Re: Oppose Secretive Homeland Advisory Committees by Voting YES on the Daschle-Lieberman Amendment
Dear Senator:
On behalf of the American Civil Liberties Union (ACLU) and its approximately 300,000 members, we urge you support the Daschle-Lieberman-Byrd amendment to delete dangerous provisions from the House-passed Homeland Security bill that allow the Secretary to establish secret advisory committees which could be dominated by special interests.
Section 871 of the House bill provides that all advisory committees established by the Secretary of the Department of Homeland Security may be exempted from the Federal Advisory Committee Act (FACA), even for non-sensitive matters, and that members of such advisory committees are eligible for waivers of conflict of interest rules for federal employees. Sections 232(b)(2) and 311(i) of the House-passed bill also specifically exempt the new Department of Justice Office of Science and Technology and the Homeland Security Science and Technology Advisory Committee from FACA.
The FACA was passed in 1972 to promote the values of openness, accountability, and balance of viewpoints, and to ensure administrative efficiency and cost reduction. FACA imposes requirements on agencies when they establish or utilize any advisory committee, which is defined as a group of individuals, including at least one non-federal employee, which provides collective advice or recommendations to the agency. 5 U.S.C. App. II, § 3(2). When an agency seeks to obtain such advice or recommendations, it must ensure the advisory committee is ""in the public interest,"" id. at § 9(2), is ""fairly balanced in terms of points of view represented and the function to be performed,"" id. at § 5(b)(2), and does not contain members with inappropriate special interests. Id. at § 5(b)(3). If these criteria are satisfied, the agency must file a charter for the committee. Id. at § 9(c).
Once an advisory committee is operating, the agency also must comply with requirements designed to ensure public access and participation. FACA requires an agency to provide adequate public notice that it is establishing an advisory committee, id. at § 9(a)(2), conduct open meetings, id. at § 10(a), keep minutes of those meetings, id. at § 10(c), make available for public inspection and purchase all documents prepared for or by advisory committees, id. at §§ 10(b), 11(a), and permit all interested persons to attend, appear before, or file statements with any advisory committee. Id. at 10(a)(3). These openness requirements ensure public monitoring of advisory committees and reduce the likelihood that advisory committees can serve as secretive channels for special-interest access to government agencies. FACA's right of access to advisory committee records is subject to the same nine exemptions that apply to access to agency records under the FOIA, which we believe are sufficient to guard against any disclosure of truly sensitive information.
By exempting from FACA requirements any advisory committees established by the Secretary of the Department of Homeland Security, the House bill severely undermines the openness and public-access goals of FACA. Although the House bill provides that the Secretary shall publish notice in the Federal Register announcing the establishment of an advisory committee and identifying its purpose and membership, the meetings will not be open to the public, formal minutes of committee activity during those meetings will not be kept, and the public will not have access to view or purchase documents prepared for or by those advisory committees. Public access to and participation in advisory committees are essential to guarding against special-interest access to advisory committees and influence upon government decision-making.
In addition, the House bill exempts members of advisory committees established under the Department of Homeland Security from federal laws restricting federal employees and officers (including members of advisory committees) from participating in or advising the government upon matters about which there exists a conflict of interest. See 18 U.S.C. §§ 208. Combined with the lack of public access to and participation in advisory committee proceedings, exemption from these laws threatens to erode FACA's requirement that advisory committees' memberships reflect a balance of viewpoints, and undermines the goal of accountability.
We urge that you vote in favor of the Daschle-Lieberman amendment to delete these provisions from the Homeland Security bill.
Sincerely,
Laura W. Murphy
Director, Washington National Office
Timothy Edgar
Legislative Counsel