Homeland Security Act: The Rise of the American Police State (Part 3)

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(*Editors Note | This is Part 3 of a three-part series on the Homeland Security Act. The first part, which came out Monday, reviewed the origins of the Act in the Hart-Rudman Commission and the Council on Foreign Relations. Yesterday, Part 2 ...
(*Editors Note | This is Part 3 of a three-part series on the Homeland Security Act. The first part, which came out Monday, reviewed the origins of the Act in the Hart-Rudman Commission and the Council on Foreign Relations. Yesterday, Part 2 discussed Cheney's plan for global dominance and how that relates to homeland security. Today, Part 3 details some of the HSA provisions themselves and briefly discuss what worries civil libertarians.)



Homeland Security Act: The Rise of the American Police State (Part 3)

By Jennifer Van Bergen

t r u t h o u t | Report



Wednesday, 4 December 2002



Homeland Security Act



The concerns of civil libertarians about incursions on civil liberties under the U.S.A. PATRIOT Act or Homeland Security Act do not begin to make a dent on public awareness (or in Bush policy-making) because they do not consider the Cheney Plan for Global Dominance. The Plan supersedes all.



Global domination is the universal dream of every secret warrior. As one of my students wrote in class a few years ago: "The two major Universal Drives seem to be Dominance (survival) and Sex (love). As long as these two conflicts don't arise, there is peace in the world."1



But, while everyone may share such drives, not everyone has "an inordinate sense of his own entitlement"2 like Bush and those in his inner circle have.



If you have the underlying belief that you must dominate in order to survive, you are unlikely to have much concern for civil liberties.



The Homeland Security Act, like the PATRIOT Act, is a further incursion on American civil liberties. Both of these Acts arose out of a deeper background policy of global domination and disregard for the sanctity of individual human rights.



Federal Supervision of First Responders



The biggest charge that Jasper makes against the Homeland Security Act is that it "mandates federal supervision, funding, and coordination of 'local first responders' - specifically police and emergency personnel," thus expanding federal control of local law enforcement.



The sections in the Homeland Security Act that concern "first responders" are in Title V: Emergency Preparedness and Response, but there is no specific mandate of federal control over local police. The provision simply provides for coordination and guidance. Although centralization appears to be the only way to properly handle emergency preparedness on a sufficiently large scale to protect our country, there is, nonetheless, reason for concern that central federal coordination could lead to loss of local control and to potential federal militarization, especially in view of the many other measures and events that support such a possibility - such as, the Military Tribunals without constitutional procedural protections, the preemptive "war" on Iraq, the refusal of hearings and legal representation to "unlawful enemy combatants" and Guantanamo detainees, the indefinite detention of immigrants who are not even determined to be a danger (also often without hearings or representation), information-sharing provisions, the mixing of foreign and domestic investigations under FISA, Citizen Corps, and many more new measures now under the Homeland Security Act enumerated below.



According to the United States Northern Command (USNC), "First responders are the men and women who are "first on the scene" as a natural or man-made disaster unfolds. They are also the last to leave the scene. First responders are policemen, firemen, emergency medical technicians. ... There are 11 million state and local first responders in 87,000 jurisdictions throughout the United States."3



The USNC states that: "Our nation's structure of overlapping federal, state, and local governance - more than 87,000 different jurisdictions - provides a unique opportunity and challenge for U.S. Northern Command. Operations are underway to develop interconnected and complementary relationships and plans to support first responders. Everyone on this broad team, including U.S. Northern Command, wants to ensure the safety and security of the American people" (emphasis added).



USNC notes that the Posse Comitatus Act (18 USC 1385)4 "generally prohibits U.S. military personnel from interdicting vehicles, vessels and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities."



USNC adds: "Prohibiting direct military involvement in law enforcement is in keeping with long-standing U.S. law and policy limiting the military's role in domestic affairs."



However, the USNC notes four statutory exceptions to this prohibition: (1) counter-drug assistance (10 USC 371-82), (2) Insurrection Act (10 USC 331-34), (3) crimes using nuclear materials (18 USC 831), and (4) chemical or biological weapons of mass destruction (10 USC 382).



According to a March 6, 2002 article by Gary Seigle on Government Executive Magazine, titled "'First responders' to terrorism seek federal strategy, equipment," first responders themselves were seeking federal assistance and guidance. Seigle writes: "A national training standard should be established and maintained by the federal government for first responders who are poorly prepared and equipped to recognize or respond to a weapon of mass destruction attack, emergency officials told a congressional subcommittee yesterday."5



According to the New York Times, General Ralph E. Eberhart, now in charge of USNC, said earlier this year that he would welcome a review of existing restrictions against using military forces domestically. (See Part 2 of this series, footnote 2.) Meaning, presumably, overturning the Posse Comitatus Act. Doing so would essentially mean allowing a standing domestic army.



James Madison, a proponent of strong national government, wrote:







In time of actual war, great discretionary powers are constantly given to the executive magistrate. Constant apprehension of war has the same tendency to render the head too large for the body. A standing military force with an overgrown executive will not long be safe companions to liberty.

6

Patrick Henry said: "A standing army [will] execute the execrable commands of tyranny." This is "a most dangerous power," he declared.7



Other provisions of concern are:8



Title II creates a Directorate of 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. Information on persons' credit card purchases, telephone calls, banking transactions, and travel patterns can be compiled and used to assemble a profile that could be used to mark innocent people as terrorist suspects.



Section 201(d)(5) gives this Directorate authority to "develop a comprehensive national plan for securing the key resources and critical infrastructure of the United States, including power production, generation, and distribution systems, information technology and telecommunications systems (including satellites), electronic financial and property record storage and transmission systems, emergency preparedness communications systems, and the physical and technological assets that support such systems."



Sounds almost like a communist state.



Under this provision, personnel from the CIA, FBI, DOS, NSA, DIA, and any other agency the President considers appropriate, "may be detailed to the Department for the performance of analytic functions and related duties" (201(f)(1)).



This makes the Directorate equivalent to a massive domestic intelligence agency like the KGB. KGB translates as "the Committee of the State Security."



Private sector analysts may be used and cooperative agreements between agencies are authorized (201(e)(2) and (f)(3)).



It is true that information sharing may be necessary, but these provisions, to say the least, obliterate the distinction between foreign and domestic intelligence gathering that was codified by the charter of the Central Intelligence Agency of 1947 and by the Foreign Intelligence Surveillance Act of 1978. Indeed, if the PATRIOT Act did not eviscerate those statutes, the Homeland Security Act finishes the job.



Section 214 exempts "critical infrastructure information" that is voluntarily submitted to "a covered Federal agency" (201(f)(2)) from public disclosure under the Freedom of Information Act (FOIA). Once such information is submitted to the government, it cannot be used in any civil action against the person or entity that submitted it and government officer who knowingly discloses such information would be subject to criminal penalties (including imprisonment) and fines, as well as the loss of his or her position.



Senator Leahy (D-Vt) warned that the FOIA exemption would "encourage government complicity with private firms to keep secret information about critical infrastructure vulnerabilities, reduce the incentive to fix the problems and end up hurting rather than helping our national security."9



The People for the American Way note that the exemption keeps the Department of Homeland Security "from having to defend non-disclosure of information in a court of law."



As one reporter noted: "U.S. law does not treat leaks of defense information as a criminal act, nor should it. But leaks of business information will now be a crime."10



Section 225 absorbs the entire text of the Cyber Security Enhancement Act of 2001 (CSEA) which previously passed the House as a freestanding measure (HR 3482). Sponsored by Lamar Smith (R-TX), the CSEA allows service providers to voluntarily provide government agents with access to the contents of customer communications without consent based on a "good faith" belief that an emergency justifies the release. The same section allows for the installation of pen register and trap and trace devices without a court order where there is an ongoing attack on a "protected computer." Any computer involved in interstate commerce qualifies.



Title III concerns "Science and Technology in Support of Homeland Security." Section 304, according to the national Gulf War Resources Center, Inc., "grants the HHS secretary extraordinary powers to declare a health emergency simply based on a POTENTIAL threat. This means that a hypothetical threat analysis from intelligence agencies that failed to warn of Sept 11th could be used as a reason to suspend civil liberties and start mandatory smallpox vaccinations."



The Cure Autism Now Foundation noted on their website that, "In an eleventh hour maneuver, the House suddenly amended the Homeland Security Act with a rider that makes it impossible for families who believe their children were neurologically damaged by non-essential mercury based additives [thimerosal] in vaccines to sue for civil damages --- even in cases of fraud or criminal negligence."11



Parents Requesting open Vaccine Education (PROVE) and The Connecticut Vaccine Information Alliance (CTVIA) state that not only does the Act "let drug giant Eli Lily off the hook for thimerosal based vaccine induced injuries and deaths," but there are "no personal, religious, or medical exemptions" for the forced smallpox vaccinations, if the authority is exercised, and "no guarantees for humane quarantine laws."12



Under Section 308, "extramural research development, demonstration, testing, and evaluation programs ... to ensure that colleges, universities, private research institutes, and companies (and consortia thereof) from as many areas of the United States as practicable participate" is authorized.



While it may make sense for government to draw upon academia for research, etc., universities must retain their educational independence if academic freedom is to be preserved. Government intrusion taints academic pursuits.



A clear illustration of abuse of academia were the "extramural" programs carried out under Central Intelligence Agency Projects Bluebird, MkUltra, and Monarch, from the 1940's through the 1970's. These C.I.A. projects funded similar such organizations to carry out "research" on unwitting American citizens to see if drugs or other "scientific" methods, such as hypnosis, "psychic driving," or other forms of mind control programming, could be used to brainwash individuals.13 That was in support of homeland security, too.



Titles IV and XI relate to immigration and border issues. The American Immigration Lawyers Association (AILA) states that the law "fails to provide for a high-level official who is focused on our nations immigration policy, relegates immigration services to a bureau that lacks its own Under-Secretary, provides little or no coordination between immigration enforcement and services, and fails to adequately protect the important role of immigration courts."14



AILA further warns that although the Homeland Security Act "codifies the existence of the courts and the Attorney General's authority to control them," it "fails to address key concerns such as the role and independence of the courts and the impartiality of the judicial process." Two recent conflicting appellate decisions about whether immigration courts should be viewed as equivalent to what are known as Article III courts (federal courts) in terms of the public's First Amendment right of access to hearings support AILA's view.



Section 871 allows the Homeland Security Department to form advisory committees exempt from sunshine provisions in federal law that normally allow citizens to find out what occurred in meetings of such committees. This provision is clearly Cheney's answer to those who have sued him to produce records of his energy policy advisory committee.



Section 891 contains the entire text of the Homeland Security Information Sharing Act (HSISA), which passed the House under HR 4598 earlier in the session. This provision will facilitate the sharing of sensitive intelligence information with state and local authorities and allows for greater sharing of grand jury information and electronic surveillance context.



What Didn't Get In



Section 770 prohibits all federal agencies from implementing the Terrorism Information and Prevention System (TIPS). Section 815 prohibits the development of a national identification system or card. The so-called Total Information Awareness program (TIA), according to one senator, did not get in, although the Pentagon is still creating the database; the Directorate under Title II, however, is hardly less extensive, the main difference being that TIA mandates the development of new technology. Since the technology is being developed anyway, this is a distinction without a difference.



All in all, the Homeland Security Act is a frightening piece of legislation. One would have thought that the "walk softly and carry a big stick" ideal had long ago been proven to be in the grab bag of Big Dicks: those not worthy to be in the office of the president. This legislation and the acts of this administration purport to be for our protection, but they expose us to greater dangers. While the administration tells us to be afraid, be very afraid, they make sure we are not looking at our own faces.



As Glen Phillips, lead singer/songwriter of the now-defunct band, Toad the Wet Sprocket, aptly wrote in his 1997 song "Whatever I Fear,"



Whatever I fear the most is whatever I see before me

Whenever I let my guard down, whatever I was ignoring

Whatever I fear the most is whatever I see before me

Whatever I have been given, whatever I have been.



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Jennifer Van Bergen is a regular contributor to TruthOut. She has a J.D. from Benjamin N. Cardozo School of Law, is a contributing editor of Criminal Defense Weekly, an adjunct faculty member of the New School Online University, a division of the New School for Social Research, and an active member of the ACLU.



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1 Comment made by George L. Beke on 11 October 2000 in my class "Act to Write" at the New School Online University (division of the New School for Social Research).



2 Mark Crispin Miller, quoted in "Bush Anything But Moronic, According to Author: Dark Overtones in His Malapropisms" by Murray Whyte, http://www.commondreams.org/headlines02/1128-02.htm.



3 http://www.northcom.mil/index.cfm?fuseaction=s.firstresponders



4 The Act states: "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."



5 http://www.govexec.com/dailyfed/0302/030602gsn1.htm



6 Christopher Collier, DECISION IN PHILADELPHIA: THE CONSTITUTIONAL CONVENTION OF 1787, p. 316 (Ballantine Books, 1986).



7 Albert J. Beveridge, THE LIFE OF JOHN MARSHALL, Vol. 1, pp. 389, 435 (Houghton Mifflin, 1919). (Quotes taken from the printed debates of the Constitutional Convention.)



8 I have drawn from several sources in this analysis and have freely copied the language in these: http://www.pfaw.org/pfaw/general/default.aspx?oid=7020, http://www.epic.org/alert/EPIC_Alert_9.23.html, http://www.cdt.org/wiretap/021119homelandsecurity.shtml, http://www.ngwrc.org/anthrax/callyo~1.htm, and http://www.spar-bernstein.com/news_release_details.cfm?infoSystemID=61



9 http://www.rcfp.org/news/2002/1119hr5710.html



10 http://www.springfieldnews-leader.com/opinions/leger112402.html



11 http://www.cureautismnow.org/action/hr5710.cfm



12 http://www.vaccineinfo.net/national_issues/hr5710amendments.htm



13 See Colin A. Ross, M.D., BLUEBIRD: DELIBERATE CREATION OF MULTIPLE PERSONALITY BY PSYCHIATRISTS (Manitou Communications, 2000).



14 http://www.aila.org/contentViewer.aspx?bc=10,911,594,2074