Over the last fifteen years, homeland security has become a field unto itself. The United States Department of Homeland Security (DHS) has become the second-largest federal executive department in the number of people it employs, and includes three law enforcement agencies and a military service (the United States Coast Guard). But the heavy responsibility of keeping Americans safe at home extends well beyond the jurisdiction of that department alone. Still at the federal level, the Department of Justice has four law enforcement agencies of its own, the Department of Defense is authorized to support domestic law enforcement and disaster response operations under certain circumstances (consistent with the Posse Comitatus Act), and the Departments of State, Treasury, Interior, Transportation, and Energy all have components that perform some domestic security-related functions.
Vertical integration has also been a strategic focus. DHS-led intelligence fusion centers, and Federal Bureau of Investigation (FBI) led Joint Terrorism Task Forces (JTTF) each include non-federal, that is state, local, or tribal personnel to help accomplish their missions, and surplus military-grade equipment has increasingly proliferated into local law enforcement. Each of these measures is controversial, with some municipalities attempting to limit by legislation their police forces’ participation in JTTFs, and many observers criticizing the increased “militarization” of law enforcement. Further, the rise of so-called “sanctuary cities” also pits some localities against federal immigration laws in ways that may have significance for counterterrorism efforts.
This first episode in our Security Partnership Teleforum Series explored the limits of federal, state, local, and tribal cooperation. Can and should federal authorities commission local law enforcement to surveil potential threats, and compel compliance with immigration enforcement efforts? How blurred is the line now between “domestic surveillance” for “domestic security” purposes (to which the Fourth Amendment applies) and broader national security concerns that have a foreign intelligence nexus that might be governed by the Foreign Intelligence Surveillance Act? Are there limits on how technologies developed for intelligence gathering purposes may be used in law enforcement missions? What limits should there be on the military’s supplying equipment and training to law enforcement agencies?
Governor Tom Ridge, Chairman, Ridge Global, Formerly the First Secretary of the U.S. Department of Homeland Security, Former Governor of Pennsylvania
Moderator: Adam R. Pearlman, Special Advisor, International and National Security Law Practice Group
The Federal Trade Commission has dual missions to protect consumers and competition. The agency has a 100+ years of history as an antitrust enforcer and general consumer protection agency. And over the last 20 years it has emerged as the lead U.S. agency addressing consumer privacy and data security. During the past administration, the agency faced challenges within and without. How well has it executed its dual missions? What external factors (such as actions by the CFPB and FCC) have affected its ability to further its missions? And how might the agency improve in the coming administration? To answer these questions we'll talk to Heritage Senior Fellow Alden Abbot and FTC Acting Chairman Maureen K. Ohlhausen.
Alden Abbott, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and the John, Barbara, and Victoria Rumpel Senior Legal Fellow, The Heritage Foundation
Hon. Maureen K. Ohlhausen, Commissioner, Federal Trade Commission
Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.
On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires. The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case.
This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.
Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S.
Jeff Lamken, Partner, MoloLamken
Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
On February 21, the Supreme Court will hear argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen. The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment Protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity.
Professor Andrew Kent of Fordham University School of Law and Professor Stephen I. Vladeck of UT Austin Law School joined us to examine the case and its implications for extraterritorial application of the Bill of Rights and for qualified immunity.
Prof. Andrew Kent, Professor of Law, Fordham University School of Law
Prof. Stephen I. Vladeck, Professor of Law, The University of Texas at Austin School of Law
President Trump took a step toward fulfilling his campaign promise to cut regulations last week when he signed an executive order calling for two regulations to be eliminated for every new one issued. The president has indicated that the order will yield “the largest ever cut by far in terms of regulations.” But some are worried that it is a Sophie’s choice for regulatory agencies, and the order will change how regulators do business in the U.S.
Professor Susan Dudley, director of the George Washington University Regulatory Studies Center explained what the order does and does not do. Jitinder Kohli, former head of the UK Better Regulation Executive, described lessons learned from the UK’s “one-in-three-out” policy. This Teleforum was the first episode in the Executive Order Teleforum Series.
Professor Susan Dudley, Director, George Washington University Regulatory Studies Center
Jitinder Kohli, Director in Public Sector Practice, Deloitte Consulting