An Assessment of the National Homeland Security and CombatingTerrorism Act of 2002 (S. 2452)

August 30, 2002 22 min read

Michael Scardaville

Former Policy Analyst

Michael served as a Policy Analyst for The Heritage Foundation

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.
For more information please see: George Nesterczuk. " A Successful Start for the Department of Homeland Security Requires Management Flexibility." Heritage Backgrounder #1572. July 19, 2002.

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.
For more information please see: George Nesterczuk. " A Successful Start for the Department of Homeland Security Requires Management Flexibility." Heritage Backgrounder #1572. July 19, 2002.

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.
For more information please see: Michael Scardaville, " Why a Multi-use Approach Is Essential to the Success of the DHS." Heritage Backgrounder #1571, July 18, 2002.

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.
For more information please see: George Nesterczuk. " A Successful Start for the Department of Homeland Security Requires Management Flexibility." Heritage Backgrounder #1572. July 19, 2002.

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.
For more information please see: George Nesterczuk. " A Successful Start for the Department of Homeland Security Requires Management Flexibility." Heritage Backgrounder #1572. July 19, 2002.

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.
For more information please see: George Nesterczuk. " A Successful Start for the Department of Homeland Security Requires Management Flexibility." Heritage Backgrounder #1572. July 19, 2002.

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.

This provision strips the Secretary of any authority to structure the DHS for success or to adapt to changing threats. The basic purpose of establishing the DHS is to consolidate redundant or overlapping programs to achieve a more coordinated and security minded policy. Nearly every agency or program being transferred to the DHS was created by legislation and none are consolidated or rationalized by this bill. If the Secretary does not have the authority to consolidate the functions of the DHS's components and turf battles continue to impede Congress's willingness to do so there will be no point in creating the DHS. Preventing the Secretary from adapting the functions of the DHS's components over time will reduce the Department's ability to meet the changing terrorist threat.

Section 191 (b)(3): Prevents the delegation of any function assigned to a unit of the DHS to another entity in the Department.

Reduces the Secretary's ability to construct an effective Department in a manner similar to Section 191 (a)(2).
For more information please see: George Nesterczuk. " A Successful Start for the Department of Homeland Security Requires Management Flexibility." Heritage Backgrounder #1572. July 19, 2002.

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.
For more information please see: Michael Scardaville. " Why the Office of Homeland Security Should Remain Independent." Heritage Foundation Backgrounder No. 1577. August 23, 2002.

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:

This Title is completely unrelated to homeland security and should not be included as part of a bill to establish a Department of Homeland Security.

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.

This section basically provides for a secure structure for issuing visas. However ADDITIONAL CHANGES ARE NEEDED to achieve optimal effectiveness. In addition:

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.
For more details please see: Jack Spencer and Larry M. Wortzel, Ph.D. " The Role of the National Guard in Homeland Security." Heritage Backgrounder # 1532. April 8, 2002.

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.
For more details please see: Dana R. Dillon " Breaking Down Intelligence Barriers for Homeland Security." Heritage Backgrounder 1536. April 10, 2002.

Section 106 (c )(1): Provides for an official in the Office of the Inspect General to review civil rights and civil liberties concerns.

Homeland security policies must be compatible with the civil liberties on which the United States was founded. Instituting a process for reviewing the impact of programs on civil liberties and addressing alleged violations will contribute to this balance.

Section 110: Establishes a Civil Rights Officer to ensure Department policies and programs do not violate civil rights.

Homeland security policies must be compatible with the civil liberties on which the United States was founded. Instituting a process for reviewing the impact of programs on civil liberties and addressing alleged violations will contribute to this balance.

Section 111: Establishes a Privacy Officer to ensure Department policies and programs adequate protect the privacy of American citizens

Homeland security policies must respect the privacy of the American public, which is a fundamental civil liberty on which the United States was founded. Instituting a process for reviewing the impact of programs privacy and addressing alleged violations will contribute to this balance.

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.
For more details please see: Michael Scardaville, "Why a Multi-use Approach Is Essential to the Success of the DHS." Heritage Backgrounder #1571, July 18, 2002. and

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.
For more information, please see: Jack Spencer. Defending the American Homeland, Chapter 2, " Top Priorities for Strengthening Civil Defense Against Terrorism.

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.
For more information, please see: Michael Scardaville. Defending the American Homeland, Chapter 1, " Top Priorities for Protecting the Nation's Infrastructure."