Ed Hasbrouck has all the goods on the leak of the GAO's CAPPS II report. It's so negative about the program that the head of the agency implementing CAPPS II, the plan to systematically violate the Constitutional rights of every American who flies on a commercial aircraft in the name of security, resigned in advance of its publication.
Publication of the report creates an interesting political dilemma for the administration due to a legal quirk. When Congress appropriated money for CAPPS II in the Department of Homeland Security Appropriations Act of 2004, it stipulated that the money could only be spent if the GAO report found that CAPPS II met eight tests. According to the leak, the GAO says CAPPS II flunked seven out of eight.
The Supreme Court decided in Bowsher v. Synar that the GAO is part of the legislative branch, not the executive,1 and therefore Presidents and their legal advisors consistently maintain that the GAO can have no role in executing the laws. That conclusion follows naturally from the earlier Chadha decision, which held that the only way in which the legislative branch may affect the legal rights duties or responsibilities of persons outside the legislative branch is by legislation—passage in both houses (bicameralism) followed by presentment of the act to the President (presentment) for signature or veto (which can then be overridden).2
In light of these very clear precedents, the White House announced at the time GW Bush signed the Department of Homeland Security Appropriations Act of 2004 that it would treat the report as advisory only. This is a reasonable legal position, and probably the one a court would adopt, although one could also argue that the favorable report requirement can't be severed from the appropriation and that therefore the unconstitutionality of the one implies the invalidity of the other.
Given the White House's view, backed by precedent, that it need not be bound by the GAO's report, will it press ahead with CAPPS II? And if it does, will Congress intervene?
1 The Bowsher decision reflected the political reality that the Comptroller General, the GAO's chief, was 'Congress's man,' but the decision has never made any sense to the formalist half of me. The major grounds for the decision was that the statute said Congress could remove the head of the agency by joint resolution, which although sounds like something that cuts out the President is actually just a fancy name for a special kind of statute. Since Congress could by statute abolish the office, then re-establish it at which point it would be vacant, it didn't seem any worse to me for Congress to simply reserve the right to remove the occupant. Note that the votes needed for removal were majorities plus Presidential approval, or else the same number of votes needed to impeach the Comptroller General. So in raw political terms, the removal clause changed nothing.
2 In fact of course that's not absolutely true. There are a number of ways Congress can constitutionally affect the rights duties or responsibilities of people without legislation, including releasing information and issuing subpoenas.
(1) a system of due process exists whereby aviation
passengers determined to pose a threat and either delayed or
prohibited from boarding their scheduled flights by the TSA may
appeal such decision and correct erroneous information contained
in CAPPS II;
(2) the underlying error rate of the government and private
data bases that will be used both to establish identity and
assign a risk level to a passenger will not produce a large
number of false positives that will result in a significant
number of passengers being treated mistakenly or security
resources being diverted;
(3) the TSA has stress-tested and demonstrated the efficacy
and accuracy of all search tools in CAPPS II and has
demonstrated that CAPPS II can make an accurate predictive
assessment of those passengers who may constitute a threat to
(4) the Secretary of Homeland Security has established an
internal oversight board to monitor the manner in which CAPPS II
is being developed and prepared;
(5) the TSA has built in sufficient operational safeguards
to reduce the opportunities for abuse;
(6) substantial security measures are in place to protect
CAPPS II from unauthorized access by hackers or other intruders;
(7) the TSA has adopted policies establishing effective
oversight of the use and operation of the system; and
(8) there are no specific privacy concerns with the
technological architecture of the system.
thanks for the references. I’d like to see CAPPS fail on its own merit, but with the admin pushing it so hard that just won’t happen. Maybe there is money to be saved after all …
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