Letter to the Senate Governmental Affairs Committee on S. 2452, the National Homeland Security and Combating Terrorism Act of 2002

Hon. Joseph I. Lieberman
Chairman, Governmental Affairs Committee
United States Senate
340 Dirksen Senate Office Building
Washington, DC 20510 

Re: S. 2452: National Homeland Security and Combating Terrorism Act of 2002
Protect Civil Liberties and Open Government! 

Dear Chairman Lieberman: 

On behalf of the American Civil Liberties Union (ACLU) and its approximately 300,000 members, we are writing to you regarding your proposed substitute amendment to S. 2452, the ""National Homeland Security and Combating Terrorism 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 with arrest powers.[i] 

Civil Liberties, Privacy and Due Process Protections Currently in the Substitute.  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 provisions that would reform treatment and conditions of detention for asylum seekers and immigrant children, establish an Office of Children's Services to care for unaccompanied noncitizen children, and provide such children with counsel and guardians ad litem for immigration proceedings.  These basic due process reforms enjoy strong bipartisan support and are essential in any restructuring of the Immigration and Naturalization Service.

Additional Civil Liberties Protections That Should Be Added.  We strongly urge you to consider adding additional civil liberties protections to the legislation in the areas of immigration review, privacy and national ID, and domestic spying by government or private informers. 

The substitute codifies the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice that handles detention and removal hearings, asylum applications, and other administrative hearings for immigrants and visitors.  While these provisions are welcome and we agree that the EOIR should not be moved to the Homeland Security Department, we are disappointed that the substitute missed an opportunity to create a truly independent review agency, as recommended by the National Association of Immigration Judges (NAIJ).  We urge the Senate to take this opportunity to make immigration judges truly independent. We also strongly support privacy provisions included in the House counterpart to your bill, H.R. 5005, the ""Homeland Security Act of 2002"" 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 favor adding the Armey language barring its establishment to the Senate bill. 

Finally, to address civil liberties concerns regarding political spying, the Senate should add provisions that would prevent the Department from maintaining files on Americans that are not linked to any criminal activity, but instead relate solely to political beliefs and associations.  No one wants a repeat of the J. Edgar Hoover era, when the FBI was used to collect information about and disrupt the activities of civil rights leaders and others whose ideas Hoover distained.  One model the Senate could consider is Oregon Revised Statutes § 181.575.  It provides that no state law enforcement agency may ""collect or maintain information about the political, religious or social views, associations or activities"" of a person or group unless such information ""directly relates to an investigation of criminal activities"" and there are ""reasonable grounds to suspect"" the subject ""is or may be involved in criminal conduct.""

Civil Liberties and Open Government Laws Should Not Be Weakened.  We urge you to oppose amendments to weaken civil liberties and accountability principles in the areas of customs immunity and the Freedom of Information Act.

We urge you to resist any efforts to add other provisions es such as those requested by the Customs Agency to expand their immunity from qualified immunity to ""good faith"" immunity and to permit agents to open outgoing international mail without a warrant.

Finally, we urge you to oppose a misguided proposal to exempt so-called ""critical infrastructure"" information submitted to the new Department from the Freedom of Information Act (FOIA).  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:

• Government studies showed that shipments of tainted uranium recycled from nuclear weapons extended far beyond five previously-known federal sites and included ""smaller, mostly private sites"" and university labs around the country, exposing thousands of workers to hazardous radiation.   
  -P. Eisler, Study Flags Radioactive Threat and Tainted Uranium, Danger Widely Distributed, USA Today, June 25, 2001, at 1A, 7A.  

   

• Federal Railroad Administration records showed that nearly 1,500 defects were found along a stretch of track the carries the California Zephyr during the five years preceding a fatal Amtrak derailment in southern Iowa.
  -Associated Press, Several Defects Reported Along Zephyr's Track, Telegraph Herald (Dubuque, Iowa), June 11, 2001.  (The California Zephyr stretch of track is privately owned).  

   

• Catastrophic accident scenarios by 50 chemical companies in Louisiana showed that hundreds of thousands of residents are at risk, even if they live as far as twenty-five miles from such plants.
  -Bhopal in the Bayou: Are Chemical Accidents a Trade Secret?, Greenpeace USA Press Release, March 22, 2001.  

   

• Clerical errors and other mistakes by private and public blood banks, hospitals and other health care providers exposed patients to tainted blood, many patients are not informed of the risks, and problems at the American Red Cross had not been addressed.
  -Newman et al., Bad Blood, U.S. News and World Report, June 27, 1994.  

   

• Nuclear Regulatory Commission documents showed officials knew of problems at nuclear plants in the early 1970s but minimized them to speed licensing.
  -J. Miller, Ouster of Energy Officials Urged, N.Y. Times, April 4, 1979.

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.  As Chairman Tauzin (R-LA) of the House Energy and Commerce Committee made clear in testimony on July 18, ""[T]he new Secretary's authority to assess vulnerabilities . . . with respect to private sector critical infrastructures does not include new regulatory powers . . . to directly compel security improvements through regulations or mandates.""    

We urge you to resist any efforts to attach this misguided proposal to S. 2452, and to work in conference to eliminate this provision from the House version of the legislation. 

Sincerely, 

Laura W. Murphy
Director, Washington National Office 

Timothy Edgar
Legislative Counsel 

Katie Corrigan
Legislative Counsel 

Rachel King
Legislative Counsel 

cc: Members of the Senate Governmental Affairs Committee 

 

 

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ENDNOTE

This number is based on including the agencies in the President's original proposal:  INS has 20,000 armed federal agents, the Customs Service has 13,000 armed federal agents, the United States Secret Service has 3,300, the Coast Guard has 36,000 employees who act in a law enforcement capacity and the FAA has 1,400.  This comes to a total of 73,400 agents with federal police power.