Homeland Security’s Legal Loophole

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Cross-posted from The Tortellini:

The Washington Post reported last week that the Department of Homeland Security has shown complete ineptness in contracting for a host of anti-terrorism services and devices. These include everything from airport screening machines to radiation detectors. The Post notes that DHS has wasted billions of dollars on security stuff, much of which doesn’t work.

I find these stories especially disturbing because in creating the department, Congress allowed DHS to grant legal immunity to the manufacturers of anti-terrorism products. That means victims of a terrorist attack would not be able to sue a manufacturer if, say, its gas mask failed to filter out anthrax spores as promised.

The purported logic for the immunity was that fear of liability would keep companies from bringing new technology on to the market. DHS decides which products get “certified” for the immunity, and it can certify just about anything a manufacturer claims could deter terrorism. The legal protections are broad, too, extending all the way from manufacturers to users.

Given DHS’s abysmal record in procuring security equipment that works, I’m not heartened by their ability to “certify” anti-terrorism technology for legal immunity. Security technology seems like a ripe area for fraud given how much federal money is available for it and how infrequently the stuff ever gets tested. But it’s impossible to know exactly which products are getting immunized from lawsuits because the list is classified.

One lobbyist told me the manufacturers were all the usual suspects–Lockheed Martin and big defense contractors who are hardly the upstart innovators who need to be protected from lawsuits. Unfortunately, it looks as though the only way we’ll find out what kind of job DHS is doing is to wait until there is a terrorist attack and watch which products fail.

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