Re: Support Amendments to H.R. 5005 to Make Sure Homeland Security Department Will Be Open and Accountable
Dear House Government Reform Committee Member:
On behalf of the American Civil Liberties Union (ACLU), we are writing to ask you to support principles of open and accountable government by supporting a number of amendments that we understand will be offered at tomorrow's markup of H.R. 5005, the Homeland Security Act of 2002. Unfortunately, H.R. 5005, as written, would exempt the new Department from a host of laws designed to keep government open and accountable and to protect whistleblowers.[1] We support amendments that would:
- Eliminate the blanket Freedom of Information Act (FOIA) exemption- Under the bill as written, any information voluntarily submitted to the Department about vulnerabilities to the nation's infrastructure or other information relating to terrorism is exempt from FOIA disclosure. We believe such a blanket exemption would essentially eliminate the Department's responsibility to answer questions from the public about how well it is addressing terrorist threats. It would undermine security, and could also be abused by businesses to avoid public scrutiny of their actions. Existing law already contains exemptions for national security and confidential business information voluntarily submitted to the government. Classified information, information related to ongoing criminal investigations, trade secrets and other proprietary information are already exempt.
- Subject advisory committees to the Federal Advisory Committee Act (FACA) - The bill as written would exempt advisory committees to the Department from the Federal Advisory Committee Act (FACA), which requires a balance of viewpoints, open meetings, and public input. FACA contains exemptions similar to the exemptions in FOIA to protect national security and confidential business information. The controversy surrounding Hillary Clinton's health care task force and the Vice President's energy task force has shown the lack of public trust that can result from attempts to set up secret task forces. Permitting all task forces in a Cabinet-level department to be secret would undermine public confidence.
- Strengthen the Inspector General - Given the enormous potential power of the proposed Department, its Inspector General must not be hampered like those in other federal agencies. Under the bill, the cabinet secretary in charge would have veto power over the IG's audits and investigations. We support eliminating this provision, to ensure that the Inspector General has full authority.
- Create a strong Oversight Office for Civil Rights and Privacy -- The Homeland Security Department will be a massive government agency, with 170,000 employees, and with more armed federal agents with arrest power than any other. Lack of proper oversight for federal law enforcement agencies has been a serious problem for decades. A complaint-based Oversight Office for Civil Rights and Privacy, with the ability to provide real change, is essential and we support an amendment to add such an office to the Department.
- Empower whistleblowers - H.R. 5005 contains language that would allow employees of the new agency to be stripped of the protections contained in the federal Whistleblower Protection Act. Protection for the bravery like that displayed by FBI Agent Coleen Rowley might not exist in the new agency. We support amendments to strengthen whistleblower protections for employees of the Homeland Security Department.
Adopting these amendments would go a long way towards ensuring that the Homeland Security Department remains subject to the public scrutiny required by law of other federal agencies.
Sincerely,
Laura W. Murphy
Director, ACLU Washington Office
Timothy H. Edgar
ACLU Legislative Counsel
ENDNOTE
[1] Our concerns are discussed at more length in our written testimony at a number of Congressional hearings, available at http://archive.aclu.org/congress/l062502b.html