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Statement
of Senator Patrick Leahy
The Homeland Security
Department Act
November 19, 2002
Mr. LEAHY. The
idea of coordinating homeland security functions in a cabinet-level
department is a constructive one and a sound one. In large part it
originated in this body with legislation offered by Senator Lieberman
and Senator Specter, who deserve great credit for their work.
President Bush, after initially opposing this idea, also deserves
credit for coming to understand its value and for reversing his
Administration’s resistance to it.
In the several
months that the Congress has spent in writing and debating this
complex bill, the issue has not been whether such a department should
be created, but how it should be created. The Judiciary Committee,
which I chair, has played a constructive role in examining these
issues in our hearings and in providing guidance in the writing of
this bill, and I have supported and helped to advance the key
objectives envisioned for this new department. The fact that we are
on the verge of enacting a charter for the new department is good for
the Nation and our efforts to defend the American people against the
threats of terrorism. Many of the “hows” that have found their way
into this bill, and the process by which that has happened, are a
needless blot on this charter. As we act to approve this charter, we
should also feel obligated to remedy many of these ill-advised and
ill-considered provisions in succeeding congressional sessions,
through corrective steps and through close oversight.
As they come to
understand some of the imprudent extraneous additions to this bill,
many Americans will feel that their trust and goodwill have been
abused, and I share their disappointment about several elements of
this version of the bill that has been placed, without due
consideration, before the Senate. This deal, negotiated behind closed
doors by a few Republican leaders in the House and Senate and the
White House, has been presented to us as a done deal. It includes
several blatant flaws that should at the very least be debated. That
is why I could not vote for cloture to end debate on a bill almost
500-pages long that was presented to us for the first time only five
days ago, on November 14.
The bill
undertakes a significant restructuring of the Federal government by
relocating in the new Department of Homeland Security several
agencies, including the Immigration and Naturalization Service, the
U.S. Secret Service, the Federal Emergency Management Agency, the
Office of Domestic Preparedness, the Transportation Security
Administration, the U.S. Customs Service, and the Coast Guard. In
addition, many functions of the Bureau of Alcohol, Tobacco, Firearms
and Explosives would be transferred to the Department of Justice.
Overall I support
the President’s conclusion that several government functions should be
reorganized to improve our effectiveness in combating terrorism and
preserving our national security, although he has been responsible for
leading all of these agencies and fulfilling their responsibilities
since assuming the Presidency in January 2001, and the President
himself opposed significant reorganization until recently. Homeland
security functions are now dispersed among more than 100 different
governmental organizations. Testimony at a June 26, 2002, Judiciary
Committee hearing illuminated the problem of such a confusing
patchwork of agencies with none having homeland security as its sole
or even primary mission. I had thought that the Department of
Justice and FBI were the lead agencies responsible for the country’s
security in 2001 and 2002, but I understand why the President has come
to realize that the lack of a single agency responsible for homeland
security increases both the potential for mistakes and opportunities
for terrorists to exploit our vulnerabilities.
The bill will
bring under one cabinet level officer agencies and departments that
share overlapping missions for protecting our border, our financial
and transportation infrastructure and responding to crises. Having
these agencies under a single cabinet level officer will help
coordinate their efforts and focus their mission with a single line of
authority to get the job done.
This is something
that I support.
The bill also
encourages information sharing. Our best defense against terrorism is
improved communication and coordination among local, State, and
Federal authorities; and between the U.S. and its allies. Through
these efforts, led by the Federal government and with the active
assistance of many others in other levels of government and in the
private sector, we can enhance our prevention efforts, improve our
response mechanisms, and at the same time ensure that funds allotted
for protection against terrorism are being used most effectively.
The recent sniper
rampage in the Washington, D.C. area demonstrated the dire need for
such coordination among Federal, State and local law enforcement
agencies. Fortunately, we were able to see the productive results of
effective information sharing and coordination with the arrests of the
two alleged snipers on October 31.
While we all
support increased sharing of relevant information with the new
Department of Homeland Security by and among other Federal, State and
local agencies, we must be careful that information sharing does not
turn into information dumping. We want our law enforcement officials
to have the information they need to do their jobs effectively and
efficiently, with communications equipment that allows different
agencies to talk to each other and with the appropriate training and
tools so that multiple agencies are able to coordinate their responses
during emergencies. We know that large amounts of information were
collected, but never read or analyzed, before September 11, and we
know that translators and resources are what we need to help make the
already-gathered information useful.
There is no
dispute that information sharing is critical, but we have to make sure
we do not go overboard. Information dumping is harmful to our
national security if the information is not accurate, complete, or
relevant, or if it is dumped in such a bulk fashion that end-users are
unable to determine its reliability. The legislation before us
provides very broad authority for information collection from and
sharing with not just Federal, State and local law enforcement
authorities, but also other government agencies, foreign government
agencies and the private sector. Highly sensitive grand jury
information, criminal justice, and electronic, wire, and oral
interception information is authorized to be shared not just across
this country but also around the world. Without clear guidance, this
sweeping new authority can be a recipe for mischief. The Congress now
will have an imperative to monitor vigilantly and responsibly the
implementation of this new authority to ensure that the risks to the
privacy of the American people and the potential for abuse do not
become a reality.
This bill
contains several constructive provisions, including establishment in
the new Department of a Privacy Office and an Office for Civil Rights
and Civil Liberties. The bill also includes the Sessions-Leahy bill,
S. 3073, and whistleblower protections that the Administration’s
original proposal rejected. In addition, as I will discuss in more
detail in these remarks, the bill includes a prohibition on both the
TIPS Program and a national identification system or card.
The TIPS Program
I am pleased the
bill, in section 880, forbids the creation of Operation TIPS, a
proposed citizen reporting program theoretically designed to prevent
terrorism. That ill-designed program threatened to turn neighbors
into spies and to discredit valuable neighborhood watch programs.
When I questioned the Attorney General about the program earlier this
year, I found his answers to be incomplete and far from reassuring.
As such, I was prepared to offer an amendment in the Senate to bar
Operation TIPS, and I welcome the House’s strong opposition to the
program that has made my amendment unnecessary.
Under the plan
originally announced by the Justice Department, Operation TIPS would
have enlisted millions of Americans as volunteers who would report
their suspicions about their neighbors and customers to the
government. This plan was criticized by Republicans and Democrats
alike, and Justice Department officials then said they planned to make
the program smaller than originally anticipated. But the Department
never made clear how the program would work, what it would cost, or
how the privacy interests of American citizens would be protected.
Indeed, the
Administration offered a constantly shifting set of explanations to
Congress and the public about how Operation TIPS would work, leaving
Congress unable even to evaluate a program that could easily lead to
the invasion of the privacy of our fellow Americans. Even the
Operation TIPS website offered differing explanations of how the
program would work, depending on what day a concerned user accessed
it. For example, before July 25, the web site said that Operation
TIPS “involving 1 million workers in the pilot stage, will be a
national reporting system that allows these workers, whose routines
make them well-positioned to recognize unusual events, to report
suspicious activity.@
By contrast, the July 25 version declared that “the program will
involve the millions of American workers who, in the daily course of
their work, are in a unique position to see potentially unusual or
suspicious activity in public places.” It was unclear whether these
changes reflected actual changes in the Justice Department’s plans, or
whether they were simply cosmetic differences designed to blunt
opposition to the program raised by concerned citizens, newspaper
editorials, and Members of Congress.
The
Administration originally proposed Operation TIPS as “a nationwide
program giving millions of American truckers, letter carriers, train
conductors, ship captains, utility employees, and others a formal way
to report suspicious terrorist activity.” In other words, the
Administration would recruit people whose jobs gave them access to
private homes to report on any “suspicious” activities they
discovered. Nor would this program start small; the Administration
planned a pilot program that alone would have enlisted 1 million
Americans.
We also never
received a full understanding of how the Administration planned to
train Operation TIPS volunteers. The average citizen has little
knowledge of law enforcement methods, or of the sort of information
that is useful to those working to prevent terrorism. Such a setup
could have allowed unscrupulous participants to abuse their new status
to place innocent neighbors under undue scrutiny. The number of
people who would have abused this opportunity is undoubtedly small,
but the damage these relatively few could do would be very real and
potentially devastating. In addition, it was crucial that citizen
volunteers receive training about the permissible use of race and
ethnicity in their evaluation of whether a particular individual=s
behavior is suspicious, but the Justice Department seemed not to have
considered the issue.
Even participants
acting in good faith may have been prone to report activity that would
not be suspicious to a well-trained professional. Our law enforcement
agencies are already operating under heavy burdens, and I questioned
the usefulness of bombarding them with countless tips from millions of
volunteers. As the Washington Post put it in a July
editorial: “It is easy to imagine how such a program might produce
little or no useful information but would flood law enforcement with
endless suspicions that would divert authorities from more promising
investigative avenues.”
The
Administration’s plan also raised important questions about how and
whether information submitted by TIPS volunteers would be retained.
Many of us were deeply concerned about the creation of a TIPS database
that would retain TIPS reports indefinitely. When he testified before
the Judiciary Committee in July, the Attorney General said that he,
too, was concerned about this. He told us that he had been given
assurances that there would be no database, but he could not tell us
who had given him those assurances. Many months later, the
Administration’s plans on this issue still are unclear. We simply
cannot allow a program that will use databases to store
unsubstantiated allegations against American citizens to move
forward.
Opposition to
Operation TIPS has been widespread. Representative Armey, the House
Majority Leader, has led the fight against it in the House. The
Postal Service refused to participate. The Boston Globe
called it a scheme Joseph Stalin would have loved. In an editorial,
The New York Times said: “If TIPS is ever
put into effect, the first people who should be turned in as a threat
to our way of life are the Justice Department officials who thought up
this most un-American of programs.” The Las Vegas
Sun said that “Operation TIPS has the potential of becoming a
monster.” The Washington Post said that the
Administration “owes a fuller explanation before launch day.”
In evaluating
TIPS, we need to remember our past experience with enlisting citizen
informants on such a grand scale. During World War I, the Department
of Justice established the American Protective League (APL), which
enrolled 250,000 citizens in at least 600 cities and towns to report
suspicious conduct and investigate fellow citizens. For example, the
League spied on workers and unions in thousands of industrial plants
with defense contracts and organized raids on German-language
newspapers. Members wore badges and carried ID cards that showed
their connection to the Justice Department and were even used to make
arrests. Members of the League used such methods as tar and feathers,
beatings, and forcing those who were suspected of disloyalty to kiss
the flag. The New York Bar Association issued a report after the war
stating of the APL: “No other one cause contributed so much to the
oppression of innocent men as the systematic and indiscriminate
agitation against what was claimed to be an all-pervasive system of
German espionage.” No one wants to relive those dark episodes or
anything close to them.
I am pleased that
we have achieved bicameral and bipartisan agreement that Operation
TIPS goes too far, infringing on the liberties of the American people
while promising little benefit for law enforcement efforts. If the
Administration comes to Congress with a limited, common-sense proposal
that respects liberties, Congress will likely support it. But
Congress cannot simply write a blank check for such a troubled
program.
No National ID Card
I am also pleased
that the bill, in section 1514, states clearly that nothing in the
legislation shall be construed to authorize the development of a
national identification system or card. Given the other provisions in
the bill that pose a risk to our privacy, this at least is a line in
the sand which I fully support.
The Sessions-Leahy Bill
The House-passed
bill also includes, in section 601, a provision that Senator Sessions
and I introduced last month as S.3073. This provision will facilitate
private charitable giving for servicemen and other federal employees
who are killed in the line of duty while engaged in the fight against
international terrorism. Under current law, beneficiaries of members
of the U.S. Armed Forces get paid only $6,000 in death benefits from
the government, over any insurance that they may have purchased.
Moreover, these individuals may not be eligible for payments from any
existing victims’ compensation program or charitable organization.
The Sessions-Leahy provision will provide much-needed support for the
families of those who have made the ultimate sacrifice for their
country. It encourages the establishment of charitable trusts for the
benefit of surviving spouses and dependents of military, CIA, FBI, and
other federal government employees who are killed in operations or
activities to curb international terrorism. This provision also
authorizes Federal officials to contact qualifying trusts on behalf of
surviving spouses and dependents, pursuant to regulations to be
prescribed by the Secretary of Defense. This will help to inform
survivors about benefits and to ensure that those who are eligible
have the opportunity to access the money. It will also spare grieving
widows the embarrassment of having to go to a charity and ask for
money. Finally, for the avoidance of doubt, this provision makes
clear that federal officeholders and candidates may help raise funds
for qualifying trusts without running afoul of federal campaign
finance laws.
Whistleblower Protections
I am also pleased
that, unlike the President's original proposal, the current bill would
ensure that employees of the new Department of Homeland Security will
have all the same whistleblower protections as employees in the rest
of the federal government. As we saw during the many FBI oversight
hearings that the Judiciary Committee has held over the last 15
months, strong whistleblower protection is an important homeland
security measure in itself.
Indeed, it was
whistleblower revelations that helped lead to the creation of this
Department. The President was vehemently opposed to creating the new
Department of Homeland Security for nine months after the September 11
attacks. Then, just minutes before FBI whistleblower Coleen Rowley
came before the Judiciary Committee in a nationally televised
appearance to expose potential shortcomings in the FBI's handling of
the Zacarias Moussaoui case before 9-11, the White House announced
that it had changed its position and that the creation of a new
cabinet- level Department of Homeland Security was vital. Of course
that made it all the more ironic that the President's original
proposal did not assure whistleblower protections in the new
Department.
In any event,
although the new Department has the same legal protections as those
that apply in the rest of the government, the protections will mean
nothing without the vigorous enforcement of these laws by the
Administration. The leadership of the new Department and the Office
of Special Counsel must work to encourage a culture that does not
punish whistleblowers, and the Congress -- including the Judiciary
Committee -- must continue to vigorously oversee the new and other
administrative departments to make sure that this happens.
While I am glad
that the many employees of the new Department will have the same
substantive and procedural whistleblower protections as other
government employees, I wish that we could have done more.
Unfortunately, a Federal court with a monopoly on whistleblower cases
that is hostile to such claims has improperly and narrowly interpreted
the provisions of the Whistleblower Protection Act. Senators
Grassley, Levin, Akaka and I had proposed a bipartisan amendment to
this measure that would have strengthened whistleblower protections in
order to protect national security. The amendment was similar to S.
995, of which I am a cosponsor, and our amendment would have corrected
some of the anomalies in the current law. It is unfortunate for the
success of the Department and for the security of the American people
that the amendment was not part of the final measure, and I hope that
we can work to pass S. 995 in the 108th Congress.
The Administration’s Turnaround
The
Administration was slow to accept the idea for a cabinet-level
department to coordinate homeland security, but experience in the
months after the September 11 attacks helped in the evolution of the
Administration’s position. Soon after the President invited Governor
Ridge to serve as the Director of an office of homeland security
within the White House, I invited Governor Ridge in October, 2001, to
testify before the Judiciary Committee about how he would improve the
coordination of law enforcement and intelligence efforts and about his
views on the role of the National Guard in carrying out the homeland
security mission, but he declined our invitation at that time. The
Administration would not allow Director Ridge to testify before
Congress.
Without Governor
Ridge’s input, the Judiciary Committee continued oversight work that
had begun in the summer of 2001, before the terrorist attacks, on
improving the effectiveness of the U.S. Department of Justice, the
lead Federal agency with responsibility for domestic security. This
task has involved oversight hearings with the Attorney General and
with officials of the Federal Bureau of Investigation and the
Immigration and Naturalization Service. In the weeks immediately
after the attacks, the Committee turned its attention to hearings on
legislative proposals to enhance the legal tools available to detect,
investigate and prosecute those who threaten Americans both here and
abroad. Committee members worked in partnership with the White House
and the House to craft the new anti-terrorism law, the USA PATRIOT
Act, which was enacted on October 26, 2001.
We were prepared
to include in the new anti-terrorism law provisions creating a new
cabinet-level officer heading a new department of homeland security,
but we did not do so at the request of the White House. Indeed, from
September, 2001, until June, 2002, the Administration was steadfastly
opposed to the creation of a cabinet-level department to protect
homeland security. Governor Ridge said in an interview with National
Journal reporters in May, 2001, that if Congress put a bill on the
President’s desk to make his position statutory, he would, “probably
recommend that he veto it.” That same month, White House spokesman
Ari Fleischer also objected to a new department, commenting that,
“You still will have agencies within the Federal government that have
to be coordinated. So the answer is: Creating a Cabinet post doesn’t
solve anything.”
In one respect,
the White House was correct: Simply moving agencies around among
departments does not address the problems inside agencies like the FBI
or the INS – problems like outdated computers, hostility to employees
who report problems, lapses in intelligence sharing, and lack of
translation and analytical capabilities, along with what many have
termed “cultural problems.” The Judiciary Committee and its
subcommittees have been focusing on identifying those problems and
finding constructive solutions to fix them. We have worked hard to be
bipartisan and even nonpartisan in this regard. To that end, the
Committee unanimously reported the Leahy- Grassley FBI Reform Act,
S.1974, to improve the FBI, especially at this time when the country
needs the FBI to be as effective as it can be in the war against
terrorism. Unfortunately, that bill has been blocked on the Senate
floor since it was reported by the Judiciary Committee in April, 2002,
by an anonymous Republican hold.
The White House’s
about-face on June 6, 2002, announced just minutes before the
Judiciary Committee’s oversight hearing with FBI Special Agent Coleen
Rowley, telegraphed the President’s new support for the formation of a
new homeland Security Department along the lines that Senator
Lieberman and Senator Specter had long suggested.
Two weeks later,
on June 18, 2002, Governor Ridge transmitted a legislative proposal to
create a new homeland security department. It should be apparent that
knitting together a new agency will not by itself fix existing
problems. In writing the charter for this new department, we must be
careful not to generate new management problems and accountability
issues. Yet the Administration's early proposal would have exempted
the new department from many legal requirements that apply to other
agencies. The Freedom of Information Act would not apply, nor would
the conflicts of interest and accountability rules for agency
advisors. The new department head would have the power to suspend the
Whistleblower Protection Act and the normal procurement rules and to
intervene in Inspector General investigations. In these respects, the
Administration asked us to put this new department above the law and
outside the checks and balances these laws are there to ensure.
Exempting the new
department from laws that ensure accountability to the Congress and to
the American people makes for soggy ground and a tenuous start – not
the sure footing we all want for the success and endurance of this
endeavor.
We all wanted to
work with the President to meet his ambitious timetable for setting up
the new department. Senate Democrats worked diligently to craft
responsible legislation that would establish a new department but
would also make sure that it was not outside the laws. We all knew
that one sure way to slow up the legislation would be to use the new
department as the excuse to undermine or repeal laws not liked by
partisan interests, or to stick unrelated political items in the bill
under the heading of “management flexibility.” Unfortunately, the
Republican leadership and the White House have been unable to resist
that temptation, even as they urge prompt passage of a bill unveiled
for the first time only five days ago.
This bill has its
problems. As I will discuss in more detail in the balance of my
remarks, this legislation has five significant problems. It would:
(1) undermine Federal and State sunshine laws permitting the American
people to know what their government is doing, (2) threaten privacy
rights, (3) provide sweeping liability protections for companies at
the expense of consumers, (4) weaken rather than fix our immigration
enforcement problems, and (5) under the guise of “management
flexibility,” it would authorize political cronyism rather than
professionalism within the new department. These problems are
unfortunate and entirely unnecessary to the overall objective of
establishing a new department of homeland security. Republican
leaders and the White House have forced on the Senate a process under
which these problem areas cannot be substantively and meaningfully
addressed, and that is highly regrettable and a needless blot on this
charter. Though I will support passage of this legislation in order
to get the new department up and running, the flaws in this
legislation will require our attention next year, when I hope to work
with the Administration and my colleagues on both sides of the aisle
to monitor implementation of the new law and to craft corrective
legislation.
The FOIA Exemption
First, the bill
guts the FOIA at the expense of our national security and public
health and safety. This bill eliminates a bipartisan Senate provision
that I crafted with Senator Levin and Senator Bennett to protect the
public’s right to use the Freedom of Information Act (FOIA) in order
to find out what our government is doing, while simultaneously
providing security to those in the private sector that records
voluntarily submitted to help protect our critical infrastructures
will not be publicly disclosed. Encouraging cooperation between the
private sector and the government to keep our critical infrastructure
systems safe from terrorist attacks is a goal we all support. But the
appropriate way to meet this goal is a source of great debate – a
debate that has been all but ignored by the Republicans who crafted
this legislation.
The
Administration itself has flip-flopped on how to best approach this
issue. The Administration’s original June 18, 2002, legislative
proposal establishing a new department carved out a FOIA exemption, in
section 204, and required non-disclosure of any “information”
“voluntarily” provided to the new Department of Homeland Security by
“non-Federal entities or individuals” pertaining to “infrastructure
vulnerabilities or other vulnerabilities to terrorism” in the
possession of, or that passed through, the new department. Critical
terms, such as “voluntarily provided,” were undefined.
The Judiciary Committee had an
opportunity to query Governor Ridge about the Administration’s
proposal on June 26, 2002, when the Administration reversed its
long-standing position and allowed him to testify in his capacity as
the Director of the Transition Planning Office.
Governor Ridge’s testimony at that
hearing is instructive. He seemed to appreciate the concerns
expressed by Members about the President’s June 18th
proposal and to be willing to work with us in the legislative process
to find common ground. On the FOIA issue, he described the
Administration’s goal to craft “a limited statutory exemption to the
Freedom of Information Act” to help “the Department’s most important
missions [which] will be to protect our Nation’s critical
infrastructure.” (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge
explained that to accomplish this, the Department must be able to
“collect information, identifying key assets and components of that
infrastructure, evaluate vulnerabilities, and match threat assessments
against those vulnerabilities.” (Id., at p. 23).
I do not understand why some have
insisted that FOIA and our national security are inconsistent. The
FOIA already exempts from disclosure matters that are classified;
trade secret, commercial and financial information, which is
privileged and confidential; various law enforcement records and
information, including confidential source and informant information;
and FBI records pertaining to foreign intelligence or
counterintelligence, or international terrorism. These already broad
exemptions in the FOIA are designed to protect national security and
public safety and to ensure that the private sector can provide needed
information to the government.
Current law already exempts from
disclosure any financial or commercial information provided
voluntarily to the government, if it is of a kind that the provider
would not customarily make available to the public. Critical Mass
Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc).
Such information enjoys even stronger nondisclosure protections than
does material that the government requests. Applying this exception,
Federal regulatory agencies are today safeguarding the confidentiality
of all kinds of critical infrastructure information, like nuclear
power plant safety reports (Critical Mass, 975 F.2d at 874),
information about product manufacturing processes and internal
security measures (Bowen v. Food & Drug Admin., 925 F.2d 1225
(9th Cir. 1991), design drawings of airplane parts (United
Technologies Corp. by Pratt & Whitney v. F.A.A., 102 F.3d 688 (2d
Cir. 1996)), and technical data for video conferencing software (Gilmore
v. Dept. of Energy, 4 F. Supp.2d 912 (N.D. Cal. 1998)).
The head of the FBI National
Infrastructure Protection Center (NIPC) testified more than five years
ago, in September, 1998, that the “FOIA excuse” used by some in the
private sector for failing to share information with the government
was, in essence, baseless. He explained the broad application of FOIA
exemptions to protect from disclosure information received in the
context of a criminal investigation or a “national security
intelligence” investigation, including information submitted
confidentially or even anonymously. [Sen. Judiciary Subcommittee On
Technology, Terrorism, and Government Information, Hearing on
Critical Infrastructure Protection: Toward a New Policy Directive,
S. HRG. 105-763, March 17 and June 10, 1998, at p. 107]
The FBI also used the confidential
business record exemption under (b)(4) “to protect sensitive corporate
information, and has, on specific occasions, entered into agreements
indicating that it would do so prospectively with reference to
information yet to be received.” NIPC was developing policies “to
grant owners of information certain opportunities to assist in the
protection of the information (e.g., by ‘sanitizing the information
themselves”) and to be involved in decisions regarding further
dissemination by the NIPC.”
Id.
In short, the former
Administration witness stated:
“Sharing between the private sector
and the government occasionally is hampered by a perception in the
private sector that the government cannot adequately protect private
sector information from disclosure under the Freedom of Information
Act (FOIA). The NIPC believes that this perception is flawed in that
both investigative and infrastructure protection information submitted
to NIPC are protected from FOIA disclosure under current law.” (Id.)
Nevertheless, for more than five
years, businesses have continued to seek a broad FOIA exemption that
also comes with special legal protections to limit their civil and
criminal liability, and special immunity from the antitrust laws. The
Republicans are largely granting this business wish-list in the
legislation for the new Department of Homeland Security.
At the Senate Judiciary Committee
hearing with Governor Ridge, I expressed my concern that an overly
broad FOIA exemption would encourage government complicity with
private firms to keep secret information about critical infrastructure
vulnerabilities, reduce the incentive to fix the problems and end up
hurting rather than helping our national security. In the end, more
secrecy may undermine rather than foster security.
Governor Ridge seemed to appreciate
these risks, and said he was “anxious to work with the Chairman and
other members of the committee to assure that the concerns that [had
been] raised are properly addressed.”
Id.
at p. 24. He assured us that “[t]his Administration is ready to work
together with you in partnership to get the job done. This is our
priority, and I believe it is yours as well.”
Id.
at p. 25. This turned out to be an empty promise.
Almost before the ink was dry on the
Administration’s earlier June proposal, on July 10, 2002, the
Administration proposed to substitute a much broader FOIA exemption
that would (1) exempt from disclosure under the FOIA critical
infrastructure information voluntarily submitted to the new department
that was designated as confidential by the submitter unless the
submitter gave prior written consent, (2) provide limited civil
immunity for use of the information in civil actions against the
company, with the likely result that regulatory actions would be
preceded by litigation by companies that submitted designated
information to the department over whether the regulatory action was
prompted by a confidential disclosure, (3) preempt state sunshine laws
if the designated information is shared with state or local government
agencies, (4) impose criminal penalties of up to one year imprisonment
on government employees who disclosed the designated information, and
(5) antitrust immunity for companies that joined together with agency
components designated by the President to promote critical
infrastructure security.
Despite the Administration’s
promulgation of two separate proposals for a new FOIA exemption in as
many weeks, in July, Director Ridge’s Office of Homeland Security
released The National Strategy for Homeland Security,
which appeared to call for more study of the issue before
legislating. Specifically, this report called upon the Attorney
General to “convene a panel to propose any legal changes necessary to
enable sharing of essential homeland security information between the
government and the private sector.” (P. 33)
The need for more study of the
Administration’s proposed new FOIA exemption was made amply clear by
its possible adverse environmental, public health and safety affects.
Keeping secret problems in a variety of critical infrastructures would
simply remove public pressure to fix the problems. Moreover, several
environmental groups pointed out that, under the Administration’s
proposal, companies could avoid enforcement action by “voluntarily”
providing information about environmental violations to the EPA, which
would then be unable to use the information to hold the company
accountable and also would be required to keep the information
confidential. It would bar the government from disclosing information
about spills or other violations without the written consent of the
company that caused the pollution.
I worked on a bipartisan basis with
many interested stakeholders from environmental, civil liberties,
human rights, business and government watchdog groups to craft a
compromise FOIA exemption that did not grant the business sector’s
wish-list but did provide additional nondisclosure protections for
certain records without jeopardizing the public health and safety. At
the request of Chairman Lieberman for the Judiciary Committee’s views
on the new department, I shared my concerns about the Administration’s
proposed FOIA exemption and then worked with Members of the
Governmental Affairs Committee, in particular Senator Levin and
Senator Bennett, to craft a more narrow and responsible exemption that
accomplishes the Administration’s goal of encouraging private
companies to share records of critical infrastructure vulnerabilities
with the new Department of Homeland Security without providing
incentives to “game” the system of enforcement of environmental and
other laws designed to protect our nation’s public health and safety.
We refined the FOIA exemption in a manner that satisfied the
Administration’s stated goal, while limiting the risks of abuse by
private companies or government agencies.
This compromise solution was supported
by the Administration and other Members of the Committee on
Governmental Affairs and was unanimously adopted by that Committee at
the markup of the Homeland Security Department bill on July 24, 2002.
The provision would exempt from the FOIA certain records pertaining to
critical infrastructure threats and vulnerabilities that are furnished
voluntarily to the new Department and designated by the provider as
confidential and not customarily made available to the public.
Notably, the compromise FOIA exemption made clear that the exemption
only covered “records” from the private sector, not all “information”
provided by the private sector and thereby avoided the adverse result
of government agency-created and generated documents and databases
being put off-limits to the FOIA simply if private sector
“information” is incorporated. Moreover, the compromise FOIA
exemption clearly defined what records may be considered “furnished
voluntarily,” which did not cover records used “to satisfy any
legal requirement or obligation to obtain any grant, permit, benefit
(such as agency forbearance, loans, or reduction or modifications of
agency penalties or rulings), or other approval from the Government.”
The FOIA compromise exemption further ensured that portions of records
that are not covered by the exemption would be released pursuant to
FOIA requests. This compromise did not provide any civil liability or
antitrust immunity that could be used to immunize bad actors or
frustrate regulatory enforcement action, nor did the compromise
preempt state or local sunshine laws.
Unfortunately, the new Republican
version of this legislation that we are voting on today jettisoned the
bipartisan compromise on the FOIA exemption, worked out in the Senate
with the Administration’s support, and replaced it with a big-business
wish-list gussied up in security garb. The Republican FOIA exemption
would make off-limits to the FOIA much broader categories of
“information” and grant businesses the legal immunities and liability
protections they have sought so vigorously for over five years. This
bill goes far beyond what is needed to achieve the laudable goal of
encouraging private sector companies to help protect our critical
infrastructure. Instead, it will tie the hands of the federal
regulators and law enforcement agencies working to protect the public
from imminent threats. It will give a windfall to companies who fail
to follow federal health and safety standards. Most disappointingly,
it will undermine the goals of openness in government that the FOIA
was designed to achieve. In short, the FOIA exemption in this bill
represents the most severe weakening of the Freedom of Information Act
in its 36-year history.
In the end, the broad secrecy
protections provided to critical infrastructure information in this
bill will promote more secrecy which may undermine rather than foster
national security. In addition, the immunity provisions in the bill
will frustrate enforcement of the laws that protect the public's
health and safety.
Let me explain. The Republican FOIA
exemption would allow companies to stamp or designate certain
information as “Critical Infrastructure Information” or “CII” and then
submit this information about their operations to the government
either in writing or orally, and thereby obtain a blanket shield from
FOIA’s disclosure mandates as well as other protections. A Federal
agency may not disclose or use voluntarily-submitted and CII-marked
information, except for a limited “informational purpose,” such as
“analysis, warning, interdependency study, recovery, reconstitution,”
without the company’s consent. Even when using the information to
warn the public about potential threats to critical infrastructure,
the bill requires agencies to take steps to protect from disclosure
the source of the CII information and other “business sensitive”
information.
Criminalizing Non-Consensual
Disclosures
The bill contains an unprecedented
provision that threatens jail time and job loss to any government
employee who happens to disclose any critical infrastructure
information that a company has submitted and wants to keep secret.
These penalties for using the CII information in an unauthorized
fashion or for failing to take steps to protect disclosure of the
source of the information are severe and will chill any release of CII
information not just when a FOIA request comes in, but in all
situations, no matter the circumstance. Criminalizing disclosures –
not of classified information or national security related
information, but of information that a company decides it does not
want public -- is an effective way to quash discussion and debate over
many aspects of the government’s work. In fact, under this bill, CII
information would be granted more comprehensive protection under
Federal criminal laws than classified information.
This provision has potentially
disastrous consequences. If an agency is given information from an
ISP about cyberattack vulnerabilities, agency employees will have to
think twice about sharing that information with other ISPs for fear
that, without the consent of the ISP to use the information, even a
warning might cost their jobs or risk criminal prosecution.
This provision means that if a Federal
regulatory agency needs to issue a regulation to protect the public
from threats of harm, it cannot rely on any voluntarily submitted
information -- bringing the normal regulatory process to a grinding
halt. Public health and law enforcement officials need the
flexibility to decide how and when to warn or prepare the public in
the safest, most effective manner. They should not have to get “sign
off” from a Fortune 500 company to do so.
While this legislation risks making it
harder for the government to protect American families, it will make
it much easier for companies to escape responsibility when they
violate the law by giving them unprecedented immunity from civil and
regulatory enforcement actions. Once a business declares that
information about its practices relates to critical infrastructure and
is “voluntarily” provided, it can then prevent the federal government
from disclosing it not just to the public, but also to a court in a
civil action. This means that an agency receiving CII-marked
submissions showing invasions of employee or customer privacy,
environmental pollution, or government contracting fraud will be
unable to use that information in a civil action to hold that company
accountable. Even if the regulatory agency obtains the information
necessary to bring an enforcement action from an alternative source,
the company will be able to tie the government up in protracted
litigation over the source of the information.
For example, if a company submits
information that its factory is leaching arsenic in ground water, that
information may not be turned over to local health authorities to use
in any enforcement proceeding nor turned over to neighbors who were
harmed by drinking the water for use in a civil tort action.
Moreover, even if EPA tries to bring an action to stop the company's
wrongdoing, the “use immunity” provided in the Republican bill will
tie the agency up in litigation making it prove where it got the
information and whether it is tainted as "fruit of the poisonous tree"
-- i.e., obtained from the company under the "critical infrastructure
program."
Similarly, if the new Department of
Homeland Security receives information from a bio-medical laboratory
about its security vulnerabilities, and anthrax is released from the
lab three weeks later, the Department will not be able to warn the
public promptly about how to protect itself without consulting with
and trying to get the consent of the laboratory in order to avoid the
risk of job loss or criminal prosecution for a non-consensual
disclosure. Moreover, if the laboratory is violating any state, local
or federal regulation in its handling of the anthrax, the Department
will not be able to turn over to another Federal agency, such as the
EPA or the Department of Health and Human Services, or to any State or
local health officials, information or documents relating to the
laboratory’s mishandling of the anthrax for use in any enforcement
proceedings against the laboratory, or in any wrongful death action,
should the laboratory’s mishandling of the anthrax result in the death
of any person. The bill specifically states that such CII-marked
information “shall not, without the written consent of the person or
entity submitting such information, be used directly by such agency,
any other Federal, State, or local authority, or any third party, in
any civil action arising under Federal or State law if such
information is submitted in good faith.” [H.R. 5710, section
214(a)(1)(C)]
Most businesses are good citizens and
take seriously their obligations to the government and the public, but
this “disclose-and-immunize” provision is subject to abuse by
those businesses that want to exploit legal technicalities to avoid
regulatory guidelines. This bill lays out the perfect blueprint to
avoid legal liability: funnel damaging information into this voluntary
disclosure system and pre-empt the government or others harmed by the
company’s actions from being able to use it against the company. This
is not the kind of two-way public-private cooperation that our country
needs.
The scope of the information that
would be covered by the new Republican FOIA exemption is overly broad
and would undermine the openness in government that FOIA was intended
to guarantee. Under this legislation, information about virtually
every important sector of our economy that today the public has a
right to see can be shut off from public view simply by labeling it
“critical infrastructure information.” Today, for example, under
current FOIA standards, courts have required federal agencies to
disclose (1) pricing information in contract bids so citizens can make
sure the government is wisely spending their taxpayer dollars; (2)
compliance reports that allow constituents to insist that government
contractors comply with federal equal opportunity mandates; and (3)
banks’ financial data so the public can ensure that federal agencies
properly approve bank mergers. Without access to this kind of
information, it will be harder for the public to hold its government
accountable. Under this bill, all of this information may be marked
CII information and kept out of public view.
The Republican FOIA exemption goes so
far in exempting such a large amount of material from FOIA’s
disclosure requirements that it undermines government openness without
making any real gains in safety for families in Vermont and across
America. We do not keep America safer by chilling federal officials
from warning the public about threats to their health and safety. We
do not ensure our nation’s security by refusing to tell the American
people whether or not their federal agencies are doing their jobs or
their government is spending their hard earned tax dollars wisely. We
do not encourage real two-way cooperation by giving companies
protection from civil liability when they break the law. We do not
respect the spirit of our democracy when we cloak in secrecy the
workings of our government from the public we are elected to serve.
Notably, another part of the bill,
section 892, would further undermine government sunshine laws by
authorizing the President to prescribe and implement procedures
requiring Federal agencies to “identify and safeguard homeland
security information that is sensitive but unclassified.” The precise
type of information that would be covered by this new category of
“sensitive” information that is not classified but subject to carte
blanche executive authority to keep secret is not defined and no
guidance is provided in the Republican bill as to how far the
President may go.
As the Rutland Herald so aptly
put it in an editorial on November 16, the Republicans “are moving to
cloak the federal government in an unprecedented regime of secrecy.”
The argument over the scope of the FOIA and unilateral executive power
to shield matters from public scrutiny goes to the heart of our
fundamental right to be an educated electorate aware of what our
government is doing. The Rutland Herald got it right in
explaining: “The battle was not over the right of the government to
hold sensitive, classified information secret. The government has
that right. Rather, the battle was over whether the government would
be required to release anything it sought to withhold.”
Second, extraneous provisions added by
the House also pose significant privacy risks. As I noted before,
increased information sharing is necessary but also poses privacy
risks if the government is not properly focused on the information
necessary to collect, the people appropriate to target for
surveillance and the necessary controls to ensure that dissemination
is confined to those with a need to know.
Recent press reports have warned that
this bill will turn it into a “supersnoop’s dream” because it will
allow creation of a huge centralized grand database containing a
dossier or profile of private transactions and communications that
each American has had within the private sector and with the
government. Indeed, in section 201, the bill authorizes a new
Directorate for Information Analysis and Infrastructure Protection to
collect and integrate information from government and private sector
entities and to “establish and utilize ... data-mining and other
advanced analytical tools.” In addition, in section 307, the bill
authorizes $500,000,000 next year to be spent by a new Homeland
Security Advanced Research Projects Agency (HSARPA) to make grants to
develop new surveillance and other technologies for use in detecting,
preventing and responding to homeland security threats.
We do not want the Federal government
to become the proverbial “big brother” while every local police and
sheriff’s office or foreign law enforcement agency to become “little
brothers.” How much information should be collected, on what
activities and on whom, and then shared under what circumstances, are
all important questions that should be answered with clear guidelines
understandable by all Americans and monitored by Congress, in its
oversight role, and by court review to curb abuses.
Other provisions added in haste to the
Republican House-passed bill raise serious concerns about privacy
protections for the sensitive electronic communications of law-abiding
Americans. In particular, the so-called "emergency disclosure"
amendment in section 225(d) would greatly expand the ability of
Internet service providers to reveal private communications to
government agencies without any judicial authority or any evidence of
wrongdoing.
As Americans move their lives online,
the privacy of their sensitive e-mails, instant messages, and web
traffic is of growing concern. Current law protects the privacy of
electronic communications by prohibiting service providers from
revealing the contents of those communications to anyone without
proper lawful orders. Emergency disclosure provisions exist in the
current law based on the reasonable premise that ISPs who encounter an
imminent threat of death or serious injury should be able to reveal
communications to law enforcement agencies on an emergency basis, even
without judicial oversight. We just recently expanded that emergency
exception a year ago in the USA PATRIOT Act to provide even more
flexibility for service providers.
In practice, however, the emergency
disclosure authority is being used in a different way. Reports in the
press and from the field indicate that ISPs, universities, and
libraries are approached by government agents and asked to disclose
communications “voluntarily” for ongoing investigations. Providers
are then faced with a terrible choice -- turn over the private
communications of their customers without any court order, or say “no”
to a government request. Of course, many comply with the requests.
Small providers have few legal resources to challenge such requests.
The agents who are making the requests may be the same agents to whom
the providers will have to turn for help in the event of hacking
attacks or other problems. So without proper restrictions, such
"voluntary disclosure" provisions risk becoming a major exception to
the law. Section 225(d) takes this exception even further and turns
it into a loophole big enough to drive a truck through. It would
allow literally thousands of local, State and Federal employees to
seek private e-mails, instant messages, and other sensitive
communications, without any judicial orders or even a subpoena. ISPs
could turn over those communications based on vague concerns of future
injury to someone, even if those concerns are totally unreasonable.
Section 225(d) makes three important
changes to the already very generous authorities for these
extraordinary disclosures, which Congress gave to law enforcement in
the USA PATRIOT Act just one year ago. First, it would remove the
requirement that there be "imminent" danger of injury or death.
Instead it would allow these extraordinary disclosures when there is
some danger, which might be far in the future and far more
hypothetical. As the Attorney General and the President have warned
us consistently over the last year, the entire country faces some risk
of future attack. Under this new language, there will now always be a
rationale for using the so-called "emergency" disclosure provision.
Second, section 225(d) would remove
even the low hurdle that there be a "reasonable belief" in danger on
the part of the ISP. Instead, this new provision would allow these
sensitive disclosures if there is any good faith belief – even if
totally unreasonable – of danger. Vague, incoherent, or even
obviously fictitious threats of future danger could all form the basis
for disclosing our most private electronic communications under this
new provision of law.
Finally, section 225(d) would allow
disclosure of sensitive communications to any local, State or Federal
government entity, not just law enforcement agents. That could
include literally hundreds of thousands of government employees. The
potential for abuse is enormous. More importantly, in cases of real
threats of death or serious injury, it is law enforcement agencies
--trained to deal with such situations and cognizant of legal
strictures -- who should be the first contact point for concerned
citizens.
As a result of Section 225(d), many
more disclosures of sensitive communications would be permitted
without any court oversight. Moreover, these disclosures would happen
without any notice to people – even after the fact – that their
communications have been revealed. It would allow these disclosures
to be requested by potentially thousands of government employees,
ranging from cotton inspectors to dogcatchers to housing department
administrators.
The public's most sensitive e-mails,
web transactions, and instant messages sent to loved ones, business
associates, doctors and lawyers, and friends deserve the highest level
of privacy we can provide. The provisions of section 225(d) make a
mockery of our privacy laws, and the carefully crafted exceptions we
have created in them, by allowing disclosure of our most private
communications to thousands of government officials based on the
flimsiest of excuses. These provisions were never approved by any
committee in the Senate, are not in the interests of the American
people, and should not now be finding there way into the law of the
land.
Third, the bill provides liability
protections for companies at the expense of consumers. I am
disappointed that the measure also contains sweeping liability
protection for corporate makers of vaccines and any other products
deemed to be “anti-terrorism technology” by the Secretary of Homeland
Security. This unprecedented executive authority to unilaterally
immunize corporations from accountability for their products is
irresponsible and endangers the consumers and our military service men
and women.
These provisions, for example, would
apply to negligence, gross negligence and even willful misconduct in
producing vaccines, gas masks, airport screening machines and any
other “anti-terrorism technology” used by the general public and our
service men and women.
In addition, the bill would completely
eliminate punitive damages against the maker of such a defective
product. Without the threat of punitive damages, callous corporations
can decide it is more cost-effective to continue cutting corners
despite the risk to American lives. This would let private parties
avoid accountability in cases of wanton, willful, reckless or
malicious conduct.
There is no need to enact these
special legal protections and take away the rights of victims of
defective products. At a time when the American people are looking
for Congress to take measured actions to protect them from acts of
terror, these “tort reform” proposals are unprecedented, inappropriate
and irresponsible. At the very moment that the President is calling
on all Americans to be especially vigilant, this legislation lets
special interests avoid their responsibility of vigilance under
existing law.
I am disappointed that some may be
taking advantage of the situation to push “tort reform” proposals that
have been rejected by Congress for years. This smacks of political
opportunism. I strongly oppose rewriting the tort law of each of the
50 states for the benefit of private industry and at the expense of
consumers and our service men and woman, and their families.
Further, I am saddened that this
so-called compromise provides retroactive liability protection for
some private airport security firms involved in the September 11th
terrorist attacks. Last year, Congress explicitly excluded private
airport security firms from the liability limits for airlines in the
Aviation and Transportation Security Act because we did not know if
any airport screening firm may have contributed to the September 11th
attacks through willful misconduct or negligence. Unfortunately, we
still do not know all the facts regarding the 9/11 attacks because the
Bush Administration has opposed Congressional oversight and an
independent commission to investigate the attacks.
This special-interest provision in the
so-called compromise is a travesty to the families of the victims of
September 11th. Indeed, I have already been contacted by a
family member of a 9/11 victim outraged by this retroactive liability
protection. I share their outrage.
I also find it particularly galling,
that just because "the White House wants it," this bill includes a
provision that blatantly puts the interests of a few corporate
pharmaceutical manufacturers before the interests of thousands of
consumers, parents and children. Sections 714 through 716 give a "get
out of court free card" to Eli Lilly and other manufacturers of
thimerasol. Let's be clear, this provision has nothing to do with
homeland security. Smallpox and anthrax vaccines do not use
thimerosal. Thimerasol is a mercury-based vaccine preservative that
was used until recently in children's vaccines for everything from
hepatitis B to diphtheria. By making changes to the Vaccine Injury
Compensation Program sought by the pharmaceutical industry, this
provision cuts the legs out from under thousands of parents currently
in court seeking compensation for the alleged harm caused by
thimerosal.
For years, I have been working to
remove sources of mercury from our environment because of the
neurological effect of mercury on infants and children. Although Eli
Lilly's own documents show that they knew of the potential risks from
mercury-based preservatives in
the 1940s, its use was not
stopped until 1999 when pediatricians and the Public Health Service
acted. Instead of looking into why pharmaceutical companies and the
federal government failed to act for so long or improving the current
compensation system, the Homeland Security bill takes away the legal
options of parents and gives pharmaceutical companies new protections
from large penalties.
Fourth, the bill weakens immigration
enforcement just when we need it the most. The Republican
House-passed bill fails to take important steps to help fix and
restructure our immigration agencies. This Republican package
abandons the close coordination between immigration enforcement and
immigration services that was included in the Lieberman amendment to
the Homeland Security bill. Instead, immigration enforcement falls
under the Undersecretary for Border and Transportation Policy, while
immigration services are relegated to a bureau that lacks its own
undersecretary. Apparently, the Undersecretary for Border and
Transportation Security is expected to be an expert in immigration
enforcement, FEMA, agriculture, and other issues. Meanwhile, there is
no one figure within the Homeland Security Department who is
responsible for immigration policy. Testimony before the Judiciary
Committee showed clearly the numerous links between the enforcement of
our immigration laws and the provision of immigration benefits – it is
unfortunate that this bill fails to acknowledge those links.
Unfortunately, this legislation fails
to codify the Executive Office of Immigration Review appropriately.
Instead of defining the functions, shape, and jurisdiction of the EOIR,
as the Lieberman amendment did, it simply says there shall be an EOIR
and the Attorney General shall have complete discretion over it. It
is critical that both immigrants and the government have a meaningful
opportunity to appeal adverse decisions, and we should have done more
through this legislation to guarantee it.
In addition, I am disappointed that
provisions designed to guarantee decent treatment for unaccompanied
minors were not included in the Republican amendment. Through Senator
Feinstein’s leadership, the Lieberman substitute assured that
unaccompanied alien minors receive counsel. The Judiciary Committee
heard earlier this year from children who had been mistreated by the
immigration system, and we had a real opportunity to solve that
problem through this bill. We have failed to take advantage of that
opportunity.
I will continue to work to ensure that
the reorganization of our immigration service proceeds in as orderly
and appropriate a fashion as possible. I have spoken often about the
valuable service provided by employees of the Immigration and
Naturalization Service in Vermont, and the need to retain their
expertise in any reshuffling of the agency’s functions. We will not
make our nation safer by alienating, underutilizing, or discarding
knowledgeable employees, and I will do what I can to prevent that
outcome.
Finally, the bill undermines the
professionalism in favor of the “management flexibility” to engage in
political cronyism at the new Department. Although it has already
received substantial comment, I want to add my voice to those who have
criticized the Administration for its heavy-handed and wrong-headed
approach to the rights of employees who will come under the new
Department. At the same time we are seeking to motivate the
government workers who will be moved to the new Department with an
enhanced security mission, the Administration is insisting on
provisions that threaten the job security for these hardworking
government employees.
The Administration should not use this
transition as an excuse to cut the wages and current workplace
security and rights of the brave employees who have been defending the
nation. That is not the way to encourage retention or recruitment of
the vital human resources on which we will need to rely.
I represent some of those employees
and have firsthand knowledge of their dedication to our nation and
their jobs. Contrary to the Administration’s pre-election rhetoric,
where disputes over employment conditions have had potential effects
on the public safety, they have been resolved quickly. I am
disappointed that the bill we consider today contains so few
protections for these vital employees, and that the White House chose
to use these valuable public servants in an election year tactic.
The Oversight Imperative
So our vote today will help answer the
question of whether a new Department of Homeland Security will be
created – a question that has never really been at issue or in doubt.
Perhaps there are members of the Senate who oppose creation of this
Department, though I am not aware of such opposition. But many
troubling questions remain about the “hows” as we move forward to
charter this massive new agency. A process has been imposed on the
Senate that prevents addressing them adequately in the remaining hours
of this session. But answering and resolving these questions, in the
interest of the security and privacy and well-being of the American
people, will be an imperative that the Administration and the next
Congress must not shirk.
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