By Jerome H. Kahan

Abstract

In forming the Department of Homeland Security (DHS), many of the twenty-two entities transferred to the new Department brought with them a smorgasbord of non-homeland security responsibilities, such as processing legal immigration and enforcing immigration laws, intercepting illegal cross-border trafficking in drugs and arms, enforcing our customs regulations, and keeping our waterways safe. How DHS has operated with its “split personality” has not become a prominent issue. There remains a growing risk, however, that efforts to manage non-homeland security activities might compromise the department’s main job of protecting against terrorism and responding to terrorist attacks and natural disasters as well as accidents with national implications. It is not too late for DHS to focus squarely on this issue.

INTRODUCTION

Is it possible to envision a new Cabinet Department urgently created in the post-9/11 context to enhance our homeland security also being given additional non-homeland security responsibilities? Whether or not this seems to make sense, many of the agencies transferred in 2002 to the new Department of Homeland Security (DHS) because of their homeland security responsibilities also brought with them a smorgasbord of non-homeland security obligations.

How DHS handles its homeland security and non-homeland security responsibilities has not become a prominent issue during the past decade – at least in the public domain. Yet this issue has been living what might be characterized as an “underground life” – buried in the annual DHS budget. Here we find detailed tables showing how each overall budget is allocated to homeland security functions versus non-homeland security activities, with breakouts for some twenty different DHS organizational units. No rationale is given for why and how these allocations are made.[1]

The nation is facing an era where both terrorist threats and natural disasters are becoming more dynamic and dangerous. Apart from contributing to bureaucratic and budgetary confusion, there remains a growing risk that efforts to manage non-homeland security activities might compromise the Department’s main tasks of protecting the nation against terrorism, possibly involving attacks with weapons of mass destruction (WMD), ensuring effective responses to terrorist attacks that do occur, and preparing the nation to deal with natural disasters and accidents of national consequences.

This essay examines the dual responsibilities of DHS and what this duality means for the department’s ability to meet its legislated mandate. Complicating this issue is the fact that no authorized definition has been reached on the meaning of the term “homeland security” that distinguishes between homeland security and non-homeland security responsibilities.[2]

THE CREATION

The Homeland Security Act of 2002 (the Act) established DHS on November 25, 2002. This constituted the most diverse merger of federal functions and responsibilities the nation has ever experienced, incorporating twenty-two government entities into a single organization.[3] Congress would have control of DHS – its budgets, personnel, and missions.[4]

In addition to absorbing the agencies transferred to the new department, DHS also established new headquarters units for management, science and technology, intelligence and analysis, critical infrastructure protection, policy, operations, and other functions. Many critical agencies or offices with homeland security responsibilities were not moved to the new department and have to this day remained outside its official jurisdiction.[5]

The process by which entities were chosen to be transferred to DHS was complicated and not fully understood in the outside world. There was intense pressure to take urgent and dramatic action after 9/11. Political and bureaucratic factors, as well as substantive considerations, came into play. As put by one expert,

Legislators first decided which programs should not be transferred to the newly created DHS… on a political basis rather than a sound cost benefit analysis. …It appears that the only real question asked then was ‘in’ or ‘out.’  As it happened, large homeland security items were left out of DHS, while some small items not related to homeland security were incorporated into DHS, perhaps because this made the programs less likely targets for future cuts.[6]

As a result of these and other factors hard to fully discover, the department inherited an odd array of responsibilities spread across its major headquarters organizations and operating components.

Legislated Responsibilities

The primary mission of the Department, as expressed in the Homeland Security Act, SECTION 101 (b) is to

(A) Prevent terrorist attacks within the United States;

(B) Reduce the vulnerability of the United States to terrorism;

(C) Minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States;  and

(D) 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.[7]

Because the Act was a direct result of the 9/11 terrorist attacks, threats to the homeland are centered on terrorism (parts A, B, C). While fighting terrorism is priority number one, DHS is also given responsibilities for “natural and manmade crises and emergency planning” (part D).[8] It took Hurricane Katrina in 2oo5 to remind the nation of the high consequence dangers of such non-terrorist instigated threats to the lives and economic well being of the nation.

A little known part of Section 101 of the Act (part E) presents a surprising caveat, requiring the department to ensure that in carrying out its non-homeland security functions, there should be no lessening of DHS ability to execute its primary homeland security obligations, except through an explicit action of Congress. This represents a legal alert by Congress for DHS to protect its inherited non-homeland security responsibilities from infringing on the main homeland security jobs for which is was created.

Homeland Security Missions

Annual budget requests offer the opportunity for DHS, at the secretary level, to present the strategic underpinnings of its budget—not only how the funds are to be spent, but why. From FY2004 forward, DHS has sent its annual budget request to Congress in the form of a Budget-in-Brief (BIB) transmitted by the secretary of Homeland Security. [9] In their basic design, these annual documents seek to assure the American people and Congress that the department’s primary mission is the protection of the nation, mainly against terrorist threats and also in mitigating the consequences of major natural disasters and manmade accidents. In so doing, these BIB have relied on the following missions to prioritize annual budgets.[10]

Mission 1: Prevent terrorist attacks by disrupting planning activities and intercepting attacks before they can cause damage. While motivations need to be understood and changed, the near term focus is to thwart dangerous goods as well as dangerous people from having the means and methods to execute terrorist attacks. [11] Priority is given to halting the transportation, movement, or use of chemical, biological, radiological, and nuclear materials and capabilities; and reducing vulnerability of critical infrastructure and key assets, essential leadership, and major events. This mission also includes such non-homeland security tasks as intercepting drugs and other forms of illegal smuggling of drugs, arms, and human beings.

Mission 2: Securing and managing our borders. Secure the nation’s air, land, and sea borders against movements in and out of the country by terrorists and terrorist-related materials. This mission also seeks to guard against all forms of illegal cross-border activity, while enforcing customs regulations and facilitating lawful travel and trade.

Mission 3: Enforcing and administering our immigration laws. Effective and smart enforcement of US immigration laws, with emphasis on stopping individuals with potential terrorist indications or connections from crossing our borders, while streamlining and facilitating the legal immigration process. This also includes identifying and removing criminal aliens who pose a threat to public safety and targeting employers who knowingly and repeatedly break the law, as well as enforcing visa regulations such as students overstaying or not complying with their eligibility criteria.

Mission 4: Safeguarding and securing cyberspace. Lead the federal effort to secure civilian government computer systems and works with industry and state, local, tribal and territorial governments to secure critical infrastructure and information systems of significance to the nation. This mission analyzes and reduces cyber threats and vulnerabilities; distributes threat warnings; and coordinates response to cyber incidents affecting computers, networks, and cyber systems.

Mission 5: Ensuring resilience to disasters. Coordinate the comprehensive federal response in the event of a terrorist attack, natural disaster, or other large-scale emergency with national significance. FEMA leads this effort, working with federal, state, local, community, and private sector partners to ensure a swift and effective recovery effort.

Mission 6: Providing Support to the Homeland Security Enterprise. DHS budget documents also discuss an additional group of of missions. These include providing essential support to national and economic security with emphasis on non-homeland security issues such as support to national and economic security, including collection of customs revenue, maintaining safety and security of the marine transportation system, preventing exploitation of children, providing law enforcement training, and coordinating Federal response to global intellectual property theft.[12]

A recent report to Congress notes that “Not all of the missions of DHS are officially “homeland security” missions” and goes on to say that

Some components have historical missions that do not directly relate to conventional homeland security definitions, such as the Coast Guard’s environmental and boater safety missions, and Congress has in the past debated whether FEMA and its disaster relief and recovery missions belong as a part of the Department. Some aspects of crime and justice could arguably be included in a broad definition of homelands security. Issues such as the role of the military in law enforcement, monitoring and policing transfers of money, human trafficking, explosives and weapons laws, and aspects of foreign policy, trade, and economics have implications for homeland security policy.[13]

Mission Priorities

The new agency was expected to focus on its main set of responsibilities – dealing with terrorist threats and responding to major natural disasters—with the funds provided by Congress, while ensuring that the inherited non-homeland security obligations were met. To support this tw0-track policy, DHS budget documents would be expected to pay special attention to the breakout of funds for homeland security and non-homeland security missions.

The FY 2004 BIB, while far less detailed than all the subsequent formal budget requests, does presents a prominent pie chart with an associated generalized discussion of how this requested budget is allocated between homeland and non-homeland security responsibilities, without defining these two areas.  A prominent pie chart in this document shows that two-thirds of this all-important first official DHS budget was allocated for homeland security, leaving a whopping one-third to support its “other responsibilities.”[14]

All of the subsequent BIB contain tables showing the detailed allocation of homeland security versus non-homeland security budget items – on an overall basis and also for each of the department’s organizational units.[15] Yet, in summarizing, explaining, and justifying each budget, no references is made to issues surrounding the dual nature of the Department’s responsibilities. None of the post FY2004 BIB even acknowledge, let alone discuss, the information in the resource tables showing allocation of funds for the two different sets of DHS responsibilities. A review of other DHS documents, speeches, and testimonies did not find discussions of the department’s dual set of responsibilities and how these are managed – nor have such issues been seriously addressed within academic circles. [16]

BUDGETS MAKE THE DIFFERENCE

The DHS budget process – how dollars are actually allocated – follows an undefined and in some ways questionable separation of funds for homeland security and non-homeland security functions as presented in the BIB tables developed for each annual proposed budget. However, what is not shown is the key link between budgets and missions – that is, how each annual budget supports the six missions discussed earlier, which are expressed in a manner that does not separate homeland security sub-missions from non-homeland security obligations.

Besides causing confusion over the department’s primary and secondary responsibilities, relying on mixed missions makes budget allocations to these two different areas of responsibilities difficult to develop and defend, especially with no analytic rational given on how to balance homeland security functions and non-homeland security activities.

At the same time, we can point to the old adage that “money makes the world go ‘round,” suggesting that the way in which annual BIB funding allocations break out homeland versus non-homeland security funds provide de facto “definitions” of these two different sets of responsibilities.[17]

Not surprisingly, examining the homeland security/non-homeland security tables across the sweep of departmental BIB, a reader might either agree with or question the basis for placing an organizational unit’s budget in the homeland security bin, the non-homeland security bin, or divided between the two. For example,

• Most readers would agree that the complete budgets for TSA (Transportation Security Agency) and DNDO (Domestic Nuclear Detection Office) ought to support homeland security and that the budgets of USCG (United States Coast Guard) and CBP (Customs and Border Protection Patrol) should be allocated to both functions.
• Many readers would question why the budget for FEMA (Federal Emergency Management Agency) allocates twice as much funding to non-homeland security than to homeland security functions, when it has lead responsibilities for homeland security preparedness and response in the face of natural disasters and accidents of national significance.
• Finally, others would ask why USCIS (United States Customs and Immigration Service) has its entire budget allocated to non-homeland security when the process for legal immigration does in fact help keep dangerous people out of the country.

At the same time, finding feasible alternate solutions is not easy. While developing separate sets of missions may be desirable, this would not be easy to implement. As a practical matter, it may not be hard to keep USIS separated with the full time responsibility for the non-homeland security task of immigration administration. However, it would be tricky to separate ICE, CBP, USSS, and FEMA into the two different areas when they have major homeland security responsibilities but also some non-homeland security jobs.

Furthermore, it would be very tough to separate out the USCG’s virtually equal treatment of homeland and non-homeland security responsibilities with heavy reliance on intrinsic dual capability systems and personnel. Finally, under the Act, Congress would need to be consulted about changes in DHS missions.

An important analysis by DHS touched on the question of homeland versus non-homeland security responsibilities and offered the following observation:

DHS performs a number of […non-homeland security] services and functions that are complementary to its homeland security mission responsibilities… typically performed with hybrid capabilities – assets and resources capable of performing multiple missions. These complementary activities are critical to fulfilling other national interests and are often intertwined with and mutually supporting of homeland security activities.[18]

This statement is true, but only to a point, as in the case of dual use systems offering cost-effective solutions to the USCG, CBP, and other units with both homeland security and non-homeland security responsibilities. However, it does not address the key problems raised by the fact that many non-DHS activities are competitive, not complementary, with the Department’s major homeland security responsibilities and take time and resources away from managing these security issues.

Finally, in addition to the non-homeland security obligations already assigned to DHS, a host of further “concerns” have been suggested as falling within the domain of homeland security. Examples of these include environmental degradation; growing federal fiscal debt; inferior math, science, and engineering education; decaying physical infrastructure; dependence on foreign energy; foreign ownership of US debt; an aging population; obesity; inadequate health care; drug-resistant disease; and “human security” (e.g., access to clean food and water, freedom from economic exploitation, protection from arbitrary violence by the police, gangs, or domestic partners, etc.).[19]  Such evolving expansions of DHS responsibilities would warrant an amendment to the Act. However, this cannot be ruled out if the initial impetus to create a Department of Homeland Security fades and attention turns to its present set of non-homeland security responsibilities plus what seems to be a virtually unlimited list of other concerns.

THE REAL RISK

It is at least fair to ask the question of whether the non-homeland security responsibilities of DHS – now or in the future – may be taking up budget allocations and leadership attention at the expense of conducting the homeland security missions the department was created to address.

From the origins of DHS to the present, homeland security and non-homeland security responsibilities became mixed and mingled. This has generated confusion and complexities in developing and justifying the capability outputs of DHS organizational units and in understanding and justifying the annual DHS budget. It has also created the impression that homeland and non-homeland security responsibilities are of equal importance, which is not the intent of the Act that created the department.

This situation can lead to a growing risk that attention to non-homeland security responsibilities, which is not the fundamental rationale for creating DHS, might endanger provision of critical funds needed in the future to support homeland security responsibilities, which is what the department is supposed to do.

In moving ahead, it is important not to lose sight of the main reason why managing the dual responsibilities of DHS, with homeland security tasks intermingled with non-homeland security obligations, represents a significant challenge deserving serious attention.

It is not simply the fact per se that disparate missions compete for policy attention and resources. This is far less of a problem than the growing risk that such mixing can diffuse mission responsibilities. Traditional homeland security missions loosing funding and priority as non-homeland security activities are given relatively more funding and senior official attention and energy.

Whatever clever and to some extent credible ways are found to link aspects of immigration administration and various approaches for managing cross-border criminal activities to homeland security, DHS needs to keep its eye on the ball and ensure that terrorist threats, natural disasters, and accidents of major national significance are given top priority by the department. [20]

The issue of homeland security versus non-homeland security responsibilities for DHS has not yet become a prominent issue in the department, the homeland security enterprise (HSE), the Congress, or the academic community. Although a breaking point may not have been reached, however, this question cannot remain unattended. Recent trends sugggest this year and the next may represent a turning point in the homeland security/non-homeland security balance.[21]

The possibility exists that future ratios of homeland security to non-homeland security annual DHS budgets might move outside the range within which they have fallen for the past decade – either more than three quarters of the budget for homeland security or more than one third for non-homeland security. For many, the latter is the real issue, with particular concern in a period of tight or reduced DHS budgets that non-homeland security responsibilities might somehow take attention and resources away from DHS’s homeland security responsibilities in the future.

WHAT TO DO?

Most significant is the absence of discussions in the Quadrennial Homeland Security Report (QHSR) that break out the homeland security versus non-homeland security responsibilities of DHS. Not addressing this issue in such a seminal document can have the effect of making the problem more complex by treating the department’s inherited missions as, seemingly, all of equal importance and all connected to homeland security.[22]

However, there is a good chance that this problem will become both more complex and more important within the next few years. Concerns over budget constraints might exacerbate tensions between (1) addressing new patterns of terrorist behavior and exhibiting more concern over major natural disasters and (2) the need for more funding to support potential changes to immigration laws and greater public interest in stopping drugs and all forms of dangerous cross-border trafficking over land, sea, and air.

We need to address this issue now and formulate a strategy going forward that enables DHS to execute its primary responsibility for homeland security missions while carrying out its non-homeland security activities as a secondary set of obligations. This issue might well gain attention as anticipated budget cuts across federal agencies go into effect, even as the frequency and intensity of natural disasters affecting the nation continue to increase and the risk of WMD-related terrorist strikes on the homeland grows.

Next year, the second QHSR is scheduled to be produced. This interagency effort, coordinated by DHS and taking into consideration stakeholder interests at all public and private levels, offers an opportunity for the Executive Branch and Congress to revisit how DHS was formed and what organizational changes might be necessary to make the nation’s homeland security effort more effective. Rather than creating our present structure under the pressure induced by 9/11 and shaped by many political factors, it is now time to learn from over a decade of experience

Whether or not circumstances force this issue to the front burner, dealing with this issue is far overdue. We now have the opportunity to formulate a strategy going forward that enables DHS to effectively execute its primary responsibilities, while properly carrying out its inherited obligations. Suggested areas where actions need to be taken are offered below.

• DHS leadership needs to make it clear what is means by “homeland security.” Is it the basis upon which annual DHS budgets are allocated into these two broad areas of responsibility? If so, how to explain certain anomalies? Any effort to develop an agreed meaning must recognize the need for flexibility to change with circumstances. The purpose is to prevent these from expanding in the future and risking a reduction of resources and attention given to DHS’s primary concerns of terrorism and major natural hazards.[23] To gain approval across the whole HSE, this effort could be part of preparations for the next QHSR via an interagency effort led by DHS.
• The DHS annual budget needs to provide an analytically based rationale for why and how separate homeland and non-homeland budget allocations are made. The annual DHS Fiscal Year budget requests contain proposed funding for homeland security functions and non-homeland security activities, overall and by each major organizational unit. These figures can be translated into a ratio of the budget allocated for homeland security over that for non-homeland security.

• DHS should explore organizational adjustments or updates. Consistent with its charter to implement inherited non-homeland security missions, a more coherent decision-making process is needed, assigning oversight of the non-homeland security responsibilities within DHS headquarters. Since the Department is obligated to fulfill many non-homeland security duties based on existing and transferred authorities, what is needed is either a better balance or to shift some if not all non-homeland responsibilities to other departments, enabling DHS to focus on the larger dangers posed by true homeland security threats and hazards. This shift would be geared to ensure that the department maintains a proper balance among its units in allocating resources to homeland security as its primary job, while funding to the non-homeland security responsibilities of DHS to the extent possible.
• DHS and Congress need to cooperate in resolving this issue. Aside from approving possible organizational changes in DHS in the coming era of budget austerity, Congress needs to ensure that budget reductions do not disproportionately fall on either side of the DHS dual responsibilities. If there is a need to place more resources on the homeland security side to enable certain units to more effectively execute the department’s primary job, Congress would need to be consulted on this issue of whether this is at the expense of non-homeland security funding.

In sum, it is not too late for DHS to focus squarely on the issue of how it ought to manage the odd responsibilities it was given at its creation, beginning by forming separate sets of missions and then ensuring that its organizational units can supply the capabilities needed for these missions to be effectively executed. No longer can this remain “the Elephant in the living room,” or whatever other form of metaphor best describes how this issue has managed to be largely ignored for over ten years.[24]

About the Author

Jerome Kahan has worked in the national security, arms control, and homeland security fields for more than forty years. Serving with the Department of State for twenty years, Mr. Kahan held positions on the Policy Planning staff, as deputy assistant secretary with the Political-Military and Intelligence Bureaus, and as politico-military counselor at the American Embassy in Turkey. He has been a member of the Council on Foreign Relations and the International Institute of Strategic Studies and served for ten years as adjunct professor in the School of Foreign Service at Georgetown University. Mr. Kahan holds a Master’s Degree in Electrical Engineering from Columbia University, with bachelor degrees from Queens as well as Columbia College. He is currently an independent writer and analyst, having recently been a distinguished analyst at the Homeland Security Studies and Analysis Institute in Arlington, VA. Mr. Kahan may be contacted at jhkahan@cox.net.

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This article was originally published at the URLs https://www.hsaj.org/?article=9.1.10 and https://www.hsaj.org/?fullarticle=9.1.10.

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