TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

DHS is responsible for Critical Infrastructure Protection (CIP), a mission thatpresents unique legal challenges. CIP involves ‘hardening’ critical infrastructureand resources—such as nuclear plants, water systems, and power grids—against terrorist attack.The CIP programs operate pursuant to three legal authorities. The HomelandSecurity Act of 2002 charges DHS with recommending measures necessaryto protect all critical infrastructure and key resources in the US. 261 HomelandSecurity Presidential Directive 7 designates the DHS Secretary as the principalfederal official to lead critical infrastructure protection efforts of federaldepartments and agencies, state and local governments and the private sector.262 The Critical Infrastructure and Information Act, noted below, providesanother set of legal tools.DHS is not always legally equipped with the means necessary to achieve its legallyauthorized goals. For example, most of the critical infrastructure and keyresources DHS is charged with protecting are owned and controlled by privateentities, many of whom are reluctant to share information about their infrastructurevulnerabilities because they do not wish to disclose trade secrets orfear that such disclosures would expose them to potential civil liability. 263 DHSlargely lacks the means to compel disclosure of such information.The Critical Infrastructure Information Act, enacted in conjunction with theHomeland Security Act, seeks to increase voluntary disclosure by protectingcertain information disclosed to DHS pertaining to critical infrastructurefrom Freedom of Information Act (FOIA) requests, state and local disclosurelaws and use in civil litigation. 264 However, the critical infrastructure exemptionfrom FOIA requests has been criticized for creating a loophole throughwhich a company can shield information on environmental or safety hazardsfrom the public view. 265DHS has also faced criticism in the past both for how it distributes counterterrorismfunding to states and localities and for how it conducts risk assessments.The 2006 National Infrastructure Protection Plan, for example, identifiednearly three times more potential terrorism targets in Indiana than inCalifornia. 266 Today, more counterterrorism funds from DHS are distributedBelfer Center for Science and International Affairs | Harvard Kennedy School103

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