M E M O R A N D U M. Gary R. Cooper. Robert R. Belair Susan C. Haller

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1 M E M O R A N D U M TO: FROM: RE: Gary R. Cooper Robert R. Belair Susan C. Haller Congressional and Executive Branch Activity Related to Additional Security Requirements Following the September 11, 2001 Terrorist Attacks DATE: October 22, 2001 Following the September 11 th terrorist attacks, one of the key focus areas in Congress and within the executive branch has been improving U.S. aviation security as well as the security of other modes of transportation and U.S. borders (including related immigration issues). A number of additional security features are being considered, including expanded background check requirements. Below is a summary of the recent congressional and executive branch activity related to security, and, in particular, additional background check requirements. Congressional Activity The congressional activity related to increased transportation and border security falls into two categories: authorizing legislation and appropriation legislation. In addition, since the September 11 th attacks, there have been a number of House and Senate committee and subcommittee security-related hearings, including hearings about aviation security, security of other modes of transportation, infrastructure security, border security, and cyber-security. Authorizing Legislation? Aviation Security Legislation The main Senate vehicle for increasing aviation security is S. 1447, the Aviation Security Act, a bipartisan bill that would federalize airport security. On October 11 th, the Senate unanimously passed S One of the major sticking points in the Senate had been a proposed amendment that would authorize $1.9 billion for benefits to displaced aviation workers. Democrats pulled the amendment after Republicans indicated that they would introduce unrelated second-degree amendments. The Senate did adopt a Republican amendment that would establish airport security operations within the Department of Justice rather than the Transportation Department. (Cockpit security

2 responsibilities would continue to fall within the authority of the Transportation Department.) In addition to federalizing airport security, S seeks to improve existing employee background check and passenger screening requirements. For example, the bill would require appropriate background checks for federal air marshal candidates; improved passenger screening processes including a cross-checking data system for individuals identified on federal agency security-related databases; and background check requirements for certain flight training applicants. These provisions do not address the issues of fingerprints or fees. There has been little activity on this issue in the House due to an impasse regarding the federalization issue. House Majority Whip Tom DeLay (R-TX) is refusing to support full federalization of the airport security workforce. On October 17 th, House Republicans, led by House Transportation and Infrastructure Committee Chairman Don Young (R-AK), introduced their aviation security bill, H.R. 3150, the Secure Transportation for America Act of Highlights from the bill include the following:? The bill would create a Transportation Security Administration headed by an Undersecretary for Transportation Security ( Undersecretary ).? The Undersecretary would be responsible for seeing that background checks are conducted on all transportation personnel in sensitive or security environments.? The Undersecretary would also be responsible for creating a passenger screening process.? The bill leaves the Undersecretary with discretion as to whether screeners would be federalized or under contract but gives the Undersecretary responsibility for improving the screening process and, at a minimum, supervising contract/private sector screeners.? The bill would create an air marshal program.? The bill contains a number of aircraft security enhancement provisions, such as cockpit defense and stronger cockpit doors.? The bill provides for the use of voice stress analysis or other technologies to prevent dangerous persons from boarding aircraft.? The bill would provide for enhanced use of computer profiling to screen passengers.? The bill requires that all air carriers which have flights heading to the U.S. and originating from foreign countries transmit a passenger manifest, including name and other identifying information, to the Undersecretary prior to the time that the flight lands in the U.S.? The bill creates a Transportation Security Oversight Board.? The bill contains miscellaneous other security provisions, as well as funding provisions. The President has endorsed Don Young s bill. In addition to H.R. 3150, a group of moderate Republicans has introduced an aviation security bill (H.R. 2951) similar to 2

3 the Senate-passed version. The House Democrats have an aviation security technology bill, H.R. 3101, the Aviation Security Technology Enhancement Act. While the House and Senate work to pass aviation security legislation, in mid- October, the Administration ordered that criminal background checks, conducted by the FBI and the Office of Personnel Management (and, therefore, presumably fingerprintbased), be completed on all workers with access to secure areas of airports.? Anti-terrorism Legislation The Senate antiterrorism bill is S. 1510, the Uniting and Strengthening America Act ( USA Act of 2001 ). The Bush Administration worked with Senate Democratic and Republican leaders in drafting the bill. The bill would provide law enforcement with expanded authority with respect to the pursuit and capture of suspected terrorists. On October 11 th, in addition to passing an aviation security bill, the Senate passed S (96-1). The House Republican leadership had been preparing to bring its antiterrorism bill, H.R. 2975, the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, to the floor. On October 12 th, following intense White House pressure to drop its bill and take up the Senate bill, House Republican leaders decided to consider the Senate-passed bill. The House quickly passed the bill by midday on October 12 th. The House-passed bill, H.R 2975 (with an amendment in the nature of a substitute) is different from the Senate-passed bill on two key issues in the House bill, the wiretapping provisions would expire in 2004 and the President may request a two-year extension; and the House deleted the money laundering provisions added by the Senate. House and Senate negotiators have agreed to a 2005 sunset date as well as money laundering provisions. A House-Senate conference committee is expected to work out the differences between the two bills. Both S. 1510, as passed by the Senate, and H.R. 2975, as passed by the House, would provide the State Department and the Immigration and Naturalization Service with access to certain identifying information contained in visa applicants criminal history records contained in the National Crime Information Center s ( NCIC ) Interstate Identification Index, Wanted Person Files, and possibly other files maintained by NCIC. Fingerprints and fingerprint processing fees would be required in order to obtain full criminal history records.? Background Check/Screening Legislation A number of smaller bills containing background check/screening language have been introduced including:? Passenger screening:? H.R. 2895, the Aviation Security Enhancement Act of 2001 ; and? S. 1461, the Airline Passenger Safety Enhancement Act of

4 ? Background checks for flight students:? H.R. 2932, the Safe Skies Act of 2001.? Background checks for pilot and aircraft maintenance training applicants:? H.R. 2957, the Secure Aviation Employment and Training Enhancement Act of 2001.? Background checks for immigration purposes:? H.R. 3052, the Visa Information Security Act of 2001 ;? H.R. 3069, the Securing American Families Effectively (SAFE) Act ;? H.R. 3077, the Visa Integrity and Security Act of 2001 ;? S. 1491, a bill to provide for the establishment and implementation of a fingerprint processing system to be used whenever a visa is issued to an alien; and? S. 1518, the Visa Integrity and Security Act of Appropriation Legislation Immediately following the terrorist attacks, Congress passed? A $40 billion emergency spending bill (Pub. L. No ) to cover federal expenses related to the terrorist attacks. The Administration has significant discretionary spending powers with respect to the first $20 billion. Part of the first $5 billion will be used for increased security measures. In mid-october, the White House sent a request to Congress for the second $20 billion of which $7.4 billion would be used for defense; $600 million for Federal Emergency Management Agency grants; and $400 million for FAA security improvements. Of the overall $40 billion, it is expected that $18.6 billion will be spent on national security improvements; $11.7 billion on domestic recovery efforts; $2.9 billion on the country s bioterrorism response; $2.6 billion on domestic security; $1.3 billion on aviation security; $1.6 billion on law enforcement; and $1.4 billion on international assistance.? The Air Transportation Safety and System Stabilization Act (Pub. L. No ) in order to maintain the viability of the U.S. airline industry. Pub. L. No provides $15 billion in assistance to the airline industry. Of the $15 billion, $3 billion is designated for airline security and safety. In addition to the $40 billion emergency spending bill, FY2002 appropriations bills are expected to include additional money for combating terrorism. Government agencies have developed a $200 billion homeland defense wish list for additional appropriation funds. 4

5 Executive Branch Activity Presidential Appointments In his September 20 th speech before the nation, President Bush announced the creation of a cabinet-level Office of Homeland Security to coordinate federal, state, and local efforts against terrorism in the U.S. Pennsylvania Governor Tom Ridge will head up the office. The President has also created the Homeland Security Council. In early October, President Bush appointed two key advisors to key anti-terrorism positions. The President appointed Richard A. Clarke as his Special Advisor for Cyber Security. In May of 1998, Clarke was appointed as the first national coordinator for security, infrastructure protection and counter-terrorism. He has also served as the Deputy Assistant Secretary of State for Intelligence under President Reagan and as Assistant Secretary of State for Political Military Affairs under President George Herbert Walker Bush. In his new role, Mr. Clarke will be responsible for protecting the country s computer infrastructure and will chair a government board that will be responsible for coordinating the protection of critical infrastructure systems. The President also selected Retired Army General Wayne A. Downing to hold the newly-created position of National Director and Deputy National Security Advisor for Combating Terrorism. Downing spent 34 years in the Army during which his last assignment was holding the position of Commander-in-Chief of the U.S. Special Operations Command. He has also had responsibilities related to anti-terrorism. Key Federal Agency Activity? Department of Transportation ( DOT )/Federal Aviation Administration ( FAA ) On September 16 th, DOT Secretary Norman Mineta announced the creation of two Rapid Response Teams ( RRTs ) tasked with providing recommendations for improving aviation security. One RRT focused on airport security. Members of this RRT included Herb Kelleher, chairman of the board of directors of Southwest Airlines; Raymond Kelly, former commissioner of the U.S. Customs Service and a veteran law enforcement officer; Charles Barclay, president of the American Association of Airport Executives; and Richard Anderson, Chief Executive Officer of Northwest Airlines. The second RRT focused on aircraft security and was comprised of the following members: Robert W. Baker, vice chairman of American Airlines; Robert A. Davis, former vice president of engineering and technology for The Boeing Company; Captain Duane Woerth, president of the Air Line Pilots Association; and Patricia A. Friend, International President of the Association of Flight Attendants. On October 5 th, DOT Secretary Mineta released the RRTs recommendations. (Details regarding the RRTs recommendations are available at the DOT website: 5

6 The RRT on Airport Security recommendations fell into the following five general categories:? A new federal law enforcement agency, with direct control of airport passenger screening, should be created within the DOT;? Law enforcement and intelligence information must be shared among entities with aviation security responsibilities;? Aviation security must be improved through the use of new technologies;? Passenger screening and other security measures must be strengthened; and? A nationwide program of voluntary passenger prescreening should be established.? In order to move passengers through security systems more efficiently, the RRT has recommended that a nationwide, voluntary prescreening passenger program should be established. This prescreening program would incorporate smart credentials using biometric and other technologies for passenger identification verification. Passengers who have had their identities and backgrounds validated through this program would present their credentials and be subject to a less intense security check process. Improvements related to airline/airport employee background checks, credential checks, and identification as well as passenger identification are integral parts of the Airport Security RRT recommendations.? Immigration and Naturalization Service ( INS ) On October 11 th, in testimony before the Subcommittee on Immigration and Claims of the House Judiciary Committee, INS Commissioner James W. Ziglar testified about the use of technology by the INS to secure America s borders. In his written remarks, Commissioner Ziglar outlined the steps that the INS plans to take in order to improve border security. Some of those steps include the following: expand the Border Patrol s access to biometric identification systems; implement the National Crime Information Center Interstate Identification Index at all ports of entry, 1 consular posts, INS service centers and adjudication offices in order to identify individuals with criminal histories; and improve INS databases. 1 Legislation is being considered to ensure the expansion of NCIC III availability. The INS is also requesting congressional support for additional communications and mainframe capacity in order to have access to NCIC III data on a real-time basis. 6

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