The Homeland Security Act of 2002: An Analysis

July 24, 2002 14 min read

Michael Scardaville

Former Policy Analyst

Michael served as a Policy Analyst for The Heritage Foundation

Vital Provisions

The following provisions currently in the draft of H.R. 5005, The Homeland Security Act of 2002 are so vital, that if weakened or removed the Department of Homeland Security's (DHS) chances for success would be significantly decreased:

1. Require Flexibility in Human Resource Rules:

Section 761: Allows the Secretary of DHS with the Director of OPM to establish and adjust the human resources rules of the Department.

The federal programs that will comprise the DHS all bring with them unique sets of personnel rules. The Administration must have the flexibility to create one modern, flexible personnel department free from politicization by Congress. Section 761 is an excellent compromise but must be approached as a compromise. If it is the starting point for further amendments from the floor it will turn into a disaster.

2. Ensure Budget Flexibility:

Section 763: 2% budget transfer authority for 2 years.

The Secretary of the DHS will need budget flexibility to meet the every changing threat posed by terrorism and to expedite the transition period. However, 2% for 2 years is a bit thin, at least in the early years of the DHS's existence. Instead the Congress should provide for 5% flexibility (as the President requested) for 5 years and should consider making such power permanent and reviewing what percent is necessary at the end of that 5 year period.

3. Provide a Legal Framework to Promote Public-Private Cooperation:

Section 753 & 754: Address liability issues for the producers of anti-terrorism technology (the SAFETY Act).

The United States develops some of the most advanced technologies for civilian and military applications in the World. Unfortunately, manufactures will be reluctant to invested time and millions of dollars on developing technologies to prevent terrorism if courts are going to hold them liable for incidences when their technology does not prevent an attack. In order to mobilize the full force of American industry for the war on terrorism, this issue must be resolved through legal protections.

Section 724: Protection from FOIA of voluntarily shared information related to critical infrastructure protection.

FOIA is a generally beneficially tool to hold government agencies accountable to the public. However, concerns over FOIA make the private sector reluctant to share information regarding infrastructure vulnerabilities. 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 increase the likelihood of cooperation.
The Congress should consider building upon this philosophy and review the relevant "right to know" and anti-trust laws and make necessary modification to ensure they do not also leave the United States vulnerable to terrorism.

4. Ensure a Multi-Use Focus is Retained for the DHS

Section 101 (D) : Added "acting as a focal point regarding natural and manmade crises and emergency planning" to the DHS's mission.

Recognizes the necessity of a multi-use nature for the Department.

Section 402 (2): Transfers the United States Coast Guard to the DHS.

The Coast Guard is a vital component of the DHS's border security mission and including its multi-mission culture in the Department will contribute greatly to the overall success of the DHS.

Section 501 3(D), 4, & 6: These provisions basically consolidate responsibility for all elements of the federal response to all disasters with the Undersecretary for Emergency Preparedness and response.

Federal response programs have been fragmented since at least 1996. For years an artificial distinction has been made between crisis management and consequence management with responsibility of each role given to different agencies. This creates confusion both during and in planning for disasters.

Section 502 (1): Transfers FEMA to the DHS

FEMA's all hazards approach to natural, accidental, and terrorism related disasters will be an asset to the new department. Further, state and local agencies will rely on one set of first responders regardless of the nature of an incident, necessitating the designation of one federal agency to work with them in all occasions.
For more detail, please see Heritage Backgrounder #1571, "Why a Multi-use Approach is Essential to the Success of the DHS"

5.Continue to Ensure the Independence of the OHS

Sections 1001 - 1007: Establishes through legislation the Homeland Security Council and an Executive Secretary with a staff at its head.

This provision is the maximum legislation the Congress should pass governing the HSC and the OHS. Any attempt to further legislate the authorities or responsibilities of the HSC and OHS would weaken the President's decision-making abilities significantly and hamper coordination. The HSC and OHS should continue to be modeled after the NSC.

6.Lay the Groundwork for an Intelligence Fusion Center

Section 212: Describes the missions of the Intelligence Analysis Center of the DHS as (1) Correlating and evaluating information and intelligence from all sources. (B) Producing all source analysis. (C) Dissemination of such assessments. (D) Sharing of information with state and local agencies.

Even with the establishment of the DHS, other federal, state and local agencies will still have a vital role to play in homeland security. Assuring these institutions have access to vital information will be critical in the overall success of the homeland security mission.
For more details, please see Heritage Backgrounder #1536, "Breaking Down Intelligence Barriers for Homeland Security."

Positive Provisions

The following provisions are generally positive and will strengthen the DHS. They should be retained at all costs or, in some specific cases modified slightly to further improve their value.

Title I:

Section 101 (D): Added "acting as a focal point regarding natural and manmade crises and emergency planning to the DHS's mission.

Recognizes the necessary multi-use nature of the Department.
For more detail, please see Heritage Backgrounder #1571, "Why a Multi-use Approach is Essential to the Success of the DHS"

Section 102 (3): Adds ensuring that IT systems and databases of the DHS are compatible with each other and those of other Departments.

Compatible IT systems will lay the groundwork for the efficient sharing of terrorist related intelligence and information through an intelligence fusion center.

Title II:

Section 205: Establishes a Privacy Officer and directs that officer to conduct an assessment of proposed rules of the DHS on the effect on personal privacy.

Section 206: Vests responsibility for improving the security of federal computer systems in the Secretary.

This section establishes the Intelligence Analysis Center to function as an intelligence fusion unit. Even with the establishment of the DHS, other federal, state and local agencies will still have a vital role to play in homeland security. Assuring these institutions have access to vital information will be critical in the overall success of the homeland security mission.
For more details, please see Heritage Backgrounder #1536, "Breaking Down Intelligence Barriers for Homeland Security."

TITLE III:

Section 301: Broadens the responsibilities of the President's proposed Undersecretary for Chemical, Biological, Radiological and Nuclear Countermeasures to encompass all science and technology issues. Builds on the recommendations of the House Science and Energy and Commerce Committees.

The Committees recommended creating a 5^th Undersecretary to handle science and technology issues. This approach would have created duplicative responsibility between the Undersecretary for S&T and CBRN Countermeasures. The Select Committee's approach correctly elevates the need for non-CBRN research without creating unnecessary bureaucracy.

Section 306 (a)(C): (Pryce Amendment to the Delay Amendment) Provides the Secretary with flexibility in determining the criteria necessary for establishing university based centers for homeland security.

TITLE IV:

Section 402 (2): Transfers the United States Coast Guard to the DHS.

The Coast Guard is a vital component of the DHS's border security mission and including its multi-mission culture in the Department will contribute greatly to the overall success of the DHS.
For more detail, please see Heritage Backgrounder #1571, "Why a Multi-use Approach is Essential to the Success of the DHS"

Section 403: Details the relationship between the DHS and the Department of State in regard to visa issuance. Specifically makes the Secretary of Homeland Security responsible for issuing regulations related to the administering of immigration laws, develop training programs for consular officers of the Department of State. Also provides for the stationing of DHS officials at oversees consulates for training and oversight purposes and provides for the assignment of DHS officials to terrorist lookout committees.

The Select Committee has generally divided responsibility between the DHS and State appropriately. DHS should be responsible for policy and training, while State should retain authority over consular affairs officers.
NEXT STEP: To facilitate this arrangement the Visa Office at the Department of State should be transferred to the DHS.
For more details, see Heritage Backgrounder #1569, "Why DHS Should Control Visas."

Section 407 (b): Provides a sunset provision for Section 407 (a), which retains the TSA as a distinct entity with the DHS, after two years.

Generally, the Secretary of Homeland Security should have the authority to consolidate functions and rationalize programs. TSA should not be exempt from this.

Section 409: Extends the deadline for deployment of EDS machines at all airports by 1 year.

When Congress passed the Aviation Security Act last year, it established unrealistic deadlines. Providing for an extension, is merely recognizing reality.

Section 411: Transfers responsibility for immigration enforcement to the DHS and establishes the Bureau of Border Security to manage this program.

The INS has proven to be a dysfunctional agency unable to meet the security needs of the country. Further, enforcing immigration laws is different from promoting citizenship and requires unique skills and the two do not mutually reinforce each other (as is the case with the Coast Guard and FEMA).

TITLE V:

Federal response programs have been fragmented since at least 1996. For years an artificial distinction has been made between crisis management and consequence management with responsibility of each role given to different agencies. This creates confusion both during and in planning for disasters.

Section 502 (1): Transfers FEMA to the DHS

FEMA's all hazards approach to natural, accidental, and terrorism related disasters will be a vital asset to the new department. Further, state and local agencies will rely on one set of first responders regardless of the nature of an incident, necessitating the designation of one federal agency to work with them in all occasions.
For more detail, please see Heritage Backgrounder #1571, "Why a Multi-use Approach is Essential to the Success of the DHS"

TITLE VI:

Section 604: Creates an Office for Civil Rights and Civil Liberties to review the effect on and accused cases of abuse of civil rights and civil liberties of the new department. Also provides for making such information public

As the federal government continues to develop homeland security policies, ensuring that new programs do not deconstruct fundamental American liberties is essential.

TITLE VII:

Section 724: Protection from FOIA of voluntarily shared information related to critical infrastructure protection.

FOIA is a generally beneficially tool to hold government agencies accountable to the public. However, concerns over FOIA make the private sector reluctant to share information regarding infrastructure vulnerabilities. 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 increase the likelihood of cooperation.
The Congress should consider building upon this philosophy and review the relevant "right to know" and anti-trust laws and make necessary modification to ensure they do not also leave the United States vulnerable to terrorism.

Section 731: Grants the Secretary authority to conduct R&D outside of normal procurement regulations in accord with the powers given to the Secretary of Defense under Section 2371 of Title 10 of the U.S. Code.

Section 753 & 754: Address liability issues for the producers of anti-terrorism technology.

Section 761: allows the Secretary of DHS with the Director of OPM to establish and adjust the human resources rules of the Department.

The federal programs that will comprise the DHS all bring with them unique sets of personnel rules. The Administration must have the flexibility to create one modern, flexible personnel department free from politicization by Congress. Section 761 is an excellent compromise but must be approached as a compromise. If it is the starting point for further amendments from the floor it will turn into a disaster.

Section 763: 2% budget transfer authority for 2 years.

The intent of this provision is admirable. The Secretary of the DHS will need budget flexibility to meet the every changing threat posed by terrorism and to expedite the transition period. However, 2% for 2 years is a bit thin, at least in the early years of the DHS's existence. Instead the Congress should provide for 5% flexibility (as the President requested) for 5 years and should consider making such power permanent and reviewing what percent is necessary at the end of the 5 year period.

Section 769: Establishes an office of International Affairs to exchange information, engage in joint R&D, conduct joint response training and exercises.

Section 770: Discontinuation of TIPS

TITLE VIII:

Section 881 (d): Allows officials who have already received the advice and consent of the Senate to service as acting officials in DHS pending the appointment of a replacement and provided they are serving in a similar capacity. And allows such individuals to serve in that capacity should they be nominated by the President without having to be confirmed by the Senate a second time.

Section 815: Prohibits a National ID.

TITLE X:

Sections 1001 - 1007: Establishes through legislation the Homeland Security Council and an Executive Secretary with a staff at its head.

This provision is the maximum legislation the Congress should pass governing the HSC and the OHS. Any attempt to further legislate the authorities or responsibilities of the HSC and OHS would weaken the President's decision-making abilities significantly and hamper coordination. The HSC and OHS should continue to be modeled after the National Security Council, including the National Security Advisor and staff. This language accomplishes this.

Poor Provisions

The following provisions should be amended:

TITLE IV:

Section 402 (5), (6), (7) & (8): Consolidates first responder assistance programs, including the Office of National Preparedness (FEMA), Office of Domestic Preparedness (DOJ), National Domestic Preparedness Office (FBI) and the Domestic Emergency Support Teams (DOJ) under the Undersecretary for Border and transportation.

Consolidating federal grants programs and other assistance for state and local first responders should be one of the primary objectives of the DHS. However, placing this kind of assistance in the division of the DHS responsible for securing America's borders and modes of transports does not make sense. All federal assistance for crisis management and consequence management functions should be consolidated and located either in the Department's state and local coordination division or under the Undersecretary for Emergency Preparedness and response. These two divisions will have the correct focus on the needs of states and localities and on responding to attacks. Political concerns that certain first responder groups may be undervalued by either of these divisions, should be rectified by ensuring that that division takes into account that groups concerns, not by placing support programs in a completely unrelated section of the DHS.

Section 452, 454, & 455: These sections outline the relationship between the Department of Treasury and the DHS regarding the collection of Customs Revenue Functions. Section 452 retains authority for customs revenue collection in Treasury and prevents the Secretary of DHS from consolidating rationalizing these functions. Section 454 prevents the Secretary of DHS from reallocating funds designated for the Customs Service. Section 455 requires DHS submit a separate budget request for the Customs Service.

Retaining authority for collection of customs revenues in the Department of Treasury, but through the DHS is not a harmful arrangement. However, the details of these sections inhibit the Secretary's flexibility to meet changing threats and prevent a full integration of the Customs Service into the DHS.

TITLE VIII:

Section 881 (f): Transportation Trust Funds

Michael Scardaville is a Policy Analyst for The Heritage Foundation.