[House Report 112-204]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-204
======================================================================
SEE SOMETHING, SAY SOMETHING ACT OF 2011
_______
September 12, 2011.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 963]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 963) to amend the Homeland Security Act of 2002 to
provide immunity for reports of suspected terrorist activity or
suspicious behavior and response, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 7
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 9
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Changes in Existing Law Made by the Bill, as Reported............ 11
Dissenting Views................................................. 14
Purpose and Summary
H.R. 963 creates a statutory qualified immunity protection
for individuals who report suspicious terrorism-related
activity and for law enforcement officers who respond in good
faith to citizens' reports.
Background and Need for the Legislation
The bill buttresses efforts, such as the Department of
Homeland Security's ``See Something, Say Something''
campaign,\1\ to encourage citizens to share information
regarding suspicious activity that may be related to terrorism.
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\1\See, e.g., Department of Homeland Security, ``If You See
Something, Say Something'' campaign website, available at http://
www.dhs.gov/files/reportincidents/see-something-say- something.shtm.
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The ``See Something, Say Something Act'' amends the
Homeland Security Act of 2002.\2\ The Act protects vigilant
citizens and law enforcement officers who use their common
sense to help prevent the next terrorist attack.
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\2\6 U.S.C. Sec. Sec. 451 et seq.
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The bill creates immunity from civil suit for any person
who in good faith reports to authorities ``any suspicious
transaction, activity, or occurrence indicating that an
individual may be engaging, or preparing to engage, in a
violation of law relating to an act of terrorism.'' The bill
also codifies qualified immunity protection for reasonable good
faith actions taken in response to reports of suspicious
activity by any Federal, State, or local law enforcement
officer or Federal official with responsibility for protecting
against terrorist activity. If the bill's immunities apply,
then the party found to be immune ``shall be entitled to
recover from the plaintiff all reasonable costs and attorneys
fees.''
These protections are necessary to encourage citizens to
share their reasonable suspicions with law enforcement officers
without fear of liability. The protections for law enforcement
officers will similarly empower law enforcement officers to
reasonably pursue citizen tips without fear of being sued.
While good faith actions to prevent a terrorist attack may
not necessarily give rise to liability under existing law
following protracted and costly litigation, and existing law
may provide qualified immunity for citizens or law enforcement
officers in specific situations and jurisdictions, the bill's
codification of a simple, easily understood, and generally
applicable qualified immunity standard will increase citizens'
and law enforcement officers' ability to act in good faith to
investigate suspicions and prevent attacks.
A. ALERT CITIZENS HAVE THWARTED PAST PLOTS
Many times over the past decade, tips from alert citizens
have helped to thwart potential terrorist attacks.
1. Attempted Attack on Times Square
On May 1, 2010, street vendor Lance Orton noticed
suspicious smoke coming from a parked van, and acted with other
vendors to inform a nearby New York City police officer. The
suspicious smoke was the result of bomb ignited by Faisal
Shahzad, who had trained at a Pakistani terrorist training
camp.\3\
---------------------------------------------------------------------------
\3\Eileen Sullivan & Kimberly Dozier, Boston Herald, ``Sources:
Bomber trained at Pakistan terror camp,'' (May 4, 2010), available at
http://www.bostonherald.com/news/national/northeast/view/
20100504sources_times_square_bomber_trained_at_pakistan_terror_camp/.
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Following the tip, officials were able to disarm the Times
Square bomb before it could explode, and Faisal Shahzad was
later arrested after boarding an international flight. The
street vendors who noticed the suspicious smoke prevented this
attempted bombing. Hours after the thwarted attack, vendor
Lance Orton was asked what he had to say to fellow New Yorkers:
``See something, say something,'' he said.\4\
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\4\Michael Schmidt, New York Times, ``T-Shirt Vendor Takes On New
Persona: Reluctant Hero of Times Square,'' (May 2, 2010), available at
http://cityroom.blogs.nytimes.com/2010/05/02/t-shirt-vendor-takes-on-
new-persona-reluctant-hero-of-times-square/.
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2. Arrest of Lubbock, Texas man
In January, Lubbock, Texas resident Khalid Aldawsari placed
suspicious purchases of the chemical Phenol, which can be used
to make explosives.\5\ The North Carolina chemical company,
with whom the orders were placed, noticed the suspicious
purchases and reported them to the FBI.
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\5\James McKinley & Sarah Wheaton, New York Times, ``Saudi Student
to Be Arraigned in Bomb Plot,'' (Feb. 25, 2011), available at http://
www.nytimes.com/2011/02/26/us/26texas.html.
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The FBI's investigation uncovered purchases of other
chemicals, which, combined with Phenol, can make the explosive
T-N-P. An FBI search of his computer uncovered emails
describing potential targets including reservoirs and dams,
nuclear power plants, night clubs, and the Dallas home of
former President George W. Bush. The FBI promptly arrested
Aldawsari.\6\
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\6\Jason Ryan, ABC World News, ``Texas Student Khalid Aldawsari
Arrested on Terror Charges; Targeted George W. Bush,'' (Feb. 24, 2011),
available at http://abcnews.go.com/Politics/texan-charged-plans-bomb-
bush-home-dams-nuclear/story?id=12990927.
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3. Christmas Day Bombing
On Christmas Day in 2009, Umar Farouk Abdulmutallab boarded
an international flight with plastic explosives that he had
concealed in his underwear.\7\ As he attempted to detonate the
explosives, airline passengers worked together to tackle the
terrorist, and put out the fire that the explosives had caused.
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\7\Mark Hosenball, Newsweek, ``The Radicalization of Umar Farouk
Abdulmutallab,'' (Jan. 2, 1010), available at http://www.newsweek.com/
2010/01/01/the-radicalization-of-umar-farouk-abdulmutallab.html.
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While two of the passengers were injured in the attempted
bombing, they were able to subdue and handcuff Abdulmutallab as
the pilot safely landed the plane. As this attack demonstrates,
ordinary citizens who remain alert and vigilant about their
surroundings are America's first line of defense against
terrorist attacks.
4. Fort Dix Six
In 2007, a teenage clerk at an electronics store was asked
by two men to transfer a videotape to a DVD. When the teenager
and another employee went into the back room and started the
process of transferring the tape, they found themselves
watching several jihadists shooting some very large weapons.
The teen frantically told his coworker what he had witnessed.
And then he said, ``I don't know what to do. Should I call
someone or is that being racist?''\8\
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\8\Jana Winter, New York Post, ``Clerk Rings Up N.J. Jihad
Clerks,'' (May 13, 2007), available at http://www.nypost.com/p/news/
regional/item_0oS2xKmNdVwCzcvzxPuCBL.
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Here, the teenage clerk was brave enough to overcome his
fear of political correctness. He called the FBI. As a result,
a group of terrorists who became known as the ``Fort Dix Six''
were captured. The FBI believes the ``Fort Dix Six'' were in
the final stages of preparing for an armed assault on Fort Dix,
and perhaps other military installations, where they could have
killed or injured men and women in our armed forces.
B. FAILURE TO SHARE SUSPICIONS CAN HAVE TRAGIC CONSEQUENCES
By tragic contrast to the thwarted attacks above, 13 men
and women were murdered by Army psychologist Nidal Hasan at
Fort Hood, Texas. This was the deadliest terror attack on
American soil since September 11. This tragedy could perhaps
have been avoided if suspicions about Hasan's behavior had been
raised and acted upon before the attack.
Multiple reports indicate that, before the attack, Hasan
engaged in extreme rhetoric and other suspicious behavior.
Indeed, Hasan's publicly displayed sympathy for radical Islam
throughout his residency at Walter Reed Army Medical Center and
post-residency fellowship at the Uniformed Service University
of Health Sciences (``USUHS'') led two colleagues to describe
him as ``a ticking time bomb.''\9\
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\9\U.S. Senate Homeland Security and Governmental Affairs
Committee, Chairman Joseph I. Lieberman and Ranking Member Susan M.
Collins, ``A Ticking Time Bomb: Counterterrorism Lessons from the U.S.
Government's Failure to Prevent the Fort Hood Attack,''at p. 27
(February 2011) (hereafter ``Lieberman/Collins Report''), available at
http://hsgac.senate.gov/public/_files/Fort_Hood/FortHoodReport.pdf.
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During the last month of his residency Hasan, like all
other psychiatric residents at Walter Reed, was required to
deliver an academic presentation on psychiatric issues. Hasan
chose to fulfill this requirement with a lecture on violent
Islamic extremism.\10\ Hasan's draft of this presentation
consisted almost entirely of citations to the Koran, with
almost no mention of scientific or psychiatric material.\11\
The draft presented extremist interpretations of Islam that
supported the killing of non-Muslims, argued that the September
11 attacks might be defended as an act of revenge, and that
having Muslim-Americans in the military created a risk of
murder against their fellow soldiers.\12\
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\10\Id. at 28.
\11\Id.
\12\Id. at 28-29.
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After his residency, Hasan was accepted to a fellowship at
USUHS. He displayed his radicalism almost immediately and
throughout this fellowship.\13\ A presentation he delivered
early in the fellowship was so inflammatory and supportive of
violent extremism against the United States that the instructor
halted the presentation after a few minutes.\14\ In discussions
with classmates, Hasan on more than one occasion justified the
actions of suicide bombings and suggested that the actions of
Osama bin Laden were justified.\15\
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\13\Id. at 29-30.
\14\Id.
\15\Id. at 30.
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Hasan's suspicious activity continued up until the day of
his attacks. He corresponded with radical jihadi cleric Anwar
al-Awlaki\16\ and, on the night before his attack told a fellow
soldier that he should quit the military because he believed
the Koran forbids alliances with Christians and Jews.\17\ On
the night before his murder spree, Hasan gave away all of his
possessions and distributed copies of the Koran.\18\
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\16\See Elizabeth Bumiller and Scott Shane, New York Times,
``Pentagon Report on Fort Hood Details Failures,'' (Jan. 15, 2010),
available at http://www.nytimes.com/2010/01/16/us/politics/
16hasan.html; Carrie Johnson, Washington Post, ``FBI to Probe Panels
that Reviewed E-Mails from Alleged Fort Hood Gunman,'' (Dec. 9, 2009),
available at http://www.washingtonpost.com/wp-dyn/content/article/2009/
12/08/AR2009120801731.html.
\17\Testimony of Lawrence J. Haas, House Judiciary Subcommittee on
the Constitution Hearing on H.R. 963, ``The See Something, Say
Something Act of 2011'' at 6 (June 24, 2011).
\18\Id.
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None of this suspicious activity was reported to the proper
authorities in a way that identified Hasan's activities as
suspicious. Indeed, despite his poor performance as an Army
psychiatrist, his superiors gave him strong evaluations.\19\
The failure of his medical colleagues to report Hasan's
suspicious and violent rhetoric is at least partly attributable
to ``a fear of litigation, a fear of being called bigots, or a
fear of being wrong about the nuances of a theo-political
ideology.''\20\ Out of political correctness and a fear of
reprisal, Hasan's suspicious activities went unreported.
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\19\Lieberman/Collins Report at 33.
\20\Testimony of M. Zuhdi Jasser, M.D., House Judiciary
Subcommittee on the Constitution Hearing on H.R. 963, ``The See
Something, Say Something Act of 2011'' at 5 (June 24, 2011).
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On the morning of November 5, 2009, Nidal Hasan walked in
to a deployment center at Fort Hood near Killeen, Texas, and
opened fire, killing 13 Department of Defense employees and
wounding 32 others.\21\ Better sharing of his suspicious
activities could have prevented the attack.
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\21\Lieberman/Collins Report at 7.
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C. THE THREAT OF LITIGATION COULD CHILL CITIZEN REPORTS
Unfortunately, at least part of citizens' reluctance to
share information about potential terrorist attacks could be
related to the threat of litigation if the suspicions are
mistaken.
When the passengers of a 2006 U.S. Airways flight noticed
behavior by six men that they genuinely believed to be
suspicious, they alerted the crew.\22\ The crew shared the
suspicions, and these men were removed from the plane.
Authorities then detained and questioned the men.
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\22\See Scott W. Johnson, The Weekly Standard, ``The Flying Imams
Win: And the rest of us lose'' (Nov. 9, 2009), available at http://
www.weeklystandard.com/Content/Public/Articles/000/000/017/
148tyfxg.asp?page=1; see also Libby Sander, New York Times, ``6 Imams
Removed from Flight for Behavior Deemed Suspicious,'' (Nov. 22, (2006),
available at http://www.nytimes.com/2006/11/22/us/
22muslim.html?bl&ex=1164517200&en=24531ca1fa7314e1&ei=5087%0A.
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The authorities ultimately determined that the six men did
not pose a threat, and they were released. However, the men
then sued the airport, the airline, the authorities, and the
passengers who had voiced their sincere concerns.
For the airline passengers who had merely shared their
suspicions out of a good faith desire to keep themselves and
their fellow passengers safe, the prospect of prolonged and
costly litigation to defend their actions was potentially
ruinous. Without a clear statutory immunity for their good
faith actions, the passengers would have been forced to retain
counsel and defend themselves through litigation that could
potentially last years and cost tens of thousands of dollars or
more. Even if, at the end of this process, their actions were
vindicated, the passengers would have lost considerable time in
defending the suit and incurred significant legal fees for
which they were not insured. Absent a statutory fee shifting
provision, the passengers had little prospect of recovering
these fees from the plaintiffs.
Absent Congressional action, the message of the U.S.
Airways flight and the subsequent litigation would have been
that citizens should keep their suspicions to themselves, lest
they subject themselves to a lawsuit for reporting suspicious
activity. Nothing could undermine the government's interest in
encouraging citizens to say something when they see something
as surely as liability for citizens who report their good faith
suspicions.
Fortunately, Congress did enact a statutory immunity with a
fee shifting provision, P.L. 110-53, Sec. 1206,\23\ on an
overwhelming bipartisan basis in 2007. This provision
buttressed the passengers' legal position by clarifying that
their good faith report could not lead to liability against
them, and that they would be entitled to recover legal fees
from the plaintiffs in the lawsuit.
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\23\Codified at 6 U.S.C. Sec. 1104.
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Recognizing that this statute made it far more difficult to
sue the passengers and potentially made the plaintiffs
responsible for the passengers' legal expenses, the plaintiffs
in the U.S. Airways litigation dropped their claims against the
passengers shortly after Congress adopted the 2007 law.
D. THE BILL EXPANDS CURRENT LAW THAT APPLIES ONLY TO TRANSPORTATION
SYSTEMS
P.L. 110-53, Sec. 1206, which was adopted in 2007 with
overwhelming bipartisan support in response to the U.S. Airways
lawsuit, creates immunity from suit only for reports of ``any
suspicious transaction, activity, or occurrence that involves,
or is directed against, a passenger transportation system or
vehicle or its passengers.''\24\ H.R. 963 expands these
immunities so that they would apply to reporting ``any
suspicious transaction, activity, or occurrence,'' regardless
of whether a passenger transportation system is involved.
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\24\6 U.S.C. Sec. 1104(d)(2).
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Accordingly, the definition of the ``Authorized Officials''
entitled to immunity is expanded in the bill to include ``any
officer, employee, or agent of the Federal Government with
responsibility for preventing, protecting against, disrupting,
or responding'' to suspicious terrorism-related activity. The
2007 law only offered immunity to employees of passenger
transportation systems and Department of Homeland Security
(DHS), Department of Transportation (DoT), or Department of
Justice (DoJ) officials with responsibilities relating to the
security of passenger transportation systems.\25\
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\25\6 U.S.C. Sec. 1104(d)(1)(b).
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The terrorist threat is not limited to transportation
systems, and citizens should be encouraged to make good-faith
reports of suspicious activity free from fear of reprisal
whether or not transportation is involved.
If the government is going to encourage citizens to report
suspicious activity, as it should, then we must also protect
those citizens from being sued for making such reports. The
``See Something, Say Something Act'' ensures that Americans can
exercise their common sense to protect against and prevent
terrorist attacks.
Hearings
The Committee's Subcommittee on the Constitution held one
day of hearings on H.R. 963, on June 24, 2011. Testimony was
received from Lawrence J. Haas, Dr. M. Zuhdi Jasser, President
of the American Islamic Forum for Democracy, and Chief Chris
Burbank of the Salt Lake City Police Department, with
additional material submitted by Congressman Peter King,
Chairman of the House Homeland Security Committee, and the
National Fraternal Order of Police.
Committee Consideration
On July 21, 2011, the Committee met in open session and
ordered the bill H.R. 963 favorably reported without amendment,
by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 963.
1. An amendment by Ms. Chu to prohibit extension of
immunity to bias-based reports. Defeated 4 to 16.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................
Mr. Berman......................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu......................................................... X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 4 16
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 963, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 9, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 963, the ``See
Something, Say Something Act of 2011.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Sarah Puro
(for Federal costs), who can be reached at 226-2860, and Amy
Petz (for the private-sector impact).
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 963--See Something, Say Something Act of 2011.
H.R. 963 would amend the Homeland Security Act of 2002 to
grant immunity from civil liability to people who report
suspicious activities that would violate the law relating to
terrorism. Under current law, citizens are protected from
liability in cases when they report suspicious activities on
transportation systems. The bill would expand that protection
to any citizen in any circumstance. Because the bill would
address a private right of action and based on information from
the Department of Homeland Security, CBO estimates that the
bill would have no effect on the Federal budget. Enacting H.R.
963 would not affect direct spending or revenues; therefore,
pay-as-you-go procedures do not apply.
H.R. 963 would impose an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) by
preempting State and local liability laws. CBO estimates that
the preemption would not significantly affect the budgets of
State, local, or tribal governments; while the mandate would
limit the application of State and local laws, it would impose
no duty that would result in additional spending.
By expanding protections against civil liability claims for
individuals who report suspicious terrorist-related activities
to an authorized official, the bill would eliminate an existing
right to seek compensation for damage caused by certain acts;
that expansion would impose a private-sector mandate. The
direct cost of the mandate would be the forgone net value of
awards and settlements in such claims. Because there is a lack
of information about both the value of awards in such cases and
the number of claims that would be filed in the absence of this
legislation, CBO has no basis for predicting the level of
potential damage awards, if any. Thus, CBO cannot estimate the
cost of this mandate or whether that cost would exceed the
annual threshold established in UMRA for private-sector
mandates ($142 million in 2011, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Sarah Puro
(for Federal costs) and Amy Petz (for the private-sector
impact). The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
963 is designed to encourage the sharing of information
respecting potential terrorist attacks by reducing the threat
of litigation against citizen informants and law enforcement
responders.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 963 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
Section 1:
Short title.
Section 2(a):
Provides for new Sec. 890A to be added at the end of
the Homeland Security Act of 2002. For ease of
reference, the section-by-section analysis below will
analyze the sections of this new Sec. 890A.
Section 890A(a)(1):
Creates immunity from civil liability under Federal,
State, and local law for any person who, in good faith
and based on objectively reasonable suspicion, reports
``covered activity'' to an ``authorized official.''
Covered activity is defined by Section 890A(d)(2) to
mean ``any suspicious transaction, activity, or
occurrence indicating that an individual may be
engaging, or preparing to engage, in a violation of the
law relating to an act of terrorism.''
Authorized official is defined by section 890A(d)(1) to
mean either ``any officer, employee, or agent of the
Federal Government with responsibility for preventing,
protecting against, disrupting, or responding to a
`covered activity''' or ``any Federal, State, or local
law enforcement officer.''
Section 890A(a)(2):
Provides that immunity shall not apply to reports that
the person knew to be false or made with reckless
disregard for the truth.
Section 890A(b)(1):
Creates and clarifies immunity for any authorized
official who observes or receives a report of covered
activity, and takes reasonable action in good faith to
respond to the activity. So long as the authorized
official's actions are reasonable and taken in good
faith to respond to the reported activity, then the
official is immune from suit even if the defense of
qualified immunity would not otherwise be available.
Section 890A(b)(2)(a):
Provides that the availability of the defense under
this section does not affect an authorized official's
ability to assert any other defense, such as qualified
immunity, that may be available.
Section 890A(b)(2)(b):
Clarifies that the statute does not change or otherwise
affect the contours of other defenses, privileges, or
immunities that may be available. The statute creates a
defense that is independent of and separate from
existing defenses, privileges, and immunities.
Section 890A(c):
Provides that an authorized official or person who is
found to be immune under the defense created by this
statute shall be entitled to recover all reasonable
costs and attorneys fees from the plaintiff.
Section 890A(d)(1)
Defines ``authorized official to mean either ``any
officer, employee, or agent of the Federal Government
with responsibility for preventing, protecting against,
disrupting, or responding to a `covered activity''' or
``any Federal, State, or local law enforcement
officer.''
Section 890A(d)(2):
Defines ``covered activity'' to mean ``any suspicious
transaction, activity, or occurrence indicating that an
individual may be engaging, or preparing to engage, in
a violation of the law relating to an act of terrorism
(as that term is defined in section 3077 of title 18,
United States Code).''
18 U.S.C. Sec. 3077 defines an ``act of terrorism'' to
include acts of either domestic or international
terrorism, as those terms are defined in 18 U.S.C.
Sec. 2331.
18 U.S.C. Sec. 2331 defines both ``international
terrorism'' and ``domestic terrorism'' as ``acts
dangerous to human life'' that violate criminal law or
would violate criminal law if committed within the
jurisdiction of the United States or of any State, and
that appear to be intended to (1) intimidate or coerce
a civilian population; (2) influence the policy of a
government by intimidation or coercion; or (3) to
affect the conduct of a government by mass destruction,
assassination, or kidnapping. The term ``domestic
terrorism'' covers activities that meet this definition
and occur primarily within the territorial jurisdiction
of the United States, while ``international terrorism''
covers activities that occur primarily outside the
territorial jurisdiction of the United States or that
transcend national boundaries. Activities related to
either variety fall within the definition of ``covered
activities'' in H.R. 963.
Section 2(b):
Amends the table of contents of the Homeland Security
Act of 2002 to insert a reference to the new Section
890A created by the bill.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
* * * * * * *
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
* * * * * * *
Subtitle H--Miscellaneous Provisions
* * * * * * *
Sec. 890A. Immunity for reports of suspected terrorist activity or
suspicious behavior and response.
* * * * * * *
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
* * * * * * *
Subtitle H--Miscellaneous Provisions
* * * * * * *
SEC. 890A. IMMUNITY FOR REPORTS OF SUSPECTED TERRORIST ACTIVITY OR
SUSPICIOUS BEHAVIOR AND RESPONSE.
(a) Immunity for Reports of Suspected Terrorist Activity or
Suspicious Behavior and Response.--
(1) In general.--Any person who, in good faith and
based on objectively reasonable suspicion, makes, or
causes to be made, a voluntary report of covered
activity to an authorized official shall be immune from
civil liability under Federal, State, and local law for
such report.
(2) False reports.--Paragraph (1) shall not apply
to any report that the person knew to be false or was
made with reckless disregard for the truth at the time
that the person made that report.
(b) Immunity for Response.--
(1) In general.--Any authorized official who
observes, or receives a report of, covered activity and
takes reasonable action in good faith to respond to
such activity shall have qualified immunity from civil
liability for such action, consistent with applicable
law in the relevant jurisdiction. An authorized
official as defined by section (d)(1)(A) not entitled
to assert the defense of qualified immunity shall
nonetheless be immune from civil liability under
Federal, State, and local law if such authorized
official takes reasonable action, in good faith, to
respond to the reported activity.
(2) Savings clause.--Nothing in this subsection
shall--
(A) affect the ability of any authorized
official to assert any defense, privilege, or
immunity that would otherwise be available; and
(B) be construed as affecting any such
defense, privilege, or immunity.
(c) Attorney Fees and Costs.--Any authorized official or
other person found to be immune from civil liability under this
section shall be entitled to recover from the plaintiff all
reasonable costs and attorney fees.
(d) Definitions.--In this section:
(1) Authorized official.--The term ``authorized
official'' means--
(A) any officer, employee, or agent of the
Federal government with responsibility for
preventing, protecting against, disrupting, or
responding to a ``covered activity;'' or
(B) any Federal, State, or local law
enforcement officer.
(2) Covered activity.--The term ``covered
activity'' means any suspicious transaction, activity,
or occurrence indicating that an individual may be
engaging, or preparing to engage, in a violation of law
relating to an act of terrorism (as that term is
defined in section 3077 of title 18, United States
Code).
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Dissenting Views
While we have long supported efforts to promote cooperation
between civilians and law enforcement, H.R. 963, the ``See
Something, Say Something Act of 2011,'' would actually
undermine those efforts. H.R. 963 would provide immunity from
civil liability for individuals who report suspicious
activities that relate to terrorism and law enforcement
officials who act on those reports. Based on the debate during
the Committee markup, and the Majority's rejection of an
amendment that would have ensured that racial profiling not be
protected by this bill, we remain concerned that the bill's
protections could extend to reports based on an individual's
actual or perceived race, religion, or national origin. We are
also concerned that H.R. 963 would permit an individual who had
been the subject of a suit alleging racial profiling to seek
attorneys' fees and costs from the plaintiff if the suit was
dismissed as a result of the immunities provided under this
bill, even if that suit had been brought in good faith.
While proponents of H.R. 963 argue that this legislation is
necessary to encourage private citizens and law enforcement
officials to work cooperatively and take action against
objectively suspicious acts that relate to terrorism, we
believe that it would more likely have the effect of chilling
the right of an individual who has been unlawfully subject to
racial profiling to seek redress in court. As a result, H.R.
963 could have the unintended consequence of encouraging racial
profiling, thereby violating the constitutional rights of the
profiled victims, and undermining bona fide law enforcement
efforts.
For these reasons, and those discussed below, we
respectfully dissent.
I. OVERVIEW
H.R. 963 grants immunity from civil liability to
individuals who--in good faith and based on an objectively
reasonable suspicion--report suspicious activity indicating
that an individual may be engaging, or preparing to engage, in
a violation of law relating to an act of terrorism as defined
in 18 U.S.C. Sec. 3077.\1\ The bill also grants qualified
immunity from civil liability to any authorized official\2\ who
observes, or receives a report of, such activity and takes
reasonable action in good faith to respond, consistent with
applicable law in the relevant jurisdiction.\3\ The bill
further provides that an authorized official not entitled to
assert the defense of qualified immunity shall nonetheless be
immune from civil liability, if that official takes reasonable
action, in good faith, to respond to the reported activity.\4\
Any individual found to be immune from civil liability under
this legislation would be entitled to recover reasonable costs
and attorney fees.\5\
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\1\H.R. 963, Sec. 2(a), adding a new 6 U.S.C. Sec. 890A(a)(1). 18
U.S.C. Sec. 3077 references 18 U.S.C. Sec. 2331, which defines
``international terrorism'' as activities that:
(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended--
G (i) to intimidate or coerce a civilian population;
G (ii) to influence the policy of a government by intimidation or
coercion; or
G (iii) to affect the conduct of a government by mass destruction,
assassination, or kidnaping; and
(C) occur primarily outside the territorial jurisdiction of the
United States, or transcend national boundaries in terms of the means
by which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.
Section 2331 defines ``domestic terrorism'' as activities that:
(A) involve acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State;
(B) appear to be intended--
G (i) to intimidate or coerce a civilian population;
G (ii) to influence the policy of a government by intimidation or
coercion; or
G (iii) to affect the conduct of a government by mass destruction,
assassination, or kidnaping; and
(C) occur primarily within the territorial jurisdiction of the United
States.''
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\2\An ``authorized official'' is defined as ``any officer,
employee, or agent of the Federal government with responsibility for
preventing, protecting against, disrupting, or responding to a `covered
activity;' or any Federal, State, or local law enforcement officer.''
H.R. 963, Sec. 2(a), adding a new 6 U.S.C. 890A(d)(1).
\3\Id Sec. 890A(b)(10).
\4\Id. Sec. 890A(a)(2) and (b)(1).
\5\Id. Sec. 890A(c).
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Criminal justice experts report that there is inevitably an
increase in tips from the public concerning suspicious activity
following any high profile incident.\6\ In the case of the
September 11th attacks, the expected increase in the number of
these kinds of reports was exacerbated by media accounts of a
traffic stop involving the hijackers and their attempts to
blend in with the local minority community.\7\ The resulting
belief that the tragedy might have been averted had someone
simply reported suspicious activities prompted Congress to
enact information sharing legislation, which in turn has led to
the Suspicious Activity Reporting Initiative (SAR).\8\
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\6\See Mike German &Jay Stanley, Fusion Center Update, American
Civil Liberties Union (June 2008), available at http://www.aclu.org/
files/pdfs/privacy/fusion_update_20080729.pdf (last visited: June 17,
2011).
\7\See Sanctioned Bias: Racial Profiling Since 9/11, American Civil
Liberties Union (Feb. 2004), available at http://www.aclu.org/
FilesPDFs/racial%20profiling%20report.pdf (last visited: Sept. 6,
2011).
\8\This program is designed to centralize information sharing
efforts between Federal state and local law enforcement agencies. See
Overview of the Nationwide SAR Initiative, at http://nsi.ncirc.gov/
documents/NSI_Overview.pdf (last visited Sept. 6, 2011). For a
discussion of the development and potentially discriminatory impact of
the SAR initiative, see Thomas Cincotta, Platform for Prejudice,
Political Research Associates (Mar. 2010), available at http://
www.publiceye.org/liberty/matrix/reports/sar_initiative/sar-full-
report.pdf (last visited: September 6, 2011).
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II. CONCERNS WITH THE LEGISLATION
A. H.R. 963 Increases the Risk of Racial Profiling.
Civil liberties advocates have been particularly critical
of suspicious activity initiatives. In its testimony on the
bill, the Rights Working Group observed that minorities have
been disproportionately targeted in suspicious activity
reports:
Since 9/11, suspicion has often been reported based on
appearance rather than behavior. Among those reported
for ``suspicious activities,'' have been peaceful
groups, including anti-death penalty activists and
Amnesty International members. People have been yanked
off of airplanes, and others have found their face in
major newspapers such as the New York Times listed as
terrorism suspects--all because of reports of
suspicious activity. More often than not, the people
targeted by such reports were not engaged in any
illegal activity, and they were often Arab, Middle
Eastern, Muslim, South Asian or perceived to be so.\9\
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\9\See Something, Say Something Act of 2011: Hearing on H.R. 963
Before the Subcomm. on the Constitution of the H. Comm. on the
Judiciary, 112th Cong. (2011) (testimony of Margaret Huang, Executive
Director, Rights Working Group).
The proponents of this legislation seem to have missed the
lessons learned by law enforcement agencies across the country
that a focus on behavior, rather than perceived religion or
ethnicity, is the most effective law enforcement strategy. In
his testimony before the Subcommittee on the Constitution, Salt
Lake City Police Chief Christopher Burbank observed that tips
based on racial, religious or national origin disrupt the work
of law enforcement authorities who still must expend
significant resources to investigate such tips. Chief Burbank
was particularly concerned that, in addition to sidetracking
law enforcement with reports based on race or religion, racial
profiling undermines successful efforts to enlist local
communities in cooperative efforts with police. The Rights
Working Group's testimony took the position that H.R. 963 ran
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the risk of emboldening bias-based behavior:
H.R. 963 provides cover for those who would use race,
religion, ethnicity or national origin as a proxy for
criminal behavior, and offers no remedy to those who
are harmed by their actions. Rather than looking for
ways to immunize those who act improperly on vague and
unsubstantiated tips, this Committee's time would be
better spent looking for ways to effectively identify
criminal behavior and target law enforcement resources
accordingly.\10\
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\10\Id.
Tips based on perceived race, religion, or national origin
distract law enforcement from its core mission and violate the
rights of individuals.\11\ Since September 11th, complaints
about racial profiling in the Arab, Muslim and south-Asian
communities have increased dramatically and have been the
subject of hearings by this Subcommittee.\12\ Examples include
the following:
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\11\Mike German & Jay Stanley, Fusion Center Update, American Civil
Liberties Union (June 2008).
\12\See, e.g., Racial Profiling and the Use of Suspect
Classifications in Law Enforcement Policy: Hearing Before the Subcomm.
on the Constitution, Civil Rights and Civil Liberties of the H. Comm.
on the Judiciary, 111th Cong. (2010).
LRepresentative Darrell Issa (R-CA), an Arab-
American Member of Congress was prevented from boarding
a flight at Dulles International Airport while
traveling on official business, even after providing
his congressional identification.\13\
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\13\See Mark Sherman, Rep. Issa: I Was Profiling Victim, The
Washington Post (Oct. 26, 2001) available at: http://
www.washingtonpost.com/wp-srv/aponline/20011026/aponline175
845_000.htm (last visited: September 7, 2011).
LAn executive for Lucent Industries was
ejected from a flight in Boston after the United
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Airlines crew refused to fly with him on board.
LA Muslim staff person with the Judiciary
Committee was harassed by airline employees after
boarding and was asked to produce four pieces of
identification in addition to his congressional I.D.
Incidents in which reports were based not on suspicious
behavior, but on the perceived race, religion, or nationality
of an individual, serve no legitimate law enforcement purpose.
By further encouraging the targeting of innocent individuals
based on race and ethnicity and diverting focus from rooting
out those with malicious intentions, profiling can seriously
impede these important public safety missions.
B. LH.R. 963 Would Have a Chilling Effect on the Right of Victims of
Racial Profiling to Seek Redress in Court.
H.R. 963 allows any authorized official or other person
found to be immune from civil liability under this section to
recover from the plaintiff all reasonable costs and attorney
fees.\14\ In contrast, the legislation does not provide for
fees and costs for a successful plaintiff who has been the
victim of profiling no matter how malicious the report.
Representative Judy Chu (D-CA) offered an amendment to make
clear that a report based on a person's race, religion,
ethnicity, or national origin would not receive protection
under the bill. This amendment was rejected by a vote of 4-16.
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\14\H.R. 963, Sec. 2(a), adding a new 6 U.S.C. 890A(c).
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Additionally, this measure has the strong potential to
chill access to the courts for those individuals targeted by
even the most malicious tips. Conversely, there is no similar
penalty imposed on a defendant no matter how egregious the
conduct or frivolous the assertion of immunity. Because
numerous ordinary activities have been deemed potentially
suspicious, ordinary citizens would effectively lose access to
the courts for fear of financial ruin in the event of an
adverse ruling.\15\ The losers would be those who are genuinely
victims of profiling, but who could not afford the risk of
losing on the question of immunity. Representative Bobby Scott
(D-VA) offered an amendment to allow a defendant to recover
fees and costs only if the plaintiff did not act in good faith.
The amendment was rejected on a voice vote.
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\15\The Los Angeles Police Department list of SAR suspect actions
includes: using binoculars or cameras; taking measurements; taking
pictures or video footage and drawing diagrams or taking notes. See
Jerome P. Bjelopera, Terrorism Information Sharing and the Nationwide
Suspicious Activity Report Initiative: Background and Issues for
Congress, Congressional Research Service, at 8 (June 10, 2001)
available at: http://www.fas.org/sgp/crs/intel/R40901.pdf (last visited
Sept. 6, 2011).
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C. LH.R. 963 Would Expand the Reach of Existing Immunities and
Penalties.
While H.R. 963 largely restates current law, it also
expands the law in ways that are particularly troubling. In
2007, Congress passed legislation that included similar
immunity language, but confined that immunity to cases
involving a ``suspicious transaction, activity, or occurrence
that involves, or is directed against, a passenger
transportation system or vehicle or its passengers.''\16\ That
legislation also provided for payment by the plaintiff to the
defendant of attorneys fees and costs if the case is dismissed
on the basis of the immunities specified in the section.\17\
While the 2007 legislation was confined to reports of terrorist
threats against the passenger transportation system, H.R. 963
covers all reports about any suspected terrorist threat.
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\16\The ``Implementing Recommendations of the 9/11 Commission Act
of 2007,'' Pub. L. No. 110-53, Sec. 1206; 121 Stat. 388 (2007),
codified as 6 U.S.C. Sec. 1104.
\17\Id. at Sec. 1104(c).
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H.R, 963 also fails to clarify what legal standard would be
employed to determine if an individual's report was made ``in
good faith and based on objectively reasonable suspicion.''\18\
The terms ``good faith'' and ``objectively reasonable
suspicion'' are not defined in the bill. Federal statutes in
any given area of law employ different legal standards in
different contexts because there is no uniform guide to federal
legal standards.\19\ Consequently, a party would have no way of
knowing how the Court might apply the ``good faith'' and
``objectively reasonable'' standards in determining whether a
defendant was subject to immunity or qualified immunity. A
plaintiff, therefore, would not be able to adequately assess
the viability of his claim until court proceedings have begun.
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\18\If a court interprets the 6 U.S.C. Sec. 1104(a) immunity
provision with respect to individuals, then such a decision may be
useful in interpreting H.R. 963.
\19\For example, federal criminal provisions include a varying
array of mens rea standards, some of which are drawn from language in
Supreme Court opinions, others which use new terms created by Congress,
and still others which combine two or more phrases to create new
standards. Similarly, multiple standards apply to industry
requirements, agency discretion, and other issues throughout federal
environmental statutes. As exemplified in those laws, Congress can
create many standards to govern the scope of immunity for suspicious
activity reporting.
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D. LH.R. 963 Would Unnecessarily Trample on States' Rights by
Preempting State Tort Liability Laws.
While respect for states' rights has become a rallying cry
among many members of Congress, this blanket preemption of
state tort law appears to have raised no such concerns among
its proponents. As the Supreme Court has observed, ``[a]lthough
the Tenth Amendment has been characterized as a `truism,'
stating merely that `all is retained which has not been
surrendered,' it is not without significance. The Amendment
expressly declares the constitutional policy that Congress may
not exercise power in a fashion that impairs the States'
integrity or their ability to function effectively in a Federal
system.''\20\ We do not take the position that this legislation
necessarily transgresses the Tenth Amendment. Nevertheless, we
would urge our colleagues who have made a habit of trumpeting
it to consider carefully the extent to which this legislation
sweeps aside generations of state tort law in the pursuit of a
theory roundly rejected by experienced law enforcement,
including the only law enforcement officer to testify at the
Subcommittee's hearing.
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\20\Fry v. United States, 421 U.S. 542, 547 n.7 (1975) (citations
omitted).
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III. CONCLUSION
H.R. 963 is a solution in search of a problem. The
Committee has no record of a pattern of unfounded lawsuits
against individuals who make good faith reports of suspicious
activities to law enforcement. Nonetheless, H.R. 963 may end up
promoting racial profiling, thereby violating the
constitutional rights of those targeted individuals. It will
also undermine, rather than support, efforts to promote greater
cooperation between law enforcement and citizens.
For these reasons we respectfully dissent.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Henry C. ``Hank'' Johnson, Jr.
Judy Chu.