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[Senate Report 115-210]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 336
115th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      115-210
______________________________________________________________________

                                  

 

                    REPORTING EFFICIENTLY TO PROPER

             OFFICIALS IN RESPONSE TO TERRORISM ACT OF 2017

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1884

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               February 26, 2018.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2018 

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
        Elizabeth E. McWhorter, Senior Professional Staff Member
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
           Julie G. Klein, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk

                                                      Calendar No. 336
115th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      115-210

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

 
REPORTING EFFICIENTLY TO PROPER OFFICIALS IN RESPONSE TO TERRORISM ACT 
                                OF 2017

                                _______
                                

               February 26, 2018.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1884]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1884) to provide 
for joint reports by relevant Federal agencies to Congress 
regarding incidents of terrorism, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................5
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............7

                         I. PURPOSE AND SUMMARY

    The purpose of S. 1884, the Reporting Efficiently to Proper 
Officials in Response to Terrorism Act of 2017, or REPORT Act, 
is to require that an unclassified report on each act of 
terrorism that occurs in the United States be provided to 
Congress not later than one year after a Federal investigation 
of such act concludes. The Federal agency investigating the act 
of terrorism shall coordinate with the Department of Homeland 
Security (DHS), the Department of Justice (DOJ), the Federal 
Bureau of Investigation (FBI), and as appropriate, the National 
Counterterrorism Center (NCTC) on such a report. The report 
must include the facts of the act of terrorism, identification 
of national security gaps that require redress to prevent 
similar future acts of terrorism, and recommendations for new 
measures law enforcement could implement or changes in law that 
could strengthen homeland security and prevent future acts of 
terrorism. A public summary of the report must also accompany 
the more detailed report for Congress. This reporting 
requirement can be waived by the DHS Secretary, the Attorney 
General, the FBI Director, or the NCTC Director if that 
individual determines that the report could jeopardize an 
ongoing investigation or prosecution. In such instances, 
Congress must be notified of the waiver before the reporting 
requirement deadline.

              II. BACKGROUND AND THE NEED FOR LEGISLATION

    After-action reviews of terrorist incidents help 
policymakers develop evidence-based terrorism prevention 
policies and procedures. Reviews of the September 11th attacks, 
for example, found ``excessive secrecy interfered with the 
detection and prevention of the attacks.''\1\ In 2016, first 
responders testified to the Committee during a hearing titled 
Frontline Response to Terrorism in America that ``the 
information gap still remains,'' which leaves important 
partners with an incomplete representation of the threat.\2\ 
Also during the hearing, former Boston Police Commissioner 
Edward Davis suggested that the Federal Government conduct a 
regular audit of ``the transfer of information'' that occurs 
before terrorist attacks.\3\
---------------------------------------------------------------------------
    \1\Overclassification and Pseudo-classification: The Impact on 
Information Sharing: Hearing Before the Subcomm. On Intelligence, 
Information Sharing, and Terrorism Risk Assessment, H. Comm. On 
Homeland Sec., 110th Cong., at 3 (Mar. 22, 2007) (https://www.gpo.gov/
fdsys/pkg/CHRG-110hhrg35279/pdf/CHRG-110hhrg35279.pdf).
    \2\Frontline Response to Terrorism in America: Hearing Before the 
S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) 
(testimony of Mark S. Ghilarducci, Director, California Office of 
Emergency Services and the Governor's Homeland Security Advisor) 
[hereinafter Frontline Hearing].
    \3\Frontline Hearing, supra note 2, (testimony of Edward F. Davis 
III, Former Commissioner, Boston Police Department).
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    Although agencies typically provide public reports after an 
act of terrorism, decisions to conduct such reports are ad hoc 
and the timing of their release is not standardized. Agency 
reporting timelines after a terrorism incident vary: two months 
after Nidal Hasan killed thirteen people at Fort Hood, the 
Department of Defense published an independent review;\4\ it 
took a year after the 2013 Boston Bombing for the Intelligence 
Community Inspectors General (ICIG) to report on the pre-attack 
performance of intelligence and information sharing 
entities;\5\ it took nine months after the 2015 San Bernardino 
attack for the DOJ to report on law enforcement lessons 
learned; and it took 18 months after the Orlando Pulse 
Nightclub shooting in June 2016 for the DOJ to publish its 
review.\6\
---------------------------------------------------------------------------
    \4\Dep't of Def., Indep. Review Related to Fort Hood, Protecting 
the Force: Lessons from Fort Hood (2010), available at https://
www.defense.gov/Portals/1/Documents/pubs/DOD-ProtectingTheForce-
Web_Security_HR_13Jan10.pdf.
    \5\The Inspectors Gen. of the Intelligence Cmty., Cent. 
Intelligence Agency, Dep't of Justice, and Dep't of Homeland Sec., 
Unclassified Summary of Information Handling and Sharing Prior to the 
April 15, 2013 Boston Marathon Bombings (2014), available at https://
oig.justice.gov/reports/2014/s1404.pdf.
    \6\Rick Braziel, Frank Straub, George Watson & Rod Hoops, Bringing 
Calm to Chaos: A critical incident review of the San Bernardi no public 
safety response to the December 2, 2015, terrorist shooting incident at 
the Inland Regional Center (2016), https://www.justice.gov/usao-cdca/
file/891996/download.
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    The Federal Government's investigation into the Orlando 
Pulse Nightclub shooting in June 2016 is illustrative of an 
increasing focus on response rather than prevention. The DOJ 
announced an investigation into the police response one month 
after the attack.\7\ The completed review was published only 
recently, 18 months after the incident occurred.\8\ The report 
focused on the response of the Orlando police department and 
suggested changes in police protocol and improvements in 
counterterrorism training for local law enforcement.\9\ In 
addition, Chairman Johnson requested ``a thorough, independent 
review'' of the FBI's decision to remove the shooter, Omar 
Mateen, from the Terrorist Screening Database.\10\ In response, 
the DOJ Inspector General began an audit of broader FBI 
management, policies, and processes relevant to homegrown 
violent extremist threats, including how the FBI identifies and 
assesses these threats.\11\ The Committee is still awaiting the 
results of that audit.
---------------------------------------------------------------------------
    \7\Press Release, Dep't of Justice, Department of Justice to 
Conduct After-Action Review of Police Response to Orlando Nightclub 
Mass Shooting (July 15, 2016), https://www.justice.gov/opa/pr/
department-justice-conduct-after-action-review-police-response-orlando-
nightclub-mass.
    \8\Press Release, Dep't of Justice Office of Community Oriented 
Policing Services, Department of Justice Releases Incident Review of 
the Orlando Public Safety Response to the Attack on the Pulse Nightclub 
(December 18, 2017), https://cops.usdoj.gov/default.asp?Item=2952.
    \9\Dep't of Justice Office of Community Oriented Policing Services, 
Rescue, Response, and Resilience: A Critical Incident Review of the 
Orlando Public Safety Response to the Attack on the Pulse Nightclub 
(December 18, 2017), https://ric-zai-inc.com/
ric.php?page=detail&id=COPS-W0857; see also Frank Straub, Jennifer 
Zeunik & Ben Gorban, Lessons Learned from the Police Response to the 
San Bernardino and Orlando Terrorist Attacks, CTC Sentinel (Volume 10, 
Issue 5), Combatting Terrorism Center at West Point (May 2017), https:/
/ctc.usma.edu/wp-content/uploads/2017/05/CTC-Sentinel_Vol10Iss517.pdf.
    \10\Press Release, United States Senator Ron Johnson, Chairman 
Johnson Seeks Independent Review of Why Orlando Terrorist Was Taken Off 
Terror Watchlist (July 27, 2016), https://www.hsgac.senate.gov/media/
majority-media/chairman-johnson-seeks-independent-review-of-why-
orlando-terrorist-was-taken-off-terror-watchlist.
    \11\Letter from The Honorable Michael Horowitz, Inspector General, 
Dep't of Justice, to The Honorable Ron Johnson, Chairman, Committee on 
Homeland Sec. & Governmental Affairs, U.S. Senate (February 22, 2017).
---------------------------------------------------------------------------
    Additionally, after-action reviews should identify or make 
recommendations to address national security gaps, including 
actions that can be taken to prevent future attacks. Some past 
reviews have focused on improved response, but have not 
included recommendations to improve the DHS stated mission of 
terrorism prevention. In the case of the ICIG review of the 
Boston Bombing to assess the pre-attack performance of 
intelligence and information sharing entities, the Committee's 
analysis of the ICIG review found no ``recommendations about 
how DHS's grant funding or intelligence and information sharing 
programs could have played a role in preventing the 
bombing.''\12\ A DHS report about the same attack, and released 
in the same month as the ICIG report, focused on the good 
preparation of first responders but similarly made no 
recommendations for how the Department could have prevented the 
attack.\13\
---------------------------------------------------------------------------
    \12\Tom Coburn, A Review of the Department of Homeland Security's 
Missions and Performance 22 (2015), https://www.hsgac.senate.gov/
download/?id=B92B8382-DBCE-403C-A08A-727F89C2BC9B.
    \13\Id. at 20.
---------------------------------------------------------------------------
    S. 1884 requires the primary Government agency 
investigating an act of terrorism to collaborate with the 
Secretary of DHS, the Attorney General, the Director of the 
FBI, and, as appropriate, the Director of NCTC to submit a 
public report to Congress within one year after such 
investigation concludes. The Committee understands that Federal 
investigators must carefully sift through a significant amount 
of information, often information that is sensitive or 
classified and which could affect an ongoing prosecution. This 
lengthy process is necessary and must be balanced against the 
need for both Congress and the public to know the details of 
these incidents in a timely manner. The one-year waiting period 
in S. 1884 acknowledges the importance of protecting the 
details of an ongoing investigation.
    S. 1884 exempts Federal investigators from this reporting 
requirement if disclosure could disrupt an ongoing case. This 
exemption should be used sparingly and every effort should be 
made to produce the required information.
    The reports required by S. 1884 should include facts about 
the act of terrorism and identify any relevant gaps in national 
security. These facts include any domestic or international 
terrorism movement or foreign terrorist organization implicated 
by evidence uncovered in the investigation or by homeland 
security information. Facts about the perpetrator may include 
any biographical or criminal information relevant to the act of 
terrorism and the report should identify any relevant 
government programs that may have ineffectively vetted for or 
reported potential indicator behaviors of terrorist threats. 
The Committee recognizes that inspectors general may be best-
placed to make recommendations to improve the efficiency and 
effectiveness of any such government programs. Agencies may 
defer to inspectors general to submit reports on these issues, 
since it is not the intent of this legislation to burden 
Federal investigators with responsibilities that detract from 
their mission of preventing terrorism.
    This legislation also balances the need for transparency 
with the need for Federal authorities to protect classified 
information. The bill requires an unclassified report that can 
be complemented by a classified annex. The unclassified report 
should be deliverable as a separate document from such annex 
and available in unclassified office space, meaning it should 
not contain markings that would limit dissemination. Even 
transparency efforts to inform the public by requiring an 
unclassified report can be undermined by the inclusion of 
controlled unclassified information, which requires 
safeguarding or dissemination controls.\14\ Dissemination 
controls are designed to protect sensitive information. They 
can also deter sharing with partners who would benefit from 
transparency and inhibit legitimate public deliberation on 
counterterrorism policy.\15\ In the event the unclassified 
report does require dissemination controls, this legislation 
also requires a public summary. Every effort should be made to 
include as much information in the public summary and 
unclassified report with as few dissemination controls as 
possible.
---------------------------------------------------------------------------
    \14\Controlled Unclassified Information, 32 C.F.R. Sec. 2002.1 
(2017).
    \15\Frontline Hearing, supra note 2; see also Examining the Costs 
of Overclassification on Transparency and Security: Hearing Before the 
H. Comm. on Oversight and Gov't Reform, 114th Cong. (2016) (testimony 
of Scott Amey, General Counsel, Project On Government Oversight); The 
Constitution Project's Liberty and Security Committee, supra note 1.
---------------------------------------------------------------------------

                        III. LEGISLATIVE HISTORY

    Senators Claire McCaskill (D-MO) and Mike Lee (R-UT) 
introduced S. 1884 on September 28, 2017. The bill was referred 
to the Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 1884 at a business meeting on 
October 4, 2017. Chairman Ron Johnson offered an amendment that 
clarified that the primary agency investigating the act of 
terrorism is the lead agency responsible for coordinating with 
other agencies to produce the joint unclassified report on that 
act of terrorism. The amendment also clarified that 
responsibility for notifying Congress if an agency believes the 
reporting requirement jeopardizes an investigation or 
prosecution falls on the primary agency in charge of such 
investigation or prosecution. The Chairman's amendment gave 
agencies the option to combine several reports into quarterly 
reports and clarified that a summary for public distribution 
must be provided to inform the public about homeland threats. 
The Committee adopted the amendment and ordered the bill, as 
amended, reported favorably, both by voice vote. Senators 
present for both the vote on the amendment and the vote on the 
bill were: Johnson, Lankford, Daines, McCaskill, Tester, 
Heitkamp, Hassan, and Harris.

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

Section 1. Short title

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

Section 2. Duty to report

    This section imposes a Congressional reporting requirement 
on the primary Government agency investigating an act of 
terrorism that occurs in the United States. It requires that 
the report to Congress is unclassified and coordinated with the 
DHS Secretary, the Attorney General, the FBI Director, and as 
appropriate the NCTC Director.
    Subsection (a) establishes the requirement, a deadline for 
submitting such reports to Congress, and allows reports on 
several individual acts of terrorism to be combined into 
quarterly reports. It specifies the report should be 
unclassified, and can be accompanied by a classified annex.
    Subsection (b) requires the report to include the facts of 
the act of terrorism, security vulnerabilities identified after 
the investigation, and recommendations for changes to policy 
and law enforcement practices that could help prevent future 
acts of terrorism. A public summary of the report shall also be 
included in the report.
    Subsection (c) acknowledges that related investigations and 
prosecutions may be jeopardized by this reporting requirement. 
The Government agency responsible for an investigation or 
prosecution that could be jeopardized can waive the reporting 
requirement by notifying Congress before the deadline 
established in subsection (a).
    Subsection (d) defines ``act of terrorism.''

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 12, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1884, the Reporting 
Efficiently to Proper Officials in Response to Terrorism Act of 
2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 1884--Reporting Efficiently to Proper Officials in Response to 
        Terrorism Act of 2017

    S. 1884 would require the primary government agency 
investigating an act of terrorism that occurs in the United 
States to report to the Congress not later than one year after 
completing the investigation. That agency would have to 
collaborate with the Department of Homeland Security and other 
federal bodies as appropriate. The report would identify 
weaknesses in national security and recommend additional 
measures to improve homeland security and prevent terrorist 
acts.
    In recent years there have been few incidents of domestic 
terrorism, so CBO expects that implementing S. 1884 would 
require a small number of reports each year, on average. Based 
on the cost of similar activities, CBO estimates that providing 
the reports would cost less than $500,000 annually; such 
spending would be subject to the availability of appropriated 
funds.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply. 
CBO estimates that enacting S. 1884 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 1884 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On May 30, 2017, CBO transmitted a cost estimate for H.R. 
625, the Reporting Efficiently to Proper Officials in Response 
to Terrorism Act of 2017, as ordered reported by the House 
Committee on Homeland Security on May 3, 2017. The two bills 
are similar and CBO's estimates of the budgetary effects are 
the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

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

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

                                  [all]
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