Creating the Department of Homeland Security: Rethinking the Ends and Means

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1 The Century Foundation Homeland Security Project Issue Brief Creating the Department of Homeland Security: Rethinking the Ends and Means By Stephen E. Flynn, Jeane J. Kirkpatrick Senior Fellow for National Security, Council on Foreign Relations This issue brief was prepared for The Century Foundation s Homeland Security Project. Nothing written here is to be construed as necessarily reflecting the views of The Century Foundation or as an attempt to aid or hinder the passage of any bill before Congress. On July 16, 2002, the White House issued the first National Strategy for Homeland Security. The document s stated purpose is to mobilize and organize our Nation to secure the U.S. homeland from terrorist attacks. It lists three strategic objectives: (1) to prevent terrorist attacks within the United States, (2) to reduce America s vulnerability to terrorism, and (3) to minimize the damage and recover from attacks that do occur. It also calls for the establishment of a new Department of Homeland Security to ensure greater accountability over critical homeland security missions and unity of purpose among the agencies responsible for them. Finally, it identifies six critical mission areas: (1) intelligence and warning, (2) border and transportation security, (3) domestic counterterrorism, (4) protecting critical infrastructure and key assets, (5) defending against catastrophic threats, and (6) emergency preparedness and response. The logic underpinning the strategy is laudable. Essentially, it starts with the assumption that it is the job of the traditional national security apparatus to deal with the threat of terrorism abroad or at its source. But invariably, some terrorists or the tools of terrorism will not be identified over there, so the nation needs the means to detect and intercept them as they arrive or once they are in the United States. This places a premium on gathering intelligence and getting it to authorities who need it at the border, within the transportation community, and at the state and local level. Despite stepped-up efforts at the nation s borders or heightened scrutiny of people, goods, and conveyances when they depart from overseas terminals, some terrorists will slip through the cracks. As their most likely targets are critical infrastructure and symbolic landmarks, it makes sense to harden those assets so as to deter attacks in the first place or to mitigate the consequences in the second. Since the precise nature of terrorist acts, particularly involving weapons of mass destruction, are difficult for communities and emergencies responders to recognize accurately, both in terms of their scale and the specific agents involved, they need to have tools on hand to help decipher what they are up against and The Century Foundation is a research foundation that undertakes timely and critical analyses of major economic, political, and social institutions and issues. Nonprofit and nonpartisan, TCF was founded in 1919 and endowed by Edward A. Filene. Headquarters: 41 East 70 th Street * New York, NY * * (fax) * info@tcf.org DC Office: 1755 Massachusetts Ave., NW * Washington, DC * * (fax) * info@tcf.org

2 to protect themselves as they respond. Finally, mitigating the consequences of a successful attack and quickly restoring the systems involved is essential to alleviating the disruption intended by those who commit terrorist acts. Ideally, if the odds of carrying out a successful terrorist act are low, and if there is not much of a tangible effect on critical elements of power of the nation, even when an attack succeeds, its military value becomes marginal and adversaries will find catastrophic terrorism a lessattractive weapon. This is an ambitious agenda. To imagine that it can be accomplished without a major realignment of the principle agencies involved is an exercise in wishful thinking. Certainly the pre and post September 11 experience to date suggest that the existing framework does not fit the bill. We must be candid in recognizing that frontline regulatory and enforcement agencies whose roles are most critical to advancing this expanded homeland security agenda have been neglected for years. Further, this neglect has not been benign. Their parent departments, congressional appropriators, and Office of Management and Budget reviewers historically have treated them as orphans. Placed in an environment in which the inevitable decisions about resource trade-offs are made by overseers with an almost exclusively domestic, nonsecurity focus, we should not be surprised that these agencies are so poorly positioned to get from where they are to where they need to be. Against this backdrop and in light of the fact that the catastrophic terrorism promises to be a long-term challenge, major reorganization must be on the table. The Department of Homeland Security is an appropriate organizational design for several key elements of the homeland security imperative. First, transferring Immigration and Naturalization Service, Border Patrol, U.S. Customs Service, Animal and Plant Health Inspection Service, U.S. Coast Guard, and Transportation Security Administration into the proposed department brings the effective oversight of the border and transportation security mission under one roof. The job of filtering the bad from the good from among the cascading flows of people, goods, and conveyances that arrive in the United States each day falls almost entirely to these agencies. For people, it is Immigration and Naturalization Service and Customs that are responsible for examining travelers at ports of entry and the Border Patrol along our national frontiers. For cargo, Customs has the lead role for nonperishable goods, the Animal and Plant Health Inspection Service for living goods, and the Coast Guard for hazardous materials shipped by sea. For transportation conveyances, the Coast Guard inspects ships and the Transportation Security Administration has responsibility for overseeing security involving trains, trucks, buses, and planes. Most cross-border activity involves ships, planes, cars, trucks, trains or buses operated by a crew that carries passengers, cargo, or both. Having a common organizational structure to support the targeting and inspection of all these activities would be a vast improvement over the poorly coordinated system that now serves as the filter of global trade and travel. For instance, under the existing border control architecture it is not all that difficult for a ship with a shady past, carrying suspect cargo, and manned by a questionable crew to enter a U.S. port with no inspection. This is because it is unlikely that all these red flags would be viewed simultaneously. The Coast Guard might know something about the ship and will know also about the scheduled arrival of a tanker carrying hazardous cargo. Customs will receive some advance cargo manifest information. The Immigration and Naturalization Service may or may not know that much about the crew depending on the accuracy of crew list faxed to the Coast Guard by a shipping agent and the speed at which the names are manually loaded into a database. In addition, none of the frontline inspectors in these agencies are likely to have access to national security intelligence from the FBI or the CIA. And all of these agencies will have more people, cargo, and ships that spark their interest and concern than they have the manpower to intercept and inspect. The emphasis that the administration s proposed Department of Homeland Security places on intelligence and warning can go a long way toward addressing scenarios like this one. While there is little doubt that more must be done within the traditional intelligence community to identify, monitor, and share information about terrorist activity, much of the detection work is likely to fall on frontline 2

3 inspectors. For them, their most important tool is practicing what cyber-security experts call anomaly detection. In the computer industry, anomaly detection represents the most promising means for detecting hackers intent on stealing data or transmitting computer viruses. The process involves monitoring the cascading flows of computer traffic with an eye toward discerning normal traffic; that is, traffic that moves by way of the most technologically rational route. Once this baseline is established, software is written to detect aberrant traffic. A good computer hacker will try to look as much as possible like a legitimate user. But because he is not legitimate, he inevitably must do some things differently. Good cyber-security software will detect that variation and deny access. For those hackers who manage to get through, their breach is identified and shared so that this abnormal behavior can be removed from the guidance of what is normal and acceptable. In much the same way, the overwhelming majority of the cross-border traffic moves in predictable patterns. If regulators and enforcement authorities whose daily tasks place them in contact with those networks are provided the means to gather, share, and mine data that provide a comprehensive picture of normal traffic, they will be in a much better position to detect threats when they materialize. In other words, there is a good deal of unclassified and open-source information that, if coordinated and analyzed, could allow frontline agencies to target their limited inspection and enforcement resources at suspicious activity, even in the absence of specific intelligence from the FBI or CIA. Performing this task and coordinating with the intelligence community can be done much more effectively in one department rather than trying to accomplish it across multiple departmental and agency jurisdictions. While there may be a compelling homeland security reason for bringing these frontline agencies together, many critics have expressed concern that their nonsecurity missions would suffer if they were pulled out of their different homes. The answer should be no. To a large extent, it is the skills, authorities, and relationships of the nonsecurity missions that provide the real-value added that these agencies contribute to homeland security. For example, Coast Guard men and women conduct daily patrols to interdict drugs and illegal migrants, to protect fisheries, to advance safety among recreational boaters, and monitor the movements of hazardous materials on ships and within ports. It is these activities much like community policing that provide Coast Guard officials with the physical presence and the requisite presence of mind and authority to pick out nefarious activities. Let us take the scenario of a terrorist who decided to commandeer a fishing vessel to smuggle a weapon of mass destruction into the United States hidden beneath a load of fish. It likely would be a Coast Guard officer performing a routine fishery boarding that would identify that this purported fisherman actually is outfitted with nets whose mesh is too small for the fishery he claims to be fishing. That would arouse his suspicion and lead him to dig into a fish hold and find the weapon. Likewise, it is the amicable relationship that the Coast Guard generally enjoys with fishermen because of the sea rescues the service performs that makes it possible for the Coast Guard to recruit fishermen to assist it by reporting suspicious activity they might come across when there is no Coast Guard vessel on patrol in their area. Similarly, it is the trade community s dependency on the U.S. Customs Service for getting imported goods released quickly that positions the customs commissioner to insist on more data, earlier, from manufacturers, forwarders, and customs brokers that can bolster enforcement activities. And it is the customs inspector who routinely examines a shipping manifest to insure compliance with U.S. revenue laws that is best positioned to spot a shipment that makes no commercial sense, such as a very low-cost commodity moving on a high-cost conveyance. For the Animal and Plant Health Inspection Service, the skills it takes to prevent agricultural products that could contain natural blights or diseases from entering the country equips them to spot acts of terrorism involving the global food supply. This link between the nonsecurity mission and the homeland security imperative provides the rationale for why the Federal Emergency Management Agency (FEMA) is properly included in the new department. Because of its involvement in disaster planning, assistance, and recovery, FEMA has the strongest ongoing relationship with emergency responders at the state and local levels of any U.S. 3

4 government agency. Since the first responders for a natural disaster invariably will be the same if the disaster is caused by malicious intent, the job of coordinating support for this community should be done by the agency that currently is responsible for that task FEMA. In short, it is only by insuring that these frontline agencies have the capacity to perform their traditional jobs that they are going to be able to bolster their capacity to support the homeland security imperative. Accordingly, the American people should be able to look forward to a two-for by combining many of the frontline law enforcement agencies into a new Department of Homeland Security. First, they will get a more robust capability for detecting and intercepting terrorists before they arrive or carry out their attacks on American soil. Second, they will get more capable agents and agencies in carrying out their traditional missions. Any effort to trade off one for the other would only be self-defeating. The final function that the administration has proposed to include in the new department critical infrastructure protection is the least controversial. While protecting pipelines, telecommunications switches, energy grids, transportation systems, and information networks requires very different tasks, the functional need of conducting vulnerability assessments, establishing protective priorities, and developing contingency plans is best done under one roof than scattered across government. Another compelling reason for central coordination is that these infrastructures are often linked in important ways. WHAT S MISSING? The administration s proposed homeland security budget points to a serious disconnect between the ambitious agenda set forth in its strategy and the resources it appears willing to make available to pay for it. Carrying out the homeland security strategy will not come cheaply. There certainly will be some savings in overhead and better allocation of operational assets by bringing the frontline agencies into a new department. But many of these agencies have been operating under serious manpower, information technology, training, and resource constraints to start with. They are not in a position to do more with less. Next, everyone must adopt more realistic expectations concerning the risks and transitional costs associated with carrying out a reorganization plan of this magnitude. What management consultants know from conducting corporate mergers is that for the first eighteen months, in most instances, costs go up, performance declines, and experienced people leave. Building this new department will be hard. For instance, achieving better alignment among the disparate information networks will be complicated by the fact that many of the rickety legacy systems that these agencies rely on were built more to serve as repositories of information then to support field operations. As such, there are technical, regulatory, and statutory barriers that confound sharing and mining data. Also, many of the transitional issues associated with migrating into the new department are going to place a very serious strain on the available management resources and capabilities, particularly at the middle management level. Managing organizational change is a skill set that is rarely called upon in the federal bureaucracy. The new department leadership will find that its managers may be competent at the tasks they are assigned to do, but risk-averse when it comes to finding creative ways to work around organizational rules designed for another era or purpose. Consequently, the many gray area operational and administrative issues that arise with any merger invariably will be pushed upstairs for resolution. The front office will have a difficult time not becoming ensnared in the seeming minutia while attempting to focus on developing and executing the overall strategic direction. In short, students of organizational process and bureaucratic politics are right to raise a cautionary note that the presumed benefits of government reorganization always should be carefully weighed against the costs and risks associated with accomplishing it. The stakes in this particular reorganization effort are particularly high since there may well be another terrorist attack before the new department hits its stride. But trying to work within the existing architecture that left us so 4

5 exposed on September 11 in the first place and largely has flailed along since then clearly presents its own risk as well. And while the terrorist threat has not gone away, our recent successes in disrupting al Qaeda may provide us with the only window for the foreseeable future for making the somewhat painful transition. The strategy and the new department also need to give greater attention to having a workable command structure to support the operational imperatives of the department. As in the defense department, the operational agencies will need a direct line to the national command authority in national emergencies. Assistant secretaries and under secretaries are important for dealing with the administrative and policy oversight of these agencies, but there needs to be a more streamlined chain of command when it comes to making decisions where thousands or even millions of American lives may be at stake. What the Homeland Security Department needs is its own version of the Joint Chiefs of Staff who report directly to the secretary and whose chairman sits as a statutory advisor on the President s Homeland Security Council. As with the armed services, the agency heads would assemble as Joint Chiefs on operational matters, and report to their service undersecretary on non-operational issues. The bottom-line is that the nation will gain little in the way of added security in times of emergency if the new department is run strictly like a federal bureaucracy. Perhaps the most critical area to be worked out in pursuing the homeland security mission is how to resolve the inherent duality between domestic and global security. Take the case of seaport security. Ports are, in essence, nodes in an international transport and logistics network in which cargo is loaded on or unloaded from one mode a ship to or from other modes trucks, trains, and, on occasion, planes. Therefore, seaport security always must be pursued in the context of transportation security. In other words, efforts to improve security within the port requires that parallel security efforts be undertaken in the rest of the transportation and logistics network. If security improvements are limited to the ports, the result will be to generate the balloon effect ; that is, pushing illicit activities horizontally or vertically into the transportation and logistics systems where there is a reduced chance of detection or interdiction. Also, port security initiatives must be harmonized in a regional and international context. Unilateral efforts to tighten the security of U.S. ports without commensurate efforts to improve security in the ports of our neighbors will lead shipping companies and importers to port-shop ; that is, to move their business to other market-entry points where their goods are cleared more quickly. Thus the result of unilateral, stepped-up security within U.S. ports could be the erosion of the competitive position of important U.S. ports while the locus of the security risk simply shifts outside of our reach to Canada, Mexico, or the Caribbean to ports such as Halifax, Montreal, Vancouver, and Freeport. Finally, U.S. ports are among the most critical parts of America s infrastructure. The Port of Los Angeles and the port in Long Beach, for instance, import 44 percent of all the maritime containers that arrived in the United States in Collectively, containerized shipments account for 90 percent of all the general cargo imported by U.S. firms who are increasingly dependent on outsourcing and just-intime delivery systems to sustain their competitiveness. Accordingly, the seaports cannot serve as a primary line of defense in an effort to protect the U.S. homeland. The last place we should be looking to intercept a ship or container that has been coopted by terrorists is in a busy, congested, and commercially vital seaport. The complexity of the seaport security agenda highlights the fact that in the end, organizing for homeland security is really a subset of the broader challenge of how we work to ensure that security is an organic part of the global networks upon which the United States and the international community depends and that criminals and terrorists will increasingly target or exploit. The events of September 11 should have undermined fatally the prevalent myth of the 1990s that less is more in advancing globalization. Managing complex, concentrated, and interdependent systems require protocols and the means to ensure those protocols are being abided by. Done smartly, this can be accomplished must be accomplished by robust partnerships between the private and public sector and with greater 5

6 levels of international cooperation. This cannot be done in an organizational vacuum where agencies charged with protecting the homeland and agencies responsible for America s overseas economic, security, and diplomatic interests see themselves as responsible for managing separate issue portfolios. Security is everyone s business. When both the threat and its consequences refuse to be mindful of tidy national jurisdictions, we cannot afford to have a federal government and a national security apparatus that acts as though there is a firm line of demarcation between domestic and international affairs. Breaking down the barriers between domestic and foreign and chipping away at agency cultural blinders as well will require a substantial and institutionalized investment in providing career personnel with advanced education opportunities, much on the model of the command and staff colleges and senior service schools operated by the Department of Defense. Most of the agencies being merged into the new department have relied heavily on on-the-job-training and promotions from within on the basis of time-in-grade. This approach is clearly out of step with the much more complicated department mandate that requires that managers have the conceptual tools and knowledge base to see their work within the broader context in which it now lies. The new department requires a particular emphasis on liaison work with its national security, economic policy, and foreign affairs counterparts. An appropriate target is for 10 percent of its authorized headquarters compliment to draw from men and women detailed from these external communities, while an equal number of homeland security personnel serve in assignments outside the department. Each of the agency heads should have a senior State Department and Central Intelligence Agency advisor much like theater commanders-in-chief receive. The intelligence and warning function of the new department would do well to create an entity modeled after the State Department s Bureau of Intelligence and Research. The idea is to support the department s mission with people who can provide expert, independent, interpretive analysis of domestic and global developments that impact upon the homeland security mission. This group should be tasked with providing the Secretary of Homeland Security with timely, objective assessments, free of policy prescription or preferences, drawing on both open- and closed-source intelligence, tracking trends within the critical global networks that are likely to be exploited or targeted by terrorists, and informed by interaction with U.S. and overseas scholars. These analyses should not be subject to approval by other parts of the department or require formal coordination with other components of the intelligence community. In the end, we must come to grips with the sobering reality that the events of September 11 revealed to the world that America is both very exposed and poorly prepared to respond to catastrophic terrorist attacks. Our present and future adversaries are almost certain to capitalize on that fact. The stakes are extremely high and we face this new age with government institutions and security capabilities that are ill-suited to the new imperative. We do not have the luxury of engaging in the kind of government reorganization process that would earn high marks in a public policy school. Instead we are working with a ticking time bomb. If we try to avoid making painful and admittedly imperfect choices now, in the aftermath of future terrorist attacks the choices will be a good deal more unsavory. To surrender the initiative to our adversaries is to expose ourselves to the worse kind of public policy; that is, the kind that is formulated in the aftermath of events when Washington is being judged as having done too little, too late to provide the core function of the government to assure the safety and security of its people. 08/07/2002 All of the publications for this project, along with additional Homeland Security information are available at For more information please contact Tina Doody at or doody@tcf.org. 6