Department of Homeland Security Act (2002)

Lynne K. Zusman and Neil S. Helfand

After the terrorist attacks of September 11, 2001, the George W. Bush administration, along with congressional lawmakers, decided that the U.S. government must overhaul the current governmental structure responsible for defending the domestic security of the United States. Without such an overhaul, it was believed, the United States would remain vulnerable to the omnipresent threat of global terrorism.

The agencies responsible for maintaining the security of the United States and gathering and analyzing intelligence information were charged for their failure to detect and prevent the terrorist attacks of September 11th. In particular, agencies such as the FBI and the CIA received the brunt of criticism. Critics alleged that the terrorist attacks could have been prevented if a more coordinated and streamlined domestic security system had been in place.

On June 18, 2002, the president sent a proposal to Congress for a Department of Homeland Security (P. L. 107-296). After considerable debate and further amendments, Congress approved the bill on November 22, 2002. The president signed the amended bill on November 25, 2002.

The act establishes the new Department of Homeland Security and consolidates the operations of twenty-two existing federal government agencies. The act is responsible for the largest revamping of government operations since the creation of the Department of Defense following World War II. The creation of the department reflects a desire to streamline and to consolidate domestic security functions to respond to and prevent further terrorist attacks on American soil. The department serves not only to provide effective response to a terrorist attack, but more importantly endeavors to form a more proactive defense of American soil.

THE DEPARTMENT'S MISSION

The primary mission of the Department of Homeland Security, according to Section 101(b)(l) of the Homeland Security Act, 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 acting as a focal point regarding natural and manmade crises and emergency planning.
• • Ensure that the functions of the agencies and subdivision 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.

REORGANIZATION PLAN

Pursuant to Section 1502 of the act, President Bush submitted a reorganization plan on November 25, 2002 that provided a schematic of the new department's composition. The reorganization plan provided for the transfer of agencies, personnel, assets, and obligations to the new department and the consolidation, reorganization, or streamlining of the agencies transferred to the department. Thus, the reorganization plan called not only for the transfer of twenty-two existing federal agencies but also set the stage for fundamental changes in the manner in which these agencies conduct their operations.

THE DEPARTMENT'S STRUCTURE

The Department of Homeland Security officially took form on January 24, 2003, with Tom Ridge serving as the first secretary of the department. However, the department only had a skeletal structure until March 1, 2003, when the majority of agencies that would constitute the bulk of the new department were formally transferred into it. On March 1, 2003, the following federal agencies were transferred to the department: the Coast Guard; the Secret Service; the Customs Service; the Federal Emergency Management Agency; the Transportation Security Agency; the Commerce Department's Critical Infrastructure Assurance Office, the Defense Department's National Communication System; the FBI's National Infrastructure Protection Center, and the functions of the former Immigration and Naturalization Service.

In addition to the transfer of these federal agencies a number of additional federal government responsibilities were transferred, including nuclear, biological and chemical defense efforts, as well as certain medical response efforts, including the Metropolitan Medical Response System and nationwide pharmaceutical and medical supply distribution efforts.

The core divisions of the department, each headed by an undersecretary, are Information Analysis and Infrastructure Protection; Science and Technology; Border and Transportation Security; and Emergency Preparedness and Response. The department is also responsible for coordinating with nonfederal entities, such as state and local governments.

In addition to the consolidation of federal government functions, the act calls for federal government support in fostering the development of effective technologies necessary in combating terrorism, and it provides new powers to government officials in declaring national health emergencies, including quarantines and forced vaccination. The act also aims to facilitate homeland security information sharing procedures in an effort to maximize intelligence data analysis and utilization capabilities.

REACTION TO THE NEW DEPARTMENT

Critics of the newly formed department charged that the government reorganization did little more than create a huge new bureaucracy with its own unique challenges and areas of incompetence in mobilizing effective government operations in defense of the homeland. Early critics noted that the new department did not include the two agencies chiefly responsible for the gathering and analysis of intelligence data, the FBI and CIA. Opponents argued that the department could not effectively fulfill its mission in preventing and responding to future terrorist attacks without the expertise of these agencies and noted that the department would be dependent upon the FBI and CIA's effectiveness and willingness to share information with the department.

In addition, as the FBI and CIA were widely blamed as the source of intelligence lapses leading up to the September 11th attacks, opponents of the act also reasoned that it failed to address the weaknesses of these two agencies and the nation's vulnerability to a terrorist attack, since the FBI and CIA are beyond the purview of the department.

POLITICAL CLIMATE

Civil Liberties In an age of uncertainty, the department assumes profound responsibility in securing the homeland. Mobilizing the department's efforts is further complicated by the political difficulties of forming a cohesive and tight security mechanism while maintaining cherished civil liberties. The department must perform a careful balancing act in preserving fundamental civil liberties while maintaining national security.

Critics accuse the federal government of over-stretching the constitutional bounds of its authority and unduly curtailing the civil liberties of U.S. citizens. Those with concerns about the curtailment of civil liberties point out that the Homeland Security Act comes on the heels of the USA Patriot Act, enacted in October 26, 2001, that gave sweeping new powers to both domestic law enforcement and international intelligence agencies and severely reduced the oversight powers previously provided to the courts in reviewing government surveillance powers. They fear that the combined effect of the two acts is to contort the checks and balances provided by the Constitution.

The Homeland Security Act, in the interest of national security, gives companies immunity from damage suits brought against them regarding "antiterrorism technology," limits the information that can be received under the Freedom of Information Act, and allows more latitude for government supervisory committees to meet in secret, among other auspices. Critics are concerned that the rights of U.S. citizens will be unnecessarily weakened, all in the name of national security.

Information Sharing The terms of the Homeland Security Act are vague, and many key provisions are open to interpretation. One of the most significant areas of ambiguity is in the area of information sharing.

The issue of intelligence information sharing is charged with political implications concerning the specific duties of various federal agencies. The FBI and CIA prefer to preserve strict limitations on the distribution of their intelligence data and analysis. Meanwhile the department is charged with the responsibility of preventing terrorist threats from harming our nation, a job in large part reliant upon the information gathered from agencies such as the CIA and the FBI. Furthermore, the department, in its infancy, lacks the capabilities to match the expertise of the established agencies in the analysis of intelligence data. The issue of information sharing will present one of the greatest political and technical challenges to the department.

COORDINATION WITH STATE AND LOCAL GOVERNMENTS

Another area in which the act failed to provide direction was the way in which the department will coordinate with state and local governments who are on the front lines in the battle against terrorism. State and local governments complain that they lack the money, equipment, and personnel to carry out the mandates of the department.

Congress has conducted hearings on these challenges. Bills have been aimed at increasing the flexibility and coordination of money going to state and local governments. The call for more flexibility recognizes the unique and varying challenges faced by different localities in enhancing their ability to respond to terrorist threats. In addition, the department announced it would allocate $700 million from the 2003 supplemental budget to help protect urban areas and critical infrastructure.

OVERHAUL OF THE ACT

Vague in its details and hastily written at a time when swift action was deemed necessary, the act will presumably undergo further evaluation and amendment as lawmakers more closely examine its effectiveness. Substantive changes are possible, as Congress examines issues such as the need to clarify the roles of federal departments related to homeland security, in particular the Defense Department.

Given the mammoth task of undertaking a reorganization of the federal government, it is expected that the complete formation of the department and the full delineation of its responsibilities will in all probability take years. In the meantime, the work of defending the United States against terrorist attacks is already well under way.

See also: USA Patriot Act.

BIBLIOGRAPHY

New, William. "House Chairman Plans Overhaul of Homeland Security Act." Technology Daily, May 2, 2003. http://www.govexec.com/dailyfed/0503/050203dl.htm.

McCarthy, Bill. "New Bureaucracy." Mobile Radio Technology, January 1, 2003.

Peckenpaugh, Jason, "Ridge Announces Reorganization of Border Agencies." Congress Daily, January 30, 2003. http://www.govexec.com/dailyrfed/0103/013003p2.htm.

Serivo, Karen Kee. "Senator Seeks Flexibility for First Responder." Congress Daily, April 28, 2003. http://www.govexec.com/dailyfed/0403/042803cdam1.htm.