Security Bill Raises Constitutional Concerns

Security Bill Raises Constitutional Concerns

Jeff Johnson, CNSNews.com
Saturday, July 13, 2002

WASHINGTON – Provisions of the legislation proposed to create a Department of Homeland Security have raised concerns about constitutional rights and open government among some members of Congress.

The Homeland Security Act of 2002 (H.R. 5005) would establish a Department of Homeland Security (DHLS) as an executive department of the United States, headed by a secretary who would be appointed by the president with the "advice and consent" of the Senate.

The bill identifies the primary mission of DHLS as reducing U.S. vulnerability to, minimizing damage from, assisting in recovery from, and preventing terrorist attacks. To accomplish those goals, the bill shifts several areas of government responsibility to the department:

Information analysis and infrastructure protection.

Chemical, biological, radiological, nuclear and related countermeasures.

Border and transportation security.

Emergency preparedness and response.

Coordination (including the provision of training and equipment) with other executive branch agencies, with state and local governments, with the private sector, and with other entities as needed to accomplish the agency's mission.

A total 153 agencies, departments and offices of the federal government currently have jurisdiction over aspects of homeland security identified in the bill. Much of that responsibility will be transferred to the new department under the proposal.

Secrecy

H.R. 5005 also exempts DHLS from the Freedom of Information Act (FOIA) under certain circumstances. That worries Connecticut Democrat Rosa DeLauro, a member of the House Select Committee on Homeland Security.

"The president's proposal exempts the new department from complying fully with the Freedom of Information Act," she said Thursday. "The legislation does include really broad exemptions to basic good-government laws, government sunshine laws, if you will."

Section 204 of the bill does, in fact, exempt "information provided voluntarily by non-federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism" from the FOIA.

Rep. Rob Portman, R-Ohio, who also serves on the committee, said he believes the exemption is justified not to help government "hide" information, but to protect the legitimate interests of business that voluntarily help the government.

"I think it's very narrowly drawn," he told DeLauro. "It's drawn to ... [match] the risks out there domestically with what the threat is. On the risk side, you want the private sector to provide us with [information about] what those risks are including infrastructure risks.

"And what the private sector needs, of course, is some protection that they're not going to provide this kind of information and then have it subject to FOIA."

Portman says businesses would be unwilling to disclose needed information, detailing their weaknesses, to the new DHLS if they had to fear that information could fall into the hands of competitors.

'Liberty Is What We're Securing'

Attorney General John Ashcroft, testifying before the committee, assured DeLauro that he and all other administration officials take concerns about open government and civil liberties seriously.

"For those who say we have to make a choice between liberty and security, I always want to say: Liberty is what we're securing," he said. "If we're not securing liberty we've got our eyes on the wrong objective.

"We've got to 'think outside the box.' We can't do things the way we've always done them, because we must change in order to be able to better protect," Ashcroft said. "But while we think outside the box, we can never think outside the Constitution."

Read more on this subject in related Hot Topics:

Bush Administration

Homeland/Civil Defense

War on Terrorism

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