Proposed Bill Would Exempt Customs And Border Protection From FOIA Compliance [Updated]

from the who-needs-laws-when-you-operate-in-the-constitution-free-zone? dept

[Update: Thanks to reporting by the Tuscon Sentinel, Rep. Martha McSally has stripped this exemption from the bill and added language clarifying the law should not be construed as exempting CBP from its FOIA duties.]

To build a wall, you’ve got to break a few laws. That’s the message being sent by a new bill, which helps pave the way for the eventual construction of a border wall by exempting the CBP and US Border Patrol from a large number of federal laws.

H.R. 3548 [PDF] would give the CBP a free pass to ignore all sorts of federal restrictions when engaging in its enforcement activities. All the things citizens can’t legally do on federal land, the CBP and Border Patrol would be allowed to. This would keep the federal government from getting in its own way in the event wall construction actually takes place, as well as keep CBP agents from worrying about polluting, killing endangered species, or violating sacred grave sites while pursuing undocumented aliens.

The authority is so broad that CBP and its officers 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’).”

The last one listed is why the American Society of News Editors is commenting on the bill. The Administrative Procedure Act covers federal FOIA law. If this goes through unaltered, it could easily be read to exempt the CBP and Border Patrol from responding to open records requests pertaining to their activities… pretty much everything these entities do. The bill covers everything from tactical infrastructure efforts to detainments to patrol efforts.

ASNE isn’t quite sure what to make of this exemption being included, but knows there’s no way the law should be passed with this part intact.

It’s unclear whether this reading is accurate, or intended, but unless someone asks, we might not know until it is too late. Unfortunately, there has been little to no stated opposition to this bill, so it could very well pass the House Committee on Wednesday, and later the entire House, unchecked.

The risk of leaving this stone unturned is clear: The public and press would be in the dark with regard to CBP activities near the border. We wouldn’t have access to records of arrests, injuries, deaths and other major incidents at the border or the costs of securing the borders, including the cost and other details of building a border wall.

It could have been a mistake with legislators wishing to exempt CBP from something else, but if it can be read as excusing ICE from its FOIA duties, you can be sure that’s exactly how the agency will read it. Alerting representatives is the only way this will receive any attention, considering it’s just a few words in the middle of a 102-page bill seeking expanded powers for the agency.

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Comments on “Proposed Bill Would Exempt Customs And Border Protection From FOIA Compliance [Updated]”

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18 Comments
That One Guy (profile) says:

"Laws are for the little people"

So they get exemption them from a multitude of laws, one of which allows the public to request documents showing what exactly they are doing, basically giving them a blank check to do whatever they want, safe in the knowledge that they can hide it from anyone that might try to hold them accountable.

Why I don’t see this being a horrible idea, and/or resulting in terrible actions at all! /s

To be honest whether it’s intentional or not is like arguing whether the person who deliberately ran someone over also deliberately did so with one of their tail-lights broken. Yes it’s bad, but the main action(exempting government agencies from government laws) is so terrible already that it’s almost an afterthought, a worm filled cherry on top of a rotten cake.

McGyver (profile) says:

After reading the document, it is kinda hard to say one could not be even slightly aware that this could lead to abuse or gross negligence without fear of consequences.
If the authors of the bill are not aware of this fact, then perhaps they should not be authoring such documents and should seek employment elsewhere.
But as is more likely the case they are well aware of the possibility and openly welcome it.
After all what are laws for but for the peasantry?
It is more then likely the hope was that this would slip by quietly while trump creates some other idiotic distraction and the press for the most part once again ignores the erosion of what’s left of democracy to focus on his uncouth, retarded behavior.
And this will slip by quietly while trump threatens war and tweets childish insults and boasts.
Look at the funny monkey everyone… Ignore the guy pulling down your pants and just focus on the damn monkey…

Tom Z. says:

Look at their intentions

Seriously, you write an article about a 102 page bill with significant impact on the US and the whole article is about one tiny phrase in a whole list of exemptions. Why not start at the beginning – WHY the bill is being written in the first place?

The leftist ‘resistance’ movement has decades long history of stopping big projects by using laws they have no interest in – other than the fact that they can be used to stop the project.

For example: California unions routinely use CEQA (environmental laws) to stop non-union projects. Anti-oil activists (and owners of rail transport) use indian tribes and fabricated religious sites to stop the Keystone pipeline. There are thousands of similar examples. The word “greenmail” is now commonly used to describe eco-based extortion to stop projects.

Look at the laws that the government is being exempted from here. It is the same list of laws that the anti-wall activists will use to sue the government to delay the project. If Trump wants the wall construction to move forward under his first term, then these are the laws that need to be suspended – not so that they can be broken, but so that the project will not be delayed because of frivolous lawsuits using them.

The FOIA exemption is just a part of the whole package that is designed to move the project forward. But because the FOIA is so toothless, I would not be surprised if the administration caves to public demand to remove that clause. Instead they could just act like every other presidential admin before them – ignore or delay FOIA requests for years, perform deliberately poor searches for documents and charge huge rates to block requests. FOIA violations will generally not result in injunctions against wall construction, so this is a minor point to the Trump admin.

Tom Z says:

Re: Re: Look at their intentions

You are so anti-Trump you foolishly attack me and claim I am defending them. Look at my post. I am not supporting the wall. I am telling you that this bill is designed to prevent obstacles to the wall. To spout nonsense that they will break the law because they enjoy killing is just stupid.

And I am not blaming environmentalists. I am explaining that non-environmentalists routinely use env laws to block projects they don’t like

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