Homeland Security's legal loophole

The Washington Post reports today that the Department of Homeland Security has once again shown complete ineptness in contracting for a host of security services and devices that are supposed to be protecting the country from terrorist attacks. These include everything from airport screening devices to radiation detectors. This is the latest in a string of reports by the Post showing that DHS has wasted billions of dollars on security stuff, much of which doesn't work.

I find these stories especially disturbing because in the 2002 legislation that created the department, Congress in all its wisdom inserted a provision that allowed DHS to grant legal immunity to the manufacturers of anti-terrorist products if they fail during an attack. The purported logic 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 (cell phones? laptops? bomb-sniffing dogs?). 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. Anti-terrorism technology seems like a ripe area for fraud given how much money is available for it and how infrequently the stuff ever gets really 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, watch which products fail, and then cry for the victims, who won't have much legal recourse to hold the manufacturers responsible.