[UPDATED 2:46 p.m. on October 4, 2017]: The Committee on Homeland Security bill amended the bill to remove the possible FOIA exemption (though the exemptions from more than 30 other federal laws remain intact). A unanimous vote approved an amendment offered by Rep. Martha McSally (R-AZ) who, in characterizing the FOIA exemption as an inadvertent oversight in the bill text stated “This is an important issue to clear up. Transparency is an important part of governance.”
Tomorrow morning (Wednesday, October 4), the House Committee on Homeland Security will vote on bill number H.R. 3548. The bill was actually introduced in the House in July but not moved forward as discussions over particular provisions continued. Those discussions being completed, it is expected that this “Amendment in the Nature of a Substitute” will be voted on tomorrow.
At this point, there appears to be no overt opposition to the bill or any of its provisions. This is particularly troubling for us because Section 120(c)(2)(W) of the proposed Amendment in the Nature of a Substitute (found on pages 45-50 of the linked document) basically gives the CBP unfettered access to “covered federal land” – which is defined as land within 100 miles of our southern or northern border — in the name of preventing “all unlawful entries into the United States, including entries by terrorist, unlawful aliens, instruments of terrorism, narcotics and other contraband through the southern border or northern border” including, specifically, activities involving “the motorized vehicles, foot patrols, and horseback to patrol the border area, apprehend illegal entrants, and rescue individuals” as well as “the construction, installation, operation and maintenance of tactical infrastructure and border technology…”
CBP’s authority on “covered federal land” is so broad that CBP are given exemptions from the requirements of 36 different federal laws, including but not limited to the National Environment Policy Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Fish and Wildlife Act, the Eagle Protection Act, the Native American Graves and Repatriation Act, AND “Subchapter 5, and chapter 7 of title 5, United States Code (commonly known as the ‘Administrative Procedure Act’).
As the Administrative Procedure Act includes the federal Freedom of Information Act, this could be read to create a FOIA exemption for records of any and all activities conducted by CBP and its officers on these “covered federal lands” or any records relating to the construction of tactical infrastructure and border technology. We’d be in the dark with regard to things like: the number of officers patrolling border areas, the number of arrests made, the number of deaths that occurred, and money expended in securing the border, including the costs of building a border wall. Perhaps that’s not what Congress is intending but, unless someone asks for clarification on whether this includes FOIA, we won’t know for sure until it’s too late.
Again, without clear opposition, this is poised to sail through the Committee vote and perhaps subsequently through the House as well. If we want any meaningful opportunity to oversee the activities of those protecting our borders and the expenditures made in that area, it is up to us to speak now. Please consider using your papers, your social media accounts and even your direct contacts to let members of the Committee on Homeland Security know how you feel about this provision.
Please contact AAN Legal Counsel Kevin M. Goldberg at 703-812-0462 or goldberg@fhhlaw.com if you have questions.
