CQ HOMELAND SECURITY, Courts & Justice, “Players: Daniel Sutherland Rises for the Defense of Civil Liberties at DHS,” By Caitlin Harrington, April 1, 2004
Daniel Sutherland concedes he’s something of a rare bird in a bureaucracy charged with preventing or coping with a terrorist attack in the United States.
His job is to ensure that the sprawling Homeland Security Department and its tens of thousands of agents don’t trample on the rights of American citizens or, for that matter, legal visitors.
“There’s not too many conservatives who specialize in that,” he volunteers with a smile.
Civil rights advocates say Sutherland has done a pretty good job in the year since he took office, but they question whether he has enough authority – and leverage – to make a real difference.
“His structure within the department is very weak,” said Tim Edgar, legal counsel for the American Civil Liberties Union. “That’s been a real problem in terms of making that position an effective one that really does what the Congress wants it to do.”
Congress spelled out exactly what it had in mind for the civil rights shop in the law creating DHS (PL 107-296). The statute says the office should “review and assess information alleging abuses of civil rights, civil liberties, and racial and ethnic profiling by employees and officials of the Department.”
But in an interview in a spare, cramped conference room at DHS headquarters last week, Sutherland says he doesn’t see his role as an investigator. Rather, he said, his job is to press for civil rights protections in new programs at the start of the policy-making process.
“My advice [to Homeland Security Secretary Tom Ridge] was to have a group that would provide policy-making advice so that you get on the front end, trying to shape policy – before you have trouble – rather than investigating trouble that’s already happened,” Sutherland recalled.
His staff of about 20 employees spends about “95 percent” of its time shaping policy, he said.
Sutherland said he meets frequently with civil rights groups so he can introduce their views into policy discussions.
Last December, he said, he visited Dearborn, Mich. – home to the nation’s largest concentration of Arab Americans – and he plans to return this month.
The outreach campaign seems to be paying off – at least in some quarters.
A Major Role
Kareem Shora, a legal adviser for the American-Arab Anti-Discrimination Committee, said Sutherland has had at least some impact on DHS policy making.
For example, he said, Sutherland played “a major role” in the department’s decision to scale back registration and interview requirements for Middle Eastern visa holders under the controversial National Security Entry-Exit Registration System program, launched in 2002 to track visitors from 25 countries believed to have links to terrorists.
Others, however, question whether Sutherland’s outreach efforts aren’t just part of an administration public relations campaign.
“There are those who believe that his commitment to civil liberties is more public relations than a genuine commitment,” said one civil rights lawyer who asked not to be identified because he often works with DHS.
Supporters say such suspicions are completely unfounded.
“It’s always the case that in a position like this, Republicans have an issue of having to demonstrate their bona fides – their fidelity to the laws,” said Paul Rosenzweig, a legal expert at the conservative Heritage Foundation. “Everybody always has the unjustified suspicion that they’re really just there to gut the program and eliminate it. But that’s not the case with Dan.”
To show the department’s commitment, Sutherland said he followed the recommendation of advocacy groups who told him to get “one or two quotes” from DHS brass to show their support for civil rights.
In July 2003, Ridge said, “To suggest that there is a trade-off between security and individual freedoms – that we must discard one protection for the other – is a false choice. We will not, as Ben Franklin once warned, trade our essential liberties to purchase temporary safety.”
There have been “dozens” of quotes endorsing a commitment to civil rights, he said. And for his office, that’s “the one most significant thing that has happened in this year.”
More Than Meetings
But Shora and others say Sutherland should be doing more than meeting with advocates and making policy recommendations. They say he should investigate specific allegations of abuse.
“That would simply assure that civil rights violations are in fact investigated in the full definition of the word and not just looked into and then a recommendation is sent out to an agency or bureau,” Shora said.
Sutherland says his office does look into a selected number of complaints about abuses and racial profiling, and Shora concedes the office has been responsive in the few cases it has handled.
“They always get back to us on what they’ve decided to do – either open an investigation or refer it to the right office,” Shora said.
But Edgar, the ACLU lawyer, says Sutherland has no real authority in DHS.
“His office really has no power under the statute,” he said. “It doesn’t have the power to prosecute or punish violators, and it doesn’t have any assigned role in implementing or making policy.”
Sutherland begs to differ.
He says he could have interpreted his mandate to hew more closely to the vision of civil rights advocates, but says he saw no need to create another investigative unit when the Justice Department already investigates alleged civil rights abuses.
“The statute creating this office . . . is broad and you can read this section of this statute as creating an office that would investigate allegations of abuse and file reports about allegations of abuse. My advice was there are many people who do that, including the [Homeland Security inspector general],” he said.
In fact, he said, when he interviewed for the position with Ridge last year, he specifically recommended against giving the civil rights office broad investigative powers.
“If you do want to have another one of those [investigative divisions] you’re going to have to have a staff of a few hundred people,” Sutherland remembers telling Ridge at the time.
The Back Story
Sutherland grew up near ports and borders. His father was a U.S. customs agent stationed on Maine’s border with Canada and at the Port of Baltimore.
He graduated in 1982 from the University of Louisville in Kentucky with a bachelor’s degree in political science. After earning a law degree from the University of Virginia, he went to work for Brown, Todd & Heyburn, a large civil litigation firm in Louisville.
In 1987, Sutherland took a job in the civil rights division of the Justice Department, where he argued cases on behalf of legal immigrants facing discrimination in the workplace and handled Americans With Disabilities Act litigation.
In 2000, Sutherland went to work for the Bush-Cheney transition team. He worked for the Education Department for two years before joining DHS last April.
Caitlin Harrington can be reached via [email protected]