Legislative critique of the Homeland Security Act of 2002

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Legislative Critique of the Homeland Security Act of 2002

The Homeland Security Act (HSA) of 2002 was passed in response to the September 11, 2001 attacks on the United States. It created the Department of Homeland Security as part of the largest U.S. government restructuring since the Department of Defense was created. The Homeland Security Act is a far-reaching anti-terrorism bill that gave federal law enforcement agencies broad powers in order to monitor citizens. The act has a large number of data-related conditions. In combining federal groups into a single agency, it also addressed how their IT systems and data would be consolidated and connected. It mandated the agency to create secure communications and IT infrastructure and advanced capabilities in order to access, receive, and analyze data and information. It addressed privacy, access to information, and research on technologies (Homeland Security Act of 2002, 2008)

The Critical Infrastructure Information Act of 2002 (CIIA), to be codified at 6 U.S.C. §131-134, was passed on November 25, 2002 as subtitle B. Of Title II of the Homeland Security Act, and regulates the use and disclosure of information submitted to the Department of Homeland Security (DHS) about vulnerabilities and threats to critical infrastructure (Stevens, 2003). On June 24, 2002, H.R. 5005 was introduced to establish the Department of Homeland Security and for other purposes introduced by Representative Armey. Pursuant to House Resolution 449, it was referred to Select Committee on Homeland Security and Committees on Agriculture, Appropriations, Armed Services, Energy and Commerce, Financial Services, Government Reform, Intelligence, International Relations, Judiciary, Science, Transportation and Infrastructure, and Ways and Means, (Gressle, 2003).

On July 24, 2002, H.R. 5005 was reported and altered by the Select Committee on Homeland Security. On July 25-26, 2002 H.R. 5005, after consideration and debate, passed the House as amended. The roll was 367, 295-132. On November 19, 2002, the Senate passed H.R. 5005, on as vote of 90-9. On November 22, 2002 the House completed action on H.R. 5005, clearing it for the President. November 25, 2002 President Bush signs P.L. 107-296, the Homeland Security Act of 2002; 116 Stat. 2135 (Gressle, 2003).

The primary mission of the Department is to:

prevent terrorist attacks within the United States

reduce the vulnerability of the United States to terrorism minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States

carry out all functions of entities transferred to the Department, including by acting as a focal point regarding natural and manmade crises and emergency planning ensure that the functions of the agencies and subdivisions within the Department that are not related directly to securing the homeland are not diminished or neglected except by a specific explicit Act of Congress

ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking (Public Law 107 -- 296 107th Congress, 2002).

The President's National Strategy for Homeland Security, which proposed the creation of a new Department of Homeland Security (DHS), established as one of the Department's core missions the protection of America's infrastructure. The proposal had the new Department responsible for comprehensively evaluating the vulnerabilities of America's critical infrastructure, including food and water systems, agriculture, health systems and emergency services, information and telecommunications, banking and finance, energy (electrical, nuclear, gas and oil, dams), transportation (air, road, rail, ports, waterways), the chemical and defense industries, postal and shipping entities, and national monuments and icons. Working directly with state and local officials, other federal agencies, and the private sector, the proposal had the Department helping to make sure that proper steps are taken to protect high-risk targets (Stevens, 2003).

Creation of OHS raised the questions of possible redundancy or duplication with other interagency coordinating mechanisms and plans that predate the September 11 events or that were put in place after the attacks. A substantial collaboration effort, for example, was the Attorney General's Five-Year Counterterrorism and Technology Crime Plan, published in 1998 with annual updates. The plan identifies several high level goals aimed at preventing and deterring terrorism, including improving domestic event and consequence planning and management, facilitating international cooperation, strengthening state and local capabilities, safeguarding information infrastructure, and leading R&D efforts to advance counterterrorism capabilities. According to a September 2001 GAO report, the plan could serve with some modifications as the nucleus of a national strategy against terrorism. Another preexisting plan, the Interagency Domestic Terrorism Concept of Operations Plan (CONPLAN), "outlines an organized and unified capability for a timely, coordinated response by federal agencies to a terrorist threat or act," especially one involving Weapons of Mass Destruction. CONPLAN, issued in January 2001 and signed by seven agency heads, was intended to be seen as a link between the investigative enforcement functions of crisis management and the damage control ones of consequence management (Lee, 2002).

Furthermore, analysts have noted an apparent overlap exists between OHS domestic preparedness and consequence management functions and those of the Federal Emergency Management Agency (FEMA), notably FEMA's Office of National Preparedness (ONP), created in a Statement by the President on May 8, 2001. According to the Statement, ONP was to coordinate all federal programs for WMD consequence management and also to work closely with state and local governments to ensure their planning; training and equipment needs are addressed. Recent congressional testimony found that the President's decision to create ONP was a vital solution for a problem long recognized but not previously solved the need for coordination among the myriad of federal programs dealing with terrorism preparedness. At the same time, the Office coordinated national efforts to prepare for and mitigate the consequences of terrorist threats and attacks and to respond to and promote recovery from such incidents. Some duplication of authorities between OHS and ONP thus appears to exist, although OHS as the architect of a broad national strategy for homeland security can be viewed as a consumer of information supplied by ONP rather than as a competitor (Lee, 2002).

Homeland security has been the most sweeping reform in government that has taken place in nearly half a century. It made clear the realization that the evolving international security landscape bears directly on our domestic security. Over time we have also learned that security is not an end in itself. It is an important means to a vital end: preserving the values, principles, and way of life we pursue as Americans (Quadrennial Homeland Security Review Report: A Strategic Framework for a Secure Homeland, 2010).

An evaluation of homeland security is thought to be able to take on many forms, from a retrospective and assessment of the past, to an analysis of current programs and activities, to a view of what the future might bring. Congress has made clear in its direction to the Department of Homeland Security (DHS), the principal author of this report, that the QHSR should delineate a homeland security strategy, including an outline of priority mission areas, not simply for DHS, but for the homeland security enterprise as a whole, embracing Federal, State, local, tribal, and territorial governments, nongovernmental organizations, the private sector, as well as individuals, families and communities. This planned analysis serves as a basis for a deeper look at the many programs and budgets required to execute the full range of homeland security missions (Quadrennial Homeland Security Review Report: A Strategic Framework for a Secure Homeland, 2010).

Congress has also tried to better understand the resource and organizational implications of a developing strategic view of homeland security. What has been clear from the start, however, is that any articulation of strategy or analysis of specific programmatic or resource tradeoffs, either within DHS or across the broader homeland security enterprise, had to be firmly rooted within a comprehensive strategic understanding of homeland security. It was set out to figure out what homeland security was, how best the homeland could be made secure and what it means to be prepared. Eight years after 9/11, these questions still echo widely among the many homeland security stakeholders (Quadrennial Homeland Security Review Report: A Strategic Framework for a Secure Homeland, 2010).

The QHSR marked the beginning of a multi-step process to answer these questions. It has offered a vision for a secure homeland, specified key mission priorities, outlined goals for each of those mission areas, and laid the necessary groundwork for subsequent analysis and recommendations. As an immediate follow-on and complement to the QHSR, an important bottom-up review of DHS was begun in November 2009 that will look to align the Department's programmatic activities and organizational structure with the mission sets and goals identified in the QHSR. That review is scheduled to be completed in the first calendar quarter of 2010 (Quadrennial Homeland Security Review Report: A Strategic Framework for a Secure Homeland, 2010).

The stepped up flow of ideas, goods, and people around the world, while vital to supporting and advancing America's interests, also created security challenges that are increasingly borderless and unconventional. To a greater degree than at any point in history, individuals and small groups, from nongovernmental organizations (NGOs) on the one hand to criminal networks and terrorist organizations on the other, have the ability to engage the world with far-reaching effects, including those that are disruptive and destructive (Quadrennial Homeland Security Review Report: A Strategic Framework for a Secure Homeland, 2010).

When considering all the forces that threaten the United States the interest lies in those that blend the high-tech capabilities of modern weaponry with the power and opportunity of asymmetric tactics such as terrorism and cyber warfare. We are confronted not only by new employment of conventional weaponry, but also by the hybrid temperament of these threats. We have seen their result on the American homeland. It must be remembered that we face a determined and constantly adapting adversary. The attempted terrorist attack on Flight 253 on December 25, 2009, is a powerful illustration that terrorists will go to great lengths to try to defeat the security measures that have been put in place since 9/11 (Quadrennial Homeland Security Review Report: A Strategic Framework for a Secure Homeland, 2010).

A six-point agenda for the Department of Homeland Security was developed and put into place in July 2005. This was developed in order to ensure that the Department's policies, operations, and structures were aligned in the best way to address any potential threats, both present and future, that face this nation. The six-point agenda was structured to guide the department in the near-term and result in changes that:

1. Increased overall preparedness, particularly for catastrophic events

2. Created better transportation security systems to move people and cargo more securely and efficiently

3. Strengthened border security and interior enforcement and reform immigration processes

4. Enhanced information sharing with our partners

5. Improved DHS financial management, human resource development, and procurement and information technology realign the DHS organization to maximize mission performance (Department Six-point Agenda, 2008).

Sustaining the agenda, the department proposed to realign the Department of Homeland Security in order to increase its ability to prepare, prevent, and respond to terrorist attacks and other emergencies. These changes were made in order to better integrate the Department and give department employees better tools to accomplish their mission. A new Directorate of Policy was created in order to be the primary Department-wide coordinator for policies, regulations, and other initiatives ensure consistency of policy and regulatory development across the department perform long-range strategic policy planning assume the policy coordination functions previously performed by the Border and Transportation Security (BTS) Directorate

include Office of International Affairs, Office of Private Sector Liaison, Homeland Security Advisory Council, Office of Immigration Statistics, and the Senior Asylum Officer.

Another agenda item was to strengthen intelligence functions and information sharing. A new Office of Intelligence and Analysis was developed in order to ensure that information is:

gathered from all relevant field operations and other parts of the intelligence community analyzed with a mission-oriented focus informative to senior decision-makers

disseminated to the appropriate federal, state, local, and private sector partners

This effort is led by a Chief Intelligence Officer who reports directly to the Secretary, this office is comprised of analysts within the former Information Analysis directorate and draw on expertise of other department components with intelligence collection and analysis operations.

Improve Coordination and Efficiency of Operations (Department Six-point Agenda, 2008).

A new Director of Operations Coordination was also appointed in order to:

conduct joint operations across all organizational elements coordinate incident management activities use all resources within the Department to translate intelligence and policy into immediate action

The Homeland Security Operations Center, which serves as the nation's nerve center for information sharing and domestic incident management on a 24/7/365 basis, has been a very critical part of this new office (Department Six-point Agenda, 2008).

Another function of the office was determined to be enhanced coordination and deployment of preparedness assets. The Directorate for Preparedness was created in order to:

consolidate preparedness assets from across the Department

facilitate grants and oversee nationwide preparedness efforts supporting first responder training, citizen awareness, public health, infrastructure and cyber security and ensure proper steps are taken to protect high-risk targets focus on cyber security and telecommunications include a new Chief Medical Officer, responsible for carrying out the Department's responsibilities to coordinate the response to biological attacks