Under the Banner of "Health": The Department of Defense Attacks the First Amendment's Protection Against Religious Meddling & the Fourth Amendment's Prohibition of Searches Without a Warrant

• After the 1787 Constitutional Convention, as Ben Franklin left Independence Hall, a person asked him: "What have we got? A republic or a monarchy?” Franklin answered: "A republic, if you can keep it."

• “The welfare of the people has always been the alibi of tyrants.”

  - Albert Camus

I just got another nightmare legal battle update from the Informed Consent Action Network (ICAN). Here it is:

On Jan. 11, 2022, the U.S. Department of Justice (DOJ) issued a notice proposing to track all its employees and contractors who made “requests for exceptions from public health emergency mandates.” When those exceptions (which most people call “exemptions”) are on religious grounds, the DOJ intends to catalogue each individual’s creed, practice, or observance. And it plans to collect all their medical histories, test results, identifying information, and contact information.

Then, adding injury to insult, all this data can be shared with other branches of government – including federal, state, local, or foreign – along with judicial bodies, law enforcement, and other enforcers of rule or regulation.

In one fell swoop, therefore, the DOJ has desecrated the First Amendment’s protection against religious meddling and the Fourth Amendment’s prohibition of searches without a warrant.

Here is the notice from the Justice Department:

Privacy Act of 1974; Systems of Records

A Notice by the Justice Department on 01/11/2022

Document Details;

Information about this document as published in the Federal Register.

Printed version: PDF Publication Date: 01/11/2022 Agency: Department of Justice Dates: This notice is effective upon publication, subject to a 30-day period in which to comment on the routine uses, described below. Therefore, please submit any comments by February 10, 2022. Document Type: Notice Document Citation: 87 FR 1436 Page: 1436-1437 (2 pages) Agency/Docket Number: CPCLO Order No. 01-2022 Document Number: 2022-00240

AGENCY:

Justice Management Division, United States Department of Justice.

ACTION:

Notice of a modified system of records.

SUMMARY:

Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-108, notice is hereby given that the Justice Management Division (JMD), a component within the United States Department of Justice (DOJ or Department), proposes to modify a system of records notice titled “DOJ Personnel Public Health Emergency Records System,” JUSTICE/JMD-025. The component proposes to modify the system of records notice to explicitly encompass collection of records related to requests for exceptions from public health emergency mandates, as well as clarify the definition of Department personnel to specifically include individuals on assignment to the Department from local, state, tribal or territorial agencies.

DATES:

This notice is effective upon publication, subject to a 30-day period in which to comment on the routine uses, described below. Therefore, please submit any comments by February 10, 2022.

ADDRESSES:

The public, OMB, and Congress are invited to submit any comments by mail to the United States Department of Justice, Office of Privacy and Civil Liberties, ATTN: Privacy Analyst, (2Con), 145 N Street NE, Suite 300, Washington, DC 20530; by facsimile at 202-307-0693; or by email at privacy.compliance@usdoj.gov. To ensure proper handling, please reference the above CPCLO Order No. on your correspondence.

FOR FURTHER INFORMATION CONTACT:

Arthur E. Gary, Deputy Assistant Attorney General, Policy, Management, and Procurement, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001, (202) 514-3101.

SUPPLEMENTARY INFORMATION:

This system of records covers information necessary and relevant to Department activities responding to and mitigating the COVID-19 pandemic and other high-consequence public health threats, and diseases or illnesses relating to a public health emergency. Such information may include information pertaining to Department personnel, including employees, interns, contractors, and other personnel assigned to Department components such as Task Force Officers and other details, relating to efforts to protect the Department's workforce from contracting the illness or disease that is the subject of a declared public health emergency. The information may also pertain to personnel who undergo preventative testing for, or receive a vaccination to prevent, a disease or illness that is the subject of a declared public health emergency, as well as information necessary to implement federal, state, or local mandates relating to a public health emergency, including requests for legally required exceptions such as those based on religious or medical considerations. The information collected may include identifying and contact information of individuals who have been suspected or confirmed to have contracted a disease or illness, or who have been exposed to an individual who had been suspected or confirmed to have contracted a disease or illness related to a declared public health emergency; individual circumstances and dates of suspected exposure; testing results, symptoms, and treatments; vaccination records; health status information; and other information necessary and relevant to Department activities responding to and mitigating COVID-19 and other high-consequence public health threats and diseases or illnesses relating to a public health emergency.

The Department maintains this information to understand the impact of an illness or disease on the Department workforce, and to assist in reducing the spread of the disease or illness among Department personnel. In certain instances, depending on the type of record collected and maintained, records maintained in this system of records may also be covered by Office of Personnel Management/Government-10 Employee Medical File System Records, 75 FR 35,099 (June 21, 2010). However, JUSTICE/JMD-025 covers additional records—specifically records collected in response to COVID-19, a high-consequence public health threat, as well as other declared public health emergencies.

This system of records notice is being modified to conform with the requirements of Executive Order 14,043, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees and Executive Order 14,042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. These orders mandate that categories of Department personnel be vaccinated against COVID-19, subject to such exceptions as required by law. This system of records notice is being modified to incorporate collection of records related to requests for legally required exceptions from public health emergency mandates. Additionally, this system of records modification clarifies the definition of the term “Department personnel” to specifically include individuals on assignment to the Department from local, state, tribal or territorial agencies, such as Task Force Officers or other detailees.

In accordance with 5 U.S.C. 552a(r), the Department has provided a report to OMB and Congress on this modified system of records.

Dated: January 3, 2022.

Peter A. Winn,

Acting Chief Privacy and Civil Liberties Officer, United States Department of Justice.

JUSTICE/JMD-025: SYSTEM NAME AND NUMBER:

DOJ Personnel Public Health Emergency Records System, JUSTICE/JMD-025.

SECURITY CLASSIFICATION:

Controlled Unclassified Information.

SYSTEM LOCATION:

Records may be maintained at all locations at which the Department of Justice (DOJ), or contractors on behalf of the Department, operate or at which DOJ operations are supported, including the Robert F. Kennedy Main Justice Department Building, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001.

Additionally, records may be maintained electronically at one or more of the Department's data centers, including, but not limited to, one or more of the Department's Core Enterprise Facilities (CEF), including, but not limited to, the Department's CEF East, Clarksburg, WV 26306, or CEF West, Pocatello, ID 83201. Records within this system of records may be transferred to a Department-authorized cloud service provider within the Continental United States. Access to these electronic records may occur at any location at which the DOJ operates or where DOJ Office of the Chief Information Officer (OCIO) operations are supported. Some or all of the information in the system may be duplicated at other locations where the Department has granted direct access to support DOJ operations, system backup, emergency preparedness, and/or continuity of operations. To determine the location of a particular record maintained in this system of records, contact the system manager, whose contact information is listed in the “SYSTEM MANAGER(S)” paragraph, below.

SYSTEM MANAGER(S):

Arthur E. Gary, Deputy Assistant Attorney General, Policy, Management and Procurement, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001, (202) 514-3101.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

Executive Order 14,043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees; Executive Order 14,042, Ensuring Adequate COVID Safety Protocols for Federal Contractors; federal workforce safety requirements, including the Occupational Safety and Health Act of 1970, 29 U.S.C. Ch. 15, and federal safety programs covered by 5 U.S.C. 7902, implemented by Executive Order No. 12,196, Occupational safety and health programs for Federal employees; federal laws governing reasonable accommodations, including The Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq.; and federal laws requiring the Attorney General to create and maintain federal records of agency activities, including 5 U.S.C. 301 and 44 U.S.C. 3101.

PURPOSE(S) OF THE SYSTEM:

The purpose of this system is to maintain records necessary and relevant to Department activities responding to and mitigating the COVID-19 pandemic, and other public health emergencies. Such records include those records needed to understand the impact of an illness or disease on the Department workforce, and to assist in protecting the Department's workforce from, and responding to, a declared public health emergency or other high-consequence public health threats. Among other things, DOJ may use the information collected to facilitate the provision of vaccines to DOJ personnel, including employees, interns, and contractors; to inform individuals who may have been in proximity of a person possibly infected with the disease or illness at or on buildings, grounds, and properties that are owned, leased, or used by the Department; to confirm which personnel have received vaccinations to prevent such disease or illness to spread throughout the Department's workforce; or to process requests for legally required exceptions from public health emergency mandates, including exceptions to vaccination and testing requirements based on religious or medical considerations.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

Department personnel, including employees, interns, contractors, and other personnel assigned to Department components such as Task Force Officers and other detailees.

CATEGORIES OF RECORDS IN THE SYSTEM:

G. Records regarding a request for a legally required exception to a public health emergency mandate ( e.g., written requests detailing the type of exception requested and the basis for such request; documentation accompanying the request to establish a legal basis for the exception; the Department's response to such request; documents related to the exception review process).

POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:

To the extent applicable, to ensure compliance with Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Genetic Information Nondiscrimination Act of 2008 (GINA), medical information must be “maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 42 U.S.C. 12112(d)(3)(B); 42 U.S.C. sec 2000ff-5(a); 29 CFR 1630.14(b)(1), (c)(1), (d)(4)(i); and 29 CFR 1635.9(a). This means that medical information and documents must be stored separately from other personnel records. Records compiled under this SORN will be maintained in accordance with applicable NARA General Records Schedules (GRS), including but not limited to: 2.7, Items 010, 070 or 080 (DAA-GRS2017-0010-0001, DAA-GRS2017-0010-0012, and DAA-GRS2017-0010-0013).

HISTORY:

DOJ Personnel Public Health Emergency Records System, JUSTICE/JMD-025, 86 FR 20740 (April 21, 2021).

[FR Doc. 2022-00240 Filed 1-10-22; 8:45 am]

BILLING CODE 4410-NW-P

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Here is the response from ICAN:

Through its attorneys, ICAN sent a scathing response to the DOJ on February 10, 2022. Its four-page letter denounced the government’s authoritarian measures and “contempt for religious conviction” and demanded the Department “immediately dismantle this despotic and invasive database.”

As the letter observes, individuals who submitted requests for religious exemption had no idea that “their most personal thoughts and beliefs could be shared indiscriminately with others both within and outside of their employers. We strongly urge you to not irreparably breach the trust of these individuals who have done nothing more than seek to abide by their faith.”

The letter also quotes George Washington’s statement, in his Letter to the Society of Quakers, that men “remain responsible only to their Maker for the Religion or modes of faith which they may prefer or profess.”

Yet, as ICAN’s attorneys have also documented, the DOJ’s ploy has been replicated throughout the federal government. Among them is the Department of Transportation (DOT) which, in the words of Missouri’s Attorney General, Eric Schmitt, has developed “Orwellian plans to track citizens who engage in the free exercise of their religion.”

In his own letter to DOT Secretary Pete Buttigieg, Schmitt continues, “There is no freedom under our Constitution more sacred than the freedom of religious expression and practise.” He also asks why “information on the religious beliefs or practices of American citizens should be shared with foreign governments.”

Similar denouncements were expressed in a joint letter to Joe Biden from some 40 Congressional representatives, dated January 24, 2022: “From day one,” they write, “your administration has displayed a consistent attitude of contempt towards Americans who prioritize faith in their lives.”

So, are we back to the bad old days when worship had to be conducted in secret, lest the authorities persecute the faithful? Or when priests had to hide in hidden wall cavities because a hostile monarch was on the throne? Isn’t that what the Pilgrim Fathers sought to leave behind? Of course not and we don’t intend to sit idly while our rights are being stripped.

Although the period for public comment has ceased, I’m sure the DOJ would love to hear your views on its casual slaughters of the Constitution at privacy.compliance@usdoj.gov (citing CPCLO Order No 01-2022), or by calling Deputy Assistant Attorney General, Arthur E. Gary, at (202) 514-3101.

To share this legal update, please use this link: https://www.icandecide.org/ican_press/first-the-government-played-doctor-now-it-wants-to-play-god/

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Here is the ICAN Email Sent to the U.S. Department of Justice:

VIA EMAIL February 10, 2022

United States Department of Justice Office of Privacy and Civil Liberties Attn: Privacy Analyst, (2Con) 145 N. Street NE, Suite 300 Washington, D.C. 20530 privacy.compliance@usdoj.gov

Re: Comment on Department of Justice’s Notice of Creation of the Creations of “Requests for Exceptions” Records Systems, CPCLO Order No. 01-2022

To Whom It May Concern:

We write on behalf of our client, Informed Consent Action Network (“ICAN”). In response to President Biden’s authoritarian COVID-19 vaccine mandate for all federal employees,1 many employees who cherish and prioritize their religious beliefs submitted deeply personal requests for exception and accommodation to the mandate. 2 Despite the shifting deadlines for implementation for enforcement,3 and the recent injunction on its enforcement,4 most of these employees have yet to receive a determination on their accommodation requests.5 Adding to the torment of these religious individuals, a vast number of federal agencies (including your own) have, in an outright display of suspicion and contempt for the religious, elected to create a new records system to store the names and personal religious information of any employee who has requested a religious exemption from the federally mandated vaccination requirement.

We write with ICAN’s demand that your agency immediately dismantle this despotic and invasive database. A federal government database that targets and complies information on those individuals who have deigned to exercise their constitutionally protected right to freely exercise their religion serves no legitimate purpose.

Americans and congressional representatives alike are rightfully outraged about this – and for good reason. 6 No agency has adequately explained the reason why such a database is necessary for processing accommodations, let alone why it is necessary to maintain this data beyond the decision to grant or deny the request. To the extent your agency is attempting to justify this system of records on the basis that it would simplify the processing of requests, as the Supreme Court has noted, “the prime objective of the First Amendment is not efficiency.” McCullen v. Coakley, 573 U.S. 464, 495 (2014).

It is also outrageous that many of these notices became effective the day they were published. This further reflects the contempt for religious freedom and a lack of transparency and decency. For the notices that did not become effective immediately, those federal entities chose to issue their notices such that the 30-day period for comment occurred immediately before, after, or during the holiday season, leaving affected federal employees and the public alike without any meaningful ability to be heard on policies affecting the most personal aspects of an individual’s life. 7

Perhaps worst of all is that virtually all of these notices plainly acknowledge that the deeply private information being compiled can and will be shared with other agencies and branches of government, including for example the Department of Justice, the Department of Treasury, Congressional offices, and, even more broadly, to any appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations.

This deeply private information being compiled consists of a sweeping set of data far beyond the employee’s name and contact information. It includes, for example: the nature of the sincerely held religious belief, practice, or observance and the need for accommodation, including any appropriate documentation; details of the accommodation request, such as: type of accommodation requested, how the requested accommodation would assist in job performance, any additional information provided by the requestor related to the processing of the request, notes from or summaries of the interactive process.9

Undoubtedly, the individuals who submitted requests for religious accommodation had no concept of the possibility that their descriptions and explanations of their most personal thoughts and beliefs could be shared indiscriminately with others both within and outside of their employers. We strongly urge you to not irreparably breach the trust of these individuals who have done nothing more than seek to abide by their faith.

We remind you that one of the federal government’s most fundamental obligations is to respect the right of the American People to freely exercise their religious beliefs. As George Washington eloquently stated in his Letter to the Society of Quakers, The liberty enjoyed by the People of these States, of worshipping Almighty God agreeable to their Consciences, is not only among the choicest of their Blessings, but also of their Rights – While men perform their social Duties faithfully, they do all that Society or the State can with propriety demand or expect; and remain responsible only to their Maker for the Religion or modes of faith which they may prefer or profess.10

It is difficult to conceive of a greater betrayal of this duty than the creation of a database to target, compile, track, and share information about certain Americans’ personal religious beliefs. Even prior to the founding of this country, it was agreed that “the opinions of men are not the object of civil government, nor under its jurisdiction.”11

While it is heartening that Representative Ralph Norman’s has introduced a bill seeking to ban such authoritarian databases,12 it should not be necessary for a law to prohibit the creation of what is so patently an Orwellian and un-American database. Therefore, we demand that you immediately dismantle these databases and publicly announce the steps you have taken to do so.

Very truly yours,

Aaron Siri, Esq. Elizabeth A. Brehm, Esq. Catherine Cline, Esq.ICAN

References:

1 Exec. Order No. 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, 86 Fed. Reg. 50,989 (Sept. 9, 2021).

2 Rein, Lisa, et al., Nearing Monday Coronavirus Vaccine Deadline, Thousands of Federal Workers Seek Religious Exemptions to Avoid Shots, Washington Post (Nov. 7, 2021), https://www.washingtonpost.com/politics/federalworkers-vaccines-exemptions/2021/11/07/761eb9d8-3da3-11ec-8ee9-4f14a26749d1_story.html.

3 See Feds for Med. Freedom v. Biden, ___ F. Supp. 3d ___ , 2022 U.S. Dist. LEXIS 11145, at *7 (S.D. Tex. Jan. 21, 2022) (noting the original September 9, 2021 deadline was extended until after the new year).

4 Id. at *21. 5 https://www.washingtonpost.com/politics/federal-workers-vaccines-exemptions/2021/11/07/761eb9d8-3da3-11ec8ee9-4f14a26749d1 story.html.

5 https://www.washingtonpost.com/politics/federal-workers-vaccines-exemptions/2021/11/07/761eb9d8-3da3-11ec8ee9-4f14a26749d1 story.html.

6 https://www.washingtontimes.com/news/2022/jan/25/gop-lawmakers-call-biden-end-database-religious-ex/; https://www.foxnews.com/politics/biggs-republicans-letter-hhs-religious-liberty; https://www.scribd.com/document /554794762/1-24-FDA-President-Biden-Letter#fullscreen&from embed; https://www.dailysignal.com/2022/01/11/ breaking-biden-administration-making-lists-of-religious-vaccine-objectors/; https://www regulations.gov/comment/ DOT-OST-2021-0135-0002.

7 See, e.g., https://www federalregister.gov/documents/2021/11/29/2021-25871/privacy-act-of-1974-system-ofrecords (Securities and Exchange Commission’s November 29, 2021 Notice); https://www federalregister .gov/documents/2021/12/01/2021-26090/privacy-act-of-1974-system-of-records (Department of Human Services’ December 1, 2021 Notice); https://www regulations.gov/document/EPA-HQ-OEI-2017-0536-0002 (Environmental Protection Agency’s December 8, 2021 Notice); https://www regulations.gov/document/DOD-2021-OS-0128-0001 (Department of Defense’s December 22, 2021 Notice).

8 See, e.g., https://www regulations.gov/document/USDA FRDOC 0001-2554 (Department of Agriculture’s January 7, 2022 Notice).

9 https://www.regulations.gov/document/NTSB-2021-0007-0001 (National Transportation Safety Board’s November 15, 2021 Notice)

10 “Letter from George Washington to the Society of Quakers 13 October 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-04-02-0188.

11 “82. A Bill for Establishing Religious Freedom, 18 June 1779,” Founders Online, National Archives, https://founde rs.archives.gov/documents/Jefferson/01-02-02-0132-0004-0082.