What the FACA?
A federal judge in Washington, D.C. on Thursday ruled that a law enforcement commission established earlier this year by Attorney General William Barr at the direction of President Donald Trump was in violation of a several facets of federal statutory law. The court directed the “Presidential Commission on Law Enforcement and the Administration of Justice” (“the Commission”) to cease operations immediately—prohibiting even the release of reports and other work product until the myriad violations were remedied.
In a 45-page opinion, George W. Bush-appointed Senior U.S. District Judge John Bates reasoned that the panel’s composition—consisting exclusively of current and former law enforcement officials—and a lack of transparency violated multiple provisions of the Federal Advisory Committee Act (FACA). Under FACA, federal advisory committees are legally required to be “fairly balanced” in the viewpoints represented and their meetings must be open to the public.
The Commission was created to study law enforcement and criminal justice issues, then make recommendations to the attorney general and president on how to better address crime, assist victims, and increase “respect for the law.” The NAACP Legal Defense Fund (LDF) in April sued the administration after Barr ignored its request to appoint additional commissioners that would help balance the law enforcement-only viewpoints of the commission’s make-up. LDF suggested including civil rights leaders, public health experts, and academics.
“The Commission’s function is to improve policing, including relations between law enforcement and the communities they protect. Yet the Commission does not include a single member who represents elements of those communities, rather than law enforcement,” Bates wrote. “Thus, even employing a deferential review, the Court concludes that the Commission’s membership is not “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.”
According to Bates, this viewpoint imbalance on a commission that makes recommendations directly to the attorney general and president on issues of critical importance is why Congress enacted FACA in the first place.
“The Commission includes no members from civil rights groups like LDF. Nor does it include any criminal defense attorney, academic, civic leader, or representative of a community organization or social service organization. Instead, all eighteen Commissioners are current or former law enforcement,” Bates wrote. “This is precisely the type of imbalance that FACA sought to prevent.”
Bates ordered that, along with addressing the imbalance among commissioners, the Commission must also make its meetings open to the public and announce those meetings in advance in the Federal Register.
Read the full decision below.
[Image via Drew Angerer/Getty Images]
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