Room for a View > Legislative Analysis
Secrecy isn't Security
by Todd Paul; Illustration by Sarit Ben-Joseph

Civil rights advocates concerned about
Department of Homeland Security

On November 25, George Bush signed into law the Homeland Security
Act, a massive document that establishes the new Department of Homeland Security and begins the most far-reaching reorganization of the federal government in half a century.

In response to the terrorist attacks of September 11, 2001, and to charges of poor coordination and information sharing among the country’s various intelligence agencies prior to those attacks, the hsa concentrates in a single cabinet department a constellation of powers and responsibilities previously assigned to 22 agencies as diverse as the National Institute of Standards and Technology and the Departments of Commerce, Agriculture and Health and Human Services, as well as the aforesaid intelligence agencies and the Department of Defense, while completely absorbing other agencies, such as the Immigration and Naturalization Service. It also opens a new era in government information-gathering, further weakens the Freedom of Information Act, protects certain companies from the threat of lawsuits, expands governmental secrecy, threatens whistle-blowers, and presents a challenge to those seeking citizen oversight of the federal government.
As adopted, the hsa differs somewhat from earlier versions. Following opposition from an unlikely alliance of rights-conscious liberals and conservatives—even William Safire, former speechwriter for Richard Nixon, warned in a November 14 New York Times editorial about “Total Information Awareness”—several of the more outre aspects of the original bill were deleted. These included the proposed “tips” program, under which delivery people, plumbers, truck drivers and electricians would have been encouraged to spy on their customers; also expressly excluded from the hsa is any authorization of a national identification system or card.

But much remains in the legislation to trouble civil rights activists. For example, Title II of the hsa creates a “Directorate for Information Analysis and Infrastructure Protection” charged with gathering and analyzing any and all information from any source, public or private, for purposes of terrorism prevention. In practical terms, this means all your personal information—credit card purchases, travel reservations, medical prescriptions, email, Internet activity, bank deposits, magazine subscriptions and academic grades—would end up in a single, huge government database, to be mined for clues to potential terrorist activity.
According to Jim Dempsey, deputy director of the Center for Democracy and Technology, the problem with such a database is not the amount of information gathered, but the way in which it might be used. Dempsey refers to what he calls the fundamental rule of information privacy: “The farther removed information gets from the purpose for which it was collected, the more likely it is to be misinterpreted.” For example, educators might correctly use high school test scores to place students in advanced, general or remedial classes; but non-educators in the Department of Homeland Security could misinterpret or misapply the same scores if they attempted to use them to predict which students might be susceptible to recruitment by terrorist groups.

Dempsey stresses that the cdt fervently supports the sharing of information for intelligence purposes, since the lack of such sharing was one of the biggest failings pre-9/11. But, he says, his concern is that information generated for commercial purposes, such as travel records, credit histories and the like, will be used to deny people employment, travel, and other opportunities, in the name of preventing terrorism.
An article recently published in the online journal Salon provides a salient example. According to author Dave Lindorff, the new federal Transportation Security Administration has confirmed that it maintains an air-travel blacklist of some 1,000 people “who are deemed ‘threats to aviation’ and not allowed on airplanes under any circumstances.” Another list, Lindorff speculates, may alert airport personnel to people who should be subjected to strict scrutiny before boarding. Thus some Green Party functionaries, clergy, left-wing journalists, right-wing activists, peaceniks and people affiliated with Arab-American groups complain that they are delayed at every flight, “randomly” pulled out of line to be searched and questioned. When they ask why they have been singled out, they are told that their name is “on a list” spat out by the airport computers. According to Lindorff’s source, the lists are generated by various intelligence agencies—and it’s not clear, once on the lists, if there’s any way to get one’s name off.

“It’s bad enough when the federal government has lists like this with no guidelines on how they’re compiled or how to use them,” says Barbara Olshansky, assistant legal director for the Center for Constitutional Rights, who was interviewed by Lindorff after being repeatedly singled out in airport lines for questioning and searches. “But when these lists are then given to the private sector, there are even less controls over how they are used or misused.” Airlines, understandably nervous in the post-9/11 climate, are likely to bar passengers at the first whiff of suspicion; this, says Olshansky, combined with the government’s mysterious lists, creates a “tremendous chilling of the First Amendment right to travel and speak freely.”

Dempsey is concerned about the “wheat to chaff ratio” of such “watch lists” and suggests that with unlimited access to such a breadth and depth of raw personal data, the dhs may simply drown in information, with the result that the bad guys slip through while innocent people are harassed. “We could end up with both a loss of privacy.... a damage to people’s lives through blacklisting... and still miss the real bad guys, who are still out there,” he says.

All of which, of course, assumes that those in possession of the information are using it in good faith. There is always the possibility that an insider will misuse information for personal gain. A third level of risk is reached when the bad faith misuse of information is done not for monetary but for political gain—for example, if people’s names were to appear on watch lists due to party affiliation. “I’m not at this point raising that risk, because it does involve an imputation of bad faith,” says Dempsey. “I focus on what will happen with good people working under pressure.... and even there, the risks are high.”

Dempsey has just completed a comprehensive report on the dhs and privacy concerns. It is available online at www.cdt.org/security/homelandsecurity dept/021210cdt.shtml. In it, he notes the inclusion in the hsa of the Cyber Security Enhancement Act, previously a freestanding bill, and one of particular concern to the Center for Democracy and Technology. The csea “includes a provision undermining privacy online by greatly expanding the ability of Internet service providers to voluntarily disclose information to government officials. Under the provision, the contents of email messages or instant messages can be given to any government official in an emergency even when there is no factual basis stated for the emergency and there is no imminent threat of injury.”

Dempsey’s report also notes that under the hsa, “critical infrastructure” is exempted from Freedom of Information Act inquiries. Any agency can now claim to be part of the nation’s “critical infrastructure” and thereby immune to foia requests, and companies can submit critical information to the dhs, which would then be kept from public scrutiny. (Ironically, Donald Rumsfeld was a cosponsor of the Freedom of Information Act in 1966, when he was a congressman from Illinois. In a floor speech supporting the Act, Rumsfeld said, “Disclosure of government information is particularly important today, because the government is becoming involved in more and more aspects of every citizen’s personal and business life.”) Exactly how this would happen is unclear, as the exact procedures are to be worked out following the creation of the department.

And, in a passage reminiscent of Enron’s cozy relationship with Dick Cheney’s Energy Task Force, Dempsey notes that Section 871 allows the dhs to “form advisory committees with industry representatives that are exempt from the Federal Advisory Committee Act (faca), an open government law. faca promotes openness and accountability through requiring the recording of minutes, notice of meetings, procedures for holding open meetings, limits on special interests, and balance of viewpoints.”

The hsa does provide for a number of functionaries and officers within the department who are supposed to guarantee that its powers are applied correctly. For example, Section 222 establishes a “privacy officer” whose job it is to ensure that the privacy protections of citizens are upheld and that fair information practices, as set out in the Privacy Act of 1974, are respected. There is also an “Officer for Civil Rights and Civil Liberties,” a “Citizenship and Immigration Services Ombudsman” and an inspector general. However, the inspector general of the new department would be under the control of the presidentially-appointed secretary of homeland security, and could not investigate topics placed off-limits by him.

Michael Scardaville, homeland security analyst for the Heritage Foundation, feels the privacy officer and the officer for civil rights and civil liberties will be more than adequate to protect citizens against abuses. “If anything,” he says, “Congress added to ways civil liberties will be protected.... Internal policing, though not the perfect sole solution, does help.”

Now, he says, Congress needs to reorganize its committee system to give itself clear lines of oversight for the new department. Because the dhs was formed by consolidating parts of many other departments, it presents a puzzle for purposes of budget and oversight.

As for the dhs’ information directorate, Scardaville says total information awareness is “an incredibly powerful tool,” especially when linked to the private sector; and, though there is “potential for abuse,” he says that’s no reason to throw a powerful tool away. Instead, appropriate structures should be developed to control access to the information gathered. fisa—the Foreign Intelligence Surveillance Act—would provide some judicial oversight and prevent abuse, he says.

Besides, Scardaville adds, “Any credit agency in this country can basically do what they’re talking about doing right now.... The difference between the government and private sector having access is that the government also has a law enforcement aspect.”

Scardaville says the Heritage Foundation doesn’t see anything that needs changing in the Homeland Security Act.

But the Act’s safeguards don’t satisfy Wendy Patten, us Advocacy Director for Human Rights Watch. “They did create a civil rights officer and a privacy officer... [but] they are inadequate,” she says. “They are not empowered to investigate civil rights complaints.”

Patten says her group pushed for the creation of a deputy inspector general for civil rights, a senior official focussed and experienced in civil rights issues. She is still hoping this could be done in “cleanup” legislation that usually follows the passage of a major bill.

Patten’s concerns come out of her previous work documenting human rights abuses along the us border with Mexico. In four reports—“Brutality Unchecked,” published in 1992, “Frontier Injustice,” published in 1993, “Crossing the Line,” published in 1995, and “Detained and Deprived of Rights,” published in 1998—Human Rights Watch documented human rights abuses committed by the ins and its enforcement body, the Border Patrol. These include shootings, beatings and sexual abuse of Mexicans caught attempting to illegally enter the us; failure to provide timely medical attention; failure of complaint and review procedures; and the secrecy with which internal ins reviews are conducted. In its investigations, Human Rights Watch concluded, “these abuses persist because agents are not held accountable for violations of law and policy and because of structural flaws in the investigative and disciplinary process.”

These problems existed long before the new dhs was conceived. With the ins now being absorbed by dhs, Patten hopes there is an opportunity to address some of these longstanding issues. But with the expanded scope and power of the dhs, and the additional secrecy under which it will operate, she fears the problems may grow worse.

Patten is particularly concerned about the treatment of unaccompanied immigrant children. She says her organization is very pleased that the care and placement of these children was taken from the ins and given to the Health and Human Services Department. “ had a conflict of interest,” Patten explains, in both adjudicating these cases, and deciding the care and placement of the children.

But, Patten adds, the Senate removed a number of provisions in the hsa that would have given immigrant children rights to council and to a guardian. Also removed were basic rights regarding detention of these children.

The American Civil Liberties Union is concerned about how the new federal department will affect the rights of us citizens.

Heidi Siegfried, interim executive director of the Capital Region chapter of aclu, questions whether more government power and secrecy equals greater security for citizens. “None of these restrictions on our liberties are really tied in that well with our security,” she says.

For example, the new Freedom of Information Act restrictions could keep important information out of the hands of citizens. The local nuclear power plant would certainly be considered “critical infrastructure,” and its operations most likely would qualify for foia immunity. But this same information would be of vital interest to people living near the plant.
Under these restrictions, Siegfried notes, whistle-blowers would be subject to prosecution. And even if protected information was leaked to the public, it could not be used later in court, thus immunizing “critical” corporations from the threat of lawsuits.

Such situations bring up the question of how well government watchdogs will be able to function once official secrecy replaces public scrutiny.
That the us government works as well as it does is due to a complex system of checks and balances, and public oversight. But, Siegfried wonders, who will oversee the operations of this vast, new secretive department?

“You hope for Congressional oversight,” she says, but notes that not even Congress will have access to all the information.
Of course, Siegfried adds, much of this is not really new. “You wonder if they really needed this act to do it,” she says, noting that the Bush administration has long practiced excessive secrecy—Cheney’s Energy Task Force meetings, in which even the names of participants are denied to oversight agencies, are an example.

And where the “war on terrorism” is concerned, the level of secrecy is even higher. The aclu has still not been able to get much information on the detainees and “enemy combatants” being held at military bases and tried by military tribunals. “The aclu has foia requests in and lawsuits to try to get information about the detainees,” Siegfried says. “We’re all relying on anecdotal evidence.”

The full text of the Homeland Security Act is available online through Thomas—the Library of Congress’ online legislative database—at http://thomas.loc.gov/.