Department of Homeland Security Appropriations: A Summary of Congressional Action for FY2013

William L. Painter Analyst in Emergency Management and Homeland Security Policy

The Department of Homeland Security (DHS) appropriations bill includes funding for all components and functions of DHS, including Customs and Border Protection (CBP); Immigration and Customs Enforcement (ICE); the Transportation Security Administration (TSA); Coast Guard (USCG); Secret Service (USSS); the National Protection and Programs Directorate (NPPD), which includes Infrastructure Protection and Information Security (IPIS) and the Federal Protective Service (FPS); the Office of Health Affairs (OHA); the Federal Emergency Management Agency (FEMA); United States Citizenship and Immigration Services (USCIS); the Federal Law Enforcement Training Center (FLETC); the Science and Technology directorate (S&T); the Domestic Nuclear Detection Office (DNDO); departmental management, Analysis and Operations (A&O), and the Office of the Inspector General (OIG).

For FY2013, the Administration requested $39.510 billion in adjusted net discretionary budget authority for DHS, as part of an overall budget of $59.501 billion (including fees, trust funds, and other funding that is not appropriated or does not score against the budget caps). H.R. 5855, the House-passed DHS appropriations bill in the 112th Congress, would have provided $39.114 billion in adjusted net discretionary budget authority, while S. 3126, its Senate-reported counterpart in the 112th Congress, would have provided $39.514 billion.

Congress did not enact final FY2013 appropriations legislation prior to the end of FY2012. From October 1, 2012, through March 26, 2013, the federal government (including DHS) operated under the terms of P.L. 112-175, a part-year continuing resolution. While operating under this resolution, two major events impacted the DHS budget. First, Hurricane Sandy struck the east coast of the United States, which started a legislative process that resulted in enactment of legislation that provided $50.7 billion in disaster relief and emergency appropriations, including $12.072 billion for DHS, and $9.7 billion in additional borrowing authority for the National Flood Insurance Program. Weeks later, On March 1, 2013, an across-the-board reduction in budget authority, or sequestration, was ordered as required under the terms of the Budget Control Act (P.L. 112-25). The Office of Management and Budget’s sequestration report indicated that DHS would lose $3.191 billion as a result of sequestration.

On March 26, 2013, the President signed into law P.L. 113-6, the FY2013 Consolidated and Further Continuing Appropriations Act. Division D of that act is the Department of Homeland Security Appropriations Act, 2013, which includes $39.646 billion in adjusted net discretionary budget authority for DHS. Two across-the-board cuts unrelated to the March 1 sequestration that were included in the final legislation to ensure the bill complies with discretionary budget caps reduced this by $54 million to $39.592 billion.

The above enacted funding levels for FY2013 are subject to sequestration cuts. As the federal government was operating under a continuing resolution at the time sequestration was ordered, the final budget impact cannot be authoritatively stated until the Office of Management and Budget provides further information.


Date of Report: April 22, 2013
Number of Pages: 17
Order Number: R42557
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Multiyear Procurement (MYP) and Block Buy Contracting in Defense Acquisition: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

Moshe Schwartz
Specialist in Defense Acquisition

Multiyear procurement (MYP) and block buy contracting (BBC) are special contracting mechanisms that Congress permits the Department of Defense (DOD) to use for a limited number of defense acquisition programs. Compared to the standard or default approach of annual contracting, MYP and BBC have the potential for reducing weapon procurement costs by several percent.

Under annual contracting, DOD uses one or more contracts for each year’s worth of procurement of a given kind of item. Under MYP, DOD instead uses a single contract for two to five years’ worth of procurement of a given kind of item without having to exercise a contract option for each year after the first year. DOD needs congressional approval for each use of MYP. There is a permanent statute governing MYP contracting—10 U.S.C. 2306b. Under this statute, a program must meet several criteria to qualify for MYP.

Compared with estimated costs under annual contracting, estimated savings for programs being proposed for MYP have ranged from less than 5% to more than 15%, depending on the particulars of the program in question, with many estimates falling in the range of 5% to 10%. In practice, actual savings from using MYP rather than annual contracting can be difficult to observe or verify because of cost growth during the execution of the contract due to changes in the program independent of the use of MYP rather than annual contracting.

BBC is similar to MYP in that it permits DOD to use a single contract for more than one year’s worth of procurement of a given kind of item without having to exercise a contract option for each year after the first year. BBC is also similar to MYP in that DOD needs congressional approval for each use of BBC. BBC differs from MYP in the following ways:

• There is no permanent statute governing the use of BBC.
• There is no requirement that BBC be approved in both a DOD appropriations act and an act other than a DOD appropriations act.
• Programs being considered for BBC do not need to meet any legal criteria to qualify for BBC, because there is no permanent statute governing the use of BBC that establishes such criteria.
• A BBC contract can cover more than five years of planned procurements.
• Economic order quantity (EOQ) authority—the authority to bring forward selected key components of the items to be procured under the contract and purchase the components in batch form during the first year or two of the contract—does not come automatically as part of BBC authority because there is no permanent statute governing the use of BBC that includes EOQ authority as an automatic feature.
• BBC contracts are less likely to include cancellation penalties.

Potential issues for Congress concerning MYP and BBC include whether to use MYP and BBC in the future more frequently, less frequently, or about as frequently as they are currently used, and whether to create a permanent statute to govern the use of BBC, analogous to the permanent statute that governs the use of MYP.


Date of Report: April 25, 2013
Number of Pages: 21
Order Number: R41909
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The Federal Bureau of Investigation and Terrorism Investigations

Jerome P. Bjelopera
Specialist in Organized Crime and Terrorism

The Federal Bureau of Investigation (FBI, the Bureau) is the lead federal law enforcement agency charged with counterterrorism investigations. Since the September 11, 2001 (9/11) attacks, the FBI has implemented a series of reforms intended to transform itself from a largely reactive law enforcement agency focused on investigations of criminal activity into a more proactive, agile, flexible, and intelligence-driven agency that can prevent acts of terrorism.

This report provides background information on key elements of the FBI terrorism investigative process based on publicly available information. It discusses

• several enhanced investigative tools, authorities, and capabilities provided to the FBI through post-9/11 legislation, such as the USA PATRIOT Act of 2001; the 2008 revision to the Attorney General’s Guidelines for Domestic FBI Operations (Mukasey Guidelines); and the expansion of Joint Terrorism Task Forces (JTTF) throughout the country; 
• intelligence reform within the FBI and concerns about the progress of those reform initiatives; 
• the FBI’s proactive, intelligence-driven posture in its terrorism investigations using preventative policing techniques such as the “Al Capone” approach and the use of agent provocateurs; and 
• the implications for privacy and civil liberties inherent in the use of preventative policing techniques to combat terrorism. 

This report sets forth possible considerations for Congress as it executes its oversight role. These issues include the extent to which intelligence has been integrated into FBI operations to support its counterterrorism mission and the progress the Bureau has made on its intelligence reform initiatives.


Date of Report: April 24, 2013
Number of Pages: 30
Order Number: R41780
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Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

Department of Defense (DOD) development work on high-energy military lasers, which has been underway for decades, has reached the point where lasers capable of countering certain surface and air targets at ranges of about a mile could be made ready for installation on Navy surface ships over the next few years. More powerful shipboard lasers, which could become ready for installation in subsequent years, could provide Navy surface ships with an ability to counter a wider range of surface and air targets at ranges of up to about 10 miles. These more powerful lasers might, among other things, provide Navy surface ships with a terminal-defense capability against certain ballistic missiles, including China’s new anti-ship ballistic missile (ASBM).

The Navy and DOD have conducted development work on three principal types of lasers for potential use on Navy surface ships—fiber solid state lasers (SSLs), slab SSLs, and free electron lasers (FELs). One fiber SSL prototype demonstrator developed by the Navy is the Laser Weapon System (LaWS); another Navy fiber SSL effort is called the Tactical Laser System (TLS). Among DOD’s multiple efforts to develop slab SSLs for military use was the Maritime Laser Demonstration (MLD), a prototype laser weapon developed as a rapid demonstration project. The Navy has developed a lower-power FEL prototype and is now developing a prototype with scaled-up power. These lasers differ in terms of their relative merits as potential shipboard weapons.

Although the Navy is developing laser technologies and prototypes of potential shipboard lasers, and has a generalized vision for shipboard lasers, the Navy currently does not have a program of record for procuring a production version of a shipboard laser, or a roadmap that calls for installing lasers on specific surface ships by specific dates. The possibility of equipping Navy surface ships with lasers in coming years raises a number of potential issues for Congress, including the following:

• whether the Navy should act now to adopt a program of record for procuring a production version of a shipboard laser, and/or a roadmap that calls for installing lasers on specific surface ships by specific dates; 
• how many types of lasers to continue developing, particularly given constraints on Navy funding, and the relative merits of types currently being developed; and 
• the potential implications of shipboard lasers for the design and acquisition of Navy ships, including the Flight III DDG-51 destroyer that the Navy wants to begin procuring in FY2016. 

In addition to decisions on whether or not to fund continued development of potential shipboard lasers, options for Congress regarding potential shipboard lasers include, among other things, encouraging or directing the Navy or some other DOD organization to perform an analysis of alternatives (AOA) comparing the cost-effectiveness of lasers and traditional kinetic weapons (such as missiles and guns) for countering surface, air, and missile targets, and encouraging or directing the Navy to adopt a program of record for procuring a production version of a shipboard laser, and/or a roadmap that calls for installing lasers on specific surface ships by specific dates.


Date of Report: April 24, 2013
Number of Pages: 64
Order Number: R41526
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Terrorism, Miranda, and Related Matters

Charles Doyle 
Senior Specialist in American Public Law

The Fifth Amendment to the United States Constitution provides in part that “No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” In Miranda v. Arizona, the Supreme Court declared that statements of an accused, given during a custodial interrogation, could not be introduced in evidence in criminal proceedings against him, unless he were first advised of his rights and waived them. In Dickerson v. United States, the Court held that the Miranda exclusionary rule was constitutionally grounded and could not be replaced by a statutory provision making all voluntary confessions admissible. In New York v. Quarles, the Court recognized a “limited” “public safety” exception to Miranda, but has not defined the exception further. The lower federal courts have construed the exception narrowly in cases involving unwarned statements concerning the location of a weapon possibly at hand at the time of an arrest.

The Supreme Court has yet to decide to what extent Miranda applies to custodial interrogations conducted overseas. The lower federal courts have held that the failure of foreign law enforcement officials to provide Miranda warnings prior to interrogation does not preclude use of any resulting statement in a subsequent U.S. criminal trial, unless interrogation was a joint venture of U.S. and foreign officials or unless the circumstances shock the conscience of the court. They suggest that warnings are a prerequisite for admissibility in U.S. courts following overseas interrogation by U.S. officials. 

Miranda applies to courts-martial that are subject to a requirement for an additional warning under the Uniform Code of Military Justice. The statutory provisions governing military commissions call for the admission of some unwarned, involuntary custodial statements. At least one tribunal operating under those provisions has concluded that the Fifth Amendment protections do not apply in the commission trial at Guantanamo Bay of an unprivileged foreign belligerent.

Rule 5 of the Federal Rules of Criminal Procedure requires that federal arrestees be brought before a committing magistrate without unnecessary delay. In the McNabb v. United States and Mallory v. United States cases, the Court declared inadmissible confessions extracted during a period of unnecessary delay. The cases were decided under the Court’s supervisory authority over the lower federal courts, and in Corley v. United States, the Court held that McNabb-Mallory had been statutorily supplemented with a provision that made admissible voluntary confession given within six hours of presentment. Neither Miranda nor McNabb-Mallory violations preclude the subsequent prosecution of the accused; they simply preclude the uninvited use of any unwarned, unwaived statements in such prosecutions.

The 111th Congress featured a number of proposals, some of which would have prohibited the use of funds to provide Miranda warnings; others would have restricted their use in the interrogation of high-value detainees overseas; and still others would have called upon the Administration to provide Congress with information related to the use of Miranda warnings in such circumstances. No comparable proposals appear to have been introduced in later Congresses.

A related discussion can be found in a Legal Sidebar entitled, Miranda Warnings: The Public Safety Exception in Boston.


Date of Report: April 24, 2013
Number of Pages: 13
Order Number: R41252
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