If Congress doesn’t act before February 27, the Department of Homeland Security is going to run out of money and go into a partial shutdown. (Eighty-five percent of employees would still be working, but they wouldn’t be getting paid.) Congress doesn’t appear to have a plan for action; as of last week, before it broke for recess, House and Senate lawmakers were each telling each other to do something. Meanwhile, politicians in both parties have already skipped to the step where they blame the other party for the possible shutdown — making them seem pretty resigned to it happening. House Speaker John Boehner said on Sunday he’s “certainly” ready for a DHS shutdown.
It helps that both parties think they can win on the politics of a shutdown. Democrats see this as a replay of the government shutdown of 2013, when congressional Republicans tried to undo a major Obama administration policy (then Obamacare; now the president’s executive actions on immigration) as a condition of keeping the government open. Republicans, for their part, appear to believe that because the Senate’s Democratic minority is filibustering their funding bill, Democrats will take the blame — though there’s little indication that they would become willing to roll back all of Obama’s executive actions to end a shutdown. It’s also not clear if Republicans could get a critical mass of support within their own party for anything less.
But the nonchalance with which both parties are treating the prospect of a Department of Homeland Security shutdown raises a big policy question: why does the department even exist?
The answer is that it shouldn’t, and it never should have. DHS was a mistake to begin with. Instead of solving the coordination problems it was supposed to solve, it simply duplicated efforts already happening in other federal departments. And attempts to control and distinguish the department have politicized it to the point where it can’t function smoothly — and might be threatening national security.
This isn’t to say that DHS should be fully liquidated. The argument is there’s no reason for it to exist as its own department when it can be reabsorbed into the various departments (from Justice to Treasury) from which it was assembled.
Since neither side is fighting to make the case for DHS, it’s as good a time as any to look back over the agency’s decade-plus-long history, and assess how the department’s actually worked. The answer appears to be that the problems built deep in the department haven’t aided national security — and might have damaged it.
DHS was doomed from the start
Tom Ridge, the first DHS secretary, looks like he’s about to high-five President Bush — but the White House left him hanging in more ways than one. (Mike Theiler/Getty)
“I don’t think (George W.) Bush was ever excited about the department,” former Democratic member of Congress Jane Harman told The New Republic in 2009. But because it was “politically expedient,” his White House went ahead with building a proposal for the new department in spring 2002 — and rushed the process, possibly to distract from revelations that the intelligence community could have prevented 9/11 if it had coordinated the information it already had.
If the point of DHS was to consolidate disaster prevention (whether natural or terroristic) and response under one roof, it failed miserably.
The process for deciding which existing agencies would be moved to DHS, and which ones would stay in other departments, was haphazard at best. According to a 2005 Washington Post article, the agency that supplies prosecutors in immigration court cases was moved to DHS; the agency that supplies immigration court judges, on the other hand, stayed in the Department of Justice. (The reason: the person in charge, a Harvard security expert working for Secretary-to-be Tom Ridge, simply hadn’t known immigration courts were a thing, so hadn’t looked for them.) When the White House team wanted a research lab for the new department, one of them phoned a friend to ask which of the Department of Energy’s labs they should take — according to the Post, the team “did not realize that he had just decided to give the new department a thermonuclear weapon simulator.”
The department’s biggest problem, however, was that it completely failed to address the single biggest pre-9/11 counterterrorism failure. In fact, it made it worse. The 9/11 Commission Report (which came out after the creation of DHS) cited failure to share counter-terrorism intelligence and strategy as one reason the attacks succeeded. According to a 2011 Cato Institute report, the two primary agencies it singled out were the FBI and the CIA — neither of which was moved to DHS. (The FBI is still part of the Department of Justice; the CIA is still an independent agency.) So now, counterterrorism work is being done by agencies in three different departments.
A department of copycat programs
Just like this image of the US, counterterrorism responsibilities are cobbled together from a bunch of departments in the federal government. (Jim Watson/AFP)
This hasn’t stopped DHS from trying to develop its own security capacity. It just means that whatever DHS does is already being done elsewhere in the government. And that duplication and fragmentation has made the national-security apparatus even harder to manage.
Take the example of equipment grants to state and local law enforcement. There were already two different federal programs to help police departments get equipment: the Department of Defense’s 1033 program, which sends out surplus military gear to law enforcement (and requires they use it within a year), and the Department of Justice’s Byrne grant program. But DHS now has its own set of grants to allow police departments to purchase military and other equipment. It’s supposed to be used for counterterrorism, but (just as with the other grant programs) police often end up using the equipment for routine drug enforcement.
And as a recent White House report pointed out, having three different departments giving resources to local police has made it harder to track how those resources get used. If the Department of Justice, for example, finds out that a police department has been misusing funds or violating the constitution, it can cut off DOJ grant money — but the police department can turn around and apply for help from the Department of Defense and DHS.
Or think of “fusion centers,” regional hubs supported by DHS to share information among multiple federal agencies and between state, local and federal law enforcement. The fusion centers aren’t limited to sharing information about terrorism (they’re also supposed to monitor other types of crime), but it’s definitely a big component of their mission. The problem is that the FBI already has Joint Terrorism Task Forces to investigate terrorism, and Field Intelligence Groups to share information about it. In a 2013 study, the Government Accountability Officelooked at eight cities, and found that the fusion centers in all eight cities overlapped at least partially with the FBI’s counterterrorism work — and in four of them, there was nothing the fusion centers did that the FBI wasn’t already doing. (There are also other things within DHS that overlap with fusion centers’ other purposes.)
“I don’t know why I need to be here, either!” (Karl Gehring/Denver Post)
That means that at best, DHS’ coordination work is redundant: a 2012 report from Republican Senator Tom Coburn (R-OK) found that over a quarter of terrorism-related fusion center reports “appeared to duplicate a faster intelligence-sharing process administered by the FBI.” (That’s in addition to the reports that were based on publicly available information.) Because of that redundancy, dismantling DHS wouldn’t necessarily help civil liberties — anything DHS is doing that infringes on them is also being done by other departments. But, just like with police grants, consolidating the agencies that might be infringing on civil liberties will at least focus efforts to hold them accountable.
At worst, DHS’ work with fusion centers is actually hampering information sharing. A 2007 ACLU report on fusion centers explained how this would work:
Most likely what is taking place is a power struggle in which federal agencies seek to turn fusion centers into “information farms”—feeding their own centralized programs with data from the states and localities, without providing much in return. The localities, meanwhile, want federal data that the agencies do not want to give up. For federal security agencies, information is often the key currency in turf wars and other bureaucratic battles, and from the days of J. Edgar Hoover they have long been loathe to share it freely.
Those turf wars also happen between federal agencies, including between the FBI and DHS. In 2009, a Homeland Security Today column warned that “we’re operating the way things were before 9/11, where we uncovered the dots, but don’t connect them in time.”
Resistance from Congress and from its own employees
DHS has managed to distinguish itself from the other government agencies doing similar work — by becoming extremely politicized, both in its dealings with Congress and internally. It’s become part of DHS’ structure — again, in ways that have threatened national security.
The department has had to deal with so much congressional “oversight” that it’s become unproductive. As of fall 2014, more than 90 congressional committees and subcommittees had some sort of oversight responsibility over some portion of DHS. For comparison, the Department of Defense has about 30 committees or subcommittees with oversight responsibility.
DHS Secretary Jeh Johnson looks like he wants to be basically anywhere else. Can you blame him? (Saul Loeb/AFP)
DHS officials need to spend enormous amounts of time preparing for congressional hearings and delivering research reports to members; that’s time that can’t go into directing DHS strategy, or managing the department. As former DHS Secretary Michael Chertoff said in a2013 Annenberg Public Policy Center report, this can actually defeat the purpose of congressional oversight: “either the department has no guidance or, more likely, the department ignores both because they’re in conflict. And so the department does what it wants to do.”
But what does the department “want to do”? That often depends on whether “the department” means officials in Washington, or agents in the field. At DHS, the two groups are often in open conflict. Throughout President Obama’s presidency, for example, Immigration and Customs Enforcement agents have been vocally opposed to any effort from DHS leadership to reduce the risk of deportation for some unauthorized immigrants. So when DHS leadership tried to target immigration enforcement by issuing memos to ICE field offices about who they should and shouldn’t “prioritize” for deportation, the offices often resisted or ignored those instructions — preventing the administration from actually being able to implement its policies. (As I’ve written before, this is arguably the biggest reason that the administration’s shifted to granting “deferred action” to unauthorized immigrants, in 2012 and again in 2014.)
This intra-agency tension is likely a big reason that DHS agencies routinely rank near or at the bottom of the federal government in employee morale. (In the latest survey in December 2014,DHS ranked lowest among “large agencies,” and ICE and two other DHS agencies shared the bottom three slots among all 314 agencies.) But it’s also a security problem.
After repeated security breaches in fall 2014, former Secret Service agent Dan Emmett wrote for Vox about the problems with the agency’s culture. The culprit he identified: the move from the Department of the Treasury to DHS. After that move, he said, the agency got politicized — and Secret Service leadership stopped telling White House staff when letting the president do something (like participate in a landing on an aircraft carrier) was a bad or unsafe idea.
DHS’ “essential” employees aren’t at department headquarters
At least one member of Congress, Rep. John Mica (R-FL), is talking openly about dismantling DHS. That’s partly a smokescreen for a fight about the labor rights of DHS employees — which has been ongoing since Congress passed the Homeland Security Act in 2002, and decided the creation of a new department justified stripping a bunch of rights from the workers who’d be staffing it. (Many of DHS’ labor regulations were later struck down in court.)
But Congress shouldn’t let a partisan battle over labor relations distract them from taking a hard look at whether they still believe DHS is necessary. After all, the attitude of many members of Congress suggests that, while they’re committed to many of DHS’ functions, they’re not as committed to the bureaucracy that oversees them.
Sure, when it’s time to blame the other party, members of Congress are playing up DHS’ importance: Sen. Barbara Mikulski (D-MD) called the shutdown fight “parliamentary ping-pong with national security,” while Sen. Mark Kirk (R-IL) suggested building coffins outside the offices of Democratic Senators if a terrorist attack happened during the shutdown. But when they’re talking about the actual consequences, Republicans, in particular, emphasize that over 85 percent of DHS employees would keep coming to work as “essential” government workers even if the department were shut down. “It’s not the end of the world if we get to that time,” Rep. Mario Diaz-Balart (R-FL) told Politico, “because the national security functions will not stop.”
Those 85 percent are mostly front-line government workers: border agents, TSA screeners, etc. They’re employees of the agencies who existed before DHS, and would continue to exist if DHS were dissolved. The employees at DHS headquarters, providing the centralized bureaucratic glue that’s supposedly so important to coordinating our national security strategy? They’d be staying home in the event of a shutdown. The department’s plan for the 2013 government shutdown had only 10 percent of the staff of the Office of the Secretary and the Office of the Undersecretary for Management “exempted” from the shutdown; 50 percent of the office of Analysis and Operations; and 57 percent of the National Protection and Programs Directorate (which didn’t exist pre-DHS but encompasses a few pre-DHS offices).
Either those offices are fundamental to “national security functions,” or they’re not. Given the department’s track record since its formation, Diaz-Balart is probably accidentally correct: it’s not actually essential to national security that DHS, as a department, be running on a daily basis. But if he and other members of Congress are really so convinced that that’s the case, they need to seriously consider disbanding DHS for good.
CORRECTION: This article originally said the CIA is part of the State Department. It’s an independent agency. (It’s still not part of DHS, though.) The article also incorrectly stated the date of Annenberg Public Policy Center’s oversight report; it was published in 2013.