All Aboard the Homeland Security Express
On November 19, 2002, the Senate on a 90-9 vote sent to the President a bill to create a new Department of Homeland Security. Notwithstanding the merits of creating a new Department, the bill has a number of provisions that will seriously undermine agency and corporate accountability. The final bill is loaded with just about all the bells and whistles Republicans and corporations wanted.
Perhaps the most flawed provision is a new exemption to the Freedom of Information Act. Information "related to the security of critical infrastructure or protected systems" that companies voluntarily give to the new Department will now be automatically withheld from public disclosure. Moreover, the information cannot be used in civil suits and any Department employee providing such information will face criminal penalties, thereby undermining basic whistleblower protections. As if that was not enough, the bill pre-empts state law to insure that the information is not disclosed by state openness laws. And to round things out, the non-disclosable information submitted by corporations can still be used in regulatory matters, but would not be in the public record, creating a highly unusual ex parte communication.
It is not hard to imagine how corporations can misuse this new provision to safeguard themselves from lawsuits. When in doubt stamp critical infrastructure information on the materials and "voluntarily" send it to the new Department. That way the company will not be held liable for danger caused to the public.
It is shocking that this over-reaching provision made it into the final bill. A more reasonable bipartisan approach was agreed to by Senators Robert Bennett (R-UT), Patrick Leahy (D-VT), and Carl Levin (D-MI). According to Senator Bennett, the administration and corporations could live with the compromise. According to Senator Levin, the good government groups and newspaper editors could live with the compromise. But that was before the elections. The House Republicans had this more extreme version and pushed hard. The administration did nothing. Now we are left with a lockbox of secrecy and corporate immunity.
Another extremely troubling provision in the bill sent to the President exempts the new Department from the Federal Advisory Committee Act (FACA). FACA requires agencies to meet standards of openness, accountability, and balance of viewpoints when establishing or operating any advisory committee. Exempting the new Department from FACA requirements severely undermines the openness and public access goals of FACA. Departmental advisory committees will have meetings that are not 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.
There were a host of other inappropriate special interest provisions. For example, one provision gives liability protection to pharmaceutical companies that make a mercury-based vaccine preservative that may cause autism in children.
During the final period of debate on the Homeland Security Bill Senators Tomas Daschle (D-SD) and Joseph Lieberman (D-CT) offered an amendment to remove the FACA exemption and several other corporate giveaways. Unfortunately the FOIA issue was not among the provisions the amendment attempted to repair. The Senate failed to pass the amendment, on 52 against and 47 for vote, with President Bush reportedly calling several wavering Senators to preserve the provisions. The Homeland Security Bill steamed through Congress loaded down with contentious and harmful provisions that provide little to no additional security. Sections of the bill read as a veritable industry wish list of loopholes and giveaways that will soon become entrenched and nearly impossible to remove or repair.
We are sorely disappointed that a serious discussion about reducing vulnerabilities to terrorism has been hijacked by selfish corporate greed. In this era of Enron-plagued scandals, one would think Congress and the administration could do better.