TAPS Act: The Facade of Constitutionality Abandoned (Part 1 of 2)


Part One: The TAPS Act

This is Part One of a two-part article – an article that was only intended to be one part until current events caused the façade of Constitutionality to fall.

Part One will explain what the TAPS Act, as currently introduced to Congress, is. Part Two will show what US Attorney General Barr revealed about the TAPS Act, and the Federal government in general, in a recent unpublicized memorandum.

The purpose of the TAPS Act (Threat Assessment, Prevention, and Safety Act of 2019) is to implement a national strategy of behavioral threat assessment and management. Behavioral threat assessment and management is an entirely anticipatory approach to violent crime that is formally defined in the Act as:

Behavioral Threat Assessment and Management:

The term “behavioral threat assessment and management” means the systematic and evidence-based process of—

(A) identifying individuals who are exhibiting patterns of concerning behavior that indicate an interest, motive, intention, or capability of carrying out an act of violence;

(B) investigating and gathering information from multiple sources to assess whether an individual described in subparagraph (A) poses a threat, based on articulable facts; and

(C) the subsequent management of such a threat, if necessary.

Behavioral threat assessment identifies behavior indicating an “interest, motive, intention, or capability of carrying out an act of violence.” It is important to note that the individual has not taken any action or steps toward being violent – if this were the case, they would have committed a crime and would be arrested. Behavioral threat assessment identifies individuals as threats that have committed no crime.

On the management side of behavioral threat assessment and management, once an individual is believed to pose a threat they will be “managed” – something that is not defined, but would likely include things like surveillance, suspension of certain rights, travel restrictions, forced therapy, etc. The national strategy will define both what management means, and who would do the managing. Since the TAPS Act only identifies “Federal, State, local, and Tribal government agencies and private entities with protective or public safety responsibilities” it would appear that law enforcement personnel, government agents, and private entities will have the authority to “manage” the lives of these individuals.

Some of these individuals will be school children. The TAPS Act requires that the national strategy include:

Recommendations relating to a Behavioral Threat Assessment and Management School Violence Prevention Program for educational entities, which shall—

(A) train and support a multi-disciplinary and multi-jurisdictional behavioral threat assessment and management process, including the coordination of information sharing;

(B) consult on real-world complex behavioral threat assessment and management cases or programs;

(C) support collaboration between educational entity behavioral threat assessment and management units; and

(D) disseminate to educational entities published research materials on behavioral threat assessment and management and the prevention of targeted violence within educational entities.

In the opinion of “educational entity behavioral threat assessment and management units,” (whatever these units are – they are not defined) children that meet certain behavioral requirements will have information about them shared with fusion centers and other agencies and entities for analysis and determination if management actions are required. Keep in mind that in order to know which children meet certain behavioral requirements, all children will need to be evaluated.

Given the impossibility of knowing the future with any semblance of certainty, it is inevitable that innocent people will be misidentified as a threat. It is hard to imagine the nightmare these people will need to go through to clear themselves of the judgements made against them without due process. It is highly unlikely they could ever completely get themselves removed from every database and every record tainting their name. But worse than that, there is no limit on how long they will be ‘managed’, nor any mechanism provided for them to determine what management activities are occurring, how long they will continue, or how to stop it. They do not even need to be told they are being managed and so might not know why certain events are taking place in their lives, let alone know which agency(s) to approach for redress.

Overview of the Features of the TAPS Act

Upon its passage, the TAPS Act first creates a Task Force that will provide recommendations for a national strategy relating to behavioral threat assessment and management within 120 days after the Act is passed. The Task Force is limited only to operating under rules it sees fit to implement and use methods of collecting pertinent information it alone deems appropriate. The Task Force is then dissolved just 180 days after it is formed.

Also on the 180th day after ratification of the Act, the Secretary of Homeland Security, having had only 60 days to look at the Task Force’s recommendations and formulate a national strategy, is required to implement the national strategy, providing information, training, and up to $25,000,000 each year for the next five years at the request of agencies and entities with protective or public safety responsibilities.

Additionally, on this same day, the Secretary “shall designate a senior official within the Department of Homeland Security to be responsible for coordinating the implementation of the national strategy”. This official will then, at their sole discretion, create contracts with public agencies or private entities to generate the information and the training services called for in the national strategy. The senior official designated by the Secretary of Homeland Security is acting alone, reporting only to the Secretary. The senior official is the only position and is the only structure dictated by the Act to implement the national strategy with no external checks and balances.

Further, while the limitations that are placed on the short-lived Task Force are concerningly vague, there are no limitations whatsoever placed on the senior official or the agencies and entities he contracts and consults with or on the behavioral threat assessment and management activities of the Federal, State, local, or Tribal government agencies or private entities funded by the Act. The Act requires no strings be attached to the funding. Various Congressional committees will get annual reports on “information relating to the number of, and use of, contracts entered into with public agencies or private entities,” but nowhere does this Act require the explicit and detailed reporting of violations of individual Constitutional rights or other lawful protections of individual privacy, rights, or liberty, or of situations where such violations may have been committed.

There is, however, an indirect oversight mechanism that will come into play: Homeland Security Fusion Centers. This Act does require the national strategy for behavioral threat assessment and management to make effective “use of existing personnel, communication channels, and information sharing capabilities of fusion centers.” Fusion centers are State, local, and regional centers that receive, analyze, disseminate, and gather threat-related information for use in the Information Sharing Environment. (According to the Office of the Director of National Intelligence, “the Information Sharing Environment (ISE) consists of the people, projects, systems, and agencies that enable responsible information sharing across the national security enterprise.”) The fusion centers are required to:

… (5) develop, publish, and adhere to a privacy and civil liberties policy consistent with Federal, State, and local law;

(6) provide, in coordination with the Privacy Officer of the Department and the Officer for Civil Rights and Civil Liberties of the Department, appropriate privacy and civil liberties training for all State, local, tribal, and private sector representatives at the fusion center…

The fact that the TAPS Act requires the national strategy to use fusion centers will lead some to believe that this will provide privacy and civil liberties protections for operations conducted under the TAPS Act. But such a belief would ignore the fact that the TAPS Act includes no requirement that contracted agencies or entities must have a privacy policy in place that is consistent with Federal, State, and local law, that their personnel receive privacy and civil liberties training, and that those personnel must follow those policies at all times. So, while some agencies and entities may have privacy policies in place, as do fusion centers, others may not – and the national strategy can be implemented through these outlier entities and they can be funded without restriction.

This was not an oversight. It was necessary because the government agencies and private entities will be acting against people based on actions that they are effectively being accused of committing in the future – something that inherently violates an individual’s right to due process at the very least. After all, how can you be granted due process protections for an event that has not occurred (and may not occur)? The true use of the TAPS Act and the national strategy could well be to provide those agencies and entities that are constrained by privacy policies a mechanism to bypass those constraints. There is nothing in the TAPS Act to prevent it.

We already have the means, tools, and agencies to investigate conspiracies and other situations prior to the actual commission of the crime. The difference between them and this Act is that this Act eliminates the requirement for search warrants, due process, and any consideration whatsoever of individual privacy, rights, freedoms, or liberty. This bypassing of all Constitutional protections and of any explicit oversight of these protections would appear to be the whole point of this Act. The Federal government will be cut loose with no Constitutional or other lawful limitations, to implement a national strategy relating to behavioral threat assessment and management.

It is not at all clear how it would be possible to formulate a workable national strategy in only 60 days based on recommendations put together in only 120 days. For this reason it is reasonable to suspect that the strategy already exists, that the government agencies and private entities to be contracted have already been identified and vetted, and that this Act is simply the guise by which it will be publicly implemented, exploiting the two recent mass shootings as the long-awaited opportunity to launch it.

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