By Daniel Fowler, CQ Staff
Since its establishment in April 2003, Daniel W. Sutherland has headed the Homeland Security Department‘s Office for Civil Rights and Civil Liberties.
During that time, he has worked on issues ranging from building relationships with the country‘s Muslim and Arab populations – he is a winner of the American-Arab Anti-Discrimination Committee‘s Friend in Government Award – to helping the emergency response community more effectively deal with people who have special needs.
Sutherland‘s five-year tenure in the office is likely approaching its end, however, as President Bush recently nominated him to serve as chairman of the new Privacy and Civil Liberties Oversight Board. He is awaiting Senate confirmation.
A graduate of the University of Virginia School of Law, Sutherland‘s work experience includes a 14-year stint in the Justice Department‘s Civil Rights Division and almost two years in the Education Department‘s Office for Civil Rights. He also successfully handled the case of golfer Casey Martin, who suffered from Klippel-Trenaunay-Weber Syndrome, a rare circulatory disorder that made walking painful. Martin asserted that the PGA tour could not deny him the right to ride in a cart between shots, and the Supreme Court sided with Martin against the tour.
The veteran civil rights attorney recently spoke with CQ Homeland Security about his work, the Office for Civil Rights and Civil Liberties and its future.
Q. What exactly does the Office for Civil Rights and Civil Liberties do?
A. The mission of our office is to assist our colleagues around the department to secure the country while also preserving our freedoms and our way of life. We try to do it in four different ways. The first is we try to help shape policy. So, we proactively get involved with our colleagues to help them as they develop projects, initiatives and programs to ensure that civil rights and civil liberties are built into the program.
The second thing we do is we investigate complaints that the public has about a policy or a program or an action taken by the department.
So, the bulk of our work is proactive, trying to help solve problems before problems exist. The second part, though, is to investigate complaints about things that have happened and see if we can find some policy recommendations that we can develop that will help prevent those in the future.
Then the third thing is that we provide leadership to the department‘s equal employment opportunity effort. So, we‘re dealing with the internal civil rights issues of our department as well.
The last thing is that we serve as an information and a communication channel to the public on these issues. So, we help inform people about what‘s happening, why it‘s happening and we also listen to concerns from NGOs, outside groups, community organizations and bring those concerns back into the department.
Q. For the most part, it seems as though the Office for Civil Rights and Civil Liberties operates under the radar; can you talk about why that is?
A. I don‘t think we operate under the radar here at the department. We‘ve been involved in most of the major policy initiatives at the department in a meaningful way. We were very involved in the cybersecurity issues that have been in the news over the last several months, the satellite technology issues. We were very involved in Hurricane Katrina and that recovery. All those different issues like that, almost every one you can point to we have had an important role to play.
Perhaps, an answer to your question is it‘s not our job to trumpet what we‘re doing. We‘re here to provide good solid advice to our colleagues.
Q. What will the office‘s role going forward be in establishing the legal framework for data from the National Applications Office (NAO) to be used for law enforcement purposes?
A. The law enforcement purposes are part of the National Applications Office that will only be launched after it has been thoroughly studied from the legal aspects as well as from the privacy and civil liberties aspects. There will be a working group [set] up to address all those issues, but that is premature at this point.
Q. I understand that your office is going be performing a civil liberties impact assessment on the NAO. What kind of criteria are you going to be looking for?
A. We‘ve completed a civil liberties impact assessment on the National Applications Office, and provided that to Congress. That document at this time has not been made public because it relates to a program of the intelligence community. We will be doing civil liberties impact assessments on other programs, which will be public. It just so happens that the very first one that we did had to do with a program that relates to the intelligence community and so at this time it‘s not been released to the public.
Very soon, people will be able to see the civil liberties impact assessment, see the template that we go through and evaluate how we‘re assessing these programs. Basically, what we‘re doing is coming up with a set of questions that we think can apply generally to homeland security programs. There are sets in several different areas.
For example, we have questions in the area of what is the impact of the program on particular groups and individuals, religious minorities, racial minorities, people with disabilities, others like that. So that‘s one whole category, the impact on particular groups or individuals.
Another whole area is how does this program affect the influence of government, for example, the federal government as opposed to the state and local governments or the government as it relates to private citizens, individual citizens. So there‘s a question of the size and the scope of government.
Another one is issues of notice and redress. If there is incorrect information in a database or watch list or another program like that, are there procedures for redress. So, those are the types of questions we‘re asking.
Q. How difficult is it to balance protecting the homeland and maintaining civil rights and civil liberties?
A. It‘s challenging, but we believe you can meet both goals. We don‘t subscribe to the paradigm that you have to balance, that if you increase liberty you decrease security or if you increase security you decrease liberty. The two concepts can fit together.
You do that, No. 1, through being innovative, trying to find some innovative ways to come at some of these problems. … But, the second way is by having a very transparent process, really listening to people. So, we constantly have communications with outside civil rights groups or community organizations, the ACLU and others on policies and programs. We get their input and from that we‘re able to shape programs in a much more successful way.
Q. What are some of the most critical civil rights/civil liberties issues that DHS is currently facing?
A. I think the whole issue of redress is one, of watch lists that have been created that are name-based systems. We know that there [are] a lot of misidentifications that come from trying to match people‘s names against names on a list because you don‘t have much to go on. You just have names on a list.
We have developed one effort to try to deal with that called DHS TRIP, which is a system that people can go onto the DHS Web site and file a complaint about a travel situation that they‘ve encountered. Then we as an agency get together and try to figure out if we can resolve that. … So I think redress is a major issue and TRIP is one effort that we‘re trying to make to address it.
Another whole general area is in the context of identity and credentialing, which is something that both the Congress, the executive branch and really state and local governments are increasingly interested in developing more successful efforts to give people identity that is secure. And there are a lot of positives to it, but it produces a lot of complex civil liberties questions that . . . we are tackling now and we‘re going to have to come to grips with really as a country over the upcoming years.
Q. The post 9/11 world hasn‘t been a particularly easy world for Muslims and Arabs to navigate; what kind of work has your office done with those communities?
A. We‘ve done extensive work with America‘s Muslim and Arab communities. We have six different cities where we have established or participate in a community roundtable where we usually do it with the FBI, United States attorney and then all the elements of the Department of Homeland Security with community leaders, civil rights organizations from those communities or influential people in those communities or community groups. We‘re able in these roundtables to discuss issues.
Because they‘ve been going on now for two years, four years, plus, there‘s continuity and relationships that are built-in that allow us to tackle a lot of problems. Going back to the point I made earlier about trying to be innovative, one of the things that we‘ve tried to do here was recognize that our employees and our department need cultural competence training. So, if we get allegations of religious or racial profiling at the borders, and really the underlying issue there is that some of our employees don‘t know much of anything about the traditions and cultures and values of Arab-Americans or Muslim-Americans.
So, because our colleagues in different places in the department requested it and the communities requested it, we developed a training program that is just a very basic course on the cultures and traditions and values of people from the Arab world who might be traveling here to the United States or Arab-Americans who live here or people form the Muslim world who might be traveling here or Muslim-Americans. It‘s about a 45-minute program. We produced it in DVD form, so somebody can just sit at their computer and watch it or it‘s been put in a learning management system, at a lot of the component agencies.
We felt like that cultural competence training was a way to address one of the core issues, and it‘s been received extremely well.
Q. How should the public utilize you and your office?
A. We very much encourage people in the public to contact us with questions or concerns that they have or ideas that they have and also if they have specific complaints. We‘re the place that you can file those complaints, and we will make sure that they‘re investigated and you get a response back. People can contact us either through a telephone number . . . or an e-mail address . . . so we‘re trying to make ourselves very accessible to the public.
We have found that most people contact us through one of the civil rights organizations with which we deal all the time, like the American-Arab Anti Discrimination Committee or the American Bar Association or one of those. In other words, people come to one of the advocacy groups that knows about us.
But, increasingly if we can get the word out to just individuals that‘s very successful too. . . . The telephone number is 1-866-644-8360 and the e-mail account is civil.liberties@dhs.gov. If people want to know more about us we are at www.dhs.gov/civilliberties.
Q. This is the five-year anniversary of DHS, but also of your office. What have been your office‘s biggest successes in the past five years?
A. Let me give you a couple. One is in building partnerships with America‘s Arab and Muslim communities. We have been very interactive in communicating with those communities and letting people in those communities know that we really want them to let us know their ideas and suggestions and concerns. We know that people in these communities are very enthusiastic to roll up their sleeves and work with government, but government needs to come to them and say, “Hey, the welcome mat is out; we want to work with you.” We‘ve seen that really pay off in a lot of areas over the past few years.
One example is travelers who go on the pilgrimage to Mecca. When they came back to the United States in years past they would often have difficulty at the airports. They would be questioned at a lot of the airports, that sort of thing. Working in partnership with some of the local Muslim advocacy groups we were alerted to that problem and then developed some basic guidance that was given to TSA officers, TSOs, and Customs and Border Protection officials – some basic guidance on what the Hajj is, why people might be traveling, their customs, their dress that they might have.
People who travel on the pilgrimage often carry some holy water, so TSA needed to explain to them how you carry liquids. That sort of thing. It didn‘t change any security protocols. It just gave some background on some travelers they might be seeing in this two, three, four-week period. We found in the past two years, we have no complaints filed from any traveler returning from a pilgrimage. . . . It‘s just one of probably a dozen different projects that we‘ve worked on with the Muslim community that have been very well received. They‘re win-win – good for the community and good for the government.
The second area I think that we‘ve made a really good mark in is in the area of helping the emergency management community better respond to what they refer to as special needs populations. Those are primarily people with disabilities. We worked with the White House. The president had signed an executive order putting us in charge of an interagency coordinating council on these issues, and then when Hurricane Katrina hit we … actually deployed people to . . . Baton Rouge and Austin, Texas, to work on these issues.
Then, subsequent to Hurricane Katrina, we‘ve worked on some really important guidance to state and local governments on how to integrate people with disabilities and their skills and abilities into the emergency operations plans. So we made a big impact, I think, also in that area.
Q. As you know, there has been a lot of turnover in DHS, but you have been in your position for five years. What‘s the secret to your staying power?
A. Well, really we found that … our whole office has very low turnover and high morale. I think we love what we do, and that‘s true for me. I tell people I think I have the best job in the government. I‘m enthusiastic about getting into work every day and it‘s a great group of people that we work with. So, the subject matter area and we have a great team of people here in our office – that makes it worthwhile.
Q. Are you hoping to stay beyond the Bush administration in your position?
A. As I said, I love my job. I‘ve been in the career service since 1987. This job is a political appointment, but I have been nominated to be the chairman of the new Privacy and Civil Liberties Oversight Board and that nomination is in front of the Senate now. So, if the Senate chooses to confirm me, then I would go and begin that new agency. That is for a term of six years, again, if the Senate confirms me.
That would allow me to continue to work in these same issue areas, but provide advice to a wider range of federal agencies. It would be an independent agency of government that would serve as a resource for all the agencies in the executive branch, not here just within our department. It would also be very interactive with the Congress, trying to assist them in any way we could to understand the issues that occur in the areas of civil liberties and privacy. So, again, if the Senate confirms me, it would be my plan to go and help start this new agency where we would continue to work on many of the same issues.
Q. What should the Office of Civil Liberties and Civil Rights goals be or what should it be doing for the next five years?
A. We‘ve actually come up with a plan. We do every year. We come up with a list of 10 priorities or 10 projects that we want to be focusing on. A lot of them have to do with the subject matter areas I talked to you about, like deepening our work with America‘s Muslim and Arab communities and making our work with the intelligence community more effective. Some of our goals for this upcoming year are really to provide guidance to the current leadership of our department and then also anticipating a transition to new leaders in the upcoming year and years, that we would provide effective guidance throughout this whole year and the transition period. So, a lot of our goals really relate to transition as well.
Daniel Fowler can be reached at dfowler@cq.com.
Source: CQ Homeland Security