Homeland Security: Gilmore's Rebuke

By David Sirota, Christy Harvey and Judd Legum, The Progress Report. Posted December 16, 2003.

A federal advisory panel headed by Jim Gilmore (the Gilmore Commission), former Republican Party chairman and Governor of Virginia, issued a report early this morning that sharply criticized the Administration's anti-terror policies. The Gilmore Commission cautioned that "important civil liberties issues must be considered when evaluating measures for combating terrorism." When considering anti-terrorism policies the government must "look ahead at the unintended consequences of politics in the quiet of day instead of the crisis of the moment." Strategic planning is necessary to combat terrorism but, according to the Gilmore Commission, "there is probably nothing more strategic that our nation must do than ensure our civil liberties."

Reframing The Debate: The Gilmore Commission notes that the framers of the Constitution "were acutely aware of the fragility of their nascent nation" but even in this "uncertain and insecure environment, the framers chose not to consolidate power and restrict freedoms but to devolve power and protect civil liberties." On a fundamental level, the commission believes that the "debate should be reframed." Instead of "the traditional portrayal of security and civil liberties as competing values that must be weighed on opposite ends of a balance, these values should be recognized as mutually reinforcing." The panel concluded we should evaluate "each initiative as well as the combined effect of all initiatives to combat terrorism in terms of how well they preserve all of the 'unalienable rights' that the founders believed were essential to the strength and security of our nation." To that end, the Gilmore Commission recommends that the President establish "an independent, bipartisan civil liberties oversight board to provide advice on any change to statutory or regulatory authority or implementing procedures for combating terrorism that has or may have civil liberties implications." (For more on how security and liberty can be mutually reinforcing see the American Progress Report: Strengthening America by Protecting Our Liberties).

An End Run Around The Fourth Amendment: The Gilmore Commission recommends that "we should not move away from the traditional requirement for a criminal predicate to justify law enforcement activity." But according to a WP report, the federal government has done just that. The FBI has implemented new ground rules that, "essentially eliminate, rather than merely blur, the traditional boundaries separating criminal and intelligence investigations." As a result, "FBI agents and federal prosecutors will conduct many more searches and seizures in secret, as allowed under intelligence laws, rather than being constrained by the rules of traditional criminal warrants." According to Joshua L. Dratel the newly revealed policy will "result in a funneling of all cases into an intelligence mode. It's an end run around the Fourth Amendment."

White House Needs A Strategy: Beyond infringing on civil liberties, the panel expresses concern that the Administration's anti-terrorism policies are disorganized, ineffective and unsustainable. The commission expressed concern that the Administration's momentum on the issue "may have been interrupted, that scarce resources may not have been prioritized and applied most effectively, [and] that fragmentation continues to hamper efforts for better coordination across all levels of government and with the private sector." The commission believes that "much is still required in order to achieve an effective, comprehensive, unified national strategy and translate vision into action." Because the DHS "does not have overarching authority for directing all aspects of the homeland security mission," it is the responsibility of the White House "to provide the strategic vision and interagency policy coordination within the Federal Executive Branch." For more on homeland security, see the Center for American Progress Homeland Security page.

States Uninformed, Unprepared: In states and localities there is "a lack of clear strategic guidance from the Federal level about the definitions and objects of preparedness." Continuing problems with information sharing mean "state and local officials are both not receiving the information they need to make strategic decisions and are not consistently providing Federal authorities with critical intelligence and information developed at the local level that may have measurable implications for national security." The Federal government has initiated many counterterrorism programs "without sufficient mechanisms in place at the states, and especially at the local level, to accomplish these tasks and to obtain meaningful input on their efficacy." This has resulted in "continuing fragmentation and potential misapplication of resources."

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