Homeland Security Act Poses Threat to Government Oversight, Civil Rights and Liberties

The Senate passed the Homeland Security Act today, clearing the way for the act to go to President Bush.

With attention largely focused on the adequacy of civil service protections in the Homeland Security Act, several of the massive bill’s provisions that increase government secrecy and reduce accountability have been virtually ignored. The new 170,000 employee agency could potentially menace the civil rights and liberties of all Americans in the execution of its mission, People For the American Way President Ralph G. Neas said today.

“There is no doubt that America must boldly address the need to protect our nation from the threat of terrorism. However, as with the USA Patriot Act, this bill does so before the government has sufficiently examined what failures led to the terrorist attacks, an effort that is only now beginning. When instituting the largest government reorganization in fifty years, the needs of Congress, citizens, and the press for information about the agency’s operations and findings should be protected and strengthened. Instead, this bill weakens accountability and openness, potentially creating a secretive and virtually unchecked executive agency,” Neas said.

People For the American Way supported an earlier proposal by Harvard Law School professor Christopher Edley and others to create a deputy inspector general within the Department of Homeland Security to focus solely on the new agency’s impact on civil rights and liberties. Investigations by this official would have served as a critical check on the sprawling new department’s weak protections for these fundamental freedoms. No such proposal is in the final legislation.

The new agency will be responsible for border security, travel safety, and counter-terrorism investigations, including using public and private information to create a broad database of the American populace. With racial profiling and wide-ranging ‘no-fly’ lists already being used by the Transportation Safety Administration to restrict air travel, hundreds of civil right abuses already have been documented.

“There is a significant threat that this new department will abuse civil rights and infringe on civil liberties. Unfortunately, opportunities to attack the legitimate rights of Americans are widespread in our new reality, from harassing immigrants to the collection of massive quantities of data on all Americans, innocent and otherwise,” Neas said. “Without vigilant oversight by Congress and accountability to U.S. citizens, the Department of Homeland Security has the potential to seriously impact freedom in America.”

Several provisions in the current version of the Homeland Security Act (HR 5710) are cause for concern:

  • Comprehensive Domestic Data Base: Title II of the Homeland Security Act establishes a Directorate for Information Analysis and Infrastructure Protection, charged with creating and maintaining a massive data base of public and private information on virtually any individual in the United States. Under this Title, information on private citizens’ credit card purchases, telephone calls, banking transactions, and travel patterns could be compiled and used to assemble a “profile” which might mark innocent people as terrorist suspects if their “profile” matches that of a known or suspected operative.
  • Watered Down Inspector General Role: Sec. 811(b) of the Act permits the Secretary of Homeland Security to prohibit the Inspector General from carrying out or completing any audit or investigation if the Secretary determines that the prohibition is necessary to prevent the disclosure of sensitive national security information. In other words, the IG cannot even conduct an internal investigation — and provide findings to Congress as do other federal Inspectors General — if the Secretary second-guesses him or her and prohibits the investigation from occurring at all.
  • Freedom of Information Act Exemption: Sec. 214 of the Act provides a blanket exemption for voluntarily submitted information about critical infrastructure and systems for protecting that infrastructure. This blanket exemption is unnecessary, as the Freedom of Information Act already exempts classified national security information from disclosure. The blanket exemption does, however, keep DHS from having to defend non-disclosure of information in a court of law. Therefore, while the Central Intelligence Agency, for instance, would have to prove to a judge that certain information met the qualifications of a FOIA exemption, the DHS would have to do no such thing. The ability of citizens and the press to seek redress in court is a pillar of an open society, and this exemption knocks down that pillar.

    “The creation of a Department of Homeland Security represents an opportunity to meet this new challenge with flexible, powerful protections for our diverse, modern nation,” Neas said. “Unfortunately, as with this administration’s maneuvers in creating the USA Patriot Act, the Homeland Security Act includes many provisions which should be opposed because they are contrary to the interests — and threatening to the freedom — of the American people.”

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