Defending Liberties

When Daniel Sutherland offered his advice to officials working to put together the Homeland Security Department in 2002, he was only trying to be helpful. The legislation creating the department set up an Office for Civil Rights and Civil Liberties, and Sutherland had spent his career as a civil rights lawyer, doing stints at the Justice and Education departments, then at the White House.

To his surprise, Sutherland was offered the job as director of the new office. In the 18 months since he accepted the post, he has advised Homeland Security Secretary Tom Ridge on racial profiling, set up civil liberties training programs for DHS agents and worked to increase the hiring of people with disabilities at the department. Sutherland has toiled in conservative circles, working with former Reagan administration official Linda Chavez at her Center for Equal Opportunity, which opposes affirmative action. But in an administration that has won few friends among civil liberties groups, Sutherland is a notable exception.

"We have to be collaborative," says Sutherland, noting that he has worked with vocal Bush administration critics, such as the American Civil Liberties Union and the National Immigration Forum, which supports more lenient treatment of illegal immigrants. "The whole DHS effort depends on us doing it right. If we focus only on protecting America without preserving our way of life, it won't be sustainable in the long run."

Sutherland notes that much of his time during his first few months on the job was spent putting together a budget, letting contracts, hiring staff and developing software to track complaints filed with the office.

But one reason Ridge decided to hire him, Sutherland says, is that they shared a vision. What's evolved is like no other civil rights office in government. His first responsibility is to provide advice to department decision-makers on civil rights and civil liberties. The goal, he says, is to "shape policy on the front end so you won't have problems to investigate." The office looks into complaints, but in general, he and his eight-person staff defer to the DHS inspector general.

Civil rights advocates wish Sutherland had more staff and more authority both to investigate and to make policy changes. They are working with Sens. Susan Collins, R-Maine, and Ron Wyden, D-Ore., on legislation that would clarify the office's authority.

Still, Sutherland and his team have been "a wonderful breath of fresh air from Homeland Security," says Kareem Shora, legal policy director of the American-Arab Anti-Discrimination Committee. Sutherland recruited the committee to help teach DHS law enforcement agents about Muslim and Arab cultures. Shora credits Sutherland with convincing DHS and the Justice Department to roll back requirements that Arab-American immigrant men register with the government through the National Security Entry-Exit Registration System. Now Shora is working with Sutherland on a way citizens can protest when they're wrongly placed on the no-fly list.

Sutherland cites two major achievements. He advised Ridge on the DHS rule prohibiting racial profiling. And after last year's report by the Justice Department's inspector general decrying mistreatment of post-Sept. 11 detainees, Sutherland worked with Undersecretary for Border and Transportation Security Asa Hutchinson to set standards for the treatment of detainees. They decided that detainees would be told why they were being held, be given an independent review of the charges against them and be considered for release on bond.

Cory Smith, legislative counsel at Human Rights First, an advocacy group based in New York, says Sutherland has worked with his group to ensure that DHS immigration inspectors-who review immigrants' asylum claims-receive rigorous training in asylum law. Immigrants can apply for asylum in the United States if they fear persecution in their home country based on their religion, social group or political affiliation. In the past, they were guaranteed a hearing before an asylum expert, but a 1996 law gave inspectors an earlier review in some instances.

In addition, Human Rights First is working with Sutherland to clarify DHS policies on the parole of detained immigrants awaiting a hearing. They've also lobbied him to press DHS to house asylum-seekers in separate facilities. "They have been very responsive and very interested in our input," Smith said, noting that he talks to Sutherland at least once a week.

Sutherland has made training DHS agents a priority. His office created a "Civil Liberties University" consisting of Web training courses, CDs and classroom sessions. The coursework includes an introduction to the policy prohibiting racial profiling, training on the Fourth Amendment requirements governing searches and seizures, and instruction on Arab and Muslim cultures.

"We are not interested in making our agents and officers more touchy-feely," Sutherland said in a lecture at the conservative Heritage Foundation in July. "We are not interested in what some call sensitivity training. Rather, the goal is to teach [DHS agents] new skill sets that will help them better navigate unfamiliar cultural landscapes."

And as a former disability rights litigator, Sutherland focuses on getting DHS to hire people with disabilities and consider their needs in its emergency planning. More than 250 department managers have taken a course on how to hire and work with the disabled; a selective placement coordinator has been appointed to identify well-qualified job applicants with disabilities. Sutherland's office also has opened discussions with the Defense and Veterans Affairs departments about tapping into their vocational rehabilitation and placement programs for disabled veterans. Meanwhile, Ridge set up a cross-agency council to ensure that people with disabilities are considered in emergency planning.

To this point, Sutherland's enforcement-minded colleagues have responded well to his advice. "The fact that this is an enforcement, almost military, environment makes the senior leaders know that they need constructive legal and policy advice about civil liberties issues," he says.