Homeland Security – Legal and Policy Issues
Contents
Dedication xiii
Foreword by the Hon. Lee H. Hamilton xv
Acknowledgments xvii
About the Editors xix
About the Authors xxi
Introduction xxxi
Section I
Administration of Homeland Security
Chapter 1
Homeland Security: An Inside Perspective of the Last Seven Years and a Look Ahead
(Jessica R. Herrera-Flanigan) 3
Before September 11, 2001: An Idea Without a Motivation 4
The 9/11 Attacks: Making a Case for a Homeland Security Agency 5
Building Blocks: Foundation of a New Security Regime 9
Congress: Fiefdoms, Politics, and Oversight 10
The 9/11 Commission: Why Did It Happen, How Did It Happen, and What Does America Do Next? 12
Transition to New Leaders and the Natural Disaster No One Expected 14
Dubai Ports: The Global Economy Meets Homeland Security 17
Remembering the 9/11 Commission’s Unimplemented Recommendations 18
Looking Beyond 2008—the Future of Homeland Security 19
Chapter 2
State and Federal Emergency Powers (Michael Greenberger and Arianne Spaccarelli) 21
State Authority during Public Health Emergencies 23
Emergency Management and Civil Defense Statutes 24
Public Health Emergency Statutes 27
Power to Seize and Control Property 29
Power to Control and Utilize Health-Care Providers 30
Quarantine, Isolation, and Compelled Medical Testing and Treatment 31
Federal Authority during Public Health Emergencies 33
Posse Comitatus Act, the Insurrection Act, and
The Use of Active Duty Military 35
Constitutional Authority for Federal Action during
Emergencies 36
Commerce Clause 37
Insurrection Clause 39
Guarantee of a Republican Form of Government
Clause 39
Necessary and Proper Clause 40
Spending Clause 41
Conclusion 41
Chapter 3
Understanding the Role of Northern Command in the Defense of the Homeland: The Emerging Legal Framework— Authorities and Challenges
(Lisa L. Turner, Jeanne Meyer, and Harvey Rishikof) 43
Unified Combatant Commands and USNORTHCOM 44
Unity of Effort through Interagency and
Intergovernmental Coordination 47
Functional Areas 49
Conclusion 57
Chapter 4
The USA PATRIOT Act and the Federal Anti-Money-Laundering Regime (Mark J. Biros) 61
Introduction 61
Legal Background 62
The Federal Anti-Money-Laundering Statutes Prior to Enactment of the PATRIOT Act 62
Overview of Title III of the PATRIOT Act Regarding Financial Transactions 64
Anti-Money-Laundering Programs 65
Customer Identity Verification 65
Information Sharing 66
Regulatory Guidance 67
Agency Regulations 67
The Financial Crimes Enforcement Network 67
The Office of Foreign Assets Control 68
Additional Resources 69
Enforcement Actions 70
Enforcement Trends 73
How to Avoid Noncompliance 74
Identify Risk Factors 75
Develop and Implement AML Procedures 76
Conclusion 78
Chapter 5
Compliance Is Not Enough: What It Really Takes to Maintain Responsible Information Security (Donald A. Purdy, Jr.) 81
Federal and State Regulation of Information Security 83
Dangers of Compartmentalized Compliance 88
From Compliance to Risk Management 90
Summary and Conclusion 93
Chapter 6
Information Protection (James W. Conrad, Jr.) 95
Introduction 95
The Freedom of Information Act 96
“Other Laws” Exemption 97
National Security Exemption 97
Law Enforcement Exemption 98
Confidential Business Information Exemption 99
The Exemption 99
Concerns about the Exemption 100
“Risk of Circumvention” Exemption 102
“Protections” That Aren’t 103
Other Laws that May Protect a Business’s Security Information 104
Laws Applicable to Particular Classes of Business Activities 105
Large Public Drinking Water Systems 105
Ports, Facilities, and Vessels Regulated by the Maritime Transportation Security Act 106
Shippers and Carriers of Hazardous Materials Required to Prepare Security Plans 106
Facilities Regulated under the Chemical Weapons Convention Implementation Act 107
Nuclear Power and Atomic Weapons Activities 108
Facilities Regulated by the Federal Energy Regulatory Commission 109
Sensitive Security Information 110
Background 110
Scope 111
Persons Able to Obtain SSI 113
The SSI Rules Bind Private Persons 114
Litigation 114
Chemical-Terrorism Vulnerability Information 115
The Critical Infrastructure Information Act 118
Background 118
Scope 119
Information Protections 120
Implementation 121
Chapter 7
2008: The Year of Increased Worksite Enforcement (Dawn M. Lurie, Mahsa Aliaskari, and Joe Whitley) 123
Enforcement-Only Strategy 124
Worksite Enforcement 127
The Next Wave of Enforcement: Agriprocessors 130
Other Compliance Tools 131
IMAGE 131
Social Security No-Match Rule 132
E-Verify 133
The Year of Increased Worksite Enforcement: What
We Have Learned 137
Looking Forward: Worksite Enforcement 137
Conclusion 138
Chapter 8
Succession Planning and Business Continuity (James P. Gerkis and Adam Klepack) 141
Administrative and Regulatory Developments in Business Continuity Planning 141
Introduction 141
Sarbanes-Oxley’s Effect on Business Continuity Planning 143
New York Stock Exchange and Financial Industry Regulatory Authority, Inc.: Business Continuity Rules 144
National Futures Association: Business Continuity Rules 146
Legislative Developments in Succession Planning and Business Continuity Planning 147
Disaster Planning and Corporation Law: Emergency Bylaws 147
The Emergency Securities Response Act of 2004 149
Private-Sector Developments in Business Continuity Planning 151
How the Private Sector Has Reacted 151
Business Continuity Planning for Pandemics 152
Corporate Liability 154
Introduction 154
Oversight Liability: Board of Directors and Officers 155
Oversight Liability and Business Continuity Planning 157
Best Practices 158
Section III
Critical Infrastructure 159
Chapter 9
The SAFETY Act—A Practioner’s Guide to the Homeland Security Technology Catalyst 161
(Mark J. Robertson and Jeffrey Kaliel)
The SAFETY Act’s Protections 163
Designation as a Qualified Anti-Terrorism Technology 165
Certification of a QATT 169
Designation vs. Certification under the SAFETY Act 169
Government Contractor Defense 170
Public Readiness and Emergency Preparedness Act 171
SAFETY Act Responsibilities 175
Changes to DHS Regulations in 2007—Streamlining and Expansion 176
New Developments—FAR Amendment and Coordination of Procurements 178
The Office of SAFETY ACT Implementation—How the Process Works in Practice 181
Summary 183
Chapter 10
Security-Based Reregulation of Transportation after 9/11: Giving Coherent Client Advice in a Volatile Rules Climate (Joel A. Webber) 185
Summary 185
An Illustration of the Present Transport Reregulation Climate 192
Where We Have Come From: Background to Logistics Regulatory Upheaval 194
Transportation’s Economic Deregulation 194
9/11: The Initial Federal Response to Protect Freight Flows 195
Later (2006–2008) Federal Response to Protect Freight Flows 197
A New Legal Advice Paradigm 199
Distinctive Rules Environment Calls for New Approach 200
Toward a New Legal Advice Paradigm: A Diagram or Chart, Not an Essay 201
A Beginning: Work of American Association of Exporters and Importers 201
Conclusion 202
Chapter 11
Maritime Security Developments and TWIC Tribulations
(Jonathan K. Waldron) 203
Introduction 203
Revalidation of Vessel and Facility Security Plans 204
SAFE Port Act of 2006 205
Overall Port Security 205
Section 101. Area Maritime Transportation Security Plans and Salvage Response Plans 205
Section 107. Long-Range Vessel Tracking 205
Section 108. Establishment of Interagency Operational Centers for Port Security 206
Section 109. Notice of Arrival for Foreign Vessels on the Outer Continental Shelf 206
Section 110. Enhanced Crew Member Identification 206
Section 234. Foreign Port Assessments 207
Security Improvements at Port Facilities 207
Section 102. Requirements Relating to Maritime Facility Security Plans 207
Section 103. Unannounced Inspections of Maritime Facilities 208
Implementation of the TWIC Program 208
Background 208
Implementation Responsibilities and Key Actions 208
Escorting/Monitoring in Maritime Transportation
Areas 211
Personnel Required or Eligible to Obtain a TWIC 212
The TWIC Card, Reader Requirements, and Pilot
Testing 213
Homeland Security: Legal and Policy Issues
Enrollment Status, Compliance Dates, and
Enforcement 214
Future Challenges 215
Chapter 12
Chemical Facility Anti-Terrorism Standards (James W. Conrad, Jr.) 217
Background 217
The CFATS Program 219
Applicability 220
Security Vulnerability Assessments 223
Site Security Plans 224
Risk-Based Performance Standards 225
Inherent Safety 226
Background Check/Personnel Issues 228
Inspections/Enforcement 228
Information Protection 229
Preemption 229
The Inherent Risk of Future Legislation 230
Section IV
International Trade 233
Chapter 13
CFIUS and Foreign Investment (Jonathan G. Cedarbaum and Stephen W. Preston) 235
CFIUS 237
Basic Framework and History 237
Scope and Focus of CFIUS Review 239
Recent Developments 240
Industry-Specific Review Regimes 248
Telecommunications 248
Air Carriers 250
Nuclear Power 251
Conclusion 252
Chapter 14
Export Control Enforcement Developments (Thomas E. Crocker) 253
National Counter Proliferation Initiative 254
Increased Penalties 255
Enforcement Trends 256
The ITT Corporation Case 257
Material Omissions in a Voluntary Disclosure 258
Exceeding the Scope of an Existing TAA 259
Failed Corporate Compliance Culture 260
The ITT Plea Agreement 260
The Axion Indictment 261
Indictments and Arrests for Selling Electronic Components to Entity List Companies 262
Prosecutions of Academic and Others for Deemed Export Violations 263
Reexport Violations Prosecuted 264
IED Conspiracy Indictments 264
Higher Expectations for Compliance 265
Table of Cases 269
Index 271