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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  • icon
    Chris-Mouse (profile), 10 Oct 2017 @ 3:53am

    If this quietly passes, there will be similar bills coming up for every other government department.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Oct 2017 @ 4:35am

      Response to: Chris-Mouse on Oct 10th, 2017 @ 3:53am

      Even of it passes loudly, there's probably a line of other agencies going around the corner waiting for their exemption.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 10 Oct 2017 @ 4:02am

    "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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Oct 2017 @ 4:39am

    State loves mafia

    State loves mafia, creates intermezzo mix at the border.

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 10 Oct 2017 @ 5:46am

    So?

    They already believe they are exempt from the Constitution and Bill of Rights - so why not be exempt from FOIA too?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Oct 2017 @ 5:54am

      Re: So?

      For real. They've already essentially suspended the 4th, 5th, and 6th amendments at the border, why not this one, too?

      reply to this | link to this | view in chronology ]

  • icon
    McGyver (profile), 10 Oct 2017 @ 5:51am

    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...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Oct 2017 @ 6:15am

    "It could have been a mistake" yeah, sure. Especially when it is in CBP interest.

    reply to this | link to this | view in chronology ]

  • identicon
    Tom Z., 10 Oct 2017 @ 6:19am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Oct 2017 @ 8:58am

      Re: Look at their intentions

      Though they are leaving the door open for illicit behavior just the way they want. It's funny of you to be apologetic of an administration deliberately bombing Iraq err Syria for entertainment. All the while you shift the blame to environmental activists

      reply to this | link to this | view in chronology ]

      • identicon
        Tom Z, 10 Oct 2017 @ 9:15pm

        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

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Oct 2017 @ 9:00am

      Re: Look at their intentions

      In other words: there is never such a thing as an innocent Trump just guarding his pet project

      reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 10 Oct 2017 @ 12:13pm

    Border police are the new SS

    Trump has already been grooming Customs and Border Protection and Immigration and Customs Enforcement to be his personally-loyal army. They're the new Schutzstaffel and are already engaged in a reign of atrocities.

    This new barrage of legal exceptions follows suit.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 10 Oct 2017 @ 12:50pm

      Re: Border police are the new SS

      Not difficult, if true, as they have been rather free to do what they want for quite a long time. Just give them someone on whom to hang their allegiance besides themselves.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 10 Oct 2017 @ 1:41pm

    They were just trying to provide legal cover to what is already happening.
    Agencies can do whatever they want & how dare we think they owe us explanations.

    I think its also disturbing that we actually needed a law to force there to be respect for people's graves.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 11 Oct 2017 @ 5:50am

    Saw the trees, missed the forest

    I think you missed the important point. As I read this, the law would exempt CBP from being sued. For anything.

    The forest is burning down and you're worried about whether your matches are wet.

    reply to this | link to this | view in chronology ]


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