IN THE SENATE OF THE UNITED STATES
July 2, 2020
Mr. Peters introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To establish a National Commission on United States Counterterrorism Policy, and for other purposes.
This Act may be cited as the
National Commission on United States Counterterrorism Policy Act of 2020.
National Commission on United States Counterterrorism Policy
There is established an independent commission within the legislative branch to be known as the
National Commission on United States Counterterrorism Policy (in this section referred to as the
The Commission shall—
review United States counterterrorism objectives, priorities, capabilities, policies, programs, and activities; and
assess how to adapt and prioritize such policies, programs, and activities to ensure such policies, programs, and activities—
employ an appropriate mix of available instruments of national power;
comply with the rule of law and respect for civil rights, civil liberties, and human rights;
appropriately focus on existing and emerging terrorism risks; and
are appropriately balanced relative to the pursuit of other United States interests in an era when the United States faces a diverse range of threats from domestic and international terrorism, a dynamic number of political, economic, and military competitions around the world, and challenges within the United States.
In carrying out subsection (b), the Commission shall study the following:
The evolution of threats to the United States since September 11, 2001, from international and domestic terrorism, including an assessment of potential connections between such threats, and the risks such threats pose relative to other threats to the United States and United States national interests.
Major lessons learned from United States counterterrorism objectives, priorities, capabilities, policies, programs and activities since September 11, 2001, and the relevance of such lessons for ongoing and future counterterrorism objectives, priorities, policies, programs, and activities.
Ongoing United States counterterrorism objectives, priorities, capabilities, policies, programs, and activities, including an assessment of the following:
Any tradeoffs that exist between such objectives, priorities, capabilities, policies, programs, and activities.
The integration, programmatically and organizationally, of such objectives, priorities, capabilities, policies, programs, and activities into wider United States foreign and domestic policy.
The instruments used to advance counterterrorism objectives and the identification of new or modified instruments, if appropriate.
Any impacts on civil rights and civil liberties in the United States and internationally recognized human rights abroad.
Any impacts on the counterterrorism policies of partner countries.
Congressional oversight of such objectives, priorities, capabilities, policies, programs, and activities.
Whether counterterrorism resources are appropriately balanced across the range of terrorist threats facing the United States and across the range of counterterrorism programs and activities conducted by the United States Government.
The legal and policy frameworks for counterterrorism programs and activities in the United States and abroad, including adherence to such frameworks.
The tradeoffs the United States may face as it seeks to balance counterterrorism objectives and priorities with a growing number of political, economic, and military competitions around the world and challenges at home, and how to mitigate any risks such tradeoffs might pose.
Potential new or emerging challenges of conducting counterterrorism operations in contested environments, where strategic state competitors such as Russia, China, or Iran operate.
The state of United States counterterrorism partnerships, including the willingness, capacity, and capability of United States counterterrorism partners to combat shared threats.
The policies and operations of private entities, including the defense industry and technology and media entities, that have implications for domestic terrorism and international terrorism, including implications of involvement of private entities in United States counterterrorism policies, programs, and activities.
The effects of United States counterterrorism objectives, priorities, capabilities, policies, programs, and activities on threats from domestic terrorism and international terrorism.
Ongoing efforts by the executive branch to measure the effectiveness of counterterrorism policies, programs, and activities through net assessments and evaluations of lessons learned, including an assessment of efforts to address factors that contribute to terrorist recruitment and radicalization.
Recommendations on how best to adapt United States counterterrorism objectives, priorities, capabilities, policies, programs, and activities to address existing and emerging terrorism risks on the basis of the areas of study specified in this subsection and any other findings the Commission determines relevant.
The Commission shall be composed of 14 commissioners, to be appointed as follows:
One commissioner appointed by the Chairman, with the concurrence of the ranking member, of each of the appropriate congressional committees.
A Chairperson, appointed by the Speaker of the House of Representatives, with the concurrence of the minority leader of the House of Representatives.
A Vice-Chairperson, appointed by the majority leader of the Senate, with the concurrence of the minority leader of the Senate.
Individuals appointed to the Commission shall be United States persons with relevant counterterrorism expertise and experience in diplomacy, law enforcement, the Armed Forces, law, public administration, the legislative branch, intelligence, academia, human rights, civil rights, or civil liberties. The leadership of the Senate and the House of Representatives shall coordinate with the appropriate congressional committees to ensure that Commission membership represents a variety of expertise in such fields. At least 1 of the commissioners shall, in addition to relevant counterterrorism expertise, possess a civil rights or civil liberties background and 1 of the commissioners shall, in addition to relevant counterterrorism expertise, possess an international human rights background.
An individual appointed to the Commission may not be—
a Member of Congress, including a Delegate or Resident Commissioner;
an officer or employee of any branch of the Federal Government;
an employee or official of any State, territory, county, or municipality in the United States; or
a registered lobbyist.
Conflicts of interest
An individual appointed to the Commission shall disclose any financial gains from private sector employment conducted in support of United States counterterrorism policies, programs, or activities at any time since September 11, 2001.
Deadline for appointment of commissioners
Individuals appointed to the Commission shall be appointed not later than 30 days after the date of the enactment of this Act.
Period of appointment
Each commissioner and the Chairperson and Vice-Chairperson shall be appointed for the life of the Commission.
Any vacancy in the Commission shall not affect its powers and duties and shall be filled in the same manner as the original appointment within 30 days of such vacancy occurring.
Commissioners and the Chairperson and Vice-Chairperson shall serve without pay.
Commissioners and the Chairperson and Vice-Chairperson shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code, while away from their homes or regular places of business in performance of services for the Commission.
Not later than 30 days after the appointment of two-thirds of the members of the Commission, including the Chairperson or Vice-Chairperson, the Commission shall hold an initial meeting to develop and implement a schedule for completion of the review and assessment under subsection (b) of the areas of study specified in subsection (c) and the report required under subsection (m)(2).
The Commission shall meet at the call of the Chairperson or a majority of commissioners.
Eight members shall constitute a quorum and members shall have the option to vote by proxy.
In conducting the review, assessment, and study required under this section, the Commission shall consult with relevant experts in the Federal Government (including relevant Members of Congress and congressional staff), academia, law, civil society, and the private sector.
Powers of the commission
Hearings and evidence
For the purposes of carrying out this section, the Commission may—
hold classified or unclassified hearings, take testimony, receive evidence, and administer oaths; and
subject to paragraph (3), require, by subpoena authorized by majority vote of the Commission and issued under the signature of the Chairperson or any member designated by a majority of the Commission, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission may determine advisable.
Notification of committees
If the Commission is unable to obtain testimony or documents needed to conduct its work, the Commission shall notify the appropriate congressional committees and appropriate investigative authorities.
In the case of contumacy or failure to obey a subpoena issued under paragraph (1)(B), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.
In the case of any failure of any witness to comply with any subpoena or to testify when summoned under authority of this section, the Commission may, by majority vote, certify a statement of fact constituting such failure to the appropriate United States attorney, who may bring the matter before the grand jury for its action, under the same statutory authority and procedures as if the United States attorney had received a certification under sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192 through 194).
Limitations on subpoena authority
With respect to the subpoena authority under paragraph (1)(B), the Commission—
may only issue a subpoena to a member of Federal, State, local, Tribal, or territorial government;
may reference unclassified documents and information obtained through a subpoena when conducting interviews to further the Commission’s objectives and may include such documents and information in the final report, but may not otherwise share, disclose, publish, or transmit in any way any information obtained through a subpoena to another Federal department or agency, any agency of a State, local, Tribal, or territorial government, or any international body; and
shall comply with requirements for the issuance of a subpoena issued by a United States district court under the Federal Rules of Civil Procedure.
The Commission shall—
hold public hearings and meetings;
hold classified hearings or meetings, if necessary to discuss classified material or information; and
provide an opportunity for public comment, including sharing of research and policy analysis, through publication in the Federal Register of a solicitation for public comments during a period to last not fewer than 45 days.
Authority to use the United States mails
The Commission may use the United States mails in the same manner and under the same conditions as other Federal agencies.
Documents, statistical data, and other such information
Upon written request by the Chairperson, Vice-Chairperson, or any commissioner designated by a majority of the Commission, an executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality of the Federal Government—
shall provide reasonable access to documents, statistical data, and other such information the Commission determines necessary to carry out its duties; and
shall, to the extent authorized by law, furnish any information, suggestions, estimates, and statistics the Commission determines necessary to carry out its duties.
Authority to accept gifts
The Commission may accept, use, and dispose of gifts or donations of services, goods, and property from non-Federal entities for the purposes of aiding and facilitating the work of the Commission. The authority provided in this paragraph does not extend to gifts of money in any form, or any gifts from private sector entities with a financial interest in counterterrorism products or services, as determined by the Commission. The Commission shall publish as an addendum to the report under subsection (m)(2) a list of all gifts received and the individual or entity from which the gift was received.
Authority to contract
The Commission is authorized to enter into contracts, leases, or other legal agreements with Federal and State agencies, Indian Tribes, Tribal entities, private entities, and individuals for the conduct of activities necessary to the discharge of its duties.
A contract, lease, or other legal agreement entered into by the Commission under this paragraph may not extend beyond the date of termination of the Commission.
Inapplicability of FACA
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the activities of the Commission under this section.
Office space and administrative support
The Architect of the Capitol shall make office space available for day-to-day activities of the Commission and for scheduled meetings of the Commission. Upon request, the Architect of the Capitol shall provide, on a reimbursable basis, such administrative support as the Commission requests to carry out its duties.
Assistance from Federal agencies
General services administration
The Administrator of General Services shall provide to the Commission on a reimbursable basis administrative support and other services as the Commission requests to carry out its duties.
Federal agencies may provide to the Commission such services, funds, facilities, and other support services as may be determined advisable.
The Chairperson, in consultation with the Vice-Chairperson, and in accordance with rules agreed upon by the Commission, may appoint a staff director.
With the approval of the Commission, the staff director may appoint such employees as the staff director determines necessary to enable the Commission to carry out its duties.
The staff director shall ensure employees of the Commission have relevant counterterrorism expertise and experience, including in areas such as in diplomacy, law enforcement, the Armed Forces, law, public administration, the legislative branch, intelligence, academia, human rights, civil rights, or civil liberties.
Appointments and compensation
The Commission may appoint and fix the compensation of the staff director and other employees 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 such title relating to classification and General Schedule pay rates, except that the rate of pay for the staff director may exceed the equivalent of that payable to a person occupying a position at level IV of the Executive Schedule and the rate of pay for any other employee of the Commission may exceed the equivalent of that payable to a person occupying a position at level V of the Executive Schedule.
Experts and consultants
With the approval of the Chairperson, the staff director may procure temporary and intermittent services under section 3109(b) of title 5, United States Code.
Detail of government employees
Upon the request of the Commission, the head of any Federal agency may detail, without reimbursement, any of the personnel of such agency to the Commission to assist in carrying out its duties. Any such detail shall not interrupt or otherwise affect the civil service status or privileges of such personnel.
Notwithstanding section 1342 of title 31, United States Code, the Commission may accept and use voluntary and uncompensated services as the Commission determines necessary.
Security clearances for commission members and staff
The appropriate Federal agencies or departments shall cooperate with the Commission in expeditiously providing to the commissioners, including the Chairperson and Vice-Chairperson, and the staff director and employees appropriate security clearances to the extent possible pursuant to existing procedures and requirements, except that no person shall be provided with access to classified information without the appropriate security clearances.
There is authorized to be appropriated $4,000,000 to the Commission, to remain available until the date of termination, to carry out this Act.
The Commission shall terminate on the date that is 180 days after the date on which the Commission submits the report required by subsection (m)(2).
Briefings and Report
The Chairperson, Vice-Chairperson, and staff director of the Commission shall provide quarterly briefings to the appropriate congressional committees, of which not less than 2 briefings shall be for Members of Congress.
Not later than 540 days after the initial meeting of the Commission under subsection (e), the Commission shall submit to the appropriate congressional committees an unclassified report that includes the following:
The findings, conclusions, and recommendations of the Commission pursuant to the review and assessment under subsection (b) and areas of study specified in subsection (c).
Summaries of the input and recommendations of each individual with whom the Commission consulted in accordance with subsection (f), attributed in accordance with the preference expressed by such individual.
The report required under this paragraph may include a classified annex.
Not later than 7 days after the date on which the Commission submits the report required under this subsection to the appropriate congressional committees, the Commission shall make publicly available the report required under this paragraph, with the exception of any classified annex under subparagraph (B).
In this section:
Appropriate congressional committees
The term appropriate congressional committees means—
the Committee on Foreign Relations, the Select Committee on Intelligence, the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Committee on Finance of the Senate; and
the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, the Committee on Armed Services, the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Financial Services of the House of Representatives.
The term domestic terrorism has the meaning given such term in section 2331 of title 18, United States Code.
The term Indian Tribe has the meaning given the term Indian tribe in section 4 of the Indian Self-Determination and Education Assistance Act of 1975 (25 U.S.C. 5304).
The term international terrorism has the meaning given such term in section 2331 of title 18, United States Code.
The term registered lobbyist means a lobbyist described in section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1603).
United States person
The term United States person has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).