Letter to the House on H.R. 5005, the Homeland Security Act of 2002

Re:      H.R. 5005: Homeland Security Act of 2002
Protect Civil Liberties and Open Government! 

Dear Representative:

On behalf of the American Civil Liberties Union (ACLU) and its approximately 300,000 members, we are writing regarding H.R. 5005, the ""Homeland Security Act of 2002.""  This bill would establish a new federal Department responsible for protecting the nation against terrorist attacks.  Strong oversight and public accountability measures will be needed for this massive department, which (under the President's plan) includes over 180,000 employees from 22 federal agencies, including 74,300 armed federal agents.[1]

Civil Liberties, Privacy and Due Process Protections Currently in the Bill.  We support provisions in the bill that would protect civil liberties, such as those establishing privacy and civil rights officers and a robust Inspector General within the new Department.   We also support privacy provisions that were added by the House Select Committee on Homeland Security at the urging of House Majority Leader Richard Armey (R-TX).  One such provision, contained in section 815 of the House bill as reported, would make clear that nothing in the legislation would authorize a national identification system.  Another, contained in section 770 of the House bill, would bar the government from establishing, as part of the Bush Administration's Citizen Corps, a massive national spying program called the Terrorism Information and Prevention System (TIPS).  This program would enlist Americans, including utility workers and others with access to private homes, as government informants who would be encouraged to report allegedly suspicious activities to authorities.  This program has severe privacy and civil liberties problems and we support the provision of the bill that bars the government from establishing the program.

Open Government Laws Should Not Be Weakened.  We urge you to support an amendment to strike overbroad exemptions to the Freedom of Information Act.  Such ""critical infrastructure"" legislation, which was attached to the H.R. 5005 as reported at section 724, could have a devastating effect on the public's right to know, muzzle whistleblowers, and undermine national security. Such legislation is entirely unnecessary.  The FOIA does not require the disclosure of national security information (exemption 1), sensitive law enforcement information (exemption 7), or confidential business information (exemption 4).  

Documents released under the Freedom of Information Act (FOIA) have for decades helped to expose to the public threats to health and safety that may never have come to light under the bill.  For example:

• Information about dangerous uranium, recycled from nuclear weapons and stored at private facilities across the country could not be disclosed under FOIA if the legislation were to pass. Government studies have shown that stockpiles of the radioactive material exist around the country and pose serious health risks to thousands of workers. (""Study Flags Radioactive Threat"" and ""Tainted Uranium, Danger Widely Distributed,"" USA Today, June 25, 2001)
  
• After a fatal Amtrak derailment in southern Iowa, investigations showed that a stretch of privately owned railroad track, which suffered from over 1,500 defects, was partly to blame. Under the House bill, this information - essential to preventing such a disaster in the future - would be under strict lock and key. (""Several Defects Reported Along Zephyr's Track,"" Telegraph Herald (Dubuque, Iowa), June 11, 2001) 
  
• FOIA was used to expose a series of clerical errors and other mistakes at private and public blood banks that had led to the exposure of a number of patients to tainted blood. The risk of being exposed was never relayed to the public until the act was used. (""Bad Blood,"" U.S. News and World Report, June 27, 1994)  

Under section 724 of the House bill, such information, if voluntarily submitted by a business to the government and stamped as exempt by the business, could not be released to the public.  Such secrecy would take away public pressure to fix vulnerabilities, eroding a powerful incentive for improvements, while the government is given no new power to require improvements. 

We urge you to support an amendment to eliminate this provision from the bill. 

Sincerely, 

Laura W. Murphy                                                                        
Director, Washington National Office

Timothy Edgar
Legislative Counsel

Katie Corrigan
Legislative Counsel                                    

Rachel King
Legislative Counsel

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