CHAPTER 4
HOMELAND SECURITY ROLES, RESPONSIBILITIES, AND JURISDICTIONS
International, Federal, State, and Local Government and Private Sector Responsibilities
Americans should find comfort in knowing that millions of their fellow citizens are working every day to ensure our security at every level—federal, state, county, municipal. These are dedicated professionals who are good at what they do.
Tom Ridge at his swearing-in ceremony as director, Office of Homeland Security, October 8, 2001
CHAPTER OVERVIEW
As the conclusion of Part 1 explained, the national homeland security enterprise established in the wake of the September 11 attacks is still a work in progress. This chapter outlines current organizations, programs, and principles governing domestic security and disaster preparedness and response activities developed in the United States after years of concerted effort. Included are a review of concepts driving national initiatives, a summary of the roles and responsibilities assigned to various federal agencies, and a discussion of the role of state and local governments. This is a foundational chapter for the remaining topics discussed in Part 2. It lays the groundwork for discussions about the government, private sector, volunteer efforts, and personnel protection covered in the chapters that follow.
CHAPTER LEARNING OBJECTIVES
After reading this chapter, you should be able to
1. Define homeland security and the overarching principles guiding domestic security activities.
2. Describe how the president oversees and influences homeland security.
3. Describe key operating agencies and mission of the Department of Homeland Security.
4. Understand the roles of other federal agencies, Congress, and the judiciary.
5. Describe the relationship between federal, state, and local governments.
THE NEW NORMALCY
On a crisp October morning less than a month after the 9/11 tragedies, President Bush signed an order establishing the Office of Homeland Security and introduced its director, Tom Ridge. The office was established to provide initial coordination of federal efforts for improving homeland security. Ridge would bear much of the responsibility for the effort. Twice elected governor of Pennsylvania, he quickly became immersed in the most significant reorganization of the federal government since the restructuring of the Pentagon in 1947. Within two years Ridge became secretary of the new Department of Homeland Security. The creation of that department and other federal initiatives has significantly reshaped how the United States provides for domestic security.
NATIONAL CONCEPT FOR PROTECTING THE HOMELAND
The term national security denotes the full scope of activities involved in protecting the country’s domestic and foreign interests. National security activities range from fighting wars and conducting counter-terrorism operations overseas to securing borders and combating terrorism within the United States.
Protecting the homeland (U.S. states and territories) is a matter for two components of national security—homeland defense and homeland security. Homeland defense is the traditional responsibility of protecting U.S. territory from armed invasion and external acts of aggression.1 For example, a ballistic missile fired by North Korea at the United States would clearly be an act of war and a threat to the nation. Defending against this danger would be a homeland defense mission, as would certain activities such as combat air patrols flown by the military over U.S. metropolitan areas.
Homeland security is the second and broader subset of national security primarily concerned with protecting U.S. territory. It was defined by the 2002 National Strategy for Homeland Security as “a concerted national effort to prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimize the damage and recover from attacks that do occur.”2 In short, homeland security was to focus on terrorism in the United States. These terrorist acts could include kidnappings; bombings; shootings; attacks involving chemical, biological, radiological, or nuclear weapons; cyberattacks; or other forms of malicious violence, whether perpetrated by U.S. citizens or foreigners.
The definition of homeland security was not intended to include countering terrorist attacks against U.S. interests overseas, such as U.S. military bases or embassies. Similarly, counterterrorism operations abroad, whether military, intelligence, or diplomatic measures, are generally not considered part of homeland security, though they may contribute to providing information or support for homeland security activities. Alternatively, there are overseas activities, such as certain law enforcement activities, visa issuance, and transportation security (for example, cargo inspections), that are considered extensions of or related to domestic homeland security programs.
Since 9/11 homeland security activities have also come to involve a wide range of functions and activities related to domestic security and public safety. The Department of Homeland Security’s 2010 Quadrennial Homeland Security Review Report described homeland security as “the intersection of evolving threats and hazards with traditional governmental and civic responsibilities for civil defense, emergency response, law enforcement, customs, border control, and immigration.”
ORGANIZING FOR DOMESTIC SECURITY
The structure of American governance plays a significant role in determining how the United States addresses homeland defense and security missions. Under the U.S. federalist system, power is shared between federal and state governments. The division of responsibilities is largely defined by the U.S. Constitution. In turn, these divisions prescribe duties for protecting the homeland. The federal government, for example, is charged by the Constitution with “providing for the common defense.” Thus, homeland defense is principally a federal mission and the responsibility of the Department of Defense (DOD) and the armed forces of the United States. In contrast, the Tenth Amendment to the Constitution reserves to the states and the people all power not specifically delegated to the federal government. As a result, responsibilities for homeland security, which include a broad range of activities undertaken by federal and state governments, local municipalities, the private sector (such as businesses and nongovernmental organizations), and individual citizens, are far more diverse.
THE ROLE OF THE FEDERAL GOVERNMENT
The federal government is comprised of the executive branch, Congress, and the judiciary. The executive branch fulfills its homeland security responsibilities by executing and enforcing federal laws, such as the Homeland Security Act of 2002.
Congress’s role in homeland security includes not only legislative powers but also oversight responsibilities for the activities of the executive branch.
The judiciary also has a key role in protecting the homeland. It has responsibility for interpreting the laws of the United States and how they are applied by federal, state, and local governments.
The Executive Office of the President
The president’s principal instrument for directing the policies governing the protection of the homeland is the National Security Council.
The National Security Council
The National Security Council (NSC) was established by the National Security Act of 1947.3 Its mission is to develop national security strategy and policy. The statutory members of the NCS include the president; vice president; secretaries of state, treasury, and defense; and the assistant to the president for national security affairs (the national security adviser). The chairman of the Joint Chiefs of Staff is the statutory military adviser to the council, and the director of national intelligence is the statutory intelligence adviser. The heads of other executive departments and agencies and other senior U.S. officials may also be invited to attend as needed. The attorney general (who oversees the FBI) and the secretary of homeland security routinely attend, as does the president’s adviser for homeland security and counterterrorism.
Strategy and policy are largely formulated by the president’s national security adviser and NSC staff, who vet and coordinate recommendations with the secretaries and staffs of the departments. The formal procedures governing the policy-making process are dictated by presidential decision directives. These procedures are generally consistent from one administration to the next. While the NSC sets overall policies, operations and activities to implement them are undertaken by the various departments and agencies. Coordination between the NSC staff and the departments is made through committees consisting of members of the departments. Depending on the significance of the issue and the seniority of the staff required to effect coordination, matters are referred to the Principals Committee, the Deputies Committee, or policy coordinating committees.
The NSC’s activities cover the full scope of national security matters. The council directly manages policies and strategies related to counter-terrorism operations, homeland defense, and homeland security.
While the Homeland Security Council (HSC), initially established under executive order by President Bush, was codified in the Homeland Security Act of 2002, President Obama elected to discontinue the use of the formal council (consisting of selected members of the cabinet) and merged its staff with the NSC staff. President Obama also discontinued the practice of issuing separately designated homeland security presidential directives (HSPDs). The president retained a senior adviser for homeland security and counterterrorism, whose portfolio included overseas counterterrorism policies and all domestic policies related to combating terrorism, as well as all homeland security–related activities, including border security and disaster preparedness and response.
Office of Management and Budget
Another organization within the Executive Office of the President that plays a significant role in homeland security and homeland defense is the Office of Management and Budget (OMB). Neither the NSC nor the HSC has budgetary oversight concerning programs and activities under its purview. The OMB reviews the budget submissions of the departments for compliance with administration policies and directives. As a result, while the HSC is responsible for providing strategic direction to the Department of Homeland Security and other federal agencies with respect to the challenges of domestic security, it is the OMB that ensures the appropriate level of resources is included in the president’s annual budget request to Congress to execute administration policies and strategy.
The Intelligence Community
Important to the practice of homeland security is the national intelligence community. Membership in the U.S. intelligence community is defined in Title 50 of the U.S. Code (USC), Section 401a(4). This community is led by the director of national intelligence (DNI), whose position was established under the Intelligence Reform and Terrorism Prevention Act of 2004. The director’s job is to organize and coordinate activities of the community, though each agency is independently managed. The DNI manages the National Counterterrorism Center (NCTC), which is charged with responsibility for coordinating counterterrorism operations federal-wide.
The intelligence community includes the CIA, the Defense Intelligence Agency, the National Geospatial Intelligence Agency, the National Reconnaissance Office, and the National Security Agency, as well as the National Security Branch of the FBI. Offices representing the Drug Enforcement Administration and the departments of Energy, State, Treasury, and Homeland Security are also represented. The intelligence arms of the Air Force, Army, Navy, Marine Corps, and Coast Guard are included as well.
The Department of Homeland Security
A common misconception held by many Americans is that DHS is responsible for all homeland security activities. This is far from accurate. Even at the federal level virtually every federal agency has some responsibilities. In addition, DHS has many non–homeland security responsibilities, from collecting tariffs and duties to providing immigration services and protecting U.S. fisheries. In fact, more than one-third of the department’s budget is for service missions and regulatory functions. DHS, however, does have the lion’s share of federal responsibilities for protecting the homeland, accounting for over 60 percent of annual federal spending on domestic security.
The secretariat of the department manages numerous functions directly related to homeland security. The assistant secretary for policy, for example, manages visa policies for the department. All foreign visitors, with the exception of citizens participating in the Visa Waiver Program, must obtain a visa before entering the United States. The Homeland Security Act of 2002 assigned the department responsibility for establishing visa policies, setting training requirements, and effecting coordination for the implementation of security measures.4
The undersecretary for science and technology (S&T) is the primary research and development arm of DHS. It conducts research on homeland security technologies both for the department and to support the technology needs of other stakeholders. The vast majority of research performed by the directorate is “extramural,” performed under contract by existing academic and commercial research facilities.
The undersecretary for intelligence and analysis and chief intelligence officer coordinate intelligence activities within the department and represent the secretariat in the intelligence community.
The Office of Health Affairs (OHA) serves as DHS’s principal authority for all medical and health issues and coordinates the department’s activities with the Department of Health and Human Services, the DOD, and other federal agencies.
The Office of Operations Coordination and Planning monitors conditions across the United States. The office maintains situational awareness through coordination with the operating agencies of the department; state governors and their homeland security advisers; federal, state, and major metropolitan law enforcement agencies; and critical infrastructure operators. Among its duties, the office oversees the National Operations Center (NOC), which is responsible for situation monitoring and incident management for the department. In 2011 the NOC comprised five elements: the Watch, Intelligence Watch and Warning, National Response Coordination Center (NRCC), National Infrastructure Coordinating Center (NICC), and Planning Element.5
The department includes several major operating agencies.
The U.S. Coast Guard
The U.S. Coast Guard, established in 1915, was transferred to the Department of Homeland Security from the Department of the Treasury. The service conducted a significant reorganization in 2008. With over 40,000 personnel, it has about one-quarter of the department’s workforce.
The Coast Guard performs many roles under DHS. It is the nation’s largest maritime law enforcement agency with broad jurisdictional authority, as well as significant regulatory and public safety responsibilities. Among the service’s law enforcement missions is serving as the lead federal agency for enforcing U.S. immigration laws at sea. The Coast Guard monitors maritime transit zones to interdict, but it also assists and rescues undocumented migrants. Drug interdiction is another significant law enforcement responsibility.
Among the Coast Guard’s other duties are coordinating the Maritime Operational Threat Response Plan, which coordinates the federal response to threats in the maritime domain. The Coast Guard also conducts search and rescue at sea; protects fisheries; maintains and operates the U.S. icebreaker fleet; maintains maritime aids to navigation; is responsible for marine environmental protection, including preventing the spread of invasive species and responding to oil and chemical spills; marine safety; coordinating ports, waterways, and coastal safety and security; and permitting bridge construction.
By law the Coast Guard also provides captains of the port (COTPs), who have responsibility for enforcing regulations for the protection and security of vessels, harbors, and waterfront facilities; anchorages; bridges; safety and security zones; and ports and waterways under their jurisdiction. As part of their responsibilities, they review and approve port security plans and chair local port security committees.
The service’s many regulatory authorities enable its maintenance of homeland security. For example, it has the authority to inspect shipping containers for safety and hazardous materials to ensure that containerized shipping is not used as a terrorist weapon. The Coast Guard is also the lead U.S. representative to the International Maritime Organization (IMO), the United Nations’ specialized agency responsible for improving maritime safety and preventing pollution from ships. After 9/11 the Coast Guard was instrumental in developing and securing adoption of the International Ship and Port Facility Security (ISPS) Code, an initiative to establish global standards for improving security and combating terrorist threats to seagoing vessels and maritime infrastructure. The Coast Guard also supports the DOD’s military operations overseas. In addition to its “warfighting” missions, the Coast Guard provides training assistance to foreign coast guards and maritime services.
The commandant of the U.S. Coast Guard is an admiral (a four-star equivalent). The Coast Guard’s operational force is organized under Atlantic and Pacific commands. Each is commanded by a vice admiral. The Atlantic command consists of District 1 (New England, eastern New York, and northern New Jersey), District 5 (Pennsylvania, southern New Jersey, Delaware, Maryland, Virginia, and North Carolina), District 7 (South Carolina, Georgia, eastern Florida, Puerto Rico, and the U.S. Virgin Islands), District 8 (all inland waters in the United States and the Gulf of Mexico), and District 9 (the Great Lakes). The Pacific command includes District 11 (Arizona, California, Nevada, and Utah), District 13 (Idaho, Montana, Oregon, and Washington), District 14 (Hawaii and the U.S. Pacific territories), and District 17 (Alaska).
The service also includes the Deployable Operations Group (DOG). The DOG places all specialized deployable Coast Guard assets under a single unified command. It provides tailored force packages with a mix of ships, aircraft, and specially trained forces for tactical missions. The DOG includes the National Strike Force, which manages the service’s specialized assets for responding to oil spills and hazardous materials. In addition, the DOG includes two other subordinate commands, one oriented on the Atlantic command and the other on the Pacific command. Each includes marine safety and security teams, port security units, and deployable patrol boat squadrons.
Additionally, the Coast Guard has a Coast Guard Reserve and also is supported by the Coast Guard Auxiliary, a volunteer organization. Auxiliarists perform a range of duties, from participating in search and rescue to assisting in the mobilization of the Coast Guard Reserve. Auxiliary members are in all 50 states, Puerto Rico, the Virgin Islands, American Samoa, and Guam.
Coast Guard personnel differ from the armed forces serving under the DOD. Coast Guard men and women are granted federal law enforcement authorities under Title 14 of the USC. In short, Coast Guard active duty commissioned, warrant, and petty officers can enforce federal laws on waters subject to U.S. jurisdiction, in international waters, and on all vessels under U.S. jurisdiction. Unlike armed forces serving under the DOD, the Coast Guard is exempt from the Posse Comitatus Act, which prohibits federal military forces from conducting domestic law enforcement.
The Coast Guard is one of the most respected components of the department. It was particularly well regarded for its role during Hurricane Katrina, when the service rescued over 30,000 people. The most significant controversy engendered by the Coast Guard was management of its major modernization program (the acquisition of new ships, planes, and equipment) called Deepwater. The initiative was criticized for inefficiency, cost overruns, and poor performance.
Customs and Border Protection
Customs and Border Protection (CBP) was established under the act that created the Department of Homeland Security. It combined personnel and functions from parts of the U.S. Customs and the Immigration and Naturalization Service. With over 60,000 personnel, it has over one-quarter of the department’s workforce.
CBP regulates and facilitates international trade, collecting import duties and enforcing hundreds of U.S. regulations, including trade, drug, and immigration laws. It is responsible for apprehending individuals attempting to enter the United States illegally, stemming the flow of illegal drugs and other contraband, and preventing terrorist travel and entry into the United States. CBP is primarily responsible for safeguarding U.S. land borders and enforcing U.S. laws at ports of entry, including water and air ports and land crossings.
Designated a federal law enforcement agency, CBP serves under a commissioner. The CBP maintains 20 field offices that provide oversight and support to the organization’s agents. In 2011 there were 327 official ports of entry, as well as 15 preclearance offices in Canada and the Caribbean. CBP officers at the ports of entry operate under the “one face at the border” concept, combining the inspection functions of customs and immigration, along with some agricultural inspection functions. These officers also receive antiterrorism training.
The Border Patrol is a component of CBP. It serves under the chief of the Border Patrol and is responsible for policing land borders between the ports of entry.
CBP also has an Air and Marine arm, which provides aviation and maritime support for operations and other federal law enforcement agencies.
In addition to duties at the border and ports of entry, CBP oversees a number of key programs, including Customs-Trade Partnership Against Terrorism (C-TPAT), a voluntary public-private program to improve cargo security, and the Container Security Initiative, a cooperative program to screen shipping containers bound for the United States. CBP also screens individuals entering the United States against the Terrorist Watch List, the U.S. government’s consolidated list of known and suspected terrorists.
The efficacy of border security remains the most controversial aspect of the CBP mission. Other issues have also raised concerns and provided cause for debate, such as the authority of DHS to search computers, hard drives, and memory devices at ports of entry. The management of a major technology acquisition program, the Secure Border Initiative, was criticized for cost overruns and poor management. Another ongoing issue of concern is dealing with the increasing violence, criminal exploitation (including rape and robbery), and risks of exposure to severe weather (such as dehydration and hypothermia) facing individuals attempting illegally to cross the southern U.S. border.
Immigration and Customs Enforcement
The act establishing the Department of Homeland Security also created Immigration and Customs Enforcement (ICE). It combined the personnel and functions of some of the functions of U.S. Customs and the Immigration and Naturalization Service, including the investigative and interior enforcement arms of both agencies. In 2011 ICE employed about 20,000 persons.
Operating under the director of immigration and customs enforcement, this federal law enforcement agency is charged with both the criminal and civil enforcement of all laws governing border control, customs, trade, and immigration. The agency’s investigations include terrorism, immigration crimes, human rights violations, human smuggling, drug smuggling, weapons trafficking, the movement of contraband, financial crimes, cybercrimes, and enforcement of export controls. ICE is also responsible for the detention and removal of illegal aliens.
ICE offices are located in all 50 states and U.S. territories. ICE officers are also posted in dozens of countries overseas, conducting international affairs operations and investigations. In 2011 ICE operated over 70 detention facilities in 25 states.
Operations conducted by ICE generate some of the most significant controversies. These include treatment at facilities operated by the Office of Detention and Removal and workplace enforcement activities (such as raids of businesses). In some communities, cooperation, or the lack of it, between ICE and local law enforcement authorities has also served as a source for controversy.
U.S. Citizenship and Immigration Services
This agency was created after the duties of the Immigration and Naturalization Service were transferred to the newly established Department of Homeland Security. It performs most of the administrative functions related to lawful immigration to the United States and processes for obtaining citizenship. In 2011 the agency employed over 18,000 people.
Led by a director, the agency is responsible for the administration of immigration services and benefits, adjudicating asylum claims, issuing employment authorization documents, adjudicating petitions for nonimmigrant temporary workers, issuing lawful permanent resident status, and granting citizenship.
As of 2011 the agency maintained approximately 250 offices located in both the United States and other countries. Major issues involving the agency have included backlogs of applications and policies and case decisions on asylum requests.
Transportation Security Administration
On November 19, 2001, the president signed the Aviation and Transportation Security Act, which transferred national responsibility for commercial aviation security from the Federal Aviation Administration (FAA) to a newly established agency called the Transportation Security Administration (TSA). In addition to assuming responsibility for all civil and commercial aviation, TSA assumed most federal responsibilities for oversight of transportation security. In 2003 the act establishing Homeland Security transferred TSA to the department.
TSA is most recognized for operating passenger-screening checkpoints at commercial airports around the country, a function that before 2002 was performed by private companies contracted by airlines or airport operators. TSA is also responsible for screening commercial air luggage and cargo, as well as overseeing civil aviation security (including private aircraft and cargo air transport, such as the planes operated by FedEx). These operations remain among the most controversial aspects of homeland security for reasons including concerns over the efficacy and safety of screening technologies and issues related to privacy. The agency manages key programs such as Secure Flight, which screens commercial air passenger manifests for names on the Terrorist Watch List. It also coordinates with the International Civil Aviation Organization, a specialized agency of the United Nations, to address international standards on aviation security. The TSA also oversees mass transit, surface transport (roads), rail, and pipelines.
The administrator of the TSA oversees the agency’s 16 divisions, which provide oversight of aviation (including 440 commercial airports), mass transit (over 6,000 public and private operators), rail (more than 300,000 miles of freight line and over 10,000 miles of dedicated passenger rail), surface transport (4 million miles of road, including 45,000 miles of interstate highway), and pipelines (2.2 million miles). The TSA shares some transportation security responsibilities with the Coast Guard and its maritime security role, including bridges over navigable waterways.
The major component of the TSA is the 50,000 airport screeners who operate under 150 federal security directors. The directors provide day-to-day management of federal security activities at commercial airports. The agency also oversees the Federal Air Marshal Service, a federal law enforcement agency whose officers travel armed and incognito on selected commercial passenger flights to detect and prevent hostile acts. Initially established as “sky marshals” in the 1970s, the service was transferred to DHS from the FAA.
The TSA also maintains Visible Intermodal Prevention and Response (VIPR) teams, who can be deployed to augment security and response to federal, state, and local activities. VIPR teams can include federal air marshals, surface TSA inspectors and security officers, behavior detection officers, and explosives detection canine teams.
Federal Emergency Management Agency
The Federal Emergency Management Agency (FEMA) was established by a presidential executive order in 1979. FEMA’s authorities are derived from the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, which authorizes the president to supplement the resources of overwhelmed states and localities. The president can declare a major disaster upon the request of the governor of the affected state. When DHS was established, FEMA was transferred to the department. The department in turn transferred the “preparedness” functions of FEMA to an undersecretary, but these functions were later reassigned to FEMA in 2006 by the Post-Katrina Emergency Management Reform Act (Post-Katrina Act). In 2011 FEMA had about 3,700 employees.
FEMA’s primary mission is to coordinate federal disaster assistance, receiving requests and working with other federal agencies to deliver aid. Programs include preparedness, mitigation, response, and recovery. FEMA manages a diverse array of training and assistance programs, including the Special Community Disaster Loan Program, Community Preparedness Programs, and oversight of the National Flood Insurance Program.
The personnel of FEMA, serving under the director, are assigned to headquarters in Washington, DC, and at regional and area offices, the agency’s Mount Weather Emergency Operations Center in Bluemont, Virginia, and the National Emergency Training Center in Emmitsburg, Maryland. FEMA operations are organized by region. The 10 FEMA regions are headquartered in Boston (Region I), New York (Region II), Philadelphia (Region III), Atlanta (Region IV), Chicago (Region V), Denton, Texas (Region VI), Kansas City, Missouri (Region VII), Denver (Region VIII), Oakland (Region IX), and Seattle (Region X).
FEMA’s activities became a focal point of controversy in the aftermath of Hurricane Katrina. Following the disaster, the agency undertook significant internal reforms.
The Secret Service
First established in 1865, the Secret Service was part of the Department of the Treasury before it was transferred to the newly established Department of Homeland Security. The Secret Service provides protection to the president and other senior personnel in the U.S. government and visiting foreign leaders.
Serving under its director, in addition to its protective mission, the Secret Service is responsible for coordinating security for specially designated national security events, such as the Super Bowl and presidential nominating conventions. Finally, from the time it served as part of the U.S. Treasury Department, the Secret Service has retained responsibility for investigating certain financial crimes.
In 2011 the Secret Service maintained 150 offices in the United States and abroad. The service includes both special agent and uniformed divisions, as well as support personnel.
Key Federal Homeland Security Partners
Even outside DHS, almost every federal agency and department has some homeland security responsibilities. For example, FEMA has established a list of emergency support functions (ESFs). ESFs are functional areas of response activity established to facilitate delivery of federal assistance during the immediate response phase of a disaster to save lives, protect property and public health, and maintain public safety. ESFs represent types of assistance states may need because of their specialized or unique nature or simply to supplement available state resources and response capabilities. ESFs are provided by a number of federal agencies. Additionally, many departments have unique response teams or participate in task forces that deal with terrorist threats or respond to disasters.
In addition to supporting emergency response activities, several departments have significant homeland security responsibilities. The Department of Health and Human Services is charged with overseeing bioterrorism preparedness programs, including management of the National Strategic Stockpile, reserves of medicines and medical supplies that can be deployed for a range of emergencies. The Department of Energy manages the security of U.S. nuclear production facilities, laboratories, and information. The Department of Agriculture oversees initiatives for dealing with bioterrorism attacks on the U.S. food supply.
The Federal Bureau of Investigation
Primary domestic intelligence support for counterterrorism is provided by the Federal Bureau of Investigation, a component of the Department of Justice. As part of an announced restructuring of the FBI on May 29, 2002, the FBI director declared that combating terrorism would become the bureau’s primary mission.6
Several components of the FBI are primarily organized to respond to the threat of terrorism. The FBI has established a network of 84 Joint Terrorism Task Forces (JTTFs) to put federal, state, and local law enforcement together to investigate threats and share information. The National Joint Terrorism Task Force (NJTTF) in Washington, DC, includes representatives from 30 agencies, spanning the fields of intelligence, public safety, and federal, state, and local law enforcement. The NJTTF collects terrorism information and funnels it to the regional JTTFs, other terrorism units within the FBI, and intelligence and law enforcement agencies. The Foreign Terrorist Tracking Task Force (FTTTF) works to prevent terrorists from entering the country and tracks down suspects within the United States.
The Terrorist Screening Center (TSC), created in 2003, consolidates all terrorist watch lists into a single function and gives around-the-clock access to local, state, and federal authorities. It brings together databases that include the State Department’s TIPOFF, the FBI’s Violent Gang and Terrorist Organization File, and DHS’s many transportation security lists. The TSC makes it easier for consular officers to determine whether a visa applicant is a potential terrorist. After several years and much controversy, the center established a consolidated Terrorist Watchlist, which provides a single database of identifying information about those known or reasonably suspected of involvement in terrorist activity. Several issues still routinely are raised as subjects of concern. One is the “redress” process, or how individuals who are mistakenly or inadvertently placed on the list get removed. A second concern is the potential for violation of civil liberties, including the privacy of individuals.
Department of Defense
The Pentagon conducts homeland defense and can also provide assistance for homeland security in support of other federal civilian agencies.
Assistant Secretary of Homeland Defense
The assistant secretary of homeland defense’s primary responsibilities focus on setting department policies regarding homeland security–related issues. The secretary also oversees coordination of research and development activities with the S&T directorate of DHS. Much of the DOD’s support for developing homeland security technologies is done through the Technical Support Working Group (TSWG), an interagency activity that adopts existing technologies to meet new mission requirements.
Another mission managed by the assistant secretary is the DOD’s critical infrastructure protection program, which includes security of military installations and facilities. These activities are managed by the newly established Defense Program Office for Mission Assurance. Most of the Department of Defense’s budget for homeland security activities supports critical infrastructure protection programs. Within the military services, each has adopted a different method for organizing and addressing domestic security issues.
U.S. Northern Command
The military defense of most of the United States is the responsibility of the U.S. Northern Command (NORTHCOM), headquartered in Colorado Springs, Colorado. NORTHCOM’s area of responsibility includes the continental United States, Alaska, Canada, Mexico, and surrounding water out to approximately 500 nautical miles. The defense of Hawaii and U.S. territories and possessions in the Pacific remains the responsibility of the U.S. Pacific Command. The commander of NORTHCOM is also the commander of the binational U.S.–Canada North American Aerospace Defense Command (NORAD).
Military support to civil authorities is governed by a number of federal statutes. The Insurrection Act allows the president to dispatch forces at the request of a governor or state legislature to suppress insurrections and authorizes the president to use troops to enforce federal law in the event of a rebellion.7 Other laws permit using military force in emergency situations dealing with nuclear material or weapons of mass destruction.8 Finally, the DOD can provide support to civilian agencies according to the provisions of the Stafford Act. The Pentagon is limited, however, by the Posse Comitatus law, which prohibits federal forces from performing law enforcement activities without the permission of Congress. The act, however, does not preclude the military from providing logistical support, loaning equipment, and offering technical advice, facilities, and training to civil authorities.9
In addition, Army and Air National Guard forces can be used to provide military support to civil authorities. The National Guard of each state or territory is commanded by its governor. Governors can assign state missions as allowed by state constitutions and statutes. Individuals or units are called into federal service under either Title 32 or Title 10 of the USC. Title 32 covers federally funded, nonfederal duty status, which includes periodic training and participation in congressionally directed domestic programs such as drug interdiction. Under Title 10, Guard forces perform federal duties under the command of the president and are only then subject to the limitations of the Posse Comitatus.
Department of Health and Human Services
The department’s role in homeland security became increasing prevalent after 9/11, particularly as the U.S. government became concerned about the threat of biological, chemical, or radiological attacks and the danger of deadly pandemics. In addition, experience in major disasters, including Ground Zero in New York City on 9/11 and the response to Hurricane Katrina, demonstrated that major disasters could include significant health risks from environmental conditions as well as psychological issues.
Under the Pandemic and All-Hazards Preparedness Act of 2006, passed in wake of the controversy over the federal response to Hurricane Katrina, the department established the Office of the Assistant Secretary for Preparedness and Response. It is the lead agency in preventing, preparing for, and responding to the adverse health effects of public health emergencies and disasters, including pandemic response. Among activities it oversees is the National Disaster Medical System, established to augment state and local medical assets during a major emergency.
A key operating agency in the department with homeland security–related responsibilities is the Centers for Disease Control and Prevention (CDC). The CDC runs a confederation of centers, institutes, and offices that perform monitoring, research, grant-making, and public information and coordinating activities related to health issues in disaster response, terrorist threats, and pandemic disease outbreaks. In addition, the CDC in coordination with DHS manages the Strategic National Stockpile, a national inventory of antibiotics, vaccines, antidotes, antitoxins, and critical medical equipment and supplies stored in locations around the country for use during national emergencies.
Other Federal Agencies
The support provided by various other federal agencies can be critical to homeland security in developing national policies, providing research and technical knowledge, managing homeland security–related programs, or offering operational support for homeland security missions. The Department of Energy’s National Nuclear Security Administration, for example, provides support for nuclear and radiological incident response teams.
THE ROLE OF CONGRESS
In the wake of the September 11 attacks, Congress has only partially reorganized its homeland security responsibilities. Both the Senate and the House have established subcommittees within their appropriations committees to draft the DHS annual budget legislation. However, oversight of homeland security activities is still fragmented. Congress’s responsibilities related to homeland security and terrorism transcend all aspects of its traditional committee authority. More than 108 congressional committees, subcommittees, and other oversight bodies claim jurisdiction over the Department of Homeland Security. The House has established a Homeland Security Committee to oversee operations of DHS, but the committee does not have full jurisdiction. In the Senate, the Homeland Security and Government Affairs Committee has some, but not all, responsibility for overseeing matters related to DHS.
There are persistent calls to reform the current committee system, which can overwhelm DHS with information requests and other demands, but there is little agreement among congressional leaders on how to best divide jurisdiction.
THE ROLE OF STATE AND LOCAL GOVERNMENTS
The Tenth Amendment to the Constitution makes clear that each state retains substantial independent power with respect to the general welfare of its populace. States, territories, and U.S. tribal lands bear much of the responsibility for providing homeland security for their citizens.
Organization of State Operations
States direct some resources important for homeland security, including domestic counterterrorism operations, critical infrastructure protection, and disaster preparedness and response, such as statewide law enforcement agencies, public health officials, and state highway authorities. Since states have different geographies and demographics and varying resources, industries, and critical infrastructure, they face unique threats and vulnerabilities and have disparate capacities to respond.
The structure of each state’s homeland security apparatus is also unique. According to the National Governors Association, after 9/11 all states created homeland security entities to prepare for a wide range of terrorist attacks. This facilited the interaction and coordination needed among the governor’s office, the homeland security director, the state emergency management office, other state agencies, local governments, the private sector, volunteer organizations, and the federal government. These structures were built on existing statewide response programs and resources.
Each state and territory includes the following officers—a homeland security adviser, a disaster response coordinator, a senior law enforcement official, and an adjutant general of the state National Guard. States assign these responsibilities as they see fit. There is no common model; however, in several states, the homeland security director serves as an adviser to the governor in addition to coordinating state emergency management, law enforcement, health, and related public safety functions. In some states, the homeland security adviser is also the state adjutant general, the commander of state National Guard troops. Rather than assigning the homeland security advisers oversight of state agencies, some governors use a task force approach, typically consisting of heads from law enforcement, fire and rescue, public health, National Guard, transportation, public works, and information technology agencies.
Local Governments
Metropolitan cities, towns, villages, counties, and tribal council governments have significant homeland security responsibilities. In many cases, for example, mayors and county executives are owners or operators of public transportation systems and transport nodes (such as ports, subways, or airports) or participate in their management. The bulk of emergency response assets, including police, firefighter, public works, and emergency medical personnel, are employees of state and local governments. In virtually every case, local government leaders will play a principal role in coordinating local security and directing on-scene emergency response.
Local governments demonstrate a wide range of capacity to undertake homeland security measures and respond to disasters. Most communities employ an emergency manager and emergency operations center, which provide the instrument for a unified response of local assets. In addition, many communities maintain mutual support and cooperative agreements to share resources with nearby localities.
There is tremendous diversity within American local governance. Major metropolitan areas, cities, towns, municipalities, and villages comprise most of the U.S. population. According to the U.S. Geological Survey, there are over 35,000 cities and smaller communities in the United States. In some communities, mayors share authority with the city or town council. In others, the council and the mayor are separate offices. The mayor may have vast authorities, or a chief administrative officer or “city manager” may instead oversee many of the government’s functions.
Regional authorities also differ significantly across the country. In 2011 there were 3,143 county-level jurisdictions in the United States. Texas has the most counties (254), Delaware the fewest (3). Counties in Connecticut are simply geographical divisions and have no governing authorities. Others states operate under very different models. For example, in some states a county executive’s authority primarily extends over rural populations. In others they provide services to towns within the county as well. Louisiana has parishes rather than counties. The parish president performs many of the duties of a country executive. Alaska has boroughs.
While states’ internal organizations are governed by state constitutions and laws, sovereignty in tribal lands is guided by the U.S. Constitution and a number of federal laws. As of 2011 there were 565 federally recognized tribes in the United States. Each has the inherent right of self-government and a unique and direct relationship with the federal government different in character from the relationships between states and the national government. FEMA, for example, officially recognizes that it has to adopt response activities to the specific sovereign authorities of various tribes.
Territories and commonwealths represent another category of government entity involved with homeland security. They are self-governing areas that have not been granted statehood. These include American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands, and the District of Columbia. They have a direct relationship with the federal government. Each has an executive authority with powers comparable to a U.S. state. The District of Columbia and Puerto Rico, for example, each have a National Guard with Air and Army National Guard units.
Emergency Responders
In the event of a terrorist incident, initial efforts to secure, protect, and assist at the scene are provided by emergency responders. The Homeland Security Act of 2002 defined emergency response providers as including “federal, state, and local public safety, law enforcement, emergency response, emergency medical (including hospital emergency facilities), and related personnel, agencies, and authorities.”10 These responders might include hazardous materials response teams, urban search and rescue assets, community emergency response teams, antiterrorism units, special weapons and tactics teams, bomb squads, emergency management officials, municipal agencies, and private organizations responsible for transportation, communications, medical services, public health, disaster assistance, public works, and construction.
After 9/11 there were about 2.3 million fire, police, and emergency medical personnel who might be considered first responders. When including other categories in the broader public emergency response community, the number could be as high as 9 million to 10 million. Overwhelmingly, individuals considered first responders are affiliated with local municipalities.
CHAPTER SUMMARY
Homeland security is a national enterprise that requires the involvement of federal, state, and local governments, as well as the private sector. Even within the federal government, each branch—the executive, legislative, and judicial—has an important role to play. Additionally, federal homeland security activities are not confined to the United States. Virtually every security activity has some international dimension that requires cooperation with other governments and international nongovernmental institutions.
The role of state and local governments cannot be overstated. State and local leaders play a critical role in all homeland security activities, from finding and stopping terrorists to protecting critical infrastructure and responding to attacks. In particular, response activities will normally be spearheaded by local officials, with state and federal assets providing support and reinforcement.
The complex nature of governance in the United States is a virtue, not a limitation. America is a large and diverse nation. Trying to run homeland security activities effectively out of an office in Washington, DC, would inevitably fail. The great strength of decentralized American governance is that it allows for innovation and flexibility by local leaders, permitting them to adapt responses to local needs and conditions. This, however, requires effective coordination between levels of government and the private sector to realize the advantages of the American way of homeland security.
CHAPTER QUIZ
1. What is federalism, and how does it affect the conduct of homeland security?
2. How should specific roles and responsibilities of federal, state, and local authorities be determined? Who should decide?
3. Why was use of the Homeland Security Council discontinued? Was it the right decision?
4. How does Congress influence the conduct of homeland security?
5. What contentious arguments persist over the practice of homeland security? What do they have in common?
NOTES
1. Department of Defense, Strategy for Homeland Defense and Civil Support (June 2005), p. 5, www.defense.gov/news/Jun2005/d20050630homeland.pdf.
2. The Executive Office of the White House, National Strategy for Homeland Security (2002), p. 2, www.dhs.gov/xlibrary/assets/nat_strat_hls.pdf.
3. See PL 235–61 Stat. 496; USC § 402. This law was amended by the National Security Act Amendments of 1949 (63 Stat. 579; 50 USC § 401 et seq.). As part of the federal Reorganization Plan of 1949, the NSC was placed in the Executive Office of the President.
4. James Jay Carafano and Ha Nguyen, “Better Intelligence Sharing for Visa Issuance and Monitoring: An Imperative for Homeland Security,” Heritage Backgrounder 1699 (October 27, 2003), www.heritage.org/Research/HomelandDefense/BG1699.cfm.
5. Office of the Inspector General, “Information Sharing at the National Operations Center,” Department of Homeland Security, OIG–10–15 (November 2009), 3–4.
6. Remarks prepared for delivery by Robert S. Mueller III, director, Federal Bureau of Investigation, at a press availability on the FBI’s reorganization, Washington, DC (May 29, 2002), www.fbi.gov/pressrel/speeches/speech052902.htm; FBI Strategic Focus (May 29, 2002), www.fbi.gov/page2/52902.htm.
7. Title 10 USC §§ 331–334.
8. Title 18 USC § 381; Title 10 USC § 382.
9. Mathew Carlton Hammond, “The Posse Comitatus Act: A Principle in Need of Renewal,” Washington University Law Quarterly (Summer 1997): 3, www.wulaw.wuslt.edu/75–2/752–10.html; Jeffrey D. Brake, “Terrorism and the Military’s Role in Domestic Crisis Management: Background and Issues for Congress,” Congressional Research Service (April 19, 2001), 11–18; Craig T. Trebilcock, “Posse Comitatus—Has the Posse Outlived Its Purpose?” Center for Strategic and International Studies Working Group (2000), 1–5.
10. 21 PL 107–296 § 2(6).