U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

99–010

" ! SENATE 107TH CONGRESS

2d Session

REPORT

2002

107–150

Calendar No. 369

TO ESTABLISH THE NATIONAL COMMISSION

ON TERRORIST ATTACKS UPON THE

UNITED STATES, AND FOR OTHER PURPOSES

R E P O R T

OF THE

COMMITTEE ON GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

together with

ADDITIONAL VIEWS

TO ACCOMPANY

S. 1867

TO ESTABLISH THE NATIONAL COMMISSION ON TERRORIST

ATTACKS UPON THE UNITED STATES, AND FOR OTHER PURPOSES

MAY 14 (legislative day, MAY 9), 2002.—Ordered to be printed

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

FRED THOMPSON, Tennessee

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

JIM BUNNING, Kentucky

PETER G. FITZGERALD, Illinois

JOYCE A. RECHTSCHAFFEN, Staff Director and Counsel

KEVIN J. LANDY, Counsel

RICHARD A. HERTLING, Minority Staff Director

JAYSON P. ROEHL, Minority Professional Staff Member

DARLA D. CASSELL, Chief Clerk

Calendar No. 369

107TH CONGRESS REPORT

2d Session " ! SENATE 107–150

TO ESTABLISH THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, AND FOR

OTHER PURPOSES

MAY 14 (legislative day, MAY 9), 2002.—Ordered to be printed

Mr. LIEBERMAN, from the Committee on Governmental Affairs,

submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany S. 1867]

The Committee on Governmental Affairs, to whom was referred

the bill (S. 1867) to establish the National Commission on Terrorist

Attacks Upon the United States, and for other purposes, reports favorably thereon with amendments and recommends that the bill as

amended do pass.

CONTENTS

Page

I. Purpose and Summary .................................................................................. 1

II. Background and Need for Legislation .......................................................... 3

III. Legislative History ......................................................................................... 13

IV. Section-by-Section Analysis .......................................................................... 17

V. Regulatory Impact ......................................................................................... 22

VI. CBO Cost Estimate ........................................................................................ 22

VII. Additional Views ............................................................................................ 25

VIII. Changes to Existing Law .............................................................................. 27

I. PURPOSE AND SUMMARY

On March 21, 2002, the Committee on Governmental Affairs

voted to report S. 1867, ‘‘a bill to establish the National Commission on Terrorist Attacks Upon the United States,’’ as amended. S.

1867 is a bipartisan bill to establish an independent commission to

investigate the facts and circumstances of the terrorist attacks of

2

1 Remarks of Sen. Joseph Lieberman of Connecticut, Congressional Record, December 20,

2001, at S. 13951. 2 Remarks of Senator John McCain of Arizona, Congressional Record, December 20, at S

13953.

September 11, 2001, to report on its findings, and to make recommendations as to how to prevent future terrorist attacks.

As stated by Senator Lieberman the day the bill was introduced:

Like many of my constituents, I too want to know how

September 11 happened, why it happened, and what corrective measures can be taken to prevent it from ever occurring again. The American people deserve answers to

these very legitimate questions about how the terrorists

succeeded in achieving their brutal objectives, and in so

doing, forever changing the way in which we Americans

lead our lives. * * *

The overriding purpose of the inquiry must be a learning

exercise, to understand what happened without preconceptions about its ultimate findings.1

Senator McCain, the lead cosponsor, further explained:

To prevent future tragedies, we need to know how September 11th could have happened, and explore what we

can do to be sure America never again suffers such an attack on her soil. * * *

As we did after Pearl Harbor and the Kennedy assassination, we need a blue-ribbon team of distinguished

Americans from all walks of life to thoroughly investigate

all evidence surrounding the attacks, including how prepared we were and how well we responded to this unprecedented assault.

It will require digging deep into the resources of the full

range of government agencies. It will demand objective

judgment into what went wrong, what we did right, and

what else we need to do to deter and defeat depraved assaults against innocent lives in the future.2

The commission created by the legislation will have a broad mandate to examine and report upon the facts and circumstances relating to the September 11, 2001 terrorist attacks occurring at the

World Trade Center and at the Pentagon. The scope of the investigation is not limited to the operations of the federal government,

and the commission will have discretion regarding how to focus its

efforts. The bill lists several possible areas of inquiry: intelligence

agencies; law enforcement agencies; diplomacy; immigration, nonimmigrant visas, and border control; the flow of assets to terrorist

organizations; and commercial aviation. The commission will submit to the President and Congress an initial report within six

months of its first meeting and a final report, with findings and

recommendations, a year after its first report.

The commission is composed of 14 members—four appointed by

the President and 10 appointed by Congress. The Speaker of the

House and the Senate Majority Leader, in consultation with the

minority leaders, each appoint five members of the commission;

they must pick from a pool of candidates designated by the chair,

in consultation with the ranking member, of five specified commitVerDate 11-MAY-2000 21:25 May 15, 2002 Jkt 099010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR150.XXX pfrm12 PsN: SR150
3

tees each of the House and the Senate (armed services, commerce,

judiciary, intelligence, and foreign affairs). The President selects

the chair of the commission, not more than seven members of the

panel may be from the same political party, and those appointed

may not be an officer or employee of federal, state, or local government. The commission is authorized to hold hearings, to exercise

subpoena power, and to secure information directly from executive

branch entities. Commission members and relevant staff will be

given security clearances to allow access to classified information

bearing upon the commission’s discharge of its duties. Existing law

allows a commission to close its meetings to protect classified, law

enforcement, and other types of information; the bill as amended

further specifies that meetings may also be closed to prevent the

disclosure of other information likely to harm national security. For

the commission to discharge its duties, $3 million would be authorized, to remain available until expended.

II. BACKGROUND AND NEED FOR LEGISLATION

OVERVIEW—THE 9/11 TRAGEDY, THE NEED FOR ANSWERS AND

RECOMMENDATIONS

On September 11, 2001, terrorists attacked the United States

with a coordinated series of aircraft hijackings and suicide crashes

into populated buildings. American Airlines Flight 11 from Boston

to Los Angeles was hijacked and diverted to New York City where

it crashed into the North Tower of the World Trade Center. United

Airlines Flight 175 from Boston to Los Angeles was hijacked and

diverted to New York City where it crashed into the South Tower

of the World Trade Center. American Airlines Flight 93 from Newark to San Francisco was hijacked and crashed 80 miles southeast

of Pittsburgh, Pennsylvania, apparently while heading toward a

target in Washington, D.C. American Airlines Flight 77 from

Washington, D.C. to Los Angeles was hijacked and crashed into the

Pentagon complex in Arlington, Virginia.

The attacks of September caused more than three thousand fatalities. The numbers of dead or missing in New York have recently

been estimated by New York agencies at 2,823, including 147 dead

on two hijacked planes. At the Pentagon, there were 189 fatalities,

including 64 fatalities on American Airlines Flight 77. There were

45 killed on United Airlines Flight 93, which crashed in Pennsylvania. By way of comparison, this total exceeds the number of casualties suffered by the United States on any day of fighting going

back to the Civil War battle of Antietam, in 1862, and is almost

as great as the number of Americans killed during the entire Revolutionary War. The losses sustained from the September 11 attacks

were greater than any other foreign attack on United States soil.

Of course, there is no comparison between battlefield losses and civilian casualties inflicted by a terrorist attack.

In the aftermath of the terrorists attack, Americans immediately

began asking questions: Why was this plan so successful in achieving its evil goals? Were opportunities missed to prevent the destruction? What additional steps should be taken now to prevent

any future attacks? These and similar questions have occupied the

public, the media, American policy makers, and government agencies. Policymakers in Congress and the executive branch, facing a

4

range of policy options, must act quickly to authorize and implement new responses to the terrorist threat.

Inquiries related to the terrorist attacks of September 11 serve

a variety of functions. Law enforcement and intelligence agencies

are trying to bring the attack’s surviving perpetrators and accomplices to justice; simultaneously, they are seeking information to

prevent future attacks that terrorists may be currently planning.

More broadly, policymakers are seeking to develop strategies and

provide resources to prevent future attacks and improve the nation’s responses to attacks; agencies may be conducting internal reviews to bolster those efforts, and Congressional committees have

been holding both closed and open hearings to review particular aspects of the issue. Finally, many in the public and in government

have called for a public accounting of how the attacks occurred— so responsible parties are held accountable if appropriate, and to

provide some sense of closure to families of victims and to a griefstricken nation.

S. 1867 is a bipartisan initiative to help answer the many remaining questions in a constructive, methodical, and non-partisan

way. The commission would complement investigations being undertaken by Congress and the Executive Branch. Its reports could

include non-classified and classified versions, to address the

public’s desire for more information and to convey to policymakers

recommendations for addressing ongoing vulnerabilities.

BACKGROUND—PAST COMMISSIONS AND INQUIRIES

There are a range of precedents for the establishment of a national commission to investigate the September 11 attacks, as envisioned in S. 1867. At various times in recent memory, temporary

national commissions, composed of impartial and knowledgeable individuals, have been created to examine events inflicting alarm,

pain, and sorrow on the American populace. Sometimes the mandates for such panels have been legislated by Congress; at other

times they have been established with a presidential directive.

They include commissions headed by Associate Justice Owen Roberts to investigate the Pearl Harbor attack, by Chief Justice Earl

Warren to examine the assassination of President John F. Kennedy, by Illinois Governor Otto Kerner to probe urban riots, and by

Dr. Milton Eisenhower to investigate the causes and prevention of

violence in American society. Commissions have also been created

to assess some of the nation’s most sensitive and serious national

security questions, examples being the National Commission on

Terrorism, the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass

Destruction, the Commission on National Security/21st Century

(also known as the Hart-Rudman Commission), and the Commission to Assess the Ballistic Missile Threat to the United States

(also known as the Rumsfeld Commission). Investigative panels

have also been convened by cabinet level officials in the aftermath

of terrorist attacks against U.S. military forces or diplomatic facilities. These investigations have reviewed the attacks both to determine whether particular individuals were at fault and to evaluate

our vulnerability to future terrorist attacks.

Typically, temporary national commissions are tasked with gathering information and assessing it to provide Congress, the PresiVerDate 11-MAY-2000 21:25 May 15, 2002 Jkt 099010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR150.XXX pfrm12 PsN: SR150
5

dent, and the American people with findings, conclusions, and recommendations regarding the matters they have been called upon

to scrutinize. Information may be gathered through hearings, field

investigations, compulsory process, interviews, affidavits, and other

forms of collection. Commission staff and special consultants,

trained in legal, scientific, and other analytical capabilities, assist

the commission members with assessing the information that has

been obtained and preparing findings, conclusions, and the preparation of recommendations. As this process continues, commission

members deliberate over the conduct of the panel’s work and seek

to build consensus for its end products. Ultimately, the offerings of

the commission gain public acceptance from a combination of factors: the prestige of the commission members, a strong consensus

of support for the commission’s final report by its members, the

transparency and thoroughness of the commission’s inquiry, and

the logic and research underlying the panel’s findings, conclusions,

and recommendations.

Such commissions are an instrument for conducting a comprehensive, but not an exclusive, examination of events. Commissions usually work cooperatively with others investigating some of

the same matters. This may mean proactively sharing information

or assuring that the commission’s staff do not compromise law enforcement, judicial, or other proceedings paralleling the commission’s inquiry. While a commission conducts a comprehensive examination of events, congressional oversight committees and subcommittees may probe related issues within their respective jurisdictions.

Pearl Harbor investigations

In the aftermath of the December 7, 1941, attack on United

States military installations at Pearl Harbor in the Hawaiian Islands, four major panels were established to conduct investigations

of that event. The first of these entities was created on December

18, 1941, by E.O. 8983, ‘‘to ascertain and report the acts relating

to the attack.’’ The President’s chartering order named Supreme

Court Associate Justice Owen J. Roberts as chair and two retired

Navy admirals and two retired Army generals as members of the

panel. After interviewing 127 witnesses in Washington and Hawaii,

the commission concluded its work on January 23, 1942, when it

presented its report of findings—placing responsibility for the disaster with the senior Army and Navy commanders in Hawaii—to

the President.

The Roberts Commission was followed by three additional inquiries. On June 13, 1944, the President signed S.J. Res. 133, directing

the Secretary of War and the Secretary of the Navy ‘‘to proceed

forthwith with an investigation into the facts surrounding the

[Pearl Harbor] catastrophe.’’ The Army Pearl Harbor Board was in

continuous session from July 24, 1944, to October 20, 1944, conducting a fact-finding investigation; the board heard a total of 151

witnesses. It assessed responsibility over a wider spectrum than

did the Roberts report, and placed its findings in the context of

United States relations with Japan before December 7, 1941. The

Navy Court of Inquiry on the Pearl Harbor attack convened on

July 24, 1944 and concluded its inquiry on October 19, 1944. An

additional investigation ordered by the Navy was conducted during

6

May 2, 1945, to July 12, 1945. The Navy’s inquiry concentrated on

the guilt or innocence of the interested parties and did not analyze

as comprehensively the background of the attack or assess the responsibilities of Washington officials.

With S. Con. Res. 27 of September 11, 1945, Congress mandated

the Joint Committee on the Investigation of the Pearl Harbor Attack to ‘‘make a full and complete investigation of the facts relating

to the events and circumstances leading up to and following the attack made by Japanese armed forces upon Pearl Harbor.’’ Chaired

by Senator Alben W. Barkley (D–KY), the panel was composed of

five Senators and five Representatives, three Democrats and two

Republicans in each case. It held hearings between November 11,

1945, and May 31, 1946, and reviewed the work of the Roberts

Commission and Army and Navy panels investigating the Pearl

Harbor attack. The bipartisan majority report of the committee,

supported by eight members of the panel, blamed the American

performance at Pearl Harbor on the national defense system.

Kennedy assassination investigation

The thirty-fifth President of the United States, John Fitzgerald

Kennedy, was shot on November 22, 1963, while riding in a motorcade through downtown Dallas, TX. President Kennedy was fatally

wounded; Texas Governor John Connally, riding in the same open

automobile with the President, Mrs. Kennedy, and his own wife,

was injured. Lyndon Johnson took the presidential oath that afternoon. One week later, on November 29, the new President issued

E.O. 11130 creating ‘‘a Commission to ascertain, evaluate and report upon the facts relating to the assassination of the late President John F. Kennedy and the subsequent violent death of the man

charged with the assassination.’’ The order explicitly named Supreme Court Chief Justice Earl Warren as the chair of the panel

with Senator Richard B. Russell (D–GA), Senator John Sherman

Cooper (R–KY), Representative Hale Boggs (D–LA), Representative

Gerald R. Ford (R–MI), and two distinguished public servants,

Allen W. Dulles and John J. McCloy, as members. A White House

announcement on the creation of the commission indicated that the

full cooperation of all federal agencies was expected.

To assist the panel in its investigation, Congress, by joint resolution, vested it with subpoena power on December 13, 1963. By this

time, the Warren Commission had already convened, holding its

first meeting on December 5. During the month and into early January, the commission, by its own account, ‘‘received an increasing

volume of reports from Federal and State investigative agencies.’’

Among the most detailed and comprehensive were those of the Federal Bureau of Investigation and the U.S. Secret Service.

Beginning November 22, 1963, the Federal Bureau of Investigation conducted approximately 25,000 interviews and

reinterviews of persons having information of possible relevance to the investigation and by September 11, 1964,

submitted over 2,300 reports totaling approximately

25,400 pages to the Commission. During the same period

the Secret Service conducted approximately 1,550 interviews and submitted 800 reports totaling some 4,600

pages.

7

In addition to reviewing relevant documentation, the Warren

Commission, beginning on February 3, 1964, received the testimony of 552 witnesses. ‘‘Of this number,’’ the panel subsequently

reported, ‘‘94 appeared before members of the Commission; 395

were questioned by members of the Commission’s legal staff; 61

supplied sworn affidavits; and 2 gave statements.’’ Unless an open

hearing was requested by a witness, these proceedings were closed

to the public, with the result that the testimony of one witness was

taken in a public hearing on two occasions. Presenting its report

and 26 volumes of appendices to President Johnson on September

24, 1964, the Warren Commission made an exhaustive investigation and found no evidence of conspiracy in the assassination of

President Kennedy.

Commissions reviewing national security issues

A number of recent commissions have demonstrated an ability to

probe highly sensitive national security issues and issue reports

demonstrating a consensus among their members. Several of the

reports, such as those of the National Commission on Terrorism

and the Hart-Rudman Commission, appear prescient when read in

light of the attacks of September 11. Reports can also have a significant impact on policy makers, as did the Rumsfeld Commission,

which reported that the threat posed by the proliferation of ballistic missile technology was much greater than had been previously believed.

The National Commission on Terrorism was chartered by provisions of the Omnibus Appropriations Act for FY1999 to review

counter-terrorism policies regarding the prevention and punishment of international acts of terrorism directed at the United

States. The ten-member panel was composed of former diplomats,

international relations experts, international trade and finance experts, a retired army general officer, a former Director of Central

Intelligence, and a former member of the House. Reporting in June

2000, the commission recommended immediate reinvigoration of

the collection of intelligence about terrorists’ plans, the use of all

available legal avenues to disrupt and prosecute terrorist activities

and private sources of support, and greater efforts to ensure that

federal, state, and local officials are prepared for attacks that may

result in mass casualties. In brief, the commission conducted a

comprehensive assessment that provided an understanding of the

strengths and weaknesses of the U.S. counter-terrorism system. Although legislative efforts to enact the commission’s major recommendations began immediately, the tragedy of the September 11

attacks has provided new momentum towards implementing reforms.

The Commission on National Security/21st Century was established by the Secretary of Defense in September 1999 to conduct

a comprehensive review of the early 21st century global security

environment; develop a comprehensive overview of American strategic interests and objectives for the security environment the nation likely will encounter in the 21st century; delineate a national

security strategy appropriate to that environment and the nation’s

character; identify a range of alternatives to implement the national security strategy; and develop a detailed plan to implement

the alternatives. Co-chaired by former Senators Gary Hart and

8

Warren Rudman, the 14-member panel accomplished its mission

with the issuance of three sequenced reports, the final one offered

in mid-February 2001. The commission’s reports envisioned an

emerging security environment in which terrorists and rogue nations would acquire weapons of mass destruction and ‘‘mass disruption’’: ‘‘Americans will likely die on American soil,’’ the commission

warned, ‘‘possibly in large numbers.’’ The Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction was mandated by the Intelligence Authorization Act for

FY1997. To carry out its charge to conduct a thorough study of the

organization of the federal government with respect to combating

the proliferation of weapons of mass destruction, the commission

reviewed the efforts of individual agencies, evaluated the mechanisms by which the interagency process develops policy alternatives

and reaches decisions on government-wide policies and programs to

combat proliferation, and scrutinized the management of resource

allocation. Among its findings, the Commission highlighted the

grave danger that weapons of mass destruction would fall into the

hands of terrorist groups, and recommended a number of changes

in the way the government addresses the issue.

As these commissions illustrate, the reports of such panels, including those dealing with sensitive information, are usually expected to be public documents. However, in view of the subject

matter of a commission, its reliance upon classified information to

prepare its report, and the specificity of recommendations regarding a sensitive policy area, strategy, or practice, some protection

may need to be exercised. A report might be issued publicly with

non-public annexes; a report might be issued in public and confidential versions; a report might be issued publicly with

unacknowledged confidential communiques to congressional leaders, the President, or executive branch officials; or a summary of

a secret report might be issued publicly.

Inquiries into terrorist attacks—lessons learned: Beirut to U.S.S.

Cole

In the last two decades, investigative panels were convened in

the aftermath of terrorist attacks against a U.S. Marine barracks

at Beirut International Airport in Lebanon (1983), a U.S. Air Force

billeting facility at Khobar Towers in Saudi Arabia (1996), U.S.

Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania (1998),

and a U.S. Navy destroyer (the U.S.S. Cole) in the port of Aden,

Yemen (2000). All four commissions were convened by cabinet level

officials, three by the Secretary of Defense and one (the KenyaTanzania panel) by the Secretary of State. All four were headed by

retired military officers of four star rank or retired diplomats of

ambassadorial rank. Other members included U.S. officials, both

retired and active, and in some cases private citizens with particular expertise.

Although these inquiries were not Congressionally chartered, in

several respects they represent a precedent for the national commission that will be created under S. 1867. Most importantly, the

convening of investigative panels in these cases is a recognition of

the value of immediately reviewing terrorist attacks. The panels

were seen as providing vital information about possible

9

vulnerabilities to terrorism which could be corrected. The investigative panels were established to operate without governmental interference or pressure, and they were led by distinguished retired officers and officials. Finally, the panels and their sponsoring agencies

released the investigations’ findings and conclusions.

DOD Commission on Beirut International Airport Terrorist

Act (Long Commission)

On October 23, 1983, a truck bomb explosion detonated by a suicide bomber destroyed a U.S. Marine barracks at Beirut International Airport in Lebanon, killing 241 and injuring 78 U.S.

Armed Forces personnel. The Marines were part of a multinational

force originally sent to Beirut to supervise an orderly evacuation of

Palestinian guerrillas after the Israeli invasion of Lebanon in 1982.

U.S. force contingents had the added mission of bolstering a proWestern Lebanese government. The State Department now suspects that the suicide bomber belonged to Hizballah, an extremist

pro-Iranian Shi’ite Muslim group seeking to overthrow the Lebanese government or alter its policies and to expel western military

forces.

On November 7, 1983, Secretary of Defense Caspar Weinberger

established a five member commission under retired Navy Admiral

Robert L. J. Long ‘‘to conduct a thorough and independent inquiry

into all of the facts and circumstances’’ surrounding the attack.

Specifically, the commission was directed to examine rules of engagement and security measures in force at the time of the attack;

to assess the adequacy of security measures adopted after the attack; and to report findings and make recommendations. The commission’s report, which it submitted to the Secretary of Defense on

December 20, 1983, is unclassified, and it was released by the

White House on December 29, 1983. Many of the interviews conducted by the commission contained classified information which

presumably exists in back-up files. Also, because some of the information it obtained was time sensitive, the commission forwarded

two interim memoranda, respectively, to the Secretary of Defense

and the Chairman of the Joint Chiefs of Staff. These memoranda

dealt mainly with urgent security measures.

In drawing its conclusions, the commission critiqued a wide

range of topics, including inconsistencies in the military mission,

lack of a single set of rules of engagement, problems in the operational chain of command, lack of timely intelligence, inadequate

security measures, and some deficiencies in medical planning. At

the same time, it praised the quick responses of many individuals,

especially in emergency evacuation and medical care. Of note, the

commission concluded that the U.S. force in Lebanon was not

trained, organized, staffed, or supported to deal with the current

terrorist threat and added that ‘‘much needs to be done to prepare

U.S. military forces to defend against and counter terrorism.’’

Downing Assessment Task Force (Khobar Towers Task Force)

On June 25, 1996, a truck bomb estimated to contain between

3,000 and 8,000 pounds of explosives destroyed the Khobar Towers

apartment complex near Dhahran, Saudi Arabia, killing 19 U.S.

Air Force personnel and injuring over 500. At the time, Khobar

Towers housed U.S. Air Force personnel supporting allied overVerDate 11-MAY-2000 21:25 May 15, 2002 Jkt 099010 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\SR150.XXX pfrm12 PsN: SR150
10

flights over southern Iraq (Operation Southern Watch). On June

28, 1996, Secretary of Defense William J. Perry appointed retired

Army General Wayne A. Downing ‘‘to conduct an assessment of the

facts and circumstances surrounding the Khobar Towers bombing.’’ The panel director, General Downing, assembled a task force composed of active and retired military personnel, Defense Department

civilians, and representatives from other U.S. Government agencies

including the Departments of State and Energy and the FBI. Members of the panel were qualified in various specialties and disciplines including intelligence, counterintelligence, terrorism, force

protection, physical and operational security, explosives, programming and budgeting, command relationships, training and medical

matters, and Middle East studies.

The Downing Task Force conducted its investigation in two

phases: (1) research and analysis of reports prepared after previous

terrorist acts in the region (including the Long Commission) together with other pertinent documentation; and (2) personal interviews, supplemented by on-site assessments. General Downing submitted the report of the Task Force to the Secretary of Defense on

August 30, 1996. The bulk of the report was released; however, six

of its findings were deleted in whole or in part from the published

version because of their security classification. The report of the

Task Force contains 26 findings and 79 related recommendations.

The report grouped these into general conclusions, including a comprehensive approach to force protection is required, division of responsibility between the Departments of State and Defense does

not provide U.S. forces adequate protection, and the intelligence

community provided warning of the potential for a terrorist attack.

Accountability Review Boards on the Embassy Bombings

(Crowe Commission)

Near simultaneous vehicular bombings of the U.S. Embassies in

Nairobi, Kenya and Dar es Salaam, Tanzania on August 7, 1998,

killed 213 persons including 12 U.S. Government employees and

family members and injured more than 5,000 others. On October

5, 1998, Secretary of State Madeleine Albright convened two Accountability Review Boards to review the circumstances of the August 7 bombings in Kenya and Tanzania, respectively. The boards

were charged with examining whether the incidents were security

related; whether security systems and procedures were adequate

and implemented properly; the impact of intelligence and information availability; whether any U.S. Government civilian employees

or military personnel breached their duties in connection with the

bombings; and any other circumstances that might affect security

management of U.S. missions abroad. Because of the similarity of

their missions, the two boards were combined under a single chairman and submitted a combined report.

Members of the Accountability Review Boards were selected by

Secretary of State Madeleine Albright and Director of Central Intelligence George Tenet. Retired Admiral William J. Crowe, Jr. was

named chairman for both Boards. Each of the two component

Boards, the Nairobi Board and the Dar es Salaam Board, consisted

of five members, including four ambassadors (three of them retired)

and other representatives of the public and private sectors. The

Boards also drew on the expertise of outside specialists, particuVerDate 11-MAY-2000 21:25 May 15, 2002 Jkt 099010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR150.XXX pfrm12 PsN: SR150
11

larly in the fields of terrorism and national security. The Boards

completed an extensive review of available information in Washington, and conducted further reviews in Nairobi and Dar es Salaam, respectively. Board members interviewed over 110 persons

from the Department of State, the military services, and the two

U.S. embassies targeted by the attacks. In addition, Board members were briefed by representatives of the Department of Justice,

FBI, CIA, and the National Security Agency.

The Accountability Review Boards produced a single report consisting of a combined executive overview and two individual reports

dealing with the attacks in Nairobi and Dar es Salaam, respectively. The report, which was submitted to Secretary of State

Albright on January 8, 1999, was released as an unclassified document following some deletions from the classified version on

grounds of security. In its executive overview, the report of the Accountability Review Boards contains 21 recommendations to improve security systems and procedures at U.S. missions abroad and

three more recommendations to enhance the flow of needed intelligence. The Boards did not find that any U.S. officials breached

their duties in connection with the bombings, but did determine

that there was a collective failure by several Administrations and

Congresses over the past decade to reduce the vulnerability of U.S.

diplomatic missions.

DOD U.S.S. Cole Commission

On October 12, 2000, a small boat laden with explosives rammed

the U.S. Navy guided missile destroyer Cole, which was refueling

in the port of Aden, Yemen, killing 17 sailors and injuring 39. On

October 19, 2000, Secretary of Defense William S. Cohen appointed

two senior U.S. military officers (one retired and one about to retire) to lead a review of the lessons learned from the attack. Their

panel, generally known as the Cole Commission, was directed to review applicable Defense Department policies and procedures and

address force protection matters, rules of engagement, logistical

support intelligence and counter-intelligence efforts, and any other

pertinent topics. The Cole Commission’s review was to be conducted separately but in coordination with an FBI investigation designed to identify the perpetrators of the attack and with internal

Navy reviews of the preparations by the Cole for the Aden refueling stop.

The co-chairmen submitted their report to the Secretary of Defense on January 9, 2001. An unclassified version of the report,

consisting of the executive summary, was released at that time;

other parts of the report were classified. The report found significant shortcomings in security throughout the region and recommended improvements in training and intelligence designed to

deter future terrorist attacks. With regard to training, for example,

the Commission concluded that U.S. military forces need to develop

rigorous anti-terrorism and force protection training programs and

integrate them into unit-level training plans and pre-deployment

exercises. With regard to intelligence, the Commission concluded

that the Defense Department does not allocate sufficient resources,

analysis, and collection efforts to combating terrorism.

12

3 Remarks of Rep. Bob Ney of New Jersey, Congressional Record, March 7, 2002, at H 768.

CONGRESSIONAL HEARINGS AND INVESTIGATIONS RELATED TO THE

SEPTEMBER 11 ATTACKS

Since the September 11 terrorist attacks, a number of Congressional committees have held hearings examining the terrorist

threat from different perspectives. These have included hearings

into border security and visa reform, aviation security, protection

of critical infrastructure, bioterrorism, tracing terrorist funds, and

the international implications of the war on terrorism. There has

also been one Congressional inquiry launched specifically to examine the activities of the intelligence agencies with respect to the

September 11 terrorist attacks. In each case, the committees are

probing areas within their jurisdictions and areas of expertise. Congress has not established a special inquiry or panel to conduct a

comprehensive examination of the September 11 terrorist attacks.

On February 14, 2002, the chairs and ranking members of the

Senate Select Committee on Intelligence and the House Permanent

Select Committee on Intelligence announced that the committees

would conduct a joint inquiry into the intelligence community’s activities before, during, and since the September 11, 2001 terrorist

attacks. In a statement issued that day, the Senate Chairman, Senator Bob Graham, indicated that the purpose of the inquiry would

be ‘‘to identify any systemic shortcomings in our intelligence community and fix these problems as soon as possible.’’ House Chairman Porter Goss concurred in Senator Graham’s comments and

added that the two committees would seek ‘‘to determine whether

previous concerns regarding the Intelligence Community’s capabilities are viable.’’ And Senate Vice Chairman Richard Shelby stated

that ‘‘[t]he purpose of this joint investigation is to explain why the

Intelligence Community failed to warn us of the attacks on September 11.’’

On March 7, 2002, the House of Representatives passed a resolution providing additional funding for the Permanent Select Committee on Intelligence to conduct its inquiry. Several speakers

again emphasized that the joint inquiry was to focus on the activities of the intelligence community. Representative Bob Ney, Chairman of the Committee on House Administration, in bringing the

resolution before the House, explained that the chief purposes of

the joint inquiry were ‘‘ascertaining why the intelligence community did not learn of the conspiracy to launch the September 11 attacks in advance and to identify what, if anything, might be done

to better position the intelligence community to warn of and prevent future terrorist attacks and other threats in the 21st Century.’’ 3 Representative Nancy Pelosi, Ranking Democrat of the

House Permanent Select Committee on Intelligence, defined the

limits of the inquiry:

The performance of the intelligence agencies is an essential part of the September 11 story, and it is the responsibility of the House and Senate intelligence committees to

thoroughly assess that performance * * *

It should be made clear that, although we intend for this

inquiry to be comprehensive as far as the intelligence

agencies are concerned, it will not be exhaustive of all the

13

4 Remarks of Rep. Nancy Pelosi of California, Congressional Record, March 7, 2002, at H 769.

issues surrounding the September 11 attacks. Other committees may want to examine matters within their jurisdiction and, at some point, it may be appropriate to consider the creation of an entity outside of Congress to take

an across the board look at all the components of the September 11 disaster.4

III. LEGISLATIVE HISTORY

S. 1867 was introduced on December 20, 2001, by Senators

Lieberman and McCain, and referred to the Committee on Governmental Affairs. The bill was subsequently co-sponsored by Senators

Dorgan, Cleland and Miller. Senator Torricelli, who had introduced

similar legislation, co-sponsored S. 1867 after an amendment at

mark-up reconciled the two approaches. Senator Grassley, an original co-sponsor of Senator Torricelli’s legislation, also co-sponsored

S. 1867 after the mark-up.

COMMITTEE HEARING

On February 7, 2002, the committee held a hearing on S. 1867.

The Committee heard testimony from the following four witnesses:

Norman Augustine, Chairman of the Executive Committee,

and former Chief Executive Officer, Lockheed Martin Corporation; former Commissioner, United States Commission on National Security;

Professor Richard K. Betts, Director, Institute of War and

Peace Studies, Columbia University; former Commissioner, National Commission on Terrorism;

The Honorable Dave McCurdy, President, Electronic Industries Alliance; former Commissioner, Commission to Assess the

Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction; and former U.S.

Representative and Chair of the House Intelligence Committee;

and

Maurice Sonnenberg, Senior International Adviser, Bear,

Stearns & Co., Inc.; former Vice Chair, National Commission

on Terrorism.

In addition the Committee received a statement submitted by Dr.

James Schlesinger, former Commissioner, United States Commission on National Security. Dr. Schlesinger has served as Director

of the Central Intelligence Agency, Secretary of Defense, and Secretary of Energy under three Presidential Administrations.

All of the witnesses supported the establishment of a national

commission along the lines described in S. 1867 to investigate the

terrorist attacks of September 11. The witnesses discussed important unanswered questions related to the attacks, questions that

require further investigation and analysis so that the nation would

be better able to defend itself against terrorism in the future. The

witnesses also discussed why an independent national commission

would serve a unique function in the analysis of the terrorist attacks. Finally, witnesses recommended a few changes to the bill’s

text.

14

Unanswered questions

The witnesses discussed a number of unanswered questions that

surround the circumstances of the September 11 attacks. These

questions related to the underlying facts and to the need to use

that information to enhance our defenses against future terrorism.

For example, Congressman McCurdy listed a series of important

issues that need to be addressed, including the responsibility and

accountability at each level of the chain of command, organizational impediments to effective gathering and dissemination of intelligence, coordination between agencies, and standards for security in the airline industry. Congressman McCurdy noted that

nothing must interfere with the war against terrorism, but added:

Nevertheless, the requirements of this ongoing war must

be balanced with the right of Americans to know why our

intelligence, defense and law enforcement agencies were

unable to prevent the attacks. Without question, now is

not the time to point fingers or look for scapegoats. But we

must understand the causes, identify the weaknesses, and

correct the lapses that allowed this catastrophe to occur.

The American people deserve a forthright and complete accounting of the circumstances of that day. Above all, we

must do all we can to ensure that such an attack never

happens again.

Professor Betts discussed the unanswered questions surrounding

the attacks, as well as the role an independent commission would

play in addressing these issues:

It is painfully obvious that a lot went wrong before September 11 in how the U.S. government coped with the potential for catastrophic terrorist attacks. The intelligence

system did not get sufficient warning of the plot; the border control and immigration systems did not keep out or

keep track of dangerous visitors; security arrangements for

air travel failed to intercept the hijackers or keep them

from gaining control of the planes; and more. Because of

the classification of information and, perhaps, some plain

confusion, we do not yet have a full and integrated picture

of exactly what went wrong. There will be many rumors

and half-truths leaking out to explain why the warning

process failed, how organizational structures were unprepared, and so forth. There is great need for an official postmortem that brings the full story out in a thorough, careful, balanced, and non-partisan manner.

The main benefit of a national commission to examine

the tragedy of the September 11 attacks would be political

credibility. A commission of the sort described in S. 1867

would be ideally constituted to provide a detailed and

sober investigation that the public could have confidence is

as objective as humanly possible. In the next few years

there will inevitably be many exercises attempting to explain the events and to lay blame for failure to prevent

them. It is important to have one serious effort that has

high credibility in terms of two important criteria: access

to all relevant information, and disinterest in scoring politVerDate 11-MAY-2000 21:25 May 15, 2002 Jkt 099010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\SR150.XXX pfrm12 PsN: SR150
15

ical points. A commission with adequate authority and

with members of the sort envisioned in Section 3(c) of the

bill would be well positioned to accomplish this purpose.

Similarly, Dr. James Schlesinger wrote in his submitted statement that ‘‘[t]he country needs an authoritative review regarding

how our own attitudes, habits, laws, and organizations may have

contributed to the stunning effectiveness of the terrorist attacks.’’

Dr. Schlesinger’s statement focused on intelligence, airport security, and immigration, among other areas, that need to be addressed: ‘‘The purpose of a National Commission would be systematically and comprehensively to address such questions—and to

give a complete public accounting of the events leading up to 9–11.’’

The role of a commission

Congressman McCurdy testified that an independent commission

would have to complement, rather than compete with, the investigations of the numerous Congressional committees that might

have relevant oversight jurisdiction. And he also testified that commissions play a role different than that of an investigating committee:

[A] commission has the advantage of being independent,

singularly focused and able to work outside the glare of

the media. * * *

In my experience, commissions work because they are

not constrained by arbitrary jurisdiction or turf-wars and

thus have the ability to step back and take a more holistic

view. In this instance, a commission can objectively collect

facts, evaluate the evidence and review the mission and effectiveness of the federal, state, local and private organizations charged with our safety. Commissions are valuable

because they are generally non-partisan and, when effectively chaired, seek consensus based recommendations and

solutions. Operating an effective commission on the September 11 attacks will not be an easy task, but there already has been much valuable forensic work performed by

the intelligence community, law enforcement and the

media to build upon.

Professor Betts agreed that the commission should complement

other inquiries:

Neither presidential nor congressional commissions ever

completely settle the questions with which they are

tasked. That is because questions important enough to

provoke creation of a prestigious commission are necessarily so important that all centers of political power

have to get their own oars in on them. That is as it should

be in a democracy. Moreover, other efforts, particularly

congressional investigations, can do things that a commission cannot do effectively. On a matter as crucial as September 11, some redundancy in investigation is not only

unavoidable, it is useful.

And Mr. Augustine testified that the commission would be most

valuable ‘‘if those involved in the Commission’s work are able to

16

take a forward-looking perspective coupled with a broad view of

lessons to be learned which can impact our future security.’’

Recommended changes

Several of the hearing witnesses also suggested modifications to

S. 1867. For example, several witnesses discussed the importance

of ensuring that commission meetings could be closed to the public

when necessary. Senator Lieberman noted that existing law allowed commission meetings to be closed to the public whenever the

meetings would disclose classified material, or information compiled for a criminal investigation. The Federal Advisory Committee

Act covered the commissions on which the witnesses had served,

and, as Congressman McCurdy and Mr. Sonnenberg noted, had not

precluded their commissions from closing all of their meetings to

the public. Nevertheless, Mr. Augustine suggested that the legislation provide extra flexibility in case the commission wished to discuss unclassified issues that would nevertheless be sensitive; for

example, the commission might wish to ‘‘hypothesize future threats

and discuss them, to discuss vulnerabilities that we have.’’ Other

witnesses agreed that holding public meetings might in some cases

inhibit frank discussion. Mr. Sonnenberg and Professor Betts suggested that public hearings might be more appropriate in the latter

stages of the commission’s investigation.

Professor Betts also questioned whether the original legislation,

as drafted, included the most appropriate appointment process for

achieving a balanced commission membership. As introduced, S.

1867 provided that the 10 commission members selected by Congress would be named by ten designated House and Senate committee chairmen. Professor Betts noted the importance, as required

by the bill, of ‘‘balanced representation not only of parties, but of

experience and professional backgrounds, and that all members be

genuinely accomplished leaders in their fields.’’ Professor Betts testified that such a balance would be more likely if there were greater concentration of the appointing power; he suggested amending

the bill to give the final appointment authority to the House and

Senate leadership.

COMMITTEE MARK-UP

The Committee met on March 21, 2002, to consider S. 1867. An

amendment offered by Senators Lieberman, Torricelli and McCain

was adopted by voice vote. In part, the changes were made to reconcile differences between S. 1867 and similar legislation introduced by Senator Torricelli, S. 1837. After the mark-up, Senator

Torricelli co-sponsored S. 1867. Other changes resulted from suggestions made by witnesses who testified before the Committee,

and by others. The amendment incorporated four substantive

changes to the bill’s text.

Composition of the Commission.—As introduced, S. 1867 provided that the 10 commission members selected by Congress would

be named by ten designated House and Senate committee chairmen, in consultation with the ranking members of the committees.

S. 1837 provided that members of the commission would be selected by the Congressional leadership. Under the amendment, ten

designated Congressional committee chairmen, in consultation with

the ranking members, will each nominate three candidates for the

17

commission. The leadership from the House and Senate, in consultation with the minority leaders, will each appoint five commission members from the nominated candidates. This change allows

the Congressional leadership to ensure that the commission will

have the necessary balance, while still preserving a role for committees with relevant jurisdiction.

Mandate of the Commission.—The commission will have discretion as to how to focus its investigation, but the amendment specifically listed several possible areas of inquiry: intelligence agencies; law enforcement agencies; diplomacy; immigration, non-immigrant visas, and border control; the flow of assets to terrorist organizations; and commercial aviation. The amendment also makes

clear that the commission’s investigation need not be limited to the

actions and policies of the federal government; it can also review

facts and circumstances related to the private sector and state and

local governments.

Enforcement of Subpoenas.—The amendment provided an additional means of enforcing subpoenas. As introduced, S. 1867 authorized the commission to pursue a criminal contempt of Congress

citation under 2 U.S.C. 192 and 194 (2000). Because that mechanism may not be adequate or appropriate in most circumstances,

the amendment provided an alternative course of action: bringing

a civil action in a United States District Court.

Closed Meetings.—The amendment included a provision allowing

commission meetings to be closed to prevent the disclosure of matters that could endanger national security. The new language was

added in response to concerns that matters potentially useful to

terrorists, but not covered by the exceptions to the Federal Advisory Committee Act, would not be shielded from disclosure.

On the same date the Committee ordered the bill reported, as

amended, by voice vote, with no members present dissenting. Senators present were Levin, Akaka, Cleland, Thompson, Stevens,

Voinovich, Cochran, Bennett and Lieberman.

IV. SECTION-BY-SECTION ANALYSIS

SECTION 1.—ESTABLISHMENT OF COMMISSION

Section 1 establishes the National Commission on Terrorist Attacks Upon the United States as an independent commission.

SECTION 2.—PURPOSES

Section 2 states the purposes of the commission. They are to examine and report upon the facts and causes relating to the terrorist

attacks of September 11, 2001; ascertain, evaluate, and report on

the evidence developed by all relevant governmental agencies regarding the facts and circumstances surrounding the attacks; make

a full and complete accounting of the circumstances surrounding

the attacks, and the extent of the United States’ preparedness for,

and response to, the attacks; and report to the President and Congress on its findings, conclusions, and recommendations for corrective measures that can be taken to prevent acts of terrorism.

SECTION 3.—COMPOSITION OF THE COMMISSION

Section 3 specifies that the commission shall have 14 members.

Four of the members shall be appointed by the President, one of

18

whom shall be designated the chair. The remaining ten appointments are allocated to the Congressional leadership. No more than

seven members of the commission may be affiliated with any one

political party. Commission members may not be an officer or employee of the federal government or any state or local government.

Vacancies in the commission are filled in the same manner as the

original appointment.

The Speaker of the House and the Senate Majority leader will

make their selections from a pool of candidates created by committee chairmen. In the Senate, the chairs of five committees

(Armed Services; Commerce, Science, and Transportation; Judiciary; Intelligence; and Foreign Relations), in consultation with the

respective ranking members, shall each nominate three candidates

for the commission. The Senate majority leader, in consultation

with the minority leader, will then appoint five members for the

commission from among the fifteen candidates. Similarly, the

Speaker of the House, in consultation with the minority leader, will

appoint five members from among fifteen candidates nominated by

five designated committee chairs and ranking members. The Committee intends that the consultation between committee chairs and

ranking members, between the Senate majority leader and minority leader, and between the Speaker of the House and House minority leader, shall be meaningful.

The ten House and Senate committees involved in the nomination process were included because aspects of their jurisdictions are

relevant to questions the commission may be investigating. The

committee leaders are therefore in a good position to suggest candidates who could make valuable contributions. Other committees

also have relevant jurisdiction, and the list of committees in the

bill is not intended to suggest that the commission limit its inquiry

to subject matters covered by the named committees.

As stated in Section 3(c), individuals appointed to the commission should be prominent United States citizens, with national recognition and significant depth of experience in such professions as

governmental service, law enforcement, the armed services, legal

practice, public administration, intelligence gathering, commerce,

including aviation matters, and foreign affairs. It is the intent of

the Committee that the findings of the commission will receive

greater credibility and broader acceptance as a result of the prestige, expertise, and independence of its members.

Section 3(c) also provides that the commission may begin to operate if, 60 days after enactment of the legislation, 8 or more members of the commission have been appointed. The appointed members may hire necessary staff and, if necessary, select a temporary

chairperson.

As provided in Section 3(d), after its initial meeting the commission shall meet upon the call of the chairperson or a majority of

the commission’s members. Eight members shall constitute a

quorum, and a vacancy shall not affect the commission’s powers.

SECTION 4.—FUNCTIONS OF THE COMMISSION

Section 4 sets forth the functions of the commission. The commission will investigate facts and circumstances relating to the terrorist attacks. It will evaluate and analyze what it has learned. FiVerDate 11-MAY-2000 21:25 May 15, 2002 Jkt 099010 PO 00000 Frm 00020 Fmt 6659 Sfmt 6602 E:\HR\OC\SR150.XXX pfrm12 PsN: SR150
19

nally, the commission will issue two reports, containing its findings, conclusions, and recommendations.

The first subsection describes the parameters of the commission’s

investigation. The committee intends that the commission has the

discretion to focus its investigation within the parameters listed in

section 4, as it may not be possible or desirable to fully explore all

avenues. Most broadly, the commission is directed in section

4(1)(A) to investigate relevant facts and circumstances relating to

the terrorist attacks of September 11, 2001, including the bearing

and significance of any relevant legislation, Executive order, regulation, plan, practice, or procedure on the occurrence of these

events. The commission is given the discretion to determine which

facts are relevant and should be investigated, and which policies

and actions of the federal government are relevant. The committee

generally intends that the commission’s investigation of the terrorist attacks will shed light on how and why the terrorist attacks

succeeded, and what steps were taken to mitigate the damage once

the attacks occurred. This may include a broad examination of the

nation’s efforts to detect, prevent and respond to terrorist attacks.

Section 4(1)(B) lists specific areas the commission may investigate. These include intelligence agencies; law enforcement agencies; diplomacy; immigration, nonimmigrant visas, and border control; the flow of assets to terrorist organizations; commercial aviation; and other areas of the public and private sectors deemed relevant by the commission. This list of issues represents possible

areas of inquiry. It also makes clear that the commission’s investigation need not be limited to the actions and policies of the federal government; it can also review facts and circumstances related

to the private sector and state and local governments. For example,

the commission may wish to investigate the actions, policies, and

procedures of private sector entities with respect to ensuring the

safety of commercial aviation.

Section 4(2) directs the commission to identify, review, and

evaluate the lessons learned from the terrorist attacks of September 11. Specifically, the commission should review the structure, coordination, management policies, and procedures of the federal government, and, if appropriate, State and local governments

and nongovernmental entities, relative to detecting, preventing,

and responding to terrorism. Here, the commission has the opportunity to assess the adequacy of existing arrangements to counter

terrorist threats.

Section 4(3) directs the commission to submit to the President

and Congress reports containing such findings, conclusions, and

recommendations as the commission shall determine, including

proposing organization, coordination, planning, and management

arrangements, procedures, rules, and regulations.

SECTION 5.—POWERS OF THE COMMISSION

Section 5(a) provides the commission with the power to hold

hearings and meetings, and take testimony under oath, as it deems

advisable. The commission is authorized to require, by subpoena if

necessary, the attendance and testimony of witnesses at hearings

and the production of books, records correspondence, memoranda,

papers, and documents as it deems advisable. Subpoenas may be

issued by the chairman of the commission, the chairperson of any

20

subcommittee created by the commission, or any member designated by a majority of the commission.

Subpoenas may be enforced, at the discretion of the commission,

by means of either of two alternative, but not mutually exclusive,

courses of action. The first allows the commission to bring a civil

action applying to a United States district court for an order requiring a person who has refused to obey a duly issued subpoena

to appear at any designated place to testify or to produce documentary or other evidence. A failure to obey the court’s order may be

punished as a contempt of that court and result in a fine or incarceration until the order is obeyed, or both. Alternatively, the commission is authorized to pursue a criminal contempt of Congress citation under 2 U.S.C. 192 and 194 (2000). Under those provisions,

a person who has been subpoenaed to testify or produce documents

before the House or Senate and who fails to do so, or who appears

but refuses to respond to questions, is guilty of a misdemeanor

punishable by a fine of up to $100,000 and imprisonment for up to

one year. A contempt citation must be approved by the full House

or Senate after a report to it detailing the contumacy (or by the

presiding officer if Congress is not in session). After a contempt has

been certified by the President of the Senate or the Speaker of the

House, it is the ‘‘duty’’ of the United States attorney ‘‘to bring the

matter before the grand jury for its action.’’

In exercising its discretion with regard to which course of action

to take to enforce a subpoena, the commission may decide that it

is important to secure testimony or the production of documents expeditiously and that a civil enforcement action is quicker and more

effective in achieving these purposes. In light of the short reporting

deadlines imposed by the bill, it is anticipated that most enforcement actions will be undertaken by the civil process. In other

cases, the commission may decide it is important to punish the individual or entity who has refused to comply with a commission demand and thereby deter violations by others. Moreover, at the end

of the commission’s investigation, a criminal contempt citation may

be referred to the Department of Justice by the commission

through the statutory criminal contempt process if the commission

deems it appropriate, even if civil contempt has previously been

sought. Such a prosecution for criminal contempt would present no

double jeopardy problem. In re Chapman, 156 U.S. 211 (1895);

Yates v. United States, 355 U.S. 66 (1957); United States v.

Rollerson, 449 F. 2d 1000 (D.C. Cir. 1974).

Section 5(b) describes the circumstances under which the commission may hold closed meetings. Because the commission will be

governed by the Federal Advisory Committee Act (5 U.S.C. App.),

commission meetings would ordinarily be open to the public. Under

subsection 10(d) of the Federal Advisory Committee Act, meetings

could be closed when the President determines that the meetings

would be likely to disclose information falling into one of ten categories listed in subsection (c) of section 552b of title 5. These categories of information, described in the Freedom of Information

Act, include classified materials, investigatory records compiled for

law enforcement purposes, and personal information the disclosure

of which would constitute an unwarranted invasion of personal privacy.

21

Section 5(b)(2) provides an additional authority by which the

commission may close meetings or portions of meetings. It provides

that the Federal Advisory Committee Act will not apply to any portion of a commission meeting if the President determines that such

portion or portions of that meeting is likely to disclose matters that

could endanger national security. In such an instance, the President and the commission shall be required to follow the procedures

required under section 10(d) of the Federal Advisory Committee

Act. Under Section 10(d) of that Act, the President’s determination

would be made in writing, and contain the reasons for the determination. If such a determination was made, the commission would

issue a report at least annually setting forth a summary of its activities and such related matters as would be informative to the

public consistent with the policy of title 5 U.S.C. section 552(b).

Section 5(d) requires federal departments, agencies, and other

federal entities, to the extent authorized by law, to furnish information directly to the commission upon a duly authorized request.

Receiving information directly from executive agencies will be a

vital tool for the commission, which itself will have limited resources; cooperation between the commission and executive agencies will therefore be essential.

Section 5 also provides that the commission may enter into contracts. The General Services Administration shall provide the commission support and services on a reimbursable basis. Other departments and agencies are authorized to support the commission.

The commission may accept gifts or donations, and use the United

States mails in the same manner as departments and agencies.

SECTION 6.—STAFF OF THE COMMISSION

Under section 6(a), the chairperson of the commission is authorized to appoint a staff director and other necessary staff, and to fix

their compensation, without regard to the provisions of title 5,

United States Code, governing appointments in the competitive

service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, relating to classification and

General Schedule pay rates. Pay for commission employees may

not exceed the equivalent of that payable for a position at level V

of the Executive Schedule under section 5316 of title 5, United

States Code. Employees of the commission are to be considered employees under section 2105 of title 5, United States Code, for purposes of chapters 63 (leave), 81 (compensation for work injuries), 83

(retirement), 84 (federal employees’ retirement system), 85 (unemployment compensation), 87 (life insurance), 89 (health insurance),

and 90 (long-term care insurance).

Section 6 also provides that federal government employees may

be detailed to the commission without reimbursement from the

commission, and that the commission is authorized to procure the

services of experts and consultants in accordance with section 3109

of title 5, United States Code, at rates not to exceed the daily rate

paid a person occupying a position at level IV of the Executive

Schedule under section 5315 of title 5, United States Code.

SECTION 7.—COMPENSATION AND TRAVEL EXPENSES

Section 7 provides that members of the commission may be compensated at rates not to exceed the daily equivalent of the annual

22

rate of basic pay in effect for a position at level IV of the Executive

Schedule under section 5315 of title 5, United States Code, for each

day during which that member is engaged in the actual performance of the duties of the commission. Members of the commission

shall also be allowed travel expenses, including per diem in lieu of

subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703(b) of title 5, United States Code.

SECTION 8.—SECURITY CLEARANCES FOR COMMISSION MEMBERS AND

STAFF

Section 8 provides that the appropriate executive departments

and agencies shall cooperate with the commission in expeditiously

providing to the commission members and staff appropriate security clearances in a manner consistent with existing procedures

and requirements.

SECTION 9.—REPORTS OF THE COMMISSION; TERMINATION

Section 9 provides that the commission shall submit to the President and Congress two reports containing those findings, conclusions, and recommendations for corrective measures that have been

agreed to by a majority of commission members. The first report

shall be submitted not later than 6 months after the date of the

first meeting of the commission. The second report shall be submitted one year after the submission of the first report.

Section 9 also provides that the commission, and all the authorities provided under it under the legislation, shall terminate 60

days after the second report has been submitted. The commission

may use this 60-day period to conclude its activities, including providing testimony to committees of Congress concerning its reports

and disseminating the second report.

SECTION 10.—AUTHORIZATION OF APPROPRIATIONS

Section 10 provides that $3,000,000 shall be authorized to be appropriated to the commission to carry out its duties, to remain

available until expended.

V. REGULATORY IMPACT

Paragraph 11(b)(1) of the Standing Rules of the Senate requires

that each report accompanying a bill evaluate ‘‘the regulatory impact which would be incurred in carrying out this bill.’’

The enactment of this legislation will not have significant regulatory impact.

VI. CBO COST ESTIMATE

In compliance with paragraph 11(a) of rule XXVI of the Standing

Rules of the Senate, the Committee was provided the following cost

estimate of the cost of S. 1867, as prepared by the Congressional

Budget Office.

23

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, April 3, 2002.

Hon. JOSEPH LIEBERMAN,

Chairman, Committee on Governmental Affairs,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1867, a bill to establish the

National Commission on Terrorist Attacks Upon the United States,

and for other purposes.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contacts for this estimate are Matthew Pickford (for federal costs), Susan Sieg Tompkins (for state

and local costs), and Paige Piper/Bach (for the private-sector impact).

Sincerely,

BARRY B. ANDERSON

(For Dan L. Crippen, Director).

Enclosure.

S. 1867—A bill to establish the National Commission on Terrorist

Attacks Upon the United States, and for other purposes

S. 1867 would establish the National Commission on Terrorist

Attacks Upon the United States. The commission would be made

up of 14 members appointed by the President and the Congress,

and charged with analyzing the terrorist attacks of September 11,

2001. It would evaluate the evidence developed by government

agencies regarding the attacks, detail the circumstances surrounding the attacks, and report its findings to the President and

the Congress, including recommendations for corrective measures

to prevent future acts of terrorism. The commission would prepare

an initial report within six months of its first meeting and a final

report a year later. S. 1867 would authorize the appropriation of

$3 million for the commission to carry out its duties.

CBO estimates that implementing S. 1867 would cost about $3

million over the 2002–2004 period, subject to the availability of appropriated funds. Because S. 1867 would authorize the commission

to accept and spend gifts, which could affect both governmental receipts and direct spending, pay-as-you-go procedures would apply.

CBO estimates that any effect on receipts or direct spending would

be insignificant.

S. 1867 would require state, local, or tribal governments and entities in the private sector, if subpoenaed, to provide testimony and

evidence related to matters the commission determines to be advisable. Such a requirement would be both an intergovernmental and

private-sector mandate under the Unfunded Mandates Reform Act

(UMRA). CBO expects that the commission would likely exercise its

subpoena power sparingly and that the costs to comply with a subpoena would not be significant. Thus, CBO estimates that the

intergovernmental and private-sector cost of the mandate would be

below the relevant thresholds established by UMRA ($58 million

for intergovernmental mandates and $115 million for private-sector

mandates in 2002, adjusted annually for inflation).

24

The CBO staff contacts for this estimates are Matthew Pickford

(for federal costs), Susan Sieg Tompkins (for state and local costs),

and Paige Piper/Bach (for the private-sector impact). This estimate

was approved by Peter H. Fontaine, Deputy Assistant Director for

Budget Analysis.

(25)

ADDITIONAL VIEWS OF SENATOR FRED THOMPSON

On March 21, 2002, the Committee on Governmental Affairs

voted to report S. 1867 as amended. I voted to report S. 1867 favorably out of the Committee because the bill addresses an important

issue that the full Senate should have an opportunity to consider.

The Senate should have the opportunity to evaluate and assess the

need for an independent commission to review the terrorist attacks

of September 11. I remain concerned, however, about the undefined

nature of the mandate of the Commission that would be created

under the S. 1867.

The bill would establish a National Commission on Terrorist Attacks Upon the United States, which would be given wide latitude

to investigate any matter relating to the terrorist attacks of September 11, including any legislation, policy, regulation, plan, practice, or procedure that had a bearing on the events that occurred

that day. While the legislation does suggest potential specific areas

for investigation, S. 1867 vests in the Commission full discretion in

determining the direction of its inquiry. The legislation also makes

clear that the Commission’s inquiry need not be limited to the actions and policies of the federal government; it can also review

facts and circumstances related to the private sector and state and

local governments.

I would have preferred that the Governmental Affairs Committee

develop a legislative proposal to create a Commission to focus solely on the intelligence problems that contributed to the events of

September 11. The intelligence community had both numerous

warnings and several prior examples of a terrorist attack against

symbols of America. Like the rest of the federal government, intelligence agencies may have been lulled into a false sense of security

following its successes during the millennium celebrations. Moreover, the intelligence community appears to have gravely underestimated the growing capabilities of international terrorist networks, despite several significant successes such as the bombings

of the U.S. embassies in Kenya and Tanzania and the bombing of

the U.S.S. Cole. Moreover, according to public sources, there appear

to have been warnings received from foreign intelligence services

since the arrest of Ramzi Yussef, of the possibility of suicidal attacks using passenger aircraft.

Further eroding the effectiveness of the intelligence community

were the policy decisions made with regard to intelligence functions

over the last decade. Combined with cuts in resources and increases in costs due to modernization, these policy decisions may

have limited the ability of the intelligence community to gather

critical information. For instance, the regulations for securing the

services of informants possibly hindered the intelligence community’s ability to acquire new, vital human intelligence assets.

26

I believe an outside investigation could reveal systemic problems

in the collection, analysis, or dissemination of intelligence, or other

systemic problems within the intelligence community or with its relationship to other government entities that contributed to its failure to detect and prevent the attacks of September 11. The investigation could also provide helpful recommendations for improvement and reform that may need to be undertaken in order to prevent another such catastrophe.

Another area that I believe deserves review by an independent

commission of experts is the foreign policy decisions that may have

contributed to the events leading to the terrorist attacks of September 11. From my view, our national policy failed in two principal ways. First, United States policy and responses towards state

sponsors of terrorism have been inadequate. Although our government routinely publishes lists of state sponsors of terror and imposes economic sanctions on these countries, these measures were

not taken seriously. In fact, many of our allies scoffed at our efforts

by continuing to maintain close diplomatic and economic ties with

state sponsors of terror. Even today, six months after the attacks

on September 11, many of our European allies continue to maintain relations with states such as Iran and Syria, which remain on

our list of state sponsors of terrorism.

Second, the United States did not effectively leverage its resources to track down and destroy international terror networks.

Many terrorists moved freely from country to country under assumed identities without detection. Indeed, many of the terrorists

that participated in the attacks on September 11 had arrived in the

United States without the detection by either the FBI or any other

domestic security agency. Furthermore, many of these terrorists

networks received funding from private charities that raised money

in support of some militant cause. Some of this money was even

raised in the United States. Our policy toward the fund-raising activities of these terrorist networks was flawed and proved to be

wholly insufficient.

By creating a commission with so broad a mandate, the legislation attempts to study and evaluate too many subjects. The effect

will be a report that merely skims the surface of many significant

issues. It would be far better for Congress to create one or more

commissions with limited scope to get deeply into the heart of any

subject that needs to be studied for its contributions to September

11. I fear this legislation will not significantly assist our national

evaluation of the causes that helped lead to the terrorist attacks

and the failures and gaps in our policies and government institutions that may have contributed to the success of those attacks.

FRED THOMPSON.

(27)

VIII. CHANGES TO EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing

Rules of the Senate, the Committee notes that the legislation is a

free standing bill that will make no changes to any existing law.

Æ