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From: (b) (6)

To: (b) (6)

Cc: SELF, JEFFREY D

Subject: RE: Border Fence Mega-Waiver
Date: Friday, March 28, 2008 8:57:18 AM

Below is a previous Observer article on the issue;

we may want to have some Q&As ready on some
of the specific issues mentioned here.
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No Wall Will Stop the Wave
November 16, 2007 | Political Intelligence

FENCING OVER THE FENCE

Tucked into the 2005 federal Real ID Act is a little-noticed provision, Section 102, that gives
the Secretary of the U.S. Department of Homeland Security unprecedented power to suspend
any law that stands in the way of building a wall along the border. In late October, for the
third time, Homeland Security chief Michael Chertoff used the act to waive statutes—19 in
this case—protecting water and air, endangered species, migratory birds, and archaeological
sites, among others. He did so after the Sierra Club and Defenders of Wildlife convinced a
judge to issue a temporary restraining order halting work on a 2-mile section of fence that
cuts through Arizona’s San Pedro Riparian National Conservation Area. A district judge in
Washington, D.C., agreed with the environmental groups that the government had failed to
adequately assess the environmental impacts of the wall.

On November 1, the two groups amended their lawsuit, alleging that the Real ID Act violates
the Constitution. According to the amended complaint, Section 102 “violates the U.S.
Constitution’s fundamental Separation of Powers principles by impermissibly delegating
legislative authority to a politically appointed Executive Branch official.”

Though centered on Arizona, the legal challenge has major implications for South Texas,
where construction on the border wall has not yet started. A court victory for the
environmental groups could derail Chertoff’s plans for Texas, says Scott Nicol, from
Weslaco and a member of the No Border Wall coalition. “[Homeland Security] will have to
comply with all our nation’s laws including the Endangered Species Act and the Migratory
Birds Treaty Act,” he says.

Biologists and Texas border residents warn that the wall could deal a serious blow to the
binational ecology of the Rio Grande Valley, the most biologically diverse region in the U.S.
and an epicenter of migratory bird populations. The latest map of the wall shows 21 segments
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totaling about 70 miles between Roma and Brownsville. The wall would erase miles of
riparian habitat, splitting the 90,000-acre Lower Rio Grande Valley National Wildlife
Refuge, a decades-in-the-making wildlife corridor and home to the spotted ocelot, of which
only 100 remain in the world. The Sabal Palm Audubon Center in Brownsville would be
sealed off from the rest of the United States, leaving this rare grove of palms stranded in a
no-man’s-land. It would also damage the Texas economy. Ecotourism in the Valley brings in
an estimated $150 million annually.

The Border Patrol says the wall will enhance the environment by deterring illegal
immigration. But the fight has just begun. From Laredo to Brownsville, communities on both
sides of the border have called on the Bush administration to abandon its plans to divide the
region. Some mayors are even refusing to give the feds access to public land.

From: (b) (6)

Sent: Friday, March 28, 2008 7:17 AM
To: (b) (6)

Subject: FW: Border Fence Mega-Waiver

FYI

(b) (6)
Secure Border Initiative
U.S. Customs and Border Protection
(b) (6)
For more information about the Secure Border Initiative, visit www.cbp.gov/sbi or contact us at SBI_info@dhs.gov.

Chertoff’s Border Fence Mega-Waiver

March 27th, 2008 at 7:15 pm
The Texas Observer
We don’t usually write about rumors but this one has too many implications for what
remains of our civil liberties to ignore. We have received a few emails and calls today about
the possibility that Homeland Security Secretary Michael Chertoff may post notice in the
Federal Register Friday that he is going to waive all environmental rules to build the border
wall in South Texas. The waiver may blanket Texas or the entire Southern border from
California to Texas in a giant mega-waiver.

Chertoff has that ability thanks to Congress and the Real ID Act of 2005. He has already
waived environmental rules in California and Arizona to put the border wall on the fast track.
His goal is to have 670 miles of fence built along the Southern border by December 31, 2008.
In an Observer blog last week, we wrote about lawsuits filed by Sierra Club and Defenders
of Wildlife challenging Chertoff’s imperial powers.

We called Homeland Security in Washington D.C. in an attempt to get confirmation on the

waiver. A spokesperson for the agency Amy Kudwa would not confirm a waiver in the
pipeline, and said Homeland Security had no announcements today about a waiver.

Next we called Noah Kahn, a refuge program manager for Defenders of Wildlife, in
Washington D.C.. Kahn said he had heard several credible rumors swirling around D.C. in
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the last few days about a waiver in the pipeline.

“It would not surprise me if there is a Real ID waiver coming soon because Chertoff has a
history of waiving laws and it’s no secret that the border wall is not appropriate for a wildlife
refuge,” Kahn says. “We have heard the waiver could be coming Friday which is a day
typical for these kinds of press announcements since it is the end of the week and the press
won’t be paying as much attention.”

Kahn says he thinks a waiver in Texas is more likely than a sea-to-shining-sea waiver from
California to Texas. “That would be an even more unnecessary abuse of power,” he said.

The current mood in Congress is lukewarm when it comes to stopping the construction of the
border wall. “It’s not politically palatable to oppose the border wall in an election year,” he
says. “Those in Congress who are against the wall are remaining silent about it, because as
long as it is linked with illegal immigration they don’t want to touch it.”

While the Real ID act allows Chertoff to waive federal laws, it will be interesting to see how
the waiver impacts constitutional law. Dr. Eloisa Tamez and several other Texas landowners
are currently fighting to keep their land from being condemned by Homeland Security. They
assert that Chertoff is violating their right to due process under the fifth amendment of the
Constitution.