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The terrorist attacks of Sept. 11, 2001, were a turning point in our nation’s history — the searing emotions and wrenching scenes from that day are still very clear in our minds. Out of the ashes of Sept. 11 have come many changes to our society, including changes to the way we practice law. If one had used the term “homeland security law” three years ago, she would have been met with blank stares. Yet it is emerging as a discipline in the federal bar, in law firms, and in law schools across the country. While those who practice homeland security law are involved in a range of diverse issues, from contracts to customs to criminal law, all should have one commitment in common — the responsibility to practice homeland security law in ways that are mindful of and consistent with civil rights and civil liberties. Those of us who are lawyers working for the federal government have received clear marching orders in developing this area of law. In numerous public statements, the president has firmly stated that it is our responsibility to respect civil liberties while we work to enhance security, and we regularly receive similar messages from White House staff. The National Strategy on Homeland Security, developed in 2002 as a road map for our post-Sept. 11 strategies, states, “We are a Nation built on the rule of law, and we will utilize our laws to win the war on terrorism while always protecting our civil liberties.” A DEPARTMENT OF LAWYERS One of the greatest assets of the new Department of Homeland Security is that so many in leadership positions are outstanding lawyers — including Secretary Tom Ridge; Asa Hutchinson, the undersecretary for border and transportation security; Joe Whitley, the general counsel; and Michael Garcia, the assistant secretary for immigration and customs enforcement. All have called upon their legal training to lay a solid foundation for the development of law and policy in this area. Secretary Ridge has pledged that “[o]ur strategy and our actions will be consistent with the individual rights and civil liberties protected by the Constitution.” One of the secretary’s favorite sayings builds on a quote from Benjamin Franklin: “We will not, as Franklin once warned, trade our essential liberties to purchase temporary safety.” As Undersecretary Hutchinson stated in testimony to the Senate Judiciary Committee: “Our core mission at the Department of Homeland Security is not just to protect America’s assets — our buildings and airports and power plants — but to protect America and our way of life. We must protect those things that make us a ‘shining city on a hill,’ like freedom of speech, freedom of worship, the right to dissent, and our personal privacy.” The department is translating these directions into concrete action. One measure of the department’s commitment is the placement into the DHS’s senior leadership team of two lawyers whose chief concern is the protection of civil liberties. President George W. Bush and Secretary Ridge have assigned Nuala O’Connor Kelly, our chief privacy officer, and myself to focus solely on these issues. Our roles are to provide legal advice to the senior leadership so that policy is shaped in ways that enhance civil liberties. Justice Felix Frankfurter wrote in McNabb v. United States in 1943, “The history of liberty has largely been the history of the observance of procedural safeguards.” The American system has many procedural safeguards to see that federal agencies respect civil liberties — oversight by Congress, pressure from the media, investigations by strong inspectors general, and the option of litigation in the courts. Including civil liberties lawyers in senior policy-making roles within the DHS structure is a unique additional safeguard (and a model that should be studied closely by other federal, state, and local government actors). RESPECTING RIGHTS The respect for civil liberties manifests itself in the ways we at the Department of Homeland Security approach and practice the law. Privacy activists such as the Center for Democracy and Technology have praised the chief privacy officer’s role in shaping the department’s policies regarding projects such as the US VISIT program (short for the United States Visitor and Immigrant Status Indicator Technology). That program is a system that uses new technologies to provide comprehensive tracking of entries and exits by foreign nationals coming to and leaving America, one area that has been an Achilles’ heel of U.S. border and immigration policy for decades. The Privacy Office has worked diligently with the leaders of the US VISIT program to ensure that the data collected is handled appropriately — describing how the data will flow through federal agencies, and how it will be shared, assessed, and stored. Having a senior-level privacy officer involved in the development of this — and similar projects — helps to protect personal liberties and has also improved the project. The Office for Civil Rights and Civil Liberties is also working with DHS leadership on other issues. One example is in the area of regulations. DHS General Counsel Whitley has emphasized that all regulations proposed by the department must be consistent with privacy protections and civil rights laws. Attorneys in the Office for Civil Rights and Civil Liberties and the Privacy Office are working with the Office of General Counsel and the Office of Management and Budget to ensure that those drafting regulations carefully think through civil liberties implications. Under the leadership of Assistant Secretary Garcia, the new Bureau of Immigration and Customs Enforcement is taking a fresh look at a number of difficult issues within the bounds of homeland security law. His legal team, working with the Office for Civil Rights and Civil Liberties, is writing new guidelines to respond thoroughly to the recommendations suggested by the Department of Justice’s inspector general in a report last summer that critiqued the way the government handled the detention of aliens in the course of the Sept. 11 investigation. The DHS will implement new policies to ensure that aliens detained in connection with national security investigations are afforded due process protections. For instance, the DHS will soon issue new guidance to ensure that aliens are informed of the charges against them in a timely fashion. Moreover, Assistant Secretary Garcia’s detention experts have issued directives to the field to improve the conditions under which detainees are confined. The DHS has also substantially changed the special registration program known as NSEERS (National Security Exit-Entry Registration System). The program had previously required male immigrants of specified ages with connections to certain countries to register personally with an immigration officer. After careful legal and policy review, the requirement that tens of thousands of noncitizens register at an immigration office has been suspended. Instead of a registration requirement based on broad categories, the new rule is targeted and individualized — it allows for special registration if a particular individual raises concerns. These changes will minimize the impact on more than 80,000 noncitizens, and allow resources to be better focused on individuals posing risks to our country. The department is also taking strong steps against racial profiling. Secretary Ridge has directed that all DHS law enforcement officials follow the guidance issued this summer by the attorney general. The guidance concludes that racial profiling is wrong because it violates the fundamental principles of our rich and diverse democracy, because it is ineffective, and because it damages confidence in the criminal justice system. In making traditional law enforcement decisions, the guidance directs that federal law enforcement officers may not use race or ethnicity to any degree, unless there is a specific suspect description, with trustworthy information, relevant to the locality and time frame. For law enforcement decisions made in the national security or border integrity context, the guidance prohibits the consideration of race or ethnicity unless that decision would survive strict scrutiny — that is, there is a compelling interest and the activity is narrowly tailored. My office, along with a team of DHS lawyers, is actively implementing the attorney general’s guidance and drawing the proper balances between using all available tools to protect our country while also honoring the rule of law and the principles of nondiscrimination. FOR EVERY ATTORNEY Clearly, an appreciation of civil liberties is substantially affecting the way government attorneys practice law. But what does this mean for the private bar? Attorneys practicing homeland security law in the private sector must also develop a legal practice that has a strong emphasis on civil liberties protections. As lawyers advise their clients, they should think through a checklist of critical questions, such as: How does my client’s proposed project or legislative proposal affect minority groups? Would it increase the authority or influence of the federal government in its relationship with private citizens? Does it require the collection of personal information about residents of this country? Would it require or authorize the federal government to centralize the collection of information that was previously dispersed? Are there less-intrusive ways to structure this? Are we strengthening the checks and balances that are so necessary to protect the individual, including the proper relationship between federal and state governments, and the separation of powers between the executive, legislative, and judicial branches? To properly answer these questions, lawyers advising clients on issues relating to homeland security law must ensure that they have a strong grounding in constitutional law and thoroughly understand privacy law and federal civil rights statutes. Perhaps the greatest challenge in incorporating protections for civil liberties into homeland security law is the need for innovation. Many of the issues we face have been on our radar screens for years — for example, racial profiling or the ability of emerging technologies to provide greater efficiencies but at the risk of accumulating more information on private citizens. Given the new circumstances, we desperately need to search for fresh approaches and creative solutions. BEYOND STERILE DEBATES Harvard law professor Randall Kennedy asserts in his book Race, Crime and the Law (1998) that the “inherited debates” on race and civil rights “have become increasingly sterile.” He argues that “useful prescriptions for problems as complex as those generated by the imperatives of law enforcement in our large, rambunctious, multiracial society can arise only from thinking that frees itself of reflexive obedience to familiar signals.” The legal profession must lead the way in seeking innovative answers to these difficult questions. Most attorneys’ thoughts are dominated by practical issues and daily urgencies — how to develop a solid client base, how to structure work so that the bulk of time is spent on matters that the individual finds interesting and fulfilling, how to strike a balance between long hours and family life, among others. But this is a time to return to our first principles. The great tradition of the legal profession — indeed, our “calling” — has been to uphold the Constitution, to respect the interests of “discreet and insular minorities,” and to defend the rights of the individual. It is our responsibility to ensure that the discipline of homeland security law meets this high standard. Daniel W. Sutherland is the officer for civil rights and civil liberties at the U.S. Department of Homeland Security.

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