Executive Summary
This week the Senate is scheduled to take up the National Homeland
Security and Combating Terrorism Act of 2002 (S. 2452.) The bill
establishes a new Department of Homeland Security (DHS).
S.2452 differs from President's proposal and the House's Homeland
Security Act of 2002 (H.R. 5005), which passed on July 26th.
Reject in S.2452:
-
Retaining some agencies and programs as distinct entities with in
DHS and preventing the necessary consolidation of programs.
-
Prohibiting a rapid reallocation of personnel and budget resources
by the President or the Secretary.
-
Dividing responsibility for border and transportation security
between 3 DHS entities.
-
Micromanaging the operations of the United States Coast Guard
-
Creating a National Office for Combating Terrorism in the
EOP.
-
Preventing the President from exercising existing powers related to
collective bargaining and national security.
Amend in S.2452:
-
Transfer the Visa Office from the State Department to the DHS but
retain Consular
Affairs in State.
-
Integrate National Guard into homeland security planning, but not
day to day operations
-
Provide the DHS with Unfettered Access to Intelligence and Law
Enforcement Information.
Instead S.2452 MUST:
-
Consolidate redundant and overlapping functions for greater
effectiveness and efficiency
-
Reduce bureaucracy and promote good governance.
-
Provide the Flexibility to meet the ever changing threat of
terrorism.
-
Protect Civil Liberties
Introduction
On July 26th, the Senate Government Affairs Committee passed the
National Homeland Security and Combating Terrorism Act of 2002 (S.
2452), which among other things establishes a Department of
Homeland Security (DHS). Under this bill, the DHS
would be comprised of basically the same federal programs as the
President requested on June 18, 2002 and the House
of Representatives included in Homeland Security Act of 2002 (H.R.
5005), which passed the House on July 26.
However, with the
exception of its core components, the department and policy making
process established by the Senate bill is drastically different
from that which the President requested and the House passed. The fundamental purpose for
establishing a Department of Homeland Security must be a
consolidation of federal programs in a manner that will promote
increased efficiency and effectiveness by reducing the redundancy
and overlap that presently characterize all homeland security
mission areas. The new
Department must also be designed around models of good governance
(keeping bureaucracy and budgets in check), flexible to meet the
ever-changing threat of terrorism, and ensure that fundamental
American civil liberties are protected.
The proposed
department outlined in the bill reported by the Senate Government
Affairs Committee does not pass muster in three out of these four
areas. The bill
includes numerous measures to protect existing bureaucratic
arrangements and stifling institutional policies. This focus on protecting
bureaucracy over protecting Americans would likely drive up costs
and personnel requirements. The bill also micromanages
the federal government in an unprecedented fashion, a feature that
is likely to reduce rather than increase its adaptability.
The Senate bill,
like its House counterpart, does do a good job of establishing a
procedure for ensuring that civil liberties are protected. The bill
also included additional provisions that improve on the President's
initial proposal and others that would offer significant gains if
amended slightly.
Unfortunately, the gains offered by these provisions are minuscule
compared to the costs of the more unacceptable provisions.
What follows is an
analysis of the specific provisions of S. 2452 that are
unacceptable based on the four goals mentioned above, acceptable
with revision and acceptable:
Unacceptable
Provisions
TITLE I:
Section 131 (c ):
Places the United States Border Patrol and the immigration
enforcement responsibilities of the Immigration and Naturalization
Service in the Directorate for Border and Transportation
Security.
-
Border patrol
and immigration enforcement are core components of securing
America's borders. By
assigning separate divisions of the DHS responsibility for border
security functions, the Senate bill will merely transform existing
divisions at points of entry from an interagency problem to
intra-agency ones.
-
Further, this
divide reduces the Secretary of the DHS's ability to consolidate
federal programs into a more efficient operation, which is the
primary reason for establishing the DHS in the first place.
-
Section 131
(c)(1): Retains the Customs Service as a distinct entity in the
DHS.
-
Retaining
entities as "distinct entities" in the DHS, free from bureaucratic
reorganization defeats the purpose of establishing the department
in the first place.
The primary objective in establishing the DHS is improving security
through a more efficient policy implementation. Overlapping authorities,
blurred chains of command, and varied standards must give way to a
clear policy implemented through one lead agency. Retaining bureaucratic
bodies as "distinct entities," out of petty turf concerns or more
substantive operational concerns (such as the Custom Services
revenue collection responsibilities) does not promote such a
development. Further,
by protecting redundant structures, the Senate bill will increase
the operational cost of the Department.
-
Section 131 (e):
Defines homeland
security and non-homeland security missions as they apply to Coast
Guard operations.
Prohibits a reduction in non-homeland security functions. Requires an act of Congress
for the Secretary to make any changes to Coast Guard missions or
capabilities. Provides
the President a 90 day waiver if he declares that a national
emergency exists.
Requires that the Coast Guard report directly to the Secretary of
the DHS instead of the head of the Border and Transportation
Security Directorate.
-
Not only does
this provision micromanage the operation of the Coast Guard in an
unprecedented fashion, it also fails to recognize the basic nature
of the service. Very
few Coast Guard assets are mission specific, nor do many units
perform only one mission on an average day or divide their time in
a distinguishable fashion. The Coast Guard operations
are designed to respond quickly to any challenge on America's
waterways as they occur. This attempt to distinguish
homeland security from non-homeland security missions is an
artificial one.
Further, this excessive degree of interference in Coast Guard
operations by the Senate would inhibit the Coast Guard's ability to
succeed in all of its roles. Nobody would consider
managing the military services in this manner (i.e. requiring an
act of Congress before an Army commander changed one of his
sergeants daily functions) and, nor should they for homeland
security.
-
In addition,
placing the Coast Guard outside of the Directorate for Border and
Transportation Security is likely to lead to operational
difficulties. While
the head of this section is responsible for securing the nations
border and transportation infrastructure, the primary tool for
protecting the nations maritime approaches and transportation
resources would be outside of his or her authority. This is likely to lead to
disjointed procedures and policies while decreasing the degree of
consolidation possible in the Directorate.
-
Section 134
(c)(1): Transfers the Federal Emergency Management Agency (FEMA) to
the Directorate of Emergency Preparedness and Response of the DHS,
but retains it as a distinct entity within the Directorate.
-
Retaining
entities as "distinct entities" in the DHS, free from bureaucratic
reorganization defeats the purpose of establishing the department
in the first place.
The primary objective in establishing the DHS is improving security
through a more efficient policy implementation. Overlapping authorities,
blurred chains of command, and varied standards must give way to a
clear policy implemented through one lead agency. Retaining bureaucratic
bodies as "distinct entities," out of petty turf concerns or more
substantive operational concerns (such as FEMA's non-homeland
security role) does not promote such a development. Further, by protecting
redundant structures, the Senate bill will increase the operational
cost of the Department. This is particularly true
in the area of emergency response where the federal government's
greatest failing has been in the lack of coordination in support
programs spread through over half a dozen federal agencies.
-
And Michael
Scardaville, "
Why a Multi-use Approach Is Essential to the Success of the
DHS." Heritage Backgrounder #1571, July 18, 2002.
Section 187 (f):
Establishes a labor-management relations system for the DHS that
places a premium on institutionalizing current arrangements.
-
While
legislation to establish the DHS should not be intended as a
vehicle for reforming civil service rules, the rules as they effect
the DHS's component agencies must be made compatible with their new
national security orientation. A system needs to be
established that will not allow collective bargaining agreements
from infringing on national security. Such a system will require
a high degree of flexibility that this section does not
provide.
-
Section 189: Requires that funds
appropriated to the DHS or to components comprising the DHS be used
only for the purposes they were originally appropriated for. Funds can only be
transferred if Congress passes, in advance, a new appropriations
act and then only subject to the terms of that act.
-
The DHS needs to
be flexible to adapt to a rapidly changing terrorist threat and to
hasten the transition period. The Secretary will likely
need to transfer resources across programmatic lines to meet
suspected threats.
What was deemed a priority when the Congress appropriates funds may
not be a few months later. When priorities change
quickly, the Secretary must be able to shift funds to operations
geared towards the new priority and the lethargic Congressional
appropriations process is ill equipped to provide the Secretary the
needed speed.
-
Section 191
(a)(2): Excludes any
function or entity (1) created by law and transferred to DHS, (2)
vested in an entity or officer of the DHS, (3) assigned or
delegated to an officer or division of the OHS by the bill, from
being consolidated, altered, reallocated or discontinued by the
Secretary of the DHS.
Section 191
(b)(3): Prevents the delegation of any function assigned to a unit
of the DHS to another entity in the Department.
Section 194:
Applies Davis-Bacon provisions to the DHS. The Davis Bacon Act of 1931
forces contractors on all federally-funded contraction projects to
pay the "local prevailing wage," defined as "the wage paid to the
majority of the laborers or mechanics in the classification on
similar projects in the area."
-
Davis-Bacon
provisions increase costs and waste taxpayer dollars while
discriminating against efficient, entrepreneurial companies who can
provide the same services at a lower cost. By inflating required
pay scales for labors, smaller companies are driven out of the
competition for contracts. Further, these provisions
increase the drive up the price of federal construction projects by
approximately 50% for a cost of nearly $1B per year. Provisions that promote
inefficient government hardly have a place in a Department designed
to promote greater efficiency.
TITLE II:
Sections 201 &
202 (and all related provisions in Titles I & III): Establishes
a National Office for Combating Terrorism in the Executive Office
of the President.
-
The National
Office that would be established by this bill would greatly reduce
the effectiveness of homeland security policy by making decision
making and planning too bureaucratic while making coordination
between federal agencies more difficult. The bill divides
responsibility for developing a homeland security and budget
between the Secretary of the DHS and the Director of the National
Office. The result is
likely to be a bureaucratic morass that resulting in institutional
infighting or least common denominator policy. Further, by making the
Director of the National Office accountable to Congress and subject
to Senate confirmation, the bill prevents weakens the interagency
process by effectively removing Presidential authority from the
process. Since
the Director would have allegiance to both Congress and the
President, the President is unlikely to view the Director as an
advocate of his agenda in coordinating federal policy. As a result, the Director
will likely have to rely on Congress for the authority to effect
the policies of federal agencies with homeland security roles. However, since
Congressional committees have vested interests in the agencies they
oversee, the Director is unlikely to win a debate in front of
Congress. This also de
facto strips the President of his Constitutional mandate for
executing the law, potentially creating a Constitutional separation
of powers issue.
-
A better
solution to the need for strategic planning, budget review and
interagency coordination would be to retain the existing Homeland
Security Council and Office of Homeland Security. The Senate can address this
issue in two ways; by doing nothing and letting the President
determine how he wants to organize the White House or adopting the
language from the H.R. 5005, which provides the HSC/OHS a statutory
base identical to the National Security Council WITHOUT
AMMENDMENT. No attempt
by the Senate to detail responsibilities or authorities of the
White House's coordinating mechanism or to hold that body
accountable to Congress will be acceptable.
-
TITLE III:
Section 303:
Establishes a National Combating Terrorism Strategy Panel to
assesses the National Homeland Security Strategy (required under
Section 301) and to conduct an alternative opinion on what the
nation's homeland security priorities should be.
-
This panel,
based on the model of the National Defense Panel, which was added
by Senator Lieberman to legislation mandating the QDR process in
the Defense Authorization Act of Fiscal Year 1997 (P.L. 104-201),
serves little purpose but to undermine the President's national
strategy as a planning document for the federal government. Further, Senator
Lieberman's model, the National Defense Panel, was a failed
undertaking as it relied on generalities instead of detailed
alternatives while ignoring important international
considerations.
TITLE IV:
Section 1001-1131:
Establishes a Directorate of Immigration Affairs in the DHS that
includes a Bureau of Immigration Services and Bureau of Enforcement
and Border Affairs.
-
By separating
immigration services from enforcement, the Senate bill recognizes
that the two missions are not mutually reinforcing. However, it still places
the services aspect of immigration affairs into DHS even though it
will not engage in, support, or reinforce homeland security
functions. The DHS
should only receive non-homeland security missions that support its
homeland security roles and vice versa. This is case with the other
multi-use agencies included in the DHS, such as the Coast Guard,
FEMA and the Customs Service. For example, Customs
official's revenue collection responsibilities promote expertise in
trends in trade and commerce that improves their ability to review
manifests for terror related smuggling. Likewise, the additional
scrutiny cargo will be receiving will improve efforts to enforce
revenue collection.
-
Immigration
Enforcement is a border security function. Other functions in the
border and transportation security division such as enforcement of
customs laws and responsibility for developing visa policy and
procedures will reinforce immigration enforcement, but providing
services for immigrants will not. The two functions should be
separated, but the DHS should only be responsible for
enforcement.
TITLE XII:
All Sections: The
Unaccompanied Alien Child Protection Act of 2002:
Generally
Acceptable Provisions that Need to be Amended
Section 102 (c ):
Vests authority
for regulating visa issuances in the Secretary of Homeland Security
while retaining visa issuance in the Department of State. Also allows for the
detailing of DHS personnel to embassies and consulates and provides
them membership on terrorist lookout committees.
o
Detailees of the DHS should have the authority to override the
approval of a visa by a consular affairs official on security
grounds
o
The State Department's Visa Office should be transferred to
DHS. This office is
currently responsible for issuing regulations on visa issuance.
o
The DHS should be responsible for training consular affairs
officials and developing the technology applications used on
station.
For more details please see: John Tkacik. "
Why the Department of Homeland Security Should Control Visas."
Heritage Testimony. July 15, 2002.
Section 102
(b)(10)(A): Requires the Secretary to consult with the Secretary of
Defense and State Governors to integrate the National Guard into
"ALL aspects of the national strategy (as defined in Title III) and
its implementation including detection, prevention, protection,
response and recovery."
-
The National
Guard is a vital tool to promoting homeland security and should be
the primary DOD element involved in homeland security operations in
support of civilian authorities. However, this statement by
the Senate is too broad. While the Guard should be
incorporated into homeland security planning, it should not be
incorporated into many areas on a day-to-day basis. For example, the National
Guard should not be responsible for securing airports, borders or
inspecting cargo. If DHS resources in these areas are insufficient
they should be improved to meet the department's needs.
-
And
Jack Spencer. "
The National Guard and Homeland Security." Heritage Executive
Memorandum # 826. July 29, 2002.
Section
132(c ): Mandates that all federal agencies "shall provide"
intelligence to the Directorate of Intelligence in the DHS.
-
While
the bill graphically describes how the Directorate of Intelligence
should function as an intelligence fusion center, it does not break
down the existing stovepipes that prevent adequate intelligence
sharing. For the DHS
to be successful in collating and making terrorism related
information accessible, it must be in charge of determining what
information is relevant. This language leaves this
responsibility and should be amended to ensure that the DHS has
access to all information so it can determine what must be
fused.
-
For more
on how an effective Intelligence Fusion Center must be constructed
see: Dr. Larry M. Wortzel. "
Creating an Intelligent Department of Homeland Security."
Heritage Foundation Executive Memorandum No. 828.
August 23, 2002.
Section 161:
Establishes a National Bio-Weapons Defense Analysis Center to
develop countermeasures to terrorist attacks using biological or
chemical weapons and places it in the Department of Defense.
-
S. 2452
establishes a Directorate for Science and Technology and a Security
Advanced Research Projects Agency to facilitate homeland security
related research and development. Other Directorates in DHS
will use the technology developed in these entities to prevent and
respond to terrorist incidents. However, the bill assigns
responsibility for research and development of specialized
countermeasures to the DOD. This kind of division and
redundancy is unnecessary. If Congress determines that
the DHS's component agencies do not today posses the equipment or
know-how to develop such countermeasures, it should provide the
wherewithal for the DHS to improve its own capabilities instead of
burdening the DOD with responsibility for developing technologies
for the DHS.
-
This section
should be amended to establish the National Bio-Weapons Defense
Analysis Center in the DHS.
Acceptable
Provisions
TITLE I:
Section 102
(b)(9)(A): Makes the Secretary responsible for providing state and
local officials with intelligence information related to homeland
security threats.
-
The President's
draft makes the Secretary only provides the Secretary with
authority for providing "warnings and information" to state and
local officials.
However, access to intelligence will be vital if personnel at all
levels are to make good policy decisions. By specifically making the
Secretary responsible for intelligence sharing, the Senate bill
promotes greater intelligence fusion with State and local
governments for homeland security.
-
Section 106 (c
)(1): Provides for an
official in the Office of the Inspect General to review civil
rights and civil liberties concerns.
Section 110:
Establishes a Civil Rights Officer to ensure Department policies
and programs do not violate civil rights.
Section 111:
Establishes a Privacy Officer to ensure Department policies and
programs adequate protect the privacy of American citizens
Section 113:
(Amendment offered by Sen. Thompson): Establishes an Office of
International Affairs to manage the diplomatic elements of homeland
security in conjunction with the Department of State.
-
To promote true
security, the United States must look for cooperation beyond its
own borders, particularly to the North and South. Close cooperation with
America's allies and trading partners will be instrumental in
securing commerce, immigration and travel, in some cases improving
response and in furthering terrorism related investigations will be
critical.
Section 134 (b)(4,
5 & 8): Designates
the Directorate of Emergency Preparedness and Response as the lead
federal entity for responding to all disasters. Section (b)(4) makes the
Directorate responsible for "providing a single staff for Federal
Assistance" during a disaster. Section (b)(5) creates a
National Crisis Action Center to act as the focal point for the
federal response.
Section (b)(8) mandates the creation of single response system in
coordination with all appropriate agencies.
-
Federal
terrorism response programs have been fragmented since at least
1996. For years an
artificial distinction was made between crises management and
consequence management with different agencies responsible for the
federal contribution in each area. The result was confusion
and disorganization in planning both leading up to and during an
attack. Establishing
clear authority through one chain of command should improve the
federal government's ability to assist state and local officials in
responding to acts of terrorism.
-
This section
also approaches federal response from an "all hazards" perspective
by making one agency responsible for all incidents whether they are
terrorist, natural or accidental in nature.
-
Michael Scardaville and Jack Spencer. "
Meeting the Needs of America's Crucial First Responders."
Heritage Backgrounder # 1548, May 13, 2002.
Section 134
(b)(12): Lays the groundwork for establishing a health surveillance
network in the Directorate of Emergency Preparedness and
Response.
-
In the event
that a terrorist attacks the United States with a biological
weapon, there will likely not be a telltale signal that the attack
has occurred. The
first indication that an attack has occurred will likely be when
Americans start getting sick. A national health
surveillance capability will improve the speed with which the
public health sector can determine that an attack has occurred by
viewing regional trends instead of just isolated incidents. As a result, treatment and
response can begin sooner reducing the consequences of an
attack.
-
Section 198:
Provides exemptions from the Freedom of Information Act (FOIA)
requirements (section 552 of title 5 USC) for information
voluntarily provided to the DHS regarding vulnerabilities or
threats to critical infrastructure.
-
FOIA is
generally a beneficial tool to hold government agencies accountable
to the public.
However, concerns over the release of private information through
FOIA makes the private sector reluctant to share information on
infrastructure vulnerabilities with the government. Since the private sector
owns 85% of all critical infrastructure in the United States, its
cooperation will be vital to protection efforts. Limited FOIA exemptions for
infrastructure prevention increases the likelihood of
cooperation.
-