official, an officer, or an employee of the Federal Government, other than in the capacity as a member of the Board. Although initially appointed on a staggered basis, Board member is appointed for a six-year term.

Section 5094 specifies that the Board must periodically submit, not less than semiannually, reports to Congress and the President that describe its major activities and information on the Board's findings, conclusions, and recommendations resulting from its advisory and oversight functions. Section 5094 authorizes Board Members to testify before Congress. With respect to the public, section 5094 requires the Board to hold public hearings, release public reports, and otherwise inform the public of its activities, as appropriate and in a manner consistent with the protection of classified information, applicable law, and national security. Subject to an exception for national security, the provision requires a Federal department or agency to supply information upon request of the Board. Section 5094 specifies that the Board is an agency and not an advisory committee. In addition, the Board is authorized to be appropriated such sums as may be necessary to carry out this section.

Section 5101. Short title

This section provides that this chapter may be cited as the `Mutual Aid and Litigation Management Authorization Act of 2004.'

Section 5102. Mutual aid authorized

The mutual aid provisions enable states to enter into mutual aid agreements to provide mutual aid in response to emergencies and to allow their first responders to carry with them into other states the liability regime of their home states. The mutual aid provisions also provide that, for parties to a mutual aid agreement, the worker's 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. The mutual aid provisions also provide that, for parties to a mutual aid agreement, 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 aid agreement.

Section 5103. Litigation management agreements

This section includes provisions that allow 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 decide on the liability regime that would apply in that circumstance to claims brought against their first responders, including putting any such claims in federal court, a ban on punitive damages, and a collateral source offset rule (that would prevent double recoveries for the same injury).

Section 5104. Additional provisions

This section provides that nothing in this chapter abrogates any immunities from liability that any party may have under any other state or federal law. This section exempts law enforcement security operations at special events of national significance under 18 U.S.C. Sec. 3056(e) or other law enforcement functions of the U.S. Secret Service. This section also provides that the Secret Service shall be maintained as a distinct entity within the Department of Homeland Security and shall not be merged with any other department function.

CHANGES IN EXISTING LAW BY THE BILL, AS REPORTED

Because of the short time the Committee had to prepare this report and the length of the bill, the Office of the Legislative Counsel was not able to provide the Committee materials to comply with clause 3(e) of rule XIII of the Rules of the House of Representatives. The Committee is seeking authority to file a supplemental report in which these materials would be included.

MARKUP TRANSCRIPT

Because of the short time the Committee had to prepare this report and the length of the bill, the Committee was not able to prepare a transcript of its markup of H.R. 10. The Committee is seeking authority to file a supplemental report in which the transcript would be included.

DISSENTING VIEWS

While we support implementation of the recommendations of the National Commission on Terrorist Attacks Upon the United States (`9/11 Commission'), we dissent from H.R. 10 because it does not accomplish that goal. The 9/11 Commission reached across the partisan divide and arrived at unanimous recommendations to improve the security of the United States. Ten members, five Democrats and five Republicans, held countless hearings and issued a well-written report with well-reasoned recommendations. 1

[Footnote] The Senate, almost evenly split between Republicans and Democrats, has taken up bipartisan legislation to implement those recommendations.

[Footnote 1: National Commission on Terrorist Attacks Upon the United States, the 9/11 Commission Report (July 22, 2004) [hereinafter 9/11 Commission Report].]

We had hoped the House would follow the example set by the Commission and by the Senate; instead, the Republican leadership has put before us this bill drafted only with Republican input and sponsored only by Republicans. Unfortunately, when Ranking Member John Conyers (D-MI) along with Reps. Jerrold Nadler (D-NY), Bobby Scott (D-VA), Sheila Jackson Lee (D-TX), William D. Delahunt (D-MA), and Adam Schiff (D-CA) reached across the aisle to offer the bipartisan Senate bill at the markup, it was rejected on a party-line basis. 2

[Footnote]

[Footnote 2: Markup of H.R. 10, House Comm. on the Judiciary, 108th Cong., 2d Sess. (Sept. 29, 2004) [hereinafter H.R. 10 Markup].]

Because of the political nature by which it was drafted, it is no surprise that H.R. 10 is deeply flawed. First of all, it fails to incorporate numerous recommendations of the 9/11 Commission that would significantly advance our national security. For instance, H.R. 10 does not include Commission recommendations to provide strong budgetary authority for the newly-created National Intelligence Director, protect civil liberties through the creation of an effective civil liberties board, or address the need for congressional reform. As a matter of fact, in its present form, H.R. 10 fails to implement the vast majority of the 9/11 Commission recommendations--of the Commission's forty-one recommendations only eleven are fully implemented, sixteen are not implemented at all and fourteen are incomplete. 3

[Footnote]

[Footnote 3: See Report Card on H.R. 10 prepared by Democratic Staff of the Select Committee on Homeland Security.]

At the same time, the legislation contains provisions not recommended by the Commission that would do little, if anything, to protect our homeland. Most notably, the legislation makes massive, anti-immigrant changes to our immigration laws (based in most cases on thin and tangential references in a Commission staff report that were not even included in the final report of the 9/11 Commission), and creates major new law enforcement and data programs that significantly impairs our civil rights and civil liberties.

It is these very provisions that the 9/11 Commission has urged the House Republicans to drop from their legislative effort. The 9/11 Chairman stated recently that `We're very respectfully suggesting that provisions which are controversial and are not part of our recommendations to make the American people safer perhaps ought to be part of another bill at another time.' 4

[Footnote] Vice Chairman Lee Hamilton specifically criticized the extraneous immigration provisions and stated, `we respectfully submit that consideration of controversial provisions at this late hour can harm our shared purpose of getting a good bill to the President before the 108th Congress adjourns.' 5

[Footnote]

[Footnote 4: Jesse J. Holland, 9/11 Panel Urges House GOP to Drop Certain Parts of Bill, Assoc. Press, Sept. 30, 2004.]

[Footnote 5: Id.]

That is why H.R. 10, or provisions within it, are opposed not only by 9/11 Commission leaders 6

[Footnote] and the White House 7

[Footnote] but also organizations concerned with:

[Footnote 6: Carl Hulse, 9/11 Commissioners Say Bill's Added Provisions are Harmful, N.Y. Times, Oct. 1, 2004, at A13.]

[Footnote 7: Letter from Alberto R. Gonzales, Counsel to the President, The White House, to Editors of the Washington Post (Oct. 1, 2004).]

[Footnote] and the National Conference of State Legislatures 9

[Footnote] );

[Footnote 8: Letter from Raymond C. Scheppach, Executive Director, National Governors Association to the Honorable Thomas M. Davis, Chairman, and the Honorable Henry A. Waxman, Ranking Member, U.S. House Comm. on Government Reform (Sept. 29, 2004) [hereinafter NGA Letter].]

[Footnote 9: Letter from Maryland Delegate John Hurson, President of the National Conference of State Legislatures, and Illinois State Senator Steve Rauschenberger, President Elect of NCSL to the Honorable Thomas M. Davis, Chairman, and the Honorable Henry Waxman, Ranking Member, U.S. House Comm. on Government Reform (Sept. 28, 2004) [hereinafter NCSL Letter].]

[Footnote] the American Civil Liberties Union (`ACLU'), 11

[Footnote] the Association of the Bar of the City of New York 12

[Footnote] );

[Footnote 10: Statement of Robert J. Grey, Jr., President, American Bar Association (Sept. 30, 2004) [hereinafter ABA Statement].]

[Footnote 11: Letter from Timothy H. Edgar, Legislative Counsel, American Civil Liberties Union, to Interested Persons (Sept. 23, 2004) [hereinafter ACLU Letter].]

[Footnote 12: Statement of Association of the Bar of the City of New York Regarding H.R. 10 (Sept. 30, 2004) (`We urge the House not to enact H.R. 10 and to provide a reasonable opportunity for broad public debate on its recommendations before taking any action.') [hereinafter ABCNY Statement].]

[Footnote] ; and

[Footnote 13: Letter from ACORN et al., to U.S. Representatives (Sept. 28, 2004) [hereinafter Immigration Sign-On Letter].]

[Footnote] and the United Nations High Commissioner for Refugees 15

[Footnote] ).

[Footnote 14: Letter from Amnesty International, Human Rights First, and Human Rights Watch, to U.S. Representatives (Sept. 29, 2004) [hereinafter International Sign-On Letter].]

[Footnote 15: Letter from Kolude Doherty, Regional Representative, U.N. High Commissioner for Refugees, to the Honorable John Conyers, Jr., Ranking Member, U.S. House Comm. on the Judiciary (Sept. 29, 2004) [hereinafter UNHCR Letter].]

I. THE IMMIGRATION AND RELATED CHANGES ARE UNFAIR, UNFOUNDED, AND UNNECESSARY

A. THE LEGISLATION WOULD AUTHORIZE DEPORTATION TO COUNTRIES WHERE TORTURE IS LIKELY TO OCCUR

A primary concern with this legislation is that it would require our government to outsource torture, make it difficult for aliens to seek refuge from torture, and violate our international obligations. Section 3032, which was not recommended by the 9/11 Commission and is not supported by the President, 16

[Footnote] would retroactively exclude classes of aliens from protection under the United Nations Convention Against Torture (`CAT') by permitting the Department of Homeland Security to remove to state sponsors of torture any alien it reasonably believes may be a danger to the United States. The Association of the Bar of the City of New York notes that this provision `would * * * mandate the deportation of * * * an individual to a country even if it is certain that the individual would be tortured there.' 17

[Footnote]

[Footnote 16: White House Letter:]


Yesterday's Washington Post inaccurately reported that the Bush Administration supports a provision in the House intelligence reform bill that would permit the deportation of certain foreign nationals to countries where they are likely to be tortured.


The President did not propose and does not support this provision. He has made clear that the United States stands against and will not tolerate torture, and that the United States remains committed to complying with its obligations under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Consistent with that treaty, the United States does not expel, return, or extradite individuals to other countries where the United States believes it is likely they will be tortured. Id. (emphasis in original).

[Footnote 17: ABCNY Statement at 1-2.]

This provision also would make it more difficult to establish eligibility for CAT relief. Instead of being able to meet the present burden of proof, which is `more likely than not,' the bill would require applicants to prove by `clear and convincing evidence' that they would be tortured if they are deported to the country from which they are seeking relief. Section 3032 also would prohibit federal court challenges to a decision removing CAT protection under the new law except as part of the review of a final order of removal.

The section 3032 exceptions permitting `extraordinary rendition' are in clear violation of our obligations under the Convention. Article 3 of the Convention absolutely forbids a State Party from forcibly returning any person to a country when there are substantial grounds for believing that the person would be in danger of being subjected to torture. 18

[Footnote] In fact, no less an authority than the United Nations High Commissioner for Refugees has written of its concern that `the proposed exception to protection under the [CAT] will authorize the return of individuals to countries where they may suffer torture and will place the U.S. in violation of its international obligations.' 19

[Footnote]

[Footnote 18: It is worth noting that, in ratifying the treaty, the U.S. Senate did not express any reservation, understanding, or proviso that might exclude a person from the Article 3 prohibition. Moreover, while the Convention prohibits sending them back to their home countries, the prohibition is country specific. It does not bar sending them to other countries. Also, although the grant of CAT protection is absolute, it is not permanent relief. It can be removed when the conditions in the home country change so as to eliminate the risk of torture.]

[Footnote 19: UNHCR Letter at 4.]

Regardless of the applicability of the CAT, we believe an absolute prohibition on removal to torture-practicing nations is necessary on moral grounds, as well. Torture is so horrendous and so contrary to our ethical, spiritual, and democratic beliefs that it must be condemned and prohibited. Returning someone to a place where he or she would be tortured would sustain the kind of system in which violent authoritarian regimes exist. Passing the section 3032 provisions would amount to legalizing the outsourcing of torture by the United States government. The President of the American Bar Association further indicated that extraordinary rendition may endanger `American troops who may be detained by adversaries who may be disinclined to honor international obligations in light of the U.S. government's failure to honor its own.' 20

[Footnote]

[Footnote 20: ABA Statement.]

We also object to the change in the burden of proof that would require the applicant to prove by `clear and convincing evidence' that he will be tortured. This is an unrealistic and unfair requirement. Raising the standard to this level of certainty would undoubtedly result in sending people to countries where they will be tortured. Moreover, it would violate Article 3 of the Convention, which forbids a State Party from forcibly returning a person to a country where there are `substantial grounds' for believing that he would be in danger of being subjected to torture.

Finally, we object to making such changes retroactive and prohibiting federal court review of CAT decisions unless it is part of the review of a final order of removal. Current law requires that petitions for review of a removal order be filed within 30 days. 21

[Footnote] Changing the standards and applying the changes retroactively puts individuals who have already won CAT relief in the position of reproving their cases with evidence that may no longer exist. These same individuals are likely to find themselves with no opportunity for federal court review of adverse decisions, which would eliminate the checks and balances that are the fundamental component of our democracy. This cannot be justified where the consequence of a mistake could be subjecting a person to torture.

[Footnote 21: U.S.C. Sec. 1252(b).]

These concerns are not merely hypothetical. In 2002, the United States deported Mr. Maher Arar, a Canadian-Syrian national, to Syria, a known state sponsor of torture. 22

[Footnote] Mr. Arar, now in Canada, was apparently tortured during his ten months in Syria. In another instance, a Virginia couple is suing the United States seeking to have their son, Ahmed Abu Ali, returned to the United States from Saudi Arabia, where he was arrested in June 2003; in their petition, the couple argue that their son's situation is an example of extraordinary rendition. 23

[Footnote]

[Footnote 22: Carlye Murphy, Va. Couple File Lawsuit to Free Their Son Held in Saudi Arabia, Wash. Post, July 29, 2004, at A8. Mr. Arar has sued the United States government for his ordeal.]

[Footnote 23: Id.]

It is important to note that prohibiting the removal of someone to state sponsors of torture does not mean that they must be released. The Supreme Court has held that people who receive CAT protection can be held in detention if they pose a danger to the United States. 24

[Footnote] In response to the Court, the former Immigration and Naturalization Service promulgated regulations for determining the circumstances under which an alien may be held in custody beyond the statutory removal period. 25

[Footnote] Pursuant to the Court's decision and the INS regulations, it is clear that removal to state sponsors of torture is not necessary to fight terrorism.

[Footnote 24: In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that the detention provisions in the Immigration and Nationality Act, red in light of the Constitution's demands, limit an alien's post-removal period detention to a period reasonably necessary to bring about the alien's removal from the United States. The Court found further that once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute except where special circumstances justify continued detention.]

[Footnote 25: 8 C.F.R. Sec. 208.16-208.18. These regulations authorized the government to continue to detain aliens who present foreign policy concerns or national security and terrorism concerns, as well as individuals who are specially dangerous due to a mental condition or personality disorder, even though their removal is not likely in the reasonably foreseeable future.]

The Convention Against Torture is a fundamental pillar of our human rights and national interest policy. It prohibits the government from establishing removal and extradition processes that would return aliens to countries where they would be tortured. It is one of the four primary international human rights documents. It stands, along with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Genocide Convention, as one of the cornerstones of our country's efforts to stop the most heinous forms of oppression

and abuse. That is why we, and the leaders of the 9/11 Commission, 26

[Footnote] oppose this egregious proposal to weaken our enforcement of it. 27

[Footnote]

[Footnote 26: Carl Hulse, 9/11 Commissioners Say Bill's Added Provisions are Harmful, N.Y. Times, Oct. 1, 2004, at A13 (`Commission leaders did not specify all of the House provisions that they considered problematic, though they singled out a proposal to allow suspected terrorists to be deported to nations where they could be tortured.')]

[Footnote 27: The Majority rejected by a vote of 12-19 an amendment offered by Rep. Sheila Jackson Lee to strike section 3032.]

B. THE LEGISLATION WOULD HINDER EFFORTS TO GRANT ASYLUM TO VICTIMS OF TORTURE

We oppose inclusion of section 3006 in H.R. 10 because it is not a part of the 9/11 Commission recommendations, and it would eviscerate protections built into the asylum process to ensure that the United States does not return genuine refugees to countries where they would face persecution and violate both the Refugee Convention and the Convention Against Torture. Section 3006 significantly expands the policy of expedited removal--a process that allows low-level immigration officials to remove undocumented foreigners without a hearing before an immigration judge. Before Congress has held hearings to assess the impact of this expansion of expedited removal, section 3006 would push the Department of Homeland Security to expand expedited removal to apply to all undocumented foreigners anywhere in the country unless they have been present in the United States for more than five years.

Under current law, expedited removal applies to non-citizens arriving at an airport or land border with invalid travel documents, and allows an immigration officer to order them removed without further review unless they express a fear of persecution or torture. People who express a fear of persecution or torture are to be referred to an asylum officer for a `credible fear' interview, and must pass this interview in order to be eligible for asylum in the United States. The current statute also allows expedited removal to be applied to non-citizens who are found inside the United States without having been admitted or paroled and who cannot show that they have been here for more than two years. The current statute does not require such persons to be subjected to expedited removal, however, and gives the Secretary of Homeland Security the power to apply expedited removal to that group or to any sub-group of people within it. These existing provisions already place significant power in the hands of immigration officers whose decisions are not subject to formal administrative or judicial review.

Section 3006 goes much further and would allow DHS to summarily deport genuine refugees who have been in the United States for over a year, even if they qualify for a statutory exception to the one-year deadline to file for asylum without having their cases heard. 28

[Footnote] The expansion of expedited removal powers in section 3006 allows for summary deportation of immigrants who express a fear of persecution or an intent to apply for asylum but appear ineligible for asylum based on the one-year deadline. This bill ignores the fact that such applicants may fall under a statutory exception to the one-year deadline based on extraordinary circumstances or changed circumstances. 29

[Footnote]

[Footnote 28: Section 208 of the Immigration and Nationality Act allows refugees present in the United States to file for asylum, but provides that they must do so within one year of their last arrival in the United States.]

[Footnote 29: A classic example of the latter would be where a person came to the United States as an economic migrant two years ago, but learned last month that following a coup in his country all his family had been killed due to their allegiance with the prior regime. This person's eligibility for an exception to the filing deadline needs to be considered by a trained asylum officer or an immigration judge. Under section 3006, it would never be considered at all.]

Under section 3006, DHS would also summarily deport genuine refugees who are ineligible for asylum based on the one-year deadline but are eligible for withholding of removal under INA section 241(b)(3). Stripping refugees of the opportunity to claim that protection violates our obligations under Article 33 of the Refugee Convention. This is because even asylum applicants who file more than one-year after arrival and cannot qualify for an exception to the one-year deadlines should remain eligible for withholding of removal if they can show that they are refugees and would face a probability of persecution if deported. Withholding of removal is the basic minimum form of protection through which the United States ensures its compliance with its obligation under international law not to return refugees to countries where their lives or freedom would be threatened. If an immigration officer thinks an intending asylum-seeker has been here for more than one year but less than five, section 3006 does not provide for any investigation or review of the person's eligibility for withholding.

In addition to being a threat to relief for genuine refugees under asylum and withholding of removal, section 3006 would allow the return under expedited removal of non-citizens determined to have been in the United States for less than five years who would face torture when deported. This section provides no means for persons subject to expedited removal who fear they will be tortured if they are deported to make an application for protection under the Convention Against Torture. The bill provides for referral to an asylum officer only for those who express an intention to apply for asylum or a fear of persecution. This omission sets the stage for very serious violations of the U.S.'s obligation under the CAT not to return people to countries where they would be tortured.

This massive expansion of expedited removal would also be likely to affect even more people than it seeks to target, because it is difficult for a person who has just been arrested by an immigration officer unexpectedly to prove that he or she has been in the United States for more than five years, or for less than one year so as to qualify for referral to an asylum officer. Most people who are present in the U.S. without admission do not walk around with five years' worth of rent receipts in their pockets. In the asylum context, proving one's date of entry typically takes some time and effort, and involves gathering documentation and witnesses-none of which can be accomplished in an expedited removal proceeding.

Finally, we do not believe that expanding the use of expedited removal in this way is the most efficient way to stop more terrorists trying to enter the United States. Expedited removal would not have stopped the terrorists who executed the 9/11 attacks. Moreover, expedited removal is the last option we ought to want as a defense against terrorists trying to gain entry, because essentially what it does is sends them out only to try to enter again somewhere else. The danger of relying on expedited removal to catch terrorists is that its focus is removal. Suspected terrorists should not be removed; they should be interrogated and charged.

Section 3007 is equally problematic. While current law already bars terrorists from seeking asylum, this section would allow genuine refugees to be denied asylum if they were unable to document relevant conditions in their countries through State Department reports, could not prove their persecutor's central motive for harming them, or had any inconsistencies between statements made to any U.S. government employees, whether written or oral and whether or not under oath, and there testimony before an immigration judge. There are key changes in this section that create insurmountable hurdles for individuals seeking safe haven in the United States.

Section 3007 would require an asylum applicant to prove that her persecutor's central motive in persecuting her was or would be her race, religion, political opinion, nationality or membership in a particular social group. While committing torture, rape, beatings, and other abuses, persecutors do not always explain themselves clearly to their victims. This is why the Board of Immigration Appeals has ruled that asylum applicants are not required to show conclusively why persecution has or will occur. 30

[Footnote] This bill would reverse that decision and place an enormous and unnecessary burden on asylum seekers by requiring them to prove with unrealistic precision what is going on in their persecutor's mind.

[Footnote 30: In Matter of S-P-, 21 I&N Dec. 486 (BIA 1996). The case involved a Sri Lankan who was tortured by his government purportedly to ascertain information about the identities of guerrillas and the location of camps, but also because of an unstated assumption by his torturers that his political views were antithetical to the government.]

This section would permit adjudicators to deny asylum because the applicant is unable to provide corroborating evidence of `certain alleged facts pertaining to the specifics of their claim.' This disproportionately harms applicants who are detained and/or lack counsel. In addition, section 3007 would bar judicial review of a denial of asylum based on an applicant's failure to provide corroborating evidence.

Section 3007 also introduces new credibility grounds for denying asylum, saying that the applicant's `demeanor' and other highly subjective factors may be determining factors in assessing credibility. Demeanor is highly cultural and should not be relied on as heavily as evidence. 31

[Footnote] Moreover, torture victims often have what mental health professionals call a `blank affect' when recounting their experiences, a demeanor that an adjudicator might misinterpret as demonstrating lack of credibility.

[Footnote 31: In one culture, looking a judge in the eye would be interpreted as candor, while in another it would be interpreted as contempt; downcast eyes might be interpreted as respect for authority in one culture and evasiveness in another.]

Additionally, it may be difficult for asylum applicants to recount their experiences, and even more troubling based upon the situation. Survivors of torture, such as rape, or forced abortion or sterilization may not be comfortable telling this information to a uniformed male inspection officer in an airport. Also, applicants in that setting may not be provided with appropriate interpreters. They may understandably fear discussing problems in their home countries in any detail until later in the process when it is made clear to them that they are not going to be sent back to their home countries without their claims being heard. Several courts of appeals even have emphasized that statements taken under such conditions are unreliable. 32

[Footnote]

[Footnote 32: Fauyiza Kassindja, the young Togolese woman who fled female genital mutilation (FGM), would have been denied asylum under this standard with little chance of getting that determination reversed on appeal. Under current law, the Board of Immigration Appeals Appeals rightly reversed the Immigration Judge's credibility finding in her case, and that decision has helped protect other women fleeing FGM.]

Section 3007 also allows asylum to be denied for lack of consistency, including with any statement the applicant made at any time to any U.S. official. In order to escape persecution and flee to safety, refugees sometimes need to misrepresent why they are leaving one country and entering another. For reasons of fear, desperation, confusion and trauma they often do not tell the full story or, necessarily, the accurate story. To use an applicant's first statement to any U.S. official to impeach his or her sworn testimony, no matter how well supported, is unreasonable and unfair.

Furthermore, the Refugee Convention definition of a refugee, and its definitive interpretation in the United Nations High Commissioner For Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, do not require and in fact acknowledge that a person seeking refuge `may not be aware of the reasons for the persecution feared.' To meet the test that persecution be `on account of' one of the prohibited grounds, it is sufficient to show persecution is motivated in part by one of those grounds. Asking a refugee or asylum applicant to parse his persecutor's motivations so finely as to distill the central motive is asking asylum seekers to read the minds of their persecutors. Moreover, current Supreme Court case law interpreting the `on account of' requirement is already the strictest in the world without section 3007.

Finally, section 3007 calls for consistency between the applicant's claim and country conditions in the country from which the applicant claims asylum `as presented by the Department of State.' This provision could be interpreted to exclude country conditions information from human rights organizations, journalists, and myriad other sources of relevant and reliable information that are not necessarily included in State Department country reports.

Although the State Department country reports are usually well researched, they are not an exhaustive and unfailingly accurate source of documentation of all of the wide range of human rights violations around the world that can give rise to valid asylum claims. In addition, since these reports come out annually, they can not be relied upon for documentation of more recent events.

The President has made many strong statements about his concern for the persecuted and America's role in creating a safe haven. On United Nations International Day in Support of Victims of Torture, he said:

The United States reaffirms its commitment to the worldwide elimination of torture. * * * The United States will continue to take seriously the need to question terrorists who have information that can save lives. But we will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere. 33

[Footnote]

[Footnote 33: The President, Statement on U.N. International Day in Support of Victims of Torture (June 26, 2004).]

[Footnote]

[Footnote 34: The effect of sections 3006, 3007, and 3009 are best illustrated through an actual asylum petition that would have turned out quite differently had sections 3006, 3007, and 3009 been in place. The findings of fact by the appellate court recount that Olimpia Lazo-Majano, a young Salvadoran mother of three, was 29, in 1981, when her husband fled El Salvador for political reasons. Ms. Lazo-Majano remained in El Salvador, working as a domestic. In mid-1982, Ms. Lazo-Majano was hired by a sergeant in the Salvadoran armed forces named Rene Zuniga. After Ms. Lazo-Majano had been working for him for several weeks, Zuniga raped her at gun point. This began a period of abuse during which Zuniga beat Ms. Lazo-Majano, threatened her, tore up her identity card and forced her to eat it, dragged her by the hair in public, held hand grenades against her head, and threatened to bomb her. Ms. Lazo-Majano felt trapped and powerless to resist Zuniga, because he accused her of being a subversive and threatened that if she reported him or tried to resist him, he would denounce her or kill her as a subversive. Ms. Lazo-Majano believed him: she knew a teen-age boy who was believed to have been tortured and killed by the army, the husband of a neighbor had been taken away at night together with a group of other men and killed the preceding year, and numerous young girls who had been raped with impunity.]

In late 1982, Ms. Lazo-Majano escaped and fled to the United States, entering the country without inspection. Neither the Immigration Judge who heard her request for asylum nor the Board of Immigration Appeals doubted her credibility. But the Immigration Judge ordered her deported to El Salvador, and the BIA upheld that decision in 1985, on the grounds that `such strictly personal actions do not constitute persecution within the meaning of the Act.' Ms. Lazo-Majano appealed to the federal court of appeals. The court of appeals reversed the BIA, holding that Zuniga `had his gun, his grenades, his bombs, his authority and his hold over Olimpia because he was a member' of an army unrestrained by civilian control, that his cynical imputation to her of subversive political opinions, and the danger that he would kill her or have her killed on this basis, qualified her for asylum.

In its decision, the court of appeals in this case noted reports that people being denied asylum and deported from the United States to El Salvador had been tortured and killed. Fortunately for Ms. Lazo-Majano, her deportation was stayed pending the federal court's review. Under section 3009 of H.R. 10, however, the court could not have stayed Ms. Lazo-Majano's deportation unless she were able to show by `clear and convincing evidence'--before briefing or argument in this legally complex asylum case--that execution of the deportation order would be `clearly contrary to law.' This is a higher standard than she was required to meet to actually win her asylum case before the court of appeals. Under H.R. 10, Ms. Lazo-Majano would have been deported to El Salvador. The federal court's decision in her favor two years later would do nothing to protect her there.

If section 3007 of H.R. 10 had been law, this case would almost certainly not have been decided in Ms. Lazo-Majano's favor. Section 3007 would require her to establish that she was the wife of someone who fled the country for political reasons, that her persecutor attributed `subversive' political opinions to her, and that his desire to stamp out any resistance to his dominance over her as a man and an officer in the ruling army, were not only the motives of Zuniga's persecution, but that her political opinion was `the central motive' for the persecution. A dissenting judge on the court of appeals in this case took the view that Ms. Lazo-Majano was `abused * * * purely for sexual, and clearly ego reasons' and was therefore not eligible for asylum. If this case were decided under the rule of section 3007, that view would have prevailed.

In fact, if H.R. 10 had been the law, Ms. Lazo-Majano would have been unlikely to have had her asylum claim heard at all--by anyone. Section 3006 expands expedited removal procedures to require the summary deportation, without hearing or review, of anyone who has not been admitted or paroled into the United States and (in the judgment of an immigration officer) has not been physically present in the United States continuously for the past five years. Ms. Lazo-Majano was present in the United States without admission when she was stopped by an immigration officer. Section 3006 provides that a person in this situation who indicates an intention to apply for asylum or a fear of persecution shall be referred to an asylum officer for a credible fear interview. Ms. Lazo-Majano would be allowed to apply for asylum if she was able to tell a uniformed Border Patrol officer (an uniformed and likely male officer) about her fears, but even if she felt safe enough to do that she would only be granted a credible fear interview if the officer determined that she had been present in the United States at that point for less than a year.

In fact, Ms. Lazo-Majano had only been in the United States for a few months when she was stopped. But could she have proved that? She was an undocumented immigrant with no proof of her date of entry and probably very limited documentation of her life in this country. If she had in fact been in the U.S. for over a year, she might have been eligible for an exception to the one-year filing deadline for asylum claims--many refugees who have been through the kind of shattering, traumatic experiences she suffered arrive in the U.S. suffering from psychological and/or physical ills that make it impossible for them to file their claims timely. For many victims of rape and other forms of torture, the continuing feeling of shame and fear are so overwhelming that they may not be able to bring themselves to tell their stories to any other person--much less a U.S. government official--until they have gained some sense of security. People in this situation are often eligible for an exception to the filing deadline under INA section 208(a)(2)(D). Section 3006 would prevent their claims from being heard. Regardless of her date of filing, Ms. Lazo-Majano would be eligible for withholding of removal under section 241(b)(3) of the INA, but section 3006 makes no provision for application for withholding of removal.

C. THE LEGISLATION UNFAIRLY AND UNCONSTITUTIONALLY LIMITS JUDICIAL REVIEW OF EXECUTIVE ACTIONS

Section 3009 would eliminate virtually all federal court review of orders of deportation, including claims arising under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment. Review of such orders would be limited to `circuit courts of appeals of constitutional claims or pure questions of law raised upon petitions for review filed in accordance with this section.'

The bill not only forecloses habeas corpus review in those cases where a `petition for review' is barred under section 242(a)(2) of the Immigration and Nationality Act--it goes much further by redefining `judicial review' and `jurisdiction to review' throughout the INA to include review by habeas corpus. This is a radical departure in immigration law because it changes the longstanding, historical meaning of `jurisdiction to review' and `judicial review'--`terms of art' that have been long interpreted in immigration matters as distinct from review by writ of habeas corpus. 35

[Footnote] This section would redefine the meaning of these terms to explicitly forbid access to the `Great Writ' for all claims where `judicial review' or `jurisdiction to review' is barred, dramatically altering at least thirteen separate provisions of the Immigration Act that affect agricultural workers, asylum petitioners, non-immigrants and others. In these cases, habeas review must be available as a safety valve. The Constitution demands court review for all actions that affect the liberty of persons detained by the government.

[Footnote 35: INS v. St. Cyr, 533 U.S. 289, 312 n.35 (2001).]

After barring these claims, the legislation explicitly bars the federal courthouse doors to any alternative appeal through the `Great Writ' of liberty. In so doing, the bill violates the Constitution, which provides that `the Privilege of the Writ of Habeas Corpus shall not be

suspended' except in cases of `Rebellion or Invasion.' 36

[Footnote] The Supreme Court has held that the Constitution requires any substitute remedy for habeas corpus to be `neither inadequate nor ineffective to test the legality of a person's detention.' 37

[Footnote]

[Footnote 36: U.S. CONST. art. I Sec. 9.]

[Footnote 37: Swain v. Pressley, 430 U.S. 372, 381 (1977).]

This proposal ignores many of the other systemic problems that have led to necessary habeas litigation. The current system makes it very hard for many people to get any review, even if they have a strong claim. Factors negating meaningful review include the lack of access to counsel, detentions in remote areas, lack of notice on how to have a claim heard in court, exceedingly short time limitations to file petitions for review, no protection against deportation during the short time to file for review, and the government's use of hypertechnical arguments to defeat jurisdiction. These factors, plus the 1996 legislation's effective elimination of discretionary relief by the agency, have forced people into habeas litigation. The Majority rejected an amendment offered by Rep. Nadler and Rep. Linda Sanchez (D-CA) to strike this objectionable proposal.

D. THE LEGISLATION WOULD REGULATE FORMS OF IDENTIFICATION CONTRARY TO CONGRESSIONAL AND PRIVATE SECTOR VIEWS

The legislation contains problematic provisions that would make it difficult for immigrants to carry identification and open bank accounts, and for states to regulate drivers. Considering that these measures would not help in the war on terror, it is not surprising that they were not recommended by the 9/11 Commission.

First, section 3005 would prohibit federal employees from accepting any foreign identity document other than a passport. 38

[Footnote] The underlying objective is to prevent Mexican immigrants from using Matricula Consular cards for identification. The Government of Mexico has been issuing Matriculas at their consulates around the world for more than 130 years. The consulates do this to create an official record of its citizens in other countries. The Matricula is legal proof of registration with a consulate. This registration facilitates access to protection and consular services because the certificate is evidence of Mexican nationality. Last year alone, more than a million of these cards were issued to Mexican citizens living in the United States. It does not provide immigrant status of any kind, and it cannot be used for travel, employment, or driving in the United States or in Mexico. The Matricula only attests that a Mexican consulate has verified the individual's identity.

[Footnote 38: The identity document issue would come up when aliens are required to present a foreign identity document to enter a federal building or to board an airplane at a United States airport. In addition, the Transportation Security Administration requires passengers to show an identification card before being admitted to the secured areas of an airport.]

The Matricula also has some non-consular uses. For instance, because it is an identification card, it provides Mexican nationals in the United States with access to banking services. Without an acceptable identification card, many Mexican nationals in this country cannot open checking or savings accounts or use any other banking services. The significance of this cannot be overstated; in 2003, Latino immigrants sent $38 billion to Latin America. 39

[Footnote] Moreover, the U.S. banking industry has been supportive of the Matricula, planning to spend at least $8.5 billion through 2005 to attract Hispanic customers. 40

[Footnote]

[Footnote 39: Dr. Manuel Orozco, Institute for the Study of International Migration, Georgetown Univ., Pew Hispanic Center Report: The Remittance Marketplace-Prices, Policy and Financial Institutions 15 (June 2004).]

[Footnote 40: Holders of the Matricula are more likely to use regulated financial institutions, such as banks or credit unions, than a money transmitting business such as Western Union or MoneyGram because the cost of making such transfers is much higher for the latter category.]

The availability of banking services is a safety issue, as well. Because of perceptions that Latinos do not have bank accounts and thus carry large amounts of cash, Latinos are more likely to be victims of violent crime than any other racial or ethnic group. As a result of this problem, mayors across the country support the use of the Matricula to enable Latinos to use mainstream financial institutions and thus reduce crime and violence. 41

[Footnote]

[Footnote 41: See Rachel L. Swarns, Old ID Card Gives New Status to Mexicans in U.S., N.Y. Times, Aug. 25, 2003, at A1 (`In June, the mayors of the Indians cities of Fort Wayne, East Chicago, Columbus and Indianapolis announced they would accept the Matricula card. In July the State of Indiana and the cities of Madison, Ind., and Cleveland and Columbus in Ohio recognized it. This month, Cincinnati followed suit. Officials say the move would be a boon to local economies, encouraging Mexican immigrants to pour money into banks and businesses. They also say immigrants with bank accounts will be less vulnerable to criminals who prey on people who carry cash or keep money at home.').]

Finally, the use of the Matricula for establishing bank accounts has been approved by our government. The USA PATRIOT Act requires regulations setting forth minimum standards for financial institutions that relate to the identification and verification of any person who applies to open an account. 42

[Footnote] These regulations, promulgated by the U.S. Department of Treasury, permit banks to accept identification cards issued by foreign governments from customers opening new accounts, including the Matricula. 43

[Footnote] Additionally, the House recently defeated another attempt to ban the use of the Matricula. 44

[Footnote] Despite this clear support for the Matricula, opponents of the identification card are trying to achieve their objective indirectly by limiting which foreign documents can be accepted.

[Footnote 42: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107-56, Sec. 326, 115 Stat. 272, 317 (2001).]

[Footnote 43: See 31 C.F.R. Sec. 103.121 (2004).]

[Footnote 44: H.R. 5025, 108th Cong., 2d Sess. (2004). An amendment offered by Rep. Michael Oxley striking section 216, which prevented issuance of regulations regarding Matricula Consular cards, passed the House by a bipartisan vote of 222-177.]

Section 3052 of the legislation is another thinly-veiled attempt to limit forms of acceptable identification. Subsection 3052(c)(2)(B) would prohibit states from accepting any foreign document, other than an official passport, to meet the documentary identification requirements for a state-issued identification card (including a drivers' license).

While proponents of this measure have linked driver's licenses to security concerns by pointing out that many of the 9/11 hijackers were able to obtain licenses, we would note that making it more difficult to obtain a driver's licenses will not deter terrorism. Even requiring passports to obtain driver's licenses would not have prevented the 9/11 hijackers from getting driver's licenses; they all had passports.

Beyond the ineffectiveness of the proposal, it also would serve to exclude millions of people from American society and hinder state efforts to regulate drivers. Recent estimates indicate that we have between eight and fourteen million undocumented aliens in the United States, many of whom may not have passports and would be prevented from obtaining licenses under the legislation. The reality is that in many parts of the country it is virtually impossible to survive in our society without a car, and it is unlikely that undocumented aliens will simply give up and leave the country when they learn they cannot obtain licenses.

Moreover, a license is not just a privilege for the driver's benefit but also serves state purposes. By licensing drivers, the state can ensure that the drivers who receive licenses have acceptable driving skills, know traffic laws, and have liability insurance. In addition, registering and photographing all drivers helps the state to monitor driving records.

Finally, denying access to licenses could pose a safety risk. Traffic accidents are the leading cause of death, with forty-four thousand traffic fatalities in 2002. 45

[Footnote] According to a study conducted for the AAA Foundation for Traffic Safety, unlicensed drivers are five times more likely to be in fatal crashes than drivers with valid licenses. 46

[Footnote]

[Footnote 45: National Safety Council, Injury Facts: Report on Injuries in America (2003).]

[Footnote 46: AAA Foundation for Traffic Safety, Unlicensed to Kill: The Sequel (Jan. 2003).]

E. THE LEGISLATION CONTAINS OTHER OBJECTIONABLE PROVISIONS THAT WOULD NOT ENHANCE SECURITY AND WERE NOT RECOMMENDED BY THE 9/11 COMMISSION

1. The legislation increases criminal penalties for false claims to citizenship without any nexus to national security goals

We object to section 3086, which imposes five years imprisonment for making false claims to citizenship for the purpose of entering or remaining in the United States. This is yet another example of the mean-spirited, anti-immigrant sentiment that pervades this bill. Many immigrants, both legal and undocumented, may make such a claim upon an encounter with a law enforcement or immigration official. We believe that a five year jail term for such a statement is unnecessary and very counterproductive. Federal law already exacts severe consequences on immigrants who make false claims to citizenship. There is no valid policy reason for making taxpayers bear the high cost of jailing an immigrant for five years for such a minor non-violent offense.

Making a false claim to citizenship is already punishable under the Immigration and Nationality Act (INA). Section 212 makes an alien who falsely represents themself as a citizen inadmissible, and there is no waiver of the consequences of this offense. 47

[Footnote] In addition, this offense constitutes a crime of moral turpitude and triggers removability from the country under section 237 of the INA. 48

[Footnote] The INA makes a person who has committed a crime of moral turpitude subject to mandatory detention in jail, if they are convicted of a sentence of more than 1 year in prison. 49

[Footnote] This immigration detention, which can last for years, normally follows the service of a criminal sentence in prison.

[Footnote 47: 8 U.S.C. Sec. 1182(a)(6)(C)(ii).]

[Footnote 48: 8 U.S.C. Sec. 1227(a)(2)(A)(i).]

[Footnote 49: 8 U.S.C. Sec. 1226(c)(1)(B).]

Section 3086 needlessly piles on additional jail time to an immigrant who already faces removal, with mandatory detention in many cases. Upon deportation, the immigrant would be barred from the United States for life. 50

[Footnote] The consequences of one false statement, both to the immigrant and to their family, community and employer, are already severe. Adding a five year jail term to someone who is already subject to deportation, without possibility of return under our federal laws, is grossly excessive to the crime.

[Footnote 50: See Section 212 of the INA. An inadmissible person is not eligible to get a visa to return to the United States.]

Furthermore, the 9/11 Commission did not recommend the enhancement of this penalty, nor did it recommend anything remotely related to this policy. The Majority on this Committee justifies the inclusion of this policy 51

[Footnote] in this bill by the Commission's recommendation that `The Department of Homeland Security, properly supported by Congress, should complete, as quickly as possible, a biometric entry-exit screening system, including a single system for speeding qualified travelers.' 52

[Footnote]

[Footnote 51: Memorandum from the Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House Comm. on the Judiciary to Members, U.S. House Comm. on the Judiciary 16 (Sept. 27, 2004) (regarding the Markup of H.R. 10, the `9/11 Recommendation Implementation Act' and other bills).]

[Footnote 52: 9/11 Commission Report at 389.]

Jailing people for five years for claiming that they are U.S. citizens has nothing to do with a biometric entry-exit system, nor with speeding the transit of qualified travelers. There is no indication that a policy like this would catch terrorists trying to enter the country, or prevent a terrorist attack. In fact, none of the September 11th terrorists claimed U.S. citizenship to enter this country.

This policy is simply an anti-immigrant provision designed to punish, jail and deport immigrants, especially those who are undocumented. It has no nexus to national security and is most likely to result in years of imprisonment followed by the eventual deportation of random immigrant workers. We object to this penalty, and certainly oppose its inclusion in this bill, which is supposed to be responding to the recommendations of the 9/11 Commission.

2. The legislation would hinder business and tourism travel throughout the western hemisphere

Another provision of the bill would hamper travel throughout the western hemisphere and cause chaos for businesses and national economies. Section 215(b) of the Immigration and Nationality Act states that, unless otherwise provided, it is unlawful for U.S. citizens to depart from or enter the United States unless they bear a valid U.S. passport. By regulation, the Secretary of State has provided that U.S. citizens are excepted from this requirement when traveling directly between parts of the United States, and when traveling between the United States and any territory in North, South or Central America (i.e., the western hemisphere). 53

[Footnote]

[Footnote 53: 22 C.F.R. Sec. 53.2(a)-(b). Cuba is excluded from the western hemisphere exception. Id.]

Section 3001 of H.R. 10 would amend section 215(b) to invalidate the western hemisphere exception, thus requiring a passport to travel to and from currently exempted countries. It would permit the President to waive the passport requirement for travel to Canada and Mexico, but it would require such travelers to carry documents that the Secretary of Health and Human Services has designated as establishing U.S. citizenship for the travel purposes. 54

[Footnote]

[Footnote 54: The Secretary would have 60 days to pass an interim rule and publish a list of qualifying documents in the Federal Register. As of 90 days after that publication, the President would not be authorized to permit citizen arrivals or departures without the designated document or documents.]

As it is has been proposed, the measure would overburden passport processing operations and slow business and tourism travel to a halt. First, though it essentially would require the issuance of new passports for travelers to currently exempted countries, the legislation provides no funding to increase passport application processing. As such, the need for so many passports could result in severe backlogs and prevent people from taking needed trips. Further, it would have a particularly negative impact on the tourism industry of the Caribbean, which relies on U.S. travel of those without passports. For this reason, the provision would raise the ire of the travel industry and many businesses who would miss opportunities because they could not engage in last minute travel. 55

[Footnote]

[Footnote 55: Another concern we expressed during the markup is that it does not limit the use of secret immigration proceedings. During the Committee markup, Reps. Howard Berman (D-CA) and Delahunt (D-MA) offered an amendment to set out guidelines for government closure of hearings in immigration court in response to the blanket closure of these hearings by the Chief Immigration Judge in the weeks following the September 11th attacks. We feel that this amendment falls squarely within the recommendations of the 9/11 Commission. Specifically, the Commission recommended that: `The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.' The amendment offered by Rep. Berman would have created guidelines for the use of the government's power to close hearings.]

On September 21, 2001, Chief Immigration Judge Michael J. Creppy issued a memorandum (`Creppy Directive') implementing an order from the Attorney General to close certain immigration hearings. These cases were to be conducted completely in secret with `no visitors, no family and no press.' The mandate for secrecy even prohibited `confirming or denying whether such a case is on the docket or scheduled for hearing.'

It has been reported that the INS did not use classified information in any of these hearings. Instead the government has asserted that all purported terrorism-related proceedings need to remain closed in order to protect the privacy of the detainees and prevent information about government intelligence-gathering methods from reaching al Qaeda.

The U.S. District Court for the Eastern District of Michigan found that the order closing immigration hearings was unconstitutionally broad (Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (E.D. Mich. 2002), and the Federal Court of Appeals for the Sixth Circuit affirmed. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002). In a separate case the U.S. District Court for New Jersey found the closures unconstitutional (New Jersey Media Group v. Ashcroft, 205 F. Supp. 2d. 288 (D.N.J. 2002), but the Third Circuit reversed (New Jersey Media Group v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002). The Supreme Court declined to hear the cases, effectively allowing the government to continue the process, at least within the geographic confines of the Third Circuit.

Open proceedings, in judicial and quasi-judicial settings, protect individuals from arbitrary action and the public from sloppy decision-making. Transparent proceedings are also important in maintaining public confidence in the fairness of government activities. There are clearly individual cases where proceedings should be closed to protect the safety of participants or national security. But the Creppy Directive allows the partial closing of proceedings based on the government's prerogative, without any showing of legitimate security needs.

As of May 29, 2002, 611 individuals have been subject to one or more secret hearings. As noted, there is a split in the circuit that have considered the legality of these proceedings, and, in opposing review by the Supreme Court, the Justice Department announced it was reconsidering its policy. Brief for the Respondents in Opposition at 13, North Jersey Media Group (No. 02-1289). But, in the absence of legislative action, there is nothing to prevent the Justice Department from conducting more secret immigration hearings in the future.

The amendment offered by Mr. Berman responds to the Administration's decision to require blanket closure of immigration proceedings without any showing of legitimate security needs by the government. The amendment would have established a statutory presumption of openness for removal hearings while preserving the possibility that a hearing may be closed upon a specific showing of need. Namely, the amendment would create an exception that on a case-by-case basis, hearings may be closed to preserve confidentiality of the immigrant (as in asylum adjudications or cases involving minors), to protect national security if classified information is involved, or to protect the identity of a confidential informant.

During the markup, the Chairman of the Subcommittee on Immigration opposed the Democratic amendment claiming that `it is common today for immigration cases to be closed. In fact, all asylum proceedings and proceedings regarding inadmissibility of a particular applicant are closed today.' This statement is false. In making this argument, the Subcommittee Chairman's staff pointed to two sections of the Code of Federal Regulations stating that `All hearings, other than exclusion hearings, shall be open to the public * * *' (8 C.F.R. Sec. 1003.27) and `Exclusion hearings shall be closed to the public.' 8 C.F.R. 1240.32. These provisions apply only to exclusion hearings--proceedings that commenced prior to April 1, 1997. The do not apply to all inadmissibility hearings, as the Subcommittee Chairman claimed. To the contrary, all asylum and removal proceedings are presumptively open to the public. There are limited exceptions. For example, hearings can be closed by the court when the proceeding involves an abused alien spouse or child or if information presented in the hearing is subject to a protective order.

It is unfortunate that the Majority members of the Committee were misinformed by their Subcommittee Chairman. We would hope that without this misinformation, our colleagues would have joined us in reinstating a transparent and open system for our immigration hearings that provides safeguards to protect privacy, classified information, national security, and confidential informants.

II. THE LEGISLATION WOULD AUTHORIZE THE FEDERAL GOVERNMENT AND PRIVATE EMPLOYERS TO INTRUDE INTO THE EVERYDAY LIVES OF AMERICANS

A. THE LEGISLATION VIOLATES PRIVACY RIGHTS AND FEDERALISM BY STANDARDIZING DRIVER'S LICENSES TO CREATE A NATIONAL IDENTIFICATION CARD.

We object to Title III, Subtitle B, Chapter 1, which provides new standards for drivers' licenses and identification cards. 56

[Footnote] This provision goes far beyond the Commission's recommendations. It comes dangerously close to creating a national identification card system. It threatens American citizen's rights to privacy. It violates the tenets of federalism and forces unfunded mandates on the states. It excludes important stakeholders from the policy-making process and ignores state policy needs. It marginalizes immigrants in America, and ignores more reasonable alternatives for securing personal identification documents.

[Footnote 56: Specifically, this language is found in Sections 3051 through 3056. Although we oppose Chapter 1 of this Subtitle, we do not object to Section 3054, which makes it illegal to traffic actual document authentication features, in addition to false authentication features.]

In its final report, the 9/11 Commission issued the following recommendation:

Secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as drivers [sic] licenses. Fraud 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. 57

[Footnote]

[Footnote 57: 9/11 Commission Report at 390 (emphasis added).]

After discussing the importance of continuing to welcome immigrants and keeping track of who enters the country, the Report also noted, `All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud.' 58

[Footnote] The hijackers used licenses and IDs to rent cars, conduct other activities to enact their plan, and eventually board aircraft for the 9/11 attacks. Clearly, the Commission recommended the establishment of identification standards to ensure that terrorists could not traverse the country and conduct business transactions in furtherance of future domestic attack plans. 59

[Footnote]

[Footnote 58: Id.]

[Footnote 59: See comments of 9/11 Commission Vice Chair Lee Hamilton at Oversight Hearing on Privacy and Civil Liberties in the Hands of the Government Post-September 11: Recommendations of the 9/11 Commission and the U.S. Department of Defense Technology and Privacy Advisory Committee Before the Subcomm. on Commercial and Administrative Law of the House Committee on the Judiciary, 108th Cong., 2d Sess. 97 (`Just to let you know our concern here, all of these hijackers, except one, had U.S. identification. And what we are saying is that secure identification is very, very important in terms of counterterrorism. And we--we did not endorse a national ID * * * Keep in mind that these hijackers were extremely skillful in being able to find the gaps in our system. And we are trying to protect against that as best we can.')]

The 9/11 Commission's recommendation is broad and gives Congress room to work with federal agencies and states to develop standards that can be applied nationwide. Yet this Chapter goes far beyond the Commission's recommendation that the federal government set standards for identification. It requires the states to overhaul their procedures for issuing driver's licenses and identification cards to meet Federally-proscribed standards. It requires that states establish a database system for sharing all of the personal information and driving histories on license and ID card holders, though the Commission did not recommend any type of unified database for this data. The Commission did not suggest that the Federal government should interfere with states' prerogatives or the privacy rights of individuals. 60

[Footnote] Nor was there a suggestion that Federal grants to the states should hinge on a shared database agreement as proposed in H.R. 10. This Chapter also forces states to bear all of the financial costs of these new standards by failing to fund these mandates. The proposal in H.R. 10 goes well beyond the Commission's recommendation and unnecessarily violates the privacy rights of citizens and residents.

[Footnote 60: See Statement of Vice Chair Lee Hamilton and Commissioner Slade Gorton, National Commission on Terrorist Attacks upon the United States, Before the Subcommittee on Commercial and Administrative Law and the Subcommittee on the Constitution of the House Committee on the Judiciary, p. 3. (August 20, 2004) [Hereinafter Hamilton and Gorton Statement]. (`Individual rights and liberties must be adequately protected in the administration of the significant powers that Congress has granted to executive branch agencies to protect national security.')]

Section 3052 establishes minimum standards for Federal recognition of state-issued driver's licenses or identification cards. It requires, at a minimum, that the following information be included on the identity documents: full legal name; date of birth; gender; license or ID card number; photo; residential address; signature; security features to prevent fraudulent use or tampering; and a common machine-readable technology with defined minimum data elements.

Section 3052 also spells out what forms of information and proof a state must require before issuing a license or ID: a photo identity document or alternative with legal name and date of birth; a document with date of birth; proof of social security account number; and a document with name and address of principal residence. The states must verify each document with the original issuing agency, and they are prohibited from accepting any foreign documents, except an official passport, for these purposes.

Furthermore, section 3052 requires states to use digital technology, retain copies or images of documents; require facial image capture for driver's license issuance; establish a procedure to verify information for renewals; confirm the accuracy of social security numbers and take action if one is registered to another person; refuse to issue licenses without

confirmation that the applicant has terminated their license from another state; secure licensing facilities and employees authorized to manufacture or produce them; and establish fraudulent document recognition training.

The National Governors Association `strongly opposes' these provisions in H.R. 10. 61

[Footnote] They note that the bill was `drafted without any input from Governors' and `exclude[s] states from the standard-setting process despite states' historic roles as issuers of driver's licenses and other identification data.' 62

[Footnote] In their opinion, the bill `would impose unworkable technological standards and verification procedures on states, many of which are well beyond the current capacity of even the federal government.' They oppose the requirement that they share their state information with the federal government. In their view, this proposal would `create financial, administrative and implementation problems by requiring state compliance with these unprecedented, federally-imposed standards within a short timeframe.' In addition, `the cost of implementing such standards for the 220 million driver's licenses issued by states represents a massive unfunded federal mandate.' 63

[Footnote] We agree with their assessment and share their concerns.

[Footnote 61: NGA Letter.]

[Footnote 62: Id.]

[Footnote 63: Id.]

As written, this Chapter would require state departments of motor vehicles to verify each and every identification document used to prove identity, by confirming the document with the government agency or company that issued it. Without a well-developed cooperative approach, this will become a bureaucratic nightmare that will be costly to the states and will cause substantial delays for citizens and residents. H.R. 10 also fails to provide any protections for the digital data it requires states to store digitally. There are no limits on how it may be used, nor is there any guidance for maintaining data security. This bill even goes as far to make the appearance of the IDs uniform--a step that is eerily close to a national ID card.

The states have a right to participate in determining how features for licenses and ID cards should be changed. Despite their expertise, they had no role in developing the requirements in H.R. 10. In effect, this Chapter empowers the Federal government to usurp state control over licensing and identification and establishes the equivalent of a national identity card with different state names on them.

Drivers' licenses are not simply identification documents. Their purpose is to ensure that people are safe drivers, who know the traffic laws and have defensive driving skills, before they drive on our roads and highways. Licensing also makes it possible for drivers to have liability insurance to protect other drivers on the road. The states should maintain their critical role in the issuance of licenses. Their obligation to ensure safety on their roads to protect their residents and visitors should not be ignored.

Perhaps the objections raised by the National Conference of State Legislatures (`NCSL') best enunciate the concerns we share with the states about the imposition of these standards and the obligation to share the data of state residents:

These provisions show no respect for federalism. They constitute egregious unfunded mandates dealing with drivers' licenses, birth certificates, personal identification cards and use of social security numbers that are likely to impose billions in costs on states. They preempt and undercut state legislative authority through a federally-contrived rulemaking process. They set a prescriptive framework for a national identification card. They ignore efforts made in every state to strengthen the integrity of drivers' licenses issuance and verification. They surrender legislative prerogative to federal agencies and bureaucrats without the benefit of congressional oversight. They constitute the groundwork for potentially compromising civil liberties and individual privacy. They compel state participation in compacts that are not recognized by state lawmakers and elected officials. They reference a federal grant process and funding of `sums as may be necessary,' all in an environment of bulging federal deficits and constraints on domestic discretionary spending. 64

[Footnote]

[Footnote 64: NCSL Letter. In addition to the provision on driver's licenses and state identification cards, the letter referred to provisions on birth certificates and social security data in Title III, Subtitle B, Chapters 1, 2, and Section 3071 of Chapter 3 from H.R. 10.]

Title III of H.R. 10 proposes a computerized national database of every American driver's license and state identification card under the guise of strengthening our homeland security. Section 3053 requires that states must agree to participate in an interstate compact for the electronic sharing of driver license data, known as the `Driver License Agreement,' in order to receive any grants or assistance under the bill. It requires state motor vehicle databases contain (1) all data fields printed on driver's licenses and identification cards issued by the state, and (2) motor vehicle drivers' histories, including motor vehicle violations, suspension, and points on licenses. A mega-datebase such as this one represents a perilous threat to our Constitutional rights. By forcing state governments to maintain and share files on almost every adult in the state, H.R. 10 will truly usher in the era of a `Big Brother' government.

Past efforts to establish a national ID card to identify and track U.S. residents have failed, due to the threats they pose to our liberty. 65

[Footnote] H.R. 10 seeks to achieve that same purpose through the back door. Instead of creating a new national ID card, whose data would be held and monitored by the Federal government, this proposal standardizes state ID cards so that they achieve the same purpose. In this proposal, the states maintain the data, but they are forced to create a mega-database whose data must be shared by all 50 states and the U.S. territories.

[Footnote 65: See Alison M. Smith, Congressional Research Service, National Identification Cards: Legal Issues, n. 1-3 (Jan. 3, 2003). Examples include the Immigration Reform and Control Act of 1976, which stated, `Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.' Pub. L. 94-571. Similarly, Rich Thornburg, Attorney General for President George Bush, ruled out identification cards for the use of guns in 1989, feeling that it was `an infringement on rights of Americans.' See Alison M. Smith, Congressional Research Service, National Identification Cards: Legal Issues n.2 (Jan. 3, 2003) (citing Ann Debroy, `Thornburg Rules out Two Gun-Control Options,' Wash. Post, June 29, 1989 at A 41). Finally, Representative Dick Armey has been quoted as saying `[w]e didn't beat back the administration's plan to issue us all `health security cards' only to have Congress adopt an I.D. card to track down immigrants.' Id. (citing William H. Minor, Identity Cards and Databases in Health Care: The Need for Federal Privacy Protections, 28 Columb. J.L. & Soc. Probs. 253,273 (1995)).]

There are no privacy limitations on the use of this data. 66

[Footnote] The bill does not prevent the sharing of this information with other people, companies, Federal government agencies or foreign governments that may make inquiries. There are no systems for maintaining the datashare systems, ensuring the accuracy of the data, preventing fraud and tampering, making corrections, or filing complaints for inaccuracy or misuse of the data. Currently, some states do not even have accurate or complete databases. Not all states can verify whether or not a certain person has a valid driver's license from their state. Certainly the Federal government should not mandate linking up state databases when some states cannot provide reliable information about their license and ID holders.

[Footnote 66: See Hamilton and Gorton Statement, p.1 (`We also recognize that with the enhanced flow of information comes a need to establish guidelines and oversight to make sure that the privacy of our citizens and residents is respected and preserved.')]

The lack of data safeguards ensures that the data will often be inaccurate and misused. There will be serious consequences for untold numbers of people who may miss flights, land in jail, fail to get benefits or be denied other opportunities due to database errors.

As noted above, the system proposed in this Chapter will dangerously increase the Federal government's ability to monitor individuals. The data-sharing system is bound to be subject to unauthorized disclosures and leaks. During World War II, for example, supposedly sacrosanct census data was used to identify Japanese-Americans for internment. 67

[Footnote] This mega-database will be a tempting target for future legislation and policies. The FBI could use this database to identify certain immigrants or members of an ethnic group for `voluntary interviews'. 68

[Footnote] Collection agencies and states could erroneously identify people as unpaid debtors or child support evaders. People might be identified through the database because they criticized the President for U.S. involvement in a war or protested an international organization for the ills of globalization. The system is ripe for abuse and misuse that will violate people's rights to privacy, speech, and civil rights. 69

[Footnote]

[Footnote 67: H.R. Rep. No. 104-469, 104th Cong., 2d Sess. pt. 1, at 520 (1996)]

[Footnote 68: For example, in late 2001 and 2002, the FBI conducted a program of `voluntary interviews' of over 5000 Muslim residents of the U.S., seeking information related to the September 11, 2001 attacks and terrorist threats to the United States. Similar interviews of Iraqi residents in the U.S. were conducted prior to the initiation of the war in Iraq in 2003.]

[Footnote 69: See Hamilton and Gorton Statement at 2 (`We did propose a general test to be applied to consideration of the renewal of other provisions of the USA PATRIOT Act, and we believe that principle should also be applied to other legislative and regulatory proposals that are designed to strengthen our security but that may impinge on individual rights. The test is a simple but important one: The burden of proof should be on the proponents of the measure to establish that the power or authority being sought would in fact materially enhance national security, and that there will be adequate supervision of the exercise of that power or authority top [sic] ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.')]

Combined with other sections of H.R. 10 that prevent or limit the use of other forms of identification, 70

[Footnote] track the movement of Americans in and out of the country, 71

[Footnote] standardize state records for birth certificates, and set up computerized systems for state and federal sharing of birth and death records, 72

[Footnote] the impact of this proposal for driver's licenses and state-issued ID cards is truly frightening. 73

[Footnote] America would become a place where a person's every move, every encounter with state or federal governments from birth to death, would be tracked and monitored by those governments. H.R. 10 is a major leap forward in creating an all-intrusive `Big Brother' government.

[Footnote 70: See H.R. 10 Sec. 3005.]

[Footnote 71: See id. Sec. 3001.]

[Footnote 72: See id. Sec. 3061.]

[Footnote 73: See NCSL Letter.]

Section 3055 empowers the Secretary of Homeland Security to make grants to the states to assist their efforts to conform to the minimum standards in this chapter. It authorizes such sums as may be necessary to carry out the Chapter from fiscal years 2005 through 2009. However, there is no guarantee that these grants will be made to all states and territories, or that sufficient funds will be provided to cover the massive expenses of these reforms. Furthermore, the demand for state compliance is not contingent upon the provision of federal funding to meet the costs of these reforms. The result will likely be a large unfunded mandate upon the states. 74

[Footnote] Yet many states continue to struggle financially as a result of other federal budget cuts in recent years. How will they pay for this plan? If these measures are needed for our national security, they should be paid for with federal funds. The burden of imposing and sharing these mandatory standards should not rest with the states.

[Footnote 74: See NGA Letter.]

Section 3056 gives the Secretary of Homeland Security the authority to make regulations, certify standards and issue grants under this title, in consultation with the Secretary of Transportation and the States. This gives ultimate authority to DHS, all but removing the Department of Transportation from the process, despite their authority over federal highways, their impact over State road and highway policy, and their experience working with states on road safety and licensing policies. At a minimum, the Secretary of Transportation should share the authority to implement this Chapter by making regulations, certifying standards and issuing grants in conjunction with the Secretary of Homeland Security. As discussed below, Rep. Linda Sanchez (D-CA) offered a substitute that would have achieved this balance. Under her proposal, the Secretaries of Transportation and Homeland Security would have joint authority to ensure that road safety policy was considered along with homeland security needs in creating and implementing these new standards.

We would also note that this policy would leave citizens vulnerable to immigrant drivers on the roads without licenses. Many undocumented aliens who do not have passports are going to drive whether they have driver's licenses or not. Preventing the states from issuing driver's licenses to these aliens will result in a lot of untested, uninsured drivers on the roads. As a number of immigration organizations noted, `Not only would these requirements grind to a halt the issuance of driver's licenses throughout the country, they also would lead to a de facto immigration status requirement. Such a result would severely undermine the law enforcement utility of the Department of Motor Vehicle databases by discouraging individuals from applying for licenses.' 75

[Footnote]

[Footnote 75: Immigration Sign-On Letter.]

Rep. Sanchez did offer a Democratic substitute to this Chapter at the Full Committee mark-up that Republicans defeated in a 19 to 12 vote. 76

[Footnote] Her proposal would have satisfied the recommendation of the 9-11 Commission, while bringing all those who have a serious interest in the implementation of standards together. She proposed creating a working group of federal and state experts who would carefully determine standards that would both ensure the security of driver's licenses and state identification cards and meet the policy needs of the States. This working group would include officials from the Department of Transportation, the Department of Homeland Security, and State motor vehicle departments. The working group would have reported their findings to Congress, allowing us to make a more reasoned decision that met the objectives of all stakeholders.

[Footnote 76: H.R. 10 Markup at 317-332.]

Although the substitute amendment failed, Rep. Melvin L. Watt (D-NC) expressed bi-partisan concerns about how to improve driver's license security and the risks of imposing a national identification card:

[Footnote]

[Footnote 77: H.R. 10 Markup at 322.]

[Footnote]

[Footnote 78: Id. at 326.]

We agree with the 9/11 Commission that drivers' licenses and identification cards should be secure and should not be easily obtainable by terrorists, as was the case before September 11, 2001. However, creating a national ID is not the answer. All of the States and relevant federal agencies should have a role in carefully constructing appropriate national standards. A rigid, federal mandate is unwise and places unreasonable expectations on the states. This is especially true when the federal mandate is not funded, as in this case.

Most importantly, this proposal does not strike an appropriate balance between our rights to individual privacy and the federal government's responsibilities to enhance our national security. We can improve the screening of card applicants, enhance the security of the identification cards, and ensure that driver's meet safety tests. This can be done without violating individual privacy, creating a database with information on almost every U.S. resident, and increasing the number of dangerous, uninsured drivers on American roads and highways. It is our obligation to find the right balance. Rushing into a bad policy that establishes a `Big Brother' government database that will soon move beyond our control is not the answer. There is no evidence that the 9/11 Commission ever suggested or contemplated such a sweeping,

overbroad policy to achieve the objective of securing domestic identification. Individual privacy must and can be protected while we improve our national security. Alternative reforms could successfully achieve this balance.

B. THE LEGISLATION WOULD PROVIDE UNFETTERED ACCESS TO INACCURATE AND INCOMPLETE CRIMINAL BACKGROUND INFORMATION ON EMPLOYEES

The bill also would subject private citizens to widespread dissemination of any criminal history information, regardless of accuracy. As reported from the Committee, section 2142 authorizes private employers to obtain background information, however inaccurate, on potential employees from the Attorney General. This program would undo the careful balance that exists between security needs and privacy interests and could lead to the dissemination of incorrect and private information.

Under current law, the Attorney General is authorized to acquire, collect and classify information for the purpose of criminal identification and records, the identification of deceased individuals and the location of missing persons. 79

[Footnote] This information may only be exchanged with federal government, the states, cities, and penal and other similar institutions. 80

[Footnote]

[Footnote 79: 28 U.S.C.Sec. 534.]

[Footnote 80: Id. Sec. 534(a)(4).]

Section 2142 would expand this authority significantly. It would create a pilot program that would empower private employers to access federal databases when such a search would be legal under state law. It requires the Attorney General to set up a system by which this information can be reliably accessed by fingerprint or other biometric identifiers. The search requester will be provided with an identifying description of the individual, and all available history on arrests, detentions, indictments or other formal charges. The requester also would receive any available dispositional information on the aforementioned, such as acquittal, sentencing, correctional supervision and release information. The Attorney General would then be required to submit a report regarding how a background program might be applied to the general public. Section 2142 also creates a program by which security guard companies may check potential employees' backgrounds.

While we understand the need for ensuring the integrity of, this measure would not be of benefit in that regard. We believe that a study must proceed a actual program, not follow it. In the four months of its operation, the pilot program envisioned by the bill's proponents could collect information on countless innocent Americans. We cannot support such a program for many reasons.

First, the program exceeds the scope of the 9/11 Commission report. It is unclear how this provision even relates to terrorism at all that it is not limited to those who work in national security-related positions or even those who work for the government. Plainly, there is no justification for allowing waitresses, accountants, cooks, and construction workers to be subjected to a federal background check through this bill. That is precisely whey states that allow discrimination based on criminal history require some nexus between the position and the relevance of one's criminal past. For example, many states regulate the employment only of those who work in law enforcement, or with the children or the elderly. 81

[Footnote] To create a blanket check for people regardless of the sensitivity of their jobs muddies what this bill intends to do--prevent future terrorist attacks--and jeopardizes our privacy.

[Footnote 81: Amy Hirsch, Center for Law and Social Policy, Every Door Closed: Barriers Facing Parents With Criminal Records 15 (2002).]

Second, there are not safeguards to protect the information that employers collect and submit. The legislation contains no guidelines for what to do with information one it has been given to the Justice Department. It does not regulate what officials, public or private, would have access to it. Further, it does not provide whether the information is destroyed after the criminal history check or whether it remains in some new database of average Americans who have done nothing more than apply for a job. During the markup, the majority was forced to acknowledge that the legislation does not address these issues. 82

[Footnote]

[Footnote 82: H.R. 10 Markup.]

Rep. Jackson Lee (D-TX): `I ask do you know, under the pilot program, what would happen to those fingerprints of all these individuals who would be subject to the criminal history background check?

Rep. Steve Chabot (R-OH): `It's not been set up yet, so the details of this ultimately will be determined.'

Beyond our concerns about what the Justice Department would do with its new boon of personally-identifiable data, there are concerns about the lack of regulations for employers. Section 2142 is silent about what employers are required to do to protect their employees' and applicants' sensitive information. There also are no provisions for ensuring that the background checks are actually being requested by bona fide employers instead of merely persons seeking private information on relatives or business competitors.

Third, the provision has no safeguards for accuracy. The Brandon Mayfield fiasco 83

[Footnote] demonstrates how easy it is to misidentify someone, even through our criminal and fingerprint databases. Despite this fact, the legislation does not require the database to have any level of accuracy before allowing information to be shared so that Mr. Mayfield's ordeal is not repeated. Beyond misidentification, it is possible that the files may be incomplete because they may not hold all of the dispositional information of how an arrest or charge was resolved. For this reason, the Justice Department should not disseminate arrest records until it can demonstrate that it also will disseminate acquittals, mistrials and those situations where charges were dropped.

[Footnote 83: The FBI held Brandon Mayfield for two weeks in connection with the Madrid train bombing. The FBI held Mr. Mayfield on the basis of a fingerprint on a bag with detonators near the bombing, despite the fact that the Spanish government had questioned the FBI's identification of Mr. Mayfield. The FBI eventually released and apologized to Mr. Mayfield for its mistake.]

This provision invites unwarranted discrimination against those with criminal pasts. The Equal Employment Opportunity Commission has found that discrimination on the basis of criminal history can very well be a violation of Title VII under a disparate impact theory, and should only be allowed when proven that it is a business necessity. 84

[Footnote] It has further stated that arrest records can be particularly troublesome, and that an arrest absent a conviction should very rarely ever be a justification for not hiring an applicant. 85

[Footnote] Finally, even the President has admitted the importance of integrating past offenders into our society, such as to reduce recidivism. 86

[Footnote] The legislation's new criminal history checks will just invite more discrimination against those who have reformed their lives, those whose convictions are far in the past, even those who were arrested, but never convicted, of a crime, and make it harder for them to reintegrate into society.

[Footnote 84: Equal Employment Opportunity Commission, Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964 (Feb. 4, 1987).]

[Footnote 85: Policy Guidance on the Consideration of Arrest Records in Employment decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. (Sept. 7, 1990).]

[Footnote 86: The President, State of the Union Address (Jan. 20, 2004) (`Tonight I ask you to consider another group of Americans in need of help. This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work, or a home, or help, they are much more likely to commit crime and return to prison. So tonight, I propose a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups. America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.').]

Finally, we would note there are no meaningful limitations whatsoever on the scope or duration of the pilot program. Ordinarily, when a pilot program of this magnitude is created, Congress will limit the program's geographic or other scope or duration. No such limitations are set forth in this legislation, effectively giving the Attorney General carte blanche authority to develop a program that could intrude on our civil liberties and privacy.

While we support background checks for security guards we cannot support background checks for the myriad of other positions that have no security or terror relation whatsoever. To include such a measure in an anti-terrorism bill is misleading and jeopardizes what the 9/11 Commission recommended as real fixes for the terrorist threat. Unfortunately, the majority rejected an effort to limit the scope of the checks to security employees and to study the possibility of further expansion. 87

[Footnote]

[Footnote 87: By a vote of 11-20, an amendment by Rep. Sheila Jackson Lee (D-TX) to remove the pilot program was defeated. See H.R. 10 Markup.]

C. THE LEGISLATION WOULD AUTHORIZE THE GENERATION OF TRAVEL DATABASES AND SCREENING PROGRAMS WITHOUT REGARD TO ACCURACY

Another concern with the legislation is that it would permit the development of travel databases and screening programs but would not ensure the integrity of those records. Section 2173 directs the Assistant Secretary of Homeland Security to begin testing a next generation passenger prescreening program, and directs the Secretary to establish procedures by which a person can appeal their position on a no-fly list.

While few can dispute the need for passenger screening, such measures must be done properly. At least hundreds, if not thousands, of airline passengers have complained to the Transportation Security Administration that their names incorrectly appear on TSA no-fly lists; in July 2004 alone, two-hundred and fifty people sought to have their names removed from such lists. 88

[Footnote] We believe the ability to remove oneself from a no-fly list is such a basic right for every American that it should receive the government's highest attention.

[Footnote 88: Sara Kehaulani Goo, Hundreds Report Watch-List Trials, Wash. Post, Aug. 21, 2004, at A8.]

Unfortunately, the Department of Homeland Security has been operating the no-fly list for over two years since the attacks and has not seen fit to implement a process by which a passenger may remove his or her name. 89

[Footnote] Two persons who have appeared on the list, Rep. John Lewis (D-GA) and Sen. Edward M. Kennedy (D-MA) attempted in vain to correct the problem; Rep. Lewis was able to avoid being flagged by adding his middle initial to travel bookings while Sen. Kennedy spent three weeks getting TSA officials to remove his name. 90

[Footnote] This lack of commitment to civil liberties by the government begs the intervention of an independent body that is focused on more than just security.

[Footnote 89: The Transportation Security Administration, an agency within the Homeland Security Department, recently announced the testing phase of its new Secure Flight program. 69 Fed. Reg. 57,345 (Sept. 24, 2004). The notice makes only a vague reference that `TSA will establish comprehensive passenger redress procedures and personal data and civil liberties protections for the Secure Flight program.' Id.]

[Footnote 90: Id.]

It also is important that there be judicial review of the no-fly process, such that the public would have a means of challenging any unfavorable rulings by the government. H.R. 10 however, does not permit review and leaves any challenges to be decided by the very organization that categorized the individual as a security risk in the first place. It has taken far too long for such a process to be implemented.

To that end, Rep. Jackson Lee offered an amendment at the Committee markup that would have put the onus on the legislation's newly-created Civil Liberties Protection Officer to create this program. 91

[Footnote] The amendment also would have ensured that no-fly list criteria would be based on reliable evidence that an individual is a known or suspected terrorist instead of on constitutionally-protected activity. Finally, the amendment would have provided a civil remedy to enforce the removal process in court. Unfortunately, the Majority rejected these widespread concerns and defeated the amendment. 92

[Footnote]

[Footnote 91: See H.R. 10 Markup.]

[Footnote 92: The amendment was defeated by a vote of 12-18.]

Another provision in the bill, section 3081, contains shortcomings similar to those in section 2173. It directs the Secretary of State to study the feasibility of creating a database recording the lifetime travel history of U.S. citizens and foreign nationals. This provision goes far beyond the recommendations of the 9/11 Commission and unnecessarily intrudes on the privacy of Americans.

In its final report, the 9/11 Commission wrote, `Targeting travel is at least as powerful as a weapon against terrorists as targeting their money. The United States should combine terrorist travel intelligence, operations, and law enforcement in a strategy to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility. 93

[Footnote] Note that the Commission recommended targeting terrorist travel--not creating a master database of the travel history of innocent Americans. Contrary to this recommendation, the program in H.R. 10 would generate a history of even non-terrorist travel.

[Footnote 93: 9/11 Commission Report at 385.]

We have two primary concerns, and the first is for the privacy of all who use our commercial air space. The Majority has not explained how having a record of every flight that every American has ever taken will reduce the terrorist threat.

Our second concern is that the program would collect information on everyone, regardless of whether they are a threat, or even suspicious, and the vast amount of data reflecting innocent behavior will obscure the truly threatening activity. As many advocacy groups have noted, refining the tracking process--not expanding it--will make preventing terrorist entry into the United States more efficient. 94

[Footnote]

[Footnote 94: Immigration Sign-On Letter at 2.]

D. THE LEGISLATION FAILS TO ADEQUATELY CREATE A BOARD TO PROTECT CIVIL LIBERTIES

We also believe the legislation fails to establish a civil liberties board that could adequately protect our rights. Chief among the recommendations of the 9/11 Commission was the establishment of a government wide watchdog to safeguard civil liberties. The Commission found that currently `there is no office within the government whose job it is to look across the government at the actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered.' 95

[Footnote] The Commission recognized, however, that both `the substantial new powers [vested] in the investigative agencies of the government' 96

[Footnote] by the USA PATRIOT Act, as well as its own recommendations calling `for the government to increase its presence in our lives,' 97

[Footnote] require that `should be a voice within the executive branch' 98

[Footnote] to address civil liberties concerns.

[Footnote 95: 9/11 Commission Report at 395.]

[Footnote 96: Id. at 394.]

[Footnote 97: Id. at 393.]

[Footnote 98: Id. at 395.]

Surprisingly, H.R. 10 as introduced did not create a government wide civil liberties board. Instead, the bill only designated a single civil liberties officer for the intelligence community. To remedy this flagrant omission, Rep. Watt, along with Reps. Nadler and Schiff, offered an amendment that would have established a strong, independent, bipartisan agency within the executive branch. 99

[Footnote] After hours of negotiation, the Chairman introduced a substitute amendment that represents the product of bipartisan compromise in all save one respect. The Chairman's amendment stripped the proposed board of administrative subpoena power. 100

[Footnote]

[Footnote 99: At the request of Chairman Sensenbrenner, Rep. Watt withdrew the amendment to negotiate the scope of the proposed Board's powers and the parameters of its access to relevant information.]

[Footnote 100: The authority to issue a subpoena in the Watt-Nadler-Schiff amendment is identical to that in S. 2774. The provision reads in pertinent part:]

(g) ACCESS TO INFORMATION-

(1) AUTHORIZATION- If determined by the Board to be necessary to carry out its responsibilities under this section, the Board may--

(D) require, by subpoena, persons other than Federal executive departments and agencies to produce any relevant information, documents, reports, answers, records, accounts, papers, and other documentary or testimonial evidence.

The Watt/Nadler/Schiff amendment imposed the additional requirement that subpoenas be issued only with the approval of a majority of the Board. A separate provision required voluntary compliance by Federal agencies with requests for information from the Board.

Although we believe that H.R. 10 as amended is improved by the establishment of a Civil Liberties Board, we are deeply concerned that without the necessary authority to receive and evaluate relevant data concerning the privacy and civil liberties implications of anti-terrorism efforts the Board will be nothing more than a toothless tiger. Even worse, we run the risk of not only creating a Board that is useless and ineffective, but one whose uninformed findings will nevertheless put forward the illusion of civil liberties oversight.

The need to ensure that a Civil Liberties Board possesses adequate authority to perform its duties is reflected in each major bill introduced to implement the recommendations of the 9/11 Commission. For example, the McCain/Lieberman bill, S. 2774, establishes a five-member Privacy and Civil Liberties Oversight board within the Executive Office of the President (EOP). 101

[Footnote] Similarly, S. 2845, the Collins/Lieberman bill also provides for the establishment of a five-member Privacy and Civil Liberties Oversight board within the EOP. Both bills contain a provision authorizing the Board to issue a subpoena when necessary to carry out its duties.

[Footnote 101: The Shays/Maloney companion bill, H.R. 5040 was introduced in the House and referred to 10 committees.]

The duties of a civil liberties board, as contemplated by the 9/11 Commission, makes access to information critical to its success. The civil liberties board is established to safeguard our constitutional freedoms as we develop new tools for gathering and sharing information to prevent and combat terrorism. In introducing S. 2774, Sen. McCain said:

All of us who are concerned with threats to this Nation's security also wish to ensure that our efforts to protect Americans do not infringe on our civil liberties. After all, giving up the way of life we have fought so hard to defend is not an acceptable price for greater security. We must find a way to balance the two, and this is what this bill proposes to do. It creates a Privacy and Civil Liberties Board * * * to analyze * * * the enhanced security measures taken by our government and to ensure that civil liberties are appropriately considered as these policies are developed. 102

[Footnote]

[Footnote 102: Congressional Record, S8866 (Sept. 7, 2004).]

The enhanced security authority vested in our government in the aftermath of 9/11 is unprecedented and necessarily broad. Virtually every postmortem evaluation of the incidents leading up to the terrorists attacks on September 11, 2001 has identified improvement in the government's ability to share information as the most urgent task to combat and prevent acts of terrorism in the future. 103

[Footnote] As a result, key changes have been proposed and/or implemented to ease the flow of information among government entities at every level within the United States, the private sector, and certain foreign governments. 104

[Footnote] In addition, the 9/11 Commission also made recommendations that would expand collaboration with and among government and the private sector.

[Footnote 103: See Markle Foundation, Task Force on National Security in the Information Age, Protecting America's Freedom in the Information Age (2002).]

[Footnote 104: Several of the provisions in the USA PATRIOT Act that are set to expire next year implicate privacy interests and civil liberties. For example, subsection 203(b) grants law enforcement officials authority to share electronic, wire, and oral interception information with intelligence, protective, immigration, national defense and national security officials. Subsection 203(d) allows the sharing of foreign intelligence and counterintelligence information as well. Others ease the burden on government to acquire personal information in the first instance. For example, section 209 relaxes the standard required by some courts prior to 9/11 for seizing voice mail messages. By treating voice mail like e-mail, section 209 permits its seizure by search warrant as opposed to the more demanding wiretap order previously held to apply. Similarly, sections 212 and 217 permit easier government access to electronic communications with the assistance of service providers.]

For example, existing programs designed in whole or in part to target terrorist travel include the Terrorism Information Awareness (TIA), the Computer Assisted Passenger Prescreening System (CAPPS), the Multi-State Anti-Terrorism Information Exchange (MATRIX) Pilot Project, and the United States Visitor and Immigrant Status Indicator Technology program (US-VISIT). A recent Congressional Research Service report notes that `[t]hese programs necessarily require enhanced information sharing by government agencies and the private sector, and are designed to assist the information needs of intelligence and national security. * * * [Nevertheless, w]hile the benefits from the use of advanced technologies for antiterrorism efforts are clear, the risks to individual privacy and the potential for abuse and harm to individual liberty by Government officials and employees deploying such technologies are equally established.' Congressional Research Service, USA Patriot Act Sunset: Provisions That Expire on December 31, 2005 7 (Aug. 2004).

Interestingly, almost simultaneously with the markup of H.R. 10, a U.S. District Court judge found the FBI's use of a `national security letter' unconstitutional because it allows the FBI to demand customer information from Internet service providers without judicial oversight or public review. In the course of analyzing the constitutionality of the FBI's use of a national security letter (`NSL'), the court distinguished between NSL's and administrative subpoenas. `Ordinary administrative subpoenas,' the court observed, `may be issued by most federal agencies, as authorized by the hundreds of applicable statutes in federal law.' 105

[Footnote] But, `[u]nlike the NSL statutes, most administrative subpoena laws either contain no provision requiring secrecy, or allow only limited secrecy in special cases.' 106

[Footnote]

[Footnote 105: Doe v. Ashcroft, 2004 WL 2185571 (S.D.N.Y.) (Sept. 28, 2004), at 8. `For example, the Internal Revenue Service (IRS) may issue subpoenas to investigate possible violations of the tax code, and the Securities Exchange Commission (SEC) may issue subpoenas to investigate possible violations of the securities laws. More obscure examples include the Secretary of Commerce power to issue subpoenas in investigating and enforcing halibut fishing laws.' Id. (citations omitted).]

[Footnote 106: Id. at 9.]

Thus, at the same time a court determined that the government's use of information gathering tools unconstitutionally encroaches on the Bill of Rights, this Committee denies the civil liberties watchdog authority to obtain relevant information from those to whom such substantial power has been vested. This approach is flawed for several reasons. First and most important, one need only look to the experience of the very Commission from which the recommendation to establish a civil liberties board emanates; simply put, without its subpoena powers, which extended to the federal government, the 9/11 Commission could not have accomplished its charge. 107

[Footnote]

[Footnote 107: See 9/11 Commission Says U.S. Agencies Slow Its Inquiry, N.Y. Times, July 9, 2003; 9/11 Commission Could Subpoena Oval Office Files, N.Y. Times, Oct. 26, 2003; Mayor Agrees to Allow Panel to Examine Sept. 11 Records, N.Y. Times, Dec. 4, 2003.]

Second, on August 27, 2004, the President issued Executive Order 13353, establishing the `President's Board on Safeguarding Americans' Civil Liberties.' The E.O. 13353 board clearly is an advisory board designed to assist the President and his Administration in developing and implementing homeland security functions that may have an impact on civil liberties. The board consists exclusively of Administration insiders and, while admirable, cannot perform the vitally important task of the government wide civil liberties board as conceived by the 9/11 Commission. Yet, the Executive Order authorizes the President's board to `obtain information and advice relating to the Policy from representatives of entities or individuals outside the executive branch of the Federal Government.' Moreover, the Executive Order expressly authorizes the Board to `establish one or more committees that include individuals from outside the executive branch of the Federal Government * * * to advise the Board on specific issues * * * [and] carry out its functions separately from the Board.' Ironically, H.R. 10 as amended establishes a civil liberties board that has no designated authority to obtain any information from any person or entity outside the federal government. As such, the President's advisory board has broader authority to obtain information from the private sector than the civil liberties board.

Finally, while Congress must ensure that the executive branch has the tools and resources necessary to protect the American people from further terrorists attacks, we must also ensure that the constitutional rights and liberties of all persons in the United States are not violated. The creation of a strong, oversight board consistent with that proposed by the 9/11 Commission will go a long way in safeguarding those liberties. The new relationships that will be and have been forged between government and the private sector require parallel oversight authority to ensure that those relationships are properly tailored to reconcile the security of our nation and the liberty of our citizens. We believe that there must be a mechanism in place that permits the civil liberties board to exist as an effective check and balance. The administrative subpoena is essential to fulfill this objective.

III. THE LEGISLATION CONTAINS CIVIL LIABILITY PROVISIONS THAT WOULD HARM TERROR VICTIMS AND FAIL TO ENHANCE SECURITY

We also are concerned that the legislation contains numerous civil liability measures that would do little, if anything, to enhance our security; their only effect would be to diminish the rights of terror victims. Section 5103 allows states and localities to enter into litigation management agreements to handle all claims arising out of, relating to, or resulting from an act of terrorism. These agreements provide for a federal cause of action for claims against emergency response providers, and the federal court is to apply the law, including the choice of law principles, of the state in which the terrorist act occurred. This would be an acceptable response to terrorism-related injuries if the drafters had stopped there. Unfortunately, section 5103 overreaches by going outside the scope of the 9/11 Commission report to protect bad actors.

First, section 5103, contrary to other immunity protections given to volunteers, protects emergency responders for intentional bad acts. Although language in this section specifically states that it does not apply to any person or government entity that knowingly commits either an act of terrorism or a criminal act related to or resulting from an act of terrorism, the bill's liability restrictions would apply to persons who commit intentional torts. For example, a nurse who decides that a victim's injuries are so serious that the patient would be better off dead than alive would be immune from liability if she deliberately administered a drug into an intravenous line that killed the victim. Similarly, an emergency responder who commits a hate crime or crime of violence in the immediate aftermath of a terrorist attack would face no accountability for her actions. Finally, if a firefighter or police officer responding to an emergency while intoxicated strikes and kills a pedestrian en route, this bill would insulate him from liability.

The House consistently has rejected giving protections to intentional bad actors 108

[Footnote] and that policy should not be abdicated just because an act of terrorism is involved. Most, if not all, intentional misconduct is criminal. To exempt criminal misconduct caused by terrorism from the scope of the bill's protection, but not other criminal misconduct, such as assault, battery, or vehicular homicide, is unprecedented and simply bad policy.

[Footnote 108: For example, the Volunteer Protection Act, Pub. L. 105-19, protects volunteers from negligence claims, but allows them to be held accountable for intentional misconduct. According to House Report 105-101, volunteers can only receive these protections if `the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.' Moreover, the House recently passed H.R. 1787, the `Good Samaritan Volunteer Firefighter Assistance Act' and H.R. 1084, the `Volunteer Pilot Organization Protection Act.' Neither of these Good Samaritan measures protects donors of firefighting equipment or volunteer pilot organizations who fly for the public benefit from intentional torts.]

For example, just because a terrorist act occurred does not mean that responders should get away with reckless or intentional misconduct that causes injury, such as if a paramedic responding to a terrorism emergency recklessly gives a patient a drug to which the patient is allergic even though the patient is wearing a medical alert bracelet stating the allergy. In the case of an emergency room physician treating the pelvic injuries of a pregnant woman injured during a terrorist attack, the physician could sterilize her without her permission and be immune from punitive damages. The mere fact that an emergency worker is responding to an act of terrorism does not mean that the responder is entitled to commit criminal acts that jeopardize public safety and health. 109

[Footnote]

[Footnote 109: During the markup, Rep. Watt (D-NC) offered an amendment to remove intentional torts from the scope of section 5103 in order to keep this bill consistent with other measure providing liability protections. The Majority rejected the amendment by a vote of 12-19.]

The legislation aggravates this problem by reducing the compensation victims could recover. It first eliminates punitive damages. Although rarely awarded, punitive damages punish the wrongdoer for conscious, flagrant disregard for the health and safety of others and deter other bad actors from committing future bad acts. In the area of emergency medicine, emergency response personnel could be subject to punitive damages for intentionally failing to respond to an emergency, assaulting or sexually abusing a victim, or other criminal acts, including civil rights violations. It is very important to hold wrongdoers who act with the intention to harm accountable for the injuries that they cause. By both including intentional torts in the scope of these litigation management agreements and simultaneously eliminating the possibility of punitive damages, section 5103 delivers a one-two punch that makes it difficult, if not impossible, to deter criminal misconduct and ensure public safety.

The bill further contains a collateral source provision also designed to reduce compensation. 110

[Footnote] Essentially, this language would allow the wrongdoers to benefit from a victim's prudent investment of insurance. Why should a victim's health or life insurer pay for the victim's injuries before the wrongdoer pays even a dime? And, is it fair for the victim's employer to pay unemployment or disability benefits before the wrongdoer is held accountable? Wrongdoers should not profit from a victim's preparedness in planning for the unforeseen, and the wrongdoer should not be the last to be held responsible for a victim's injuries.

[Footnote 110: Section 5103 states that `any recovery by a plaintiff * * * shall be reduced by the amount of collateral source compensation * * * that a plaintiff has received or its entitled to receive as a result of * * * [an] act[] of terrorism.]

Indeed, it is somewhat shocking that this bill would require everyone other than the wrongdoer to pay for a victim's injuries. Under this language, one could even have the preposterous result of having the collateral sources--such as the victim's health insurer and the victim's employer--paying the entire amount of damages owed while the wrongdoer pays nothing. Similarly, this provision would shift the burden from the wrongdoer to the government if the victim receives Medicare, Medicaid, Social Security disability or retirement benefits, or any other type of government support. The Majority rejected Minority efforts to protect the rights of victims to be fully compensated for their injuries. 111

[Footnote]

[Footnote 111: An amendment by Rep. Bobby Scott (D-VA) to strike the punitive damage exception and the collateral source rule was defeated by a vote of 12-19.]

The bill would appear to unconstitutionally extend tort immunity to non-governmental entities, giving private emergency response personnel, including private hospitals and their employees, liability protections. 112

[Footnote] Interpreting the Eleventh Amendment to the Constitution, the Supreme Court has consistently held that the immunity given to federal and state governments cannot be easily transferred to private, non-governmental actors. Extending such protection is subject to the principle of the Court's `state-action doctrine' (as well as the collateral doctrine of `federal action'). 113

[Footnote] Under the state-action doctrine, private entities must be actively supervised by the `state' in order for sovereign immunity to attach; it is not enough for a private actor, such as a private hospital or emergency room employee, to be certified or licensed by the state. In this case, the bill fails to ensure that only adequately supervised private entities receive immunity. Even though the immunity protection provided in H.R. 10 to private actors are thus unconstitutional, the Majority defeated an attempt to strike it. 114

[Footnote]

[Footnote 112: Under section 5104, the definition of `emergency response provider' permits private, non-governmental entities to be parties to a litigation management agreement and thus receive the same liability protections as state or local government actors.]

[Footnote 113: California Retail Liquor Dealers Ass'n v. Midcal Aluminum, 445 U.S. 97, 105 (1980) (quoting City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410 (1978)) (the concept of sovereign immunity under our constitutional system dictates that the immunity policy must be `one that clearly articulated and affirmatively expressed as state policy'; second, the policy must be `actively supervised by the State Itself.'). These cases illustrated the point in the context of Sherman Act antitrust suits. The Court examined whether private actors were acting as `the state' to a point sufficient to make their anti-competitive conduct immune from the Sherman Act. Applying the above test, the Court determined that because the State was not actively involved in closely supervising the activities of the private actor, that actor could not be immune from federal law.]

[Footnote 114: An amendment by Rep. Scott to strike the broad grant of immunity was defeated by a vote of 12-19. This amendment was combined with an amendment to strike the limits on monetary recovery.]

Unfortunately, the Majority rejected every attempt to correct the flaws in the litigation reform provisions of H.R. 10. Taken together, these provisions will have no effect in reducing the Nation's susceptibility to terrorism; they do not secure our ports or make it easier to detain terrorists. These tort reform measures illustrate clearly the overreach of the Majority's so-called `9/11 Commission Recommendations Implementation Act;' the 9/11 Commission did not call for tort reform and neither should we.

CONCLUSION

The attacks of September 11 were tragic events that brought the Nation together. Members of Congress stood shoulder to shoulder on the steps on the Capitol singing `God Bless America.' Democrats in Congress united behind the President's efforts in the war on terror. This Committee worked together to craft a version of the USA PATRIOT Act that passed unanimously.

Unfortunately, where some saw an opportunity for national unity, others saw the opportunity for partisan political gain. Despite widespread public and congressional support for the unanimous and bipartisan recommendations of the 9/11 Commission, the Republican leadership authored legislation that would subject persons to torture, eliminate the judicial review of executive branch actions, permit government intrusion into our daily lives, and divert compensation away from terror victims. Congress owes the American people better than this. For these reasons, we dissent.
John Conyers, Jr.
Howard L. Berman.
Rick Boucher.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.
Linda T. Sanchez.

ADDITIONAL DISSENTING VIEWS

We dissent from H.R. 10 because we also believe the legislation demonstrably fails to provide the needed resources to combat and respond to terrorism.

The 9/11 Commission could not have been any more clear about how homeland security assistance should be allocated: `Federal homeland security assistance should not remain a program for general revenue sharing. It should supplement state and local resources based on the risks or vulnerabilities that merit additional support. Congress should not use this money as a pork barrel.'

After September 11th, the Bush administration set up two major programs to provide funding for local law enforcement agencies working to provide homeland security. The first of these programs, established for fiscal year 2003, is the State Homeland Security Grant program. In direct contradiction of the 9/11 Commission's recommendation, 40% of these funds are distributed to states as `minimum guarantees.' The remainder is distributed not on the basis of threat, as recommended by the Commission, but rather on the basis of population. And just as the Commission complained, the result is that funding is not targeted to places like New York, Washington, Los Angeles, and other areas desperate for assistance.

Because the State Homeland Security Grant Program does not distribute money on the basis of threat, Congress set up a separate stream of homeland security funding for local law enforcement targeted directly for urban areas. Originally called the `high threat, high density' program, and later entitled, the `Urban Area Security Initiative,' UASI provides funding based on a formula kept largely secret by the Department of Homeland Security. But because the Department of Homeland Security has decided to open up the program to more and more localities--initially only seven cities were eligible; at last count 80 cities and transportation agencies were receiving UASI funds--allocations for jurisdictions at the greatest risk have been shortchanged again.

H.R. 3266, the bill written by the Select Committee on Homeland Security, took important strides in implementing the 9/11 Commission's recommendations. It combined the two existing programs, eliminated the minimum guarantee, and ensured that funding would be distributed exclusively on the basis of threat. Incorporated as a part of the Republican 9/11 bill, H.R. 10, the Judiciary Committee veered away from the Commission's recommendations, even as Democrats made substantive improvements to the bill.

Committee Democrats made the following improvements:

Terrorism Cops eligible for funds. Under an amendment crafted by Rep. Anthony Weiner, Rep. Jerrold Nadler, and Rep. Nita Lowey, jurisdictions will be eligible to apply for federal funds to cover the salaries of police officers whose work is devoted exclusively to counterterrorism and intelligence.

Past expenditures eligible for funds. Under an amendment authored by Rep. Anthony Weiner and Rep. Jerrold Nadler, jurisdictions will be eligible to apply for federal funds to recoup past homeland security expenditures not already covered by the federal government.

Threat funding follows the threat. Under an amendment offered previously by Rep. Weiner and Rep. Nadler and included in the bill, the Department of Homeland Security will place the greatest emphasis on threat when disbursing homeland security funds. The current formula weighs population and infrastructure more heavily than threat, helping places like Wyoming, but hurting New York City.

Fake police badges loophole closed. An amendment offered by Rep. Weiner closed a loophole in the law that bans the use and sale of fake police badges. Previous law allowed exceptions for people who used badges for `decorative' or `recreational' purposes. Rep. Weiner's amendment will strip those loopholes from the law.

Additionally, Democrats were able to include language that authorizes the C.O.P.S. program. Like legislation included in this year's Department of Justice Reauthorization Bill, an amendment by Rep. Weiner reauthorizes the C.O.P.S. program through 2007, including language that would allow COPS funding to be used to pay for officers involved in religious, anti terror, or homeland security duties.

Unfortunately, committee Republicans insisted on deviating from the 9/11 Commission's recommendation. Despite Chairman Cox's best efforts to reign in his colleagues, Republicans have boosted the minimum guarantee states receive to .25 for all states, and .45 for all states with an international border. Committee Republicans defeated an amendment by Rep. Nadler to return to the Commission's recommendation by striking the minimum. And then, in an effort simply to guarantee that high risk areas getting the funding they need, Rep. Weiner offered an amendment to add a minimum guarantee of 8.5%--as much as $289 million under the authorization included in the original Cox bill--for jurisdictions like New York that `are consistently referenced in intelligence information as a terrorism target, or have previously been the site of more than one terrorism attack.' That too was defeated by the committee Republicans.
John Conyers, Jr.
Howard L. Berman.
Rick Boucher.
Jerrold Nadler.
Robert C. Scott.
Zoe Lofgren.
Sheila Jackson Lee.
William D. Delahunt.
Robert Wexler.
Anthony D. Weiner.
Linda T. Sanchez.