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October 12, 2004
TO: Members of the Executive Committee FR: Representative J. R. Gray,
Kentucky The Intergovernmental Affairs Committee convened on Sunday, August 15, for a business session and on Monday, August 16, for a program session during the 58th SLC Annual Meeting. The following is a summary of the speaker presentations and Committee activities. BUSINESS SESSION Sunday, August 15 I. Recent Border and Transportation Security Initiatives Asa Hutchinson – Undersecretary, Border and Transportation Security, U.S. Department of Homeland Security, Washington, D.C. Background On March 1, 2003, the U.S. Department of Homeland Security (DHS) inherited the professional workforce, programs and infrastructure of 22 different agencies of the federal government, including the U. S. Coast Guard, Customs Service, Immigration and Naturalization Service, and the Transportation Security Administration. Collectively, these public servants are responsible for protecting America’s borders and transportation systems. This session reviews border and transportation security trends; FY2005 grants for state and local homeland security programs; first responder grants; immigration policy; and other intergovernmental aspects of homeland security. Presentation Undersecretary Hutchinson began his presentation by noting that two of the toughest national security jobs involve enforcing drug laws and protecting the country’s borders and transportation systems. The Department of Homeland Security was created with one single overriding responsibility: to make America more secure. Along with the transformation within the FBI, the establishment of the Department of Defense's U.S. Northern Command, and the creation of the multi-agency Terrorist Threat Integration Center and Terrorist Screening Center, America is now better prepared to prevent, disrupt, and respond to terrorist attacks. The DHS has been in existence for a year and a half comprises 180,000 personnel from 22 different agencies, all working toward the same goal. Organizing the DHS has been a tremendous challenge, but it has brought many successes. The 9/11 Commission Report stated, “America is safer today than it was two and a half years ago.” According to Undersecretary Hutchinson, this mainly is due to the increase in investments from the private sector in enhancing security and to states rebuilding their security infrastructures. In addition, the DHS has improved defense strategies overseas and upgraded security at key facilities around the country. Recent activities of the DHS include both offensive and defensive strategies. The department received a treasure trove of intelligence from overseas, specifically Pakistan. Intelligence revealed Citicorp, Prudential, NYSE, and other corporate icons were subjects of extensive surveillance, casing, and analysis. Based on this information, security was checked in each building, and the structure of each building and escape routes that could be deployed were analyzed. The report also revealed that the attack of these buildings would be by way of vehicle explosives. This information was considered crucial and highly valid when linked to the past two attacks on the World Trade Center. The surveillance of these buildings is considered to be pre-operational and the plan to attack is set not too far in the future since it only took eight years between the two attacks on the World Trade Center. The Undersecretary stated that this intelligence report raised many questions within the DHS such as: Should the terrorist level be increased? Should the American people be informed about the specific geographic target area potentially subject to terrorism? (In this case, it was downtown Manhattan.) Do the employees of Citicorp, Prudential, and the NYSE have the right to know about the threat? And, will the stock market plummet? Since September 11, 2001, information regarding homeland security and the potential for domestic or international terrorist threats has been given to the American people more than ever before. After information was revealed to the public about possible attacks in downtown Manhattan, surprisingly, everyone returned to work the next day at Citicorp, Prudential and the NYSE and the stock market increased by 39 points. He continued that the American people understand that there is no such thing as 100 percent security, and they refuse to live in fear and have their freedom deprived. Two months ago, the Pew Research Center revealed 74 percent of Americans feels that the occasional threat of terrorism is part of life and that the government is doing a good job in decreasing terror, and only 17 percent were concerned with terror, compared to 25 percent from the previous survey. This may be viewed as complacency on the people’s part, but it is actually their high level of confidence in the security measures that are currently in place. Undersecretary Hutchinson stated that the DHS is on the right track, but it is not perfect. He then identified major recommendations from the 9/11 Commission Report, which included reforming the intelligence infrastructure, improving communications among security advisors, establishing an online networking system, expanding the terror information center to link together the CIA and the FBI, and to appointing a national intelligence director, which still is being discussed by Congress. A National Cyber Security Division has been established to examine cyber-security incidents, track attacks, and coordinate responses. One important task with which the DHS was charged with was the establishment of a biometric entry-exit system. This system is designed to track international visitors who enter the United States legally with a visa, but stay for an extensive period of time illegally in the country. Since this system has been in place, 7 million visitors have been screened. Of those, 600 posed to be at-risk to commit criminal actions and/or appeared on the terror watch list. For example, in 1996, a woman came to the United States, overstayed her visa, and committed a crime in North Carolina. Seven years later, she went through the Hartsfield–Jackson International Airport in Atlanta with a false driver’s license, visa, and passport. Because the DHS had implemented a layered security strategy, including an increased DHS presence at key foreign ports, improved visa and inspection processes, strengthened seaport security, and improved security technology at airports and border crossings, the fingerprints obtained from the woman immediately revealed her past expired visa and her criminal acts in North Carolina. The DHS also is implementing background checks on 100 percent of applications for U.S. citizenship and has registered more than 1.5 million travelers into the U.S. VISIT program. Although transportation security includes air, land, and water, Undersecretary Hutchinson’s main focus has been aviation security, especially foreign flight crew inspections. So far, 12 pilots have been identified as a potential jeopardy to air space security—most of whom were on terror watch list, while others possessed false passports or had outstanding criminal warrants. Other transportation systems that posed as being at-risk for terrorism include rail stations, highways, and buses. The DHS has implemented the highway watch program to monitor HAZMAT drivers and to better protect our transportation networks. There currently are 2.7 million HAZMAT-endorsed drivers around the country. The terror watch list identified 29 of those drivers with connections to terror groups. By January 2005, full fingerprint background checks will be required on all HAZMAT drivers. Another important security measure is the U.S. Border Initiative within the southwest region of the country. Each week, more than 16,000 immigrants are detained for illegal entry across the Arizona border through the Sonora Desert. Border patrol agents have been positioned to monitor smuggling-related crimes in Arizona. An expeditious process of deportation also is in place where illegal immigrants are returned to their original country within 14 days after crossing the border unless there are unusual circumstances. The federal government has provided more than $13 billion to equip and train local personnel such as firefighters, police officers, and emergency medical service workers to respond to terrorism and other emergencies and created a National Incident Management system. More than 500,000 responders have been trained in a variety of fields since September 11, 2001. Every area of the country, rural or urban, and every state needs to have a base level of security awareness and infrastructure. Pointing out that the United States is not, and probably never will be, free from terror, the Undersecretary believes the DHS, in its short period of existence, has made significant progress at the federal, state, and local level in making America more secure. At the end of the presentation, Undersecretary Hutchinson answered questions from the members and the meeting was adjourned.
II. Legislative Roundtable Discussion
Due to time constraints, the legislative roundtable discussion did not take place.
PROGRAM SESSION Monday, August 16 I. Faith-Based Initiatives Bryan Jackson
- Director of Communications, Roundtable on Religion and Social Welfare Policy,
Rockefeller Institute of Richard W. Roper -
Associate Director of Outreach, Roundtable on Religion and Social Welfare
Policy, Rockefeller Institute of Background In December 2002, President George W. Bush issued broad executive orders to implement his Faith-Based Initiative through administrative action. This session highlighted the role of faith-based groups in the delivery of soical services; provided an overview of the national policy; reviewed state policies and laws in the area, and how states have reacted to the Faith-Based Initiative; examined the effectiveness and capacity of faith-based services; and addressed the current legal environment surrounding government support of faith-based social service providers. Presentation Mr. Jackson began his presentation by stating that on December 12, 2002, President Bush announced two new executive orders designed to further his Faith-Based and Community Initiative. Shortly afterwards, the administration issued four notices of proposed rulemaking changes by federal departments--all designed to expand government support of faith-based social service programs. To further aid this effort, the administration also published a booklet aimed at guiding faith-based social service providers on how to partner with the federal government. The newly proposed agency rules and the guidance document offer some useful clarification on partnerships between FBOs and the federal government. Several of the agency-specific rules introduce new and complex elements into the legal environment of the Faith-Based and Community Initiative. The administration also has eliminated regulatory and policy barriers that have kept faith-based organizations from partnering with the federal government to help Americans in need. It has worked to put into place regulations to ensure that faith-based organizations are able to compete on an equal footing for federal funding within constitutional guidelines, without impairing the religious character of such organizations and without diminishing the religious freedom of beneficiaries. The administration also created, Mr. Jackson continued, the Centers for Faith-Based and Community Initiatives in seven cabinet departments--the U.S. Departments of Justice, Agriculture, Labor, Health and Human Services, Housing and Urban Development, and Education and the Agency for International Development--to promote the Initiative. Its priority areas include at-risk youth; ex-offenders; the homeless and hungry, substance abusers, those with HIV/AIDS, and welfare-to-work families. Mr. Jackson stated that the six core components of the Faith-Based Initiative are: 1) limitations on direct financing of religious activity; 2) the constitutional status of indirect financing; 3) creation of a level playing field for faith-based providers; 4) protections for the religious character of service providers; 5) protections for the religious liberty of program beneficiaries; and 6) co-religionist preference in hiring for government-financed services. On June 1, 2004, Mr. Roper added, President Bush signed a new executive order which established new Centers for Faith-Based and Community Initiatives within three additional federal agencies, the departments of Commerce, Veterans Affairs, and the Small Business Administration. These three new Centers will have the same responsibilities as the other seven Centers created by the president. According to Mr. Roper, On June 8, 2004, the U.S. Departments of Education and Veterans Affairs finalized new rules affecting funding of faith-based service providers. The new provisions are designed to advance the administration’s effort to open program funding opportunities to all qualified organizations, regardless of their religious character. The rules addressed appropriate uses of public funds, and included restrictions directing government funds not be used for "inherently religious activities." The rules also cited the administration's view that the Civil Rights Act of 1964 allows federally funded religious organizations to give hiring preference to individuals based on their religious beliefs. Also on this same day, the U.S. Agency for International Development announced a plan to make similar changes to its rules affecting the involvement of religious organizations. In addition to these activities, the courts also are involved in several major cases affecting the Faith-Based Initiative. The most prominent of these is Locke v. Davey. This case involved a college student who had his state-funded scholarship revoked by the state of Washington after he enrolled in religious courses to become a pastor. The state constitution prohibits public money from being used to provide any religious instruction or to support a religious establishment. The U. S. Supreme Court found that the prohibition on majoring in theology discriminated on the basis of religion and could be upheld only if it was necessary for a compelling government purpose. The Court further determined that the state’s interest in avoiding conflict with its constitution was not a compelling reason to withhold scholarship funds from a student pursuing a theology degree. The Court found that the theology restriction was unconstitutional and that plaintiff could receive the scholarship without violating the Washington constitution, thus settling the question as to what extent states may maintain a policy of religion-state separation, particularly as it pertains to funding issues. The leading judicial development affecting the Faith-Based Initiative, noted Mr. Roper, is unquestionably the Supreme Court’s decision in the case pertaining to Washington state’s Baby Blaine Amendment. The Court will decide the constitutional permissibility of this amendment, which bars state funds from being spent on religious worship or instruction. Many states have similar provisions in their constitutions. The state prohibition extends to voucher-type programs, so Locke v. Davey is of critical importance to the school voucher movement as well as the Faith-Based Initiative. Through rule and policy changes, Mr. Jackson concluded, the administration has reversed prior federal prohibitions on government financing of structures used for religious worship or education and now will permit such financing in a broad range of federal programs. The administration has pressed for the maximum amount of hiring autonomy of religious entities working as partners with government, but some of its legal interpretations are questionable and it lacks legal authority to displace state and local law on the subject. Very few states have taken any FBO-specific action in the past 12 months. Mr. Jackson expressed that their failure to do so may jeopardize the Initiative. At the end of presentation, Chairman Gray asked for any comments or questions from the members. With no further discussion, the meeting was adjourned.
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