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Steven Roberts, an NLJ columnist, is a homeland security consultant. Whether it’s a truck bomb exploding outside a hotel or an improvised explosive device used against American troops in Iraq, most acts of terror are committed by anonymous figures operating within shadowy networks. Only after the fact do they occasionally offer attribution-often posthumously with a grainy video posted on a Web site. Yet the possibility that terrorists could simply “hide in plain sight” by gaining employment at critical sites, such as chemical facilities or power plants, is a justifiable concern. While homeland security officials agree that there is no easy way to prevent the “insider threat,” government action is minimizing the risk. Sept. 11 demonstrated that terrorists value patient waiting and careful surveillance. Consistent with this modus operandi, the cover of legitimate employment allows adversaries to gain inside knowledge of a facility over months or even years. Later, that knowledge forms the basis of a terror attack-an attack that might not have been possible but for the insider information and access. In May, the Department of Homeland Security (DHS) announced that federal agents had arrested 60 undocumented workers who had gained employment at sensitive sites in six states, including petrochemical refineries and power plants. While government security officials have no evidence that any of those arrested have connections to terrorist organizations or were part of a terror plot, the fact that the workers had access to critical infrastructure sites posed a “serious homeland security threat” according to a DHS official. Report on possible scenarios Government planning strategies also reflect the seriousness of the insider threat. The White House’s Homeland Security Council-in conjunction with federal, state and local homeland security stakeholders-recently developed the National Planning Scenarios Report. The report outlines 15 high-impact case studies to improve homeland security and general emergency preparedness. In one scenario, terrorists gain employment as janitors at three office buildings. Using their inside knowledge of, and access to, the buildings, the faux janitors release the chemical nerve agent Sarin into the ventilation systems. Assuming 2,000 people occupy each building, the report posits that the attack would kill 5,700 people, including many first responders who rush to aid the injured without appropriate protective gear. Some states have taken steps to mitigate the homeland security risk posed by the insider threat. The Illinois Legislature recently passed H.B. 2580-a utility safety and terror-prevention measure. If signed by the governor, the law will authorize a municipal utility to “promulgate rules for the exclusion of any person, based upon criminal conviction information . . . from all or a portion of any water treatment facility, water pumping station, electrical transfer station, electrical generation facility, natural gas facility, or any other utility facility owned or operated by the municipality.” By permitting public utilities to keep known criminals from gaining access to sensitive sites, state lawmakers hope that H.B. 2580 will improve the security in and around parts of the state’s critical utility infrastructure. While this measure would fail to keep “law abiding” terrorists from gaining employment, it certainly decreases the possibility that one with a criminal past could masquerade as a utility plant employee or contractor. The arrest of 60 illegal aliens working at critical infrastructure facilities calls attention to the danger posed when job applicants use fraudulent identification to gain legitimate employment. The controversial Real ID Act of 2005-signed into law by President Bush in May as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief (Pub. L. No. 109-13)-mitigates this possibility, thereby helping to foreclose at least one aspect of the insider threat. The law requires that state-issued driver’s licenses and personal identification cards contain specific, verifiable identity information when used for any “official purpose” which “includes but is not limited to accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary [of DHS] shall determine.” Arguably, applying the law’s broad powers to determine what constitutes an “official purpose,” the secretary has significant authority to alter the form of legal documentation required to gain employment at critical infrastructure sites across the country. It is here where homeland security meets labor and employment law and policy. Since Sept. 11, few aspects of homeland security have captured the important role that labor and employment practices play in counterterrorism. Now, partly as a response to the insider threat and partly as a response to real and perceived shortcomings in other areas, new law suggests that the role labor and employment practices have in the context of homeland security is here to stay.

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