To: Interested Persons
From: Timothy H. Edgar, Rachel King and Katie Corrigan, ACLU Legislative Counsels
Date: September 12, 2002
Re: H.R. 5005: National Homeland Security Act and Combating Terrorism Act of 2002
H.R. 5005, the ""National Homeland Security and Combating Terrorism Act of 2002,"" would establish a new federal Department responsible for protecting the nation against terrorist attacks. Substantial progress has been made in both the House and Senate in improving on the President's original plan, which lacked effective oversight, undermined open government, and could have muzzled whistleblowers. The House added important privacy protections, including a provision barring the Terrorism Information and Prevention System (TIPS), a potentially Orwellian neighborhood spying program, and making clear that a national identification system is not authorized. The Senate's work has also resulted in important gains, including protections for immigrant children and refugees, giving the immigration court system a strong footing by preserving the current administrative review structure.
Nevertheless, the Senate's work is not yet done, and the content of the final bill is in doubt. We address specific issues related to civil liberties, and give our recommendations, below.
- Eliminate the TIPS Program.
We strongly urge the Senate to adopt a provision sponsored by House Majority Leader Richard Armey (R-TX) that would prohibit establishing the Terrorism Information and Prevention System (TIPS). Section 770 of H.R. 5005 would bar the government from establishing, as part of the Bush Administration's Citizen Corps, a massive national spying program. As it was originally described by the Administration, 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 received widespread criticism from Americans across the country concerned about their privacy. Senator Leahy may offer a similar amendment in the Senate and we urge you to support it.
- Repeal Expanded Immunity for Customs Agents.
Section 341 of the Trade Act of 2002, Pub. L. No. 107-210 (Aug. 6, 2002), unjustifiably weakens protections against law enforcement excesses by U.S. Customs agents. It provides them with absolute immunity from civil lawsuits stemming from illegal, unconstitutional or discriminatory searches of individuals entering the country, provided that the agent acted in ""good faith"" and used ""reasonable means."" The full Senate never considered the merits of this provision -- it was added without debate in a conference committee report - and no hearings have been held on the issue. Many national civil rights organizations[1] opposed this provision in the Trade Act because of its likely impact of increasing Customs Service abuses.
Federal law enforcement officers are already protected from unfounded litigation by ""qualified immunity"" - which applies where the officer did ""not violate any clearly established statutory or constitutional rights of which a reasonable person should have known."" Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In contrast, Section 341 seems to provide legal immunity to Customs agents for conduct that does violate clearly established constitutional or statutory rights but which was undertaken in ""good faith"" using ""reasonable means."" A good faith exception puts a premium on ignorance of the law; officers should not gain immunity because they did not understand (but should have understood) ""clearly established constitutional or statutory rights.""
Finally, this provision confuses the law by creating a standard of immunity for Customs agents different from that enjoyed by other law enforcement officers, and does so for an agency with a troubled record. In March 2000 the General Accounting Office found that the Customs Service was subjecting black American women to X-ray searches at nine times the rate of white American women, even though black women were less than half as likely to be found carrying contraband.
- Amend the Discriminatory Citizenship Requirement for Aviation Security Screeners.
The Aviation Transportation and Security Act (ATSA) precludes non-citizens, including lawful permanent residents, from working as security screeners at airports, regardless of their employment record or security clearance. Prior to the passage of ATSA, lawful permanent residents made up approximately 25 percent of airport screeners nationwide, and in some airports the number approached 80 percent.
These workers are losing their jobs. New workers are replacing experienced workers, which experts believe could decrease the safety of our nation's airports. Senators Feinstein, Hollings and Boxer have sought to ameliorate this injustice by introducing S. 1829, the Airport Security Personnel Protection Act (ASPPA), which would expedite the processing and adjudication of naturalization applications for lawful permanent resident airport security screeners and permit their continued employment while their naturalization applications are pending.
According to the U.S. Department of Defense, there are over 50,000 legal permanent residents currently serving in the United States Armed Services, including in National Guard units that were temporarily assigned to airports after the September 11, 2001 attacks. We believe that the intense background investigations, new standards and training established for screeners in the ATSA should provide sufficient information and the necessary skills to ensure that security personnel are trustworthy and qualified to perform the job. We strongly urge you to support an amendment to permit lawful permanent residents who meet the tough new standards for security screeners to keep their jobs or re-apply for their jobs if they have already been dismissed.
- Follow the Senate Approach to Information Sharing With State and Local Law Enforcement.
Attached to H.R. 5005 is an information-sharing bill sponsored by Representatives Weiner, Harmon and Chambliss. There are similar bills under consideration in the Senate. S. 1615, sponsored by Senator Schumer, passed out of the Senate Judiciary Committee on September 5, 2002. This bill permits certain types of sensitive federal law enforcement information (e.g. grand jury information, wiretaps and FISA information) to be shared with state and local authorities. While the ACLU is generally concerned with efforts to increase sharing of sensitive law enforcement information, the Senate bill is preferable because it does less damage to civil liberties since it is limited to sharing information only for investigating crimes of terrorism. The House counterpart does not restrict the information to terrorism and national security investigations, which means that sensitive foreign intelligence information can be shared with local law enforcement agents even if they are only investigating petty crimes. We urge the Senate to insist upon this approach to information sharing in any conference with the House.
- Ensure Any New FOIA Exemption Is Not an Official Corporate Secrets Act.
The President's original plan and the House bill both contained proposals for an overbroad exemption to the Freedom of Information Act (FOIA) for information about critical infrastructure submitted by non-federal entities. The House bill went much further, overriding state open records laws and making disclosure of corporate information a new federal crime. These provisions struck at the heart of open government, and could have undermined security, by allowing companies to hide their security failures behind a cloak of secrecy. They were (and are) unnecessary because FOIA already contains exemptions for national security information, sensitive law enforcement information, and confidential business information. While the Lieberman Substitute also contains an unnecessary new FOIA exemption, it is more narrowly crafted to clarify current law and does not take the extreme step of overriding state and local government laws or penalizing employees who blow the whistle on corporate wrongdoing with fines or prison terms. We encourage Senators to follow the Lieberman substitute approach, and to make clear their intent is to allow firms only to submit specific confidential records relating to critical infrastructure in order to work to correct these vulnerabilities, and not to let business off the hook if they misuse the exemption to cover up their shortcomings.
- Make Clear Congress's Opposition to Military Involvement in Domestic Law Enforcement.
H.R. 5005 includes provisions encouraging greater cooperation between civilian and military agencies in preventing acts of terrorism and dealing with the consequences of catastrophic terrorist acts. Senator Feingold is sponsoring an amendment to the Senate version of the homeland security bill that would require a liaison between civilian and military agencies in every state. These provisions raise questions about the continued erosion of the Posse Comitatus Act, a seminal law passed in 1878 that prohibits the military from executing the laws.
Keeping the military out of domestic law enforcement matters is not only a great American tradition, it is vital to the preservation of our civil liberties. The military is a blunt instrument which is designed to overcome and destroy the enemy with overwhelming force, not to police the public with respect for statutory and constitutional rights. Recent experiments that have involved the military in domestic law enforcement matters have proved tragic. In 1997, a Marine assigned to the border as part of the ""war on drugs"" mistaken shot and killed a student herding his family's goats.
We strongly urge Senators to make clear their continued support for the principles of the Posse Comitatus Act and their opposition to the use of the military in domestic law enforcement. We also encourage strong oversight of any military involvement in domestic counter-terrorism operations.
- Make Clear Congress's Opposition to Domestic Spying on Political and Religious Organizations.
The Senate version of the homeland security bill includes provisions creating a new ""Directorate of Intelligence"" that is intended to receive and analyze intelligence from throughout the federal government concerning terrorism threats. Without safeguards, these provisions could lead to abuse. 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.[2] Moreover, during the Clinton Administration, the ""Filegate"" matter involving the improper transfer of sensitive information from FBI background checks of prominent Republicans to the White House generated enormous public concern that private security-related information was being used for political purposes. Congress should not provide a future Administration with the temptation to use information available in Homeland Security Department files to the detriment of its political enemies.
We urge Senators to make clear their opposition to political spying and their clear expectation that the Homeland Security Department will have in place strong guidelines to prevent it.
- Provide Strong Oversight of Federal Law Enforcement.
Strong oversight and public accountability measures are needed for this massive department, which includes roughly 180,000 employees from 22 federal agencies, including 74,300 armed federal agents.[3] The Lieberman Substitute contains important protections, including a civil rights and privacy office, as well as an Inspector General (IG) that will have broad authority to ferret out wrongdoing of all kinds - including that affecting ordinary citizens. These provisions could be strengthened further by adding a Deputy Inspector General for civil rights and civil liberties. In addition, we support more comprehensive review of homeland security measures' impact on privacy and other civil liberties through an advisory body, independent commission or other outside audit of the Department's policies.
We believe a Senate-confirmed Deputy Inspector General is necessary because under the current proposal the Civil Rights Officer lacks express authority to investigate and must instead make referrals to the Inspector General. The responsibilities of the IG are vast including financial and management issues. This new IG is likely to face many challenges in the creating of this massive new government department. A Deputy Inspector General could be specifically empowered with the needed independent investigative resources and authority, paralleling those of the Inspector General, but focusing specifically on the mission of protecting civil rights.
- Provide Protections for Unaccompanied Non-Citizen Children.
The Lieberman substitute takes the opportunity to reform the current structure for handling non-citizen children by incorporating the provisions of S. 121, sponsored by Senator Dianne Feinstein, the Unaccompanied Alien Children Protection Act. These provisions create a new office within the Office of Refugee Resettlement (ORR) charged solely with ensuring children's well being, eliminating the conflict of interest created by placing children in the custody of INS or a successor agency, however structured. Further, the legislation would require the appointment of legal counsel and guardians for each child and ensure that unaccompanied children are housed in an appropriate shelter or with foster families if their own families are unable to care for them. These protections are badly needed to ensure against mistreatment in a system designed for adults. We commend the Senate Governmental Affairs Committee for including them in the substitute, and we urge strong opposition to any attempt to weaken these vital protections.
- Preserve Due Process for Asylum Seekers and Other Immigrants Through the Executive Office for Immigration Review (EOIR).
The President's original proposal moved the Executive Office for Immigration Review (EOIR), currently an independent agency within the Department of Justice, into the new Department of Homeland Security. Under the Lieberman substitute, EOIR will stay where it is and receive a firm statutory grounding. EOIR provides fair hearings for persons fleeing persecution and for immigrants facing deportation. Due process provides an essential check on government actions that effectively mean exile and deprive a person of what makes life worth living.
Ultimately, we believe that such hearings should be provided by an entirely independent agency rather than one whose decisions can be overridden by a political appointee such as the Attorney General, and that judicial review must be fully restored to truly ensure a sober second look at deportation decisions. The Lieberman substitute leaves the Attorney General's review authority in place. Nevertheless, the Lieberman substitute will enhance EOIR's stature and ensure that the legal expertise of the Department of Justice provides a front-line check to ensure that the government's treatment of asylum seekers and immigrants fits within the boundaries of law. We would strongly oppose any effort to weaken these provisions.
- Preserve Whistleblower Protections.
The President's original proposal includes broad language allowing all of the protections of Title 5, relating to government employees, to be waived in the interests of management efficiency. This language has been deleted from the Lieberman substitute, and specific language has been added to make clear that the Whistleblower Protection Act (WPA) will be applicable to the new Department. Unfortunately, the WPA has been eroded over the past few years by erroneous agency and court decisions that fail to implement Congress's intent. We hope the Senate will take this opportunity to address these problems by providing additional strong protections for whistleblowers endorsed by government reform groups such as the Government Accountability Project.
Conclusion
The Senate and the House have worked diligently and have improved substantially on the President's original plan for a Homeland Security Department. Congress should finish the job by producing a final bill that upholds principles of open government, accountability, and preservation of civil rights and civil liberties.
ENDNOTES
[1] These include: the Leadership Conference on Civil Rights, the National Council of La Raza, the National Association for the Advancement of Colored People, the American Arab Anti-Discrimination Committee, the Mexican American Legal Defense and Educational Fund, the National Urban League, the National Asian Pacific American Legal Consortium, Lawyer's Committee for Civil Rights Under Law, Lawyer's Committee for Human Rights, the Sikh Mediawatch and Resource Center and the Committee for American-Islamic Relations.
[2] For a discussion of how the FBI engaged in illegal surveillance and harassment of Dr. Martin Luther King, Jr., see Marvin J. Johnson, ACLU Legislative Counsel, The Dangers of Domestic Spying by Federal Law Enforcement: A Case Study on FBI Surveillance of Dr. Martin Luther King (January 2002), available at /Files/Files.cfm?ID=9999&c=184
[3] This number is based on information about the agencies the President's plan included in the Homeland Security Department: INS has 20,000 armed federal agents, the Customs Service has 13,000, 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.