Order Code RL32705
CRS Report for Congress
Received through the CRS Web
Border and Transportation Security:
Overview of Congressional Issues
December 17, 2004
Jennifer E. Lake, Coordinator
Analyst in Domestic Security
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

This report provides a summary of selected border and transportation security (BTS)
concepts and issues that may be of interest to the 109th Congress. It is the product of
contributions from CRS staff in the table contained later in this report labeled Key Policy
Staff: Border and Transportation Security
.
Readers seeking further information and analysis of Border and Transportation Security,
and Immigration issues should contact any of the CRS staff listed or visit the following CRS
Current Legislative Issues (CLI) pages on the CRS website:
BTS CLI: [http://www.congress.gov/erp/legissues/html/isdhs3.html]
Immigration CLI: [http://www.crs.gov/products/browse/is-immigration.shtml]

Border and Transportation Security:
Overview of Congressional Issues
Summary
Enhancing border and transportation security (BTS) are essential strategies for
improving and maintaining homeland security. Border security entails regulating the
flow of traffic across the nation’s borders so that dangerous and unwanted goods and
people are detected and denied entry. This requires a sophisticated border
management system that balances the need for securing the nation’s borders with
facilitating the essential free flow of legitimate commerce, citizens, and authorized
visitors. Transportation security involves securing the flow of people and goods
along the nation’s highways, railways, airways, and waterways. While in the
immediate aftermath of 9/11 efforts primarily concentrated on an expanded federal
role in aviation security (in particular on the heightened screening of passengers and
baggage), increasingly attention is being turned towards other modes of
transportation.
The effective implementation of border and transportation security measures
requires the participation of numerous agencies. Federal responsibility for border and
transportation security efforts is primarily contained within the Department of
Homeland Security (DHS). DHS’s Border and Transportation Security Directorate
houses: the Bureau of Customs and Border Protection (CBP), which has
responsibility for security at and between ports-of-entry along the border; the Bureau
of Customs and Immigration Enforcement (ICE), which has responsibility for
investigating and enforcing the nation’s customs and immigration laws; and the
Transportation Security Administration (TSA), which is responsible for the security
of the nation’s transportation systems. The U.S. Coast Guard is a stand-alone agency
within DHS, and has primary responsibility for the maritime components of
homeland security (U.S. ports, coastal and inland waterways, and territorial waters).
DHS’s Citizenship and Immigration Services Bureau (USCIS) is charged with
approving immigrant petitions. In addition, the Department of State’s (DOS) Bureau
of Consular Affairs is responsible for issuing visas; and the Department of Justice’s
(DOJ’s) Executive Office for Immigration Review (EOIR) has a significant policy
role through its adjudicatory decisions on specific immigration cases.
This report provides a summary of the roles and responsibilities of various
federal agencies engaged in border and transportation security activities; describes
selected concepts and terms prominent in border and transportation security debates;
and discusses selected issues that might be of interest to the 109th Congress. These
issues include immigration-related border security issues; cargo security issues;
aviation and non-aviation transportation security; and maritime security issues. This
report will be updated as significant developments occur. An appendix contains
summaries of the following: key recommendations of the 9/11 Commission affecting
border and transportation security; similar provisions in the recently enacted
Intelligence Reform and Terrorist Prevention Act of 2004, and Homeland Security
Presidential Directive 11 (HSPD-11).

Key Policy Staff: Border and Transportation Security
Area of expertise
Name
Phone
E-mail
Coordinator
Jennifer Lake
7-0620
jlake@crs.loc.gov
US-VISIT/Entry-
Lisa Seghetti
7-4669
lseghetti@crs.loc.gov
Exit System Issues
Customs Issues
Jennifer Lake
7-0620
jlake@crs.loc.gov
Immigration Issues
Ruth Wasem
7-7342
rwasem@crs.loc.gov
Alison Siskin
7-0260
asiskin@crs.loc.gov
Border Patrol
Blas Nuñez-Neto
7-0622
bnunezneto@crs.loc.gov
Aviation Security
Bartholomew
7-7771
belias@crs.loc.gov
and Air Cargo
Elias
Security
Terrorist Watchlists
William Krouse
7-2225
wkrouse@crs.loc.gov
Coast Guard
Ronald O’Rourke
7-7610
rorourke@crs.loc.gov
Port
John Frittelli
7-7033
jfrittelli@crs.loc.gov
Security/Surface
Transportation
Security

Contents
Overview of Key Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DHS Border and Transportation Security Responsibilities . . . . . . . . . . . . . . . . . . 2
Selected Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Border Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Breadth, Depth, Coverage, and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 4
Inspection and Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Systems Integration and Interoperability . . . . . . . . . . . . . . . . . . . . . . . . 6
Potential Issues for the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Border-Related Immigration Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
US-VISIT/Entry-Exit Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Visa Policy, Visa Waiver and Pre-screening . . . . . . . . . . . . . . . . . . . . . 7
Biometrics and Documentary Requirements . . . . . . . . . . . . . . . . . . . . . 8
Smuggling and Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Asylum and Expedited Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
IDENT/IAFIS Database Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Cargo and Transportation-Related Border Control . . . . . . . . . . . . . . . . . . . 11
Cargo and Container Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Targeting and Risk Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cargo Inspection Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Privatized Airport Screening Program . . . . . . . . . . . . . . . . . . . . . . . . . 12
Computer Assisted Passenger Pre-screening System (CAPPS) and
“Secure Flight” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Explosive Detection Systems (EDS) and Explosive Trace
Detection (ETD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Air Cargo Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Non-Aviation Transportation Security . . . . . . . . . . . . . . . . . . . . . . . . . 14
Coast Guard Deepwater Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Coast Guard Legacy and Replacement Assets . . . . . . . . . . . . . . . . . . . 15
Coast Guard — Automatic Identification System . . . . . . . . . . . . . . . . 15
Non-Homeland Security Missions of the Coast Guard . . . . . . . . . . . . 16
Staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Appendix: Provisions Relating to Border and Transportation Security in the
9/11 Commission Report, Intelligence Reform Bill, and HSPD-11 . . . . . . 17
9/11 Commission Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
HSPD-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Intelligence Reform and Terrorism Prevention Act of 2004 . . . . . . . . . . . . 19

Border and Transportation Security:
Overview of Congressional Issues
Overview of Key Concepts
Improving border and transportation security (BTS) are essential strategies for
improving and maintaining homeland security. Border security entails regulating the
flow of traffic across the nation’s borders so that dangerous and unwanted goods and
people are detected and denied entry. This requires a sophisticated border
management system that balances the need for securing the nation’s borders with
facilitating the essential free flow of legitimate commerce, citizens, and authorized
visitors. Transportation security involves securing the flow of people and goods
along the nation’s highways, railways, airways, and waterways. While in the
immediate aftermath of 9/11 efforts primarily concentrated on an expanded federal
role in aviation security (in particular on the heightened screening of passengers and
baggage), increasingly attention is being turned towards other modes of
transportation.
Recent congressional actions concerning terrorism and border security fall into
several categories including broad efforts to understand the terrorist threat (including
several commissions: Gilmore, Bremer, and Hart-Rudman); structural changes to
provide a proper framework for action (enacting legislation, P.L. 107-296, to create
the Department of Homeland Security (DHS), and enacting the USA Patriot Act, P.L.
107-56); highly specific actions to prevent immediate threats (legislative activity
concerning aviation security, visa policy, bioterrorism, and maritime security); and
a return to broader and more comprehensive approaches (including the creation of
the 9/11 Commission, and the recently passed intelligence reform bill). The
indications are that in both a legislative and oversight capacity, the 109th Congress
will be dealing with issues that confront border security and homeland security issues
in a comprehensive and more integrated fashion.
This report is intended as an overview of selected concepts and issues that may
be of interest to the 109th Congress, and should not be considered exhaustive. It
provides a brief description of selected agencies and their border and transportation
security responsibilities. The paper then discusses selected concepts that are
prominently featured in recent BTS debates; and provides a summary of BTS-related
provisions of the 9/11 Commission Report, and the Intelligence Reform and
Terrorism Prevention Act of 2004. Finally, this report presents some specific border
and transportation security issues that may be of interest to the 109th Congress.

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DHS Border and Transportation
Security Responsibilities
DHS is the primary agency responsible for the security of the borders. The
Homeland Security Act of 2002 (P.L. 107-296) transferred the relevant funding and
most of the personnel of 22 agencies and offices to the newly created Department of
Homeland Security. DHS was organized into four main directorates: Border and
Transportation Security (BTS); Emergency Preparedness and Response (EPR);
Science and Technology (S&T); and Information Analysis and Infrastructure
Protection (IAIP).
Border security functional responsibilities are at their most vivid at the point at
which goods or people are expected to cross borders. The border and transportation
security responsibilities of DHS are primarily located within the BTS Directorate.
The Coast Guard is a stand alone agency within DHS, but has significant border
security responsibilities.
Within the BTS Directorate, Customs and Border Protection (CBP) has
responsibility for security at and between ports-of-entry along the border. These
responsibilities include inspecting people and goods to determine if they are
authorized to enter, and maintaining border crossing stations to process persons
seeking entry to the U.S. The inspection and border-related functions of the Customs
Service; the inspection functions of the former Immigration and Naturalization
Service; the Border Patrol; and the inspection functions of the Animal and Plant
Health Inspection Service (APHIS) program are consolidated under the CBP. Within
CBP, the United States Border Patrol (USBP) is the agency responsible for the
enforcement of federal immigration laws between ports of entry. As currently
comprised, the USBP’s primary mission is to detect and prevent the entry of
unauthorized aliens into the country, assist in the detection of possible terrorists, and
interdict drug smugglers and other criminals.
Also within BTS, the bureau of Immigration and Customs Enforcement (ICE)
focuses on enforcement of immigration and customs laws within the United States,
as well as investigations into such activities as fraud, forced labor, trade agreement
noncompliance, smuggling and illegal transshipment of people and goods, and
vehicle and cargo theft. In addition, this bureau oversees the building security
activities of the Federal Protective Service, formerly of the General Services
Administration; the operations of the Air and Marine Operations unit; and the Federal
Air Marshals Service (FAMS) transferred to ICE from Transportation Security
Administration (TSA) in August of 2003. The bureau combined the investigations
and intelligence functions of the U.S. Customs Service and the former INS, the air
and marine interdiction functions of those agencies, and the immigration detention
and removal programs, as well as the operations of the Federal Protective Service.
ICE conducts investigations to develop intelligence to reduce illegal entry into the
United States, and is responsible for locating and removing illegal aliens by
inspecting places of employment for undocumented workers. ICE is responsible for
identifying and finding persons who have overstayed their visas, and the Bureau also
develops intelligence to combat terrorist financing and money laundering, and to
enforce export laws against smuggling and fraud.

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The TSA, created by the Aviation and Transportation Security Act (ATSA; P.L.
107-71), was established to increase the protection of people and commerce as they
traveled into and throughout the United States. TSA’s primary focus in the aftermath
of the 9/11 attacks has been aviation security, which includes protecting the air
transportation system against terrorist threats, sabotage and other acts of violence
through the deployment of passenger and baggage screeners; detection systems for
explosives, weapons, and other contraband; and other security technologies. TSA
also has responsibilities for marine and land modes of transportation including
assessing the risk of terrorist attacks to all non-aviation transportation modes, issuing
regulations to improve the security of the modes, and enforcing these regulations to
ensure the protection of the transportation system. TSA is further charged with
serving as the primary liaison for transportation security to the law enforcement and
intelligence communities, and with conducting research and development activities
to improve security technologies.
The Coast Guard is the lead federal agency for the maritime component of
homeland security. As such, it is responsible for border and transportation security
as it applies to U.S. ports, coastal and inland waterways, and territorial waters. The
Coast Guard also performs other missions, including some (such as fisheries
enforcement and marine rescue operations) that are not related to homeland security.
The law that established DHS (P.L. 107-296) directed that the Coast Guard be
maintained as a distinct entity within DHS and that the Commandant of the Coast
Guard report directly to the Secretary of DHS. Accordingly, the Coast Guard exists
as its own agency within DHS and is not part of DHS’s border and transportation
security directorate. The Coast Guard does, however, work closely with the BTS
directorate.
The Department of State (DOS) and the Department of Justice (DOJ) also have
a role to play in border security. Foreign nationals not already legally residing in the
United States who wish to come to the United States generally must obtain a visa to
be admitted.1 Under current law, three departments — DOS, DHS, DOJ — play key
roles in administering the law and policies on the admission of aliens.2 DOS’s
Bureau of Consular Affairs is responsible for issuing visas. DHS’s Citizenship and
Immigration Services Bureau (USCIS) is charged with approving immigrant
petitions. In addition, DOJ’s Executive Office for immigration Review (EOIR) plays
a significant policy role through its adjudicatory decisions on specific immigration
cases.
1 Authorities to except or to waive visa requirements are specified in law, such as the broad
parole authority of the Attorney General under §212(d)(5) of the Immigration and
Nationality Act (INA) and the specific authority of the Visa Waiver Program in §217 of the
INA.
2 Other departments, notably the Department of Labor (DOL), and the Department of
Agriculture (USDA), play roles in the approval process depending on the category or type
of visa sought, and the Department of Health and Human Services (DHHS) sets policy on
the health-related grounds for inadmissibility.

CRS-4
With this as background, the report now turns to a discussion of selected
concepts that frequently appear in BTS debates.
Selected Concepts
This section of the paper discusses several BTS-related concepts that will likely
be featured during the relevant legislative debates of the 109th Congress.
Border Management
In broad terms, good border management seeks to balance the competing, but
not necessarily conflicting, goals of (1) facilitating (and even expediting) access for
people and goods that we both need and desire; with (2) interdicting and stopping
“bad” people and “bad” things from entering the country. The key to success in this
endeavor is the ability to accurately and efficiently identify high-risk passengers and
cargo, target them for inspection, and prevent the entry of dangerous goods and
people without impeding the flow of legitimate cross-border traffic. The task for the
policy maker is to identify and promote those policies that will enhance the efficacy
of the filters employed for these tasks.
More specifically, the border enforcement agent or inspector is ultimately
engaged in an identification and verification process. It is an effort to determine the
identity of the people or cargo seeking entry, and to verify the legitimacy of the
request for entry. There are many debates about how best to do this. The current
entry processing procedures for both people and cargo are complex, and involve
numerous steps each of which presents both an opportunity for interference or for
interception.
Breadth, Depth, Coverage, and Jurisdiction
Several of the issues that will likely confront policymakers in the 109th Congress
essentially revolve around a number of themes relating to breadth, depth, coverage,
and jurisdiction. As noted above, both the border and transportation security realms
involve numerous actors (both public and private), and a tremendous volume of
movements across the nation’s borders or along the country’s transportation
infrastructure. The environment created by numerous actors and high volumes of
traffic may lead to a potential goal conflict between security and efficiency, in the
case where increased security measures impede the flow of people and goods across
the border and throughout the country. Of course, this need not necessarily occur,
and in fact policy choices can be made that both provide more security and speed the
flow of legitimate traffic.
In the 109th Congress, breadth (what and who should be inspected), depth (what
should the intensity of the inspection be), coverage (how often should things and
people be inspected, and for what purpose), and jurisdiction (who should be
responsible for the inspection) are likely to be key items of debate. For example,
many of these debates could center around the securing of goods and people that are
entering the county and being transported throughout the country, and the level of

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inspection that should be applied to them. There are several avenues of approach to
inspections. Some argue that targeting procedures, trusted-traveler, and trusted-
shipper (or known-shipper) programs are insufficient at identifying so-called high-
risk people and cargo and that 100% inspection procedures should be applied. Others
argue that because of limited resources (technology, people, time, space), and the
potential impact on commerce, a targeted approach should be applied. If 100%
inspection is not desirable, or unattainable, what should the appropriate level be?
What are the appropriate targeting mechanisms, and who should apply them? If a
layered approach is applied, how often should goods or individuals be inspected or
screened before they enter the country, or as they are transported across the country,
and what entities are or will be responsible for these inspections? These are just
some of the overarching questions that can be applied to many of the issues that are
discussed in greater detail near the end of this report.
Inspection and Screening. The term inspection can play a prominent role
in discussions of border security. Confusion over the use of the term invariably
arises in conflicting estimates of what proportion of goods (containers, trucks,
railcars) have been inspected. Depending upon the context, an inspection could
entail anything (and everything) from a review of the documentation attached to the
entry of a particular shipment, to a more detailed document check; looking at the
outside of a container; walking a K-9 unit around the container; taking an x-ray or a
gamma-ray image of the contents of the container; passing the container through a
radiation portal monitor; or physically unloading and examining the cargo. One often
reported statistic is that “only X% of cargo containers is inspected at the nation’s
ports.” Does this mean that only X% was physically removed from the container and
examined by inspectors? Or does this mean that X% was x-rayed or sent to what is
sometimes referred to as secondary inspection.
These questions apply to the entry of people as well. In popular discussions, it
is not always clear whether an inspection means a documentary review, a biometric
verification of identity, an interview, a pass through a metal detector, a search of
applicable databases, and/or a personal search?3 As in the cargo realm, an often
reported statistic is that X% of people were inspected at the nation’s borders, or
airports etc. Does this mean that X% were interviewed, or were sent to secondary
inspection? Further, there can be differences in inspections depending upon the port
of entry. For example, people arriving in the United States at an airport arguably
undergo a more comprehensive examination than those arriving by car at land ports
of entry.
The concepts of primary and secondary inspection can further complicate the
discussion. A primary inspection typically consists of some set of standard
examination protocols that are applied to every person or shipment of cargo seeking
entry into the country. It follows then that the secondary inspection is a further set
3 Current immigration policy requires that a primary inspection consists of a brief
interview with an immigration inspector, a cursory check of the traveler’s documents
and a query of the Interagency Border Inspection System (IBIS).

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of protocols applied to those shipments or people, which for a variety of possible
reasons were unable to be satisfactorily processed during the primary inspection.
Thus, when encountering reported statistics or debating policies and procedures, it
is important to understand the context in which the term inspection is being used, and
the subset of cargo and people it applies to.
There are related issues with the use of the term screening. What does it mean
to screen cargo or people as they enter the country? Often this term is used
interchangeably with the term inspection, and the same questions as highlighted
above apply as well. The term screening is often used to describe the querying of
databases to verify the identity of the person or good seeking entry, and the
legitimacy of that claim. If this is the case, then against what were the individuals or
cargo screened — terrorist watchlists, criminal history databases, and/or others?
Systems Integration and Interoperability. The 9/11 Commission
recommended the integration of the U.S. border security system by expanding the
network of screening points to include the nation’s transportation system and access
to vital facilities. The Administration responded to this recommendation by issuing
Homeland Security Presidential Directive 11 (HSPD-11), which in large part builds
upon HSPD-6, and related measures to improve terrorist screening. Many of these
measures hinge on effective information sharing and, hence, on systems integration
and interoperability in a secure environment. Systems integration involves
establishing standardized communication protocols and interface specifications for
systems (hardware and software) that are usually part of a larger information
technology (enterprise) architecture. Integrated systems are highly interoperable in
that they are capable of effectively and efficiently sharing information through
complementary operational systems, networks, and databases. On the other hand,
interoperable systems that are not fully integrated usually involve information sharing
across systems — on a smaller scale — based on standardized data formats and
elements. Indeed, such systems may not be fully integrated for reasons of security
and economy of scale.
Potential Issues for the 109th Congress
This section of the report highlights some of the BTS-related issues that may be
of concern to the 109th Congress. It should be noted that this list contains selected
issues and should not be considered comprehensive.
Border-Related Immigration Control
US-VISIT/Entry-Exit Screening. The US-VISIT program may be the
subject of congressional oversight as the Administration continues to fully implement
the program at the various ports of entry. Under current practice, certain foreign
nationals are exempt from the requirements of the U.S.-VISIT program (i.e., Mexican
nationals who possess a Laser Visa and many Canadian nationals). However, the
108th Congress passed legislation that requires a biometrically secured document of
everyone who presents themselves for entry at a U.S. port of entry (though this does
not necessarily mean that everyone required to present a biometrically secured

CRS-7
document will be included in US-VISIT). This may continue to be of concern to the
next Congress. The Intelligence Reform and Terrorism Prevention Act (IRTPA)
contains several provisions relating to the entry-exit system. One of the 9/11
Commission recommendations would find completing the biometric entry-exit
system to be an “essential investment” and require the Secretary of DHS to develop
a plan to accelerate the full implementation of the system, and to submit a report to
Congress no later than 180 days after enactment on the plan.
Visa Policy, Visa Waiver and Pre-screening. Since the mid-1990s,
immigration control has been shifting away from U.S. border inspections and
apprehensions to overseas screening aimed at keeping inadmissible aliens from
arriving in the United States. Since foreign nationals not already legally residing in
the United States who wish to come to the United States generally must obtain a visa
to be admitted (with some notable exceptions discussed below), strengthening visa
issuance procedures has been a key element of border security. The 109th Congress
will continue to oversee the implementation of several important provisions
pertaining to visa policy enacted in recent years. These provisions mandated data
sharing so that consular officers have access to relevant electronic information,
required the development of an interoperable electronic data system to be used to
share information relevant to alien admissibility, and required that all visas issued
after October 2004 have biometric identifiers.4 Action most recently to keep
inadmissible aliens abroad — the Intelligence Reform and Terrorism Prevention Act
of 2004 — expanded the overseas pre-inspection of travelers destined for the United
States, requested the deployment of technologies (e.g., biometrics) to detect potential
terrorist indicators on travel documents, established within the Department of State
(DOS) an Office of Visa and Passport Security, and required that consular officers
have greater training in the detection of terrorist travel patterns.
Many visitors enter the United States without visas through the Visa Waiver
Program (VWP), a provision of law that allows the visa requirements to be waived
for aliens coming as visitors from 27 countries that meet certain standards (e.g.,
Australia, France, Germany, Italy, Japan, New Zealand, and Switzerland). Notable
among these requirements is that VWP participating countries must issue passports
with biometric identifiers; however, this requirement has yet to be met by any of the
participating countries. The 108th Congress extended the deadline to incorporate
biometric identifiers until October 26, 2005. The 109th Congress may choose to re-
examine the biometric passport deadline as there are indications that some countries
will be unable to meet the new deadline. Under law, there is no mechanism other
than congressional action to extend the deadline. Another potential issue may be
DHS’s management of the VWP. A recent report by DHS’s Office of Inspections
detailed several security concerns related to the program including lack of adequate
funding and trained personnel to administer the VWP, reliability issues with the data
on lost and stolen passports, and the failure to conduct timely country reviews.5
4 The USA PATRIOT Act (P.L. 107-56) and the Enhanced Border Security and Visa Entry
Reform Act of 2002 (P.L. 107-173).
5 U.S. Department of Homeland Security, Office of Inspections, Evaluations, and Special
Reviews OIG-04-26, An Evaluation of the Security Implications of the Visa Waiver

(continued...)

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Biometrics and Documentary Requirements. For over a decade, there
has been a consensus that immigration documents should include biometric
identifiers. Congress imposed a statutory requirement for the biometric border
crossing card known as laser visas in 1996 and added requirements for biometric
visas in 2001 and 2002.6 For the past several years, DOS’s Bureau of Consular
Affairs has been issuing machine-readable visas. Consular officers use the Consular
Consolidated Database (CCD) to store data on visa applicants. Since February 2001,
the CCD stores photographs of all visa applicants in electronic form, and more
recently the CCD has begun storing finger prints of the right and left index fingers.
The CCD is the nexus for screening aliens for admissibility, notably screening on
terrorist security and criminal grounds. The laser visa, which also includes a
photograph and prints for both index fingers as biometric identifiers, is issued to
citizens of Mexico to gain short-term entry (up to six months) for business or tourism
into the United States. The Mexican laser visa has traditionally been called a border
crossing card (BCC). Since 1998, the card issued to legal permanent residents
(LPRs), commonly called a “green card,” has included digital photographs and
fingerprints, holograms, micro-printing, and an optical memory stripe.
In addition to the VWP, there are exceptions to documentary requirements for
a visa that have been established by law, treaty, or regulation — most notably with
respect to citizens of Canada. The law also authorizes the Attorney General and the
Secretary of State acting jointly to waive the documentary requirements, on the basis
of unforeseen emergency in individual cases.7 In 2003, the Administration scaled
back the circumstances in which the visa and passport requirements are waived.8
The 109th Congress may consider limits to the President’s ability to waive
general statutory requirements requiring U.S. citizens traveling abroad or attempting
to enter the United States to bear a valid U.S. passport. Some would restrict such a
waiver only to U.S. citizens traveling to or from foreign contiguous territories who
are bearing identification documents that would be designated by DHS as reliable
proof of U.S. citizenship, and would require that the documentation not be of a type
issued to an unlawfully present alien within the United States. Some would also
amend the present waiver authority concerning document requirements for arriving
nationals from foreign contiguous countries or adjacent islands, so that such waivers
may only be granted (in non-emergency situations) through a joint determination by
5 (...continued)
Program, Apr. 2004.
6 §414 of the USA Patriot Act (PL. 107-56) and §303 of the Enhanced Border Security and
Visa Reform Act (P.L. 107-173) require that visas and other travel documents contain a
biometric identifier and are tamper-resistant.
7 INA §212(d)(4)(A). The Homeland Security Act (P.L. 107-296) transferred most
immigration-related functions from DOJ to DHS. It is uncertain as of this writing whether
this waiver authority remains, in whole or in part, with DOJ and the Attorney General or
practically resides with the Secretary of DHS.
8 Passports and visas are now required for nationals of 54 British Commonwealth countries
and Ireland who are permanent residents of Canada or Bermuda and for whom the
documentary requirements had previously been waived. Federal Register, vol. 68, no. 21,
Jan. 31, 2003, pp. 5190-5194.

CRS-9
the Secretaries of DHS and DOS on the basis of reciprocity, and then only if the
arriving foreign national is in possession of identification documents deemed secure
by the Secretary of DHS.
Smuggling and Trafficking. Alien smuggling and human trafficking share
common elements and attributes but are different offenses. In some respects human
trafficking is an aggravated form of alien smuggling, since during both offenses,
aliens are smuggled (brought illegally) into the country. Those who are smuggled are
free when they reach their final destination, while those who are trafficked find
themselves in a servitude arrangement that does not end after they are smuggled to
their final destination. ICE as the lead agency collaborates with the Department of
State and the Federal Bureau of Investigation (FBI) as well as other federal and local
law enforcement agencies on investigations into alien smuggling and trafficking
which include an overseas investigative component. Some contend that targeting
major smuggling and trafficking organizations for investigation and prosecution
reduces illegal entries into the United States. Moreover some are concerned that
terrorists may use human smuggling networks to clandestinely enter the United
States.
In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress
established the interagency Human Smuggling and Trafficking Center for the
purposes of combating terrorist travel, migrant smuggling and trafficking in persons.
At issue may be the need for other tools to combat smuggling such as increasing the
criminal penalties for alien smuggling. In addition, ICE has been developing a
strategy to address alien smuggling and human trafficking at the international level.9
At this time there is little published on the new strategy, and it is unclear how the
strategy will integrate the expertise and personnel of multiple law enforcement
agencies. Furthermore, the authorization for the Victims of Trafficking and Violence
Protection Act of 2000,10 which contains programs to help prevent trafficking and to
aid victims, expires in FY2005.
Asylum and Expedited Removal. The United States has long held to the
principle that it will not return a foreign national to a country where his life or
freedom would be threatened. Aliens seeking asylum must demonstrate a well-
founded fear that if returned home, they will be persecuted based upon one of five
characteristics: race, religion, nationality, membership in a particular social group,
or political opinion. In addition, regulations implementing the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (hereafter referred to as the Torture Convention) prohibit the return of
any person to a country where there are “substantial grounds” for believing that he
or she would be in danger of being tortured. An immigration officer, however, can
9 Testimony of Interim Assistant Director of Investigations, Bureau of Immigration and
Customs Enforcement Charles H. Demore in U.S Congress, Senate Judiciary Committee,
Subcommittee on Crime, Corrections, and Victims’ Rights, Alien Smuggling/Human
Trafficking: Sending a Meaningful Message of Deterrence,
hearings, 108th Cong., 1st sess.,
July 25, 2003. (Hereafter cited as Demore, Alien Smuggling/Human Trafficking.)
10 The Victims of Trafficking and Violence Protection Act of 2000 (P.L. 106-386) was
reauthorized in 2002 (P.L. 107-228) and in 2003 (P.L. 108-193).

CRS-10
summarily exclude, through a process known as expedited removal, an alien arriving
without proper documentation or an alien present in the United States for less than
two years, unless the alien expresses a fear of persecution.
Although the United States Citizenship and Immigration Services Bureau
(USCIS) and the Department of Justice’s Executive Office for Immigration Review
(EOIR) are clearly the lead agencies in asylum policy, the first contacts many asylum
seekers have with the U.S. government are with Border and Transportation Security
(BTS) officials. Some have expressed concern that the CBP inspectors, U.S. Border
Patrol officers, and Immigration and Customs Enforcement (ICE) agents are not
adequately trained in asylum policy and other humanitarian forms of immigration
relief. Others point out that the CBP inspectors, U.S. Border Patrol officers, and ICE
agents follow the policy and procedural guidelines to ensure that aliens who express
a fear of returning home are given the opportunity to have their fears considered by
an asylum officer and/or an immigration judge.
Although there are many who would revise U.S. asylum law and policy, those
advocating change have divergent perspectives. Some express concern that potential
terrorists could use asylum as an avenue for entry into the United States, especially
aliens from trouble spots in the Mideast, northern Africa and south Asia. Others
maintain that current law does not offer adequate protections for people fleeing
human rights violations. Some state that — given the religious, ethnic, and political
violence in various countries around the world — it is becoming more difficult to
differentiate the persecuted from the persecutors. At the crux is the extent an asylum
policy forged during the Cold War can adapt to a changing world and the war on
terrorism.
Conferees on the intelligence reform law enacted by the 108th Congress dropped
House-passed provisions to revise asylum and expedited removal, and these options
are expected to be considered early in the 109th Congress. Some proponents of these
revisions would expand the class of aliens subject to expedited removal without
further hearing or review, by increasing the prior continuous U.S. physical presence
required for exemption from such removal from two years to five years. Some also
would restrict access to an interview with an asylum officers by those aliens in
expedited removal who are seeking asylum to those aliens who have been physically
present in the United States for less than a year. Other legislative options would raise
evidentiary standards for asylum.
IDENT/IAFIS Database Integration. The current project underway to
integrate CBP’s Automated Biometric Identification System (IDENT) and the
Federal Bureau of Investigation’s (FBI’s) Integrated Automated Fingerprint
Identification System (IAFIS), has recently been of significant concern to Congress,
and will likely remain a concern into the 109th Congress. The USBP uses IDENT
to identify and track illegal aliens. IDENT combines a digital photograph, two flat
fingerprints, and biographical data into two databases which can be used to track
repeat entrants and better identify criminal aliens. The FBI’s IAFIS is an automated
10 rolled fingerprint matching system linked to a database that holds over 40 million
records, including wanted persons, stolen vehicles, deported felons, gang members,
and terrorists. Integration of the two systems is widely regarded as a vital component
of tightening border security, as it would allow frontline CBP inspectors and USBP

CRS-11
agents to access the FBI’s criminal database in order to establish whether
apprehended aliens have outstanding warrants or criminal histories. However,
integration has proved difficult for various technical and organizational reasons. The
conference report to the FY2005 DHS Appropriations Act (P.L. 108-334), H.Rept.
108-774, adopts reporting requirements: requiring DHS to fund the full cost of
achieving real time interoperability between the two systems using the US-VISIT
appropriation; directing the Under Secretary of BTS to report within 90 days of
enactment on the status of the integration effort including steps that will be taken to
integrate IAFIS into IDENT, needed funding, and a timetable for full integration.
Cargo and Transportation-Related Border Control
Cargo and Container Security. Cargo and container security remain issues
of concern. CBP is advancing its cargo security strategy primarily through two
initiatives: the Customs-Trade Partnership Against Terrorism (C-TPAT), and the
Container Security Initiative (CSI). C-TPAT is a public-private partnership aimed
at securing the supply chain from point of origin through entry into the U.S. CSI is
a CBP program stationing CBP officers in foreign sea ports to target and inspect
marine containers before they are loaded onto U.S.-bound vessels. The Government
Accountability Office (GAO) published a report concerning both the CSI and C-
TPAT programs. GAO credited CBP for quickly rolling out the two programs but
noted that CBP needs to develop: systematic human capital plans; performance
measures for accountability and program achievement; and a long-term strategic plan
to successfully manage the two programs.11 The House report (H.Rept. 108-541)
attached to the House-passed version of the DHS Appropriations bill requested a
report from CBP detailing the implementation plan for CSI, and encourages CBP to
develop an integrated network including “all relevant route, inspection, shipment,
and intrusion data.”
The conference report (H.Rept. 108-774) to the DHS Appropriations Act
directs the Under Secretary of BTS to submit a comprehensive report by February 8,
2005 which should include (among other items): the steps DHS has taken to enhance
container security and which BTS entity has primary responsibility for implementing
cargo container security measures; what steps this entity will take to implement
future cargo security standards, policies, procedures, or regulations; and the security
of in-bond shipments.12 Questions for Congress include how the CSI and C-TPAT
programs can be integrated into a wider screening network; and how to maintain the
11 U.S. Government Accountability Office (GAO), Container Security: Expansion of Two
Key Programs will Require Greater Attention to Critical Success Factors
, GAO-03-770,
July 2003, pp. 2-4.
12 The term in-bond is used to describe shipments which are being provisionally admitted
into the United States under CBP supervision without having to immediately pay the duties
associated with the shipment (the shipments are not yet entered into the commerce of the
United States). The shipment must be destined for storage in a bonded warehouse or for
transshipment. Duties on in-bond shipments are collected when the merchandise is
withdrawn from the bonded warehouse (entered into the commerce of the United States).
The importer or the broker must put up a customs bond to cover the amount of duty that will
eventually be due on the shipment.

CRS-12
security of shipments once they enter the country and are transported from the ports
of entry to their final destination within the country. Also, CSI focuses on containers;
and there are other forms of marine cargo including liquid or dry bulk; break bulk;
and vehicles. Congress may wish to consider if there should be some type of CSI-
type pre-inspection of these cargoes as well.
Targeting and Risk Assessment. CBP uses a risk assessment tool, the
Automated Targeting System(ATS) to focus inspections on high-risk shipments. ATS
automatically sorts shipments according to risk based on specific weighted rule sets,
and assigns each shipment a risk score. The higher the score, the more attention a
shipment requires, and the greater the chance it will be targeted for inspection. While
many observers note the importance of developing sophisticated targeting
mechanisms others have raised concerns, including GAO which recently noted that
while CBP’s targeting strategy incorporated some elements of risk management, it
lacked a comprehensive set of criticality, vulnerability and risk assessments, and does
not follow certain recognized modeling practices.13 Potential questions for Congress
concerning risk assessments in general include the efficacy of the targeting
mechanisms like the ATS; how this particular mechanism might be integrated into
a broader screening network; the potential applicability of this mechanism to
screening domestically shipped cargo; and how it might be paired with random
inspections to identify potential gaps.
Cargo Inspection Technology. CBP uses a variety of inspection
technologies to assist inspectors in detecting and identifying suspicious cargo. These
technologies are referred to generally as non-intrusive inspection (NII) technology,
and include both gamma-ray (such as the Vehicle and Cargo Inspection System),
(VACIS) and x-ray systems, among others. CBP also uses radiation detection
devices, both personal (PRDs) and large-scale radiation portal monitors (RPMs).
Potential questions for Congress regarding these technologies include how they could
possibly be integrated with a broader network of screening capabilities not just at
ports of entry, but possibly used to improve the screening of domestically shipped
cargoes; and how information gleaned from security risks identified during the
screening of goods might be incorporated into a larger screening network; how these
technologies might be inserted into the flow of cargo through ports and transportation
nodes to screen more goods; and how best to systematically develop and deploy the
next generation of cargo inspection technology.
Privatized Airport Screening Program. Of possible issue to Congress is
the number of airports that may request to opt-out of the federal screener program
after November 18, 2004. The conference report (H.Rept. 108-774) to the FY2005
DHS Appropriations Act requires TSA to report on: cost savings resulting from opt-
out; the number and location of each airport applying for participation under the opt-
out program; the decision by the Administrator on the application; if an application
by an airport is not accepted, the reasons why the application was not approved; and
13 U.S. Government Accountability Office, Homeland Security: Preliminary Observations
on Efforts to Target Security Inspections of Cargo Containers
, GAO-04-325T, Dec. 17,
2003.

CRS-13
the results of the competitive acquisition for contract screening services at those
airports whose applications have been approved.
Computer Assisted Passenger Pre-screening System (CAPPS) and
“Secure Flight”. Currently, air carriers are responsible for implementing the
CAPPS system at airports. TSA had been developing a more advanced passenger
pre-screening system called CAPPS-II. However, due to mounting privacy concerns
and operational problems, TSA announced it was scrapping plans to implement
CAPPS-II in August 2004.14 Instead, TSA Administrator David M. Stone testified
that CAPPS-II is being “reshaped and repackaged” to address the privacy issues.15
TSA recently announced the replacement program, entitled “Secure Flight,” which
will differ from CAPPS II because it focuses on identifying terrorists rather than on
serving other law enforcement purposes.16 One of the 9/11 Commission Report
recommendations suggested that TSA take over the existing CAPPS system from the
airlines until whatever program that replaces it becomes operational. This would
probably add to TSA screener workload and may result in an increased need for
funds within TSA. Possible issues for Congress include whether current
appropriations levels are adequate for the “reshaping” of CAPPS-II into the recently
announced “Secure Flight” program, and whether more funds should be appropriated
for TSA if in fact the agency takes over the implementation of the existing CAPPS
system from air carriers.
The conferees to the FY2005 DHS Appropriations Act (P.L. 108-334) agreed
to provide $35 million for Secure Flight and noted that an additional $10 million is
provided under a separate TSA account for crew vetting. The conferees note their
concern that 90 days may not be sufficient to plan, test, and analyze the system before
its full implementation. Therefore, the conferees encourage the TSA to focus first
on getting watchlists operational and expect TSA to cooperate with GAO in its
review of Secure Flight. The conferees further note that DHS is proposing to check
all passengers using the new Secure Flight system as recommended by the 9/11
Commission.
Subtitle B of Title IV of The Intelligence Reform and Terrorism Prevention Act
of 2004 (P.L. 108-XX) essentially implements the 9/11 Commission
recommendations to improve passenger prescreening for both domestic and
international flights, and improve the use of ‘no-fly’ and ‘automatic selectee’ lists
while ensuring that passenger prescreening measures do not violate privacy or civil
liberties.
Explosive Detection Systems (EDS) and Explosive Trace Detection
(ETD). Explosive detection remains an issue of concern to Congress. The FY2005
DHS Appropriations Act provided $180 million for the purchase of EDS/ETD
14 Chris Strohm, “DHS Scraps Computer Pre-Screening System, Starts Over,” Government
Executive Online
, July 15, 2004, at [http://www.govexec.com/dailyfed/0704/071504c1.htm].
15 U.S. Congress, Senate Committee on Commerce, Science, and Transportation,
Nominations, 108th Cong., 2nd sess., July 13, 2004.
16 U.S. Department of Homeland Security, Transportation Security Administration, “TSA
to Test New Passenger Pre-Screening Program,” press release, Aug. 26, 2004.

CRS-14
machines for screening checked baggage. Subtitle B of the Intelligence Reform and
Terrorism Prevention Act of 2004 contains a provision implementing the 9/11
Commission recommendation to give priority attention to screening passengers and
their carry-on baggage for explosives. Further, this subtitle also contains provisions,
requiring TSA to develop a plan for implementing enhanced explosive detection
equipment. The 9/11 Commission recommended that the TSA expedite installation
of in-line baggage screening systems. Potential issues for Congressional debate
could include the adequacy of current funding levels, and the equity of cost-sharing
for in-line EDS integration.
Air Cargo Security. Air cargo security remains an issue of significant
concern to Congress. Most recently, this issue was addressed in the 9/11
Commission recommendations, the FY2005 DHS Appropriations Act, and the
Intelligence reform legislation. P.L. 108-334 required (among other things) that
TSA: “research, develop, and procure certified systems to inspect and screen air
cargo on passenger aircraft at the earliest date possible, to enhance the known shipper
program, and to triple the percentage of cargo inspected on passenger aircraft. TSA
shall require cargo screened on passenger aircraft to meet the tripling threshold as
measured by the average percentage of cargo inspected per day, per airline, per
airport.” Additionally, the conferees (in H.Rept. 108-774) direct TSA to work more
aggressively to strengthen air cargo security by: strengthening the known shipper
program to include regular checks; working with indirect carriers to ensure their
compliance with security directives; and validating indirect carriers’ security
measures where the carriers consolidate freight and transport it to passenger and all
cargo aircraft. Subtitle C of Title IV of the Intelligence Reform and Terrorism
Prevention Act of 2004 concerns air cargo security and requires TSA to develop
better technologies for air cargo security; authorizes funding for equipment, research
and development; requires DHS to finalize its air cargo requirements within eight
months; and requires a pilot program using blast-resistant containers for suspicious
cargo. Issues for Congress could include further debate over new approaches to air
cargo security; levels of physical inspection of cargo; and improving efforts to
identify and screen cargo.
Non-Aviation Transportation Security. In the immediate aftermath of the
9/11 attacks much focus understandably has been placed on aviation security issues.
However, after the March 2004 train bombings in Madrid, Spain, attention has turned
to the security of non-aviation modes of transportation. For instance, P.L. 108-334,
the FY2005 DHS Appropriations Act provided specific funding amounts for TSA,
and several other DHS offices, for rail security. TSA is the federal agency tasked
with ensuring the security of the nation’s transportation systems, and is responsible
for the development of the national transportation security plan. The IRTPA
addresses one of the 9/11 commission recommendations by requiring the Secretary
of DHS, jointly with the Secretary of Transportation, to develop and implement a
national strategy for transportation security which shall include (among other items):
the identification and evaluation of all transportation assets in the country; risk-based
priorities and realistic deadlines for addressing security needs; and a forward-looking
strategic plan setting forth the roles and responsibilities of federal, state, regional,
local authorities as well as private entities. The initial strategy is to be delivered to
Congress no later than April 15, 2005. Potential issues for Congress could include
the division of responsibilities for transportation security; how the national

CRS-15
transportation security plan will be integrated with existing plans and security
initiatives such as the Air Cargo Strategic plan, administered by TSA; the maritime
security plans required by the Maritime Transportation Security Act, administered by
the Coast Guard; and the forthcoming National Cargo Security Strategy, currently
being developed by DHS.
Coast Guard Deepwater Program. The Deepwater program is a planned
22-year, multibillion-dollar project to replace or modernize 93 aging Coast Guard
ships and 207 aging Coast Guard aircraft. The Deepwater program presents several
potential issues for Congress. One potential issue concerns the mission requirements
to be met by the program, which were established in the late 1990s and reflect a
pre-9/11 understanding of the Coast Guard’s future mission requirements. A 2004
RAND Corporation report on the Deepwater program states that the baseline
Deepwater program “will not provide the USCG with adequate assets and
capabilities to fulfill demands for traditional missions and emerging responsibilities.
To satisfy these demands, the USCG will need the capabilities of twice the number
of cutters and 50% more air vehicles than it has been planning to acquire over the
next two decades.” The Coast Guard is reassessing the program’s mission
requirements to take post-9/11 mission demands into account. Coast Guard officials
have stated that existing deepwater-capable assets are wearing out more quickly than
anticipated, suggesting that new assets might need to be procured sooner than
planned.
Coast Guard Legacy and Replacement Assets. Both the Senate and
House Committee reports to the FY2005 DHS Appropriations bill voiced concern
over the condition of Coast Guard legacy assets. The Senate cited a GAO report
which noted that Coast Guard assets are being used 40% more intensively than
originally anticipated when the Deepwater program was conceived, resulting in an
accelerated deterioration. The Senate report noted that the Coast Guard is expending
more Deepwater funding on maintaining legacy assets and less on acquiring
replacement assets. The House Committee, conversely, is concerned that the Coast
Guard is having problems maintaining its legacy assets due to a perceived need to
expend all available funding on Deepwater procurement. The House Committee
requires the Coast Guard to report, within 30 days of enactment of the Appropriations
Act, its plans for maintenance of all legacy vessels and aircraft, including the entity
responsible for the maintenance and the estimated costs. Further, the Coast Guard
is directed to submit quarterly reports on its legacy maintenance plan beginning with
the submission of the President’s FY2006 budget. The conferees adopted this House
Committee report language.
Coast Guard — Automatic Identification System. A potential issue for
Congress concerns the Automatic Identification System (AIS) — a vessel-tracking
system that the Coast Guard wants to implement as a key part of its strategy for
achieving maritime domain awareness (MDA) at each major port. AIS is a system
that will identify the ship, its size, and its cargo before it enters an American seaport.
Questions include the availability of a radio frequency needed for AIS and whether
the system as currently planned will adequately cover all categories of ships that
might pose a threat to U.S. homeland security. The FY2005 DHS Appropriation Act
(P.L. 108-334) provides $24 million for AIS.

CRS-16
Non-Homeland Security Missions of the Coast Guard. A key potential
issue is whether the Coast Guard’s resources are sufficient to adequately perform
both its homeland and non-homeland security missions (fisheries enforcement,
marine environmental protection, and search and rescue, for example). The terrorist
attacks of September 11, 2001, increased Coast Guard requirements for
homeland-security missions without directly reducing requirements for other
missions. After September 11, 2001, the Coast Guard significantly increased
homeland security operations while reducing operations in other missions. GAO, in
reports and testimony on this topic, have noted the reduced number of Coast Guard
operating hours devoted to non-homeland security missions, and have expressed
concerns regarding the Coast Guard’s ability to link application of resources to
performance levels achieved for various missions.
Staffing. Staffing of primary border agencies may continue to be of concern
to Congress. The conference report (H.Rept. 108-774) to the FY2005 DHS
Appropriations Act requires CBP to submit a comprehensive staffing plan
immediately, and to submit an updated plan no later than 90 days after enactment.
The Intelligence Reform and Terrorism Prevention Act (IRTPA), contains provisions
authorizing, subject to the availability of appropriations, no less than 2,000 full-time
Border Patrol agents, and 800 full-time Immigration and Customs Enforcement
Inspectors, in fiscal years 2006-2010. With regard to the authorized increase in
Border Patrol agents, the IRTPA further stipulates that no less than 20% of the net
increase in agents shall be assigned to the northern border in each fiscal year.

CRS-17
Appendix:
Provisions Relating to Border and Transportation
Security in the 9/11 Commission Report,
Intelligence Reform Bill, and HSPD-11
This appendix provides summaries of the BTS -related provisions of the 9/11
Commission recommendations,17 the Intelligence Reform and Terrorism Prevention
Act (IRTPA) of 2004, and a summary of HSPD-11. HSPD-11 is the
Administration’s response to one of the 9/11 Commission recommendations, and
significant portions of the IRTPA similarly reflect these recommendations.
Oversight of the changes made by the IRTPA, and legislative activity surrounding
those 9/11 Commission recommendations that were not included are likely to be of
interest to the 109th Congress.
9/11 Commission Recommendations
The 9/11 commission made numerous recommendations relating to border and
transportation security. These recommendations include (but are not limited to the
following):
! the United States should combine terrorist travel intelligence,
operations, and law enforcement in a strategy to intercept terrorists,
find terrorist travel facilitators and constrain terrorist mobility;
! the U.S. border security system should be integrated into a larger
network of screening points that include our transportation system
and access to vital facilities, such as nuclear reactors;
! the President should direct the Department of Homeland Security to
lead the effort to design a comprehensive screening system,
addressing common problems and setting common standards with
systematic goals in mind (see the summary of HSPD-11 below);
! the Department of Homeland Security, properly supported by
Congress, should complete, as quickly as possible, a biometric entry-
exit system, including a single system for speeding qualified
travelers, [i]t should be integrated with the system that provides
benefits to foreigners seeking to stay in the United States;
! the U.S. government ... should do more to exchange terrorist
information with trusted allies, and raise U.S. and global border
security standards for travel and border crossing over the medium
and long term through extensive international cooperation;
! the federal government should set standards for the issuance of birth
certificates and sources of identification, such as drivers licenses;
! the U.S. government should identify and evaluate the transportation
assets that need to be protected, set risk-based priorities for
defending them, select the most practical and cost-effective ways of
17 National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission
Report: Final Report of the National Commission on Terrorist Attacks Upon the United
States
, (Washington, DC: U.S. Government Printing Office, 2004).

CRS-18
doing so, and then develop a plan, budget, and funding to implement
the effort, [t]he plan should assign roles and missions to relevant
authorities (federal, state, regional, and local) and to private
stakeholders;
! improved use of “no-fly” and “automatic selectee” lists should not
be delayed while the argument about a successor to CAPPS
continues, [t]his screening function should be performed by TSA,
and it should utilize the larger set of watchlists maintained by the
federal government, [a]ir carriers should be required to supply the
information needed to test and implement this new system;
! the TSA and the Congress must give priority attention to improving
the ability of screening checkpoints to detect explosives on
passengers, ... each individual selected for special screening should
be screened for explosives; and
! the TSA should conduct a human factor study ... to understand
problems in screener performance and set attainable objectives for
individual screeners and for the checkpoints where screening takes
place.
HSPD-11
The President issued Homeland Security Presidential Directive (HSPD)-11 on
August 27, 2004.18 This directive was issued in response to one of the 9/11
Commission recommendations. HSPD-11 concerns “comprehensive terrorist-related
screening procedures” which are defined in the directive to mean: “the collection,
analysis, dissemination, and use of information related to people, cargo, conveyances,
and other entities and objects that pose a threat to homeland security.” HSPD-11
states that it is the policy of the U.S. to enhance terrorist-related screening through
comprehensive, coordinated procedures; while safeguarding legal rights, freedoms,
civil liberties, and information privacy; in a manner that facilitates the efficient
movement of people, cargo, conveyances and associated activities of commerce.
HSPD-11 further states that this comprehensive and coordinated approach is to be
implemented in “immigration, law enforcement, intelligence, counterintelligence, and
protection of border, transportation systems, and critical infrastructure.”
HSPD-11 required the Secretary of Homeland Security (in coordination with the
heads of all the appropriate departments) to submit to the President a report outlining
a strategy to enhance the effectiveness of terrorist-related screening activities, and
developing comprehensive, coordinated, and systematic screening procedures. This
report was submitted to the President on November 9, 2004.19 HSPD-11 required an
additional report (due November 24, 2004) describing a ‘prioritized investment and
implementation plan’ for the policies and activities outlined by the first report.
Further, the Secretary of DHS is required to provide a status report on the
18 U.S. President George W. Bush, Homeland Security Presidential Directive/HSPD-11,
Aug. 27, 2004, at [http://www.whitehouse.gov/news/releases/2004/08/20040827-7.html].
19 Justin Rood, “Screening Report Fulfills Bush Order to Enhance Terrorist Net, Official
Say,” CQ Homeland Security — Border Security, Nov. 15, 2004.

CRS-19
implementation of the plan six months after the issuance of the directive (February
of 2005).
Intelligence Reform and Terrorism Prevention Act of 2004
The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) has
numerous BTS-related provisions, many of which embody some of the
recommendations made by the 9/11 Commission. Title IV of the act relates to
Transportation Security. Subtitle A of Title IV implements the 9/11 commission
recommendations by requiring the Secretary of DHS, jointly with the Secretary of
Transportation, to develop and implement a national strategy for transportation
security.
Subtitle B of Title IV implements the 9/11 Commission recommendations to
improve passenger prescreening for both domestic and international flights, and
improve the use of no-fly and automatic selectee lists while ensuring that the
watchlists do not violate privacy or civil liberties. Subtitle B also contains a
provision implementing the 9/11 Commission recommendation to give priority
attention to screening passengers and their baggage for explosives. Further, this
subtitle also contains provisions: requiring TSA to develop a plan for implementing
enhanced explosive detection equipment; preserving the anonymity of federal air
marshals; improving screener performance; enhancing in-line baggage screening;
improving the security of pilot licenses; improving biometric technology and
technology to protect against the threat of shoulder fired missiles.
Subtitle C of Title IV concerns air cargo security and: requires TSA to develop
better technologies for air cargo security; authorizes funding for equipment, research
and development; requires DHS to finalize its air cargo requirements within eight
months; and requires a pilot program using blast-resistant containers. Subtitle D of
Title IV concerns maritime security and requires TSA to begin screening cruise ship
passengers and crew against consolidated terrorist databases within 180 days, and
requires maritime-security plans to be submitted in a timely fashion.
Title V contains provisions relating to border protection, immigration and visa
matters. Subtitle A authorizes pilot programs on the northern and southern borders
which would test advanced technologies to increase border security between ports of
entry. Subtitle B requires the Secretary of DHS to submit a plan to the President and
the Congress to use remotely piloted aircraft to surveil the southwest border. This
subtitle also authorizes funding to implement this plan as a pilot program. Subtitle
B also requires the Secretary of DHS to increase staffing each year during fiscal years
2006-2010 (subject to the availability of appropriations) by the following amounts:
the number of Border Patrol agents by not less than 2,000 each year; the number of
Immigration and Customs Enforcement agents by not less than 800 agents per year;
and the number of detention bed spaces by not less than 8,000 per year. Subtitle C
contains provisions: requiring in-person interviews of certain applicants for
nonimmigrant visas; requiring applicants for nonimmigrant visas to completely and
accurately provide information requested in the application; and making the
revocation of a nonimmigrant visa grounds for removal. Subtitle D contains
provisions concerning the smuggling and harboring aliens, the deportation of aliens
who receive military training from or on behalf of designated terrorist organizations.

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Subtitle E contains provisions concerning the inadmissibility and deportation of
aliens who commit acts of torture, extrajudicial killings, or other atrocities abroad.
Title VII is entitled the 9/11 Commission Implementation Act of 2004, and
Subtitle B contains a number of BTS-related provisions. Subtitle B establishes the
Human Smuggling and Trafficking Center, and an interagency program devoted to
countering terrorist travel; and requires training improvements for border, consular,
and immigration officers so they can better detect terrorist travel indicators. The
provisions in Subtitle B also authorize an additional 150 consular officers in each of
the fiscal years 2006-2010; requires the Secretary of DHS in consultation with the
Director of the National Counter-Terrorism Center (NCC) to establish a program
overseeing DHS’s terrorist travel responsibilities; and establishes a Visa and Passport
Security Program within the Bureau of Diplomatic Security at the Department of
State. Further Subtitle B provisions call for the accelerated deployment of the
biometric entry-exit system, and for individuals entering into the U.S. to bear a
passport or other citizenship document (including U.S. citizens, and visitors from
Canada and other Western Hemisphere countries). Subtitle B, also requires DHS to
issue regulations on minimum identification standards for passengers boarding
domestic flights; includes placing more U.S. immigration experts at foreign airports,
and increases the number of airports where U.S.-bound passengers will be pre-
inspected.