Updated: House Committee on Homeland Security to vote on bill affecting border patrol transparency

On Wednesday, Oct. 4, the House Committee on Homeland Security is expected to vote on bill number H.R. 3548. This bill was first introduced in the House in July but is finally getting a Committee vote after discussions surrounding the bill's exact language resulted in this "Amendment in the Nature of a Substitute." 

Section 120(c)(2)(W) of the proposed Amendment in the Nature of a Substitute (found on pages 45-50 of the linked document) grants broad leeway to the Customs and Border Patrol and its officers when operating on "covered federal land," defined as land within 100 miles of our southern or northern border.  

These sections affect the Customs and Border Patrol's authority to act in order to prevent "all unlawful entries into the United States, including entries by terrorist, unlawful aliens, instruments of terrorism, narcotics and other contraband through the southern border or northern border," including, specifically, activities involving "the motorized vehicles, foot patrols, and horseback to patrol the border area, apprehend illegal entrants and rescue individuals," as well as "the construction, installation, operation and maintenance of tactical infrastructure and border technology ..."  
The authority is so broad that CBP and its officers are given exemptions from the requirements of 36 different federal laws, including but not limited to, the National Environment Policy Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Fish and Wildlife Act, the Eagle Protection Act, the Native American Graves and Repatriation Act, AND "Subchapter 5, and chapter 7 of title 5, United States Code (commonly known as the 'Administrative Procedure Act')."
The federal FOIA is a subset of the Administrative Procedure Act; on paper, exempting CBP activities taken on covered federal land within 100 miles of the southern or northern border from the act could also exempt records of those activities from FOIA. It's unclear whether this reading is accurate, or intended, but unless someone asks, we might not know until it is too late. Unfortunately, there has been little to no stated opposition to this bill, so it could very well pass the House Committee on Wednesday, and later the entire House, unchecked. 
The risk of leaving this stone unturned is clear: The public and press would be in the dark with regard to CBP activities near the border. We wouldn't have access to records of arrests, injuries, deaths and other major incidents at the border or the costs of securing the borders, including the cost and other details of building a border wall. The CBP would be able to run wild and without oversight for the most part.
Again, without clear opposition, this is poised to sail through the committee vote and perhaps subsequently through the House, as well. If we want any meaningful opportunity to oversee the activities of those protecting our borders and the expenditures made in that area, it is up to us to speak now. Please consider using your papers, your social media accounts and even your direct contacts to let members of the Committee on Homeland Security know how you feel about this provision.

[UPDATED at 2:38 p.m. on October 4, 2017]: The bill was amended today in committee to remove the possible FOIA exemption. As reported by Todd Gillman of the Dallas Morning News, the Committee rejected an attempt by Rep. James Langevin (D-R-Ind.) to remove the exemptions from 36 different laws but “did close the loophole regarding the Freedom of Information Act” via unanimous approval of an amendment offered by Rep. Martha McSally (R-Ariz.).  Thanks to all ASNE members who helped make this happen – please keep an eye on this to ensure there is no regression as the bill continues to move forward.

Please contact ASNE Legal Counsel Kevin M. Goldberg at 703-812-0462 or if you have questions.